General terms and conditions of sale and delivery
of Copack Tiefkühlkost Produktionsges. mbH
vis-á-vis business enterprises
All of the offers and agreements are solely based on the following general terms and conditions of sale and delivery. We will not recognize the customer's terms and conditions that conflict with our terms and conditions or diverge from them unless we would have expressly consented to their validity in writing. Our general terms and conditions of sale and delivery also apply whenever we have made the delivery to the customer while being aware of the customer's conflicting or diverging terms and conditions.
Any verbal promises that have been made before concluding this contract are not legally binding and any verbal arrangements that are made between the contracting parties will be replaced by the written contract, insofar as it does not arise expressly from them respectively that they will continue to be binding.
Any supplements or revisions of the agreements that have been made - including these general terms and conditions of sale and delivery - require the written form in order to be effective. Our employees are not entitled to make any verbal arrangements which diverge from them, except if they are made by the directors or authorized signatories. It suffices for safeguarding the written form that the transmission is made by fax or e-mail, insofar as the copy of the signed declaration will be transmitted.
Our general terms and conditions of sale and delivery also apply to all future contracts that will be made with the customer within the framework of the existing business relationship.
The general terms and conditions of sale and delivery especially apply to the contracts about the sale or delivery, or both, of movable articles ('goods'), irrespective of whether we manufacture the goods ourselves or we buy them from suppliers (Articles 433 and 651 of the German Civil Code). Insofar as nothing else is agreed, the valid edition of the general terms and conditions of sale and delivery, or the edition that was lastly notified to the customer in the form of text or via a link to our home page at the point in time when he placed his purchase order, will also apply to similar future contracts as the basic agreement, without us having to refer to it again in every individual case.
Our general terms and conditions of sale and delivery only apply vis-á-vis those persons who exercise their commercial or independent occupational activity when concluding a legal business transactions with us (business enterprises for the purposes of Article 14 of the German Civil Code), legal entities (personae fictae) according to public law and special assets according to public law for the purposes of Article 310, Para. 1 of the German Civil Code.
II. Conclusion of the contract and purchase of our goods
Our offers are basically subject to confirmation and they are given without engagement until the customer has declared his acceptance, at least in the form of text. We will be bound to the prices that are quoted in the offer for 30 days from the offer's date, insofar as the customer has not declared his acceptance of the offer in writing beforehand. A contract will only materialize with us whenever the customer has received our acknowledgement of the order or we begin to make the deliveries or provide the services. The drawings, illustrations, sizes, weights or other data about the performance will only be binding if they are expressly agreed.
The contract will be made subject to the reservation of correct and timely self-delivery by our upstream suppliers as well as subject to the results of the harvest that are adequate for fulfilling the contract. This reservation only applies in the case that we are not responsible for the lack of delivery and especially in the case that a similar hedging transaction is concluded with the upstream supplier. We will inform the customer immediately if the service is unavailable and we will reimburse him immediately on the basis of counter-performance (quid pro quo).
Only those properties and characteristic features which are quoted in our offer or in our confirmation of order are included in the agreed quality of our goods. Any other properties and characteristic features, or far-reaching properties and characteristic features, will only be included in the agreed quality if we have expressly agreed them with the customer as such.
The declarations that we make about the quality and shelf life of the goods, with which we grant additional rights to the customer irrespective of his legal claims in the case of a claim under the guarantee, will only represent a guarantee of quality and shelf life for the purposes of Article 443 of the German Civil Code if we have expressly described them as a guarantee. The customer's rights in the case of a claim under the guarantee solely arise from the declaration of the guarantee.
We reserve the right to alter the formula or recipe at any time, insofar as the alteration is reasonable for the customer. It is assumed that the alteration will be especially reasonable for the customer whenever the properties of the products will not be essentially altered as a result. The right to alter the formula or recipe will not be vested in us if anything else has been expressly agreed.
III. Delivery and the passage of risk
The deliveries will be made free of charge to the buyer's address (franco domicile) insofar as nothing else is expressly agreed; whereby the customer will bear the risk of transport.
Partial deliveries are permissible insofar as they are reasonable for the customer; unless they are expressly excluded.
If the goods will be delivered in response to the customer's call-forward notice, then the customer must accept the goods by 3 months at the latest after concluding the contract. If the customer does not accept the goods within this time limit, or he does not accept them completely, then we will be entitled to either withdraw from the contract or to present an invoice to the customer for the goods with a due date for immediate payment, irrespective of the [lacking] acceptance. Further legal rights and especially self-help by way of sale remain unaffected.
