General Sales and Supply Conditions
General Sales and Supply Conditions
Ver. 01.2010 / from 01.01.2010
Individual contractually agreed provisions within this contract relationship override the general terms and conditions. Should any individual provision become invalid, then the remaining provisions will remain valid. The general terms and conditions of the purchaser are agreed as being valid only insofar as they have been brought to the attention of the supplier in good time and provided that they do not conflict with either the individual contractual provisions or the following provisions.
1. Ordering and Order Acceptance
(1) All orders which are issued to the supplier by the purchaser directly or by sales representatives require acceptance by written order confirmation, unless they concern a cash transaction. (2)The right to differences between the ordered or supplied goods and the order, especially with regard to the materials used for execution, remains expressly reserved in the context of technical progress. Based on the given nature of procuring our raw materials and ingredients, samples only apply as non-binding type samples.
2. Delivery Time
(1)In the event that a delivery time has been agreed or is required, the following will apply: the delivery dates named by the supplier are not binding, unless they have been expressly confirmed in writing by the supplier as „binding delivery dates“.
(2) Delivery by the supplier is conditional upon his own supplies. The supplier will immediately inform the purchaser in the event that one of his own supplies cannot take place. If one of his own supplies does not take place the purchase contract applies as not being concluded. No procurement risk has been undertaken by the supplier.
(3)A prerequisite of delivery compliance is prompt fulfilment of the contractual obligations undertaken by the purchaser, in particular in making the agreed payments and, if necessary, the provision of agreed securities.
(4) Besides this the purchaser, in the case of a delay caused by the supplier, is only entitled to assert additional rights when a deadline extension of at least three weeks, set by him in writing following the occurrence of a delay, has expired without result. The supplier is entitled to make part deliveries. Where a supply instalment is not fulfilled or not made on time the purchaser is still obliged to accept the remaining quantity.
(5) Where call-off of goods sold is not accepted within the agreed time framework, the supplier is entitled to withdraw wholly or partly from the contract. He can request payment in cases where the goods are not accepted after an appropriate period.
(6) If an annual contract with successive acceptance quantities has been agreed between the contract parties, then this signifies an obligation on the part of the purchaser to call off the goods regularly, in equal monthly instalments if possible.
(1) ) If dispatch of the goods ordered is required, then this will be done from the supplier’s premises at the purchaser’s cost and risk. In the absence of special agreements, the supplier is free to choose the transport company, as well as the means of transport. Consequently the risk then transfers to the purchaser upon dispatch from the supplier’s premises if freight-free delivery has been agreed.
(2) ) If dispatch is delayed through circumstances which are caused by the purchaser, then the risk transfers to the purchaser from the time when the goods are ready for dispatch. The purchaser must bear any costs arising because of the delay (especially storage costs).
(3) The supplier is not obliged to insure or have the consignment insured against damage unless a corresponding obligation has been undertaken by the supplier in writing.
(4)The purchaser is obliged, upon resale of the supplier’s goods, to ensure compliance with cold chain and foodstuffs regulations. To protect the brand name and prestige of the supplier the purchaser may only supply to third parties goods which have suffered damage in their own or in rented cold rooms with the agreement of the supplier.
(5) The purchaser is obliged, upon resale of the supplier’s goods, to ensure compliance with cold chain and foodstuffs regulations. To protect the brand name and prestige of the supplier the purchaser may only supply to third parties goods which have suffered damage in their own or in rented cold rooms with the agreement of the supplier.
4. Liability for Defects
(1) The purchaser is obliged to examine the goods immediately after delivery and to inform the supplier of any defects present by telephone within six hours of delivery, and to subsequently confirm this in writing within one working day. Defects which are contested late, and thus contrary to the above-mentioned obligation, will not be taken into account by the supplier and are excluded from the guarantee. As such, defect objections will only be recognised by the supplier if they have been notified in writing. Objections which have been exercised in respect of sales representatives or transport firms or other third parties do not represent a valid objection as far as either form or deadlines are concerned.
(2) When making claims the purchaser or receiver has an obligation to handle the goods professionally by complying with statutory foodstuffs regulations. In particular this concerns storage of the goods at the storage temperature stated for them.
(3) The purchaser must give the supplier the opportunity to check the claim. If it necessary to return the goods to the supplier in the event of a defect, this can only be done with their prior agreement. Goods sent back unrequested need not be accepted by the supplier. In this case the purchaser will bear the costs of the return delivery.
(4) In the event that rectification of an objection or replacement delivery is made due to a justified defect, the provisions concerning delivery times apply accordingly.
(5) The presence of a defect notified as a valid defect objection and established as such justifies the following rights for the purchaser.
(a) In cases of defects the purchaser must first of all demand the right to supplementary fulfilment by the supplier. The right to choose whether a new delivery of the item or defect rectification takes place is at the supplier’s discretion.
(b) Furthermore, upon fault with a new delivery of the item, the supplier has the right to undertake renewed supplementary fulfilment of his choosing once more.
(6) The purchaser can demand compensation or replacement of wasted expenses exclusively in cases of gross negligence or intentional breach of the obligation to supply defect-free items. He must prove the reasons for and level of the damage incurred. The same applies to the wasted expenditure.
(7) The expiry period for defect claims is one year from delivery. In each case the purchaser must prove that the defect was already present upon delivery.
5. . Other Liabilities for Breach of Obligation by the Supplier Irrespective of the provisions on the guarantee, as well as other special regulations made within these provisions, the following applies in any breach of obligations by the supplier:
(1) The purchaser must grant the supplier an appropriate supplementary fulfilment period for rectification of the breach of obligation, which may not exceed three weeks. Not until after unsuccessful expiry of the supplementary fulfilment period can the purchaser withdraw from the contract and/or request compensation.
