Article 1 General terms

(1) These general terms and conditions of purchase (“GT&Cs”) apply for all business relations with our business partners and suppliers (“Sellers”). The GT&Cs only apply if the Seller is an entrepreneur (paragraph 14 of the German Civil Code (BGB)), a legal entity governed by public law or a special fund under public law.

(2) The GT&Cs apply in particular to contracts for the sale and/or delivery of moveable items (“goods”), regardless of whether the Seller produces the goods themselves or purchases them from suppliers (paragraphs 433, 651 of the German Civil Code (BGB)). Unless otherwise agreed, the GT&Cs in the version valid at the time of the Buyer’s order, or at least in the version most recently communicated in text form, also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.

(3) These GT&Cs apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Seller shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This requirement of consent applies in all cases, for example even if we accept, unconditionally, the Seller’s deliveries despite knowledge of their general terms and conditions.

(4) Individual agreements made with the Seller on a case-by-case basis (including side agreements, additions and amendments) always take precedence over these GT&Cs. A written contract or our written confirmation shall dictate the content of such agreements, subject to proof to the contrary.

(5) Legally relevant declarations and notifications that are to be submitted to us by the Seller after conclusion of contract (e.g. setting of deadlines, reminders, declaration of rescission) must be made in written form to be valid. E-mail communication is sufficient to comply with the written form.

(6) Any references to the applicability of statutory regulations are solely for clarification purposes. Even without such clarification, statutory regulations apply unless they are directly changed in or expressly excluded from these GT&Cs.

Article 2 Conclusion of contract

(1) Our order is considered binding at the earliest when it is submitted in writing (e-mail form is sufficient) or with written confirmation. Before acceptance, the Seller must inform us of obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including order documents for the purpose of correction and/or completion, otherwise the contract is deemed to be non-concluded. In particular in the context of long-term supply relations, the parties can mutually deviate from the contract conclusion procedure described above and, for example, conclude a contract by telephone.

(2) The Seller is required to confirm our order in writing within a time period of three days or specifically to execute it without reservation by dispatching the goods (acceptance). Delayed acceptance is deemed a new quotation and requires acceptance by us.

Article 3 Delivery period and delivery default

(1) The delivery period specified by us in the order is binding. If the delivery period is not specified in the order nor otherwise agreed upon, a delivery period of seven days after contract conclusion applies. If the Seller expects that they cannot meet the agreed delivery period, for whatever reason, they are required to inform us of this in writing without delay.

(2) If the Seller does not provide their service at all or within the agreed delivery time, or if they are in default, our rights – in particular regarding rescission and compensation – are determined in accordance with statutory regulations. The regulations in paragraph 3 remain unaffected.

(3) If the Seller is in default, we are entitled – in addition to further statutory claims – to demand flatrate compensation for our default damages to the amount of 1% of the net price per completed calendar week, however, not exceeding a total of 5 % of the net price of the delayed delivered goods. We reserve the right to prove that higher damages have been incurred. The Seller reserves the right to prove that no damages or only significantly lower damages have been incurred.

Article 4 Performance, delivery, transfer of risk, default of acceptance

(1) Without our prior written consent, the Seller is not permitted to have third parties (e.g. subcontractors) render services owed for which they are responsible. The Seller bears the risk of procurement for their services unless otherwise agreed on a case-by-case basis (e.g. stock reserves).

(2) Delivery in Germany is free of charge to the location specified in the order. If the delivery location is not specified and no further agreement has been made, delivery shall be made to our place of bu siness. The specified location is also the place of performance and any subsequent performance for the delivery (obligation to perform at the creditor’s domicile).

(3) The delivery shall be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (article number and quantity), as well as our purchase order identifier (date and number). If the delivery note is missing or incomplete, we shall not be held responsible for any resulting delays in processing and payment. Upon request, a corresponding dispatch note with the same content shall be sent to us separately from the delivery note.

(4) The risk of accidental loss and accidental deterioration of the items is transferred to us upon handover at the plac  of performance. If acceptance has been agreed, then the point of transfer is equal to the transfer of risk. In addition, the statutory regulations of the laws applicable to works and services also apply accordingly for acceptance. If we are in default of acceptance, the handover and/or acceptance are deemed to have taken place.

