GENERAL PURCHASING TERMS AND CONDITIONS
GENERAL PURCHASING TERMS AND CONDITIONS
Ver. 01.2010 / from 01.01.2010
1. Scope of application
(1)These general delivery and payment terms and conditions only apply to companies within the meaning of § 14 of the German Civil Code.
(2) Unless any other written agreement has been made, these purchasing terms and conditions will apply to all orders from “Agrarfrost”. Contrary or differing terms and conditions of the Supplier are not acknowledged. “Agrarfrost’s” silence with respect to other terms and conditions of the Supplier does not constitute acknowledgement.
2. Delivery order
(1) An order is binding on the Supplier should he not contradict the order in writing within 24 hours or on the next working day after receipt.
(2) Agrarfrost reserves ownership rights and copyright to diagrams, drawings, recipes, calculations and other documents as well as accessories made available to the Supplier by “Agrarfrost” in order to carry out orders; they may not be made accessible to third parties without “Agrarfrost’s” express, written consent. They may only be used for manufacturing purposes on the basis of the order; they must be returned unsolicited after the order has been completed. They must be kept secret from third parties. This obligation to secrecy will continue to apply after the contract has been completed; this obligation will not end until the manufacturing know-how contained in the diagrams, drawings, recipes, calculations and other documents has become generally known.
3. Content of the service
(1) The supplier undertakes only to deliver goods that
• comply with the latest version of the provisions of the legal code dealing with foodstuffs, consumer goods and animal feed.
• comply with the additional provisions of the law, particularly with respect to their nutritional value or edibility and their usefulness and labelling, i.e. they must be described in accordance with current legal requirements or the guidelines established in the German Foodstuffs Code,
•comply with the hygienic and microbiological regulations and be free from pathogenic germs and comply in chemical and histological respects with the requirements of generally prevailing public understanding,
• are completely traceable back to the manufacturer; this requirement also applies to the ingredients used in the goods supplied,
• bear the EAN Code 128 with which the pallets and the packaging units delivered must be labelled.
(2) The Supplier warrants that refrigerated goods will only be transported in refrigerated vehicles and deep-frozen goods only with vehicles in compliance with the currently applicable version of the Regulations on Deep-Frozen Goods (abbreviated to “TLMV” in German).
(3) The Supplier expressly undertakes only to manufacture and deliver products made out of raw materials, organisms and primary materials that have not been genetically engineered.
(4) An infringement of the applicable provisions of the law covering the manufacture and delivery of the Supplier’s goods and of his obligations under sections 3. (1) to 3. (3) will constitute an infringement of a cardinal contractual obligation.
(5) The Supplier is required to pay a contractual penalty of € 10,000 for every delivery that infringes its obligations under 3. (1) to 3. (3). “Agrarfrost” has the right to pursue higher damages if it can prove that these have been incurred.
(6) Irrespective of all legal claims to which “Agrarfrost” is entitled in the event of an infringement of one of the obligations referred to above, the Supplier is required, should this be demanded by “Agrarfrost”, to provide evidence at his own expense beforehand through a report prepared by an independent appraiser that he is capable of carrying out further deliveries properly. The Supplier will also pay all associated costs after an infringement of one of the above provisions should “Agrarfrost” take samples from other deliveries and subject them to foodstuff-chemical analysis or, where necessary, to veterinary examination. “Agrarfrost” is entitled to deduct the costs of these tests from subsequent payments to the Supplier.
(7) „Agrarfrost“ will, if requested, provide the Supplier with a copy of the results of the tests.
4. Delivery times
(1) The delivery time stated in the order is binding.
(2) The Supplier is required to inform “Agrarfrost” immediately should circumstances occur or become evident to the Supplier from which it emerges that the agreed delivery time cannot be kept.
(3) “Agrarfrost” is entitled to the remedies provided for in law in the event of a delay in delivery. In particular, “Agrarfrost” is entitled, after a reasonable period for delivery or subsequent performance has expired without the desired results, to rescind the contract and to demand compensation in place of performance.
(4) In the event of a delay in delivery, “Agrarfrost” is entitled to impose a contractual penalty of 1% of the value of the delayed delivery per calendar day. This will not affect any additional claims.
(5)“Agrarfrost” is not required to accept or to pay for partial or premature deliveries. Such shipments may, at the cost and risk of the Supplier, be rejected or put into storage.
