Article 1 General, Scope
(1) The present General Terms and Conditions of Purchase (Conditions of Purchase) apply to all business relationships with our business partners and suppliers (the “Seller”). The Conditions of Purchase shall only apply, where the Seller is an entrepreneur (Article 14 German Civil Code), a legal entity under public law or a special fund under public law.
(2) The Conditions of Purchase shall apply, in particular, for contracts relating to the sale and/or supply of movable objects (“goods”), regardless of whether the Seller manufactures the goods itself or purchases them from other suppliers (Article 433, 651 German Civil Code). Unless otherwise agreed, the Conditions of Purchase shall apply as a Framework Agreement in the version valid at the time of order by the Purchaser or, in any case, in the written form most recently provided to it, including for similar future contracts, without any requirement, on our part, to refer to these Conditions again in individual instances.
(3) These Conditions of Purchase shall apply exclusively. Deviating, contrary or supplementary General Terms and Conditions of the Seller shall only become a component of the contract to the extent that we have expressly consented to their applicability in writing. This requirement of consent applies in every case, for example, even where we accept deliveries from the Seller without reservation in the knowledge of the Seller‘s General Terms and Conditions.
(4) Individual agreements made with the Seller in individual instances (including collateral agreements, supplements or amendments) shall always take precedence over these Conditions of Purchase. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
(5) Legally relevant declarations and noti cations, which the Seller is obliged to provide to us after conclusion of the contract (e.g. setting deadlines, reminders, declarations of rescission), require the written form to be effective. Email suffices for the written form.
(6) References to the applicability of statutory provisions serve the purpose of clarification only. The statutory provisions shall apply even in the absence of such clarification, insofar as these are not directly modi ed or expressly excluded by these Conditions of Purchase.
Article 2 Contract conclusion
(1) Our orders shall be considered binding, at the earliest upon issue in writing (email suffices) or confirmation. The Seller is obliged to notify us of obvious errors (e.g. typing or calculation errors) and incompleteness of the order, including the order documentation, for the purposes of correction/completion before acceptance; the contract shall otherwise be regarded as not concluded. Particularly in the context of long-term supply relationships, the Parties may agree a contract conclusion procedure which deviates from that set out above and, for example, agree to conclusion of contract by telephone.
(2) The Seller is under an obligation to confirm our order in writing within a period of 3 days/weeks or by dispatch of the goods without reservation (acceptance). Delayed acceptance shall be regarded as a new o er and shall require acceptance on our part.
Article 3 Delivery period and default in delivery
(1) The delivery period that we stipulate in the order is binding. If the delivery period is not indicated in the order and nothing else has been agreed, it shall be 7 days from contract conclusion. The Seller undertakes to inform us immediately, in written form, if it anticipates being unable to meet the agreed delivery deadlines - for whatever reason.
(2) Where the Seller fails to perform its services, or fails to do so within the agreed delivery period, our rights
– particularly our rights to rescission and damages – shall be governed by statutory provisions. The provisions in paragraph 3 shall remain una ected.
(3) Where the Seller is in default, we can – in addition to further, statutory entitlements – require lump sum compensation for our damages owing to the default in the amount of 1% of the net price per complete calendar week, in total, however, of not more than 5% of the net price of the goods delivered late. We retain the right to prove that higher damages have been incurred. The Seller retains the right to prove that no damages or significantly lower damages have been incurred.
Article 4 Performance, delivery, transfer or risk, default of acceptance
(1) Without our prior, written agreement, the Seller is not entitled to have third parties (e.g. sub-contractors) carry out the performance for which it is responsible. The Seller shall bear the procurement risk for its services, unless otherwise agreed in individual cases (e.g. stock reserves).
(2) Deliveries shall be free of charge within Germany to the location indicated in the order. Where the place of destination is not specified and nothing else has been agreed, delivery shall be made to our business headquarters in Mailling, Schönau. The respective place of destination is also the place of performance for the delivery and any supplementary performance.
(3) A delivery note indicating the date (issue and dispatch), contents of the delivery (item number and quantity) and our purchase order identifiers (date and number) shall be attached to the delivery. Where the delivery note is missing or incomplete, we shall not be liable for the resultant delay in processing and payment. Upon our request, a corresponding shipping notice with the same contents shall be sent to us separately from the delivery note.
