General Terms and Conditions of Business
I. Scope of application
1. The terms of sale and delivery below apply to all contracts relating to the supply of goods entered into between the purchaser and us. They apply to all future business relationships, even if not expressly agreed. Differing terms of the purchaser that we do not expressly recognise are not binding on us, even if we do not expressly object to them. The terms of sale below also apply if we, being aware of contrary and differing terms of the purchaser, fulfil the purchaser’s order without reservation. The agreements made between the purchaser and us to perform the sale and purchase agreements are only effective if in writing.
II. Offer and conclusion of contract
1. We can accept an order by the purchaser that is to be qualified as an offer to enter into a sale and purchase agreement within 2 weeks by sending an order confirmation or by sending the ordered products within the same time period.
2. Our offers are non-binding and without obligation, unless we have expressly designated them as binding.
III. Quantities and weights
1. The suffix “approximately” or “approx.” or “about” before the quantity entitles us to deviate 10% above or below on delivery.
2. Weights are determined according to trade practice before goods are released. The dispatch weight determined in this way – namely upon issue of the invoice – is always decisive. The normal weight loss upon receipt of the goods during transportation is at the cost of the purchaser.
IV. Payment terms
1. Our prices are expressed from the place of loading without packaging unless otherwise agreed. Our prices are exclusive of statutory value added tax. We will indicate this separately in the invoice at the statutory rate on the day the invoice is issued.
2. Our invoices are due and payable within 7 calendar days after invoicing. If the purchaser does not make payment by the due date, interest is to be applied to the outstanding amount at a rate of 8% p.a. above the base rate from the due date. This does not affect any claim for higher interest or further damages in the event of payment default.
3. Discounts shall cease to apply if the purchaser is late in paying the invoice issued by the seller, or if insolvency proceedings are applied for / commenced over the assets of the purchaser.
4. The purchaser is only entitled to the right of set-off, even if defect complaints or counterclaims have been submitted, once the counterclaims have been legally established, recognised by us or are undisputed. The purchaser is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
5. If the purchaser defaults in making payment or if its trading situation materially deteriorates, we are entitled to disregard any agreed payment terms and to demand immediate payment of goods already supplied under this and all other contracts with the same purchaser and, with regard to goods that have not yet been supplied, demand advance payment or the provision of collateral and to refuse to perform the contract until immediate payment and/or advance payment is made or security is provided. If the purchaser does not fulfil the request to make advance payment or provide security within 7 calendar days, we are entitled – at our discretion – to withdraw from the contract and/or to seek damages for non-fulfilment of the contract. The same applies if circumstances existed before or at the time the contract was entered into which cast doubt on the creditworthiness of the purchaser, but which only became known to us after entering into the contract.
6. The purchaser can only make payments to our employees with discharging effect if they can evidence a written power of collection.
7. Taxes, expenses and other duties or costs arising after entry into the contract as a result of legislative changes or official measures are always to be borne by the purchaser, as well as other adverse impacts arising from changes to import and customs provisions.
V. Delivery dates / deadlines
1. Delivery dates or deadlines that are not expressly agreed to be binding are only non-binding information. If no delivery date is agreed, the delivery will be made “as soon as possible”. The agreement of delivery deadlines by the seller is subject to the express reservation that incoming deliveries are received promptly and dispatch is possible without hindrance.
2. The delivery period starts on the date the order is confirmed.
3. Observance of delivery deadlines requires the prompt receipt of documents to be supplied by the purchaser, required permissions and approvals, as well as observance by the purchaser of the agreed payment terms and other obligations. If these pre-requisites are not fulfilled, the deadlines will be extended accordingly; this does not apply if we are responsible for the delay.
4. In the event of delayed delivery, we are liable to the purchaser in accordance with the statutory provisions if this is due to a wilful or grossly negligent breach of the contract for which we are responsible, which shall include any fault of our representatives or vicarious agents. Our liability is limited to foreseeable, typically occurring losses if the delay in delivery is not due to a wilful breach of the contract for which we are responsible.
