General Terms and Conditions

of Rhodius Mineralquellen und Getränke GmbH & Co. KG

I. APPLICABILITY OF THESE TERMS AND CONDITIONS

1. The products, services and offers of Rhodius are provided exclusively on the basis of these Terms and Conditions. These Terms and Conditions will also apply to all future business relationships, even if not expressly agreed again. These Terms and Conditions are deemed accepted by the Customer at the latest upon receipt of the goods or services.

2. Conditions of the customer that conflict with or differ from these General Terms and Conditions are not accepted by Rhodius unless Rhodius expressly agrees to their applicability in text form. These Terms and Conditions, and the rejection of differing or conflicting terms and conditions by Rhodius, continue to apply even if Rhodius is aware of differing and conflicting terms and conditions but nevertheless delivers products or provides services to the Customer without reservation.

II. OFFER, CONCLUSION OF AGREEMENT AND TECHNICAL CHARACTERISTICS

1. Offers made by Rhodius are non-binding unless they expressly state otherwise. Rhodius may accept offers made by the Customer within two weeks from the date they are made. Acceptance, orders and order confirmations must be made in text form. When Rhodius executes the agreement within the acceptance period, the delivery note or the invoice shall be deemed to constitute acceptance or order confirmation, as applicable.

2. The characteristics, in particular the composition and the shelf life of the delivered goods, are to be determined exclusively on the basis of the product information printed on the relevant labels and packaging. An assurance or guarantee of the aforementioned product characteristics must be made in text form. Product characteristics over and above the aforementioned product characteristics are only deemed to have been agreed if this is confirmed separately by Rhodius in text form.

3. The right to make changes to recipes, in particular due to changes in food regulations, is reserved.

III. IMPORT AND EXPORT

1. The Customer shall ensure that the goods may be exported. The Customer bears the risk of an export prohibition at the time of conclusion of the agreement.

2. The Customer shall – to the extent necessary – obtain the import permit as well as all authorisations, permits and other documents necessary in relation to the import of the goods and the possible transit of the goods through other countries. The Customer bears the risk of an import prohibition.

IV. DELIVERY, SERVICE DIFFICULTIES, PARTIAL DELIVERY

1. Delivery and export deadlines are approximate and non-binding. Agreements for binding delivery dates must be made in text form and must explicitly describe the deadlines as binding.

2. Meeting agreed delivery dates is contingent on all documents that are to be supplied by the Customer (e.g. labels, packaging), necessary permits, information and releases being received in a timely manner and the agreed payment terms being complied with by the Customer. If these conditions are not met, the delivery deadlines will be reasonably extended. This will not apply if Rhodius is responsible for the delay.

3. Rhodius is not liable for delays in delivery and the performance of obligations due to force majeure and due to events that make delivery or the performance of obligations substantially more difficult or impossible and for which Rhodius is not responsible – including subsequent procurement difficulties, operating disruptions, strike, lock outs, staff shortages, shortages in means of transportation, government orders, mobilisation, war, riot, etc. – even if these occur with a supplier, the supplier’s supplier or subcontractor and even where deadlines and dates have been bindingly agreed. Such disruptions entitle Rhodius either to postpone delivery or performance of the obligations, as the case may be, by an amount of time equivalent to the duration of the disruption plus a reasonable start-up period or to terminate that part of the agreement that has not yet been fulfilled, either partially or in its entirety. This also applies if the disruption occurs during an already on-going delay. Rhodius shall notify the Customer of such disruptions forthwith. If the disruption continues for a period in excess of three months, the Customer is entitled to terminate that part of the agreement that has not yet been fulfilled provided that he has first given Rhodius a reasonable period to comply with the agreement in text form. All other rights of the Customer are excluded.

4. Rhodius is only in default on the basis of a notice of demand if this occurs in text form. A deadline set for subsequent fulfilment of the obligations must be reasonable. In the event of doubt, a period of two weeks is deemed to be reasonable. The setting of the deadline must occur in text form.

5. Partial deliveries and their separate invoicing are permitted. The Customer may not refuse such partial deliveries on the condition that the remainder will yet be delivered or the partial delivery is not without interest to the Customer.

6. If Rhodius is in delay, the Customer may – to the extent that he can establish that such delay has caused him damage – demand compensation of 0.5% of the price of the delayed delivery for each completed week of delay up to a maximum of 5% of the price of the delayed delivery. Any claim for damages by the Customer arising out of the delayed delivery, as well as any claim for damages instead of performance of the obligations above and beyond this, is excluded in all cases of delayed performance, even after expiry of a deadline set by the Customer for Rhodius to fulfil its obligations. This does not apply to the extent that, in cases of intent, gross negligence or loss of life, bodily injury or damage to health, liability is mandatory. The Customer may only terminate the agreement within the limits permitted by law if Rhodius is responsible for the delay in performance of obligations. This shall not lead to a change in the burden of proof to the disadvantage of the Customer.

