Standard Terms and Conditions for the supply of goods and services by FoodALYT GmbH
1.1 These Standard Terms and Conditions shall apply to all contracts that commit us to any form of supply (including of work and services etc.) in the course of business with companies and legal entities under public law or a public-law special fund (“Sondervermögen”) – hereinafter referred to as Customer. On placing its order, the Customer acknowledges the following terms and conditions.
1.2 Our Standard Terms and Conditions shall apply exclusively. The Customer’s deviating, contrary or supplementary Standard Terms and Conditions shall only become part of the contract if and to the extent that we have explicitly agreed to their validity. This requirement for agreement shall apply in every case, including, for example, if we unconditionally supply goods or services to the Customer in the knowledge of the Customer’s terms and conditions.
1.3 Unless otherwise agreed, our Standard Terms and Conditions shall apply in the version effective at the time when the Customer places its order or in any case in the version most recently communicated to the Customer in text form as a framework agreement, including for future contracts of a similar type, with no requirement for us to refer to them in each individual case.
2. Offers and conclusion of contract
2.1 The offers contained in our catalogues, brochures, other sales literature and on the Internet shall (unless they are expressly defined in those places as being binding) always be subject to change without notice; in other words, they should only to be understood as an invitation to purchase. Our information, recommendations and advice do not exempt the Customer from its own responsibility to precisely check the suitability of our products for the Customer’s envisaged purposes. Existing laws and provisions must be complied with in any event. This shall also apply with regard to any third-party industrial property rights. The ordering of the goods by the Customer shall be deemed to constitute a binding offer to enter into a contract. Unless otherwise specified in the order, we shall be entitled to accept this offer of a contract within two weeks by sending a written acknowledgment or by executing the contractual performance within the same period.
2.2 Any individual agreements concluded with the Customer (including ancillary agreements, supplements and amendments) shall in any case take precedence over these Standard Terms and Conditions. The content of such agreements is dependent on a written contract and our written acknowledgment unless there is proof to the contrary.
2.3 Our employees and sales representatives are not entitled to oral side agreements (especially assurances) that are beyond the scope of the written contract. The aforementioned regulations shall not apply to oral declarations by the management or by persons with unrestricted authorisations from us.
2.4 We reserve the right to make minor/insignificant deviations in the goods/services from the details stated in our catalogues or offers, provided that the changes or deviations are reasonable for the Customer in consideration of our interests. In respect of this, dimensions and specifications concerning weight, performance and characteristics, etc., as well as illustrations and other technical information in catalogues, promotional correspondence, etc. are not binding.
2.5 The minimum order value is currently EUR 75.00 plus statutory value added tax. For orders under this limit, we charge a handling flat rate to the amount of EUR 15.00 which shall not be charged for orders via our web shop.
2.6 When we declare our agreement to a customer request for the cancellation of an order, without the existence of a defect or error in delivery on our part, we are entitled to charge the customer for all costs/damages incurred by us as a result of the cancellation (e.g. with regard to our suppliers) incl. compensation for lost profits. We are furthermore entitled to charge a processing fee to the amount of 15 % of the value of the goods; however, at least EUR 28.00 plus VAT. Goods delivered by us will only be accepted by us for return in faultless condition and carriage paid.
3. Delivery schedules, part deliveries and delays
3.1 Our supply obligations are subject to correct and timely supply of goods and materials to ourselves by our suppliers unless we are responsible, with intent or as a result of gross negligence, for the incorrect or late supply of goods and materials to ourselves.
3.2 To the extent that a delivery period has not been designated on our part as being binding, it shall only be deemed agreed approximately. It shall be extended the time period between the date of conclusion of the contract and the date of clarification of all technical and other details of the order, production of all and any necessary documents as well as time periods in which Buyer is in arrears in its contractual duties (e.g. agreed-upon advance payments).
3.3 We shall be entitled to make part deliveries and render part services insofar as these are not unreasonable for the Customer.
3.4 A performance or delivery period shall be suitably extended – also within arrears – upon the occurrence of force majeure and all unforeseen obstacles occurring after conclusion of the contract for which we are not responsible (in particular, also disturbances of operation, strikes, lock-outs or transport disturbances), insofar as such obstacles can be proven to have a considerable influence on the planned performance or delivery. This shall also apply if these circumstances occur with our suppliers or sub-contractors. We shall notify the customer of the start and end of such obstacles as soon as possible. The customer can then demand a declaration from us as to whether we wish to withdraw from the contract or deliver within a reasonable period. If we do not make such declaration without delay, the customer can withdraw from the contract. In such a case, claims to damages shall be ruled out.
