General Terms and Conditions of Benecke Coffee GmbH & Co. KG

Hamburg, June 2020

I. General, Conditions of the Goods

1. All sales and deliveries shall be covered by the terms of the “European Standard Contract for Coffee (ESCC)” as applicable at the time of the conclusion of the contract (available under http://www.ecf-coffee.org/publications/ contracts). The laws of the Federal Republic of Germany shall be applicable to the exclusion of the UN Sales Convention. 

2. Furthermore the General Terms and Conditions of the Seller as specified hereinafter shall be applicable to all sales and deliveries to entrepreneurs as defined in § 14 BGB (German Civil Code). It is agreed that they shall govern all future sales and deliveries and shall take precedence over any deviating terms and conditions of the Buyer. Any deviating business terms and delivery conditions or order confirmations of the Buyer, which are hereby explicitly rejected, shall only be binding on the Seller if and when explicitly accepted in writing by the Seller. In the event of a conflict between the conditions of the European Coffee Contract (E.C.C.) and the General Terms and Conditions of the Seller the General Terms and Conditions of the Seller shall take precedence over the conditions of the European Coffee Contract (E.C.C.). 

3. Unless specified otherwise by the Seller the goods offered by the Seller have not been produced by companies certified under the International Food Standard (IFS) or under an equivalent standard of the Global Food Safety Initiative (GFSI).

II. Payment Terms, Offsetting, Retention and Defence of Uncertainty

1. Payments shall be made as agreed on the overleaf page exclusively to the Seller in such a manner that the Seller receives the full value of the delivered goods without loss. If the specified calendar deadline for payment is exceeded the Seller shall, without the need for a reminder, be entitled to charge default interest to the amount of 9 per cent above the according base interest rate plus a lump-sum loss fee of 40 Euros (from companies). The Seller explicitly reserves the right to assert any concrete higher claims for damages (such as expenses incurred for legal enforcement in the event of payment default). 

2. The Buyer shall not be allowed to offset claims with counterclaims or to retain payments based on such counterclaims unless such counterclaims are uncontested or have been established in a legally binding fashion or if such counterclaims have arisen from the same contract under which the according delivery has been made. 

3. If, after conclusion of the contract, the Seller identifies the risk that the Buyer may be unable to perform its duties, then the Seller shall have the right to make performance of the outstanding deliveries conditional upon advance payment or provision of any other kind of security. If such advance payment or security has not been provided after expiry of an adequate deadline, then the Seller may stop deliveries until the advance payment or security has been provided, or the Seller may in part or totally withdraw from individual or all affected contracts. The Seller’s right to assert further rights shall remain unaffected. 

III. Retention of Title

The goods shall remain the Seller’s property until all claims under the business relationship have been paid, including ancillary claims, claims for damages and any future claims. The retention of title shall also continue to apply if and when individual claims of the Seller have been booked into a current account and the account balance has been established and acknowledged. 

Unless the Buyer is in default of payment the Buyer shall have the right to process the goods subject to our retention of title and to sell them in the course of ordinary business, taking the following provisions into account: 

1. The Buyer’s right to process the retained goods and/or to sell them in the course of ordinary business shall end if the Buyer is in default of payment by more than 14 days, ceases to make payments, or if an application for the opening of insolvency proceedings in respect of the Buyer’s assets is filed, or if the Buyer re-sells to customers who have excluded or restricted the possibility of assignment of the claims against them to third parties, thus preventing advance assignment. Otherwise the Seller shall have the right to withdraw from the contract at any time under certain legal conditions, e. g. in the event of attempted payment or improper handling of the retained goods. 

2. By processing or converting the retained goods the Buyer, who processes the goods for the Seller, shall not acquire the property rights to the new goods under § 950 BGB. Instead, processing or converting the retained goods shall be performed for the Seller as Manufacturer as specified in § 950 BGB. If the retained goods are processed, converted, combined or mixed with other goods that are not the Seller’s property, then the Seller shall acquire a property share in the new goods on a pro rata basis of the value of the Seller’s retained goods relative to the value of the other processed goods including the pro rata share of any added value created by processing. If besides the Seller’s retained goods the processed product includes exclusively goods that belonged to the Buyer or goods that had been delivered under a simple retention of title as specified in § 449 BGB, then the Buyer shall assign to the Seller any claims for a sales price resulting from any sale up to the amount of the invoice value for the goods delivered by the Seller. Otherwise, i. e. if several advance assignments to several suppliers are applicable at the same time, the Buyer shall assign to the Seller a share of the according sales price claim as defined by the provision in the previous paragraph. 