V. SCOPE OF DELIVERY

1. The scope of the delivery is to be determined by the contractual declarations given in text form.

2. Rhodius reserves the right to make technical changes due to improvements in technology and/or due to legislative requirements during the delivery timeframe to the extent that the goods to be delivered are not significantly altered and the alterations are reasonable for the Customer.

VI. DAMAGES

To the extent that the Customer is liable for damages for non-performance Rhodius shall be entitled to estimate these as a lump sum equal to 15% of the agreed net price. The Customer shall be entitled to prove that no damage was suffered, or that the damage suffered was considerably lower than the lump sum. Rhodius shall be entitled to claim a proven higher amount of damages.

VII. PACKAGING AND SHIPPING

Unless otherwise agreed, the place of performance of Rhodius’s obligations is the registered office of Rhodius. To the extent that Rhodius delivers or ships, the delivery occurs at the risk and at the cost of the Customer. Rhodius shall be entitled, but not obligated, to insure deliveries on behalf of and at the cost of the Customer.

VIII. CLAIMS FOR DEFECTS AND WARRANTY

1. For claims for defects made by businesses the statutory provisions, in particular § 377 HGB – German Commercial Code, apply. In all other cases, claims for apparent defects must be made in a timely manner.

2. Assurances as to the properties of the goods or services must be made in text form. Information in marketing materials are non-binding and do not constitute an assurance.

3. Deviations in quality do not constitute a defect as long as they do not substantially reduce the fitness of the goods for the contractually agreed purpose when used or processed in accordance with appropriate professional standards. Rhodius does not warrant that goods are completely uniform in colour and shape or that they conform to samples or specimens.

4. If a duly notified claim for defect is justified Rhodius is entitled, when dealing with a business, to make a replacement delivery at its discretion. Rhodius does not have a right to make subsequent deliveries on a purchase if and to the extent that the Customer makes a claim under a right of recourse under § 479 par. 1 and/or par. 2 BGB – German Civil Code. If the subsequent delivery fails, the Customer is entitled, at its discretion, to terminate the agreement or to demand a corresponding reduction in the price and/or claim damages if the statutory requirements therefor have been met.

5. If the Customer is a business, the warranty period is one year from delivery for purchases of new goods, unless a longer period is provided by statute in accordance with §§ 438 par. 1 no. 2 BGB – German Civil Code (building works or goods for building works) or 479 par. 1 and/or par. 2 BGB – German Civil Code (right of recourse). Warranty is excluded for the purchase of used goods if the Customer is a business.

6. If a claim for defect is shown to be unjustified the Customer shall reimburse Rhodius for all expenses related to the processing and examination of the claim that Rhodius deemed necessary.

7. Claims by the Customer for expenses incurred for the subsequent performance of obligations, in particular costs for transport, travel, labour and materials, are excluded to the extent that they occur or are increased due to the delivered item being brought to a different place from the original place of delivery, unless this corresponds to the contractually agreed use.

8. The Customer has no right of recourse against Rhodius to the extent that such rights are based on agreements reached by the Customer with its customers that go beyond the statutory warranty provisions.

IX. RETENTION OF TITLE

1. The delivered goods (goods supplied under retention of title or goods subject to lien) remain the property of Rhodius until full payment of the purchase price and fulfilment of all claims against the Customer arising out of the business relationship.

2. The handling and processing of goods with retention of title shall be carried out on behalf of Rhodius without creating an obligation for Rhodius.

3. The Customer is entitled and authorised to sell, combine or mix the goods with retention of title only in the usual, ordinary course of business and on the condition that the claims described below are in fact transferred to Rhodius and ownership only passes to the contractual partner of the Customer when the latter has completely fulfilled his payment obligations. The Customer is not entitled to dispose of the goods with retention of title in any other way. In particular he may not mortgage, charge or otherwise encumber the goods with retention of title.

4. The Customer hereby assigns to Rhodius all claims (including the settlement of all outstanding current account balances) arising from the sale of the goods with retention of title and/or the combination or mixing of the goods with retention of title with other items together with all ancillary rights and with priority before the rest, up to the value of the goods with retention of title. Rhodius accepts this assignment. The value of the goods with retention of title is agreed to be the amount invoiced by Rhodius plus a security surcharge of 10%. The security surcharge shall not apply if it conflicts with the rights of third parties.

