General terms & conditions
The General Terms and Conditions of Demeter Felderzeugnisse GmbH shall apply.
1. General scope of application
1.1 The general terms and conditions of purchase (ABB) shall apply to all orders, deliveries and future transactions by Demeter-Felderzeugnisse GmbH, hereinafter also referred to as DFE, with suppliers and/or contractors, hereinafter also referred to as AN. Upon conclusion of a contract in accordance with the present ABB, the AN confirms being an entrepreneur and not a consumer. The following general terms and conditions of sale (ABB) shall exclusively apply to all deliveries and even to future transactions unless other regulations have been agreed. Conditions of the AN which conflict with or deviate from these ABB shall only be accepted if DFE has given its express written consent. These ABB shall also apply if DFE performs the pick-up without reservations despite being aware of terms and conditions of the AN which conflict with or deviate from these ABB.
1.2 The written order shall be decisive for all agreements between DFE and the AN. Verbal agreements shall be subject to written order confirmations on the part of DFE sent by fax or email. The object of the con-tract shall be defined by the order confirmation unless the AN immediately disagrees.
1.3 The Incoterms (International Commercial Terms) regulations of the International Chamber of Commerce (ICC) shall apply which contain uniform stipulations for material duties of purchasers and sellers in national and international trade of goods such as, for example, transfer of shipping charges, transfer of risk of transport and duties upon completion of transactions; applicable version: Incoterms 2010.
1.4 In addition, the following commercial practices 1.4.1 to 1.4.5 shall apply with the exception of the arbitra-tion clause unless these are changed or amended by the following conditions.
The arbitration clause is changed with regard to the competent court of arbitration: The competent court of arbitration for any resulting disputes shall be Mannheimer Produktenbörse, E4, 12-16, D-68063 Mannheim.
1.4.1 In trade with fruit and vegetables: The conditions for the trade in fruit and vegetables, whether fresh, frozen or intended for industrial use (COFREUROP), shall apply. For goods intended for the fresh market, the EU quality standards based on the regulation (EC) no. 2200/96 shall apply.
1.4.2 In trade with grain, by-products, sole feed products: The uniform conditions for the German grain trade as well as the ancillary conditions for the trade in organic grain of Verein der Getreidehändler [grain traders’ association] of Hamburger Börse e.V. as well as the ancillary conditions to the uniform conditions for the Ger-man grain trade for transactions involving German brewing barley and the uniform conditions for the German grain trade in connection with the oil mill conditions for the respective mill shall apply.
1.4.3 In trade with seeds: The general terms and conditions of sale and delivery for seeds in accordance with the Saatgutverkehrsgesetz [German seed marketing act] with the exception of seed potatoes and sugar beet seeds (AVLB Saatgut) shall apply.
1.4.4 In trade with potatoes, seed potatoes:
For sales within Germany: The German terms and conditions for potatoes, Berliner Vereinbarung [Berlin agreement] 1956, version of 9th December 2010, shall apply.
For sales outside Germany: RUCIP 2006 - Rules and practices of the Inter-European Trade in Potatoes, in-cluding the regulation on the assessment of potatoes, shall apply.
1.4.5 In trade with compound feed: Hamburger Futtermittel-Schlussscheine [Hamburg contract notes on feed] shall apply.
2. Delivery times, delayed delivery, contractual penalty
2.1 The delivery times/deadlines stipulated in the order shall be binding and shall be deemed to have been met only if the object of the contract including the pertaining delivery documents has arrived at the agreed place of receipt.
In case of non-compliance, the AN shall be in default without further notice. In case of default DFE shall, at its option, have the right to withdraw from the contract and/or to claim damages.
If compliance with the delivery times/deadlines is at risk, the AN shall notify DFE of the duration in due time.
2.2 If the AN is in default, DFE may claim an additional contractual penalty in the amount of 1% of the total contract price for each commenced week of delayed delivery/performance, but not more than 5% of the total contract price; this shall be set off against any compensation for damages. The contractual penalty will be directly deducted from the invoiced amount.
2.3 The AN shall be liable for defective delivery and/or failure of delivery.
2.4 If the AN consigns or disposes of the goods intended for sale in accordance with the present contract in any other way, either in return for payment or free of charge, DFE shall have the right to make a covering pur-chase for the failed delivery at the supplier’s charge.
3. Adjournment of receipt/acceptance
In case of force majeure or other external circumstances which DFE could not foresee and/or for which DFE is not responsible, DFE shall have the right to adjourn the receipt of deliveries and/or performances or ac-ceptance correspondingly.
AN agrees that DFE or a third party commissioned by DFE may take samples from the contractual sites at any time in order to examine these for residues and contaminants.
DFE may demand representative samples of the batches/lots of the contractual product intended for delivery, even on several occasions.
The costs for shipping the samples shall be borne by the AN.
5. Limitation of liability
The AN may only claim damages and reimbursement of expenses from DFE and its assistants and vicarious agents in case of wilful intent or gross negligence.
