Terms and Conditions – Customers
General Terms and Conditions of Sale and Delivery for Purchasers
1. Scope of Application
The following terms and conditions apply to all deliveries and services provided by Organic Friends & Sports GmbH („Company“) to the contracting party („Purchaser“), including those from future business transactions.
The General Terms and Conditions apply exclusively. Any conflicting or deviating conditions on the part of the Purchaser shall not be recognized unless expressly agreed upon in writing.
Orders or acceptance of a delivery are deemed to be an acknowledgement of these conditions.
2. Offer, Acceptance, Order Confirmation
The Company’s offers are subject to change with regard to delivery, delivery periods and prices.
Orders are binding and may be accepted by the Company within 14 days from entry. The order shall be accepted by a written acknowledgement of order or by the execution of the order.
Should the order confirmation deviate from the order, agreement on the part of the Purchaser is considered given, if the Purchaser does not immediately object.
3. Place of Fulfilment, Delivery
Place of fulfilment are the Company headquarters.
All deliveries shall be made ex works (INCOTERMS 2010) unless otherwise expressly agreed upon.
Any risk shall pass to the customer as soon as the shipment is offered to the customer at the place of fulfilment.
Each delivery is carried out subject to the correct and timely deliveries from the Company’s suppliers. All cases of force majeure as well as any official measures, strikes or other events beyond our control shall release the Company’s from its obligation to deliver. The Company has the right to deliver at the next possible delivery date, insofar as the Purchaser is able to accept delivery. Otherwise, the Company is entitled to withdraw from the contract.
In the event of other delivery delays, the Company shall be liable only in the event of intent or gross negligence.
Any additional costs arising from the Purchaser’s special delivery requests will be borne by the Purchaser.
The Company shall have the right of instalment delivery. In such instances, these conditions shall apply in their entirety.
Orders shall be delivered at the earliest possible date unless otherwise agreed upon.
Delivery dates are only binding, if the Company has confirmed them in writing.
If shipping has been agreed upon, delivery dates and deadlines refer to the time of transfer to the forwarder, carrier, or other third party assigned to transport the goods.
Unless otherwise agreed, all prices are to be understood as net prices plus value-added tax (without deduction) ex works (Incoterms 2010), plus the current rate of VAT. To the extent no other agreements have been made, the invoice value calculation will be based on the Company’s sales price on the day of the incoming order.
5. Inspection and Notification
Upon delivery at the agreed upon destination and/or if collected, Purchaser is obligated to inspect the goods immediately at his/her own costs according to
a) Quantity, weight and packaging and to note any reclamation on the purchase order or bill of lading, and
b) To conduct a quality check by inspecting at least a random sample by opening an appropriate number of packaging (boxes, sacks, packs, etc.) and to examine the goods according to quality, smell, and taste.
c) To determine, via random sample, if the reclamation was an isolated case or whether a production or a handling error exists that affects the entire lot. to determine if the reclamation
In the case of notification of possible defects Purchaser must adhere to the following formalities and deadlines:
a) The notification must ensue by the end of the business day on which the delivery and/or collection took place. Notification of hidden defects that remained undiscovered despite a proper first inspection shall be handled in accordance with number 1b.) Initially remained undiscovered, the following shall apply: the notification must occur by the end of the following business day, but no later than 2 weeks after delivery or acceptance of the goods.
b) The notification must be sent to the Company within the aforementioned deadline via telegram, telex, or telefax. Notification via telephone is not sufficient. Notifications vis-à-vis sales representatives, brokers, agents are not sufficient.
c) The type and scope of defect must be clearly discernible in the notification.
d) The purchaser must make the disputed goods available at the inspection site for inspection by the Company, their supplier or Company agent.
Any complaints with regard to quantity, weight and packaging of the goods are excluded, insofar as Number 1a.) required notation on the purchase order or bill of lading is missing.
Moreover, any reclamation is excluded as soon as the Purchaser mixes, sends, sells, has commenced with the processing or traceability has been interrupted. In the event of a notification the Purchaser must ensure that the goods have remained unchanged and/or can be returned in the delivered packaging form.
Notification of goods that does not follow the above-mentioned formalities and deadlines are deemed authorised and accepted.
6. Warranty and Liability
The quality of the goods shall be governed by mercantile custom, unless, in the individual case, otherwise agreed upon and confirmed by the Company in writing. The agreed upon quality of the goods is based on the product description.
The Company guarantees that the goods comply with the contractually agreed upon specifications and the mandatory European Union regulations.
Claims regarding the delivery may only be made by the Purchaser and are non-transferable.
If not expressly agreed upon, all product specifications are not guaranteed characteristics, but merely descriptions or labels. A guaranteed characteristic only exists if it is labelled as a “guaranteed characteristic”.
The Company is not liable for natural transport shrinkage, or for customary fluctuations in the quality or appearance of the goods.