5. In the event of simple negligence, if there is a delay in delivery for which we are responsible, we are liable in an amount not exceeding 1% of the delivery value for each complete week of delay up to a maximum of 10% of the delivery value. The purchaser must provide evidence to support the amount of losses claimed as a result of the delay.
6. Any further liability for a delay in delivery that is caused by us is excluded. Other statutory claims and rights of the purchaser that are available to it in addition to a claim for damages due to a delay in delivery caused by us are unaffected.
7. We are entitled to provide partial deliveries and partial services at all times, provided that this is reasonable for the purchaser.
8. If there is a delay in the purchaser accepting the delivery, we are entitled to request reimbursement of the loss arising and any additional expenditure. The same applies if the purchaser wilfully breaches any of its obligations to cooperate. Upon the occurrence of a delay in acceptance or payment, the risk of accidental damage and loss of the goods shall pass to the purchaser.
VI. Transfer of risk – shipping/packaging
1. We will endeavour to take into consideration the requests and interests of the purchaser with regard to the shipping method and transport route; additional costs caused by this – even in the case of agreed freight paid deliveries – shall be borne by the purchaser.
2. If the shipment is delayed at the request of or due to the fault of the purchaser, we will store the goods at the expense and risk of the purchaser. In this case, the date of notification of readiness for dispatch is deemed to be the same as the date of dispatch.
3. The risk of accidental loss of the goods in the case of a sales shipment transfers to the purchaser when the goods are provided to the forwarding agent, freight transporter or other person appointed to carry out the delivery.
4. The seller is not liable for impossibility of delivery or for delays in delivery in so far as these have been caused by force majeure or other events which were not foreseeable at the time of concluding the contract (e.g. operating disruptions of all kinds, transport delays, international conflicts, delivery blocks and embargos – including protective measures in the event of the same – difficulties in procuring necessary official approvals, other official measures or non-delivery or incorrect or late delivery by suppliers), for which the seller is not responsible. If such circumstances make it significantly more difficult for the seller to provide the service or render this impossible, and where the hindrance is not only of temporary nature, then the seller shall be entitled to withdraw from the contract.
5. If the seller falls behind with a supply or service or if a supply or service is impossible for it, for whatever reason this may be, then the seller’s liability is limited to damages in accordance with the provisions below under VIII of these terms of business.
1. The purchaser – or the cold store on its behalf – or other recipient if the purchaser instructs delivery to a cold store or other recipient, is obliged to carefully check the goods immediately after receiving them. It must check the weight, quantity and external condition of the goods and is furthermore obliged to check the contents of tins, crates and boxes supplied and at least take random samples, whereby frozen items must at least be thawed in order to perform the test.
2. Complaints about missing quantities and weight differences, as well as apparent defects in the goods, must be submitted in writing immediately after receiving the goods. In this regard, complaints about missing quantities and weight differences are excluded if the purchase or person receiving the goods issues a receipt “without missing quantities or weight complaints” upon receiving the goods on the delivery note, consignment note or other written form. Complaints about concealed defects are to be notified in writing immediately after discovering them; however, an objection can only be raised within 14 days of receiving the goods and the objection must be received by us within such period.
3. We shall be given the opportunity to verify the timeliness and eligibility of the complaint. In the case of apparent defects in the goods or complaints relating to the weight, the reason for the complaint is to be precisely stated. In the case of complaints regarding concealed defects, an official veterinary certificate must be submitted at the same time. The complaint must be made only to us, i.e. complaining to representatives or agents will not suffice.
4. All complaints relating to defects or weight are excluded if the purchaser inseparably mixes the goods supplied with other goods, or if the purchaser has started to process the goods supplied.
5. Goods for which a complaint is not received in time or properly will be deemed to be accepted.
6. If we provide an official health certificate in respect of the goods supplied, the content of this certificate shall be irrefutable proof of the condition and quality of the goods at the time to which the certificate relates.
