General Business Terms and Conditions

of Albert Mühlschlegel GmbH & Co. KG and Thüringer Mühlenwerke GmbH

 


DELIVERY AND PAYMENT TERMS AND CONDITIONS FOR MILLED PRODUCTS


I. General Provisions

(1) These Delivery and Payment Terms and Conditions shall apply to milled products such as flour, semolina, coarse-grained flour, groats, baking mixes (hereafter, “Milled Products”) and milled by-products such as animal feed flour or bran (hereafter, “Milled By-Products”) or other services and products from the mills. Unless regulated in a deviating manner, “Milled Products” shall refer to all products and services specified in Clause 1 of this Section I Para. 1.

(2) For all deliveries of and services for Milled Products from the Seller to the Buyer, exclusively these Delivery and Payment Terms and Conditions shall be effective.

(3) Any conflicting or supplemental terms and conditions of the Buyer shall only apply if and insofar as the Seller has expressly approved their effectiveness in writing. The Delivery and Payment Terms and Conditions of the Seller shall also apply if the Seller, while being aware of the conflicting or supplemental terms and conditions of the Buyer, unconditionally renders deliveries to the Buyer.

(4) Insofar as the written form requirement is prescribed in these Delivery and Payment Terms and Conditions, in order to fulfil this requirement, it shall suffice to send notifications via post, telefax or e-mail.

(5) As the result of the initial delivery to the Buyer, these Delivery and Payment Terms and Conditions shall also become a component of the future deliveries from the Seller to the Buyer.

(6) If contracts have not been concluded in writing, the delivery note shall be considered to be the confirmation letter. It shall be prevailing particularly for the determination of the contractual object unless the recipient lodges a prompt objection.

(7) The contracts/provisions regarding delivery quantities, prices, delivery timeframes as well as any other understandings which have not been prescribed in the following Delivery and Payment Terms and Conditions or which deviate from them must be in writing.

(8) The ineffectiveness of individual provisions shall not affect the effectiveness of the remaining provisions.

 

II. Choice of Law, Legal Venue

(1) The business relationship between the Seller and the Buyer shall be subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods.

(2) Subject to the exclusion of the state courts, any legal disputes shall be ruled on by the arbitral tribunal that was agreed between the parties on the conclusion of the contract. If no arbitral tribunal has been agreed, the Seller shall be entitled to designate an arbitration panel on the stock exchange of its own choice. In the event that neither an arbitration panel on the stock exchange has been agreed nor the Seller has designated any arbitration panel on the stock exchange within four weeks after the Buyer makes a corresponding written demand to do so, the regional arbitration panel on the stock exchange which is competent for the Seller’s headquarters shall rule.

(3) The Seller reserves the right to take legal action before the ordinary court which is competent for the Seller with regard to payment claims from bills of exchange and cheques as well as payment claims regarding which no objection has been asserted by the date that the lawsuit is filed.

 

III. Prices

For flour, semolina, coarse-grained flour and groats, the prices shall be considered to be for 100 kg.

a) Net, packaged
b) Net, unpackaged

The delivery shall be made freight paid to the agreed Buyer’s station. The Seller shall select the transport method. VAT must also be paid in all cases. The purchase price claim shall increase or decrease based on the quantity that is actually delivered.

 

IV. Place of Performance, Transport

(1) The place of performance for the delivery shall be the loading location; for agreed delivery “ex warehouse”, the Seller’s warehouse.

(2) The place of performance for the payment shall be the Seller’s commercial branch.

(3) The risk shall be transferred to the Buyer by no later than the handover of the delivery goods (beginning of the loading process) to the carrier, the freight forwarder or the company that has otherwise been designated to implement the shipment. If the Seller implements the transport on its own, the risk shall be transferred to the Buyer on the beginning of the loading process. If the shipment is delayed owing to circumstances for which the Buyer is responsible, the risk shall already been transferred on the date that the readiness for shipment is announced.