(4) The risk of accidental loss and accidental deterioration of the items transfers to us upon handover at the place of performance. If an acceptance procedure has been agreed, the point of acceptance shall be decisive for the passing of risk. In addition, statutory provisions of the law on contracts for services shall apply accordingly for acceptance. If we are in default of acceptance, this shall be considered the equivalent of handover or acceptance.
Article 5 Pricing and payment terms
(1) The price stipulated in the order is binding.
(2) Unless otherwise agreed in specific instances, the price includes all services and ancillary services provided by the Seller and all ancillary costs (e.g. appropriate packaging, transport costs, including any transport and liability insurance).
(3) The agreed price is due within 30 calendar days from completion of delivery and services (including, where applicable, agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller shall grant us a 3% discount on the net invoice amount. For bank transfers, timely payment is made if our transfer instruction is received by our bank prior to expiry of the payment period; we are not responsible for delays in the payment process of the banks involved.
(4) We shall not be liable to pay default interest. Statutory provisions apply for default of payment.
(5) Rights of set-off, rights of retention and the right to plead non-performance of the contract are available to us to the extent permitted by law. We are, in particular, entitled to retain payments due, so long as we are still entitled to make claims against the Seller arising from incomplete or defective services.
(6) The Seller has a right of set-o or a right of retention only as a result of counterclaims that have been legally established or are undisputed.
Article 6 Non-disclosure and retention of title
(1) We retain proprietary rights and copyright to images, plans, drawings, calculations, design instructions, product descriptions and other documentation. Such documentation is to be used exclusively for the contractual services and must be returned to us after completion of the contract. Documentation must not be disclosed to third parties, even after termination of the contract. The non-disclosure obligation ceases to apply only if and to the extent that the knowledge contained in the documentation provided is generally known.
(2) Assignment of the goods to us shall take place unconditionally and regardless of payment of the price. Where, however, in an individual instance, we accept an offer of assignment by the Seller that is conditional on payment of the purchase price, the Seller‘s retention of title ceases, at the latest, upon payment of the purchase price for the goods delivered. We remain entitled to sell on the goods in the normal course of business, including prior to payment of the purchase price, under advance assignment of the resulting claims (alternatively, there shall be a simple retention of title, extended to the resale). In any case, all other forms of retention of title are excluded, in particular, extended and assigned retention of title and retention of title prolonged by further processing.
Article 7 Defective delivery
(1) Unless otherwise stipulated, statutory provisions apply with regard to our rights in the event of material defects and defects in title in respect of the goods (including wrong delivery and shortfall in delivery and improper installation, defective installation / operating instructions or manual) and in the event of other breaches of duty by the Seller.
(2) According to statutory provisions, the Seller is, in particular, liable for the goods having the contractually- agreed properties upon transfer of risk to us. In any case, product descriptions which - in particular by means of designation or reference in our order - form the subject of the respective contract or are incorporated into the contract in the same way as these Conditions of Purchase, shall serve as the agreement in relation to the condition. It makes no difference whether the product description originated from us, the Seller or the manufacturer.
(3) By way of deviation from Article 442,1(2) German Civil Code, we are entitled to claims for defects without restriction even where the defect remained unknown to us upon conclusion of the contract as a result of gross negligence.
(4) For the commercial obligation of inspection and notification of defects, the statutory provisions (Articles 377 and 381 German Commercial Code) apply, subject to the following conditions: Our duty to inspect is limited to defects that are manifestly obvious at our incoming goods inspection upon external examination, including of the shipping documentation, and at our quality control by way of random sample test procedure (e.g. transport damage, wrong delivery and shortfall in delivery). Furthermore, the extent to which an examination is feasible in the normal course of business, having regard to the specific instance, is to be taken into account. Our duty to notify defects discovered later remains una ected. In all cases, our notification of defects shall be without delay and in good time if it is received within 10 working days by the Seller.
(5) Costs incurred by the Seller for the purposes of testing and supplementary performance shall be borne by the Seller, even where it transpires that no defect exists. Our liability for damages in the event of unjustified requests for rectification of defects remains una ected; but, in this respect, we are only liable if we recognized, or were grossly negligent in failing to recognize, that no defect existed.
(6) Where the Seller fails to fulfil its obligation of supplementary performance – at our discretion, by rectification of the defect (repair) or by delivery of a defect-free object (replacement delivery) – within an appropriate period set by us, we are entitled to rectify the defect ourselves and to require compensation for the expenses hereby incurred or a corresponding and appropriate advance payment from the Seller. Where supplementary performance by the Seller fails, or is unreasonable for us (e.g. because of particular urgency, risk to operational safety or to avert disproportionate damage), no deadline needs to be set; in such circumstances, we shall notify the Seller without delay, where possible, in advance.