IX. RETENTION OF TITLE (continuing)

5. Rhodius authorises the Customer to collect the assigned claims in its own name and for the account of Rhodius on the condition that the Customer fulfils its obligations to Rhodius, does not default on payment and no application has been made to commence insolvency or composition proceedings. This authority may be revoked at any time by Rhodius. At the request of Rhodius, the Customer shall give Rhodius the names of the debtors of the claims assigned to Rhodius, notify them of the assignment, give all details of the assigned claims necessary for their recovery as well provide all necessary documentation for the recovery of the claims. Rhodius is also authorised to notify the debtors of the assignment.

6. In the event of default in payment by the Customer, Rhodius is entitled to demand the goods be returned if it has unsuccessfully set a reasonable deadline for fulfilment. Neither the repossession nor the seizure of the goods with retention of title by Rhodius shall constitute a termination of the agreement. After repossession of the goods Rhodius is entitled to dispose of the goods for the best price possible. The revenue from the sale shall be credited against the liability of the Customer, less reasonable costs of the sale. In this case the Customers right to fulfilment of the agreement is extinguished.

7. In the event and to the extent that the security existing in favour of Rhodius exceeds the claims to be secured by more than 20%, Rhodius shall, at the request of the Customer, release a corresponding portion of the security.

8. In the event of access by third parties to the goods with retention of title or other securities, the Customer shall be obligated to notify the third parties of the rights of Rhodius and to inform Rhodius of the access without delay.

X. RIGHTS AND OBLIGATIONS WITH REGARD TO EMPTIES

1. All bottles, crates, containers, pallets and pallet baskets provided by Rhodius are Empties.

2. Empties do not become the property of the Customer. They are provided to the Customer solely for their proper use. Any use of the Empties that is inconsistent with the purpose for which they are intended is prohibited. In particular they may not be mortgaged, charged or otherwise encumbered, and they may not be misused, e.g. by being filled by the Customer or third parties or by being contaminated with pollutants.

3. The Customer shall return Empties to Rhodius immediately, no later than three months after emptying. If the Customer returns Empties that are marked as the property of third parties, or that do not correspond to the delivered goods in form, colour, contents, size or opening size, or that have been badly damaged or contaminated, no credit will be given. Such Empties will be provided to the Customer for pick-up. If the Customer does not pick up these Empties within 14 days, Rhodius may dispose of them. The Customer shall reimburse Rhodius for all costs and expenses related to the disposal as well as for any damage caused in relation thereto.

4. The Customer shall advise his end-customers appropriately of the ownership rights in the Empties. The Customer herewith assigns all claims that arise against any third party from the provision of the Empties or in any other way in connection with the provision of the Empties to Rhodius. Rhodius accepts this assignment. In the event of utilisation of the Empties by a third party, either on the Customer’s premises or the premises of an end-customer, the Customer must notify Rhodius without delay and take all steps necessary for the release of the Empties.

5. The Customer shall return all Empties immediately upon the termination of the business relationship without the need for a special request to do so.

6. Empties must be returned free of freight charges to Rhodius, Burgbrohl plant. Each return of Empties shall be credited against the then oldest outstanding returns.

XI. INVOICING OF EMPTIES

1. In order to secure title in the Empties and in order to secure the right to have the Empties returned, a deposit in the total amount of the value of the deposits on the Empties that have not yet been returned by the Customer is charged. For larger deliveries and for on-going business relationships the deposit may be paid in instalments. The payment of the deposit does not affect the duty to return the Empties. The Customer’s claims for return of the deposit may only be assigned to a third party with the consent of Rhodius.

2. A separate deposit account will be kept for deposits paid by the Customer. Rhodius will inform the Customer of the balance of the deposit account with each invoice. The balance thus notified shall be deemed as accepted by the Customer unless the Customer objects within one month.

3. The final account statement will be issued immediately upon termination of the business relationship; otherwise it will be issued six months after placement of the last order. Rhodius is entitled to offset a credit balance in the deposit account against any counter claims it may have against the Customer.

XII. ADVERTISING MATERIAL / FITTINGS / DISPENSING AND REFRIGERATION EQUIPMENT

Advertising material, fittings as well as dispensing and refrigeration equipment that is provided to the Customer on loan remain the property of Rhodius and shall be returned to Rhodius on request or upon termination of the business relationship within seven business days or they shall be paid for at the original purchase price.