(4) On the request and the expense of the Buyer, the Seller shall insure the shipment against theft, breakage, transport, fire and water damage as well as any other insurable risks.

(5) If the Buyer requests checking that the loading is properly done, it must assume the required costs for this.

 

V. Quality

(1) If the delivery of a certain brand or a certain type has been agreed, the milled product must correspond to the average of this brand or this type that was effective on the conclusion of the contract.

(2) If nothing has been agreed regarding the quality of the goods, the goods must be supplied which are of medium quality and medium grade.

(3) Sales in accordance with special quality terms and conditions shall require an individual contract.

(4) For sales based on a sample, this sample shall be prevailing.

(5) If sales are made based on “approximately according to the sample”, “representative sample” or “average sample”, small deviations – e.g. in colour, grinding or granulation – shall be permitted if this deviation is reasonable for the Buyer.

 

VI. Invoicing Date

The invoicing date shall be considered to be:

(a) For loading on ships, the date on the bill of lading.
(b) For shipping via rail and/or road transport, the date of the loading.
(c) For delivery ex warehouse and from an arriving ship, the date of the outgoing delivery or release of the goods.

 

VII. Payment

(1) Unless otherwise agreed, payment shall be made, on the delivery of the Milled Products, within 14 days after the invoicing date without any discounts. For Milled By-Products, payment must be rendered immediately without any discounts. For the Seller, the fulfilment of the payment timeframe shall be the Buyer’s essential obligation.

(2) Payment orders or cheques shall not be accepted for contractual fulfilment purposes, but rather merely for payment satisfaction purposes. For payment orders and cheques, the contractual ramifications shall only apply to the value date of the bank credit.

(3) If, after the conclusion of the contract, objective indications of the insufficient creditworthiness of the Buyer are discovered or become recognisable to the Seller, the Seller shall have the right, within a timeframe of three business days, to demand a cash payment, concurrent payment, payment against documents, advance payment or the provision of security before loading is done even if another payment method has been agreed. If the Buyer does not fulfil this request within this timeframe, the Seller may withdraw from all contracts with the Buyer.

(4) Interest, surcharges, etc. shall become payable when charged.

(5) The Buyer may offset only insofar as its counterclaims have been legally upheld, are undisputed or have been recognised by the Seller. The Buyer shall be authorised to exercise the right of retention only if its counterclaim is based on the same contractual relationship.

(6) Deductions for natural shrinkage shall not be permitted.

 

VIII. Payment Default

(1) The Buyer shall enter into payment default if payment is not rendered promptly.

(2) In the case of payment default, the Seller shall be entitled to charge payment default interest in the amount of nine percentage points above the base lending rate from the date that the payment default begins.

(3) In the case of the Buyer’s payment default, after the fruitless lapsing of an extension period of three business days, the Seller shall have the right to refuse to make any still outstanding deliveries until payment in full has been made for the deliveries which the Seller has already rendered. Furthermore, the Seller shall be entitled to demand damage compensation from the Buyer and/or to withdraw from the contract.

 

IX. Delivery and Acceptance

(1) The Seller may demand that the Buyer accept the goods within the agreed delivery timeframe in a batch or partial batches insofar as this is reasonable for the Buyer. If the Seller exercises its right to the delivery of partial batches, it must promptly notify the Buyer of this. Partial deliveries shall be respectively considered to be partial fulfilment of the supply contract.

(2) In the event that a contract has been concluded for approx. quantities, delivery overages or delivery underages of up to 2% of the agreed quantities shall be considered to be contractual fulfilment. The purchase price shall be determined based on the actual delivery quantity.

(3) Differentiation shall be made between the following:


(a) “immediate delivery”: Delivery and acceptance on the third business day after the conclusion of the contract.
(b) “prompt delivery”: Delivery and acceptance by no later than the eighth business day after the conclusion of the contract.
(c) “delivery on a fixed date”: If the delivery timeframe in this regard is longer than one month, delivery and acceptance may be demanded only in equal quantities and instalment payments on a monthly basis.


