General Terms and Conditions of Sale
§ 1 Scope of application
The following General Terms and Conditions of Business apply to all sales by Dairyfood GmbH (hereinafter referred to as Dairyfood) in business transactions.
Dairyfood shall work exclusively on the basis of these General Terms and Conditions. This shall also apply if the Customer, for his part, works on the basis of his own General Terms and Conditions. In this case, in the event of agreement, the terms and conditions of both parties shall apply; in the event of divergence, the statutory provisions shall apply in place of the divergent provisions. In the event that only one party has included a provision on a subject in its General Terms and Conditions, this provision shall become part of the contract. If an order is placed in deviation from our Terms and Conditions of Delivery and Payment, only our Terms and Conditions of Delivery and Payment shall apply, even if we do not object. Deviations shall therefore only apply if they have been expressly recognized by us in writing.
Unless otherwise agreed, the scope and quality of the deliveries and services shall be determined exclusively by the offer or the written order confirmation from Dairyfood. Collateral agreements and amendments shall require written confirmation.
§ 2 Offer
Offers/inquiries from the customer shall only be deemed accepted if Dairyfood accepts the offer in writing or by fax. The quantity, quality and characteristics of the goods can be seen from the sales specification.
If the Customer has agreed a successive delivery contract with Dairyfood, the following shall apply: Dairyfood shall be entitled to a right of retention with regard to the new delivery in accordance with Section 320 (1) BGB if the new order exceeds the credit limit agreed with the Customer (i.e. the agreed quantity of the advance performance to be fulfilled by Dairyfood without immediate payment).
Dairyfood shall also be entitled to withhold the agreed delivery if the Customer fails to provide current data from a recognized and certified credit insurer.
Dairyfood’s offers are subject to change. Samples, specimens or information (such as weights, illustrations, descriptions, etc.) resulting from the sales specification show the goods as accurately as possible. In the event of deviations from the offer, the service descriptions of the last offer or the last order confirmation shall always be decisive.
Dairyfood reserves the right to change product descriptions with regard to the described properties in such a way that the current legal requirements are taken into account.
Agreements on quantities or quality specifications that deviate from the specifications of the goods or services shall only be binding if they have been confirmed in writing. The same shall apply to information provided by suppliers and employees of Dairyfood. Cost estimates and freight details shall also be non-binding until they have been confirmed in writing by Dairyfood.
Information on the quality of the goods and services is not a guarantee. Guarantees must be expressly designated as such.
§ 3 Safety regulations / product properties
The information provided by Dairyfood on the processing, storage, labeling and intended use of the goods must be complied with by the customer. Deviations from this information may result in the violation of regulations that must be observed in accordance with the relevant regulations. The Customer shall bear sole responsibility for ensuring that the instructions on processing, storage, labeling and intended use are complied with in accordance with the information provided by Dairyfood. In such a case, the Customer must prove that the defect would also have occurred if he had complied with the information provided by Dairyfood.
If the goods are used and/or processed outside the Federal Republic of Germany, the customer shall be responsible for compliance with the relevant legal provisions applicable in the respective country of destination. Any deviations from this must be agreed separately.
If the place of destination and delivery of the goods is outside the territory of the European Union, Dairyfood only guarantees compliance with the legal provisions of the Codex Alimentarius of the FAO (Food and Agriculture Organization, Rome). Any deviations from this must be agreed separately.
The performance description, processing and storage instructions for the goods can be found in the respective specification of the goods.
The achievement of the customer’s business objectives is not owed.
Compatibility: At the time the contract is concluded, the Customer is aware that Dairyfood only checks and guarantees the self-sufficient food-chemical properties of the goods supplied by Dairyfood. The properties of the goods in a systemic combination with other foods or with the addition of other chemicals and/or in processing operations shall only be guaranteed if Dairyfood has been expressly informed in writing about the process of processing the goods and the respective substances intended for addition or processing. Subject to separate agreements, Dairyfood shall not be responsible for the results of processing operations carried out by the Customer under its own control.