Minimal discrepancies in shape, colour, taste or consistency cannot be ruled out, and thus, do not represent a defect.
Insofar as a notification does not occur within the deadlines stated in Number 5, Paragraph 2 hereinabove, the Company is not liable for material defects, incorrect deliveries, shortages, etc.
In the event of a correct notification, the Purchaser is entitled to subsequent fulfilment. The Company may fulfil this entitlement by remedying the defects or via a supplementary delivery of the goods to the original delivery destination. If the supplementary delivery fails or if it is not performed within a reasonable deadline set by the Purchaser, then the Purchaser is entitled to either a dissolution or reduction.
Claims for damages caused by defects and consequential damages based on the delivery of defective goods shall be excluded, unless the defects were negligently or intentionally caused by the Company or vicarious agents.
7. Food Regulatory Due Diligence
In fulfilling his/her due diligence obligations the Purchaser is obligated to conduct a quality check.
The Purchaser is obligated to provide the Company with all the information regarding product defects (especially customer complaints) and to immediately and comprehensively support the Company with regard to recalls.
If the Purchaser discovers a defect that limits or excludes the food regulatory marketability of the goods, he is thus obligated to inform the Company by the end of the business day following the day of discovery. The Company is entitled attribute damages to the Purchaser in the event of non-notification.
If the Purchaser discovers a defect that excludes the marketability of the goods, he will take suitable precautions that will prevent the accidental distribution, processing or resale of the goods.
8. Sample Taking
If official food inspectors or other institutions, who are legally authorised to take samples from goods delivered by the Company the Purchaser must ensure that the respective inspector leaves a sealed counter sample for each sample taken and issues a written confirmation regarding the sample taking.
Then the Purchaser is obligated to store the counter sample properly and ensure its longevity and to immediately inform the Company regarding the sample taking and to provide the Company with a copy of the sample taking certification. Damages arising by failing to inform the Company regarding the sample taking or the improper storage of the counter sample will be borne by the Purchaser.
9. Loaned Packaging/ Loading Aids
Reusable pallets, loaned packaging and boxes remain the property of the Company.
They are to be emptied as quickly as possible and returned to the Company in an orderly condition.
The Company reserves the right to require a deposit for packaging material. Insofar as the material is not returned, the Company is authorised to issue subsequent billing based on the pre-supplier day value.
10. Retention of Title
All deliveries are subject to the retention of title. Title is transferred to the Purchaser only after he has paid the purchase price in full. This also applies, if the purchase price for specific goods, defined by the Purchaser, has been prepaid.
In the event of a running account the retained ownership is deemed as security of our balance claim.
If cheques were issued for payment, redemption is considered payment.
If goods under the retention of title are sold the Purchaser will assign the arising claims to the Company. The transferred claims are deemed security for the Company until the Purchaser has fulfilled all his obligations.
Interference by third parties in the retention of title are to be reported immediately to the Company. Intervention costs are to be carried by the Purchaser.
In the event of overdue payments on the part of the Purchaser the Company may retrieve the goods delivered under retention of title. The Purchaser hereby irrevocably waives the assertion of pleas or objections should the Company make use of such right.
The retention of title does not release the Purchaser of his liability for the loss or accidental deterioration of the goods once they have gone into his possession.
The retention of title goods is to be sufficiently insured by the Purchaser against fire, water, theft, etc.: All rights and claims of the Purchaser against insurance companies based on the insurance of the reserved goods shall be assigned / transferred to the Company by way of security upon conclusion of the contract until all claims under the business relations with the Purchaser have been satisfied.
Unless agreed otherwise the net amount invoiced, with no deductions, shall be due upon receipt of the invoice, however, not later than upon delivery of the goods.
Any deferment of the amount invoiced shall require the Company’s written confirmation.
In the event that the Purchaser fails to pay within a period of 7 (seven) days or the agreed upon due date after receipt of the invoice and/or delivery of the goods by the Company or a cheque or a bill of exchange for the account of the Purchaser is not honoured by the Purchaser’s credit institute the Company shall be entitled to charge the legal default interest of 8% p.a. above the relevant base interest rate and dunning charges as of the date of the arrears. The claim for further damages is not thereby excluded.
In the event the Purchaser fails to pay on the due date, the Company shall be entitled to refuse performance of all current transactions and refuse to conclude any new transactions. Instalment payments shall be set off exclusively in accordance with the legal provisions, even if that is in conflict with the Purchaser’s provision. The claim of a right of retention or to set-off with counter claims is excluded unless such claims are undisputed or legally established.
12. Data Protection
The Company points out that they electronically store the Purchaser’s data necessary for the course of business, such as name, address, order, etc., in a data processing system. The data shall be protected from misuse in accordance with the provisions of the Federal Data Protection Act. The Purchaser hereby agrees to the storage of this data.
13. 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.
14. 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.
In case of differences in the English and German version of these GTC, the German original version is leading and arbitrative.