The risk of accidental destruction or accidental deterioration of the goods will pass to the customer as soon as we have handed over the goods to a carrier, freight-forwarder, or another person or establishment that is specified for dispatching the consignment and at the latest when the goods leave our factory or warehouse. This condition also applies to partial deliveries and it is irrespective of whether a delivery free of freight charges has been agreed. If the goods are ready to be dispatched and the consignment is delayed because of reasons for which we are not responsible, then the risk will pass to the customer when he receives our notice of readiness to dispatch them.
If the goods will be dispatched with loading aids (pallets, etc.), then the customer will be obligated to deliver the same number and quality of loading aids back to use free of charge in the case of using the pallet-exchange system. If he does not fulfil this obligation even within a reasonable time limit that has been set for him, then he will owe us the amount which is required for purchasing the same number and quality of loading aids.
IV. Delivery deadlines, hindered delivery,
delayed performance and rights of withdrawal
The dates of delivery and the dates of performance are only binding if we have expressly confirmed them in writing. The dates of delivery refer to the dispatch or collection ex-works, or to the day when the goods are received by the customer in the case of deliveries that are made free of charge to the buyer's address (franco domicile).
We will not fall into delay with our obligation to deliver and perform before a reasonable period of grace that the customer set for us has expired. If we do fall into delay with a delivery, then the buyer can demand an all-inclusive compensation for the damages that he has suffered from the delay. The claims for compensatory damages will be 0.5 % of the net price (delivery's value) for each completed calendar week of the delay but not more than 5 % overall of the delivery's value of the goods that are delivered belatedly. We reserve the right to prove that the buyer has not suffered any damage at all, or that he has suffered damage which is substantially less than the aforementioned all-inclusive amount or lump sum. The customer's regulations about contractual penalties that extend beyond this regulation will only be effective if they have been separately agreed with us in writing.
Our obligation of delivery will be interrupted - even if we find ourselves in delay with the delivery already - in the case of an Act of God (force majeure) for the period of its duration and extent of its effect, i.e., the circumstances that we could not foresee and for which we are not culpable, as well as the events that could not have been avoided or prevented by taking the due care and diligence of a prudent businessman, like for example war, threat of war, civil unrest or revolt, third-party use of force against persons and property, sovereign intrusions, industrial disputes with us or our suppliers or customers, fire, interruptions of the intended transport connections, as well as shortages of raw materials and energy or power cuts. We will inform the buyer immediately about this matter and we will simultaneously notify a new delivery deadline. If the performance is also unavailable within the new delivery deadline, then we will be entitled to entirely or partly withdraw from the contract; we will immediately refund the customer's provided counter-performance (quid pro quo). The untimely self-delivery by our suppliers especially applies as a case of unavailability of the performance in this sense, if we have concluded a similar hedging transaction and if neither ourselves nor our supplier is culpable, or if we are not obligated to purchase or procurement in an individual case.
If the hindrance according to Clause IV, Para. 3, lasts for longer than three months, then the customer will be entitled to withdraw from the contract after a reasonable period of grace has expired regarding the part [of the delivery or performance] that has not been fulfilled yet.
If the customer delays the acceptance, or if he refrains from cooperative action, or if our delivery is delayed because of reasons for which the customer is responsible, then we will be entitled to demand compensation for the damage that has arisen from that, including extra expenses (e.g., cost of storage). We will charge an all-inclusive indemnification of 5 % of the net sale for that. Further claims for compensatory damages remain unaffected. The customer could be charged a higher daily price in the case of delayed acceptance. The proof of greater damage and our legal claims (especially for compensation of extra expenses, reasonable indemnification and cancellation) remain unaffected; however, the lump sum must be set off or credited against further monetary claims. It is up to the customer to prove that we have not suffered any damage at all or that the damage is substantially less than the aforementioned lump sum.
V. Prices and payments
The prices apply 'with delivery free of charge to the buyer's address' including normal packing and packaging plus the statutory rate of value-added tax, fiscal charges, customs duties and insurance, insofar as nothing else is expressly agreed.
The customer is obligated to pay the invoiced amount into our bank account by means of a bank transfer without charging any fee and without any deduction within 14 days after the invoicing date, insofar as we do not agree anything to the contrary with the customer. Whether the payment is considered to have been made on time depends upon the date when the amount is credited to our bank account.
Bills of exchange and cheques will only be accepted for the sake of payment in any case. We are not obligated to accept bills of exchange or cheques.