§ 4 Obligations of the customer to cooperate
The Customer’s obligations to cooperate specified in the offer/order confirmation are primary performance obligations. Dairyfood shall notify the Customer if it is foreseeable that a contractually owed service cannot be provided on time because the Customer has not fulfilled an obligation to cooperate.
Dairyfood may set a deadline for the Customer to comply with the obligation to cooperate. If the Customer still fails to comply with the obligation to cooperate, Dairyfood shall be entitled to terminate the contract and claim damages.
§ 5 Delivery
Delivery by Dairyfood shall be subject to the proviso that Dairyfood itself is supplied correctly and on time and that Dairyfood is not responsible for the lack of availability of the goods or individual components required for their production. The customer may only demand compensation for non-fulfillment after setting a deadline with the threat of refusal.
In the event of delays in delivery due to force majeure, sovereign intervention, natural disasters, war, riots, strikes in Dairyfood’s own plants, suppliers or transporters or due to other circumstances for which Dairyfood is not responsible, Dairyfood shall be entitled to make up for the delivery after the reason for the hindrance has ceased to exist. However, both parties may withdraw from a concluded contract in whole or in part if one of the aforementioned events leads to a delay in delivery of more than two months beyond the agreed deadline. Further claims of the contracting parties are excluded.
The delivery period shall commence at the earliest when the order confirmation is sent, but not before the documents, approvals, etc. to be provided by the Customer have been provided and an agreed down payment has been received. The obligations to cooperate specified by Dairyfood must be complied with.
Delivery shall be effected by making the goods available to the customer from the place specified in the agreement. The delivery deadline shall be deemed to have been met if the delivery item has left the factory by the expiry of the deadline or the customer has been notified that the goods are ready for dispatch.
In the case of deliveries on call, the goods must be accepted in quantities distributed as evenly as possible over the delivery period, unless otherwise agreed. At the end of the agreed call-off period, we are entitled to deliver the entire remaining quantity immediately. In the event of later acceptance, we reserve the right to invoice at the current price.
We expressly reserve the right to make partial deliveries if this is reasonable for the customer.
If a different place of delivery is agreed, the goods shall be made available to the Customer at this place. If Dairyfood does not deliver on time, the Customer must set Dairyfood a written grace period. After the fruitless expiry of this period, the Customer may demand compensation instead of performance and terminate the contract.
Dairyfood shall store the goods at the Customer’s expense and risk during the delay in acceptance. At the Customer’s request, Dairyfood shall insure the goods during the delay in acceptance. After setting a deadline with a threat of refusal, Dairyfood shall have the option of terminating the contract and demanding compensation from the Customer.
If Dairyfood is in default, Dairyfood shall be liable for the damage incurred by the Customer as a result of the delay up to an amount of 15% of the delivery of goods, unless the delay is caused by intent or gross negligence or there is a breach of a guarantee promise or injury to life, limb or health. Claims under the Product Liability Act remain unaffected.
§ 6 Transfer of risk, receipt, acceptance
If the customer has assumed responsibility for transportation, the risk of accidental loss shall pass to the customer as soon as the goods have been handed over to a forwarding agent, a rail carrier, the post office or the customer or have been made available for collection. Unless otherwise agreed in writing, the delivery time shall be deemed to have been met if the ordered goods are ready for dispatch and the customer has been informed of this.
If Dairyfood assumes responsibility for transportation, the risk shall pass to the Customer at the latest when the goods are dispatched, even if partial deliveries are made or Dairyfood has assumed other services, e.g. shipping costs or delivery and installation.
If there is any transport damage, this must be reported immediately to both Dairyfood and the forwarding company carrying out the transport in a verifiable form. This obligation is a contractual secondary obligation of the customer.
If transportation is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day the goods are ready for dispatch.
