Part 1: General Terms and Conditions of SALE

The following terms and conditions of sale apply to the company:
FZ Foods AG

§ 1 General, scope of application

1. The General Terms and Conditions apply, in particular, to contracts on the sale and/or supply of tangibles (hereinafter also referred to as "goods"), regardless of whether we produce the goods ourselves or procure them from outside suppliers (§§ 433, 651 BGB – German Civil Code). The General Terms and Conditions shall also apply in their respective version as a blanket agreement for future contracts on the sale and/or supply of tangibles with the same buyer, without our being required to refer to them again in each individual case.

2. Our General Terms and Conditions shall apply exclusively. Varying, conflicting or supplementary general terms and conditions of the buyer shall only become an integral part of the agreement insofar as we have explicitly consented to their application. This requirement of consent shall apply in all cases, for example even if we effect delivery to the buyer without reservation in the knowledge of the general terms and conditions of the buyer.

3. Individual agreements entered into with the buyer in particular cases (including collateral agreements, supplements and amendments) shall always take precedence over these General Terms and Conditions. A written agreement or our written confirmation shall be definitive for the content of such agreements.

4. References to the application of statutory regulations are for clarification purposes only. Therefore, the statutory regulations shall also apply even without such clarification unless they are directly amended or explicitly precluded in these General Terms and Conditions.

 

§ 2 Conclusion of contracts

1. Our offers are subject to change without notice and without obligation, subject to prior sale.

2. Orders and agreements shall only become binding if they have been confirmed by us in writing. Except as otherwise explicitly agreed upon, the buyer shall be bound until receipt of this confirmation, which we will decide upon within a reasonable period of time.

3. Acceptance of the order can either be declared in writing (for example by means of acknowledgement of order) or by delivering the goods to the buyer.

4. Since our deliveries are subject to natural fluctuations in weight and quality, we are entitled to deliver more or less than the amount specified in the contract within this framework. We are entitled to effect part-shipments insofar as their acceptance is reasonable for the buyer.

5. Orders for acceptance in partial lots are to be called off successively.

6. Promised properties of the goods and warranty declarations shall only be effective if confirmed by us in writing.

7. Samples are deemed non-binding. Initial samples, indications of dimensions, weights and performance, as well as illustrations and analysis information only reflect approximate values. We reserve the right to make changes to recipes.

8. We do not pay or refund any amounts for imported goods pursuant to Absatzfondsgesetz (German agricultural marketing fund act).

9. Claims regarding our services may only be assigned with our consent thereto.

 

§ 3 Delivery, passing of risk, acceptance, default of acceptance

1. Delivery shall be effected ex warehouse, which is also the place of performance. The goods will also be sent to another destination at the request and expense of the buyer (sale to destination according to buyer’s instructions).

2. The risk, including the risk of conveyance and changes in quality occurring in transit, shall pass to the buyer as soon as the goods have been handed over to the forwarder or freight carrier, or have left the warehouse or the place of loading in another manner. This also applies to transactions in the case of FOT, C&F, CIF and carriage paid. Clauses including, but not limited to franco, carriage paid, franco Ringleben, free warehouse, free to buyer’s ramp are only of significance for freight costs and expenses, but do not constitute any risk clauses. If it has been agreed that the goods will be accepted at the warehouse or the cold store, the risk and quality risk shall pass to the buyer when he is presented with the delivery note or an equivalent document entitling him to receive the goods, or the goods have been re-stored or transferred to his name. This time is deemed the receipt of the goods by the buyer.

3. Transit costs, particularly those for the protection of the goods, shall be assumed by the buyer. Transport insurance shall only be taken out at the explicit request and on the account of the buyer. In the case of CIF transactions, we cover maritime insurance at invoice value, while any gains are to be covered by the buyer. We do not cover risks concerning war, disputes, exports and theft. When the insurance policy has been handed to the buyer, he shall assume all of the rights and duties of the insured party without our assuming any liability for the quality of the insurance company. In the case of ship loads on inland waterways, it is agreed: Basis normal water; low water, high water and ice surcharges shall be at the expense of the buyer.