(4) The contract on other delivery timeframes shall not be affected by this.

(5) The Buyer shall undertake to issue implementable loading instructions as follows:

(a) for sales for “immediate delivery”, immediately on the conclusion of the contract without this having to be requested.
(b) for sales for “prompt delivery”, within four business days after the conclusion of the contract without this having to be requested.
(c) for sales “on a fixed date”, by no later than within four business days before the agreed delivery timeframe lapses. If the Seller requests that the Buyer issues loading instructions, these loading instructions must be issued within four business days after the receipt of this request. The Seller shall undertake to announce the delivery date with five days’ advance notice if the goods are delivered by ship and if the Buyer is obliged to provide the ship on this date.
(d) In the case of agreed delivery via “arriving ship”, immediately on the initial tendering.
Any issued implementable loading instructions may be modified only by mutual agreement with the Seller.

(6) If the loading location has not been specified in the contract, the goods must be tendered.

(7) In the event that loading instructions have been received in a prompt manner, the Seller shall undertake to deliver within the agreed delivery timeframe. If the Seller deviates from the loading instructions that have been issued, it must assume any additional costs that are incurred.

(8) In the case of delivery being made to and pick-up being made from a silo, the metric weight and loaded quality determined by the Seller at the loading location shall be prevailing. On the Buyer’s request, the silo must be promptly and suitably sealed after the loading has been completed. The weighing documents regarding the weight loaded at the mill must be submitted to the Buyer on request.

(9) The Buyer may demand that, during the loading into the silo, sampling and weighing be done by a certified sampling and weighing expert who is present on site at that time. The Buyer shall assume the related costs incurred in this regard. Notifications of defects for the supplied goods loaded into the silos – including for hidden defects – shall only be considered to be justified and entitled if the average sample taken at the loading site in accordance with this paragraph has the defects regarding which a notification of defects was made. Otherwise, the provisions in Sections XIV. and XV. shall apply.

 

X. Buyer’s Default in Taking Possession and Making Acceptance of the Goods

(1) If the Buyer enters into default with the delivery acceptance or the issuance of the loading instructions, the Seller shall be entitled to set an extension period for the fulfilment of the contractual agreement for the Buyer. The setting of the extension period must be in writing and the extension period must be at least three business days. The setting of the extension period may be combined with the demand to issue the loading instructions. In this case, the entire extension period shall be seven business days. In the case of a belated issuance of loading instructions by the Buyer, the Seller shall, notwithstanding the rights specified in Section X., have the right to extend the delivery timeframe by the period of time when the Buyer is in default.

(2) After the fruitless lapsing of the extension period, the Seller may withdraw from the contract and/or assert damage compensation claims.

(3) If the Buyer does not accept a delivery that has been properly offered by the Seller, the Buyer shall enter into delivery acceptance default. During the Buyer’s delivery acceptance default, the Seller shall be entitled, after having sent a warning letter, to commission a certified broker to conduct a self-help sale at the Buyer’s expense on the open market. Self-dealing shall be permitted.

(4) The Seller may also store the goods during the Buyer’s delivery acceptance default period at the Buyer’s expense and risk in a public warehouse or in some other secure manner.

 

XI. Seller’s Delivery Default

(1) If the Seller enters into delivery default, an extension period for making delivery must always be granted. The extension periods must be at least:

(a) For sales with “immediate delivery”, four business days.
(b) For sales with “prompt delivery”, eight business days.
(c) For sales “on a fixed date”, ten business days.


(2) As long as the Buyer is in default with the acceptance of the delivery or the payment or another of its other obligations from the same or another contractual relationship with the Seller, the contractual delivery timeframe and/or the extension period against the Seller shall not run. If the Buyer changes any loading instructions that have already been issued, any extension period that has already been set shall be rendered ineffective unless the change exclusively affects the loading address.