7. If there is a defect with the goods for which we are responsible, we are obliged to remedy the defect unless we are entitled to refuse subsequent performance on the basis of statutory provisions. If subsequent performance fails, the purchaser can either demand a reduction of the purchase price or declare that it is withdrawing from the contract. Subsequent performance is deemed to have failed after the second unsuccessful attempt, unless further rectification attempts are appropriate due to the subject of the matter of the contract and provided that they are reasonable for the purchaser. Claims for damages due to a defect on the basis of the terms below may only be asserted by the purchaser once subsequent performance has failed. The purchaser’s right to bring additional claims for damages on the terms below is unaffected by this.
8. Not all of our suppliers are certified in accordance with IFS for food, brokers or logistics providers.
1. The warranty claims of the purchaser shall lapse one year after the delivery of the goods to the purchaser, unless we have maliciously concealed a defect, in which event the statutory provisions shall apply. Our obligations under Items VIII 2 and 3 below are not affected by this.
2. We accept unlimited liability in accordance with the statutory provisions for damages resulting from injury to the life, body or health caused by intent or negligence on our part or that of our legal representatives and vicarious agents, as well as for damages covered by the German Product Liability Law (Produkthaftungsgesetz). For damage not encompassed by Sentence 1 and which is based on intentional or grossly negligent contractual breaches or malice on our part, or the part of our legal representatives or vicarious agents, we shall be liable in accordance with the statutory provisions. In such event, however, the liability for damages shall be limited to typical, foreseeable damage to the extent we, our legal representatives or vicarious agents have not acted intentionally. To the extent we have issued a guarantee regarding the condition and/or durability of goods or parts thereof, we shall also be liable within the framework of such guarantee. We shall only be liable for damage which is based on the absence of a guaranteed condition or durability but which is not inflicted directly to the goods if the risk of such damage was obviously covered by the guarantee of condition or durability.
3. We shall also be liable for damages caused by simple negligence if the negligence relates to the breach of those contractual duties which are particularly important to observe in order to achieve the purpose of agreement (fundamental obligations). We shall only be liable, however, if the damages are typically associated with the contract and were foreseeable, and the amount of damages is limited to typical, direct average damages. Liability is excluded for a simple negligent breach of immaterial contractual obligations.
4. Any further liability is excluded irrespective of the legal nature of the asserted claim; this shall apply in particular to tort claims and claims to compensation of futile expenses in lieu of performance; our liability pursuant to Section V Item 4 and Section V Item 5 of these General Terms and Conditions of Sale and Delivery is not affected by this. If our liability is excluded or limited, this shall also apply to the personal liability of our salaried employees, employees, representatives and vicarious agents.
5. Claims for damages by the purchaser due to defects shall lapse one year after the delivery of the goods. This shall not apply in the event of injury to life, limb or health which is our fault or that of our legal representatives or vicious agents, or if we or our legal representatives have acted intentionally or with gross negligence, or if our simple vicarious agents have acted intentionally.
IX. Retention of title
1. Until the fulfilment of all claims (including all claims to balances from current accounts) to which we are entitled now or in the future against the purchaser, the delivered goods shall remain our property (reserved goods).
2. The purchaser is obliged to treat the reserved goods with care and to sufficiently insure them for their new value, at its cost.
3. The purchaser is entitled to sell and/or to use the reserved goods in an ordinary manner in business dealings, as long as it is not in default of payment. Pledging or transfers by way of security of the reserved goods are not permissible. The claims (including all of the account balance claims from the current account) arising out of the onward sale or another legal ground (insurance, unlawful act) with regard to the reserved goods are hereby assigned now by the purchaser to us to the full extent by way of security; we hereby accept the assignment. We hereby irrevocably empower the purchaser to collect the claims assigned to us for the purchaser’s account in the purchaser’s own name. The collection authority can be revoked at any time if the purchaser does not duly fulfil its payment obligations. The purchaser shall not be allowed to assign this claim, not even in the context of factoring, unless such assignment simultaneously gives rise to a duty of the factoring party to settle directly with us quid pro quo in the amount of existing claims that we still have against the purchaser.
