Terms and Conditions – Suppliers

General Terms and Conditions for Suppliers and Service Providers

(February 2016)

1. Scope of Application

The following terms and conditions apply to all orders made by Organic Friends & Sports GmbH (“Company”) vis-à-vis third parties (“Supplier”) including those from future business transactions, even if these are not expressly agreed upon.

The General Terms and Conditions apply exclusively. Any conflicting or deviating conditions on the part of the Supplier shall not be recognized unless expressly agreed upon in writing.

The purchasing conditions also apply if the Company is aware or opposing or divergent conditions unconditionally accept the delivered goods or services.

2. Order Confirmation, Cancellation

All offers made by the Supplier are non-binding, if they are not confirmed in writing or via email by the Company. Oral or written (including emails) offers are binding for the Supplier for a minimum of 14 days. Placed orders are to be accepted by the Supplier in writing within three business days. Requests made by telephone for partial quantities of a total allotment agreed upon in writing is possible.

Errors in the order, especially clerical errors entitle the Company to subsequent modification, insofar as the error is obvious to the Supplier and the subsequent modification is reasonable. If the order with the subsequent modification cannot be executed by the Supplier, the Company is entitled to cancel the agreement without the Supplier being entitled to damages.

If the Supplier’s financial position should deteriorate to such an extent pursuant to conclusion of the contract and prior to performance of the contractual delivery and/or services thus calling into question the proper performance of the contract or justified doubt regarding the Supplier’s performance arise, the Company is entitled, without preannouncement, to cancel the contract. Damages against the Company due to or in connection with such a cancellation are excluded.

3. Offer Documents

The Company reserves the right of ownership and copyrights of images, recipes, calculations, plans and other technical and other business documents.

Said documents are to be returned to us, without request, on completion of the order. They are to be kept from third parties; in this regard provision of Paragraph 11 shall also apply.

4. Prices, Terms of Payment

Prices are binding and rule out any subsequent demands on the part of the Supplier.

Costs for packaging and shipping to the point of destination are included in the price. The respectively valid VAT is to be added on.

5. Delivery Dates, Service Disruptions, Documents

Deliveries are to be free of charge, unless otherwise agreed upon in writing.

The transfer of risk occurs when the goods arrive at the point of destination.

With regard to service contracts, risk is transferred upon acceptance by the Company. Should the Company, subject to special contractual agreement, assume the shipping costs, risk is also transferred when the goods are unloaded at the point of destination.

The agreed upon delivery dates are binding and must be complied with.

The Supplier is obligated to specify the Company’s order number on all shipping papers. Otherwise, the Company will not be responsible for processing delays.

If the deadlines specified by the Supplier’s order confirmation differ from those specified in the order are only relevant, if the Company has confirmed these in writing. Timely delivery shall depend on timely receipt at the place of delivery stated on the order, for other services upon acceptance.

The Company is not obligated to accept non-agreed upon partial deliveries. The Company reserves the right to return such partial deliveries at Supplier’s cost and risk and/or extent the term of payment until the receipt of the complete order. The Company also has the right to return quantities that exceed the agreed upon delivery quantity. The costs arising from partial deliveries or excess quantities – especially costs for increased processing time and possible costs of interim storage – will be borne by the Supplier.   Other statutory rights remain unaffected by this provision.

The supplier shall be obliged to notify the Company without delay if circumstances become apparent which indicate that the agreed deadlines cannot be adhered to. If the Company agrees to delayed delivery or service the delivery period shall be extended by the agreed upon dates. Force majeure only relieves the Supplier, if he has adhered to the disclosure obligation.

The Supplier shall be liable to the Company for any direct or indirect damages that arise from the delayed delivery or service, insofar as the Supplier and/or his subcontractors are responsible for the delay. Acceptance of the delayed delivery or services does not constitute a waiver of claims for damages.

In case of delay, the Company shall be entitled to claim a contractual penalty for the delay in an amount of 0.3% of the order value for commenced business, not more, however, than 10% maximum of the order value, if the Supplier cannot prove lesser damages. If the contractual penalty can be claimed until the final invoice if the acceptance of delivery, service or supplementary performance are not rendered.