§ Section 377 HGB must be observed. Upon delivery, the customer shall immediately take a number of samples appropriate to the quantity delivered. A defect does not exist if the arithmetic mean of the delivered goods corresponds to the agreed quality and the legal regulations.
If Dairyfood doubts the results reported by the Customer regarding the quality of the delivered goods, new samples shall be taken by a publicly certified body in Germany or an institution with similar expertise in accordance with DIN EN ISO/EC 17025 and checked by this body. The costs of engaging the certified laboratory shall be borne by Dairyfood if it is established that the goods are defective and by the Customer if it is established that the goods were delivered in conformity with the contract.
In the case of liquid products, all notices of defects must be submitted to Dairyfood immediately after receipt of the goods, but in any case before tapping, processing and forwarding to third parties. If samples are taken, an appropriate number of samples must be taken, secured, stored to an appropriate extent and Dairyfood must be notified of the sampling without delay.
§ 7 Prices
Due to the nature of Dairyfood’s business, prices may deviate from the original amounts stated in the offer. These are price increases that cannot be influenced by Dairyfood and result from trade practices. However, price increases at the expense of the Customer can only be made if material costs for necessary components or personnel costs have demonstrably increased from the moment the order is placed and Dairyfood is not responsible for this. This also includes unforeseeable changes in customs duties, import and export fees, foreign exchange management, etc. Dairyfood shall inform the Customer immediately after recognizing the increase and shall explain the reasons for the price increase to the Customer.
Unless otherwise agreed, all prices quoted by Dairyfood shall apply on an “ex works” basis. Deliveries shall always be made in pallets or other customary transport containers. All prices are subject to the value added tax applicable on the day of delivery. The product prices quoted do not include shipping, insurance and installation costs.
If changes to the original order are agreed, the Customer shall bear the resulting additional costs. Requests for changes must be submitted by the Customer to Dairyfood in writing without delay, but no later than seven days before the agreed delivery date. Changes to the order must be confirmed by us in writing in advance.
The dimensions and weights determined by Dairyfood at the time of the transfer of risk shall be decisive.
The customer is responsible for the customs clearance of the goods. The customs warehouse in Hamburg shall be paid by Dairyfood. The customer shall pay for the costs of payment transactions, in particular the bank charges and the fees for the transfer of payment.
If the goods are sold abroad, the customer is responsible for the payment of the relevant public charges, in particular taxes.
The Customer may only offset claims that are undisputed or legally recognized by Dairyfood.
Value added tax: Dairyfood shall only pay value added tax if this has been expressly agreed. If the Customer does not submit an export certificate in the required form in due time, Dairyfood shall proceed as if Dairyfood itself had to pay the VAT payable under German VAT law. In this case, Dairyfood shall invoice the invoice accordingly or subsequently invoice the Customer for the VAT incurred.
Dairyfood shall be entitled to assign the claims arising from our business relationships.
If the buyer is in arrears with any payment obligations to us, all existing claims shall become due immediately.
§ 8 Retention of title
All deliveries are subject to retention of title. Ownership of the delivered goods shall only pass to the customer upon receipt of all payments from the current business relationship. The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business.
The assertion of the retention of title shall not be deemed a withdrawal from the contract, unless Dairyfood informs the Customer otherwise.
If the goods are mixed, combined or processed with other items, Dairyfood shall acquire co-ownership in the ratio of the invoice value of the delivered goods to that of the other goods at the time of mixing, combining or processing. § Section 947 paragraph 2 BGB shall be excluded. If the Customer acts in breach of contract, Dairyfood may take back the goods subject to retention of title or demand the assignment of claims for return against third parties and, after giving reasonable notice, dispose of the goods at its own expense. The repossession or seizure of the reserved goods by Dairyfood shall not constitute a withdrawal from the contract. This must be expressly declared.
The customer is obliged to store the reserved goods free of charge and to keep them in proper condition at his own expense and to insure them against fire, water and theft. Pledges and transfers of ownership by way of security must be reported immediately.