(7) We are also entitled, in accordance with statutory provisions, to a reduction of the purchase price or to rescind the contract in the event of a material defect or defect of title. In addition, we are entitled to claim compensation for damages and reimbursement of expenses in line with statutory provisions.
Article 8 Product liability
(1) Where the Seller is responsible for a product defect, it must indemnify us for claims made by third parties insofar as the cause of the defect is within the scope of the Seller‘s control and organization and the Seller is liable to third parties.
(2) Under the auspices of its indemnity obligation, the Seller must reimburse expenses in accordance with Article 683, 670 German Civil Code, which result from or in connection with third-party claims including recall campaigns that we implement. To the extent possible and reasonable, we shall inform the Seller of the content and scope of recall measures and provide the latter with an opportunity to make observations. Further legal claims remain unaffected.
(3) The Seller must obtain and maintain product liability insurance with lump-sum coverage of at least 5 million euros for personal injury / damage to property. Upon request, the Seller must submit its insurance policy to us.
Article 9 Limitation period
(1) The reciprocal claims of the Contracting Parties shall become time-barred according to statutory provisions, unless otherwise stipulated.
(2) By way of deviation from Article 438(1) No. 3 German Civil Code, the general limitation period for claims based on defects shall be 3 years from transfer of risk. Where acceptance is agreed, the limitation period begins with acceptance.
Article 10 Applicable law and place of jurisdiction
(1) For these Conditions of Purchase and the contractual relationship between ourselves and the Seller, the law of the Federal Republic of Germany applies to the exclusion of uniform international law, in particular, UN sales law.
(2) If the Seller is a merchant as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – and international – place of jurisdiction for all disputes arising from the contractual relationship shall be our business headquarters in Mailling, Schönau. The same applies if the Purchaser is an entrepreneur as defined by Article 14 German Civil Code. However, in all cases, we are entitled to initiate legal action at the place of performance of the obligation to deliver in accordance with these Conditions of Purchase or prior individual agreement or at the general place of jurisdiction of the Seller. Statutory regulations of prime importance, in particular, those with respect to exclusive jurisdiction, shall remain unaffected.
Article 1 General
(1) The company, Frischpack GmbH (“Frischpack”) and the Customer agree that these General Terms and Conditions shall apply exclusively for all contracts concluded between the Contracting Parties. Deviating, contrary or supplementary General Terms and Conditions of the Customer shall not become a component of the contract, even where Frischpack provides deliveries/services without reservation in the knowledge of such Terms and Conditions.
(2) These General Terms and Conditions shall apply to customers, legal entities under public law and special funds under public law within the meaning of Article 310, 1 German Civil Code. A Customer is a natural or legal person or a partnership with legal capacity which, when entering into a legal transaction, acts in exercise of his/ her/its trade, business or profession (Article 14, 1 German Civil Code).
Article 2 Offer, contract conclusion, characteristics
(1) Offers by Frischpack are non-binding. All details pertaining to an o er are subject to customary commercial deviations, unless such details have been expressly indicated to be binding.
(2) Ancillary agreements and amendments to the contractual agreement require written con rmation by Frischpack.
(3) The right to modify the delivery items remains reserved, insofar as the delivery item/object of delivery is not signi cantly altered and the modi cations are reasonable for the Customer.
(4) Contract conclusion is subject to us receiving correct and timely deliveries from our suppliers. This applies only where Frischpack is not responsible for the non-delivery, in particular, in cases where there is a congruent covering order with the supplier. The Customer shall be informed of the unavailability of goods/services immediately. The consideration is to be refunded immediately.
(5) The assumption of a procurement risk or procurement guarantee means that Frischpack is only obliged to deliver an item of the defined type.
Article 3 Pricing and payment
(1) Prices shall apply, unless otherwise agreed, ex works from Frischpack. The prices are net prices, statutory VAT is additional.
(2) A discount deduction is granted only where agreed in writing. For partial payments, discount deduction is only possible where all discount periods are adhered to. For discount deduction, receipt of the invoice amount in the Frischpack account is decisive. Discounts are only granted in cases where the Customer is not in arrears with payment for other deliveries.
(3) The Customer undertakes to pay the purchase price within 14 calendar days, calculated from the date of contract conclusion, or, where this is not applicable, the date of invoicing. Upon expiry of this period, the Customer is in default of payment.
