TERMS AND CONDITIONS OF SUPPLY
1. General, Scope of Application
1.1 These General Terms and Conditions of Supply apply to all business transactions, contracts and agreements (the “Agreement”) between PICO Food GmbH (herein-after referred to as "Supplier") with entrepreneurs ("Unternehmer") (Paragraph 14 German Civil Code (BGB)), public-sector legal entities or special bodies or funds under public law (hereinafter referred to as "Customer").
1.2 Contrary or supplementary terms and conditions of the Customer become an inte-gral part of any Agreement only if and to the extent that Supplier has expressly agreed to their applicability.
1.3 Only the German language version of these Terms and Conditions of Supply shall be authoritative.
2. Offer and Conclusion of Agreement
2.1 All offers submitted by Supplier are subject to change and not binding. All orders placed by Customer shall be deemed to be binding offers to conclude a contract. Supplier may accept such offer to conclude a contract within two weeks upon Supplier's receipt thereof. Supplier may declare acceptance of such offer either in writing (e.g. by confirmation of the order) or by delivery of the goods to Customer.
2.2 The Supplier's orders are revocable until such time as the order is confirmed in writing or, in the absence of an order confirmation, until delivery is made.
3. Prices and Payment
3.1 Unless otherwise agreed, prices apply ex works (EXW, Incoterms 2010), and ex-clude statutory Value Added Tax and packaging; in case of export deliveries the prices are not including customs duty, charges and other levies. Supplier will not take back the transportation packaging or any other packaging within the meaning of the German packaging regulation (Verpackungsverordnung); said packaging shall become the property of Customer.
3.2 Payment shall be due without deduction upon delivery or upon acceptance of per-formance (“Abnahme), whichever is applicable. If payment is not so effected, Cus-tomer shall be in default (“Verzug”) 10 calendar days following delivery and the is-sue of the invoice. Payment shall only be deemed to have been effected on the date of receipt thereof by Supplier, and cheques shall be deemed to be payment only once they have been honoured. In the event of Customer being in arrears with any payments, provided that Supplier shall not be responsible for Customer’s sus-pension of the making of the payment, Supplier shall, without prejudice to any claims for compensation that it may have, be entitled to defer its own contractual obligations until the arrear payments have been effected.
3.3 Customer shall not be entitled to set off claims or to withhold payments on the ba-sis of any counterclaims that it may have against Supplier, unless such counter-claims are undisputed or have been confirmed by a competent court or with coun-terclaims which are reciprocal (im Gegenseitigkeitsverhältnis) with the claim of Supplier.
3.4 If, after conclusion of the Agreement, Supplier becomes aware of circumstances which are likely to considerably diminish Customer's creditworthiness and which may jeopardise the making of payments by Customer of debts owed to Supplier under any Agreement (including other individual orders subject to the same framework agreement), Supplier shall be entitled to effect outstanding deliveries or render outstanding services only against receipt of advance payment from or if appropriate security has been provided by Customer.
4. Delivery and Delivery Delay
4.1 Delivery shall be effected ex warehouse, which shall also be the place of perfor-mance. Upon specific request and at the cost of Customer Supplier shall send the product(s) to a different point of destination (sale by dispatching to a place other than the place of performance ("Versendungskauf")). Unless otherwise agreed, the manner of transportation shall be at Supplier’s discretion (in particular Supplier may choose carrier, shipping route and packaging).
4.2 The delivery dates stated by Supplier are not binding unless the written order con-firmation expressly refers to binding delivery dates. Insofar as dispatch has been agreed, delivery dates refer to the time when the product(s) leave Supplier's ware-house or the time when Supplier notified Customer that they were ready for dis-patch.
4.3 The adherence of delivery dates by Supplier requires all commercial and technical questions between the parties of Agreement to be clarified and all obligations rest-ed with Customer, such as e.g. adduction of necessary governmental certificates or approvals or payment of deposit, to be fulfilled. Otherwise the delivery time ex-tends appropriately. This shall not apply if Supplier is responsible for delay.