The Customer hereby assigns to Dairyfood by way of security any claims arising from the resale or any other legal reason (insurance/unauthorized action) in respect of the reserved goods (including all balance claims from current accounts) in proportion to the value of the reserved goods, but not exceeding 110% of the respective outstanding claim.
In the event of seizures or other interventions by third parties, the Customer must notify Dairyfood so that Dairyfood can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure).
Dairyfood undertakes to release the securities to which it is entitled at the request of the Customer to the extent that the realizable value of the securities exceeds the claims to which Dairyfood is entitled. Dairyfood shall be responsible for selecting the securities to be released.
§ 9 Warranty for defects
In the event of quality complaints, only the relevant statutory provisions applicable in the Federal Republic of Germany shall apply. The goods shall be inspected in accordance with the procedure specified in § 64 LFGB or the VDLUFA method book.
In the event of a claim for defects, Dairyfood shall initially be entitled to make a reasonable number of attempts to rectify the defect within a reasonable period of time. If the subsequent performance fails, the customer shall in principle be entitled to reduce the price, withdraw from the contract and/or demand compensation.
In the case of insignificant defects, the right to withdraw from the contract or to assert claims for damages is excluded.
The right to assert warranty claims is also excluded if the defect is caused by the intended use of the goods as a result of normal ageing processes.
The Customer shall bear the burden of proof that Dairyfood is responsible for the defect if the defect is due to the fact that the Customer, without the consent of Dairyfood, stored goods delivered in a manner other than specified by Dairyfood, used the goods in processes other than those notified by the Customer or used the goods for a purpose other than that notified by the Customer.
The warranty period shall be 12 months from delivery of the goods. This shall also apply to claims for damages insofar as Dairyfood cannot be accused of intentional, grossly negligent behavior or claims arising from injury to life, limb or health are affected or a guarantee promise is affected and/or claims under the Product Liability Act are affected.
If the Customer further processes the goods delivered by Dairyfood, he shall bear the burden of proof that he is not responsible for the defect in the event of a defect occurring.
§ 10 Claims for damages
Dairyfood’s liability for financial losses caused by negligence shall be limited to the amount individually negotiated between the parties. This limitation of liability shall not apply to damage caused by gross negligence or intent, damage to life, limb or health or the breach of a guarantee promise. Claims under the Product Liability Act remain unaffected.
Claims for damages shall expire one year after the customer becomes aware of them or should have become aware of them if due care had been exercised. This limitation of liability shall not apply to damage caused by gross negligence or intent, damage to life, limb or health or the breach of a guarantee promise. Claims under the Product Liability Act remain unaffected.
§ 11 Confidentiality
Both parties undertake to maintain the strictest confidentiality with regard to all confidential matters that come to their knowledge in the course of their work for the other party, in particular business or trade secrets of the other party, and not to disclose or exploit them in any other way. This applies to any unauthorized third parties, i.e. also to unauthorized employees of the parties, unless the disclosure of information serves the proper fulfillment of the contractual obligations.
In cases of doubt, each party is obliged to ask the other party for consent before such disclosure.
The above obligations shall not apply to such facts that are demonstrably in the public domain or are part of the known state of the art or were already known to the respective party prior to disclosure by the Customer or were disclosed again after disclosure by the Customer by third parties who were not subject to any confidentiality obligation towards Dairyfood.
§ 12 Data protection
The customer has been informed in detail about the scope, location and purpose of the collection, processing and use of the personal data required for the execution of orders. The customer expressly consents to the collection, processing and use of personal data.
§ 13 Further provisions
Should a provision of this contract or the respective supplementary agreement be or become invalid, this shall not affect the validity of the remainder of this contract and the supplementary agreements.
The parties agree that the law of the Federal Republic of Germany, in particular the German Civil Code and the German Commercial Code, shall apply to all legal relationships arising from this contractual relationship.
If the client is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Bad Segeberg is agreed as the exclusive place of jurisdiction for all disputes arising in connection with the execution of this contractual relationship.