General Terms and Conditions

Terms and Conditions of Engagement, Delivery and Payment of TECOSOL GmbH (last update: November 2009)

Article 1 Scope of Terms and Conditions, Exclusion of Conflicting Terms and Conditions
1 The following terms and conditions of engagement, delivery and payment (in the following called “general terms of delivery”) shall apply to all contracts of Tecosol GmbH (in the following called “Tecosol”) with third parties (the respective contractual partners of Tecosol, in the following called “Purchaser(s)”).
2 Even without repeat express reference, the general terms of delivery shall apply to all future contracts between Tecosol and a Purchaser, provided they are a legal entity under public law, a special fund under public law or a company, and they exercise their commercial or freelance activity when concluding the respective contract.
3 Any contradicting, conflicting or additional general terms and conditions used by the Purchaser are expressly excluded and rejected. Under no circumstances shall Tecosol be bound by such general terms and conditions.

Article 2 Conclusion of a Contract
1 Quotations will be prepared and submitted by Tecosol without charge and are always without engagement, unless agreed otherwise in individual cases. A contract between Tecosol and a Purchaser shall not come into effect until Tecosol has accepted the Purchaser’s order.
2 Any documents annexed to a quotation by Tecosol, e.g. drawings, illustrations, descriptions, as well as weight specifications and dimension data, only become part of the terms of the contract if this has been expressly agreed.

Article 3 Place and Time of Performance
1 Unless agreed otherwise, Tecosol shall make goods available at their registered office or another place of loading specified by Tecosol for collection by the Purchaser. Unless agreed otherwise, any work performance or services owed by Tecosol must be rendered at the registered office of Tecosol or any other place of loading specified by Tecosol.
2 If the agreed time of performance cannot be ascertained on the basis of the calendar, deliveries or services shall be carried out within the agreed period of delivery and performance, respectively, at the discretion of Tecosol. If a period of delivery extends to several months, delivery can be made in monthly instalments of roughly the same size.
3 When defining the period of delivery and performance, respectively, “immediately” means within three days and “expeditious” means within ten days. The calculation of a deadline of a period of delivery or performance that cannot be ascertained on the basis of the calendar shall include neither the day of the conclusion of the contract nor Saturdays, Sundays or any statutory or customary public holidays at the place of performance.
4 Tecosol shall not be responsible for any delays in delivery or performance that are caused by force majeure events.
Force majeure events include, but are not limited to, the following events, unless these events were foreseeable at the time of conclusion of the contract, or Tecosol could have redressed their ramifications with reasonable effort:
– mobilisation, warlike events, insurgence, civil war, blockades;
– industrial actions (strikes and lock-outs), demonstrations, stay-in strikes, sabotage;
– unusual natural events such as ice, floods, low water/drought, hurricane, tornadoes, earthquakes, seismic waves, delayed harvests or the destruction of harvests;
– considerable impairment of the possibility to obtain foreign currency required for the payment of raw materials, which is neither dependent on the credit-worthiness of Tecosol nor caused by Tecosol in any other way;
– explosions, fire, complete or partial destruction of production facilities and/or warehouses;
– machinery breakage or any other material operational disruptions;
– shortage in fuel, auxiliary materials or energy;
– and, shortage of labour due to diseases or epidemics.
If the Purchaser is in default of acceptance or if they are in debtor’s default with the acceptance of purchased goods, Tecosol may, after an appropriate deadline, withdraw from the contract in its entirety or – at their discretion – from the unfulfilled part of the contract and/or claim damages instead of performance. Generally, a deadline of one week is deemed appropriate.

Article 4 Price, Invoice, Payment, Default by the Purchaser
1 Unless agreed otherwise, prices are agreed ex works and net plus applicable statutory VAT, even if this is not shown separately. Unless agreed otherwise, Tecosol shall be entitled to charge the Purchaser separately for any costs and expenses for packaging, freight, installation, postage, insurance, customs duties, customs handling, banking and monetary transactions as well as any ancillary expenses. The net price for deliveries for free circulation already contains any potentially accruing energy tax.
2 At Tecosol’s discretion, invoices will be sent via post, fax or email. For that purpose, the Purchaser shall give Tecosol an e-mail address.
3 Unless agreed otherwise, the invoice amount shall be payable immediately upon receipt of invoice, without any deductions.
4 In case of (collectively agreed) wage and salary increases based on collective labour law or in case of an increase in market prices for raw materials and/or consumables by more than 10 %, Tecosol shall be entitled – unless agreed otherwise – to raise the agreed price correspondingly, if the performance owed by Tecosol is to be effected more than 4 months after the conclusion of the contract.

