GENERAL TERMS AND CONDITIONS
OF ALBERT HERZ GMBH
FOR SALES AND SERVICES
Art. 1 Scope of Application and Amendment of these General Terms and Conditions
- These General Terms and Conditions apply to all our business transactions with our customers (“Contract Partner”)
conducted in the context of our sales and service business. These General Terms and Conditions apply only, if the Contract Partner is an entrepreneur pursuant to Sec. 14 of the BGB [German Commercial Code], a legal person under public law or a special fund under public law. If individual provisions hereof are ineffective, the remaining provisions shall remain in full force and effect. The same applies if individual provisions do not become part of the contract.
- These General Terms and Conditions apply to contracts on the sale and the delivery of movable objects (“Goods”), regardless of whether we personally manufacture the goods for the Contract Partner or purchase them from suppliers. These General Terms and Conditions in the version applicable at the time when the Contract Partner places the order or in the last version notified to them in writing, shall apply as a Framework Agreement also to equivalent future contracts, where we do not need to make reference to them in each individual case, unless otherwise agreed.
- Our General Terms and Conditions apply exclusively. Any deviating, opposing or supplementary terms and conditions of the Contract Partner will not become part of the contract, unless and insofar as we explicitly agreed to their applicability. This requirement to give consent shall apply in any case, for example even if we perform the delivery to them without reservation, in full awareness of the Contract Partner’s terms and conditions.
- Individual agreements made with the Contract Partner in individual cases, including ancillary agreements, supplements and amendments shall in each case prevail over these General Terms and Conditions. A written contract or our written confirmation shall be decisive for the contents of such agreements, unless we provide a proof to the contrary.
Art. 2 Conclusion of the Contract
- Our offers are non-binding and subject to change. In case of contracts which are concluded subject to a confirmation to be provided in writing or by fax, the contents of our confirmation letter shall be decisive, unless the recipient objects immediately.
- The purchase order of the Contract Partner shall be deemed binding, insofar as such needs to be qualified as an offer, and can be accepted by us within 10 days after receipt. The acceptance can either be declared in writing, e.g. by order confirmation or by delivering the goods to the Contract Partner.
- We reserve property rights and copyrights to all documents provided to the Contract Partner. The Contract Partner may neither make them available, as such or their contents, to third parties, nor disclose them nor use or reproduce them themselves or by third parties without our written consent. They shall, at our request, return these objects to us, in full, and destroy any copies which they might have made if they are no longer needed for their ordinary business or if negotiations have not resulted in the conclusion of any contract. That shall apply to the exclusion of the obligatory retention under provisions of tax and commercial law and the storage of data provided in electronic form for the purpose of customary data backups.
Art. 3 Prices, Payment Terms and Control of Accounting
- The prices prevailing on the date of conclusion of the Contract shall apply, ex works, plus statutory sales tax, packaging, any customs, charges, taxes and other public duties, unless otherwise agreed in the individual case. Any extra or special services will be invoiced separately.
- In case of sales shipment, the Contract Partner shall bear the transport costs ex works and the costs of any transport insurance which the Contract Partner might wish to take out.
- The payment for our deliveries and services shall be made immediately after receipt of the invoice, without any deduction, unless otherwise agreed. In case of delivery or service on credit, the payment date will be calculated according to the date of delivery or service.
- Payment by bill of exchange or cheque shall be permitted only in case of explicit agreement. In this case, the bill of exchange shall apply only on account of performance. Discount expenses and collection charges shall be born by the Contract Partner, they are due immediately. In case of cheque payment, the receipt of the cheque shall not be deemed as payment, but only their final encashment.
- The Contract Partner will be in default upon expiry of the payment period. The purchase price shall bear interest at the applicable statutory default interest rate during the default. We reserve the right to assert a further default damage and the right to withdraw from the Contract.
- The purchase price will fall due immediately, if the Contract Partner finally rejects the payment of the purchase price. The same legal consequence shall apply if payment by instalments was agreed and the Contract Partner is in default of an amount exceeding one instalment and if the amount in default is at least 10% of the entire purchase price. We may reject the fulfilment of the purchase contract and request the reimbursement of all incurred costs, expenses as well as compensation for impairment, in case of a final rejection to pay the purchase price even without specifying a grace period.