Article 5 Prices and terms of payment

(1) The price quoted in the order is binding.

(2) Unless otherwise agreed on a case-by-case basis, the price includes all services and ancillary services of the Seller as well as all ancillary costs (e.g. proper packaging and transport costs including any possible transport and liability insurance).

(3) The receipt of a proper invoice as well as payment for the agreed price are due within 30 calendar days from the date of complete delivery and service (including an acceptance of performance that may have been agreed). If we make payment within 14 calendar days, the Seller shall grant us a discount of 3 % of the net invoice amount.

(4) Statutory regulations apply in the case of payment default.

(5) We are entitled to offsetting and retention rights, as well as a plea of non-performance of the contract to a statutory extent. In particular, we are entitled to withhold due payments as long as we are still entitled to claims against the Seller for incomplete or inadequate services.

(6) The Seller has a right to the offset or retention of counterclaims that have been established as final and absolute or are legally undisputed.

Article 6 Non-disclosure and reservation of title

(1) We reserve property rights and copyrights to illustrations/images, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents are to be used exclusively for the contractual service and are to be returned to us after the completion of the contract. Documents shall not be disclosed to third parties during the contract period or after termination thereof. The non-disclosure obligation only expires if and to the extent the confidential information becomes general knowledge.

(2) The ownership of the goods shall be transferred unconditionally and regardless of payment of the amount due. However, if we accept an offer of transfer which is subject to payment of the purchase price on a case-bycase basis, the Seller’s reservation of ownership shall expire at the latest upon payment of the purchase price of the goods delivered. In the ordinary course of business, and even before the purchase price is paid, we remain authorised to resell the goods with advanced transfer of any resulting claims (alternatively, application of a simple reservation of title, extended to the resale). In any case, all other forms of reservation of title are excluded, in particular extended, assigned, and prolonged reservation of title for further processing.

Article 7 Defective delivery

(1) Unless otherwise specified hereinafter, the statutory regulations apply regarding our rights in the event of material defects and defects in title of the goods (including incorrect delivery and short delivery as well as incorrect assembly, inadequate assembly instructions, operating instructions or manual) and in case of other breeches of duty by the Seller.

(2) In accordance with statutory regulations, the Seller is in particular liable for ensuring that the goods have the agreed composition (quality) at the time of the transfer of risk to us. In any case, those product descriptions which, in particular, by designation or reference in our order, are the subject of the respective contract or are incorporated in the contract in the same way as these GT&Cs, are valid as an agreement of the composition of the goods. It makes no difference whether the product description was supplied by us, by the Seller or by the manufacturer.

(3) Notwithstanding paragraph 442, section 1, page 2 of the BGB (German Civil Code), we are entitled to unrestricted claims even if the defect remained unknown to us onconclusion of contract as a result of gross negligence.

(4) For the commercial obligation of inspection and defects notification, the statutory regulations (paragraphs 377, 381 German Commercial Code) apply subject to thefollowing provisions: Our duty to inspect is limited to defects which are revealed in our incoming-goods inspection upon external examination of the goods including examination of the delivery papers and our quality control performed with random sample tests (e.g. transport damage, incorrect or short deliveries). Furthermore, it depends on the extent to which examination is feasible according to proper business procedures, taking into account the circumstances of the particular case. Our obligation to give notice of defects discovered at a later point in time remains unaffected. In all cases, our objection (notification of defects) is deemed prompt and timely if the complaint isreceived by the Seller within 10 working days.

(5) Costs incurred by the Seller for the purpose of inspection and subsequent performance are also borne by the Seller even if it transpires that there was actually no defect. Our liability to pay damages in the case of unjustified demands concerning rectification of defects remains unaffected. However, we are only liable if we already recognized or were grossly negligent in failing to recognize that no defect existed.