3.5 With regard to punctual deliveries, we shall only be liable for our own culpability and that of our vicarious agents. We shall not be answerable for delays of our previous suppliers. However, we engage to assign any claims to damages against the previous suppliers to the customer.
4. Shipping, transfer of risk
4.1 Unless otherwise agreed, the place of performance is the registered office of our company or our participating branch. We ship and insure the goods upon request from the customer and to the customer's cost from the place of fulfilment or directly from the manufacturer's works.
4.2 Route and means of dispatch shall be at our discretion. Additional costs caused by shipping wishes of the customer shall be charged to the latter.
4.3 Risk shall pass to the Customer on handover of the goods to the carrier. This shall also apply to part deliveries and deliveries carriage paid. Where our own vehicles are used to deliver goods, risk shall pass to the Customer at the latest when the goods leave our warehouse.
4.4 If consignment or agreed collection is delayed at customer's instigation, the goods shall be stored at the expense of the customer and risk. In such a case, notification of readiness for dispatch shall be equated to dispatch. The invoice for the goods shall be due for payment immediately upon start of storage.
5. Prices and payment terms
5.1 The prices shall apply ex place of performance, exclusive of packaging, freight/shipping charges, logistic rate and flat rates pursuant to clause 2.5, and the applicable value added tax. If the goods or service are supplied more than 3 months after conclusion of the contract, we reserve the right to increase our prices in accordance with our price list valid at the time of delivery or to increase them in proportion to increases in costs that have occurred since conclusion of the contract.
5.2 We shall be entitled to require advance payments if we have rendered part services pursuant to clause 3.3 or if the Customer has delayed our performance without clause 4.4 coming into effect.
5.3 Our invoices may be electronically created and transmitted in accordance with Section 14(1) of the German Turnover Tax Act (UStG) (Section 14.4 (1) sentence 3 of the German VAT Application Decree (UStAE)) and Article 5 of the German Tax Simplification Act 2011 of 1 November 2011 (German Federal Law Gazette (BGBl.) volume I, p. 2131). The Customer agrees to the electronic sending and receipt of invoices and shall provide us with an up-to-date email address to which the electronic invoices can be sent. If the Customer orders by email or in our online shop, the email address used in that context shall be treated as the address to which electronic invoices are sent unless the Customer expressly notifies us of a different valid email address when placing its order. An electronic invoice shall be deemed to have been delivered on being sent to the email address used or communicated to us unless we receive a message regarding non-delivery. The Customer must inform us in good time of any change to its email address to which invoices should be sent.
5.4 If not agreed to the contrary, our deliveries and services shall be due for payment without deduction after 10 days and the customer is in default 30 days after receipt of the invoice or reception of the service as per § 286 para. 3, German Civil Code. If circumstances become known after conclusion of the contract which lead us to conclude, based on the necessary commercial criteria, that the payment of the purchase price in accordance with the contract is put into question by the buyer’s lack of performance or desire to provide such (e.g. delays in payment for other deliveries from us or third parties), we are entitled to demand, setting an appropriate deadline, that the buyer choose between a pay-as-paid solution, advance payment or sureties. Advance payment is due immediately.
5.5 A deduction of discount shall require specific agreements. Payments shall always be used to settle the oldest due outstanding items, plus default interest incurred thereon. Assured discounts shall not be granted if Buyer is in arrears with the payment of earlier deliveries.
5.6 Interest on arrears shall be charged at 9% per year above the base interest rate (Section 247 of the German Civil Code (BGB)), provided that we incur no greater losses.
5.7 The assertion of rights of retention and offsetting by the Customer on the basis of counter-claims that are disputed or not legally established is excluded. In respect of defects in supply, the Customer’s countervailing rights, particularly pursuant to clause 7 shall remain unaffected.
5.8 We may accept a bank guarantee to satisfy the agreed provision of security.
6. Retention of title
6.1 We retain title to the goods until payment of the purchase price or remuneration for a contract of work is made in full. For goods which the customer (including principals of a work contract) purchases from us in the context of an ongoing business relationship, we retain title until all our receivables from the business relationship have been settled, including the receivables originating in future – also from contracts concluded simultaneously or later. This shall also apply if individual or all our receivables have been written to an open account and the balance has been struck and accepted. In the event of arrears in payment of the buyer, we shall be entitled to take back the goods following a reminder and the buyer shall be obliged to return them.