4. Except as otherwise agreed, we are entitled to determine the nature of the shipment ourselves (particularly transport company, despatch route, packaging). In the case of import transactions where the shipping port is deemed to be the place of performance, we may ship the goods directly, indirectly or with trans-shipment or tender these import transactions in tangible goods ex quay or warehouse of the port of destination named by us in the course of the 2 months following the date of discharge. We do not undertake to tender discharges prior to unloading of the ships or to announce the name of the steamships prior to their arrival at the port of discharge. Should the buyer fail to inform us of his delivery address in good time, we shall ship the goods to the best of our knowledge without any obligation for us. If we are not responsible for the conveyance of the goods via alternative routes due to gross negligence, the additional carriage, pre-carriage and any other costs arising as a result of the detour shall be borne by the buyer.

5. The goods delivered in a condition customary in the trade shall be accepted as they fall. The original quantities ascertained at the place of loading shall be decisive for calculating purposes.

6. Insofar as acceptance has been agreed upon, it shall be decisive for the passing of risk. Delivery shall be equivalent to acceptance if the buyer is in default of acceptance.

7. Should the buyer be in default of acceptance of the goods or fail to cooperate, or if our delivery is delayed for any other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the losses arising as a result thereof, including additional expenses (e.g. storage costs). For this, we shall charge lump-sum compensation in the amount of 0.5 per calendar week, maximum 5 % of the value of the goods, starting from the period of delivery or, if in the absence of a period of delivery, from the time when notification was given that the goods were ready for despatch.

8. The right to submit evidence of greater damage and our statutory rights (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected. The lump sum shall, however, be credited against further monetary claims. The buyer is entitled to submit evidence that we have not incurred any damage at all or that we have only incurred damage of a substantially lower amount than the aforesaid lump-sum amount.

 

§ 4 Prices and terms of payment

1. Except as otherwise agreed upon in individual cases, our prices valid at the time of the conclusion of contract shall be applicable, namely ex warehouse plus statutory value-added tax.

2. In the case of a sale to a destination according to buyer’s instructions (§ 3, subsection 1), the buyer shall assume the costs of carriage ex warehouse as well as the costs of transport insurance that may be desired by the buyer. The buyer shall assume any customs duties, fees and taxes and any other public duties. We do not take back transport packaging or any other packaging pursuant to packaging regulations. They shall, with the exception of pallets, become the property of the buyer.

3. The purchase price falls due for payment and is payable within two weeks after the invoice has been issued and delivery or acceptance of the goods.

The buyer shall get into arrears after the aforesaid period for payment has ended. While the buyer is in arrears, interest shall be charged on the purchase price at the statutory rate of interest on arrears applicable from time to time. We reserve the right to assert claims for any additional damage caused by default. Our claim to commercial interest after due date vis-à-vis merchants remains unaffected (§ 353 HGB – German Commercial Code).

4. We only accept instructions to pay or cheques as payment by charging all collection costs; the acceptance of bills of exchange or other debt instruments shall be subject to a separate agreement. Discount charges and bill charges shall always be at the expense of the buyer, they are to be paid in cash immediately. Bills of exchange shall be accepted under reserve of the possibility of discounting and as conditional payment. In the event that a bill of exchange, cheque or other debt instrument given in payment by the buyer is not honoured within the specified period, all of our further claims vis-à-vis the buyer shall become due for payment immediately, including those claims for which the buyer has issued additional bills of exchange, cheques or debt instruments.

5. We shall determine whether partial payments are to be set off against principal claims, interest, costs or older receivables.

6. The buyer shall only be entitled to set-off or rights of retention insofar as his claim has been determined to be final and conclusive or incontestable. In the case of defects in the shipment, § 6, subsection 6 shall remain unaffected.