4.4 Supplier shall not be liable for delay, damage or non-performance of its obligations under the Agreement in the event and to the extent that such delay or non-performance is due to force majeure (e.g. natural catastrophes, war, unrest) or other events that could not reasonably have been foreseen at the time the contract was concluded (e.g. business interruptions of all kinds, transport delays, strikes, lawful lock-outs, a shortage of workers, power or raw materials, difficulties in pro-curing necessary administrative licences, administrative measures or Supplier’s suppliers delivering late, incorrectly or delivering not at all) and for which Supplier is not responsible. Insofar as such events lead to supply of product(s) or services be-coming considerably more difficult or impossible for Supplier and such impediment is not only transitional in nature, Supplier shall have the right to rescind the contract. In the event of impediments that remain transitional in nature the deadlines for de-livery or performance shall be extended or the delivery or performance dates shall be postponed by the period of the impediment plus a reasonable start-up period. Insofar as Customer cannot reasonably be expected to accept the delivery or per-formance because of the delay, Customer can rescind the contract by means of a prompt written declaration to Supplier.
4.5 Supplier shall have the right to perform the delivery partially only if Customer is able to effectively use the goods so delivered for the purposes stipulated in the Agreement, the delivery of the remaining product(s) has been ensured and Cus-tomer does not incur considerable additional efforts or cost.
4.6 If Supplier is late in effecting a delivery or providing a service, or if, for any reason whatsoever, the making of a delivery or the provision of a service becomes impos-sible for Supplier, Supplier's liability for damages shall be limited as set out in Clause 7 of these General Terms and Conditions of Supply.
4.7 If, at the request of Customer, deliveries are to be effected later than the delivery dates originally agreed, payment shall nevertheless be effected as though the de-livery had been made on the delivery dates originally agreed. This shall also apply if Customer fails to accept delivery on the contractually agreed delivery dates. The cost of any necessary storage of the goods as well as other costs incurred by rea-son of the delay shall be charged to Customer.
5. PASSING OF RISK
THE RISK SHALL PASS TO CUSTOMER AS SOON AS THE PRODUCT(S) HAVE LEFT SUPPLIER’S WAREHOUSE OR STORAGE AT THE LATEST. THE SAME APPLIES IF PARTLY DELIVERIES ARE MADE OR SUPPLIER HAS UNDERTAKEN TO PROVIDE ADDITIONAL SERVICES (E.G. DISPATCH OR INSTALLATION OF GOODS). IF DISPATCH OR DELIVERY IS DELAYED AS A CONSEQUENCE OF ACTS OR OMISSIONS OF CUSTOMER, THE RISK SHALL PASS TO CUSTOMER IMMEDIATELY UPON SUPPLIER BEING READY FOR DISPATCH OR DELIVERY AND SUPPLIER HAVING NOTIFIED CUSTOMER ACCORDINGLY.
6. Reservation of Title
6.1 Supplier shall retain title to supplied Product(s) (the “reserved product(s)”) until all of Supplier's claims arising out of the business relationship with customer have been satisfied in full, in particular until customer has settled the account balance (Kontokorrentvorbehalt).
6.2 Customer shall handle and store the reserved product(s) with due care, and insure them at its own cost against fire, water damage, breaking and entering and theft. In case of damages to reserved Product(s) Customer shall promptly undertake to ad-vise supplier of same and send the insurance policy to Supplier for inspection upon request. Customer hereby assigns all claims against any insurance company relat-ing to the reserved product(s). Supplier accepts the assignment. In case Customer should be found to have insured the reserved product(s) inadequately, Supplier shall have the right but not the duty to insure the reserved product(s) at Customer’s cost.
6.3 Should any reserved product(s) become subject to attachment or be otherwise encroached upon by third parties, customer shall undertake to promptly advise supplier of same in writing.
6.4 Customer shall be entitled to sell reserved product(s) in the ordinary course of business and so long as customer is not in default of payment. Reserved prod-uct(s) may not be pledged or title thereto transferred as collateral. Customer here-by assigns to Supplier all claims that may arise in connection with Customer selling reserved product(s) or which result from other legal grounds relating to the re-served product(s) (in particular, transfer of ownership, insurance claims, tort, civil offenses or other unlawful acts; the “assigned claim(s)”). Supplier accepts said as-signment. Supplier hereby authorizes Customer to enforce the assigned claim(s) in its own name and for Supplier's account until further notice. If customer acts con-trary to the terms of the agreement, including defaulting on payment, supplier shall have the right to demand customer to disclose said assignment to any third party in the event of which customer shall undertake to hand over to supplier all information and documents necessary or serviceable in order to enforce the assigned claim(s).
