General Terms and Conditions
Basis of business relations between business associates, trade partners, customers and principals
Hainich Konserven GmbH (commercial registration number 401010)
I. General
1. Basis of business relations
2. Amendments to the Terms and Conditions
3. Bank references and information on customers
4. Powers of representation and disposition
5. Data privacy
II. Offers/conclusion of contracts
1. Requirement for written form and text form
2. Binding force of information
3. Licence rights
4. Prices and charges
5. Payment
III. Performance and deadlines
1. Delivery period/start of performance
2. Transfer of risk
3. Retention of title
4. Acceptance
IV. Reservations and warranty claims
1. Warranty
2. Right of rescission
3. Applicable law, jurisdiction
I. General
1. Basis of business relations
a) Business relations between customers, trade partners and principals of Hainich Konserven GmbH, hereinafter referred to as Hainich Konserve, are informed by a special mutual trust.
Customers, trade partners and principals can rely on Hainich Konserve to carry out its orders with the due diligence of a prudent businessman and to protect all knowledge and information as business secrets.
b) Business relations are based primarily on purchase and delivery contracts, cooperation agreements and direct sales. These contracts contain special provisions tailored to the specific product regarding quantity, quality, type, notices of defects, exclusions of liability and price maintenance.
c) In business relations with companies belonging to the TUPAG Holding group, these General Terms and Conditions are amended by additional or substitute provisions in keeping with the object of the contract and/or the nature and scope of the goods.
In the case of competing provisions, in each instance those provisions which are more favourable for the seller shall be applicable.
d) For the purposes of business relations, the provisions of these General Terms and Conditions shall apply in addition to the individual contractual agreements, save where this is ruled out in the contract concerned.
The General Terms and Conditions shall form an inherent part of all contractual provisions and all orders placed, irrespective of whether these have acquired legal force in verbal, written or any other form.
Any divergent agreements shall be recognised in written form only. These Terms and Conditions are available for viewing on our business premises, can be handed out on request and are published on the homepage.
2. Amendments to the Terms and Conditions
a) Hainich Konserve shall notify customers, business associates, trade partners and principals of any amendments to the General Terms and Conditions or special terms directly after their introduction. Any amendments to these Terms and Conditions shall have future effect only. Existing agreements, contracts or valid offers shall remain unaffected.
b) Where agreements and contracts are affected by an amendment to the Terms and Conditions resulting from legal requirements, due notification shall be provided in writing. If no written objection is received within one month, the amendment shall be deemed to have been accepted.
3. Bank references and information on customers
a) Hainich Konserve’s customers, business associates, trade partners and principals consent to the collection of information and the storage of data in accordance with legal requirements.
b) Hainich Konserve may obtain bank references relating to legal persons and to merchants and managers entered in the commercial register. Verbal information about creditworthiness and solvency shall only influence business relations after its contents have been confirmed in writing.
4. Powers of representation and disposition
a) Powers of representation or powers of disposition notified by the customer, trade partner or principal shall apply until Hainich Konserve receives written notice of expiry or an amendment.
b) The customer, trade partner or principal shall be liable for any damage arising from Hainich Konserve failing through no fault of its own to gain knowledge of any curtailment of the legal capacity of a representative of the customer, trade partner or principal.
5. Data privacy
a) Hainich Konserve has undertaken technical and administrative precautions to protect personal information and data on the servers which it uses from unauthorised access, loss or manipulation. Hainich Konserve is unable to guarantee one hundred per cent security when servers are used and transactions are conducted via the internet, however. Customers, trade partners and principals thus carry out all activities and electronic communications at their own risk.
b) Hainich Konserve complies strictly with the provisions of data protection legislation. Personal data are collected only to the extent which is necessary in order to handle the existing business relations in a proper and orderly manner. Under no circumstances shall the collected data be sold or passed on to third parties. The legal requirements pertaining to data processing and the use of data shall be observed in accordance with the General Data Protection Act in its most recent valid version at all times.
c) Hainich Konserve shall grant every customer, trade partner or principal who has furnished personal data the required information on use of the data and shall revise or delete the data upon request.
II. Offers and conclusion of contracts
1. Requirement for written form and text form for contracts and agreements
Hainich Konserve’s offers are non-binding, save where a binding period is specified in writing. The acceptance of offers and the placement of orders shall only be legally valid when confirmed in writing. Notification by telefax or e-mail shall be deemed equivalent to written confirmation.
Declarations in text form pursuant to Section 126b of the German Civil Code shall only be recognised as binding when sent to Hainich Konserve’s e-mail address as stated in the “Site Notice”.
2. Binding force of information
Information, in particular documents containing dimensions, weights, prices or other details of products and services, shall be binding only where this has expressly been agreed in writing, stating the duration of the binding period.
Drawings, technical documentation and other printed matter, with the exception of advertising materials, shall remain Hainich Konserve’s property. They are to be returned to Hainich Konserve upon request. They may be passed on to third parties or duplicated only with Hainich Konserve’s express consent. The copyright is owned by Hainich Konserve and is not assignable.
3. Licence rights
Except where agreed separately in writing, all licence rights to products and merchandise shall be retained by Hainich Konserve and shall not pass to the buyer/customer.
