General Terms and Conditions
Version: 10. Juli 2015
Agrarfrost GmbH & Co. KG
27793 Wildeshausen / Aldrup, Deutschland
Tel.: +49 4434 / 87-0
AG Oldenburg, HRA 140445
USt.-ID Nr.: DE 117 776 879
Dr. Andreas Hennige
(1) All offers and agreements are exclusively subject to the following general terms and conditions.
(2) These General Terms and Conditions apply only to persons who when concluding a legal transaction with the Agrarfrost GmbH & Co. KG (hereinafter: Supplier) acting in their commercial or independent professional activity, legal persons of public law and public law funds.
2. Conclusion and Subject to Change
(1) All orders that are issued by the buyer directly or through sales representatives to the Supplier require acceptance by written order confirmation, unless it is a cash deal.
(2) Changes in the ordered or delivered product, leading to a deviation of the order, particularly with regard to materials in design, are expressly reserved for the following cases:
[... E.g. "Recipe changes, if the change is reasonable for the buyer and does not substantially alter the product characteristics"]
(3) Due to the inherent nature of the raw materials and ingredients samples are noncommittal style samples.
(4) Deliverers are subject to correct and timely delivery by the supplier of the Supplier. This applies only in the event that the non-delivery is not attributable to the Supplier. The Supplier will inform the buyer about the unavailability of the service and refund any payment made immediately.
(1) The delivery - unless expressly agreed otherwise - will take place as soon as possible ex works. In that regard, the delivery dates mentioned by the Supplier are not binding, unless they have been expressly agreed as "binding delivery date".
(2) For compliance with the delivery period the prompt fulfillment of all contractual obligations assumed by the buyer is required, in particular making the agreed payments and, where applicable, the provision of agreed security.
(3) In addition, in the event of delay attributable to the Supplier the buyer will only be entitled to assert further rights if an additional period of at least three weeks set by him in writing after the delay has expired. Should not all ordered products be in stock, the Supplier is entitled to make partial deliveries if this is reasonable for the buyer.
(4) To the extent goods sold for delivery on-demand within an agreed period are not or not completely ordered, the Supplier is entitled to cancel the contract in whole or in part, or to demand immediate payment. Additional rights remain unaffected.
(5) If the parties agreed to an annual contract with deliveries of successive quantities the buyer shall regularly retrieve the goods in approximately equal monthly amounts.
4. Shipment and transfer of risk
(1) If shipment of the goods ordered is required, this is done from the business location of the Supplier at the expense and risk of the buyer. Unless otherwise agreed, the Supplier is free to choose the transport company and the means of transport. The risk shall also pass from the business location of the Supplier to the buyer by dispatch, if free delivery is agreed.
(2) If shipment is delayed by circumstances for which the buyer is responsible, then the risk passes already on the date of readiness for shipment to the buyer. The costs arising from the delay (in particular storage costs) shall be borne by the buyer.
(3) The supplier is not obliged to insure or have insured the shipment against transport damages unless such obligation has been agreed in writing by the Supplier.
(4) The buyer undertakes in relation to any resale of the Supplier's products to properly store the products in the cold chain and to obey any applicable food regulations. To protect the brand and reputation of the Supplier the buyer shall deliver goods that have suffered from damage in own or rented cold storage to third parties only upon prior agreement of the Supplier.
(5) Empties / pallets shall be exchanged generelly in the same type and at the same value 1:1, unless otherwise agreed in writing. If the buyer is not able to exchange to the Supplier upon delivery, he shall compensate the empties / pallet account immediately at his own cost. If the buyer is in default with the return of empties or pallets the Supplier may (in addition to claiming damages) refuse returning of empties or pallets after a reasonable grace period and call for monetary damages.
5. Rights and obligations of the buyer in case of defects
(1) The purchaser is obliged to inspect the goods immediately after delivery and notify existing obvious defects to the Supplier by telephone within six hours and then to confirm within one business day in writing or by e-mail. Hidden defects must be reported immediately after their discovery in writing or by e-mail. In such case, the buyer must prove that the defect was not recognizable despite proper investigation. Notices of defect which are only notified to field staff or carriers or other third parties, do not constitute valid notices of defects.
(2) The buyer shall not be entitled to any claims in relation to defects not notified in accordance with the above provisions.
(3) In case of defects the buyer/the recipient shall properly handle the goods in compliance with all applicable food regulations. This applies particularly to the storage of the goods at the storage temperature prescribed for them.
(4) The buyer must give the Supplier the opportunity to investigate the complaint. Return of the goods to the supplier which is required in the event of a defect can be done only with the Supplier’s prior agreement. Unsolicited returned goods do not need to be accepted. In such case, the buyer bears the costs of return.
(5) The buyer shall grant the supplier an adequate additional period of not less than three weeks to remedy any defect. Only after expiry of this additional period the buyer may cancel the contract and / or claim damages.
(6) In case of justified and timely notices of defects the buyer has the rights in accordance with related statutory provisions, subject to the following conditions:
(a) The buyer may require the Supplier to remedy the defects. The right to choose between repair and replacement vests with the Supplier.
(b) In addition, upon failure of a first attempt for remedy of the defect, the Supplier shall al-ways be entitled to undertake a second attempt for making such remedy.
(c) Only if such second attempt fails, the buyer has the right to reduce the purchase price or cancel the purchase contract.
(7) In the event that due to a justified and timely notice of defect repair or replacement is carried out the provisions on the delivery time shall apply accordingly.