6.2 If the conditional goods are combined with other goods by the customer, co-ownership of the new object shall accrue to us in the ratio of the value of the invoice of the conditional goods to the invoice value of the other goods and the value of processing. If our ownership expires due to combining, blending or processing, the customer transfers the rights accruing to it to the extent of the invoice value of the conditional goods as early as conclusion of the contract and shall keep them on our behalf free of charge. The ownership rights originating thereby shall be deemed conditional goods within the meaning of sub-section 6.1.
6.3 The buyer may only sell the conditional goods in the customary course of business at its normal terms and conditions of business and as long as it is not in arrears, provided the claims from the resale pass to us pursuant to the following sub-sections 6.4 to 6.5. It shall not be entitled to further disposals of the conditional goods. Installation of the goods in a construction shall also be deemed resale.
6.4 The Customer’s claims arising from the resale of the goods in which title is retained shall be assigned to us. They shall serve as security to the same extent as the goods that are subject to retention of title. If these goods are resold by the Customer together with other goods not supplied by us, the claim arising from the resale shall be assigned in the ratio of the invoice value of our goods to that of the other goods sold. If goods to which we have co-ownership shares are resold pursuant to clause 6.2, a proportion corresponding to our co-ownership share shall be assigned to us.
6.5 The Customer shall be entitled to collect claims arising from the resale unless we rescind its authorisation to collect monies after the onset of payment arrears or in the scenario described in clause 5.4 sentence 2. Upon our request, the Customer shall be obliged to immediately notify its customers of the assignment to us ‑ unless we do this ourselves ‑ and to provide us with the specific information and documentation required for collection of the claim (basis and value of the claim, name and address of the debtor, etc.). The Customer shall not be entitled to further assign the claim unless this involves assignment by means of genuine factoring. In this case, we must be notified in advance of the name of the factoring bank and the Customer’s accounts held there, and it must be agreed with the factoring bank that the value of our secured claim shall be transferred on to us immediately upon the crediting of the proceeds from factoring. This assumes that the proceeds from the factoring exceed the value of our secured claim and is credited to an account that is not subject to secured claims from other parties.
6.6. Where reference is made to the value of the goods in which title is retained, this shall be based on our invoiced amount (invoice value). We undertake to release, upon the Customer’s request, the securities accruing to us to the extent that their realisable value exceeds the claims to be secured by 10%; the choice of the securities to be released in this context shall be at our discretion.
6.7 The buyer shall inform us immediately of any interventions by third parties against the conditional goods and the assigned claims.
6.8 The Customer must handle the goods in which title is retained with care and adequately insure them for their as-new value.
7. Warranty and consequences of defects, notification and liability
7.1 The Customer’s rights in respect of material defects and defects in title (including incorrect and short delivery and incorrect assembly/installation or inadequate assembly/installation instructions) shall be governed by statutory provisions unless specified otherwise below. The special legal provisions regarding ultimate delivery of the unprocessed goods to a consumer shall in all cases be unaffected, even if the consumer has subjected them to further processing (recourse against suppliers pursuant to sections 478 et seq. of the German Civil Code (BGB)). Claims based on recourse against suppliers shall be excluded if the defective goods have been subject to further processing by the Customer or another contractor, for example by means of combination with another product.
7.2 If the buyer establishes defects in the goods/services, it may not dispose thereof, i.e. they may not be divided, resold or processed, until an agreement on the handling of the notification of defects has been achieved or proceedings for securing of evidence have been carried out by an expert commissioned by the Chamber of Industry and Commerce at buyer's registered office.
7.3 The customer shall further be obliged to grant us the opportunity of establishing the defect notified on-site or, at our request, to provide us with the object giving rise to complaints or samples thereof; in the event of culpable rejection, warranty shall be forfeited.
7.4 The Customer shall further be obliged to grant us the opportunity of inspecting the reported defect by means of an on-site visit or, at our request, to provide us with the item giving rise to the complaint or a sample thereof for inspection; in the event of culpable refusal, warranty shall be forfeited. Rectification shall not include removal of the defective goods nor their reinstallation if we were not originally obliged to install them.