This limitation of liability shall not apply in case of damage to life, limb or health or in case of a breach of a material contractual duty resulting from a negligent or wilful breach of duty by the legal representative or a vicarious agent. In case of a breach of material contractual duties, the AN’s claims for damages and reim-bursement of expenses shall be limited to the foreseeable damage typical for the contract.
6. Place of performance, acceptance and transfer of risk
6.1 Delivery and transfer of risk shall always be DAP (in accordance with Incoterms 2010).
6.2 The place of performance shall be the destination indicated by DFE in the order.
Transfer of rights and risk shall occur at the place of performance. Quantities and quality shall always be veri-fied at the place of unloading, the destination.
6.3 If a shipment is rejected for quality reasons, the AN may, at its own discretion, have the quality estab-lished by an officially recognised expert appointed by the AN. The costs resulting from the complaint shall be borne by the defeated party.
6.4 Pallets or packaging suitable for exchange, such as, for example, EUR pallets, big packs, etc., shall not be paid but only exchanged. Only flawless, clean pallets or packaging may be used. If EUR pallets or packag-ing no longer suitable for exchange are used, these will be charged to the supplier at replacement value.
6.5 Lose items; bulk goods:
a) The AN shall be responsible for ensuring safe access to and return from the loading station for loading upon pick-up EXW (in accordance with Incoterms 2010) and that this station can be reached without hin-drance via sufficiently paved, stable roads suitable for heavy goods vehicles.
Any damage to transport vehicles resulting from unsuitable access/transit roads shall be borne by the AN.
b) Waiting times at the loading station shall not exceed 1.5 hours. Any additional waiting time beyond that shall be charged to the AN.
c) In case of pick-up by DFE, freight charges shall always be calculated on the freight rate for 25 t net goods. If less than 25 t net are delivered, the freight charges shall be borne by the supplier on a pro-rata basis.
In addition, the supplier shall bear pro rata freight charges for shortfalls and undesired particles. Loaded and empty vehicles shall be weighed on officially calibrated scales.
d) The AN shall be obliged to duly seal each shipment and to attach the seal number to the goods re-ceipt.
7. Invoice and payment
7.1 The agreed prices shall be fixed prices including costs for packaging, transport and insurance, expens-es, licensing fees as well as public charges excluding sales tax.
The invoice must always be sent in duplicate to the ordering department of DFE indicating the person placing the order and the ordering department.
7.2 Unless otherwise agreed, payment shall be made less 3% discount within 14 days or else net within 30 days. The payment term shall commence upon receipt of a verifiable, legally correct invoice, but not prior to performance of contract and/or acceptance of goods free of defects. In case of defective performance, DFE shall have the right to withhold the payment on a pro-rata basis until due performance has been made. Pay-ment itself does not constitute any recognition of receipt or compliance of the performance.
8. Assignation, set-off, right of retention
Without DFE’s prior written consent, the AN shall not be entitled to assign its claims against DFE or to have these collected by third parties.
If extended retention of title has been agreed, consent shall be deemed to have been granted. This shall not affect the stipulations in sec. 354a HGB [German commercial code]. The AN may not claim any right of reten-tion and may not declare set-off unless the counterclaim is undisputed or recognised by declaratory judgment. Set-off against the AN’s claims shall also be permitted if payment in cash has been agreed on the one side.
9. (EC) Regulation no. 834/2007, guidelines of associations (Demeter etc.)
9.1 The AN including upstream suppliers shall accept the control procedures for organic farming estab-lished in accordance with regulation (EC) no. 834/2007 and regulation (EC) 889/2008 and shall submit the documents required for controlling the flow of goods. The AN shall provide DFE with copies of current certifi-cates and/or the current certificates of conformity as soon as these are available. DFE or a third party com-missioned by DFE shall have the right to control the cultivation site, production and storage.
9.2 The AN shall be obliged to give immediate notice if it is not or has not been recognised by the associa-tion or as organic supplier.
The AN confirms that no procedure has been instituted against it by a control body (according to EC regula-tion) or by its association and that no allegations have been raised that might lead to loss of the accreditation as organic company. As far as such allegations are raised during the term of the contract, it shall be obliged to notify DFE to that effect without delay.
9.3 The AN shall be fully responsible for any damage suffered by DFE on account of a breach of these obli-gations or from a loss of accreditation as organic company.
9.4 The AN agrees that it will comply with all stipulations of regulation (EC) no. 834/2007 during storage and transport and will execute the DFE’s stipulations for ensuring these regulations.
9.5 Upon request, the AN shall submit a batch certificate to DFE.
For contractual goods designated as “association goods”, the AN also agrees to comply with the guide-lines of the respective association.
10. Food law
10.1 The supplied goods must comply with all the requirements prescribed in LFGB (law on food, commodi-ties and feed) as well as with the respective regulations according to German and EU law, as amended.