Should it become apparent after conclusion of the contract that our claim to the purchase price is endangered due to the lack of the ability of the buyer to effect payment (e.g. application for insolvency proceedings to be initiated), we are entitled pursuant to statutory regulations to refuse performance and, if applicable, to rescind the contract after setting a deadline (§ 321 BGB – German Civil Code).

7. The supplier is entitled to assign his accounts receivable for funding purposes.

8. All prices are quoted in the currency agreed upon. EUR is deemed stipulated without any special agreement.

9. If we purchase goods from the buyer and his general terms and conditions of sale become a constituent part of the agreement, we shall, irrespective of a prohibition of retention and set-off that may be provided for in the agreement, be entitled to set off our claims against those of the buyer if the buyer has not fulfilled the claims to which we are entitled. Insofar as we have satisfied the buyer by means of payment or set-off, the future rights of ownership of the goods purchased by us shall pass to us. The buyer gives his assurance that these goods are free from the rights of third parties.

10. The seller reserves the right, after the timely notification of the buyer and prior to delivery of the goods, to raise the price of the goods to the extent required on the basis of general price developments beyond his control (such as exchange rate fluctuations, currency regulations, changes in customs, significant increase in material or production costs) or due to changes in suppliers.

 

§ 5 Reservation of ownership

We deliver the goods under reservation of ownership pursuant to § 455 BGB – German Civil Code, with the following additions and extensions:

1. Until full payment of the secured claims, the goods under reservation of ownership may not be pledged to third parties and ownership may not be transferred by way of security. The buyer shall notify us in writing without delay if and insofar as the goods belonging to us are seized by third parties.

2. Should the buyer act in breach of contract, in particular with regard to the failure to pay the due purchase price, we are entitled to rescind the contract in accordance with statutory regulations and to demand the return of the goods on the basis of the reservation of ownership and the rescission. Should the buyer fail to pay the purchase price, we may only assert these claims if we have previously set the buyer a deadline for payment without success or if the setting of such a deadline is dispensable pursuant to statutory regulations.

3. The conditional commodities are processed or treated for us. It is hereby agreed that we are manufacturers pursuant to § 950 BGB. If a new object is created by means of the processing or treatment of the conditional commodities, it shall then become our property which the buyer shall look after for us with the due care and diligence of a prudent businessman. Should our property become a fundamental part of another principle thing by means of joining or blending, it is agreed that we shall be entitled to co-ownership of the principle thing in the ratio of the invoice value of our transaction with the buyer to the value of the principle thing. The co-ownership share shall already be assigned to us now, the buyer shall merely hold it in safe custody for us, namely with the due care and diligence of a prudent businessman. We accept the assignment. § 5, subsection 6 of these provisions also applies in consideration of the co-ownership share.

4. The buyer may only resell the conditional commodities in the usual course of business. The reselling to third parties in the case of whom the assignability of reciprocal claims is precluded, transactions customary in the sector, transactions for which cash before delivery has been agreed upon, insofar as they are linked to constructive possession, pledging, transfer of ownership by way of security or the utilisation of our goods for securing loans are precluded.

5. The buyer shall assign in advance the claims vis-à-vis his customers for our conditional commodities with all securities and other rights to which he is entitled from the resale of the conditional commodities or the goods co-owned by us. We hereby accept this assignment; in spite of the assignment, the buyer is authorised to collect the receivables from the resale in a fiduciary capacity provided the amounts collected are used to settle our invoices without delay. We are entitled to revoke the authorisation for collection if the conditional purchaser does not effect payment punctually. In the case of bills of exchange or cheques received by the buyer for the conditional commodities, the buyer shall, if demanded, assign them to us by means of endorsement. If the assigned claims exceed our claim by more than 25 %, the further claim shall be due to the buyer. We shall not make use of our authorisation for collection as long as the buyer duly meets his financial obligations. Upon request, the buyer shall submit to us duplicates of his invoices issued to his debtors and all other documents in order to assert our claims and/or notify his debtors of the assignment of the purchase money claim, and inform us thereof, and, upon request, submit a list of the conditional commodities in stock for him and his subsequent buyers, also insofar as they have been processed or treated, mixed or joined with other goods or changed in any other manner. We are entitled to notify the subsequent buyers of our buyers regarding the assignment.