 

XII. Reservation of Ownership

(1) The Seller reserves the right of ownership to the delivered goods until payment in full has been made for all payment claims which the Seller holds against the Buyer, currently or in the future. This shall apply even if a payment timeframe has been agreed. If the Buyer makes payment by cheque, the Seller’s reservation of ownership shall continue to apply until it is redeemed in cash – even in the case of any prolongation.

(2) The Buyer shall undertake to insure the goods to be delivered against damage and, on request, to document the conclusion of the insurance agreement. The Buyer shall already in advance assign any payment claim arising from a damage event against the insurance company to the Seller in order to secure its claims until to the amount of the Seller’s payment claims. The Seller hereby already now accepts the assignment.

(3) In the event of a contractual violation on the part of the Buyer – particularly in the case of payment default, the Seller shall be entitled, after setting an extension period of three business days, to withdraw from the contractual agreement and to demand the return of the reserved goods.

(4) The Buyer shall be entitled to resell the reserved goods in proper business dealings to third parties. The payment claims created from the resale – including all assignable ancillary rights – shall already now be assigned by the Buyer to the Seller in order to secure all of the Seller’s payment claims from the business relationship with the Buyer in their full amount. The Buyer shall be entitled to collect the payment claims as long as it properly fulfils all payment obligations from the business relationship with the Seller.

(5) On the Buyer’s request, the Seller shall, as it so chooses, release security if and insofar as the realisable value of the security exceeds a total of 120% of the nominal value of the Seller’s payment claims against the Buyer.

(6) The Buyer shall be entitled to process, mix and handle the goods during proper business dealings.

(a) The handling and processing of the delivered goods shall always be done by the Seller’s mandate. The Seller must, during each handling and processing status and also with regard to the finished goods, be regarded as the manufacturer in accordance with § 950 of the German Civil Code. If the handling of processing is done together with goods which belong to the Buyer or a third party, the Seller shall acquire co-ownership to the newly-created goods in accordance with § 947 Para. 1 of the German Civil Code.


(b) If the goods supplied by the Seller are combined or mixed with goods which belong to the Buyer or a third party, the Seller shall acquire co-ownership in accordance with §§ 947 Para. 1, 948 Para. 1 of the German Civil Code.
(c) In the cases (a) and (b), the Buyer shall undertake to store the goods for the Seller at its own expense.
(d) The Buyer shall be entitled to resell and deliver the newly-created goods to third parties if this is customary during its proper business dealings. The provision in Section XII. Para. 4 shall apply accordingly.

(7) If the Buyer has completely fulfilled its payment obligations to the Seller from deliveries, the Seller shall assign to the Buyer any payment claims to which it is entitled from the advance assignment. A special agreement regarding the individual payment claims shall not be required.

(8) Before it has made payment in full, the Buyer shall be forbidden from pledging or assigning the goods by way of security. The Buyer must promptly notify the Seller in writing of any seizures and other restrictive measures by third parties with regard to the goods supplied that are subject to the reservation of ownership, the goods created from them and the assigned payment claims. The Buyer must pay any intervention costs incurred by the Seller.

 

XIII. Calculating Timeframes

(1) For the beginning of the timeframes prescribed in these Delivery and Payment Terms and Conditions, the date of the setting of the extension period shall not be counted.

(2) Business days in accordance with these Delivery and Payment Terms and Conditions shall be considered to be workdays with the exception of Saturdays and 24 and 31 December.

 

XIV. Warranty

(1) The Buyer must inspect the supplied goods promptly on their receipt for flawlessness and completeness. The incoming goods inspection shall also encompass a random sampling-based inspection of the inner quality features of the goods (chemical or technical analysis, baking sample and the like) which must be documented in writing by the Buyer. On request, the documentation of the incoming goods inspection must be submitted to the Seller in copy form. The Buyer must notify the Seller in writing of any obvious defects in the goods (i.e. defects which would become recognisable during proper incoming goods inspection) immediately after the incoming goods inspection; for hidden defects, immediately on their discovery.