(6) The Supplier is required to state “Agrarfrost’s” exact order number on all shipment documents and delivery notes (including the EAN Code 128). “Agrarfrost” will not be responsible for delays in processing the shipment should the Supplier fail to do this.
5. Packaging
(1)Deliveries to “Agrarfrost” must be made in accordance with the “Packaging Requirements for Deliveries to “Agrarfrost””. Compliance with EU regulation no. 1935/2004 with respect to materials and objects that are intended to have contact with foodstuffs is also guaranteed.
(2) Suppliers that produce or deliver “Agrarfrost’s” own label products may only sell these products to third parties with “Agrarfrost’s” written consent. This applies particularly to products that have been the objects of complaints, excess production etc.
(3) The Supplier may be exempted from the requirement to take back and dispose of packaging materials should he participate in a packaging materials disposal concept subject to appropriate regulations. “Agrarfrost” will be paid a disposal fee in accordance with these regulations should the Supplier opt not to take back and dispose of packaging materials.
6. Delivery/transfer of risk
(1) Provided that nothing different has been agreed in writing, deliveries will be made free of charge. (2) The delivery must be made in accordance with the following conditions:
• Perishable goods must be cooled to a temperature of 0 to 5°C.
• Deep-frozen goods must be frozen to a core temperature of at least minus 18°C and kept at this temperature, whereby the temperature area of maximum crystallisation must be crossed at quickly as possible (shock freezing).
• The temperatures referred to above must be maintained for the duration of the delivery (uninterrupted cooling chain).
• Dry goods may not be delivered together with deep-frozen goods.
(3) Provided that nothing different has been agreed in writing, the Supplier is required to deliver the goods to “Agrarfrost’s” employees at their destination, either refrigerated, perishable or frozen, in accordance with the above regulations. It is not permitted to unload the goods unless they have been handed over to “Agrarfrost’s” employees. The risk of accidental destruction and accidental deterioration will pass to “Agrarfrost’s” employees when the goods are handed over to them.
(4)Delivery notes in triplicate must be enclosed with the goods on all deliveries, of which one copy will serve as a receipt for the Supplier’s delivery.
(5) The delivery notes may not include any information on prices but only on quantities. The delivery of goods that are not manufactured, processed or packaged by the manufacturer himself but by a sub-supplier is only permitted subject to “Agrarfrost’s” prior written approval.
(6)The Supplier is liable for all infringements of the obligations referred to in sections 3. (1) to 6.(5) as well as for all costs and damage arising as a result of the issue of incorrect or incomplete dispatch documents or infringements of the regulations of the post, railway or the transporter.
7. Prices/terms and conditions
(1) The price shown in the order is binding. The Supplier is however obliged to reduce his price should he reduce his list prices before or after the receipt of the order but before the delivery to “Agrarfrost”. Price increases require “Agrarfrost’s” explicit consent.
(2) Agreed prices will be understood as inclusive of ancillary costs such as freight, packaging, transport insurance, customs duties, customs ancillary costs and cartage and including VAT at the legally required rate.
(3) Costs incurred by “Agrarfrost” for the extraction of samples and/or other ancillary costs to which “Agrarfrost” is entitled will be invoiced separately. The Supplier will pay the costs of samples and costs of tests that might be required.
8. Payment/cash discount
(1) The Supplier’s invoice must correspond with “Agrarfrost’s” order. “Agrarfrost” will only process invoices that state the order number issued by “Agrarfrost”. The Supplier is responsible for any delays or additional costs resulting from a failure to comply with this requirement. “Agrarfrost” is entitled to return invoices that are not correctly prepared and to demand the issue of correct invoices.
(2) Provided that nothing different has been agreed, payment will be made 45 days after receipt of the invoice subject to the deduction of any cash discount that might have been agreed.
(3) The beginning of the payment period will be governed by the date that the invoice is received or, in the case of pre-invoicing, on the date that the goods are completely received by “Agrarfrost”.
(4)“Agrarfrost” is entitled to net or withhold payments to the extent that this is permitted in law. In the event of discrepancies in the invoice and provided that “Agrarfrost” has not been guilty of gross negligence, payment terms for the disputed amount will be postponed until the date on which the matter is clarified.
(5) The payment terms are fulfilled with the delivery of the means of payment determined by “Agrarfrost” or on the issue of instructions to the bank.