6. The buyer shall reserve the right vis-à-vis his customers to the conditional ownership of the goods. In the event of a resale by the buyer, our ownership shall, barring payment of the purchase price by the buyer, only expire upon payment by the third party to the buyer.

7. As long as our right of ownership regarding the delivered goods exists, they are to be insured by the buyer in our favour against loss and depreciation in value, against the risk of fire, theft and carriage, storage and water damage, and are to be held free of charge in safe custody with due diligence. The insurance policies shall be presented to us upon request. Any claims from insurance policies that may arise shall be assigned to us already. We hereby accept the assignment. The buyer is liable to us for depreciation in value of whatever nature incurred by the delivered goods, as well as for loss or destruction of the goods.

8. The buyer shall indicate our ownership in his books. Upon request, he shall label our conditional commodities and keep them separate from other goods. If our conditional commodities are mixed or joined with other substances, the buyer is obligated, without our explicit request, to identify them or their proportion in the new object developed by mixing or joining in his books, as well as on the goods and their storage containers.

 

§ 6 Warranty claims of the buyer

1. Except as otherwise provided for below, the rights of the buyer in the case of defects of quality and legal imperfections in title (including incorrect deliveries and short shipments) are subject to statutory regulations.

2. Insofar as no agreement was made regarding quality, the assessment of whether there is a defect or not shall be made in accordance with the statutory regulation (§ 434, subsection 1, sentence 2 and 3 BGB – German Civil Code). However, we do not assume any liability for public statements made by the manufacturer or any other third parties (e.g. advertising messages).

3. The warranty claims of the buyer require that he has met his statutory obligations to inspect the goods and give notification of defects (§§ 377, 381 HGB – German Commercial Code). Our goods are to be checked for defects and obvious missing quantities upon receipt, and, in the case of deliveries effected by rail, containers and lorries, prior to unloading. Defects and missing quantities are to be specified to us immediately upon receipt and immediately upon receipt of the goods by rail or prior to unloading of the lorry or container telegraphically or by telex or fax. The driver of the trailer-truck combination shall be requested to confirm the defect in writing on the front page of all of the copies of the consignment note. If he refuses to do so, a specific description of the defects and missing quantities is to be written on the front page of all of the copies of the consignment note and delivery notes and signed with binding effect by the recipient. In particular, these notifications of defects must be contained on the copies handed to the carrier by road as a receipt of delivery. Clauses such as “with reservation” or “with usual reservation” are unsuitable. In the case of deliveries by rail, the notification of defects concerning temperature, missing quantities or weights is subject to the taking down of the facts of the case by the rail authorities; in the case of deliveries by lorry from state-trading countries, notification of defects shall be subject to a record of the facts of the case, which is to be signed by the lorry driver and the recipient. In the case of deliveries from state-trading countries, the delivery receipt will not be issued until the lorry driver has signed the damage report.

The taking down of the facts of the case, report and remarks on the consignment notes must also contain the core temperatures ascertained when opening the vehicle, which must be confirmed by the rail authorities for deliveries sent by rail and by the lorry driver for deliveries sent by lorry or container. All documents are to be sent to us in each case without delay. We are entitled to an appraisal to be prepared before unloading.

4. With respect to warranty claims, partial lots are deemed independent consignments. Defects in a part of the consignment shall not result in the entitlement to reject the entire consignment.

5. Should the delivered item be faulty, the buyer may initially elect to demand that the defect be remedied by way of subsequence performance (subsequent improvement) or demand the delivery of an item free of defects (replacement consignment). Should the buyer fail to state which of the two rights he has chosen, we are entitled to set a reasonable deadline for such decision. If the buyer does not make his choice within the time-limit, the right to choose shall pass to us upon expiration of the deadline.

