General Business Terms and Conditions

of Ulmer Nahrungsmittel GmbH

 

 

General Business Terms and Conditions of Ulmer Nahrungsmittel GmbH

 

§ 1

(1) These General Business Terms and Conditions shall apply to the entire business dealings between us and the Customer. They shall particularly apply to all future business transactions even if express reference is not once again made to them.

(2) These General Business Terms and Conditions shall definitively regulate the entire business dealings between the Customer and us. In particular, the general business terms and conditions of the Customer as well as purchasing terms and conditions shall not become a contractual component, regardless of whether they deviate from these General Business Terms and Conditions or contain supplement provisions thereto.

 

§ 2

(1) Our offers shall be non-binding. The scope as well as terms and conditions of the order shall be specified on the invoice.

(2) Descriptions of our goods shall be considered to be only approximate values. We reserve the right to make changes to the goods until delivery is made whereby these changes may nonetheless not inappropriately restrict the Customer’s interests.

(3) From the Customer’s viewpoint, the criterion for the appropriateness shall be the ramifications on the value as well as the usability or saleability of the goods; on our side, the technical requirements – particularly the production-related and food law requirements.

(4) Obvious typing, printing and computational errors shall entitle us to rescind the agreement. Damage compensation claims on the part of the Customer shall be excluded.

 

§ 3

(1) Data regarding delivery timeframes/delivery deadlines shall be considered to be non-binding unless a binding guarantee was made to fulfil the delivery timeframe/delivery deadline.

(2) If a binding delivery timeframe has been agreed, it shall not apply until all details of the order have been clarified and the Customer has paid an agreed advance payment. The delivery timeframe can be fulfilled only if the Customer fulfils its contractual obligations. The delivery timeframe shall be considered to have been fulfilled if, before the delivery timeframe lapses, the goods have been sent or the readiness for delivery has been declared. The aforementioned provisions shall apply accordingly if an agreed delivery timeframe has been guaranteed.

(3) If we are hindered from making the delivery as the result of force majeure, the delivery timeframe shall be extended without any further action being necessary by the duration of the ramifications of the force majeure event in addition to an appropriate start-up period. A force majeure event shall be considered to equate to unforeseeable sets of circumstances for which we are not responsible which make the delivery unreasonably difficult for us or impossible for us. Examples of this would be: delivery delays from our designated sub-suppliers, labour disputes, government measures, shortages of raw materials or energy, essential operational disruptions, e.g. as the result of disruptions in the operations in all or important divisions, owing to breakdowns in indispensable production equipment, grave transport disruptions, e.g. through roadblocks, labour disputes in the transport industry, energy shortages and travel bans. If these sets of circumstances persist for more than four months, we shall also have the right to withdraw from the agreement. On the Customer’s request, we must declare whether we shall withdraw from the agreement or make delivery within an appropriate timeframe to be set by us. Damage compensation claims on the part of the Customer shall be excluded.

(4) If we are responsible for the failure to fulfil an appropriate delivery timeframe, we shall only then be considered to be in delivery default if the Customer has granted us an appropriate extension period in writing, which must be at least three weeks, and this extension period has fruitlessly lapsed. Thereupon, the Customer may withdraw from the agreement. Damage compensation claims on the part of the Customer as the result of our simple negligence shall be excluded.

 

§ 4

(1) The Customer must pay the listed price that is effective on the delivery date and/or the price that has been individually agreed when the order was issued. Changes in the listed prices shall be announced four weeks before they become effective.

(2) Our prices shall be considered to be free destination FRG whereby the Customer must also pay the respectively applicable statutory VAT. Our prices shall include the packaging materials which shall not be taken back.

(3) For orders below a goods value of € 500.00 in accordance with the wholesale price list, we shall collect a minimum quantity surcharge in the amount of the costs incurred.

(4) For deliveries made abroad, our prices shall be understood to be free German border. The Customer shall pay any customs duties and customs clearance duties. Otherwise, Paras. (2) and (3) shall apply accordingly.

 

§ 5

(1) Our invoices shall become payable strictly net 14 days after the invoicing date. We shall assert our payment claims on the date on which the goods leave the factory and/or they have been made available to the Customer for pick-up.

(2) We shall not accept other payment methods than cash, cheque and bank transfer. Payments must be made in such a manner that we incur no costs for them. We shall not be required to accept cheques as payment. For acceptance, a special prior agreement shall be required. The acceptance shall furthermore only be deemed conditional as well as subject to the billing of the debt collection and discounting costs. If cheques are accepted as payment, the payment shall only then be considered to have been made when the cheque has been redeemed. Despite any conflicting terms and conditions of the Buyer, we shall be entitled to initially offset payments from the Buyer against its previous debts and interests or costs.

(3) When the payment claim matures, the Buyer shall be considered to have entered into payment default without the sending of a warning letter being required. We shall be entitled, from this point in time, to charge interest in the amount of the interest rate charged by the commercial banks for open overdraft loans plus the statutory VAT.

