I. General, scope of application
- Our deliveries, services and offers are made exclusively on the basis of these Terms and Conditions of Sale and Delivery; we do not recognize any terms and conditions of the Customer which contradict or deviate from our Terms and Conditions of Sale and Delivery unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale and Delivery shall also apply if we deliver to the Customer without any reservations although we are aware of Customer’s terms and conditions which contradict or deviate from our Terms and Conditions of Sale and Delivery.
- Our Terms and Conditions of Sale and Delivery shall only apply to entrepreneurs (§ 14 German Civil Code – BGB), legal persons under public law and special funds under public law (“öffentlich-rechtliches Sondervermögen”).
II. Offer, Offer documtens
- Our offers are made without engagement, are not binding and are subject to prior sale unless they are explicitly specified as binding. The order of the Goods by the Customer shall be deemed as a binding offer to contract. Unless otherwise stated in the order, we are entitled to accept this offer to contract within two (2) weeks of receipt.
- Documents provided to us by the Customer (such as specifications, drawings, samples, or similar) shall be binding; the Customer shall be liable for the accuracy, technical feasibility and completeness of such documents provided to us; we shall not be obliged to check such documents.
- We reserve title and copyright to illustrations, drawings, calculations and other documents. This also applies to electronic documents.
- Documents which we have provided to the Customer shall be deemed to be "confidential" even without express reference. The Customer shall require our express written consent before passing them on to third parties. Upon our request, the Customer shall return all such items to us in full and destroy any copies made if they are no longer required by the Customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
III. Prices, Payment terms
- Unless agreed otherwise, our prices valid at the time of the conclusion of the contract shall be ex warehouse, plus statutory value added tax.
- Unless provided otherwise in the order confirmation, our prices are EXW (Incoterms® 2020 or respective current version) of the plant designated in the order confirmation or, in the absence of such designation, of the plant executing the order.
- Unless provided otherwise in the order confirmation, our invoices show net amounts and shall be due and payable (without deductions) within 14 days after the date of invoice and receipt.
- Customer is not entitled to withhold payments based on counter-claims or off set counterclaims unless these counter-claims have been recognized by us, are undisputed or have been established by a final non-appealable court decision (res judicata). However, counterclaims of the Customer existing or arising under the same contract for defects or nonperformance and/or unfinished or incomplete performance remain unaffected.
IV. Delivery, Delivery time
- We are entitled at any time, even during an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We demand advance payment at the latest with the order confirmation.
- Unless expressly agreed otherwise, indications of delivery times are only approximate. A delivery period shall not commence before all details of the execution of the contract have been clarified and both parties have agreed on the conditions of the order. Agreed delivery dates shall be postponed accordingly.
- Compliance with our delivery obligations shall further be subject to the timely and proper fulfilment of the obligations incumbent on the Customer. This includes, in particular, the timely and complete delivery of the documents to be supplied by the Customer, insofar as we perform according to drawings, specifications, samples, guidelines and/or other documents of the Customer. We reserve the right to raise the defence of non-performance of the contract.
- If we are prevented from keeping agreed delivery dates as a result of force majeure, labour disputes, governmental action, energy or raw material shortages, transport bottlenecks or hindrances, operational hindrances, for example due to fire, water and/or machine defects, for which we are not responsible, or other disruptions in the flow of operations either at our premises or those of suppliers or subcontractors for which we are not responsible and which can be proved to have a significant impact, we are obliged to inform the Customer without undue delay (“unverzüglich”). In such cases we are entitled to extend the delivery period by the period of the event of force majeure or the disruption if we have informed the Customer pursuant to the above information obligation. If delivery becomes impossible as a result thereof, our obligation to supply shall become null and void to the exclusion of claims for damages. If the Customer proves that subsequent performance of the contract is of no interest to him as a result of the delay, the Customer may withdraw from the contract to the exclusion of any further claims. If the event of force majeure or the disruption lasts longer than one month, we may withdraw from the contract as regards to that part which has not yet been performed if we have informed the Customer pursuant to the above information obligation and if we have not assumed the risk of procurement (“Beschaffungsrisiko”) or a delivery guarantee.
- Article 4.4 applies mutatis mutandis if and to the extent that we had entered into a covering transaction before the conclusion of the contract with the Customer which – if properly executed – would have enabled us to fulfil our contractual obligations in our relationship with the Customer, and we have been supplied by our suppliers incorrectly and/or belatedly and neither we nor our suppliers are at fault.