- We shall be entitled to make or render still outstanding deliveries or services only against pre-payment or provision of a security, if we gain knowledge of any circumstances after the conclusion of the contract which are suited to essentially impair the Contract Partner’s credit worthiness or which endanger the payment of our open receivables by the Contract Partner under the relevant contract relationship, including from other individual orders for which the same Framework Agreement applies.
- The Contract Partner shall only be entitled to rights of set-off, if their counter-claims were found to be effective by a court, are undisputed or were recognised by us. In addition, they are authorised to exercise a right of retention, insofar as their counter-claim is based on the same contractual relationship.
- Any billings prepared by us shall immediately be verified by the Contract Partner for their correctness, in particular regarding the disclosed sales tax rate. Any complaints or the disclosure of an incorrect sales tax rate shall be notified to us, in writing, within 14 days from the receipt of the billing. If we receive no notification from the Contract Partner within a period of 14 days, the sales tax rate disclosed by us shall be decisive. In case of any violation of the duty to notify, the Contract Partner shall be obliged to pay damages according to the legal provisions.
Sec. 4 Delivery Period, Delay in Delivery and Force Majeure
- The delivery period will be agreed individually or specified by us upon acceptance of the purchase order. If no delivery period is agreed or specified by us, an adequate delivery period shall apply.
- The occurrence of our delay in delivery shall be determined according to the legal provisions, However, a dunning letter by the Contract Partner shall be required in any case.
- If the delivery is impossible or made excessively difficult due to force majeure, measures by authorities, company shutdowns, strike, extreme weather conditions (e.g. storm, hail, drought, high or low water) or similar circumstances – even at our suppliers – we will be released of our delivery obligation for the term of the impairment and its after-effect. That shall entitle us also to withdraw from the contract if and insofar as it is no longer reasonable for us to adhere to the contract. In case of a non-delivery or insufficient delivery to us from our pre-suppliers, we shall be released of our delivery obligation toward the Contract Partner, in full or in part. That shall apply only if we have taken the required preconditions to procure the goods to be delivered by us and carefully selected our pre-suppliers. In this case, we will assign our claims against the supplier to the Contract Partner, upon request, unless that is excluded by law or contract. Then, the Contract Partner remains obliged to the compensation pursuant to Sec. 326(3) of the BGB. We will immediately notify the Contract Partner about the occurrence of the events mentioned above and any non-availability and immediately reimburse the Contract Partner’s compensations in case of withdrawal.
Art. 5 Delivery, Transfer of Risk, Default of Acceptance
- The delivery shall be made ex works, which is also the place of fulfilment for the delivery and any subsequent performance. The goods will be sent to a different place of destination at the Contract Partner’s request and expense (sales shipment). We shall be authorised to personally determine the type of shipment, in particular, transport companies, dispatch route and packaging, unless otherwise agreed in writing.
- We shall be authorised to make partial deliveries, if the partial delivery is utilisable for the Contract Partner as part of the intended use according to the contract.
- The risk of accidental destruction and accidental impairment of the goods shall be transferred to the Contract Partner not later than upon hand-over. In case of sales shipment, however, the risk of accidental destruction and the accidental impairment of the goods as well as the risk of delay shall be transferred to the forwarder, the carrier or the person or institution appointed to perform the shipment, already upon delivery of the goods. That shall also apply in case of drop shipment.
- If the Contract Partner defaults in acceptance, we may store the goods in our house or at a third party at the Contract Partner’s cost and risk, or utilise them in a suitable manner on the Contract Partner’s account, where no announcement shall be required. If the Contract Partner is in default of acceptance, if they omit any cooperation activity or if our delivery is delayed for other reasons to be attributed to the Contract Partner, we shall be authorised to request a reimbursement of the damage arising herefrom, including extra expenses. In case we store them, we will charge a flat-rate reimbursement of 0.5% of the net price (delivery value) per calendar day, starting with the delivery period or – in case of lack of a delivery period – with the notification that the goods are ready for shipment, max. 0.25% of the net price (delivery period) per expired week. The right to evidence a higher damage and our legal claims shall remain unaffected, but the flat-rate shall be set off with any further monetary claims. The Contract Partner shall be entitled to evidence that we incurred no or only an essentially lower damage as the above flat-rate.