3. The Buyer hereby assigns to the Seller by way of security the full claim along with all ancillary rights arising from the resale of the retained goods including processed goods. The Seller accepts the assignment. 

4. As long as the Buyer fulfils its payment obligations the Seller shall not enforce the assigned claims. Instead the Seller shall authorize the Buyer to collect the claims assigned to the Seller on its own behalf for the account of the Seller. This authorization to collect may be revoked if the Buyer fails to properly fulfil its payment obligations. However, the Buyer shall upon request provide the Seller with an exact list of the claims owed to the Seller including the names and addresses of the customers, amounts of the individual claims, invoice dates, etc., and to provide the Seller with all information that is necessary for asserting the assigned claims. The Buyer’s 

authorization to collect the claims itself shall end if and when the Buyer is in payment default for over 14 days, ceases to make payments, or if an application for the opening of insolvency proceedings in respect of the Buyer’s assets is filed. Furthermore the Seller may at any time revoke the authorization to collect claims if the Seller’s interest in the security is at risk and if material reasons justify such revocation. If the authorization to collect becomes void for any reason the Buyer shall inform its customers about the assignment. The Buyer allows the Seller to inform the Buyer’s customers about the assignment and to collect the claims itself if the Buyer is in payment default for over 14 days, ceases to make payments, or if an application for the opening of insolvency proceedings in respect of the Buyer’s assets is filed. In that case the Seller may demand that the Buyer permit the Seller to have the Seller’s representative check the amount of assigned claims on the basis of the Buyer’s books. Any amounts from the assigned claims that the Buyer receives shall be kept separately for transfer. 

5. To the extent that the real value of the security for the Seller’s benefit exceeds the total amount of all Seller’s claims that are secured and not paid yet by more than 10 % the Seller shall upon the Buyer’s request release an adequate amount of security at the Seller’s election. 

6. Pledging or chattel mortgaging of the retained goods and of the assigned claims shall not be allowable. The Seller shall immediately be informed about any pledging of the security goods including information on the attachment and transfer order and on the creditor of the pledge. In the event of third parties seizing the retained goods or the assigned claims the Buyer shall bear all costs that are necessary to release the goods, especially by means of third-party action, and for the recovery of the security goods. 

7. As soon as the Buyer is in payment default the Buyer shall upon the Seller’s request be obliged to send the Seller a list of the existing retained goods, including processed, converted, combined or mixed goods, and a list of the claims against third party debtors along with the invoice copies, and to immediately return the existing retained goods to the Seller. 

8. If the Buyer’s behaviour constitutes a breach of contract (e. g. payment default) the Seller shall have the right to withdraw from the contract and to demand the return of the retained goods. The Seller shall have the right according to its best judgement to realize the returned retained goods by selling them itself and to offset the sales revenue against the outstanding claims. Any advance assignments of the resale revenue from the security goods shall be realized by collection. Such realization shall only be allowable after setting an adequate deadline at least one week in advance. The costs of realization shall be borne by the Buyer. 

9. The Buyer shall keep the retained goods on behalf of the Seller and shall insure them against fire, theft, water damage and other risks. The Buyer hereby assigns to the Seller any compensation claims for losses as specified in sentence 1 against insurance companies or other obligation debtors up to the amount of the Seller’s claims. The Seller accepts the assignment. 

10. Any rights under the retention of title and under the special arrangements specified in these terms and conditions shall apply until the Seller has been completely released from any liabilities entered in connection with the business relationship in the interest of the Buyer.

IV. Conflict Resolution

The parties agree that any arbitration shall take place in the court of arbitration of the German Coffee Association (Deutscher Kaffee-Verband e.V.) with the Hamburg Chamber of Commerce located in Hamburg. Proceedings shall be held under the arbitration regulation of the German Coffee Association with the Hamburg Chamber of Commerce (available under http://www.kaffeeverband.de). Any recognized claims as well as claims for sales prices that have not been contested in spite of a letter of reminder may, at the Seller’s election, be asserted in the competent court of law at the business seat of the Seller or in the agreed court of arbitration.