7.5 We assume warranty only for defects which were present at delivery/acceptance, and thus not for damage attributable to unsuitable or improper use, faulty assembly, commissioning, amendment or repair not carried out by us, faulty or negligent treatment or natural wear and tear.
7.6 In the event of justified complaints, we shall be entitled to determine the nature of subsequent performance (replacement delivery, reworking).
7.7 Expenditure incurred for the purpose of inspection and rectification, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs shall be borne or reimbursed by us in accordance with statutory regulations if a defect actually exists. Otherwise, we may demand reimbursement from the Customer for any costs arising from the unjustified request for defect rectification (in particular inspection and transport costs) unless the absence of defects was not recognisable for the Customer.
7.8 The period of limitation for claims based on defects is one year from the passing of risk. This does not apply in cases where the law pursuant to sections 438 (1) no. 2 (buildings and things that have been used for buildings), 478, 479 (recourse against suppliers) and 634 a (1) No. 2 of the German Civil Code (BGB) (building-related defects) prescribes longer periods, nor in cases of intentional or grossly negligent breach of duty on our part, nor in the event of injury to life, body or health, nor for claims under product liability law, nor in the event of fraudulent concealment of a defect.
7.9 Claims by the Customer for damages or compensation for futile expenditure shall also exist in relation to defects only to the extent set down in clause 8 and shall otherwise be excluded.
8. General limitation of liability
Claims for damages and reimbursement of expenditure on the Customer’s part (hereinafter Claims for Damages), regardless of their legal basis, in particular due to breach of duties arising from a contractual obligation and from action in tort, shall be excluded unless we are guilty of having behaved with gross negligence and/or to have breached fundamental contractual obligations (so-called cardinal duties). Such Claims for Damages shall, however, be limited to the foreseeable damage typical for the contract and to the level of the cover provided by the public liability insurance policy concluded by us at a customary commercial level. Exclusion of liability shall not apply in cases of assumption of a guarantee or a procurement risk. Furthermore, it shall not apply where we are subject to mandatory liability, for example pursuant to product liability law for reason of injury of life, limb or health.
9. Return of devices and Customer’s declaration of decontamination
9.1 Insofar as the buyer is an end customer engaged in business activity, we shall take back the devices sold to the former after 13/08/2005 after cessation of use in accordance with the so-called Elektrogesetz (Electrical and Electronic Equipment Act) of 23/03/2005 (Federal Law Gazette. I pg. 762) and properly dispose of these. The end customer, however, must assume the return delivery and disposal costs or compensate us for such. The end customer must inform us in writing as to the cessation of use.
9.2 The claim to assumption of costs by the end customer does not expire before 2 years after the cessation of use. This two-year term begins at the earliest after receipt by us of the written notification from the customer as to the cessation of use.
9.3 In the event that the buyer is a commercial dealer, it must oblige its customers – insofar as these are likewise engaged in business – to ensure that such customers in turn dispose of the device at the cessation of use in proper fashion and at own expense. Should the buyer neglect to do so, it must thus itself take back the devices delivered at the end of use at its own expense and properly dispose of them.
9.4 Devices or other materials that are passed to us must be decontaminated by the Customer or by the most recent user if they have come into contact with material that is potentially infectious or otherwise harmful to health. The decontamination shall be confirmed by a certificate of decontamination that must be attached to the product. The purchaser or the most recent user shall be fully liable for damage or harm of any kind that arise from a failure to decontaminate. Every owner of a device is obliged to pass on this information at the time of sale or delivery.
10. Place of performance, place of jurisdiction, applicable law, severability
10.1 The place of performance for the supply of all goods and services and the exclusive place of jurisdiction for any disputes arising in relation to the supply relationship shall be the registered office of our company in Bremen. However, we shall also be entitled to institute legal proceedings against the Customer at its general place of jurisdiction.
10.2 This Agreement and these Standard Terms and Conditions as well as the entirety of the legal relationships between us and the Customer us are subject to the laws of the Federal Republic of Germany to the exclusion of all references to the law of other countries and international treaties. Application of the UN Convention on Contracts for the International Sale of Goods is excluded.
10.3 If an individual provision of these Standard Terms and Conditions is or becomes invalid, ineffective or unenforceable in whole or in part, then the validity, effectiveness and enforceability of the remaining terms and conditions shall not be affected.
(Last amended: October 2018)