Article 5 Defaults by the Purchaser, Consequences of Default and Tecosol’s Right to Refuse Performance
1 Tecosol shall be entitled to retain agreed deliveries or performances for as long as the Purchaser is in default with their duty of payment to Tecosol.
2 If the Purchaser defaults on payments to Tecosol, Tecosol shall be entitled to charge interest in the amount of 13 % p.a., unless there is a higher statutory default interest rate.
3 If the Purchaser defaults on payments to Tecosol, Tecosol can grant the Purchaser an appropriate period of grace for payment; after this period of grace has elapsed, Tecosol may, at their discretion, withdraw from all contracts between the Purchaser and Tecosol in their entirety or from the part of the contract that has not yet been fulfilled by Tecosol and/or claim damages instead of performance. Generally, one week is deemed an appropriate period of grace.
4 If Tecosol claim damages instead of performance, in compliance with the previous paragraph 3, Tecosol may claim a flat-rate damages in the amount of 65 % of the remuneration agreed in each individual case, unless Tecosol have incurred a higher damage.
5 Tecosol shall be entitled to refuse owed performances, if, due to circumstances that become known after the conclusion of a contract, there is reason to fear that the Purchaser will not effect the consideration at all, fully or in time. This shall not apply if the Purchaser pays in advance or provides adequate security to Tecosol. The previous sentence 1 shall apply in particular if, after the conclusion of a contract, a credit insurer refuses to insure the consideration owed by the Purchaser, on the grounds of the Purchaser’s credit-worthiness.
6 If the Purchaser is a merchant as stipulated by the Handelsgesetzbuch [German Commercial Code] and if the contract is part of carrying out their trading activities, Tecosol shall be entitled to charge default interest in the amount of 8 % above the base interest rate on outstanding debts.

Article 6 Customs Duties, Excise Duties and VAT-free Deliveries
1 Regardless of negligence or fault, the Purchaser shall be liable to Tecosol for the compliance with the customs and/or excise duty requirements to be observed by them or their purchasers, pursuant to the German Energy Taxation Law and any applicable laws in the respective country (as amended), as the case may be, as well as for obtaining and complying with the required public-law approvals. If approvals – especially for customs-reduced and/or tax-advantaged or tax-free deliveries – are not granted or revoked again, Tecosol shall be entitled to adjust the purchase price accordingly or to invoice subsequently any differences with regard to any irregularities in the tax suspension procedure vis-à-vis the Purchaser.
2 In case of VAT-exempt deliveries (collection) in all places of loading of the European Union, the Purchaser shall guarantee that the delivery item will be transported into a different member state.

Article 7 Passing of Risk, Dispatch, Packaging, Transport
1 When picking up the goods, the Purchaser must comply with the relevant statutory safety regulations and especially the safety regulations applicable for the respective country and the Tecosol refinery, respectively, as well as all instructions given by Tecosol personnel.
2 The Purchaser shall be liable to Tecosol for any negligence with respect to all containers (e.g. tank wagons) provided on loan or for rent. Such containers may only be used to store or transport goods supplied by Tecosol.
3 The Purchaser shall be obliged to immediately empty containers and to return them at their own expense to the address indicated by Tecosol. Unless expressly agreed otherwise, rents for tank wagons will be billed at the respective rentals customary for the industry from the day of filling until the wagon is returned to the stipulated receiving station.
4 If the Purchaser and Tecosol have agreed a rent-free outgoing and return transport, the rentals customary for the industry shall apply if the return deadline is exceeded.
5 No compensation will be paid for any goods residues resulting from the container not being emptied completely. Costs for emptying and cleaning shall be at the Purchaser’s expense.
6 Under no circumstances shall Tecosol be obliged to check any containers provided by the Purchaser for suitability and cleanliness.