(4) If we become aware of any circumstances which cast doubt on the creditworthiness of the Buyer, we shall be entitled to demand an advance payment or the provision of security within 24 hours and to accelerate any payments that have been deferred or are not yet due from other agreements so that they immediately become payable. If the Buyer does not provide the advance payment or security, or does not provide it promptly, we shall be entitled, without being required to set an additional extension period, to withdraw from the agreement. The latter shall also apply in the event that a petition is filed to open bankruptcy proceedings, or such bankruptcy proceedings are actually opened, as well as in the case of insolvency.

(5) Even if claims for defects or counterclaims are asserted, the Buyer shall be entitled to make an offsetting, retention of the payment or reduction of the purchase price only if the counterclaims have been legally upheld or are undisputed. This shall also apply to rights of retention on the part of the Buyer owing to counterclaims from the same contractual relationship.

(6) We shall also be entitled to make partial deliveries. For partial deliveries, we may issue partial invoices. The payment timeframes shall run separately for each partial invoice.

(7) Our field employees have no authority to collect debts.

 

§ 6

(1) Shipping shall be undertaken at the Customer’s risk. This shall also be apply if we assume the costs for the shipment. We shall be entitled, but not required, to take out transport insurance. The costs for transport insurance shall be assumed by the Customer. The risk shall be transferred to the Customer as soon as the delivery has left our factory and indeed also if partial deliveries are made or we have assumed responsibility for the rendering of other services such as, for example, the supplying of advertising materials or shelf maintenance. If the shipment is delayed owing to reasons for which we are not responsible, or owing to the Customer’s conduct, the risk shall be transferred to the Customer on the sending of our notification of the readiness for delivery to the Customer.

(2) Unless otherwise instructed by the Customer, we shall select the transport method, the transport route and the transport insurance without being responsible for selecting the fastest or cheapest option.

(3) In the case of damage to or loss of the goods on the transport route, the Customer must request that the carrier promptly provides a statement of facts.

(4) In the case of delivery on euro pool pallets, the Customer shall undertake, when delivering goods by way of exchange, to provide the same number of undamaged empty pallets which correspond in size, design and usability to those pallets on which the goods were delivered. If the swapped pallets are not returned, or not completely returned, we shall be entitled to charge the Customer for the replacement costs.

(5) Damage compensation claims owing to the packaging of the goods, the non-adherence to packaging instructions or non-adherence to transport instructions which constitute simple negligence on our part shall be excluded.

(6) If the employees of the carrier that we deploy provide assistance to the Customer during the unloading work, we shall not be liable for simple negligence.

 

§ 7

(1) If the Customer does not promptly make acceptance of goods for which a readiness for shipment has been announced or which have been delivered, we shall be entitled to either set an appropriate extension period for the Customer and, after it lapses, to otherwise dispose of the goods and to make delivery to the Customer within an appropriate extended timeframe or to immediately invoice it for the goods and to store the goods at its expense and at its risk. Our rights shall remain unaffected by this, subject to the requirements of § 326 of the German Civil Code (setting an extension period with the threat of refusal), to withdraw from the agreement or to demand damage compensation owing to non-performance. If we demand damage compensation owing to non-performance, we may demand 20% of the agreed price as compensation without being required to document this unless it can be documented that substantially lower damage has actually been suffered. Our right to assert that higher damage has actually been suffered shall remain unaffected.

(2) Para. (1) shall apply accordingly if the Customer has not promptly requested a call-off delivery in accordance with § 3 Para. 5. In this case, we shall also have the right to ship the goods after the extension period lapses.

 

§ 8

(1) The goods shall remain our property until the Customer has settled all payment claims which we hold against it. This shall also apply to sales on a drop shipment basis which we implement in the name and on the account of the wholesaler.

(2) The Customer may process the goods, to which we reserve the ownership rights, during its ordinary business operations unless it enters into payment default or discontinues its payments. In the case of processing, it shall already now been agreed that we shall be entitled to a co-ownership stake to the new goods created through the processing whereby this co-ownership stake shall correspond to the proportional value of the value of the goods subject to the reservation of ownership to the value of the other processed goods. The Customer shall store the new goods created through the processing for us. The aforementioned provisions shall apply accordingly if the Customer mixes, blends or combines the goods, to which we reserve the ownership rights, with other goods.

(3) The Customer may sell the goods, to which we reserve the ownership rights or to which we are entitled to co-ownership rights (reserved goods), during ordinary business dealings unless it enters into payment default or has discontinued its payments. It may not pledge the goods or assign them by way of security. Selling them abroad is permitted only subject to our prior written consent. If the Customer sells the reserved goods, it shall already now assign to us, until the settlement of all our payment claims, its rights from the sale which it holds against its end consumers with all ancillary rights, security and reservations of ownership. We may demand that the Customer notify its end consumers of the assignment and provide us with all information and documents which are required for the collection of these payment claims. However, the Customer may not collect the payment claims assigned to us it enters into payment default or has discontinued its payments. If the Customer’s payment claims arising from the resale of the reserved goods are integrated into a current account, the Customer shall already now assign to us its payment claim from the respective and/or recognised balance - in the amount in which payment claims from the resale of the reserved goods are contained.If we are entitled to only co-ownership to the goods sold, the aforementioned assignment shall apply only in the amount of the value of our co-ownership. If the reserved goods are sold with other goods for a total price, the aforementioned assignment shall apply only in the amount of the invoiced value of the reserved goods and/or in the amount of the value of our co-ownership. If the Customer receives a cheque or bill of exchange for the sale of the reserved goods, it shall already now assign to us the cheque or bill of exchange until all of our payment claims have been settled. It shall undertake to carefully safeguard the cheque or bill of exchange for us. Otherwise, the provision in the aforementioned paragraph shall apply accordingly.

