General Delivery and Payment Terms and Conditions of
MOGUNTIA FOOD GROUP AG
Version as of: 1st April 2018
1. Scope of application and general terms
1.1 These deliveries and payments terms and conditions retain their exclusive validity unless changed on the basis of explicit agreement in writing by and between the parties, or unless the individual provisions are contested in writing by the Buyer. The offer (Section 145 of the German Federal Civil Code), acceptance of offer, order confirmation or sale of any and all products are subject to these terms and conditions. Any terms and conditions or provisions amending the contract proposed by the Buyer (also referred to as the „Customer“) are null and void and shall bind the Seller (also referred to as the „Supplier“) only if the respective amendment is approved in writing by the Seller. These terms and conditions form the basis for any future individual businesses between the Buyer and the Seller and are exclusive of any other agreements. Acceptance of delivered products is taken as an evidence of adherence to our delivery and payment terms and conditions. Any erroneously entered mistakes in our sales promotion materials, price lists, quotation documents or any other documentation of the Seller may be corrected by the Seller without any liability on the part of the Seller for eventual damages due to these mistakes. These general sales terms and conditions apply exclusively for companies.
1.2 The orders submitted by the Buyer shall be considered as accepted by the Seller only if the Seller or its representative confirms them in writing. The quantity, quality and description as well as any specification of the products are subject to the offer from the Seller (provided its acceptance by the Buyer), or subject to the order from the Buyer (provided its acceptance by the Seller). All sales documentation, specifications and price lists are to be treated as strictly confidential and must not be made accessible to any third parties. The Customer bears full responsibility for the accuracy of the order and is obliged to provide the Seller with any and all necessary information concerning the ordered products within a reasonable period so that the order may be executed in accordance with the contract. If the Seller has to produce or process products subject to specification supplied by the Buyer, then the Buyer shall hold the Seller harmless of any losses, damages, costs, or other expenditures, and shall reimburse respective losses, damages, costs or other expenditures, if the relevant specification of the Buyer for production or processing of the respective product proves to be in breach of the patent, copyright, trademark or other protected right of any third party. The Seller reserves the right to change the specification of the product if these changes are necessitated by legal provisions, as long as the respective changes do not have any negative effect on the order from the point of view of quality and usability. The use of the delivered merchandise is subject to observation of eventual property rights of the third parties.
1.3 The Seller asserts to purchase raw materials due to his production from suppliers which has been certified according to GFSI principles but also suppliers without having such certification.
2.1 The Seller shall deliver the products in sales packaging. The taking back of the packaging is subject to special agreements (see 2.4).
2.2 The Seller may suspend its deliveries as long as the Buyer is late as regards fulfilment of its obligations.
2.3 The products shall be delivered in the business premises of the Seller any time after the Seller informs the Buyer that the merchandise is ready for collection, or on any other delivery location agreed with the Seller. In case of deliveries of bulk products, the Seller may deliver more, or less, 3% of the ordered merchandise without any need to adjust the purchasing price of delivery while the delivered merchandise shall be considered to meet the relevant conditions of the contract. In case of failure of the Seller to deliver ordered products on time the Seller may specify in writing a reasonable grace period; after the lapse of grace period the contract may be terminated by the Buyer. The late acceptance of the products due to Buyer does not release the Buyer from its payments obligations. The Seller shall secure warehousing of the respective products at the risk and costs of the Buyer. The Seller shall, upon request of the Buyer, insure the products at the costs of the Buyer.
2.4 The Buyer agrees herewith to accept and abide by the Seller’s industry solution as regards disposal of sales packaging delivered by the Seller to the Buyer as though they were delivered to private households (Section 3 paragraph 11 point 2 and 3 of the Packaging Regulation).