(6) In the event that the Seller fails to honour their obligation for supplementary performance – subject to our discretion of remedying the defect (subsequent improvement) or by delivery of an item free of defects (replacement delivery) – within an appropriate time limit set by us, we shall be entitled to remedy the defect ourselves and demand compensation from the Seller for the expenses hereby incurred, or a corresponding and appropriate advance payment. If the subsequent performance by the Seller fails or isunacceptable to us (e.g. on account of particular urgency, operational safety risks or imminent risk of disproportionate damage), a deadline will not be set. We will inform the Seller of such circumstances immediately and if at all possible, in advance.

(7) In the case of material defects and defects of title, we are entitled to a reduction in the purchase price or to rescind the contract in accordance with statutory regulations. Furthermore, we reserve the right to claims for damages and for reimbursement of expenses in accordance with statutory regulations.

Article 8 Manufacturer’s liability

(1) Where the Seller is liable for product damage, they are obligated to indemnify us in this respect from thirdparty claims, if the reasons for such claims fall within the Seller’s scope of control and organisational sphere and they are themselves liable with respect to outside parties.

(2) Within the scope of the Seller’s obligation to indemnify, they shall reimburse any expenses pursuant to paragraphs 683, 670 of the German Civil Code (BGB) that arise out of or in connection with any recourse taken by third parties including for any product recalls carried out by us. We shall inform the Seller of the scope and content of the recall measures to be performed, as far as is possible and can reasonably be expected, and allow them the opportunity to respond. Further legal claims remain unaffected.

(3) The Seller shall obtain and maintain product liability insurance with a flatrate minimum coverage total of EUR 5 million per case of personal injury/property damage. Upon request, the Seller shall present evidence ofthe insurance policy.

Article 9 Limitation period

(1) The mutual claims of the contractual parties fall under the statute of limitations in accordance with statutory regulations, unless otherwise stipulated.

(2) Notwithstanding paragraph 438, section 1, no. 3 of the German Civil Code (BGB), the general limitation period for claims based on defects is three years from transfer of risk. If acceptance has been agreed, the limitation period begins with the acceptance.

Article 10 Applicable law and place of jurisdiction

(1) These GT&Cs and all legal relations between us and the Seller are governed by the law of the Federal Republic of Germany with the exclusion of international uniform law, in particular the UN Sales Convention.

(2) If the Seller is a merchant as defined in the German Commercial Code (HGB), a legal entity under public law or a special fund subject to public law, the sole court of jurisdiction – including international – for all disputes arising out of or in connection with the contractual relationship is the location of our place of business. This also applies if the Seller is an entrepreneur as defined by paragraph 14 of the German Civil Code (BGB). We are entitled in all cases, however, to take legal action at the place of general jurisdiction of the Seller or at the place of performance of the obligation to deliver in accordance with these GT&Cs and/or with a specified prior agreement. Overriding statutory regulations, in particular those regarding jurisdiction, remain unaffected.

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Article 1 General terms

(1) These general terms of sale and delivery (GTSD) apply to all business relations with our Clients. The GTSD apply only to entrepreneurs, legal entities under public law or special funds under public law in accordance with paragraph 310, section 1 of the German Civil Code (BGB). An entrepreneur is defined as a natural or legal person or partnership having legal capacity that acts in the performance of a commercial or self-employed occupational activity (paragraph 14 section 1 of the German Civil Code, BGB).

(2) Unless otherwise agreed, the GTSDs in the version valid at the time of the order placed by the Client, or at least in the version most recently communicated in text form, shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.

(3) These GTSDs apply exclusively. Supplementary or deviating Client terms shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. An unconditional execution of delivery despite knowledge of the Client’s GTSD does not constitute consent.

(4) These terms of sale and delivery are regarded as accepted no later than on receipt of our supplies and services.

Article 2 Quotations, conclusion of contract, composition

(1) Our quotations are always non-binding and subject to change. The order of goods by the Client is deemed a binding offer to enter into a contract. Acceptance of the quotation is either confirmed in writing or through the immediate execution of the order.

(2) Side agreements and amendments made to this contractual agreement only take effect once confirmed by us in writing.

(3) We reserve the right to make modifications to the scope of supply, insofar as our scope of supply/scope of services is not substantially altered and the modifications are reasonable to the Client. In particular, commercially customary deviations to the goods supplied shall be deemed to be reasonable modifications.

