General Purchasing and Procurement Conditions
I. General
1.
These General Purchasing and Procurement Conditions (hereinafter: “GPPC”) govern the instant order as well as all future agreements for delivery of goods by AULBACH GmbH & Co. KG. As far as the buyer’s purchasing conditions reach the seller prior the first signing of an agreement or later, shall these only apply in case of individual and expressed affirmation on the respective order. The buyer accepts this as a contractual basis by receipt of the conformation of order and waives provisions of his own purchasing conditions exceeding legal requirements or conflicting with these GPPC.
2.
In accordance with Article 27 Einführungsgesetz zum BGB the legal relationship between the vendor and the buyer shall be governed by German law subordinate to these respective GPPC.
3.
As far as correspondence prior to the order respectively subsequent agreements refer to customary terms, these terms shall be construed in accordance with “Incoterms”.
4.
As far as the respective confirmation of order deviates from the order, which is acceptable in customary amounts concerning quantity, weight and type, the buyer shall immediately object prior to the set date of delivery by email, fax or other documented means.
II. Subject of the contract
1.
Subject of the contract is solely the respective sold product with its qualities, characteristics and its intended purpose according to the product specification at buyer’s hand. Other or further qualities and characteristics or intended purposes shall only be treated as agreed on if the vendor has given its written consent to the buyer’s written request.
2.
The buyer is obliged to promote for the acquired goods in veritable and due form. The buyer and the seller are aware of the possibility of warranty claims referring to incorrect promotion. The buyer shall indemnify the seller of claims accruing from incorrect promotion and settle third party claims on the seller’s request.
Subject of the contract is solely the respective sold product with its qualities, characteristics and its intended purpose according to the product specification at buyer’s hand. Other or further qualities and characteristics or intended purposes shall only be treated as agreed on if the vendor has given its written consent to the buyer’s written request.
2.
The buyer is obliged to promote for the acquired goods in veritable and due form. The buyer and the seller are aware of the possibility of warranty claims referring to incorrect promotion. The buyer shall indemnify the seller of claims accruing from incorrect promotion and settle third party claims on the seller’s request.
III. Packaging and labelling
1.
Packaging is transport packaging. Packaging is not intended to be used by means of decoration. In accordance with “LMKV” defective or opened packing shall not be delivered to consumers. In case that packing pulls air the content shall be tested of its capability to consume and shall be preferentially manufactured as long as it is riskless and permitted by food law.
2.
In case that the buyer treats the goods or delivers them untreated to locations where other labelling as at the sellers residence is required, conformity with legal prescriptions is a buyer’s duty.
IV. Testing
In case of testing samples of the delivered goods either by food authorities or due to the buyer’s quality management, the buyer shall immediately send two crosscheck samples cooled in due form on his costs. One sample will serve identification whereas the other sample will serve a later proof by the seller.
V. Offering and prices
1.
Offers are subject to change and without engagement. The contract will be concluded by the buyer’s receipt of the respective confirmation of order.
2.
In case that the costs of the base products to be treated will alter between the confirmation of order and the date of delivery, both the buyer and the seller may request an adjustment of the purchase price if the final purchase price is influenced thereof. In long term delivery agreements the seller shall be entitled to adjust the purchase price if there is a period of four months between the conclusion of the contract and the delivery.
3.
In the event of a purchase of approval the samples do not count as a minimum quality, but rather as an average sample of medium type and quality according to § 360 HGB. A warranty according to § 443 BGB is not granted.
4.
Allocated samples are unaccommodating illustrative material without any warranty regarding a certain quality regarding the buyer’s intended orders.
5.
Where required by the buyer, warranties shall be in writing and agreed on for the individual contract.
VI. Delivery and acceptance
1.
Ability of delivery is reserved. In the event the respective goods are not available the seller will immediately inform the buyer and reimburse advance payments. Terms of delivery will be observed as possible, but without any commitment. An adequate respite is granted as far as there is no contrary individual provision agreed on.
2.