- If we are in default of delivery, the Customer shall be entitled to set a reasonable grace period in writing and to withdraw from the contract upon expiry of this grace period without result. The setting of a grace period shall not be required if we seriously and finally refuse performance or if the respective contract is a transaction for delivery by a fixed date (“Fixgeschäft”) in terms of § 323 para. 2 no. 2 BGB or § 376 HGB (German Commercial Code) or if special circumstances exist which, after weighing the interests of both parties, justify immediate withdrawal.
- For damages we shall only be liable pursuant to clause 8 of these General Terms and Conditions of Sale and Delivery. For withdrawal from the contract, the statutory provisions shall apply.
V. Transfer of risk, Shipping,Packaging
- Unless indicated otherwise in the order confirmation, delivery is EXW (according to Incoterms® 2020 or their current version). Place of delivery and place of performance shall be the location of the plant designated in the order confirmation or, if such designation is not available, the plant executing the order. This shall also apply if we have assumed the transport costs or incurred them for the Customer or if partial deliveries are made.
- At the request and at the expense of the Customer, the Goods may be shipped to another destination (sale by delivery to a place other than the place of performance, “Versendungskauf”). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging).
- If dispatch has been agreed, the risk of accidental loss and accidental deterioration of the Goods shall pass to the Customer upon handover to the forwarding agent, carrier or other person or institution designated to carry out the dispatch. This shall also apply if we have assumed the transport costs or incurred expenses for the Customer or if partial deliveries are made. If dispatch or handover is delayed for reasons for which the Customer is responsible, the risk shall pass to the Customer from the day on which the Goods are ready for dispatch and we have notified the Customer thereof.
- We are entitled to make part deliveries if these are reasonably acceptable to the Customer under consideration of the Customer’s interests.
- If the Customer is in default of acceptance or if the delivery is delayed for reasons which are attributable to the Customer, we will be entitled to claim compensation for the damage incurred as a result thereof, including additional expenses, if any. In these cases, we will store the Goods at the Customer’s risk and invoice the Customer for such storage.
VI. Reservation of Title
- Until full payment of all our present and future claims arising from the purchase agreement and/or from the current business relationship with the Customer (secured claims), we reserve title to the sold Goods.
- The Goods subject to reservation of title may neither be pledged to third parties nor assigned by way of security by the Customer before complete payment of the secured claims without our explicit written consent. In the case of pledges or other third party intervention, the Customer must notify us immediately in writing so that we may file an action pursuant to § 771 ZPO (German Code of Civil Procedure). Insofar as the action was successful and the third party is unable to reimburse us the court and out-of-court costs of legal action pursuant to § 771 ZPO (German Code of Civil Procedure), the Customer shall be liable for the costs we have sustained.
- The Customer shall be entitled to resell the Goods delivered in the normal course of business. He herewith assigns to us, however, all claims amounting to the final invoice amount (including value-added tax) of our claims which accrue from the resale vis-à-vis his customers or third parties, irrespective of whether the Goods purchased have been sold again with or without further processing. After such assignment the Customer shall also remain entitled to collect this claim. Our right to collect this claim ourselves shall remain unaffected thereby. However, we undertake not to collect the claim provided that no bill or cheque protests are raised and the Customer fulfils his payment obligations arising from the proceeds received, the Customer is not in default of payment and, in particular, no application to initiate insolvency proceedings with regard to the Customer’s assets has been filed. If this is the case, however, we may demand that the Customer notifies us of the claims assigned and their debtors, provides all details necessary for their collection, delivers the relevant documents and informs the debtors (third parties) of said assignment.
- The processing or conversion by the Customer of the Goods subject to reservation of title shall always be deemed to be performed for us and on our behalf. If the Goods subject to reservation of title are processed with other items/materials not belonging to us, we shall acquire co-ownership of the new article in a ratio of the value of the Goods subject to reservation of title to the other processed items/materials at the time of processing. In all other respects, the provisions applicable to the Goods subject to reservation of title shall also apply mutatis mutandis to the articles resulting from such processing.
- If the Goods subject to reservation of title are mixed or joined inseparably with other items/materials not belonging to us in such a way that they become major components of a uniform article, we shall acquire co-ownership of the new article in a ratio of the value of the Goods subject to reservation of title to the other mixed or joined items/materials at the time of joining or mixing. If joining or mixing takes place in such a way that the Customer’s article is to be regarded as the main item, it is already agreed here and now that the Customer transfers pro-rata co-ownership to us. The Customer shall keep the jointly held property thus produced in safe custody for us. Furthermore, the same shall apply to the article resulting from such joining or mixing as to the Goods subject to reservation of title.