XIII. LIABILITY

Claims of the Customer for damages and/or compensation for needless expenditures are limited to the provisions set out below. All other claims are excluded.

1. The relevant statutory provisions govern Rhodius’s liability for breach of agreement or breach of extra-contractual duties unless otherwise provided in these General Terms and Conditions, including the following provisions.

2. Rhodius is liable for damages – regardless of the legal grounds – in the event of intent or gross negligence. In the event of ordinary negligence Rhodius is liable only
- for damage caused by loss of life, bodily injury or damage to health,
- for damage caused by breach of an essential contractual obligation (an obligation which enables the proper performance of the agreement in the first place and on the compliance with which the contracting party regularly relies and is entitled to rely); in this case Rhodius’s liability is limited to compensation for foreseeable, typically occurring damage.

3. The limitation of liability contained in the previous paragraph shall not apply if Rhodius maliciously concealed a defect or undertook a guarantee for the quality of the delivered goods. This also applies to claims of the Customer arising under the German Product Liability Act.

4. Except as otherwise provided in these General Terms and Conditions, Rhodius’s liability for production downtime, loss of profits, loss of use, contractual losses or any other consequential or indirect damage is excluded.

5. The Customer can only terminate the agreement on grounds of a breach of an obligation that is not a defect if Rhodius is responsible for the breach of obligation.

6. To the extent that Rhodius’s liability is excluded or limited, this applies also to employees, workers, representatives and agents of Rhodius.

XIV. PAYMENT TERMS, OFFSET

1. Prices given to consumers are inclusive of statutory sales tax. Prices given to Customers who are not consumers are exclusive of the relevant applicable statutory sales tax. Unless the parties negotiate separate pricing, the price lists of Rhodius that are valid at the time of order placement apply.

2. Remuneration for services and other work is also based on the price lists of Rhodius that are valid at the time of order placement. These will be sent to the Customer on request and may also be viewed by the Customer in the offices of Rhodius.

3. The purchase price and any other costs are due and payable upon delivery of the goods. A discount is only permitted if this has been expressly agreed in text form. A discount on new invoices is not permitted if older outstanding invoices are due for payment.

4. Any variation to these agreed terms on payment and setoff must be made in text form.

5. Without prejudice to any other rights, if the Customer is in arrears with payment Rhodius is entitled to require payment in advance for any further deliveries it provides to the Customer.

6. Cheques and bills of exchange shall only be considered as payment when they have been honoured. Acceptance of bills of exchange as payment must always be agreed in advance in text form. When bills of exchange are discounted the interest and fees charged by the bank shall be invoiced to and borne by the Customer. These shall be payable immediately in cash.

7. In the event that notes, cheques or bills of exchange are not honoured due to the fault of Customer this shall immediately constitute a default in payment. Rhodius is entitled to charge an amount of €20.00 for each such default and reserve the right to claim for damages in excess of that amount. The Customer shall be entitled to prove that no damage was suffered, or that the damage suffered was considerably lower than the lump sum.

8. The Customer may only offset its own claims if these claims are undisputed or are legally enforceable. This also applies to the exercise of a right of retention unless the right of retention is based on an intentional or grossly negligent breach of contract by Rhodius. In addition, the Customer can only exercise such a right of retention if his right stems from the same contractual relationship as the rights of Rhodius against which the Customer is exercising said right.

XV. DATA PROTECTION

It is to be noted that the data necessary for the processing of the business transactions will be processed and stored on a computer system in accordance with § 33 German Federal Data Protection Act. The data will be gathered, processed and used within the context of the business process. The agreement text will not be stored in the e-commerce transactions.

XVI. PLACE OF PERFORMANCE, JURISDICTION

1. Place of performance for all obligations of the contracting parties is the Burgbrohl plant, unless otherwise agreed.

2. For all disputes arising under this agreement the exclusive jurisdiction is the Burgbrohl plant, provided that the Customer is a business, a legal entity under public law or special fund under public law or has no general domestic place of jurisdiction. In addition, Rhodius has the right to bring an action against the Customer in its general jurisdiction.

3. The laws of the Federal Republic of Germany shall apply to these General Terms and Conditions and all legal relations between the parties, to the exclusion of the provisions under the United Nations Convention on Contracts for International Sale of Goods.

Contact

RHODIUS Mineralquellen und Getränke
GmbH & Co. KG

Brohltalstraße 2
D-56659 Burgbrohl
Germany

Fon.: +49 (0)2636 / 9 20-100
Fax: +49 (0)2636 / 9 20-116
info@rhodius-mineralquellen.de

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