(4) The Customer only has a right of set-off where its counterclaims relating to liability for material defects within the contractual relationship are undisputed or, where disputed, have been legally established, or – in the event of a legal dispute – are disputed but ready for decision.
Article 4 Delivery periods and delay
(1) The delivery/performance period is adhered to, where the delivery item/object of delivery has left the Frischpack warehouse or the Customer has been notified of its readiness for dispatch/completion prior to expiry of the period.
(2) For industrial disputes and where unforeseen obstacles arise, which lie outside Frischpack’s scope of influence, the delivery/performance period shall be extended appropriately. This shall also apply, if the obstacles arise during an already existing delay. Frischpack shall inform the Customer immediately of the delivery delay that has arisen and its anticipated duration.
(3) Where dispatch/performance is delayed owing to circumstances for which the Customer is responsible,
Frischpack is entitled, after expiry of any extension period granted, to dispose of the delivery item otherwise and to supply the item to the Customer after an appropriate extension to the period, Frischpack’s legal rights shall remain una ected.
(4) Frischpack can require from the Customer an extension of the delivery/performance period or postponement of the delivery/performance deadline by the period during which the Customer fails to meet its contractual obligations towards the Seller.
(5) Where there is default of performance within the meaning of this provision and the Customer grants Frischpack an appropriate grace period with the threat of rescission and where this grace period is not complied with, the Customer shall be entitled to rescission.
Article 5 Place of performance, dispatch, packaging, transfer of risk
(1) The place of performance for all obligations under this contractual relationship is Mailling, Schönau, unless otherwise agreed.
(2) The shipping method and packaging are at the discretion of Frischpack.
(3) Risk transfers, at the latest, upon handover of the delivery item to the forwarding agent, carrier or other third party contracted to carry out shipment. This also applies where we make partial deliveries. Where dispatch or handover is delayed due to circumstances whose cause lies with the Customer, risk transfers to the Customer on the date on which the delivery item is ready for shipping and Frischpack notifies the Customer of the same.
Article 6 Receipt / acceptance of the delivery item / object of delivery
(1) Partial deliveries are permissible, insofar as they are reasonable.
(2) Insofar as foodstuffs belonging to the Customer are being provided to Frischpack for further processing, in particular, for portioning, packaging and labelling, the Customer undertakes to accept the services performed.
(3) Article 377 German Commercial Code (obligation of inspection and noti cation of defects) also applies, if Frischpack processes goods belonging to the Customer, which the latter temporarily gives to Frischpack for processing and packaging against payment. Services provided by Frischpack are considered to be accepted, if the Customer fails to inspect the services from Frischpack immediately upon delivery and has notified Frischpack of a defect discovered without delay and in writing.
Article 7 Retention of title
(1) Frischpack retains title to all delivery items until complete payment of all claims under its commercial relationship with the Customer. In the case of a current account, the complete reserved goods serve to secure the claim to the balance. Where the estimated value of the goods subject to retention of title held as security for Frischpack exceeds the unsettled claims of the Customer by more than 50%, Frischpack is entitled to release securities of its choice to this extent upon request of the Customer.
(2) The Customer may neither pledge delivery items from Frischpack nor assign them as security. In the case of pledging, seizure or other action of constraint taken by a third party, the Customer must inform Frischpack immediately.
(3) Where the Customer acts in breach of contract, in particular, in the event of default in payment, Frischpack is entitled to take back the delivered goods after a warning and the Customer is obliged to hand these over.
(4) Where the Customer is a retailer, retention of title pursuant to Article 7, 1 also applies. The Customer is, however, entitled to sell on the goods to third parties in the ordinary course of business; it shall, however, assign to Frischpack all claims and rights which accrue to it from the resale, in the sum of the amount invoiced by Frischpack including VAT plus a security surcharge of 10%, regardless of whether the delivery items are resold. Frischpack shall accept such assignment. After assignment, the Customer is empowered to collect the receivables. Frischpack’s power to collect the receivables itself remains una ected thereby; however, Frischpack undertakes not to collect the receivables so long as the Customer meets its payment obligations and is not in default of payment.
Article 8 Material defects
(1) It is a precondition of claims for defects - insofar as such claims are not those for which liability is excluded pursuant to Article 7, 6 - that the delivery item is inspected immediately after delivery for obvious defects and that any defects detected are noti ed to Frischpack in writing (including by email) immediately and within 2 working days of their discovery. Defects that are not obvious must also be noti ed within an appropriate period from discovery. Timely dispatch of notification suffces to comply with the deadline.