Article 8 Reservation of Title
1 The reservation of title agreed hereinafter serves to safeguard all of Tecosol’s current and future claims against the Purchaser from the entire delivery and/or performance relationship between Tecosol and the Purchaser, including outstanding balance claims from a current account contract restricted to this delivery and/or performance relationship.
2 The goods delivered by Tecosol to the Purchaser shall remain Tecosol’s property until complete payment has been effected for all secured claims. The goods as well as goods replacing them and which also are subject to the reservation of title shall hereinafter be referred to as “goods subject to reservation of title”.
3 The Purchaser shall keep the goods subject to reservation of title for Tecosol, free of charge.
4 The Purchaser shall have the right to process and sell the goods subject to reservation of title during the normal course of business, until the occurrence of a case of liquidation (paragraph 9). It is not permitted to pledge goods or transfer them by way of security.
5 Should the Purchaser process the goods subject to reservation of title, it is hereby agreed that such processing shall be carried out on behalf of and for the account of Tecosol as the manufacturer, and that Tecosol shall directly obtain ownership or – should the processing be carried out using materials from several owners, or should the value of the processed goods be higher than the value of the goods subject to reservation of title – joint ownership (co-ownership) in the newly created goods, in the relation of the value of the goods subject to reservation of title compared with the value of the newly produced goods. Should Tecosol not obtain such ownership, the Purchaser hereby transfers their future title to, or – in the aforementioned relation – joint ownership, in the newly created goods to Tecosol by way of security. Should the goods subject to reservation of title be combined with other goods to form a uniform object, or should they be compounded inseparably, and should one of the other goods have to be regarded as the main object, the Purchaser, insofar as they are the owner of the main object, hereby transfers joint ownership in the uniform object to Tecosol on a pro rata basis, in the relation stipulated in clause 1.
6 Should the goods subject to reservation of title be re-sold, the Purchaser transfers at once to Tecosol by way of security the claims arising from this against the purchaser – in case of Tecosol’s joint ownership in the goods subject to reservation of title on a pro rata basis in accordance with the joint ownership share. The same shall apply for other claims which may replace the goods subject to reservation of title or may otherwise arise in connection with the goods subject to reservation of title, such as insurance claims or claims based on tort in case of loss or destruction. Tecosol revocably authorises the Purchaser to collect the claims assigned to Tecosol, in their own name and for Tecosol’s account. The Seller may only revoke this collection authorisation in case of liquidation.
7 Should third parties take hold of the goods subject to reservation of title, in particular by way of levy of execution, the Purchaser shall immediately inform them of Tecosol’s title, and shall inform Tecosol thereof, in order to enable them to enforce their title rights. Insofar as the third party is unable to reimburse Tecosol for any judicial and extra-judicial costs accruing in this context, the Purchaser shall be liable towards Tecosol in this respect.
8 Upon request, Tecosol shall – at their discretion – release the goods subject to reservation of title as well as all goods or claims replacing them, if their value exceeds the amount of the secured claims by more than 50%.
9 Should Tecosol withdraw from the contract due to a violation of the contract – in particular default in payment – by the Purchaser (case of liquidation), they shall have the right to demand return of the goods subject to reservation of title.

Article 9 – Warranty
1 In case the supplied goods are defective, Tecosol can, at their discretion, either repair or replace them.
2 The Purchaser can only assert rights arising from product defects, if the goods have not yet been processed with other goods or compounded inseparably at the time of the notice of defects, unless they can prove adequately that the defect cannot be attributed to a defectiveness of the respective other good.
3 In case of a notice of defects, the Purchaser must respect possible rights of Tecosol vis-à-vis third parties, including but not limited to possible transport contractors (e.g. forwarding agents), and must take suitable measures for preservation of evidence forthwith.
4 The limitation period for claims for defects is one year as of the date of delivery of the goods.