6. Liability of the Supplier
(1) The Supplier is liable without limitation under the Product Liability Act, in case of fraudulent concealment of a defect and for damages resulting from injury to life, body or health that are based on an intentional or negligent breach of duty by the Supplier or by a legal representative or vicarious agent of the user. In that regard, the statutory provisions shall apply.
(2) Other than that, the buyer may claim damages only in cases of gross negligence or willful misconduct by the Supplier.
(3) Compensation instead of performance (for failure of performance, § 280 III in conjunction with § 281 BGB) as well as the delay damage (§ 280 II in conjunction with § 286 BGB) is limited to the negative interest; compensation for not rendered or not rendered as owed performance (§ 282 BGB) is limited to the amount of the purchase price. Damages instead of performance at the exclusion of obligation to perform (impossibility) are excluded.
(4) If the buyer is solely or mainly responsible for circumstances which would entitle him to resign or if the circumstance which would entitle him to cancel the contract occurred during default of acceptance, then cancellation is excluded.
(1) The limitation period in relation to defects is one year from delivery. The purchaser must prove in each case that the defect was already present at delivery.
(2) Regarding the Supplier's liability for damages resulting from injury to life, body or health that are based on an intentional or negligent breach of duty by the Supplier or by a legal representative or vicarious agent of the user as well as liability for damages based on a intentional or grossly negligent breach of duty of the Supplier or a legal representative or a vicarious agent, the statutory limitation period applies.
(3) Notwithstanding the provision in Section 7(1) the limitation period is three years for claims of the buyer resulting from a defect of the goods in the form of a third party right, due to which the release of the goods may be required, or any other right that an estate may be burdened with.
8. Exclusion of procurement risk and guarantees
The Supplier does not take over any risk of procurement, nor any guarantees of any kind, unless otherwise agreed in writing by the Supplier.
Prices are ex works the facilities of the Supplier and exclusive of VAT, which VAT shall be paid in addition when applicable.
(1) All invoices of the supplier are to be paid net cash. A cash discount shall require the prior written agreement of the Supplier.
(2) The payment term is eight days from delivery, unless otherwise agreed in writing. Interest amounting to 8 percentage points over the German basic interest rate shall be payable on any overdue amounts to in case of.
(3) Bills of exchange are accepted as payment only after prior written agreement. Notwithstanding the date of acceptance of the bill, discounting will be billed by the Supplier from the due date of the claim. The supplier does not take over any responsibility for timely collection or timely protest.
(4) If bills or checks are not credited on time by the drawee, then at this time all otherwise existing claims of the supplier against the purchaser shall become due. Other existing payment terms expire. The same applies in the event that a claim is not paid when due.
(5) Set-off against and/or retention of payments by virtue of counterclaims of the buyer against the Supplier is only permitted if such counterclaims are undisputed or have been found given in an unappealable court decision.
(6) If circumstances arise which entitle the Supplier to cancel the contract according to legal or contractual provisions all claims of the Supplier against the customer, regardless of their legal basis, are payable immediately.
11. Retention of title
(1) Any supplied goods provided by the Supplier remain the Supplier’s property until full payment of the purchase price and all claims resulting from the business relationship has been made (extended retention of title). Any type of disposal of the goods subject to such title retention by the buyer is only permitted in the ordinary course of business of the buyer. In no case, however, may the goods be transferred to third parties as security, even in the course of ordinary business.
(2) In case of sale of the goods in the ordinary course of business the purchase price for such goods takes the place of the goods. The buyer hereby assigns all claims arising out of any sale of goods to the Supplier. The buyer is authorized to collect these claims as long as he meets his payment obligations towards the Supplier. With regard to the extended retention of title (advance assignment of the respective purchase price) an assignment to third parties, in particular to a bank, constitutes a breach of contract and is therefore inadmissible. The Supplier is at any time entitled to check the sales documents of the buyer and to inform the buyer´s customers of the assignment.
(3) If the claim of the buyer has been transferred from resale into a current account the buyer hereby assigns the corresponding claims from the current account. The assignment is done in the amount that the Supplier had charged the buyer for the resold goods.
(4) In case of seizure of the goods, the buyer shall inform the Supplier immediately by sending a copy of the execution record and a sworn statement about the fact that the goods are delivered by the Supplier under retention of title.
(5) If the value of security exceeds the amount of outstanding secured claims in accordance with the preceding paragraphs in the foreseeable future by more than 20%, the buyer is entitled to demand the release of securities by the Supplier in the amount of the excess.
(6) Claiming of the Supplier's rights resulting from the retention of title does not absolve the buyer from his contractual obligations. The value of the goods at the time of return will only be credited against the existing claim of the Supplier against the buyer.
12. Supplier’s special right of cancellation of contract
The Supplier is entitled to cancel the contract for the following reasons:
(a) If the buyer is not creditworthy contrary to prior assumption at the time of the conclusion of the contract. Creditworthiness can be assumed without further ado in the case of exchange or check protests, the suspension of payments by the buyer or an unsuccessful enforcement attempt. It is not necessary that the forgoing occurs in relations between the Supplier and buyer.
(b) If it turns out that the buyer gave inaccurate information regarding its creditworthiness and if this information is of considerable significance.
(c) If the goods that are subject to Supplier’s retention of title are sold other than in the ordi-nary business of the buyer, in particular by transfer by way of security or chattel mortgage. Exceptions are made only if the Supplier has given his written consent to the sale.
13. Final Provisions
(1) The exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship is Oldenburg.
(2) Place of performance, including payments, is Wildeshausen-Aldrup.
(3) The law of the Federal Republic of Germany applies under exclusion of its conflict-of–law rules. Application of the CISG (United Nations Convention on Contracts for the International Sale of Goods) is excluded.