9. Notification of defects
(1) “Agrarfrost” will notify defects in fresh goods within one week and in all other products within a month of “Agrarfrost” receiving the complete delivery. “Agrarfrost” is not required to carry out random, immediate tests until these periods have expired.
(2)In the case of hidden defects, the period of time permitted for the notification of defects is two weeks from the date of their discovery. The payment of invoices does not imply acknowledgement of the lack of defects in the goods delivered.
(3) If requested, the Supplier is required, at his own expense, to pick goods complained of immediately and at the latest within one week. Should the goods not be picked up within this period, “Agrarfrost” is entitled to store the goods at the Supplier’s risk and expense or to sell or destroy them should there be a danger of the goods perishing.
(4) “Agrarfrost” is entitled to the full extent of claims for defects provided for in law; “Agrarfrost” is in any event entitled to demand, at its option, that the defect be remedied or subsequent fulfilment. This will not affect claims for compensation made by “Agrarfrost“.
(5) “Agrarfrost” is entitled to remedy the defects itself at the Supplier’s expense should a situation of danger in delay or of particular urgency exist.
(6) The period of limitation is 36 months, calculated from the date that risk is transferred.
10. Product liability/indemnification
(1) The Supplier is obliged, should he be responsible for a damaged product, to indemnify “Agrarfrost” from all claims pursued by third parties on the first occasion of being asked to do so.
(2) As part of his liability for claims as defined in section 10. (1), the Supplier is also required to refund any expenses in accordance with §§ 683, 670 as well as §§ 830, 840, 426 of the German Civil Code (“BGB”) arising from or in connection with a recall action carried out by “Agrarfrost”. “Agrarfrost” will, to the extent that that is possible and reasonable, inform the Supplier of the nature and scope of the recall measures to be carried out and give him the opportunity to express an opinion. This will not affect any other claims in law.
(3) The Supplier undertakes to maintain product liability insurance with an amount covered – lump sum - of € 10,000,000 per claim for damage to persons or property; this shall not affect any additional claims to which ”Agrarfrost“ might be entitled.
(4) Should the product fall into public disrepute without the cause for this being the fault of “Agrarfrost“, it may - even should no error have been made in legal terms – at any time wholly or partially rescind the contract and/or the delivery concerned or return each of the products that have fallen into dispute simultaneously with the refund of the purchase price as well as any other expenses incurred by “Agrarfrost”.
11. Third parties’ proprietary rights
(1) The Supplier warrants that that no proprietary rights of third parties are infringed in connection with his delivery, for example with respect to the goods, their packaging or labelling and advertising statements made in connection with the goods.
(2) Should a third party take action against “Agrarfrost”, the Supplier is required to indemnify “Agrarfrost“ for these claims on the first occasion of being asked to do so. The Supplier’s obligation to provide indemnification covers all expenses incurred by “Agrarfrost” as a result of or in connection with claims lodged by a third party.
(3) The period of limitation for “Agrarfrost’s” indemnity claim from the Supplier is 10 years, calculated from the date on which the contract was signed.
(4) Should “Agrarfrost” be unable to sell the goods as a consequence of the assertion of the third party’s claim, the Supplier is obliged to take them back and to refund the purchase price paid. This will not affect additional claims by “Agrarfrost”, such as for example compensation for damages incurred by “Agrarfrost” as a result of “Agrarfrost’s” failure to meet firm delivery agreements made with his customer.
12. Amendments
(1) Side-agreements, amendments, additions to and restrictions on these provisions and the written contents of the contract will only be valid when “Agrarfrost” has confirmed them in writing. Verbal side-agreements are invalid.
(2) Should the provisions of these terms and conditions or parts thereof be or become invalid, this will not affect the validity of the purchasing conditions and the contract as a whole. On the contrary, an invalid provision will be replaced by a valid provision that approximates as far as possible to the commercial goal.
(3) Should the Supplier’s shareholders be changed and should this give “Agrarfrost” an objective reason not to wish to continue the contract, “Agrarfrost” will have the right to terminate the contract without notice “for a material cause”.
12. Place of fulfilment/legal venue
(1) The place of fulfilment and legal venue is “Agrarfrost’s” registered office. “Agrarfrost” is however entitled to sue the Supplier at the court responsible for his place of residence.
(2) German law will apply; the application of UN purchasing law is excluded.