(4) The agreed composition of our goods is limited exclusively to the properties and features specified on the product packaging and in our order confirmation. Other or further characteristics or features shall be deemed valid only if they are expressly confirmed by us in writing.

(5) Conclusion of contract is subject to the correct and timely delivery by the supplier. This applies to cases where we are not responsible for failure to deliver, especially if a congruent substitution transaction is concluded with the supplier. The Client shall be informed immediately should any service not be available and reimbursed without delay.

(6) A procurement guarantee or procurement risk is not already accepted through our obligation to deliver an item which is only defined by its type.

Article 3 Prices and terms of payment

(1) Unless otherwise agreed, the prices apply ex-works. Prices are quoted on a net basis, excluding the current applicable rate of value added tax (VAT).

(2) Discount deductions are only permissible when agreed in writing. In the case of payment instalments, discounts are only possible if all discount periods are observed. The date the invoiced amount is paid into our company account shall dictate whether or not a discount deduction is valid. Discounts are only granted in the event that the Client is not in default of payment for other deliveries.

(3) The Client is obligated to pay the purchase price within 14 calendar days from the date of conclusion of contract, or if this is not available, from the date of invoicing. Upon expiry of this period, the Client shall be in default of payment.

(4) Payments from employees and commission agents of the Seller may only be effectively accepted if they can present valid collection authorisation.

(5) In case of delayed payment, we may demand interest at a rate of 9 percent points above the base lending rate, subject to assertion of higher damages caused by delayed performance.

(6) The Client can only offset payments due against uncontested or final and legally valid claims.

(7) The offset of claims against us requires our consent.

Article 4 Delivery periods and delay

(1) In the absence of the Seller’s explicit consent or that of their authorized representative, all delivery periods are deemed to be approximate. Delivery and service dates are only binding if we have expressly confirmed these as such. Delivery dates refer to dispatch ex-works.

(2) The delivery and service period is extended – even in the case of default – in the event of force majeure, strike, lock-out, intervention by national and international authorities, as well as in the case of all unforeseen obstacles arising after conclusion of contract and for which we are not responsible. This also applies if such circumstances affect our suppliers and their sub-suppliers.

(3) If a delivery or service is delayed due to circumstances that the Client is responsible for, following expiry of a period of grace for performance without result, we are entitled to use the delivery item elsewhere and to deliver new goods/services to the Client within a reasonable amount of time. Our legal rights remain unaffected.

(4) The Seller can demand an extension of delivery/service deadlines or a postponement of delivery/service dates for a period of time equivalent to that for which the Client fails to fulfil their contractual obligations to the Seller.

(5) The Seller is not liable, under any circumstance, in the case of impossibility of performance of services due to negligence of subsuppliers. However, the Seller is obliged in such a case to transfer possible compensation claims against their subsupplier to the Client.

(6) The Client’s right to rescind the contract following expiry of a grace period for performance without result remains unaffected.

(7) The purchased goods are to be accepted within the agreed delivery period without the need to set a grace period. If there is a delay in acceptance by the Client, the Selleris entitled to deliver the goods and to charge the agreed price or to rescind the contract. The Seller is only bound to the agreed price for the agreed delivery period: if the current price at the time of a delayed delivery is higher, then this rate shall apply.

(8) Reasonable partial deliveries shall be accepted by the Client.

(9) The return of delivered goods is only permitted if explicitly agreed with the Seller. If, however, goods are returned, the return alone is not deemed as acknowledgement that a credit note is to be granted, even if the receipt of the goods has been acknowledged. The burden of proof regarding any nonconformities of the goods is the responsibility of the Client.

Article 5 Place of performance, dispatch, packaging, transfer of risk

(1) The place of performance for all obligations arising from the contractual agreement is our place of business, unless otherwise specified.

(2) The mode of dispatch and packaging are subject to the dutiful discretion of the Seller. Unless otherwise expressly agreed between the Seller and the Client, sales, transport or secondary packaging may only be returned if mandatory legal regulations require it. Furthermore, it is also not applicable in the event of an officially recognized dual system for waste disposal in which the manufacturer and/or distributor of the goods are involved.