If taxes, customs duties, freight charges, fees or other fiscal charges of any kind that influence the price of the goods will be increased or newly introduced, or if they arise between concluding the contract and delivering the goods, or if other costs are increased without us having any influence over them, then we will be entitled to allocate them to the agreed purchase price and to increase it accordingly. If the increased price is 20 % or more above the agreed price, then the customer will have the right to withdraw from the contract. He must assert this right immediately after being notified about the increased price.
If the customer falls into arrears with his payments, then our debt claim will attract interest at 9 percentage points above the respective basic rate of interest.
The customer can only set off or assert a right of retention or a right to refuse payment if his counter-claim has been legally established by a court of law or if it is not disputed. It is always possible by diverging from Line 1 to set off or assert a right of retention or a right to refuse payment on account of a counter-claim for compensating the extra cost of remedying a defect, or on account of the extra cost of completion which arises from the same legal relationship.
Our consent is required according to Article 354 of the German Commercial Code for the customer to assign any of his claims against us.
If it is recognizable after concluding the contract that our claim to the purchase price will be jeopardized by the customer's lacking ability to pay (e.g., by an application to open insolvency proceedings), then we will be entitled to refuse performance and we could withdraw from the contract after setting the customer a reasonable period of grace for payment. We can immediately declare the withdrawal in the case of contracts about manufacturing fungible objects, irrespective of the legal provisions about dispensing with setting a reasonable period of grace.
VI. The customer's rights and duties in the case of defects
We trade with natural products. The goods are subject to negligible divergences of colour and content that are caused naturally, as well as to negligible divergences that are caused by processing. We reserve the right to deliver up to 5 % more or less than the ordered quantity in the case of a sale that is made on an 'approximate' basis. Mussel shells or residues of fish-bones in the natural products cannot be absolutely prevented always. Such residues do not represent any defect within the scope that is reasonable for the customer.
The customer is obligated to inspect the goods immediately when they are delivered. He must take random samples from at least 1 % of the goods and also when they are in a thawed state that enable them to be prepared for consumption. The customer must complain about any apparent defects in writing or by e-mail. The period for making a complaint also applies to a faulty barcode on the goods. The customer must complain about any latent defects in writing or by e-mail. The contracting party, i.e., the customer, cannot cite the defects if he has not complained about them promptly.
The customer can only make claims about a delivered deficient quantity if he criticized the deficient quantity in writing on the delivery note when he took delivery of the goods, or if his complaint was recorded on another document that accompanied the freight.
The rights of complaint are vested in the customer according to the legal regulations in the case of a justified and prompt customer's complaint but according to the following criteria.
a) The right to choose between a repair and a replacement delivery is vested in us in the case of non-fulfilment. If the subsequent performance fails, or if we refuse it, or if it is unreasonable for the customer, then his other legal claims concerning defects will be vested in him.
b) If the quality of the goods diverges only slightly from the agreed quality, then only the right to a reasonable reduction of the purchase price or a repair of the goods will be vested in the customer at our discretion.
c) Claims for compensatory damages are only vested in the customer subject to the supplementary prerequisites of Clause VII.
We must be given the opportunity to check the complaint before the criticized goods are reprocessed or resold.
If the goods are not stored properly and especially if the deep-frozen chain is interrupted by temperatures of less than minus 18 ºC in the case of deep-frozen goods, then any warranty will be invalidated.
Our liability because of delayed delivery is definitively orientated to Clause IV, Paragraph 2. Claims arising from defects are initially orientated to Clause VI, Para. 4 a.
Our other liability because of compensatory damages is limited according to this Clause VII.
Claims for compensatory damages that arise from impossibility, delay, positive infringement of debt claims and impermissible action are excluded, insofar as we did not act grossly negligently or we have not infringed an essential contractual duty. We are only liable for the gross negligence of the non-managerial office staff as well as for the slight negligence of the managerial office staff and their legal representatives if they have infringed an essential contractual duty. It is incumbent on us to prove the facts that justify the exclusion of liability. Our liability is limited to the contractually typical and foreseeable damages, insofar as we are liable for the gross negligence of the non-managerial office staff and for the slight negligence of the managerial office staff. The claim to compensation that arises from real pecuniary detriment, like lost production, reduced production or lost profit, will be limited otherwise by the general principles of good faith, such as in cases where the amount or value of the purchase price is disproportionate in relation to the amount or value of the damage. The extended liability according to Clause 287 of the German Civil Code is excluded.
Insofar as our liability is excluded or limited according to the aforementioned paragraphs, this exclusion or limitation also applies to our agents and subcontractors.
Insofar as we have granted the customer certain rights within the framework of guaranteed quality whenever a defect is present, such rights are unaffected by the aforementioned limitations of liability.