6. We are entitled to make the subsequent performance owed contingent upon the buyer effecting payment of the due purchase price. However, the buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.

7. The buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to submit the rejected goods for inspection purposes. In the case of a replacement consignment, the buyer shall return the faulty items to us in accordance with statutory regulations.

8. Expenses required for the purpose of inspection and subsequence performance, in particular transport, infrastructure, labour and material costs, shall be borne by us if a defect is actually existent. However, should the buyer’s demand for remedying the defect prove to be unjustified, we may demand that the costs arising as a result thereof be reimbursed by the buyer.

9. In urgent cases, for example if operational safety is endangered or in order to ward off disproportionate losses, the buyer is entitled to remedy the defect himself and to demand reimbursement by us regarding the objectively required expenses for this purpose. We are to be notified of such a self-execution without delay, if possible prior thereto. The right to self-execution does not exist if we were entitled to refuse appropriate subsequent performance in accordance with statutory regulations.

10. In the event of the failure of subsequent performance or a reasonable time-limit for subsequent performance to be set by the buyer has expired without success, or is not required pursuant to statutory regulations, the buyer may rescind the contract of purchase or reduce the purchase price. However, the right to rescission does not exist in the case of an immaterial defect.

11. Claims of the buyer for compensation or reimbursement of futile expenses only exist pursuant to § 6 and are precluded in all other respects.

12. § 6 also applies with regard to replacement consignments.

 

§ 7 Other liability

1. Except as otherwise stated in these General Terms and Conditions, including the provisions below, we shall be liable in accordance with the relevant statutory provisions in the event of a breach of contractual or non-contractual duties.

2. We shall be liable for compensation – for whatever legal reason – in the case of intent and gross negligence. In the case of ordinary negligence, we shall only be liable

a.) for losses arising from injury to life, body or health

b.) for losses arsising from the breach of a material contractual duty (a duty which must be fulfilled in order to enable the contract to be performed at all in a due and proper manner, and the observation of which the contractual partner regularly expects and may expect); in such case, however, our liability shall be limited to compensation regarding foreseeable, typically occurring damage

3. The liability restrictions arising from subsection 2 do not apply in the case of malicious non-disclosure of a fault or if we have assumed a guarantee for the quality of the goods. The same shall apply to claims of the buyer pursuant to the product liability act.

4. The buyer may only rescind or terminate the contract due to a breach of duty which is not based on a defect if we are responsible for the breach of duty. A free right of termination of the buyer is precluded. The statutory requirements and legal consequences shall apply in all other respects.

 

§ 8 Choice of law and place of jurisdiction

1. These General Terms and Conditions and all legal relationships between ourselves and the buyer are subject to the laws of the Federal Republic of Germany with the exclusion of all international and supranational (contractual) legal systems, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG). Requirements and effects of reservation of ownership pursuant to § 5 are, however, subject to the law at the respective location of the item insofar as the choice of law made in accordance therewith is inadmissible or ineffective in favour of German law.

2. If the buyer is a businessmann in the sense of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive, also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our corporate domicile in Ringleben. We are, however, also entitled to file suit at the general place of jurisdiction for the buyer.

 

§ 9 Limitation of actions

1. Notwithstanding § 438, subsection 1 No. 3 BGB (German Civil Code), the general statute of limitations for claims from defects of quality and legal imperfections in title is one year from the time of delivery. Insofar as acceptance has been agreed upon, the limitation of actions shall commence upon such acceptance.

2. The special statutory provisions for third party claims for possession in rem (§ 438 subsection 1 No. 1 BGB), in the case of malice on the part of the seller (§ 438, subsection 3 BGB) and for claims to damages against the supplier in the case of a final delivery to a consumer (§ 479 BGB) shall remain unaffected.