Shipping respectively delivery takes place uninsured and on the buyer’s account and risk. Risk will pass by acceptance of the delivered goods either by the buyer, by the carrier or by the stock keeper. This applies also in case carriage free delivery is agreed. Furthermore this clause applies in case the buyer did not make any requirements concerning the carrier or stock keeper and therefore the carrier or stock keeper has been chosen by the seller. The seller is not obliged to provide for the cheapest and fastest delivery, but rather for a safe delivery and storage.
3.
The buyer respectively his commissioned carrier shall observe dates of collection on behalf of the required cold chain and food law and hygienic regulations. The buyer bears all costs accruing from ineffective preparation of the respective goods in the seller’s stock keeper’s premises.
4.
The buyer is obliged to return empties, such as “Euro-boxing”, pallets and “Euro-hooks”, hygienic correct cleaned and in same type, quantity and amount as received. In case the buyer is unable to fulfil his aforementioned obligation contemporaneous with the delivery of goods, the buyer shall immediately provide an adjustment of his empties account on his costs and send back the goods to the seller.
5.
The buyer shall accept the goods once notification of preparation is made respectively at the date agreed on the individual contract. After setting an adequate respite the seller may resign from the contract or claim damages. In the latter case the seller shall be entitled to demand an amount of 20 percent of the purchase price as damages without providing evidence of a concrete damage. The seller may claim a higher concrete damage.
6.
On the seller’s or the commissioned carrier’s or stock keeper’s request the buyer shall accept goods also beyond ordinary business hours, e.g. Sundays and public holidays.
VII. Inspection and notification of defects
1.
The buyer shall immediately examine deliveries concerning quantity, weight and defective packaging and record objections on the delivery receipt or consignment note.
2.
The buyer shall conduct quality controls at least by taking samples. Therefore the buyer shall open packaging and prove the goods´ appearance, smell and taste in adequate amount, whereas frozen goods shall unfreeze at least by taking samples.
3.
Defects shall immediately be objected to the seller via email or fax in accordance with §§ 377, 378 HGB. In case of hidden defects objections shall be made until the following working day of the obliging ascertainment in accordance with food law.
VIII. Payment
1.
Payment becomes due with the receipt of the invoice and is payable without any deduction unless a discount or bonus is granted by individual agreement. If delivery is posterior payment becomes due with the delivery. A possible discount is granted on the net value plus sales tax. The granting of discount premises that there is no outstanding account. In any case payment shall be made within 30 days after the receipt of the invoice, otherwise the buyer is in default according to §§ 286 III, 288 BGB.
2.
The Seller’s representatives are not entitled to receive payments.
3.
The seller reserves the acceptance of bills of exchange. A possible acceptance will not serve as completion. Completion will occur not until the discharge of the bill including fringe benefits, e.g. interest and expenses, which will put into account from due date. If the buyer is in default of his payment obligations or his or a due to the bill of exchange obliged third party’s solvency decreases the seller shall be entitled to demand immediate payment of all of his receivables, whereby the reason for the acceptance of the bill of exchange and the deferment of payment is rescinded.
4.
If payment is not according to the contract the seller may revoke his allowance for treatment concerning the delivered goods and keep them as a security without a buyer’s right of retention. The same applies in case of dishonour of a bill of exchange.
5.
The buyer shall only exercise rights of retention against pecuniary claims if the right of retention is either undisputed or legal binding ascertained.
6.
The buyer shall not perform payments of a later due date if previous debts are not equally secure unless the buyer provides sufficient security.
IX. Retention of title
1.
The ownership of the goods shall remain with the seller until payment in full is received and until all further pecuniary claims accruing from the relationship are deemed.
2.
As far as the delivered goods are treated at the buyer’s premises, this occurs on behalf of the seller as a supplier as the case may be together with other suppliers. In consequence the seller becomes co-proprietor of the newly created good.
3.
The buyer may sell the delivered goods either untreated or treated. The buyer is not entitled to charge the goods with third party receivables unless they are expressly lower ranked than the seller’s claims.
4.
The buyer assigns his purchase price receivables already to the seller in case of selling-on corresponding to the purchase price of the goods. This assignment is prior to the value of treatment.
5.