If the agreed upon delivery dates are not met due to a circumstance that is the Supplier’s responsibility, and if the underlying contract is a transaction where time of the essence in accordance with Article 376 HGB, the Company may immediately assert that its interest in the further performance of contract has discontinued and request damages for non-performance.

In the case of unforeseeable and unavoidable events, such as natural disasters, riots, and other cases of Force Majeure, the agreed upon delivery and performance dates will be extended for the duration of the disruption, if the Supplier has informed the Company in writing within 24 hours of the commencement of such events. Should the Force Majeure last longer than one month after the expiration of the agreed upon delivery or performance date, the Company is entitled to cancel the agreement in part or in full. In the event of a partial cancellation, the Supplier is entitled to cancel the agreement if he is no longer interested in fulfilling the contract.

Deliveries must state the prescribed information. In the event of non-adherence, the Company is entitled to reject acceptance of the delivery. This also applies to deliveries made to third parties on behalf of the Company. When delivering on pallets, it should be kept in mind that only perfect, exchangeable euro pallets (DB standard) are to be used. Should the Company receive damaged pallets, it shall be entitled to charge Supplier for the replacement costs. The Company must expressly authorise delivery on one-way or special pallets.

The Supplier is obligated to label his packaging material with the he uses with the   be made in accordance with the markings required by German law, especially “Der Grüne Punkt” of the Duales System Deutschland GmbH, if nothing else has been agreed upon. The Supplier exempts the Company from possible third-party damages claims, especially of the Duales System Deutschland GmbH, arising from the culpable breach labelling obligations on the part of the Supplier.

The Supplier is responsible for the proper disposal of transport packing material and will occur at his cost. The obligation of the supplier to take back packaging is subject to the legal provisions.

The Company is only obligated to accept deliveries if they adhere to these agreed upon specifications or other guaranteed characteristics.

6. Payment

Payments shall be made within 30 days with a 3% discount or net within 45 days.

The payment terms start with receipt of the invoice, yet not before receipt of the ordered goods.

Payment has been rendered on a timely basis by the Company when the amount has been debited to the Supplier’s bank account by the deadlines listed hereinabove.

Invoices must always include the order number issued to the Company, otherwise the payment term will not have commenced.

The Supplier is not entitled, without the Company’s prior written consent, to assign any claims from the contractual relationship to third parties.

The Company is entitled to offsetting and retention rights within statutory limits

7. Food Regulatory Due Diligence

The Supplier guarantees that the delivered goods, including the packaging adhere to the corresponding German and EU regulations and adhere to the respective generally accepted standards and that they have been manufactured and handled under impeccable conditions, as well as the required care and usage of the required hygiene and quality controls.

With regard to the delivery of technical material, which encompasses packaging material, it also guarantees that such material is state of the art, whereby consumer goods must adhere to the recommendations made by the Federal Institute of Risk Assessment.

Upon request, the Supplier will provide the Company control documentation regarding the adherence to these regulations.

After prior notification by the Company, the Supplier grants the Company the right to check Supplier’s adherence to the regulations during normal business hours, and to decline delivery if quality deficits have been determined.

The Supplier ensures the complete traceability of the goods so that, in justified cases, especially if the goods endanger life and limb, necessary measures can be undertaken. Supplier will also ensure that pre-suppliers also guarantee the traceability of their goods.

8. Claims for Defects

The Supplier must provide the deliveries/services owed free of material and legal defects.

The Supplier must comply with the prevailing safety and health regulations at the place of destination.

Liability restrictions and exclusions on the part of the Supplier will not be recognised.

In case of a defect, the Company shall have all and unlimited rights according to the applicable statutory law. The Company may choose the rectification of the defects or demand a substitute delivery. If, after an appropriate grace period, the replacement has not been delivered, the delivery has failed or the deadline was superfluous, then the Company may cancel the contract in accordance with statutory stipulation, as well as demand damages or a price reduction. Further contractual or legal claims shall remain unaffected.

