General Terms and Conditions of Purchase of Monolith Fleisch- und Teigwarenfabrik GmbH for our purchase of goods
1. Scope
1.1 These Terms and Conditions of Purchase of Monolith Fleisch- und Teigwarenfabrik GmbH (hereinafter: Buyer) apply to all purchase transactions of the buyer unless the respective contracting parties have agreed otherwise in writing.
1.2 These Terms and Conditions of Purchase also apply to all future business relationships in which we are the buyer, even if they are not expressly agreed upon again. We object to the supplier's General Terms and Conditions. They only become effective towards us if we agree to them in writing. These Terms and Conditions of Purchase also apply if we accept the delivery unconditionally despite being aware of conflicting or deviating conditions of the supplier.
1.3 All agreements made between the supplier and the buyer at the time of contract conclusion regarding the respective purchase transaction are set down in writing in these Terms and Conditions of Purchase and (if applicable) in other contractual agreements between buyer and supplier. Such (if applicable) other written contractual agreements of the contracting parties regarding the respective purchase transaction take precedence over these Terms and Conditions of Purchase. Unless explicitly stated otherwise in these, these Terms and Conditions of Purchase supplement such written contractual agreements insofar as they do not contradict them. In case of a contradiction, the other written contractual agreements take precedence.
2. Delivery, Delivery Time, Transfer of Risk
2.1 The delivery time (delivery date or period) specified by the buyer in the order or otherwise relevant according to these General Terms and Conditions of Purchase is binding. Early deliveries are not permitted.
2.2 The supplier is obliged to inform the buyer immediately in text form if circumstances occur or become apparent that the delivery time cannot be met.
2.3 If the supplier does not perform or does not perform on time, the buyer's rights are determined by statutory provisions. In particular, the buyer is entitled, after the unsuccessful expiry of a reasonable grace period, to claim damages instead of performance or to withdraw from the contract. If the supplier is in default, the buyer is entitled, in addition to further statutory claims, to claim a lump-sum default damage of 0.5% per completed calendar week, but a maximum of 5% of the net price of the delayed goods. The supplier is allowed to prove that the buyer has suffered no or only minor damage.
Any further claims for damages and other claims of the buyer remain unaffected.
2.4 The assortment of the individual goods delivery, its quantities, and weight are specified in the consignment note.
In addition, the supplier sends the following documents to the buyer: invoice, packing list, exact specification, certificates of origin, quality certificates, as well as certificates of the physical-chemical composition.
2.5 The supplier is not entitled to make partial deliveries without the prior written consent of the buyer.
2.6 The risk passes to the buyer, even if shipment has been agreed, only when the goods are handed over to the buyer at the agreed destination.
3. Price and Payment,
3.1 The price of the goods is derived from the order and, subject to differing written agreements, includes delivery "free domicile" including any necessary packaging as well as all other services and ancillary services of the supplier and incidental costs.
3.2 Payment is made after acceptance of the goods and receipt of the proper invoice. If no special agreement is made, the buyer shall pay within 14 days from receipt of the goods and invoicing. Payment by the buyer does not constitute acceptance of the goods.
3.3 Unless otherwise agreed, the buyer has the right to offset and retain within the statutory scope.
§ 4 Quality, Warranty,
4.1 In the case of mutually agreed sampling of the goods, "faithful to the sample" shall be considered the agreed minimum quality of the goods. A waiver of any further statutory warranty claims under §§ 434 et seq. BGB is not associated herewith, so that the goods, unless otherwise agreed in writing, must not fall short of the usual quality and usual usability within the meaning of § 434 I No. 2 BGB even in the case of sampling.
4.2 If no sampling has taken place, the delivered goods must comply with the respective contractual agreements of the parties and the buyer's specifications and quality requirements. Unless otherwise agreed in writing in individual cases, the following qualities of the goods are considered agreed:
• The goods are at least of customary commercial quality;
• The goods are free of defects, safe, and unrestrictedly marketable in Germany or the destination country resulting from the order, at least until the expiration of the minimum shelf life; in particular, food must comply with the applicable German and European food law requirements in composition, quality, packaging, and labeling;
• Required health certificates and/or other certificates and/or documents and/or certificates to be handed over to the buyer are complete and properly issued;
• The goods are free of third-party rights and the delivery does not infringe any third-party rights.
4.3 Otherwise, the buyer's warranty rights are determined according to §§ 434 et seq. BGB. The statutory warranty rights fully apply to the buyer and are not restricted by the above provisions. The statutory recourse claims within the supply chain (supplier recourse according to §§ 478, 479 BGB) are fully available to the buyer alongside the warranty claims.