If the buyer does not perform his obligations accruing from the legal relationship or in the event the buyer’s solvency degrades the seller may take the goods, which he is owner of, into his possession. Therefore the seller may enter the buyer’s premises and storage rooms and respectively may commission expert third parties. In case of imminent danger the seller may remove the goods from the buyer’s premises. The buyer shall immediately grant access to his premises, so that the seller is able to record and mark the respective goods.
6.
The buyer shall immediately provide the seller with a complete record of his receivables, where invoices underlying deliveries of the seller are labelled.
X. Warranty
1.
In the event of a legitimate notification of defects the buyer is entitled to claim replacement delivery. At sellers option the seller may take an adequate deduction of the purchase price. The same right applies to the buyer. Further recourses are excluded unless performance of the contract is not reasonable.
2.
Further claims for damages are excluded, likewise consequential harm caused by a defect, unless there is intent or gross negligence on the part of the seller or his assistants.
3.
The buyer waives the defence of set-off with receivables assigned from third parties unless the receivable is undisputed or legally binding ascertained.
4.
In the event the buyer sends back goods, which he objected as defective, the receipt will not state a confession of the defectiveness. The receipt in principle takes place due to obligingness.
5.
In the event of claiming defectiveness the buyer shall proceed according to “IV. Testing”.
6.
At treatment of the delivered goods with goods delivered by third party suppliers it is part of the buyer to prove the quality and ability to consume prior to the treatment. Otherwise it is assumed that defects of an interstage or final product do not result of a defect of the seller’s goods.
7.
Both contracting parties are obliged to procure customary product liability insurance and to comply with all food law and hygienic regulations providing documentation thereof.
XI. Disclosure and confidentiality
1.
Both contracting parties shall immediately provide the other party with all necessary information in the event of any problems occurring due to the legal relationship.
2.
Both contracting parties are mutually obliged to strict confidentiality, particularly with regard to third parties concerning all information provided during the legal relationship. This shall not apply to information which is
a)
to be disclosed by reason of law or by order of public authorities,
b)
known to public other than by breach of this agreement,
c)
information which a party can show was in its possession before receiving it from the other party,
d)
to be disclosed by order of court.
In any case both parties are mutually obliged to inform the other party in writing before the disclosure of the respective information. Email and fax will suffice.
XII. Appendix to the web presence www.aulbach.com
1.
All rights are reserved. The AULBACH GmbH & Co. KG is owner of all information provided. The provided information displays the newest information in time. Warranty or liability concerning actuality, correctness and completeness of the information and data is not incurred. This applies also to any other website which is referred to by hyperlink. The AULBACH GmbH & Co. KG is not liable for the content of these websites.
2.
Information provided on the website is not legally binding in any case. The AULBACH GmbH & Co. KG reserves the right to amend the information and data provided. Regarding the provided information legal title cannot be derived. All offers are unaccommodating.
3.
The AULBACH GmbH & Co. KG cannot be held liable neither for direct nor indirect damage arising from the usage of the information or data provided on the website. Between the AULBACH GmbH & Co. KG and the user of the website no rights or obligations exist or develop from usage of the information provided.
4.
The website content of www.aulbach.com is protected by copyright. The content shall not be copied, published or used in information systems without prior written consent of the AULBACH GmbH & Co. KG.
5.
All information and data, their usage and all with the AULBACH GmbH & Co. KG connected performing, bearing and omission is governed by German law by excluding international law. Place of fulfilment and exclusive jurisdiction is Aschaffenburg.
XIII. Other provisions
1.
Should any provision of this agreement be or become ineffective, this shall not affect the validity of the remaining provisions.
2.
Place of fulfilment is both for the performance of the seller and the buyer Hösbach, unless otherwise agreed. If delivery takes place by the seller’s own vehicles, the place of acceptance shall be place of fulfilment.
3.
Amendments to this agreement shall be made in writing. This applies also to the aforementioned writing clause.
4.
The contractual relationship between the seller and the buyer and any claims resulting therefrom are exclusively subject to German law. International law is excluded.
5.
The courts at Aschaffenburg shall have exclusive jurisdiction in any disputes arising from the legal relationship.
6.
If a provision of this GPPC agreement is ambiguous and therefore requires interpretation the German version shall prevail.