VIII. Reservation of ownership
We reserve the right of ownership over our goods (which are also referred to as the conditional commodities hereinafter) until the purchase price has been paid in full and all of our debt claims arising from the current business relationship with the customer have been settled (extended reservation of ownership). The reservation of ownership is unaffected by discontinuing the individual debt claims in a current invoice and balancing of the account; the reservation refers to the recognized or actual balance in this case. The reservation of ownership does not revive for the goods if new debt claims arising from the business relationship exist against the customer after he has acquired the ownership of these goods as aforementioned.
We are entitled to withdraw from the contract and to take back the goods according to the legal provisions in the case that the customer's conduct breaches the contract and especially if he is in arrears with payment. If we take back the goods or seize them, then that action will always signify a withdrawal from the contract. We are entitled to utilize the goods after we have taken them back. The proceeds from the utilization must be set off against the customer's liabilities - after deducting the reasonable cost of utilization - according to Article 367 of the German Civil Code.
If the customer processes or transforms our goods, then he will always do so for us [i.e., on our behalf] as a manufacturer for the purposes of the German Civil Code. If our goods are processed, transformed, inseparably mixed or connected to other articles that do not belong to us, then we will acquire the co-ownership of the new article according to the ratio of the value of our goods to the value of the other processed article at the time when the processing, transformation, mixture or connection was done. If the other article must be viewed as the main article, then it is agreed herewith that the customer will transfer his proportionate co-ownership to us. We accept the proportionate transfer. The customer will safeguard our (co-)ownership for us. The same condition applies to the product that is created by the processing as that for our goods which were delivered subject to reservation.
The customer is entitled to process and sell the conditional commodities during the proper course of business, provided that he is not in arrears with his obligatory payments to us and if it will not be agreed within the framework of sale that the customer's debt claim against the third party will lapse because of the settlement. The entitlement to process and sell the goods will also lapse if the customer's assets worsen considerably. No mortgaging or pledging of the goods as security is permissible. The customer assigns to us herewith for the sake of security all of the debt claims that arise from reselling the goods (including all of the balance’s debt claims from the current account which arise even after the current-account relationship has ended), the insurance claims and the claims against third parties that are made because of damage, destruction, theft or loss of the goods. We accept this assignment. If only the co-ownership of the conditional commodity is vested in us, then the advance assignment is limited to the part of the debt claim that corresponds to the share of our co-ownership (on the basis of the invoiced value). The customer has to reserve the ownership of the conditional commodity vis-á-vis his own customer(s) until the purchase price has been fully paid, in the case that the goods are resold. The customer is not entitled to resell the goods to a third party whenever the debt claim of the purchase price arising from the resale is subject to a prohibition of assignment.
We empower the customer irrevocably to collect the debt claims that are assigned to us on his own account and in his own name. This empowerment of collection can be revoked if the customer does not properly comply with his obligatory payments vis-á-vis ourselves, or if our debt claims appear to be jeopardized because of the customer's lacking ability to pay. Our debt claim will be due for payment immediately when the credit note for the proceeds of sale has been received by the customer and it is payable by means of an immediate bank transfer without any deduction. The customer has to notify the debtor's name and address to whom the debt claims have been assigned to us on demand. It is impermissible to assign the debt claim arising from the resale unless the matter concerns an assignment by way of genuine factoring, which will be notified to us and for which the factoring proceeds at least tally with the value of our secured debt claim. The customer is obligated to disclose the assignment vis-á-vis the factor and to advise him of our ownership. The credit note from the factoring proceeds has to be credited to one of our bank accounts according to the amount of our secured debt claim. The customer assigns herewith to us his debt claim for payment against the factor that is valid for the assignment, according to the amount of the secured debt claim. We accept the assignment.
The customer will point out our ownership and notify us immediately in the case of third-party access to the conditional commodities. The customer is liable for the loss that we have suffered, insofar as the third party is unable to reimburse us for our cost of intervention and especially for the judicial and extra-judicial costs of a lawsuit according to Article 771 of the German Code of Civil Procedure.
The customer is obligated to arrange at his own cost to insure the conditional commodities adequately at the real value of the goods against the usual hazards, like for example theft, fire damage, water damage and breakdown of the refrigeration and he has to store them in such a way that our ownership will not be jeopardized. The customer assigns his claims vis-á-vis the insurance company to us herewith in advance for the insured case. We accept the assignment.
The customer is entitled to demand that we release the debt claims insofar as the value of our securities exceeds the securing debt claims by more than 10 %. We will choose any debt claims that have to be released.