3. The aforesaid statutory periods of limitation of the law on sales also apply to contractual and non-contractual claims for damages by the buyer based in a defect of the goods, unless application of the regular statutory limitation of actions (§ 195, 199 BGB) would lead to a shorter limitation of actions in individual cases. The statutes of limitation of the product liability law shall remain unaffected at any rate. Otherwise, the statutory periods of limitation shall apply exclusively to claims for damages by the buyer pursuant to § 6.

 

Part 2: General Terms and Conditions of PURCHASE

The following Terms and Conditions of Purchase apply to the company: FZ Foods AG

§ 1 Relevant provisions

1. These General Terms and Conditions shall apply exclusively. Varying, conflicting or supplementary general terms and conditions of the seller (hereinafter referred to as: "supplier") shall only become an integral part of the agreement insofar as we have explicitly consented to their application in writing. This requirement of consent shall apply in all cases, for example even if we accept delivery from the supplier without reservation in the knowledge of the general terms and conditions of the supplier.

2. References to the application of statutory regulations are for clarification purposes only. Therefore, the statutory regulations shall also apply even without such clarification unless they are directly amended or explicitly precluded in these General Terms and Conditions.

3. Except as otherwise stated in these General Terms and Conditions, the provisions and quality standards applicable under food law valid in the Federal Republic of Germany at the time of the conclusion of the contract shall apply to purchases.

4. Application of the United Nations Convention on Contracts for the International Sale of Goods is explicitly precluded.

5. These General Terms and Conditions of Purchase also apply to all future deliveries, services or offers to the customer even if they are not agreed upon separately again.

 

§ 2 Conclusion of contract

1. Only orders placed in writing shall be valid. Any orders placed by us verbally or by telephone shall only become effective if confirmed by us in writing. The same applies to any verbal agreements concerning supplements or amendments of the contract.

2. The supplier is obliged to confirm our order in writing within a time-limit of 3 days, or, in particular, to execute it by sending the goods without reservation (acceptance).

A delayed acceptance is deemed a new offer and shall be subject to our acceptance.

 

§ 3 Delivery

1. If a delivery date has not been firmly agreed upon in accordance with the contract, we are to be advised of delivery two days in advance by 12 p.m. at the latest.

2. In the case of deliveries of raw materials/frozen goods, the delivery vehicle shall be available for unloading at the place of receipt by 12 p.m. on the day of delivery. Should the delivery vehicle not arrive until after 12 p.m., the buyer is entitled to wait until the next day to unload the vehicle. The supplier shall assume any additional costs incurred from unloading the next day and he shall bear the risk of an impairment of quality of the goods.

Frozen products are to be delivered and loaded with a minimum core temperature of minus 18°C.

Delivery of the goods shall be effected with the goods packed on euro pallets and wrapped with stretch film, in stable, clean cardboard boxes/sacks/stable bags, declared in accordance with the provisions under food law. Should the supplier fail to satisfy these conditions and the goods arrive unpalletised in cardboard boxes or other packaging, he shall assume any additional costs for the manual unloading required as a result thereof.

3. For deliveries, the weight ascertained upon arrival by means of our own calibrated scales or public scales at the place of receipt, calculated by balancing the tare weight and the laden weight of the vehicle, less the established weight of the packaging material, or the number of units established by our warehouse manager shall be definitive in all cases. Weighing charges for the use of public scales shall be borne by the supplier.

If delivery is effected by the contractual partner or in the case of self-collection – by us directly to the customer, weight and quality checks will be carried out at the destination. The weight and quality of the goods at this time shall be decisive within the sense of our General Terms and Conditions of Purchase and Payment.

4. Should delivery not be effected in full or in part on the stipulated date, we shall be entitled to rescind the contract or to demand compensation for non-performance. In the case of short shipments of a substantial nature, we are entitled to the same rights with regard to the still outstanding services and performance.