Art. 6 Quality of the Goods
- Our information on the object of the delivery, e.g. product descriptions, ingredients, recipes, weights, measures, tolerances and technical data as well as our explanations e.g. in specifications and figures shall be deemed to be the agreement on the quality of the goods. They are no guaranteed quality properties, but descriptions or identifications of the goods.
- Customary deviations and product-specific deviations which arise in particular based on legal provisions or constitute technical improvements as well as the replacement of raw materials or ingredients by equivalent substances shall be permitted, unless they impair the usability for the intended purpose set out in the ontract. We shall be entitled to buy from third-party suppliers which ensure at least quality standards of their products and their production process customary in the segment.
- We shall be entitled to change the specifications, at any time, according to our own discretion, unless the change constitutes an essential change of the goods. Insofar as the quality information was provided in electronic systems for inspection by the Contract Partner, the Contract Partner shall be obliged to inform themselves about the current status of the specification. We will notify the Contract Partner in an adequate period of the planned implementation in case of essential changes. The change shall be deemed approved by the Contract Partner, unless they object within 10 working days after receipt of the notification or change in the system.
- If the Contract Partner provides us with the quality, food labelling and design for the goods to be manufactured, if they provide ingredients or semi-finished goods, they assume the guarantee that such comply, in any respect, with the applicable legal provisions, guidelines and prevailing opinion and the intended purpose. That shall also apply to the packaging. If the Contract Partner intends to sell the goods in a certain country of sale, they shall ensure that the goods manufactured according to their instructions are marketable there.
- If the Contract Partner intends to perform analyses or tests of the goods or samples, that shall be done at their expense.
- The goods will be packed at the Contract Partner’s expenses in a customary manner. Loaned packaging shall be emptied immediately by the Contract Partner and shall be returned in a perfect condition – by the Contract Partner, free of freight costs. They must not be filled with other goods or used in any other way.
- The Federal Republic of Germany shall be deemed as country of sale, unless otherwise agreed.
Art. 7 Claims for Damages of the Contract Partner
- The legal provisions shall apply to the rights of the Contract Partner in case of factual or legal defects, unless otherwise provided for below. The legal special provisions in case of final delivery of the Goods to a consumer shall remain unaffected (supplier regress pursuant to Sec. 478 of the BGB).
- Basis for our liability for defects are the regulations on the quality of the goods specified in Art. 6 of these General Terms and Conditions. Insofar as the quality was not agreed, it shall be determined according to the legal regulations whether a defect exists or not.
- Precondition for the Contract Partner’s claims for defects is that they fulfilled their legal duties of inspection and complaint pursuant to Sections 377, 381 of the HGB. The Contract Partner must inspect the Goods for material defects, e.g. quantity, type and quality immediately after their receipt and is obliged to note any obvious defects on the receipt of delivery or complain about them immediately after delivery. In case of goods that are intended for processing, a further inspection shall be made in each case again directly prior to the processing. If a defect is detected during delivery, inspection or at any later time, we shall immediately be informed thereof in writing. Obvious defects shall be notified, in writing, in any case within five work days from delivery and any defects which cannot be detected during the inspection shall be notified, in writing, within the same period from their detection. If the Contract Partner fails to perform a proper inspection and/or notice of defects, our liability for any defect which was not notified or not notified in due time or not properly shall be excluded according to the legal provisions.
- If the delivered object is defective, we may initially choose whether we will render a subsequent performance by elimination of the defect (repair) or whether we will deliver a defect-free object (replacement delivery). Insofar as the subsequent performance cannot be made within an adequate period of time or if such is impossible due to the quality of the goods, the Contract Partner has a right to either reduce the purchase price or to withdraw from the contract in case of not only insignificant defects.