Article 10 Liability
1 Within the framework of statutory provisions, Tecosol shall be liable for damages insofar as the damage is caused by intent or gross negligence on the part of Tecosol, their representatives or vicarious agents. Liability for simple negligence is excluded provided that there is neither a culpable violation of a material contractual obligation nor any injury to life, body or health of an individual, or a mandatory liability due to the stipulations of the Product Liability Act.
2 The buyer’s damage claims shall be limited to the typically foreseeable damage. This shall not apply to claims based on intentional or grossly negligent conduct on the part of Tecosol, their representatives or vicarious agents. Moreover, the limitation does not apply to damages arising from injury to life, body or health of an individual, or a mandatory liability due to the stipulations of the Product Liability Act.
3 Tecosol shall be liable to the buyer for loss of earnings due to downtimes of machines or any other equipment only for such a period that is required under normal circumstances to expertly remedy the respective damage. This period is usually no longer than two weeks. If the Purchaser claims, no matter to which extent, they shall have the onus of demonstration and proof.
4 In each individual case, Tecosol’s liability for damage to property caused by negligence shall be limited to a compensation not exceeding Tecosol’s business liability insurance.
5 The Purchaser’s claims for damages arising from this contractual relationship shall come under the statute of limitations after one year; this shall not affect the statutory provisions regarding the start of the statute of limitations. This shall not apply in cases according to article 438 para. 1 (1) and (2) BGB [German Civil Code] and to articles 478, 479 BGB as well as for claims for damages arising from injury to life, body or health of an individual or a mandatory liability due to the stipulations of the Product Liability Act.

Article 11 Quality / Quantities / Billing / Conversion
1  The written description in the contract / purchase contract or the order confirmation defines the contractual quality of the purchase item. Quality characteristics of specimen or samples, analysis details or specifications are only indications of quality if they are agreed in writing. As a matter of principle, Tecosol issue no guarantee of quality or durability pursuant to article 443 BGB.
2 With regard to the determination of quantity, the weight / volume determined by weighing or measuring at the place of performance (art. 3 para. 1) shall be authoritative. If delivery is made in tank vehicles, the quantity shown on their measuring equipment shall be decisive.
3  Subject to paragraph 5 below, the measurement determined at the place of performance shall be billed on a mass basis in kilogramme as a matter of principle.
4 For the conversion according to excise duty legislation of mass to volume in L15°C, the following applies (in compliance with the order from the Federal Ministry of Finance of 16th July 2007): 0.883 kilogrammes of fatty acid methyl ester correspond to 1 litre, and 0.92 kilogrammes of vegetable oil correspond to 1 litre, unless a different, legally binding conversion key is required by law or by an order from the Federal Ministry of Finance or any other authorities.
5 Notwithstanding the above paragraph 3, billing can also be made based on volume base in L15°C, at Tecosol’s discretion, if delivery is made in tank vehicles.

Article 12 Transfer, Offsetting and Retention Rights
1 The Purchaser shall not be permitted to transfer any of their claims or other rights against Tecosol to third parties.
2 The Purchaser may only offset undisputed or legally recognised claims against claims of Tecosol, irrespective of legal basis.
3 The previous paragraph 2 shall apply accordingly for retention rights that the Purchaser may possibly be entitled to with regard to their own claim against Tecosol.
4 Irrespective of legal basis, the Purchaser shall not be entitled to retention rights if, at the time the Purchaser asserts the retention right, Tecosol has got a due claim – irrespective of legal basis – against the Purchaser, which became due before the Purchaser’s claim, on which  their retention right was based on, became due.

Article 13 Place of Jurisdiction, Applicable Law
1 The place of jurisdiction for all claims ensuing from the business relationship, including those ensuing from bills of exchange and cheques, shall be the court in whose district Tecosol has its statutory seat; at their discretion, Tecosol shall also be entitled to sue the Purchaser at a different court that is competent in terms of location and by operation of law.
2 The law of the Federal Republic of Germany shall exclusively apply for any and all contracts resulting from the business relationship between the Purchaser and Tecosol, as well as for any other mutual rights and obligations arising from this, to the exclusion of any provisions of international agreements, in particular the Hague Conventions Relating to a Uniform Law on the International Sale of Goods and the United Nations Convention on Contracts for the International Sale of Goods (CISG). The conditions of delivery specified in the order documents refer to the Incoterms, as amended.

385/09; D25/433
AGB-Nov.2009-D433-1.doc