4. In all cases retained goods shall only be processed or transformed by the purchaser on behalf of us. If the retained goods are worked into other objects which are not our property, we shall acquire proportionate co-title to the new object based on the ratio of the value of the retained goods (final invoice amount including value-added tax) to the other objects so processed at the time such processing takes place. The provisions applying to the retained goods shall likewise apply to the new object resulting from such processing. Should the retained goods be inseparably mixed with other objects which are not our property, we shall acquire proportionate co-title to the new object based on the ratio of the value of the retained goods (final invoice amount including value-added tax) to the other objects so mixed at the time such mixing takes place. Should objects be joined in such a way that the property of the purchaser is regarded as the principal good, the purchaser and we agree that the purchaser shall transfer proportionate co-title to this object to us; we hereby accept such transfer. The resulting exclusive or jointly-held property belonging to us shall be stored by the purchaser for us.
5. The entitlement of the purchaser in accordance with Item 3 above to collect receivables arising from a re-sale in its own name from buyers expires upon revocation by the seller, but at the latest if the purchaser defaults on payment, a cheque is not honoured or upon an application to initiate insolvency proceedings over the assets of the purchaser. The seller shall only exercise its right of revocation if it becomes aware of circumstances in which its payment claims are jeopardised by a deterioration in the buyer’s financial situation.
At the request of the seller, the purchaser is obliged to immediately inform its customers (buyers) about the aforementioned assignment and to provide the seller with the information and documents necessary to collect the receivable. The purchaser must inform the seller immediately about a seizure or any other impairment of the retained goods and assigned receivables through the actions of a third party and facilitate the seller’s assertion of its rights. To the extent the third party is unable to reimburse the seller for its legal and non-legal expenses in this connection, the purchaser will be liable to the seller for these. If the purchaser defaults on payment, if it fails to honour a bill of exchange upon maturity or if a cheque issued by it is not paid, the seller is entitled to take back the retained goods. The seller is furthermore entitled to prohibit the purchaser from undertaking any further resale, further processing or removal of the retained goods. The purchaser is obliged to store the retained goods separately, to label the retained goods and to handle them with care.
6. We are obliged to release the collateral granted to us to the extent that the realisable value of our collateral exceeds the value of the secured receivables by more than 10%; we may select the collateral we wish to release at our own discretion.
X. Return of goods and recovery
If the purchaser does not fully or partly comply with its obligations under this contract, or if its financial condition deteriorates or we subsequently become aware of a deterioration in its financial condition:
1. the purchaser is obliged, upon request by us, to immediately state what has happened to each of the goods – joining, mixing, processing or resale – whether and where goods are still available and whether and in what amount receivables have been assigned in advance in accordance with IX Item 4 and to whom, and also to provide us with access to all documents required to verify this;
2. we are entitled to take immediate possession of and sell the goods subject to our retention of title, whereby we are bound by the statutory provisions relating to the sale of pledged property;
3. we alone are entitled to collect receivables that have been assigned in advance pursuant to IX Item 4, whereby the seller must immediately provide us with all necessary documents.
XI. Place of performance, place of jurisdiction and applicable law
1. The place of performance and the place of jurisdiction for deliveries and payments (including litigation concerning bills of exchange of cheques), as well as all disputes arising between us and the purchaser in connection with sale and purchase agreements entered into between him and us, is Cologne. However, we shall also be entitled to sue the purchaser at his place of residence and/or place of business.
2. The relationships between the contracting parties are governed exclusively by the law applicable in the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Goods or the Uniform Law on the Formation of Contracts for the International Sale of Goods is excluded.
XII. Severability clause
1. If one or more provisions of these contract terms is or becomes ineffective, this does not affect the effectiveness of the remaining provisions. If a provision is ineffective, the statutory provision applies.
2. No oral side agreements have been entered into. The written form is agreed, which includes the reconfirmed e-mail. Any amendment to the clause requiring the written form requires written agreement.
Revised: October 2015