5. Complaint and inspection obligations
5.1 A delivery within the meaning of § 377 HGB does not already occur upon any possible takeover of the goods from the supplier's warehouse by the carrier according to contractual agreements, but only when the buyer actually has the opportunity to inspect the goods. This opportunity is only given when the goods reach the buyer's warehouse, into which the goods are initially brought. The takeover of the goods and any possible acknowledgment of receipt of the goods on the delivery note is subject to any complaints about defects.
5.2 Paragraph 1 applies accordingly to delivery to the buyer's customer in a drop shipment or direct delivery without touching the buyer's warehouse.
5.3 Paragraphs 1 and 2 also apply if, according to the Incoterm clause applicable under the parties' agreements, delivery and/or acceptance and/or transfer of risk has already taken place earlier.
5.4 After delivery in accordance with the above provisions, the buyer or its customer must carry out a quantity check as well as a random quality check, insofar and to the extent that these are customary in the ordinary course of business. The buyer may report visible defects within 5 days of delivery.
5.5 The buyer may complain about hidden defects within 5 days of discovery.
5.6 In the case of forwarding the goods without touching a warehouse used by the buyer, the complaint is still timely if the buyer's customer properly fulfills its complaint obligations and the buyer immediately forwards the customer's complaint to the supplier.
6. General Liability of the Supplier
The general liability of the supplier is determined by statutory provisions.
7. General Liability of the Buyer
7.1 The buyer is liable for intent, including that of its vicarious agents, according to statutory provisions.
7.2 The buyer is liable for gross negligence, including that of its vicarious agents, according to statutory provisions, but limited in amount to damages foreseeable and typical for the contract at the time of contract conclusion.
7.3 In the case of negligently caused property and financial damages, the buyer and its vicarious agents are only liable for the breach of an essential contractual obligation, but limited in amount to damages foreseeable and typical for the contract at the time of contract conclusion; (essential contractual obligations are those obligations whose fulfillment characterizes the contract and on which the contractual partner may rely).
7.4 The limitations and exclusions of liability in paragraphs 2 and 3 above do not apply in cases of fraudulent conduct or in the event of culpable injury to life, body, or health.
8. Best-Before Date
If the subject of the purchase contract is goods with a best-before date (MHD), the following applies in the absence of any deviating agreement:
At the time of receipt of the goods by the buyer (or in the case of direct delivery: by the recipient), no more than 1/5 of the shelf life (= period between production of the product and expiration of the best-before date) may have elapsed.
§ 9 Traceability
The supplier must ensure continuous and complete traceability of the goods supplied by it and their ingredients and packaging materials in accordance with the applicable legal regulations.
§ 10 Product Liability, Recall
10.1 The supplier is responsible for all claims made by third parties due to personal injury or property damage attributable to a defective product supplied by it and is obliged to indemnify the buyer from the resulting liability.
10.2 As part of its indemnification obligation, the supplier shall reimburse the buyer for expenses pursuant to §§ 683, 670 BGB incurred by the buyer in connection with claims by third parties, including conducted recall actions. The buyer will inform the supplier about the content and scope of recall actions – as far as possible and reasonable – and give the supplier the opportunity to comment.
The supplier bears all costs incurred by the buyer due to a return of goods. The following flat rates apply, subject to the buyer's right to prove higher costs at any time:
– Administrative expenses: € 500 per recall
– Logistics costs: € 500 per recall
The supplier is allowed to prove that the buyer incurred no or only minor costs due to the return of goods. Further statutory claims of the buyer remain unaffected.
10.3 If the supplier is legally obliged to inform the competent authorities that the goods pose a danger to the health of persons and/or the safety of property or that the goods are otherwise not fully marketable, the supplier shall immediately inform the buyer in copy. If a warning, recall, or other legally required measure is issued for the goods or if the supplier, a previous supplier, or the manufacturer itself takes such a measure, the buyer must also be informed immediately—if possible in advance. The supplier's liability and indemnification obligations also apply here in accordance with paragraphs 1 and 2.
10.4 If there is a public warning (e.g., in the media) about actual or alleged dangers of goods delivered by the supplier (or their ingredients) against purchasing or consuming the goods or one or more of their ingredients, the buyer is entitled to withdraw from the respective purchase contracts with the supplier within a reasonable period (from the knowledge of the warning), provided the buyer has not yet resold the relevant goods. Any further claims of the buyer remain unaffected.
§ 9 Assignment
The supplier is not entitled to assign its claims arising from the contractual relationship to third parties.
§ 10 Final Provisions
10.1 The place of performance and exclusive jurisdiction for all disputes arising from this contractual relationship as well as its formation and validity is the buyer's registered office. Furthermore, the buyer is also entitled to take legal action against the supplier optionally at the supplier's registered office.
10.2 The contracts concluded between the supplier and the buyer are subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10.3 The invalidity of individual clauses does not affect the validity of the other clauses of the contract. The contracting parties undertake to replace the invalid clauses with provisions that economically correspond as closely as possible to the ineffective clauses.
Status: 11/08/2016