(2) Written notification of defects is also required, where Frischpack has portioned and packaged the Customer’s goods.
(3) Subject to the condition that noti cation of defects is effected properly, all parts of the delivery, which exhibit a material defect owing to any circumstance prior to transfer of risk, are to be rectified or newly delivered by Frischpack, at Frischpack’s discretion, for no charge. Where the agreed remuneration is unpaid, in whole or in part, Frischpack may make the supplementary performance conditional on the Customer making part-payment – taking into consideration the defect asserted.
(4) Supplementary performance only covers those parts of the delivery, which exhibit defects or parts damaged due to the defect despite proper handling. Besides directly defective goods, that is, goods identified as defective, i.e. somehow spoiled, goods, the Customer is only entitled to declare and treat as defective other goods suspected of being defective, if Frischpack is first notified of the type and scope of the defect ascertained and has declared its agreement in this respect.
(5) The Customer is, additionally, entitled, owing to a defect in the item purchased or in the services, at its discretion, to reduce the remuneration or to withdraw from the contract, where Frischpack seriously and nally refuses supplementary performance or where the type of supplementary performance chosen by Frischpack is unsuccessful or unreasonable for the Customer or where the Customer has provided Frischpack with an appropriate period for supplementary performance and this has expired.
(6) Where a defect is due to fault on the part of Frischpack, the Customer can require damages under the specific conditions set out at Article 9.
Article 9 Liability for damages due to fault
(1) The liability of Frischpack for damages shall be limited, on any legal grounds, in particular, for impossibility, delay, defective or erroneous delivery, breach of contract, breach of obligations in contract negotiations and liability in tort, insofar as there is fault in accordance with this Article 9.
(2) Frischpack shall not be liable in the event of simple negligence by its institutions, legal representatives, employees or other vicarious agents, insofar as there is no breach of fundamental contractual obligations. Fundamental contractual obligations are those of timely delivery of the delivery item, its freedom from defects of title, and material defects, which impair its functional capability and serviceability to a signi cant extent, and advisory, protective and custodial obligations which are considered to enable the Customer to use the object of delivery in conformity with the contract or obligations or protecting the life or limb of the Customer‘s personnel or which are intended to protect the Customer‘s property from significant damage.
(3) Insofar as Frischpack is liable to pay damages, its liability is limited to damages which Frischpack foresaw upon conclusion of the contract as a possible consequence of a breach of contractual obligations, or which it should have foreseen in applying due care Indirect damages and consequential damages, which are the consequence of defects in the delivery items are, furthermore, only eligible for compensation insofar as such damages are typically to be expected when the delivery item is used in accordance with its intended purpose.
(4) In the case of liability for simple negligence, Frischpack’s obligation to compensate for material damage and resultant further nancial losses is limited to an amount of 20,000.000 per case of damage (corresponding to the current cover amount of its product liability insurance or general liability insurance), including where there is a breach of fundamental contractual obligations.
(5) The exclusions and limitations of liability set out above shall apply to the same extent for Frischpack’s institutions, legal representatives, employees or other vicarious agents.
(6) To the extent that Frischpack acts in an advisory capacity and its advice does not fall within the scope of the agreed contractual services owed by it (see Article 9,2), this is provided for no charge and under exclusion of all liability.
(7) The restrictions of this Article 9 shall not apply for Frischpack’s liability due to gross negligence, for guaranteed characteristics, in relation to injury to life, limb or health or under German product liability law.
Article 10 Place of jurisdiction/place of performance
(1) The law of the Federal Republic of Germany applies. The provisions of UN sales law shall not apply.
(2) Where the Customer is a merchant, a legal entity under public law or special fund under public law, the exclusive place of performance for all obligations under this contract shall be the business headquarters of Frischpack, Mailling, Schönau.
(3) Insofar as the Customer is a merchant, a legal entity under public law or special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be our business headquarters, Mailling, Schönau. The same applies, if the Customer has no general place of jurisdiction in Germany or its habitual residence is unknown on the date that the claim is initiated. Frischpack can, at its discretion, also initiate legal action at the Customer’s general place of jurisdiction or at the location of the delivered items.
(4) Where individual provisions of the contract with the Customer, including these General Terms and Conditions, are or become ine ective, in whole or in part, the validity of the remaining provisions shall not be affected thereby. The wholly or partially ine ective provision should be replaced by a provision whose economic effect comes as close as possible to that of the ineffective provision.