(3) The risk of accidental loss and accidental deterioration of the goods is transferred as soon as the they have been handed over to the Client. In the event of sales involving the carriage of goods, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, are already transferred when the goods are handed over to the forwarder, the carrier or the persons or institutions otherwise designated to carry out the dispatch. This also applies for partial deliveries.

(4) If dispatch is delayed at the request or through a fault of the Client, the goods shall be stored at the Client’s expense and risk. In this case, the announcement that the goods are ready for dispatch is deemed as equivalent to dispatch.

Article 6 Acceptance when processing items owned by the Client

(1) If food products owned by the Client are handed over to us for processing, in particular for processing into portions, packaging and labelling, the Client has an obligation to accept the service.

(2) Paragraph 377 of the HGB (German Commercial Code) also applies if we process the Client’s property, which has been handed over to us for processing and packaging for a period of time, in return for payment. If the Client does not immediately inspect the delivered service and inform us of any discovered flaws in writing and without delay, the work or service shall be deemed accepted.

Article 7 Reservation of title

(1) The Seller reserves the right of ownership for all delivered goods until all outstanding bills owed to the Seller and arising from the scope of business with the Client have been paid in full. For current invoices, the entire reserved goods serve as collateral for the balance claim. If the estimated value of the goods subject to reservation of title serving as security for the Seller exceeds unsettled claims to the Client by more than 50 %, the Seller is obliged to release securities of their choice at the Client’s request.

(2) The Client may neither pledge nor assign the delivered goods as security. The Client shall immediately notify the Seller in the case of seizure, confiscation or any other dispositions by third parties.

(3) In the event of a breach of contract by the Client, in particular in default of due payment, the Seller is entitled to reclaim the delivered goods following notice and the Client is obliged to issue them.

(4) If the Client is a reseller, then reservation of title according to paragraph 7 section 1 also applies. The Client is entitled to sell on the goods to third parties in the ordinary course of business; however, they shall immediately transfer to the Seller all claims and rights accrued from the resale, up to the Seller’s invoice amounts and includingvalue added tax (VAT) plus a security surcharge of 10 %, regardless of how the delivered goods are resold. The Seller shall accept this transfer of claims and rights. The Client is authorised to collect accounts receivable following the transfer. The Seller’s authorisation to collect accounts receivable themselves remains unaffected by this. However, the Seller is obliged not to lay claim to accounts receivable for as long as the Client is not in default of payment and meets their payment obligations.

Article 8 Claims for defects

(1) Claims for defects shall only be considered if delivered goods were inspected upon delivery and a notice of defects was submitted to the Seller in written form (including by email) without delay. In any case, a notification of obvious defects must be provided within two business days following delivery. Defects that are not obvious must also be reported in writing within a reasonable period of time of being discovered. The timely submission of notification is deemed sufficient to comply with the deadline.

(2) Written notification of defects is also required if we have already portioned and packaged the Client’s goods.

(3) Goods that are subject to a complaint must be stored and handled properly. Opened boxes and whole cheeses that have been cut into etc. are not returnable. For qualityinspection, samples of semi-soft cheese may only be taken by drilling a hole, not by cutting into the whole cheese.

(4) If goods are to be delivered directly to the Client’s purchaser, the Client is responsible for compliance with the provisions of the previous two sections.

(5) Provided that notification of defects has been properly made and is verifiable as the result of circumstances originating before the transfer of risk, all affected parts of the delivery are to be remedied or replaced free of charge at the reasonable discretion of the Seller. In the event that the agreed compensation has not been paid or only partially paid, the Seller can make subsequent performance contingent on the Client paying a reasonable part of the compensation, taking into account the claimed defect.

(6) Subsequent performance applies only to those parts of the service where the defect exists or those parts that have inevitably been damaged by the defect despite proper handling. In addition to goods that have been identified directly, i. e. actually identified as defective, and possibly spoiled, the Client is only entitled to declare other goods as defective on suspicion and to treat them accordingly if we have been informed beforehand of the type and scope of the detected defect and insofar as we have declared our consent in writing.