Moreover, in the case of a delay in delivery, we are entitled – in addition to further statutory claims – to demand lump-sum damage caused by default in the amount of 1 % of the value of the delivery per completed calendar week, but not more than 10 %. We reserve the right to furnish evidence that we have incurred higher losses. The supplier reserves the right to furnish evidence that we have not incurred any losses at all or that the damage was substantially lower.

 

§ 4 Passing of risk, place of performance and documents

1. Place of performance, place of the passing of risk and delivery pursuant to warranty law is the place of destination named in the contract or on the basis of the contract.

Except as otherwise stated in the contract, our corporate domicile in Ringleben shall be the place of performance.

In the case of self-collection by us, the place of performance is the place of destination of the goods. The goods will be inspected at the place of destination of the goods, their condition at this time shall be decisive. Choren is also the place of performance in this case for all additional rights and duties.

2. The supplier is obligated to submit all required documents and to indicate our order number(s) on them. Should he fail to do so, delays in processing will be unavoidable for which we will not be responsible.

 

§ 5 Inspection of defects and warranty

1. Except as otherwise provided for below, the statutory regulations shall apply to our rights in the event of defects in quality and legal imperfections in title of the goods (including incorrect deliveries and short shipments) and in the case of other breaches of duty by the supplier.

In accordance with statutory regulations, the supplier is, in particular, liable for ensuring the goods are of the stipulated quality when the risk passes to us. At all events, the product descriptions which are the subject matter of the respective contract – particularly by means of designation or reference in our order – or are included in the contract in the same manner as these General Terms and Conditions are applicable regarding the quality agreed upon. It does not make any difference whether the product description comes from us, from the supplier or from the manufacturer.

Insofar as special specifications are part of our order, they are deemed promised features, the particular observation of which is guaranteed by the supplier. If the cooling chain was interrupted in the case of the delivery of frozen foods, calculated from the time of freezing, so that the goods have not had a continual core temperature of at least minus 18°C, this particularly constitutes a defect.

2. The expert’s report prepared in the laboratory of the buyer with the incoming goods report is applicable for the ascertainment of quality. This expert’s report is binding for the supplier. Should the supplier have justified doubts, he may, with the buyer’s consent, commission an impartial expert to establish the quality of the delivered goods. The supplier shall commission this expertise and assume the costs thereof. This also applies to additional costs arising such as pitch fees for lorries, surcharges for unloading costs, etc.

Except as otherwise stated in the contract or on the basis of the circumstances, only goods from the most recent harvest may be delivered.

3. Quantities indicated in the order are to be adhered to exactly. Deviations of more than 5 % in the case of excess deliveries result in the entitlement to refuse acceptance in proportion to the excess delivery or to demand subsequent deliveries in the case of short shipments. The right to refuse acceptance shall then extend to a larger quantity than the excess amount delivered if it is not possible to divide it up in another way due to the nature of the packaging. Missing quantities arising as a result thereof will be treated as short shipments. All additional costs shall be borne by the supplier in the case of short shipments.

4. The statutory regulations (§ 377 HGB – German Commercial Code) apply to the commercial duty concerning inspection and notification of defects as follows: Our duty to inspect is restricted to defects which become patently evident during the outward inspection of the incoming goods, including the delivery documents and in our quality control in random inspection procedures (for example transport damage, incorrect deliveries, short shipments). In all other respects, it depends on the extent to which an inspection in consideration of the circumstances of the individual case is expedient in the normal course of business. Our obligation to give notice of defects for defects discovered at a later date remains unaffected. In all cases, our objection (notification of defect) shall be deemed without delay and timely if it is received by the supplier within 5 working days.

5. We are entitled to the full statutory warranty claims; notwithstanding this, we are entitled to rescind the contract in part insofar as this division is reasonable, and to demand from the supplier, at our option, to have the defects remedied or a replacement consignment. We explicitly reserve the right to assert claims for compensation due to non-performance.

In the case of a diminution, we are entitled to withhold a reasonable part of the invoice amount until the deficit has been accounted for.