Defect claims shall become time-barred 24 months after the delivery. The company shall have the right of recourse against pre-suppliers for warranty claims filed by consumers in accordance with §§ 478 Para. 2 and 479 of the German Civil Code (BGB).

9. Reprimand Duty

Obvious defects will be notified by the Company immediately, or within 14 days after delivery or acceptance of delivery or service. Defects that become apparent later (hidden defects) the reprimand period will commence upon detection of the defect.

If larger quantities of identical goods and/or the necessary destruction of the original packaging in order to examine the goods, the inspection obligation according to § 377 of the German Commercial Code (HGB) is fulfilled by the inspection of random samples, insofar as the random samples are suitable to provide information about the quality of the entire delivery.

Defects determined by random sample testing of part of identical goods entitled the Company reject the entire delivery, insofar as the result provides information about the quality of the entire delivery.

The timely dispatch of the defect notice shall suffice to preserve the Company’s rights.

10. Third Party Protective Rights

The Supplier shall ensure that the Company does not infringe on the protective rights of third parties through their usage and/or distribution of the goods, especially formulations.

The Supplier shall indemnify the Company against all claims arising from the infringement of a commercial protective right and will be responsible for the costs of safeguarding our rights, if such claims are based on culpable violation of duty by the Supplier.

The Company shall inform the Supplier immediately in the event of a claim.

11. Retention of Title

Where the Company provides the supplier with materials, title of the same remains with the Company. Processing and transformation by the Supplier are to be carried out for us. If the goods supplied under reservation of title are mixed during processing with other goods not belonging to us, then we shall acquire co-ownership of the new item created in the ratio of the value of the goods supplied under reservation of title (final invoice value including value-added tax) to the value of the other goods processed at the time of processing.

If the goods supplied under reservation are intermixed with items not belonging to the Company, then Paragraph 1 applies. If such intermixing is done so that the Supplier’s item is to be regarded as the primary item, the Supplier shall assign co-ownership to the Company proportionally.

The Company also reserves title to tools provided to the Supplier. The Supplier is obligated to use the tools exclusively for processing the goods ordered by the Company.

12. Product Liability

Product liability not covered by a contract is governed by statutory stipulations.

The Supplier shall indemnify the Company against any and all claims arising out of product liability if such claims are due to a defect in the goods delivered by the Supplier.

As part of its liability for cases of damage within the meaning of Paragraph 1, the Supplier shall also reimburse any expenses in accordance with §§ 683, 670 BGB and §§ 830, 840, 426 of the German Civil Code (BGB) incurred by the Company. Where it is possible and reasonable to do so, we will notify the supplier of the content and scope of the recall campaigns or other field or service campaigns to be conducted, and will give the supplier the opportunity to comment thereon. This shall not affect any other statutory claims.

13. Non-disclosure, Data Protection

All documents and samples received by the Supplier from the Company are to be treated confidentially and may not make them available to third parties or used in another way without prior written permission.

The Company reserves the right to request the return of said documents at any time, if the Supplier violates such obligations or the contractual relationship has been liquidated.

The Supplier is obligated to keep all the operational data and information connected with its business dealings with the Company, and relating to their clients, confidential, this also encompasses all of the Supplier’s employees and subcontracts. Excluded here from is publicly available information.

The Company is entitled to store all the data made available to them by the Supplier in connection with contractual agreements, especially personalised data and to process such information for contractual purposes.

14. Place of Performance

The place of performance for deliveries and services shall be the respective place specified by the Company; for payments, it shall be the Company headquarters.

15. Place of Jurisdiction and Applicable Law

The place of jurisdiction shall be the Company’s registered headquarters in Hamburg.

The laws of the Federal Republic of Germany shall be applicable.

16. Final Provisions

In the event that one or more of the provisions of these Terms and Conditions should be or become invalid this shall not affect the validity of the remaining provisions.

In this case, the Company and Purchaser are obligated to replace the invalid provisions with a provision that is legally possible and which comes closest to the void provision as possible.

17. Translation

In case of differences in the English and German version of these GTC, the German original version is leading and arbitrative.

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