3. Prices, calculations and shipments
3.1 The purchasing price shall be the price quoted by the Seller, or, exclusive individual cases, the price quoted in the current price list of the Seller valid at the time of the order. The Seller reserves the right, after informing the Buyer and before the actual shipment, to raise the price if it is necessitated by general price developments due to general trends outside control of the Seller, such as exchange rates fluctuations, currency regulations, customs changes, considerable (at least 5%) rise in material or production costs, or due to changes on the part of Seller’s suppliers. Unless specified differently in the offer or in the sales price lists, or unless differently agreed in writing between the Seller and the Buyer, the prices quoted by the Seller are all „ex works” [subject INCOMERTMS in its current version]. Should the Seller agree to deliver the products to a different location, the costs of transportation, packaging and insurance shall be the responsibility of the Buyer. The prices are understood exclusive the value-added tax which the Buyer shall pay in addition to the Seller.
4. Force majeure, strikes
Strikes, import embargoes, fires and other cases of force majeure, as well as the circumstances that could not be prevented by reasonable care of a regular business management, shall suspend the parties from their contractual obligations for the period of disruption and within the scope of its impact. Any such disruption exceeding the period of six weeks entitles both contractual parties to withdraw from the contract within the impacted scope. No other claims are to be raised by the parties as regards the relevant contract.
5.1 The Buyer shall pay the invoice within four (4) weeks of its receipt. The payments shall be made on the basis of a bank transfer. Payments by bills of exchange or cheques shall not be recognised as fulfilment of the payment obligation.
5.2 Should the Buyer fail to meet its payment obligations the Seller may, without prejudice to other rights and claims, either: (i) terminate the contract or stop further deliveries for the Buyer, or (ii) to charge interest on the unpaid sum in the amount of 8% p.a. on the top of the basic interest rate current at that time, until the due sum is fully and definitely paid.
5.3 In case of late payment, or in case of justified doubts concerning solvency or credit worthiness of the Buyer, the Seller is entitled, notwithstanding other rights, request security or advance payment for the contracted deliveries as well as immediate compensation of all outstanding claims due to business relations.
5.4 Only undisputable or lawfully confirmed claims entitle the Buyer to compensation or retention of payment.
6. Transfer of risk
6.1 The transfer of risk of damage or loss of products to the Buyer shall be subject to following conditions: if the product is not dispatched from the business premises of the Seller, at the time of handing over, or, when the Buyer is late with acceptance of the product, at the time the Seller offers the product for handing over; if the product is delivered in the business premises of the Seller (,‚ex works”) the risk shall pass on the Buyer at the time the Seller informs the Buyer that the product is ready for collection.
7. Complaints and guarantee
7.1 The Buyer shall inspect the product in accordance with the provisions of the Article 377 of the German Commercial Code and raise eventual complaints. The Seller guarantees that the delivered product is free of material and processing defects, meets the specifications and the design defined by the Buyer, that the product is free of any design errors and meets the specifications of the Buyer. The Seller does not assume any responsibility for the suitability of the product for a specific purpose even if expressly guaranteed.
7.2 Any claims must be raised in writing within three (3) days of acceptance of the product, in case of hidden defects after their detection, however not later than six (6) months from the acceptance of the product, unless longer period is specified by law, including the relevant documentation and precise statement of the reasons. The claimed product must not be further processed and must be kept in a verifiable condition. No product defects may be claimed and the Buyer is not entitled to return the product after minimum durability and expiration date following the regular delivery in the disposal of the Buyer.
7.3 The Seller shall assume the liability under the following terms and conditions: (i) the Seller assumes no liability for the defects of the product due to product description or specification provided by the Buyer; (ii) the Seller assumes no responsibility for the defective product if the relevant purchasing price is not paid within the due date; (iii) the responsibility of the Buyer does not cover the parts, material or other accessories produced by the Buyer or on order of the Buyer (especially labels and translations of the labels), unless the producer of these parts assumes responsibility vis-à-vis the Seller; (iv) no claims shall be raised in case of minor deviations from the agreed specifications, or minor reduction of usability. This guarantee does not include the product defects due to defective installation or use, incorrect use, negligence on the part of the Buyer or other reasons. Seller’s disclaimer of liability shall not apply if the reason for defect is due to its severe negligence or if other essential agreed obligations are not met. In case of delivery of defective merchandise, the Buyer may request either supplementary performance of or delivery of defect-free product. In case of delivery of defective product due to the Seller and claimed by the Buyer the Seller may either send a defect-free product or rectify the defect at no costs to the Buyer. If the Seller fails to rectify the defect or provide replacement delivery the Buyer may request change in the contract (or cancel the contract) or request discount (price reduction).