(2) In the event that the Buyer makes a notification of defects, the Buyer must have the goods, about which a notification of defects has been made, inspected by a certified expert who will take samples of these purportedly flawed goods and, if the dispute is taken to an arbitral tribunal, submit these samples promptly to this arbitral tribunal. The date when the sampling is supposed to be done shall, if possible, be announced to the Seller at the same time with the notification of defects, but promptly in any case.

(3) With regard to each notification of defects, the Seller shall be entitled to inspect and test the goods about which a notification of defects has been made. The Seller shall be entitled to participate in the sampling process conducted by the expert.

(4) If the Buyer does not make notification of the defects in the supplied goods to the Seller, or does not make such a notification promptly, in accordance with Section XIV. Para. 1, the goods shall be considered to have been approved as being contractual.

(5) In the event of defects in the supplied goods, the Seller shall render subsequent performance via a replacement delivery unless this is possible only with disproportionate costs. If the Seller refuses to render subsequent performance, this subsequent performance is considered to be unreasonable or is unsuccessful, the Buyer may, as it so chooses, reduce the purchase price or withdraw from the contractual agreement.

(6) The right of rescission on the part of the Buyer shall be excluded if the Seller’s contractual violation is insignificant. This shall be the case particularly if the reduced value caused by the material defect is not higher than 5% of the value of the goods. The claim for the reduction of the purchase price shall be unaffected by this.

(7) The warranty timeframe shall amount to one year from the point in time that the goods are delivered to the Buyer.

(8) The Seller shall be liable for the payment of damage compensation and futile expenditures of the Buyer owing to or in conjunction with material and/or legal defects only in accordance with the provisions in Section XV.

(9) Insofar as the Buyer asserts claims owing to purported defects against the Seller for the reduction of the purchase price or reimbursement of expenditures, the parties shall promptly commence negotiations regarding the claims which the Buyer has asserted. If no mutually-agreed solution should be found within a timeframe of three months after the point in time that the defects were discovered, recourse must be sought with the arbitral tribunal that is competent in accordance with Section II Para. 2 in order to determine the amount of the claim. Subject to the exclusion of the state courts, the Buyer and Seller shall subject themselves to the ruling by the arbitral tribunal regarding the amount of the purchase price reduction, the claim for the reimbursement of expenditures and the damage compensation claim.

 

XV. Damage Compensation and Reimbursement of Futile Expenditures

(1) Regardless of the legal reason (e.g. owing to the violation of an obligation from the contractual relationship and owing to tortious acts), the Seller’s liability to pay damage compensation and to reimburse futile expenditures shall be specified in the following provisions.

(2) The Seller shall be liable for the damage suffered by the Buyer which has been created through the intentional wrongdoing or gross negligence on the part of the bodies, management personnel or other employees of the Seller. The guideline in § 831 Para. 1 Clause 2 of the German Civil Code shall remain unaffected.

(3) Moreover, the Seller shall be liable for damage created by a violation of essential contractual obligations for which the Seller is responsible. However, this liability shall be restricted to contractually typical, foreseeable damage insofar as it has been caused only through simple negligence or by vicarious agents.

(4) Claims for damage compensation owing to or in conjunction with defects in the supplied goods shall become statute-barred within one year’s time after risk has been transferred.

(5) Otherwise, the liability for damage compensation shall be excluded. Legal claims from the German Product Liability Act owing to the loss of life, physical injury or damage to health as well as in accordance with §§ 478 and following of the German Civil Code shall remain unaffected.

(6) The Buyer’s claims from the provisions of Sections XIV. and XV. shall remain unaffected insofar as the Seller has maliciously concealed a defect or provided a warranty. Features, quality or useful life of a delivery product or other circumstances shall only then be considered to have been guaranteed if a guarantee has been expressly granted. For the scope of the liability for guarantees, the content of the guarantee commitment shall be prevailing. The Seller shall be liable only for such damage which is supposed to be prevented precisely by the guarantee.