- The Customer is obliged to treat the Goods subject to reservation of title carefully and in particular the Customer is obliged to adequately insure them against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the Customer must carry this out in due time and at its own expense.
- In the event of loss or damage to the Goods subject to reservation of title, the Customer hereby assigns to us any claims to insurance payments existing in this connection in the amount of the final invoice (including value-added tax) of our claims with respect to the object of delivery by way of additional security in advance.
- In case of deliveries abroad, if certain measures and/or declarations by either party are necessary to ensure the effectiveness of the above mentioned reservation of title and/or certain other rights referred to in the paragraphs above, the Customer is obliged to inform us accordingly in writing or in text form and to take all necessary measures and/or make all necessary declarations without undue delay at its own expense. If the law of the country of import does not permit reservation of title to the Goods, the Customer is obliged to provide without undue delay (“unverzüglich”) another appropriate security interest in the Goods or any other equivalent collateral based on equitable discretion (§ 315 BGB German Civil Code) at its own expense.
- We undertake to release, at Customer’s request, the securities due to us if the realisable value of our securities exceeds the claims to be secured by more than 10 %; we reserve the right to select the securities to be released.
VII. Warranty, claims for defects
- The statutory provisions shall apply to the rights of the Customer with respect to defects in quality or title (including incorrect delivery, short delivery or faulty instructions) if nothing to the contrary is determined in the following. In any case, the statutory provisions remain unaffected in the case of final delivery of unprocessed Goods to a consumer, even if the consumer has processed them further (supplier recourse according to § 478 BGB German Civil Code). Claims from supplier recourse are excluded if the defective Goods have been further processed by the purchaser or another entrepreneur, e.g. by installation in another product.
- The basis of our liability for defects is primarily the agreement reached on the quality of the Goods. All product descriptions and manufacturer's specifications which are subject of the individual contract or which were made public by us (in particular in catalogues or on our internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the Goods.
- If the quality has not been agreed upon, the statutory regulation shall be applied to determine whether or not there is defect (§ 434 para. 1 sentences 2 and 3 BGB German Civil Code). However, we assume no liability for public statements of the manufacturer or other third parties (e.g. advertising statements), to which the customer has not pointed out to us as being decisive for his purchase.
- The Customer’s right to warranty claims under this contract require that the Customer has duly discharged his obligations of inspection and notification of defects in accordance with § 377 HGB (German Commercial Code). If the contractual relationship between us and the Customer constitutes a contract for work and services (“Werkvertrag”), § 377 HGB (German Commercial Code) shall be applied respectively.
- If the delivered Goods are defective, we may select whether we shall provide subsequent performance by remedying the defect (“Nachbesserung”) or by delivering a defect-free item (“Ersatzlieferung”). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
- We have the right to make the subsequent performance dependent on the customer paying the due purchase price. However, the Customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
- The Customer shall give us the time and opportunity necessary for the subsequent performance; in particular, it shall hand over the rejected Goods for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective Goods as required by law. Subsequent performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install the item.
- We shall bear or reimburse the expenses necessary for the purpose of testing and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we are entitled to demand reimbursement from the Customer for the costs incurred as a result of the unjustified demand for remedy of defects (in particular testing and transport costs), unless the lack of defects was not apparent to the Customer.
- In urgent cases, e.g. if operational safety is endangered or in order to prevent unreasonable damage, the Customer is entitled to remedy the defect itself and to demand reimbursement from us of the expenses actually required for this purpose. We shall be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy shall not exist if we would be entitled to refuse a respective subsequent performance pursuant to the statutory law.
- If subsequent performance has failed or if a reasonable period of time set by the Customer for subsequent performance has expired unsuccessfully or is dispensable under the statutory law, the Customer may withdraw from the purchase agreement or reduce the purchase price. In the case of an insignificant defect, however, there is no right to withdraw from the contract.
- Any claims of the Customer for damages or reimbursement of futile expenses shall exist only in accordance with Article 8, also in the case of defects, and shall otherwise be excluded.
VIII. Liability exclusions and limitations
- Subject to the provisions in Article 8.2, we are only liable for damages – in the case of contractual, non-contractual or other damage claims, irrespective of the legal reason, in particular due to defects, default and impossibility, culpa in contrahendo and tort – in case of wilful intent and/or gross negligence, including wilful intent and/or gross negligence on the part of our representatives or vicarious agents. In addition, we are also liable in the case of mild negligence, including mild negligence of our representatives and vicarious agents, for damages arising from the infringement of an essential contractual duty, i.e. a duty, the satisfaction of which makes the due implementation of the contract at all possible and which the Customer can therefore usually expect to be satisfied by us (cardinal duty, “Kardinalpflicht”). If and to the extent that we are not liable for wilfully infringing a duty, the liability for damages shall, however, be restricted to the foreseeable, typical damage.