(7) Furthermore, the Client is only entitled to reduce the amount due or to rescind the contract due to defective purchased items or services in accordance with paragraph 8 (5) if the Seller seriously and definitely refuses subsequent performance or if the Seller’s chosen type of subsequent performance has failed or is unreasonable for the Client, or if the Client has set an appropriate time limit for the Seller to fulfil subsequent performance without result and which has not been met or if setting such a time limit is unnecessary according to statutory regulations. However, there is no right to rescind the contract if the defect is negligible.

(8) If the defect is caused due to a fault on the part of the Seller, the Client has the right to request payment of damages subject to the prerequisites provided for in paragraph 9 below.

Article 9 Liability for damages in case of fault

(1) The Seller’s liability for damages, regardless of the legal grounds, in particular due to impossibility, delay, or the supply of defective or incorrect delivery, breach of contract, breach of obligations in contract negotiation and unlawful acts is, as far as such liability depends on proof of fault, limited in accordance with this paragraph 9.

(2) The Seller is not liable in the event of simple negligence by their governing bodies, legal representatives, employees or other vicarious agents to the extent that this does not concern a violation of obligations contained in the contract. Essential contractual duties include the obligation to a timely delivery of the delivery item, which is free from defects of title and material that would more than significantly affect its value or usability.

(3) To the extent that the Seller is liable for damages, this liability is limited to damages that the Seller foresaw at the time of conclusion of contract as a possible consequence of breach of contract or which they should have foreseen if due care had been exercised. Indirect loss and consequential damage resulting from defects in the delivered items are only subject to compensation if such damage may be typically expected when using the item supplied as stipulated.

(4) In the event of liability for simple negligence, our obligation to make compensation for property damage and any resulting financial loss is limited to the amount of EUR 20 million per claim (corresponding to the current coverage sum of our product liability insurance or general liability insurance), even if the claim is a result of infringement of obligations essential to the contract.

(5) The aforementioned exclusions and limitations of liability apply to the same extent for the Seller’s governing bodies, legal representatives, employees and other agents.

(6) If we perform in an advisory capacity, and this advice is not included in the contractually agreed scope of services owed by us (see paragraph 9 section 2), this is performed free of charge and with the exclusion of any liability.

(7) The liability limitations of this paragraph 9 do not apply to the liability of the seller for any wilful or gross negligent breach of duty as well as for damage ensuing from injury to life, limb or health. Liability for guaranteed characteristics of state and liability under the Liability Product Act also remain unaffected.

Article 10 Food law regulations

(1) The Seller is deemed a replacement manufacturer for imported goods from non-EU countries. For goods from European Union countries (EU internal market), the Seller is responsible for complying with provisions within the framework of the common food law regulations of Germany and the European Union.

(2) The Client has an obligation to immediately inform the Seller of any and all complaints made by official inspection agencies regarding the imported delivered goods. If samples are taken by government agencies, a cross-check sample shall be ensured and properly stored for the Seller. The Seller shall be immediately informed thereof or the sample shall be handed over without delay.

(3) Regardless of the Seller’s and/or the Client’s obligations to report, it is necessary to determine whether an obligation to recall the goods in accordance with the European Union regulation 178/2002 of the German Equipment and Product Safety Act (GPSG) and/or where applicable, other relevant legal regulations exists to ensure consumer safety. The Seller and Client carry this responsibility as distributors.

(4) If both contractual partners have a hygiene plan (HACCP), compatibility of the plans must be specifically coordinated and agreed upon.

Article 11 Applicable law, jurisdiction and partial nullity

(1) The laws of the Federal Republic of Germany apply. The terms of the UN Convention on Contracts for the International Sale of Goods are not applicable.

(2) If the Client is a merchant, a legal entity under public law or a special fund under public law, the only court of jurisdiction for all litigation arising from this contract is the Seller’s place of business. The same applies if the Client has no general court of jurisdiction in Germany or their residence, or a place of permanent address is not known at the time of commencement of the legal proceedings. The Seller may also choose to bring charges at the Client’s general court of jurisdiction of or at the jurisdiction where the delivered items are located.

(3) Should individual provisions of the contract with the Client, including these General Terms and Conditions, be or become fully or partially ineffective, the validity of the remaining provisions remains unaffected.

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