6.5 In the event of customer breaching duty contrary to contract, particularly defaulting payment, supplier may take back the reserved product(s) after prior notice at the cost of customer. Return of the reserved product(s) is deemed to be a rescindment of the agreement. After return of the reserved product (s) supplier shall be author-ized to sell the returned reserved product(s). Proceeds of the exploitation – less appropriate cost of exploitation – are to be credited against the customers obliga-tion.
6.6 If the aggregated value of collateral to which Supplier is entitled under the above provisions exceeds the aggregated claims of supplier against customer by more than 10 %, Supplier shall be obliged to release collateral in the aggregated value that exceeds said amount. Supplier may choose which collateral to release.
6.7 If the law of the country, in which any delivered goods are located, does not permit or recognise a reservation of title or does so only to a limited extent, Supplier can reserve other proprietary rights in the supplied product(s). Customer shall be under an obligation to cooperate with supplier in relation to all measures (e.g. registration) necessary to effect the reservation of title or to create such other rights, as may appropriately protect the interests of supplier in lieu of a reservation of title. Cus-tomer shall cooperate in the enforcement of such rights.
7.1 Supplier shall be liable in accordance with the applicable statutory provisions for breach by it of material contractual obligations for which supplier is responsible. Material contractual obligations shall be defined as follows: the performance of such obligations characterize the agreement and is necessary for the proper im-plementation of the agreement. For other breaches of duty supplier shall only be li-able if damages are caused intentionally or grossly negligent (grob fahrlässige) by its legal representatives or vicarious agents (Erfüllungsgehilfen).
7.2 In the absence of intentional conduct, supplier shall be liable only for damage rea-sonably foreseeable at the time the agreement was concluded.
7.3 The foregoing shall neither affect the liability of supplier under the German product liability act (Produkthaftungsgesetz), nor its liability for culpable (“schuldhaft”) injury to life, body or health. In the event supplier has issued a guarantee, Supplier shall be liable in accordance with the applicable statutory provisions
7.4 Unless otherwise regulated above, claims of damages against Supplier based on breaches of duty are excluded.
7.5 Claims for damages under clauses 7.1 to 7.3 above shall be subject to statutory prescription periods.
8.1 Customer is obliged to make notice of defects (Mängelrügen) within the meaning of sec. 377 German commercial code (HGB).
8.2 If supplier's goods or services prove to be defective, supplier shall be obliged to remedy the defects by, at supplier's option, either rectifying the defect or by deliv-ering a replacement (“Ersatzlieferung”). If supplier chooses delivery of a replace-ment customer is obliged to return the defective product(s) to supplier in accord-ance with the statutory provisions. Costs of such supplementary performance (“Nacherfüllung”) by supplier, in particular costs of transportation, labour and mate-rials shall be borne by Supplier. Customer shall be liable for any increase of costs as a result of the product(s) being located somewhere other than the place of use agreed upon by the parties in the agreement.
8.3 Supplier shall be entitled to make supplementary performance contingent upon customer paying the purchase price. Customer shall, however, be entitled to with-hold such part of the purchase price as is reasonable in proportion to the defect.
8.4 If supplementary performance fails, customer shall be entitled to a reduction of the purchase price or to rescind the contract. There shall be no entitlement to rescind the contract in the case of any defect, which is not essential. In addition customer may claim damages in accordance with clause 7. Any other warranty claims are excluded.
8.5 Save in the case of bad faith (“Arglist”) and subject to the provisions of clause 7.5, all warranty claims shall be subject to a prescription period of twelve (12) months from delivery. This does not apply to possible claims for regress by customer pur-suant to paragraphs 478, 479 German civil code (BGB); these shall be subject to statutory prescription periods.
9. Choice of law, place of jurisdiction, place of performance
9.1 Unless otherwise provided or another place of performance results from the nature of an obligation, the place of performance for all of supplier's and Customer's obli-gations shall be shall 71732 Tamm, Deutschland.
9.2 The agreement as well as these terms and conditions shall be governed by the law of the federal republic of Germany; the un convention on contracts for the interna-tional sale of goods shall not apply.
9.3 It is agreed, that the place of jurisdiction shall be at the registered seat of the sup-plier. In addition, supplier is entitled to assert its claims at customer's general place of jurisdiction.
9.4 Even if any individual provisions are void, all remaining provisions of the agree-ments concluded in accordance with these terms and conditions of supply shall remain binding.