- We shall be entitled to make the owed subsequent performance dependent on the Contract Partner paying the due purchase price. The Contract Partner shall, however, be entitled to retain a part of the purchase price that is adequate in relation to the defect.
- The Contract Partner shall give us the time and occasion required to make the owed subsequent performance, in particular, to provide the complained goods for inspection purposes. In case of a replacement delivery, the Contract Partner shall return the defective goods according to the legal provisions. We will bear or reimburse the expenses, in particular, transport, road, labour and material costs required for the purpose of inspection and subsequent performance according to the legal provisions, if a defect actually exists. Otherwise, we may request from the Contract Partner a reimbursement of the costs, in particular, inspection and transport costs we incurred due to the unjustified request to eliminate a defect.
- The general limitation period for claims from material and legal defects is one year from the delivery. This period shall not apply to claims for damages of the Contract Partner arising from the injury of life, body or health or from intentional or grossly negligent violations of duty on our part or on the part of our vicarious agents or under the German Product Liability Act which will become statute barred after the statutory provisions.
- Other claims of the Contract Partner for damages or reimbursement of futile expenses shall also apply in case of defects, only according to the paragraphs below under “Art. 8 Liability” of these Terms and Conditions and shall otherwise be excluded.
Art. 8 Liability
- Claims for damages of the Contract Partner, regardless of the legal reason, in particular, due to the violation of duties under the obligation or illegal tort shall be excluded.
- That shall not apply insofar as a legally mandatory liability applies, in particular in cases of malice, intent or gross negligence injury of life, body or health acceptance of a guarantee, e.g. for the existence of a property liability under the Product Liability Act or – violation of essential contractual duties.
- Claims for damages due to a negligent violation of essential contractual duties shall be limited to the foreseeable damage that is typical for the contract. Obligations are essential for the contract if their fulfilment only enables the proper performance of the contract and if the Contract Partner regularly relies or may rely on their compliance. The foreseeable damage typical for the contract is a damage which we foresaw upon conclusion of the contract as a possible consequence of a contract violation or which we should have foreseen if we had applied the customary duty of care. Indirect damage and consequential damage which are the consequence of defects of the deliverable shall only be reimbursable if such are typically to be expected when the Ggoods are used in line with their intended purpose.
- Insofar as the liability is excluded or restricted, that shall also apply to the personal liability of our employees, staff members, representatives and vicarious agents.
- No change of the burden of proof to the detriment of the Contract Partner is connected with the above regulations.
Art. 9 Retention of Title
- The delivered goods shall remain our property until the full payment of the purpose price. That shall also apply to all claims towards the Contract Partner which we have or will obtain, in future, based on the business relationship with the Contract Partner. We shall be authorised to withdraw from the contract, after having granted an adequate grace period, in case of a conduct on the part of the Contract Partner in violation of the contract, in particular, if the Contract Partner is in default of payment.
- If the goods subject to retention of title are indivisibly mixed, blended or combined with other goods which are the property of the Contract Partner or any third party, we obtain a co-ownership in the combined object in a proportion which corresponds to the value of our goods subject to retention of title in proportion to the value which corresponds to the goods mixed with such at the time of mixing, blending or combining.
- If the goods subject to retention of title are processed or machined, we obtain the ownership in the new object in a proportion which corresponds to the value of our goods subject to retention of title; the Contract Partner will keep them for us.
- The Contract Partner shall, at their expense, insure the goods that are in our property, at our request, to an adequate extent against the normal risks, and shall assign the insurance claims to us. We shall also be entitled to pay the insurance premiums at the Contract Partner’s expense.
- The Contract Partner shall only be authorised to sell the goods, even the goods which they produced by mixing, blending, combining, processing or machining in the course of their ordinary business operation. They shall not be authorised to dispose of such goods, in particular, to pledge them or to subject them to chattel mortgage.