10.2 The products to be supplied must in any case be free from plant protection, pest control and stock pro-tection agents, heavy metals, radioactivity and other undesired substances.
11. Liability for material defects and defects of title
11.1 The AN ensures that its deliveries/performances will comply with the applicable laws and statutory regu-lations of the Federal Republic of Germany and the European Union, e.g. accident prevention regulations, generally recognised codes of practice, in particular DIN and VDE standards, the requirements stipulated by the hygiene regulation, veterinary law and mandatory specifications.
For all products subject to mandatory CE labelling a declaration of conformity must be included without specif-ic request.
11.2 All documents must be included in German or at least in English language and in duplicate. These documents shall be part of the order without the need for specific mention and must be submitted with the other items upon surrender of goods.
11.3 The AN shall also be liable for any direct and indirect damage for which the AN, its legal representa-tives, assistants or vicarious agents are responsible, defects including consequential damage suffered by DFE and/or a third party in connection with the execution of the order. The AN shall hold DFE harmless from any claims for damages raised by third parties.
11.4 If a third party raises a claim against DFE on account of a fault with the products marketed by DFE which is due to a defect in the contractual object or delivery supplied by the AN, the AN - irrespective of the legal reason - agrees to hold DFE harmless from such claims including the costs resulting thereof.
11.5 In case of complaints on the basis of food or feed law raised by authorities against DFE or DFE’s clients marketing the contractual object or a product produced with the latter which are due to a fault on the part of the AN, the AN shall compensate DFE for the damage resulting thereof. This in particular includes costs from processing returns, new labelling, destruction of products, prosecution, legal defence, etc.
11.6 Any concerns regarding specifications, drawings or other documents forming part of the order must by notified by the AN to DFE in writing before commencing execution of the order. The AN shall always bear the risk connected with the correctness and implementation/execution of drawings, calculations and other tech-nical documentation of the AN.
11.7 DFE shall be entitled to statutory rights to claim damages for defects; the AN shall be liable to the extent stipulated by law. Claims for material defects shall become statute-barred after 3 years unless expressly agreed otherwise.
For defects of title, the statutory statutes of limitation shall apply.
Apart from the statutory definition of material defects, any deviation from the agreed quantity, quality or fitness for purpose shall be a material defect as well. If the AN fails to comply with its duty to remedy a defect or make a substitute delivery within a reasonable time despite being requested to do so, DFE shall have the right to take the required measures itself at the AN’s cost and risk.
11.8 Once the delivery and storage and installation measures for which the AN is responsible, if applicable, have been completed, DFE shall be obliged to inspect the goods for compliance with regard to quality and quantity within a reasonable period. Any complaint shall be deemed to have been made in due time if received by the AN within 7 working days from receipt of goods or, in case of concealed defects, from discovery.
12. Infringement of proprietary rights, product liability
12.1 The AN agrees that its delivery/performance and use of the latter will not infringe any patents or other proprietary rights of domestic or foreign third parties. The AN shall hold DFE harmless from any claims raised by the holder of rights if the delivery/performance provided by the AN infringes any third party’s proprietary rights and if the AN is responsible for this. The AN shall also be liable for damages caused to DFE by claims raised on the basis of product liability (e.g. public warnings or call-back measures).
12.2 The AN agrees to maintain adequate product liability insurance for the duration of this contract but at least until expiration of the warranty period for the delivery/performance. Upon DFE’s request, the AN shall provide evidence for the existence of such insurance. This shall not affect any additional claims for compensa-tion of damages on the part of DFE which may exist.
13. DFE’s right of property
All drawings, samples, models and documents provided to the AN for the execution of orders shall remain property of DFE and many only be disclosed to third parties if express consent has been granted. Products produced on the basis of these documents may only be supplied to DFE and not to third parties. The AN shall not be entitled to use requests from DFE, orders and pertaining correspondence for the purpose of advertise-ment.
14. Place of jurisdiction, applicable law
14.1 The competent district or regional court in Darmstadt shall be the exclusive place of jurisdiction for any legal disputes. However, DFE reserves the right to bring action to the AN in the court which is competent at the latter’s place of business. The contractual relations shall be exclusively governed by German law. Applica-tion of the uniform United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be expressly excluded.
14.2 German law shall apply to all disputes for which arbitration is not applicable. This shall also apply if legal proceedings take place abroad. The exclusive place of jurisdiction shall be Darmstadt.
If a dispute is subject to arbitration, the competent court of arbitration shall be Mannheimer Produktenbörse, E4, 12-16, DE-68063 Mannheim.
15. Severability clause
If one of the above clauses is ineffective, this shall not affect the remainder of the contract. The parties to the contract agree to replace the ineffective stipulation by a regulation which comes as close as possible to the economic effect originally intended by the parties.
16. Data processing / Declaration of agreement
Data of the AN required for executing the contract will be centrally stored and processed at DFE. The AN ex-pressly agrees to this.