(7) The provisions of this Section XV. shall correspondingly apply to the reimbursement of futile expenditures (§ 284 of the German Civil Code).

 

XVI. Recall of the Goods

If the Buyer plans to recall any goods that have been supplied by the Seller which the Buyer has resold or any goods which the Buyer has manufactured from the goods supplied by the Seller, or the competent government agency orders that the Buyer issue the recall, in accordance with § 9 Produktsicherheitsgesetz [German Product Safety Act] (ProdSG), or the government agency orders the seizure or the destruction of these goods, it must promptly notify the Seller of this at the earliest possible point in time before the implementation of the planned or ordered measure. This shall apply accordingly if the Buyer plans, or the competent government agency orders the Buyer, in accordance with § 8 ProdSG, to warn the public about these goods. The Buyer’s right to fulfil any statutory obligation to recall the goods or to issue a public warning about these goods in the manner required by law shall remain unaffected by the provisions in the aforementioned Clauses 1 and 2.

 

XVII. Hindrances to Fulfilment

(1) Traffic disruptions, strikes, lockout, operational disruptions – with the exception of the impossibility of production that has been caused by fire and other force majeure hindrances which, based on their nature, are short term, unforeseeable and without fault, which make the production or delivery temporarily impossible, shall extend the delivery timeframes by the duration of the hindrance for a maximum of up to 30 days. Within this timeframe, the Seller must make delivery or declare that it is able to make delivery within 14 more days. After the lapsing of the delivery timeframe which has been extended by 44 days, the contract shall cease to exist if it has not yet been fulfilled for the delivery. The Seller must promptly notify the Buyer of the occurrence of such an event.

(2) If the fulfilment of the contract is hindered as the result of war, blockade, ban on importing, exporting or transit domestically and abroad, fire and other unforeseeable and faultless force majeure events which, based on their nature, are of an unforeseeable duration, the Seller shall be entitled and required to promptly notify the Buyer of the event and declare, within ten days after the occurrence of the event, whether it can fulfil the contract. If there is a justified reason to assume that the contract can be fulfilled within a foreseeable timeframe without the precise point in time of the delivery being able to be stated as the result of the event that has occurred, the declaration timeframe shall only then begin to run from the point in time when this is possible. The justification for the suspension of the declaration shall be subject to a ruling by an arbitral tribunal. If the rendering of the declaration is not possible within 60 days after the occurrence of the event or the Seller has not made delivery within 21 days after rendering the declaration and/or the extended delivery timeframe, the contract shall be considered to cease to exist for the delivery of the outstanding portion of the delivery.

(3) The Seller shall not enter into default for the duration of the hindrance. The Buyer can derive no damage compensation claims from the hindrance to fulfilment.

(4) In the event that the contract has ceased to exist, the Seller shall promptly refund to the Buyer any payments that have already been rendered.

(5) The contract between the parties regarding the supplying and acceptance of replacement products shall not be affected by these provisions.

 

XVIII. Contracts Ceasing to Exist

A contract shall cease to exist on its own if a written warning letter demanding the acceptance or the delivery is not issued within three months after the final delivery date specified in the contract. If a warning letter is issued within this timeframe, but the party issuing the warning letter does not exercise its contractual rights within three months after the declaration of the warning, the contract and all claims of the contractual parties must be regarded as having permanently ceased to exist.

 

XIX. Changes in the Legal Situation

If changes to the law should be made or government decrees should be issued after the conclusion of the contract which impose new obligations on the Seller that are related to the sale or the delivery of the agreed goods, these changes and/or decrees shall be considered to have been agreed between the parties.

 

XX.Verbraucherstreitbeilegungsgesetz [Consumer Dispute Resolution Act] (§§ 36, 37 VSBG)

The Seller shall not be willing to participate in dispute resolution proceedings before a consumer arbitral tribunal in accordance with § 2 Verbraucherstreitbeilegungsgesetz.


Version: August 2018