7.4 The claims of the Customer due to expenditures related to rectifications in order to meet the purpose of the product, especially the costs of transport, travel, labour and material, shall not be considered if the increase in expenditures is a consequence of application of product on a different location than the plant of the Customer, even if the delivery corresponds to its intended use.
7.5 Regress claims of the Customer vis-à-vis the Seller apply only if the Customer did not agree with its buyer on any defect claims that would be legally unenforceable. The scope of regress claims of the Customer vis-à-vis the Seller is subject to paragraph 7.4 respectively.
8. Acceptance delay, rights of retention
8.1 In case of acceptance or take-over delay the Seller may request either advance payment, or after specification of an additional deadline of at least three (3) days, to withdraw from the contract or to demand indemnification due to non-fulfilment of the contract.
8.2 The Customer is entitled to a retention right only if its counterclaim is based on the same contractual relationship.
9. Title retention
9.1 Irrespective of the delivery and transfer of risk, or other provisions of these Delivery and Payment Terms and Conditions the Buyer shall not become the owner of the products until its full price is paid. In case of eventual withdrawal from the contract the Seller may request the product back, sell it elsewhere or dispose of it in a different way. As long as the product is not fully paid the Buyer must keep it in trust for and on behalf of the Seller, separate from its property or the property of the third parties; the product subject to retention right must be properly stored, secured and insured and marked as the property of the Seller.
9.2 The Customer may resell in normal business transaction the product under the title retention. The receivables from the buyer of the resold product under the title retention shall be forwarded by the Customer to the Seller in the invoiced amount agreed between the Customer and the Seller (inclusive VAT). The Seller agrees with the respective assignment. This right of assignment holds even if the purchased product is resold with or without further processing. The Customer is authorized to collect the receivables even after the assignment; the title of the Seller to collect the respective receivables remains hereby unaffected. The Seller shall not collect the respective receivables as long as the Customer meets its agreed payment obligations related to the collected proceeds, does not default in payment and especially as long as no petition for insolvency proceedings against the Customer was submitted and the payments were not suspended.
9.3 The processing, reprocessing or modification of the purchased products by the Customer takes always place in the name and on behalf of the Seller. The expectant right with regard to the modified products remains with the Customer. If the subject matter of the purchase is processed with objects other than those from the Seller, the Seller acquires property share in the new product amounting to the objective value of the products sold by the Seller at the time of processing together with other objects. The same holds for the case of blending. If the material of the Customer can be viewed as the main element in the blend, then the Customer assigns the Seller its share in the shared property and safeguards the exclusive property or shared property for and on behalf of the Seller.
9.4 The Buyer shall inform the Seller without any delay about the event of seizures or other actions of the third parties in order that the Seller may take necessary action. Failing this the Buyer shall be held liable for the resulting damages. The Seller agrees to release its securities at the request of the Buyer as long as the realisable value of the relevant security exceeds the receivable due to the Seller by more than 20%. The selection of the respective securities is up to the Seller.
9.5 Used transport containers/palettes/tanks remain the property of the Supplier and, as a rule, will be replaced immediately after delivery or after the next delivery. They will be handed over immediately upon request. In case of their loss we are entitled to invoice the costs of replacement.
10. Final provisions
10.1 These terms and conditions replace all other arrangements agreed by the contractual parties orally or in writing which become ineffective upon signature of these terms and conditions.
10.2 If any clause of these terms and conditions for deliveries and payments proves to be ineffective, other provision retain their validity. Any deficient or incomplete provision shall be replaced/completed by a valid, effective, realisable and enforceable provision that would be as close as possible to the business and legal effects of the defective/incomplete provision.
11. Applicable law and place of jurisdiction
11.1 These terms and conditions for deliveries and payments are subject exclusively to the legislation of the State of Seller’s seat. The UN Convention on Contracts for the International Sale of Goods (CISG) is not applicable.
11.2 The place of fulfilment and the sole place of jurisdiction for all disputes related to this contract is the place of business of the Seller unless differently specified in the order confirmation.