All costs in connection with a notification of defects, particularly those for expertises, as well as all consequential losses and lost profit shall be assumed by the supplier.

In the case of the refusal to take delivery on our part and the acceptance of returns/forwarding of the rejected goods by the supplier or the acceptance of the goods by us at a specified reduced value, the complaint shall be deemed accepted on the part of the supplier. Payments do not denote any waiver of the right to make a claim.

 

§ 6 Product liability and indemnity

1. Insofar as the supplier is responsible for damage caused by a product, he is obligated to indemnify us from compensation claims of third parties in this respect.

2. The supplier undertakes to take out and maintain product liability insurance with an insured sum of 10 million EUR per personal injury / damage to property. Should we be entitled to additional compensation claims, these shall remain unaffected.

 

§7 Prices and payment

1. The price indicated in the order is binding. Except as otherwise explicitly agreed upon, all prices are quoted including packaging, costs for “Grüner Punkt” (Green Dot recycling), franco domicile, duty paid.

The supplier shall bear the costs for the due and proper disposal of the packaging material. The buyer may put in a claim for the costs of disposal within 12 months after the respective delivery.

Contributions pursuant to Absatzfondsgesetz (German agricultural marketing fund act) are to be paid by the supplier and will not be reimbursed by us.

Except as otherwise explicitly agreed upon, we are entitled to reduce the prices by a reasonable amount in accordance with the rules of the frustration of contract in the case of a significant reduction in the minimum import prices, agricultural levies or customs duties etc.

2. Invoices can only be processed by us if they contain the order numbers as specified in our order. The supplier shall be responsible for all consequences arising as a result of the non-observation of this obligation.

3. The purchase price claim shall not fall due until the delivery obligations have been met in full, partial shipments shall only be accepted with this reservation.

4. If deliveries are effected in conformity with the contract and invoices are rendered in a timely manner, payment will be effected by us, except as otherwise agreed upon, within 30 days with a deduction of 3 % cash discount or within 90 days net by bank transfer or sending a crossed cheque.

5. In the case of purchases from suppliers who turn over minimum annual sales of 500,000.00 EUR or more with the buyer, the buyer has the right to bill/charge the supplier for a sales bonus in the total amount of 3 % of the turnover at the end of a business year. The buyer is entitled to deduct this sales bonus from invoices from the supplier which are due for payment.

6. We are entitled to set off claims of the supply companies with all claims vis-à-vis the supply company to which we are entitled on the basis of assignments. This shall also apply pursuant to §§ 387 ff BGB – German Civil Code, even if the maturity dates of the reciprocal claims are different or if payment in cash has been agreed upon for one party and accepted bills or customer’s acceptances for the other. Furthermore, we are entitled to the statutory rights of retention.

7. The supplier is not entitled to transfer accumulating claims and rights in favour of third parties to which he is entitled vis-à-vis us by means of assignment, pledging or in any other manner.

Transfers within the scope of reservation of ownership agreements with the upstream supplier are explicitly precluded from this prohibition and shall be accepted by us.

We will allow further exceptions from this prohibition if this were to place the supplier at an unreasonable disadvantage. In such case, the supplier is obligated to obtain in writing our consent regarding the disposition of the claim.

Moreover, the supplier undertakes to notify us immediately in writing if we are unable or no longer able to effect payments to him with a discharging effect as a consequence of the disposition.

Should the supplier fail to send such notification, he shall be liable for all damage incurred by us as a result thereof.

 

§ 8 Place of jurisdiction

The exclusive – including international – place of jurisdiction for all disputes arising in connection with the contractual relationship is our corporate domicile in Ringleben.

 

§9 Final provisions

Should any individual provisions of these General Terms and Conditions of Purchase and Payment as well as of the agreement on the front page be void, the validity of the remaining provisions shall in no way be affected. In such case, the provision between the parties shall be deemed agreed upon which corresponds to the economic sense and purpose of the void provision; in case of doubt, the statutory provision.