General Terms and Conditions of Delivery and Payment of Maintal Konfitüren GmbH, Industriestr. 11, 97437 Hassfurt

1. Scope

All sales and deliveries - also future deliveries - are governed by these terms and conditions and any separate contractual arrangements. Deviating terms and conditions of the Purchaser do not become an integral part of the agreement by accepting the order, unless the Seller has expressly agreed to them in writing on a case-by-case basis.

 

2. Contractual offer and conclusion of the agreement

2.1 The offers of the Seller are non-binding unless expressly specified as binding.

2.2 The written order confirmation of the Seller is relevant for the scope of delivery.

2.3 The Seller may charge a deposit for borrowed packaging which falls due and payable together with the goods (without cash discount). The paid deposit will be reimbursed in full upon handover with carriage paid in due time, free from breakage and repairs, complete, clean and not mixed up. Loan money may be charged after six weeks. In the latter case, the Seller may also refuse to accept the goods back and charge the costs for replacement procurement. The Purchaser is liable for necessary repairs of returnable packaging sent back.

 

3. Prices and payment

3.1 The prices applicable at the date of the ordering are charged. Unless otherwise agreed, the prices are ex works including packaging. The prices are exclusive of statutory value added tax.

3.2 Unless otherwise agreed, payment must be effected in cash in advance without any deductions. Payments are deemed received on the date on which the Seller can dispose of the amount. Cash discounts are only recognized within the discount period if all previous claims are settled.

3.3 If the Purchaser is in arrears with their payments, the Seller may charge default interest in the amount of 9 percent above the relevant base interest rate as of the date of maturity. The assertion of further rights shall be reserved. In the event of default of payment, the Seller may withhold any and all services owed to the Purchaser.

3.4 The Purchaser is only entitled to withhold payments or offset them against counterclaims if their counterclaims are undisputed or established in law.

3.5 In case of a considerable deterioration of the Purchaser’s asset situation which endangers the Seller’s payment claim, the Seller may withhold the delivery until payment is effected or sufficient securities are provided.

 

4. Delivery time, default

4.1 The delivery time is subject to the arrangements made between the parties.

4.2 The delivery period is deemed complied with if the object of delivery has left the works of the Seller until expiry thereof or if a notification of readiness for dispatch was made.

4.3 If the non-compliance with the delivery time is due to force majeure, labour disputes or other events outside the Seller’s sphere of control, the delivery period will be extended appropriately. This applies also if these events occur with respect to subcontractors and in case of lack of energy or raw materials and lack of means of transport or in case of delayed receipt of a due payment.

4.4 If the Seller has approved binding delivery dates, the Purchaser may withdraw from the agreement by means of a written declaration which the Seller must receive within one week upon expiry of the deadline after an excess of more than four weeks (not in the cases under para. 4.3). The Seller is only obliged to pay damages if the delay is due to gross negligence or intention for which the Seller is responsible.

 

5. Delivery, transfer of risk

5.1 The stipulated delivery clauses must be interpreted according to the INCOTERMS applicable upon conclusion of the agreement. Unless otherwise agreed, the object of delivery is deemed delivered ex works of the Seller.

5.2 The risks of the transport are always borne by the Purchaser also in case of freight prepaid deliveries or deliveries free domicile except if the Seller performs the transport with own vehicles from their premises or warehouse.

If the dispatch is delayed or not effected due to circumstances for which the Seller is not responsible, the risk passes to the Purchaser upon notification of the readiness for dispatch.

 

6. Retention of title

6.1 The Seller retains the title to the object of delivery until any and all claims of the Seller towards the Purchaser under the business relationship are settled. The object of delivery must be stored separately from other goods of the recipient as far as this is operationally feasible. Upon request, the Purchaser undertakes to inform the Seller about the scope and place of storage of the goods still in their possession.

6.2 The Purchaser undertakes to insure the goods subject to retention of title against fire and burglary and natural hazards. All claims of the Purchaser against the insurer with respect to the goods subject to retention of title are herewith assigned to the Seller.

6.3 The Purchaser may only resell or process the goods subject to retention of title within the ordinary course of business. They may not pledge them or transfer them by way of security. The Purchaser must inform the Seller immediately in case of pledging and seizure as well as other dispositions by third parties.

6.4 If the Purchaser does not comply with the agreement, in particular in case of default of payment, the Seller is entitled to take the goods back and the Purchaser is obliged to surrender them after reminder. The assertion of the retention of title and the pledging of the object of delivery by the Seller are not deemed as withdrawal from the agreement.

6.5 The request for the opening of insolvency proceedings entitles the Seller to withdraw from the agreement and demand the immediate return of the object of delivery.

6.6 The claims of the Buyer from the resale of the goods subject to retention of title are assigned to the Seller already now. They serve as collateral to the same extent as the goods subject to retention of title. If the goods subject to retention of title are resold together with other goods not sold by the Seller, the assignment of the claim under the resale only applies in the amount of the resale value of the relevant sold goods subject to retention of title.

 

7. Warranty

7.1 The Seller is liable for the perfect condition in compliance with applicable food law until the relevant best-before date.

7.2 The Purchaser must check the goods and their packaging immediately upon delivery for the type of goods, the quantity and obvious defects. Defects identified during the examination must be notified to the Seller by the Purchaser within 8 days upon receipt of the goods via fax or email. The Seller must be given the opportunity to perform an immediate inspection. Transport damages must be notified to the freight forwarder immediately upon receipt of the goods.

7.3 If a defect is identified later on, such defect must be notified immediately upon identification within 8 calendar days via fax or email.

7.4 If the Purchaser does not perform such examination or notify an identified or identifiable defect in due time, they will lose any warranty claim in view of the identified and/or identifiable defects. The same applies in case of an erroneous incorrect delivery.

7.5 The Seller is not liable for objections incurring to the Purchaser due to deviating self-labelling, improper storage, amendments or processing unless such objections are demonstrably due to a circumstance for which the Seller is responsible.

7.6 In case of substantiated defects notified in due time, the Seller will deliver defect-free goods subsequently and at the Seller’s expense.

7.7 If any third party asserts a claim related to injury to people or property, the Purchaser shall inform the Seller immediately via fax or email.

 

 8. Miscellaneous

8.1 In connection with the German Federal Data Protection Act (BDSG; Bundesdatenschutzgesetz), the Seller points out that the following data is stored: Name, address, industry, turnover and payment information. Upon request, the Seller is willing to inform the Purchaser about the stored data and to correct them if they are obviously incorrect. The stored data will only be stored and processed for internal business use and not forwarded to third parties.

8.2 The Seller retains all rights of title and copyrights in catalogues, price lists and offers. They may not be made accessible to third parties or copied without the Seller’s written consent.

8.3 The Seller’s company seat is the place of performance.

8.4 The laws of the Federal Republic of Germany apply. The United Nations Convention on Contracts for the International Sale of Goods does not apply. The Seller’s company seat is the place of jurisdiction.

If the Purchaser is based outside the European Union or Switzerland and Norway, the suing party has the possibility to have all litigations arising in connection with this agreement or its validity finally decided according to the rules of arbitration of the German Institution for Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V.; DIS) by an arbitrator without recourse to the ordinary courts of law. In case of a litigation value of more than EUR 50,000.00, a three-member arbitration tribunal will decide.

 

Hassfurt, 11/2021