(2) The purchaser can only apply damages in cases of gross negligence or intentional breach of obligation by the supplier. Damages instead of payment (upon non-fulfilment, § 280 III i. V. m. § 281 BGB¹) as well as damages for delay (§ 280 II i. V. m. § 286 BGB) are limited to the negative interest; compensation on account of non-payment or payment not in accordance with that due (§ 282 BGB) is restricted to the level of the purchase price. Compensation instead of payment on exclusion of the payment obligation (impossibility) is excluded.
(3) If the purchaser is solely or mainly responsible for circumstances which would entitle him to cancellation, or if the circumstance creating the entitlement to cancellation occurred during the course of acceptance by the purchaser, then cancellation is excluded.
6.Exemption from Procurement Risk and Guarantees
The supplier has undertaken no procurement risk at all and no guarantees of any kind, unless a written agreement regarding this has been expressly agreed with the purchaser.
Prices will be calculated from the supplier’s premises, plus the respectively valid sales tax.
8. Payment Terms
(1) All supplier invoices are to be paid net cash. Cash discounts require prior written agreement.Sämtliche
(2) A payment term of eight days from delivery applies, in the event that nothing has been agreed otherwise in writ-ing. If the payment term is exceeded then interest for delay at the rate of 8 % above the respective base interest rate must be paid on the invoice amount.
(3) Bills of exchange will only be accepted as payment upon prior written agreement. Discounting allowances will be calculated by the supplier irrespective of the date of acceptance of the bill of exchange, from the date the outstanding amount falls due. The supplier undertakes no guarantee at all for prompt collection or prompt protest.
(4)) If bills of exchange or cheques are not credited by the drawer on time, then all other existing amounts outstanding to the supplier in respect of the purchaser from that period will become due. Other existing payment terms will expire. The same applies in the event that an outstanding amount is not paid when due.
(5) Withholding payment or offsetting based on any existing counter-claims by the purchaser is excluded for undisputed or validly established outstanding amounts, without exception.
(6) All amounts outstanding to the supplier in respect of customers, equally whatever the legal relationship, are due for immediate payment if a situation is put in place which entitles the supplier to cancellation in accordance with statutory or contractual provisions.
(1) Each item of goods supplied by the supplier remains as his property until complete payment of the purchase price and until complete settlement of all outstanding amounts resulting from the business relationship (extended title retention). Disposal of the goods being under title retention by the purchaser in the normal manner is only allowed in the regular course of the purchaser’s business. However, in no event may the goods be assigned to a third party as assurance in the context of the regular course of business.
(2)) In cases where the goods are sold in the regular course of business the purchase price paid replaces the goods. At this point the purchaser assigns any possible outstanding amounts arising from a sale to the supplier. The purchaser is authorised to collect these outstanding amounts provided that he has satisfied his payment obligations in respect of the supplier. With regard to the extended title retention, (assignment in advance of the respective outstanding purchase price amount) assignment to third parties, in particular to a credit institute, is contrary to the terms of the contract and consequently inadmissible. The supplier is entitled to check the purchaser’s sales documentation at any time and to inform his customer of the assignment.
(3) If the purchaser’s outstanding amount from the resale has been paid into a current account, then the purchaser will transfer his outstanding amount from the current account forthwith to the supplier in respect of his customer. Transfer is done at the amount which the supplier had calculated for the purchaser for the resale of goods held on retention of title.
(4)In cases of distraint of goods by the purchaser the supplier must be informed of this immediately by sending a copy of the enforcement protocol and a statutory assurance that the goods under distraint involve goods supplied by the supplier which are held under title retention.
(5) ) If the value of the securities exceeds the amount for this figure, in accordance with the above-mentioned rates for the open outstanding amounts insured through this, by more than 20% in the foreseeable term, the purchaser is entitled to request from the supplier the release of the securities where the excess exists.
(6) Assertion of the supplier’s rights from the retention of title does not exempt the purchaser from his contractual obligations. The value of the goods in the redemption period will merely be calculated to the existing outstanding amount due to the supplier in respect of the purchaser.
10. Supplier’s Right of Withdrawal
The supplier is entitled to withdraw from the contract for the following reasons:
(a) ) If acceptance prior to contract conclusion shows that the purchaser is not creditworthy. Credit unworthiness can be accepted without further action in cases of bills of exchange or presentation of cheques, for payment adjustment by the purchaser or an unsuccessful legal enforcement attempt by the purchaser. It is not necessary that relationships between the supplier and the purchaser are involved.
(b) If it emerges that the purchaser has provided unfounded details in respect of his credit worthiness and these details are of significant importance.
(c) ) If the goods being under retention of title by the supplier are sold in the normal course of business of the purchaser, in particular by security assignment or distraint. Exceptions to this only exist where the supplier has declared his agreement with the sale in writing.
11. Place of Fulfilment and Jurisdiction
(1) Where the purchaser is a businessman or legal entity governed by public law or has separate assets governed by public law, the office of the supplier will be the exclusive place of jurisdiction for all disputes arising directly or indirectly from this contract relationship. All obligations from the contract relationship apply as being effected at the supplier’s office.
(2) In each case, in particular with transnational supplies, the law of the Federal Republic of Germany will apply.
Agrarfrost GmbH & Co. KG • Aldrup 3 • D-27793 Wildeshausen
Limited Partnership, registered place of business: Aldrup/Wildeshausen, HRA 140445; AG: Oldenburg
Agrarfrost Beteiligungs-GmbH, registered place of business: Aldrup/Wildeshausen, HRB 140750, AG: Oldenburg
Ulrich Obdenbusch, Manfred Wulf