(4) If the value of the reserved goods together with the other security provided to us exceeds our payment claims against the Customer by more than 20%, we shall undertake in this regard to release some of the security if the Customer demands this.

(5) The Customer must immediately notify us if the reserved goods or other goods or payment claims, to which we hold rights, are seized by third parties or a restriction of our rights must otherwise be feared. The required documents must be enclosed with the notification. The Customer must reimburse us for any costs which we incur owing to such events.

(6) As long as our ownership rights to the supplied goods are effective, they must be insured by the Buyer against loss and reduction in value, against fire, burglary, theft and transport risks as well as pipeline water damage. The payment claim created from a damage event which is held against the insurance company shall already hereby be assigned by the Buyer in advance to us in order to secure its claims up to the amount of the sales payment claim.

 

§ 9

(1) The Customer shall undertake to inspect the goods which we have supplied promptly after the handover is made and, if a defect is discovered, to promptly notify us of this defect. Moreover, the Customer shall undertake to inspect the supplied goods immediately after the handover for completeness (type and quantity) and to confirm the receipt thereof on our delivery note. The aforementioned provisions shall also apply if the Customer is not already required to make an inspection or a notification of defects in accordance with § 377, 378 of the German Commercial Code.

(2) The Customer shall also undertake to subject the supplied goods to incoming goods inspection if the goods are supposed to be subjected to continued processing.

 

§ 10

(1) In the event that the goods are discovered to have defects, the Customer may demand only a replacement delivery. On request, the Customer shall undertake to send back the goods to us at our expense. Any replaced goods shall become our property.

(2) However, the Customer shall nonetheless be entitled to demand the rescission of the agreement or the reduction of the contractual price if

- The replacement delivery is impossible,

- Our replacement delivery is not successful within an appropriate timeframe,

- We refuse to render the replacement delivery or

- We culpably delay the replacement delivery.

 

(3) Claims by the Customer for damage compensation and indeed also for damage which is created as the result of a late replacement delivery shall be excluded for simple negligence on our part. The exclusion of the damage compensation claim shall not apply if the goods lack a guaranteed quality feature.

(4) Any liability for consequential damages, i.e. for damage to other legal assets of the Customer such as, for example, lost profits, etc. shall be excluded unless we must also be liable for consequential damage owing to a defect in a guaranteed quality feature of the goods.

(5) We shall not be liable for defects in the goods which have been caused through improper handling or warehousing under inappropriate conditions – particularly under excessive humidity and excessively high or excessively low temperatures.

 

§ 11

Damage compensation claims on the part of the Customer, regardless of the legal reason – particularly owing to tortious acts, manufacturer’s liability, improper consulting or a lack of consulting, a positive claim violation, negligence during the conclusion of the agreement and the impossibility of performance shall constitute simple negligence on our part and shall be excluded. This liability provision shall not apply to liability based on fault – particularly not for the absence of guaranteed quality features and for product defects in accordance with the German Product Liability Act.

 

§ 12

(1) Deviations from these Sales Terms and Conditions must be in writing.

(2) The place of performance for the performances rendered by both contractual partners shall be 89079 Ulm, Germany.

(3) For the contractual relationship and the related legal disputes, exclusively the law of the Federal Republic of Germany shall be effective subject to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

(4) The legal venue for all disputes arising between us and the Customer – including with regards to bills of exchange, cheque or deed processes – shall be 89079 Ulm, Germany, if the Customer is a registered merchant, a juridical person under public law or a special foundation under public law, or has no general legal venue in the Federal Republic of Germany. We shall be entitled to also take legal action in the legal venue which is competent for the Customer’s commercial residence.

(5) In the event that individual provisions of these Terms and Conditions should, in whole or in part, be or become ineffective, or a gap or an omission should be discovered in these Terms and Conditions, the effectiveness of the remaining provisions shall not be affected. The ineffective provisions shall be replaced by that effective provision which most closely corresponds to the sense and purpose of the ineffective provision. In the case that a gap or an omission is discovered, a provision shall be agreed which corresponds to what would have been agreed based on the sense and purpose of these Terms and Conditions if the matter had been taken into consideration from the outset. This shall also be effective if the ineffectiveness of a provision is based on a measure of performance or time that has been standardised in these Terms and Conditions; in such cases, a legally-permissible measure of performance or time which most closely corresponds to the intended shall replace the agreed one.

 

§ 13 Consumer Dispute Resolution Act (§§ 36, 37 VSBG)

We shall not be willing to participate in dispute resolution proceedings before a consumer arbitration board in accordance with § 2 Consumer Dispute Resolution Act.

Version: August 2018