IX. Periods of limitation
The customer's claims to subsequent performance because of defects in the delivered articles [i.e., goods] will be time-barred after one year has expired. The customer's claims to subsequent performance because of defects according to Article 438, Para. 1, No. 2 of the German Civil Code and Article 634a, Para. 1, No. 2 of the German Civil Code remain unaffected by that.
The customer's other claims because of infringements of duty by us and especially the claims to compensatory damages (e.g., in the case that we are responsible for infringing a duty of subsequent performance), or claims arising from a guarantee, will be time-barred after one year has expired. The customer's right to withdraw from the contract because we are responsible for infringing a duty that does not refer to a defect, remains unaffected. The legal periods of limitation apply to the customer's following claims as a divergence from Line 1:
a) according to the Product Liability Law as well as because of an injury to the life, limb or health, or due to the essential rights and duties arising from the contract;
b) because of damage that was caused by a deliberate or grossly negligent infringement of duty by ourselves or our agents;
c) because of fraudulently withholding information about a defect;
d) compensation of expenses according to Article 478, Para. 2 of the German Civil Code;
The legal provisions about when the period of limitation will begin, as well as impeding its progress, inhibition and beginning of the time limits anew, remain unaffected.
Our claims against the customer will be time-barred according to the legal regulations.
X. Observance of secrecy and data protection
Insofar as the customer obtains or receives information that refers to our business enterprise [i.e., company] within the framework of this contract and especially to all of the commercial and technical information, irrespective of whether it has been given verbally or embodied in documents, he is obligated to treat this information as business secrets and to keep it confidential accordingly. The information will be safeguarded and protected in such a way that any misuse and unauthorized knowledge of it is excluded. The customer's administrative bodies, employees, agents and subcontractors must be obligated accordingly. The duty to observe secrecy does not exist, or it will not end as the case may be, if and insofar as the customer proves that the relevant information is generally known without him being to blame for it, or it has been legitimately obtained or received from a third party, or that it must be submitted within the framework of legal proceedings, or that it was already known generally at the point in time when it was obtained or received.
The customer confirms that all of his employees who will be assigned to handling this contract have been advised about the data protection and the criminal law's provisions about data processing and that they have been obligated to keep the data secret because it cannot be excluded that the customer's employees come into contact with personal data or that they process such data.
The customer is aware that we store the data arising from the contractual relationship for the purposes of data processing and that we reserve the right to forward or transmit it to third persons (e.g., banks and insurance companies) insofar as this is required for fulfilling the contract. We process the personal data according to the Federal Data Protection Law or the Basic Data Protection Ordinance insofar as this is necessary for fulfilling the contracts that have been concluded with us or taking the pre-contractual measures, or according to another case that is regulated in Article 6, Para. 1 of the Basic Data Protection Ordinance. Insofar as the customer makes contact with us during the course of business, he gives us his permission to process his data. He can revoke the permission at any time with effect for the future.
XI. 'Brexit', applicable law, place of performance¹ and place of jurisdiction²
We purchase and deliver the goods from or to Great Britain. We are entitled - insofar as it is reasonable for the customer - to adjust the current contracts or to cancel them, or to negotiate with the customer about adjusting the contracts, or both, in the case that the 'BREXIT' [i.e., Great Britain's exit from the European Union] restricts the delivery or trading, or it causes the prices to alter considerably, or both.
The law of the Federal Republic of Germany applies, including the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Bremen is the place of performance¹ and also for the customer's payments, unless we have expressly agreed something else with the customer.
f the customer is a businessman, a legal entity (persona ficta) according to public law or a special asset according to public law, then Bremen is the sole place of performance² for settling all disputes arising from the contractual relationship or in connection with it, subject to the regulation in Clause X, Para. 4. The same provision applies if the customer does not have any general place of jurisdiction in Germany, or if his residence or usual abode will be transferred abroad after concluding the contract, or if his residence or usual abode is unknown at the point in time when the lawsuit is brought before a court of law. However, we reserve the right to sue the customer at his general place of jurisdiction.
All disputes about questions of quality will be decided by way of 'Bremen's amicable arbitration' according to the respectively valid edition of the Bremen Chamber of Commerce's set of rules about arbitration. We will provide the text of this set of rules about arbitration to the customer on request at any time. The result of this arbitration concerning quality is binding between the customer and ourselves. This provision also applies to the case of other or further disputes that arise within the framework of the contractual relationship. The ordinary course of law remains open according to Clause X, Para. 3 for settling such disputes.
Date 1st March 2018