- Claims for damages arising from injury of life or limb or health as well as claims of the Customer pursuant to the German Product Liability Act (Produkthaftungsgesetz) and the special statutory provisions governing ultimate delivery of the goods to a consumer as well as other mandatory statutory liability regulations shall not be affected by the liability exclusions and limitations set out in Article 8. The above liability exclusions and limitations shall also not apply insofar as we have fraudulently concealed a defect or insofar as we are liable because of the assumption of a guarantee or of the risk of procurement (“Beschaffungsrisiko”).
- Articles 8 and 8.2 shall also apply if the Customer demands reimbursement of futile expenses instead of a claim for damages.
- Insofar as our liability for damages is excluded or limited, this shall also apply with regard to personal liability for damages of our employees, representatives and vicarious agents which is based on the same legal reason.
IX. Statute of limitations
- Claims of the Customer arising from defects in quality or title become time-barred after expiry of 12 months from delivery (hand-over) of the Goods. If a formal approval (“Abnahme”) has been agreed, the limitation period begins with the formal approval.
- Mandatory provisions on the statute of limitations shall not be affected. The facilitation of limitation set out in Article 9.1 shall therefore not apply to claims based on an injury of life, limb or health, to claims based on wilful intent and gross negligence and to claims based on an assumption of a warranty or the risk of procurement (“Beschaffungsrisiko”). The longer limitation periods according to § 438 subs. 1 No. 1 BGB (German Civil Code) (real rights of a third party), §§ 438 para. 1 No. 2, 634a para. 1 No. 2 BGB (buildings, building materials and components as well as planning services for a building), § 438 subs. 3 and § 634a subs. 3 BGB (German Civil Code) (fraudulent intent) shall also remain unaffected. If the ultimate contract in the supply chain pertains to a sale of consumer goods according to § 474 BGB (German Civil Code) (i.e. if the Goods are ultimately delivered to a consumer), the limitation periods stipulated in § 445b BGB (German Civil Code) also remain unaffected.
- The limitation periods resulting from Articles 9.1 and 9.2 for claims due to defects in quality or title shall apply mutatis mutandis to competing contractual or non-contractual damage claims of the Customer which are based on a defect of the Goods. If, however, in an individual case the application of the statutory limitation rules lead to an earlier statutory limitation of the competing claims, the statutory period of limitation shall apply to the competing claims. In any case, the statutory periods of limitation pursuant to the German Product Liability Act (Produkthaftungsgesetz) shall not be affected.
- Insofar as pursuant to Articles 9.1 to 9.3 the limitation period for claims towards us is shortened, this shall apply mutatis mutandis to any claims of the Customer against our statutory representatives, employees, authorised representatives and vicarious agents which are based on the same legal reason.
X. Right of withdrawal/right of termination
- The Customer is only entitled to withdraw from the contract for a breach of duty on our part other than a defect if we can be made responsible for such breach of duty.
- If the contract in question is a contract for work and services in which the contractor undertakes to bring about a particular result (“Werkvertrag”) or a contract for work and services in which the contractor supplies the material from which non-fungible movable items are to be made (“Werklieferungsvertrag”), the right of the Customer to freely terminate the contract according to §§ 651, 649 BGB (German Civil Code) is excluded.
XI. Jurisdiction, applicable law, severability
- If the Customer is a merchant, legal persons under public law or a special funds under public law (“öffentlich-rechtliches Sondervermögen”) as defined by German law, the place of jurisdiction for any and all disputes arising directly or indirectly from the contractual relationship shall be Bamberg, Germany. We are however entitled to also take legal action against the Customer before the court having jurisdiction at its place of residence.
- The law of the Federal Republic of Germany shall apply. The application of the UN sales law (CISG - United Nations Convention on Contracts for the International Sale of Goods) is excluded.
- Should any individual provision of these Terms and Conditions of Sale and Delivery or any individual provision of any other agreements be or become void or illegal, the validity of the remaining provisions or agreements shall in no way be affected.
endori food GmbH & Co. KG
Personally liable shareholder: endori verwaltungs GmbH
Managing Director(s): Guido Klüh, Jens Wedel
Commercial Register no HRA 11934 / District Court of Bamberg
Version: 05 / 2021