- The Contract Partner assigns to us, already as of now, any and all claims arising from the sale of the goods that are subject to retention of title or of the goods manufactured by processing or machining. The same shall apply to other claims which replace the goods subject to retention of title or arise with regard to the goods subject to retention of tile. The Contract Partner shall assign to us, already as of now, a first-rank partial amount of the claims arising from the sale of goods in which we obtained a co-ownership due to mixing, blending or combining, which corresponds to our co-ownership part in the sold goods. If the Contract Partner sells, at a total price, any goods which are in our ownership or co-ownership, together with the goods which do not belong to us, the Contract Partner assigns to us, already as of now, a first-rank partial amount of this total amount which corresponds to the share of the objects subject to retention of title.
- The Contract Partner shall be authorised to collect the assigned claim from re-sale. We may revoke this direct debit mandate, at any time, if the Contract Partner fails to fulfil their payment obligations, is in default of payment, if a request for initiation of insolvency proceedings was filed or if they ceased their payments or are subject to forced execution by third parties. They shall inform us, upon request, about the debtors of the assigned claims, notify them of the assignment or provide us with the notifications of assignment. For as long as the Contract Partner fulfils their payment obligation, we will not disclose the assignment. If the realisable value of the security existing for us exceeds the secured claims by a total of more than 10 %, we shall be obliged to release the securities, at our choice, at the Contract Partner’s request.
Art. 10 Crisis Management
- The Contract Partner operates a functioning crisis management. In case of crisis, the Contract Partner shall be accessible and able to act even outside of their business hours. They will inform us immediately before they take back or call back the goods of any batch which relate to goods delivered by us and will provide us with all related documents and information.
- Insofar as the Contract Partner is responsible for the recipe, the design and labelling, they shall be obliged to release us, insofar, of any claims for damages of third parties, at first request, if any claims are asserted against us by such third parties.
Art. 11 Code of Conduct – Claims for Damages
The Contract Partner will observe the principle of ethical business practices. They will neither participate in corruption, blackmail, bribes nor embezzlement. The Contract Partner will ensure that agreed prices and conditions were not the subject matter of agreements which constitute an unlawful restriction of competition. Insofar as any court or a competition authority determined that the Contract Partner participated in such a restriction of competition in the period of the goods delivery, they shall be obliged to pay to us flat-rate damages in the amount of 5% of all net invoice amounts (not including discounts and sales tax) invoiced for the affected products in the period of restriction of competition, plus the legally applicable interest per year. The Contract Partner shall have the right to evidence that we incurred no or only a damage of less than 5 %. The payment obligation shall apply also if the contract is terminated or has already been fulfilled. Any other contractual or statutory claims for damages on our part for violation of competition rules shall remain in force and effect. The Contract Partner will provide us with all information required to verify the existence of our claims.
Art. 12 Confidentiality
The Contract Partner will keep in confidence our business and trade secrets and all confidential information which they received under the business relationship with us and will not disclose them to any third parties without our explicit consent. Press releases and other publications in connection with the business relationship require our prior consent. The above rules shall not apply, insofar as the Contract Partner is obliged to disclose them based on legal provisions or an enforceable order by a court or authority. However, even in such a case, the Contract Partner will inform us in advance – as far as permitted by law and possible based on the circumstances – and agree on the contents with us.
Art. 13 Choice of Law and Place of Jurisdiction
- These General Terms and Conditions and the contractual relationship between us and the Contract Partner shall be governed by the laws of the Federal Republic of Germany, to the exclusion of international uniform law, in particular, the UN Convention on Contracts for the International Sale of Goods.
- If the Contract Partner is a merchant as defined in the German Commercial Code, a legal person under public law or a special fund under public law, the exclusive – even international – place of jurisdiction for all disputes arising, directly or indirectly, from the contractual relationship, shall be at our place of business in Kempten / Germany. However, we shall, in all cases, also be entitled to initiate an action at the place of fulfilment of the delivery obligation pursuant to these General Terms and Conditions or any individual agreement with a higher rank or at the general place of jurisdiction of the Contract Partner. Any legal provision with a higher rank, in particular on exclusive competencies shall remain in full force and effect.
03/2020 – Albert Herz GmbH