4. Prices and charges
a) Unless otherwise specified or agreed, Hainich Konserve shall adhere to the prices stated in its offer for 30 days from the date of offer. The binding prices shall be those stated in Hainich Konserve’s confirmation of order, plus value-added tax at the given mandatory rate. Additional goods and services shall be charged for separately.
b) Unless otherwise agreed, the prices for the delivery of goods shall apply ex FCA Vogtei, district of Niederorla.
c) All prices are based on the cost factors as apply at the time of drafting the offer or carrying out pricing. Should these factors alter up to the time of delivery, Hainich Konserve reserves the right to adjust prices accordingly, provided that no fixed prices have been agreed. A price adjustment of under 5% shall not establish any special right of cancellation.
5. Payment
a) The seller’s invoices shall be payable as follows.
Unless otherwise agreed, the payment term for the delivery of material goods and all types of merchandise shall be 21 days. Save where deadlines are agreed, services shall be due for payment 14 days after notification of completion. Any other payment terms shall be valid only when agreed in writing.
b) Notwithstanding any provisions to the contrary of the business associate or principal, Hainich Konserve shall be entitled to deduct payments initially from the business partner’s or principal’s older debts.
Where costs and interest have accrued, Hainich Konserve shall be entitled to apportion payments first to the costs, then to the interest and finally to the primary obligation.
c) Payment shall be deemed to have been effected only when Hainich Konserve is able to dispose of the entire amount. In the case of cheques, payment shall be deemed to have been effected only when Hainich Konserve has cashed the cheque.
d) Should the business associate, principal or trade partner fall into arrears with payments, from the date concerned Hainich Konserve shall be entitled to charge interest at the rate set by commercial banks for overdrafts plus value-added tax at the mandatory rate.
e) Hainich Konserve is an affiliate of TUPAG-Holding-AG (commercial registration number HRB 403359) pursuant to Sections 15 ff of the German stock corporation act (AktG). Accounts payable by the principal to the contractor can be offset by way of intercompany accounting and assigned to TUPAG-Holding-AG. Procedural rights shall pass to the joint and several creditor.
III. Performance and deadlines
1. Delivery period/start of performance
a) The delivery period/performance of the contract shall begin on the date of issue of the written confirmation of order or signing of the contract, but not before all technical or commercial details have been clarified and not before the documents, approvals, authorisations, guarantees, etc. required from the business associate, the principal or the trade partner have been furnished.
In the case of subsequent amendment, the delivery period/performance of the contract shall begin on the date of renewed written confirmation, and where an advance payment or part payment is agreed on the date of receipt of such payment.
b) The delivery deadline/contract period shall deem to have been complied with if the deliverable item has left its place of dispatch or performance of the contract has been commenced by the time of expiry of the deadline/period and the business associate, principal or trade partner have been notified to this effect.
c) The delivery deadline/contract period shall be extended as appropriate in the event of unforeseen obstacles which could not be averted despite Hainich Konserve having exercised due diligence in the light of the given circumstances. Should Hainich Konserve be delayed in meeting its obligations, it is first of all to be granted an appropriate extension to the deadline. Following expiry of the extended deadline to no effect, the business associate, principal or trade partner may withdraw from the agreements.
The same legal consequences shall apply if the aforestated circumstances arise for the business associate, the principal or the trade partner.
d) Compliance with any extended deadlines for delivery or performance of contractual obligations shall be contingent upon fulfilment of the business associate’s, principal’s or trade partner’s contractual obligations.
2. Transfer of risks and liabilities
a) Risk of accidental loss and deterioration shall pass to the buyer upon transfer of the sold goods and payment of the purchase price.
b) Where the seller sends the goods to a destination other than the place of performance on request from the buyer, the risks shall pass to the buyer as soon as the seller has delivered the item concerned to the forwarding agent, the carrier or any other person appointed to ship the goods.
c) In the case of sale of living animals, the risk of loss shall pass to the buyer directly from the loading platform or the place of loading at Hainich Konserve, irrespective of payment of the purchase price and any other agreements.
3. Retention of title
a) Hainich Konserve shall retain title to all services and articles until settlement of all accounts payable from the business relationships and/or contractual agreements.
b) For the duration of retention of title, the business associate, principal or trade partner shall assign any insurance claims to Hainich Konserve, in the form of a preferential share corresponding to the invoice value of the goods and tangible assets to which Hainich Konserve holds title.
This shall also apply where the insurance company does not cover the full extent of the loss incurred, such that Hainich Konserve cannot be required to accept partial compensation in such a case.
c) Should the customer, business associated, principal or trade partner default on their payment and insurance obligations and/or their obligations arising from the retention of title, discontinue their payments or seek an out-of-court settlement, or if judicial settlement proceedings or insolvency proceedings are sought regarding their assets, the entire unpaid balance shall be due, including any bills of exchange with later dates of maturity.
If the entire unpaid balance is not paid immediately, Hainich Konserve shall be entitled to retake possession of the delivered items immediately or, where other goods and services are involved, of those items which have been delivered.
All costs pertaining to repossession shall be borne by the business associate, principal or trade partner.
4. Acceptance
The business associate, principal, trade partner shall be obliged to accept or recognise due performance of the contract with regard to services rendered or goods delivered, except where the nature of the goods or services precludes acceptance.
Hainich Konserve may require confirmation of acceptance after fulfilling an order. If the business associate, principal, trade partner fails to confirm acceptance, acceptance shall be deemed to have been confirmed 12 working days after written notification of performance.
On the business associate, principal or trade partner putting material goods into use, acceptance shall be deemed to have been confirmed after 6 working days.
IV. Reservations and warranty claims
1. Warranty
a) The warranty obligation applies for a period of 2 years, save where Section 438 (1), nos. 1 and 2 of the German Civil Code are applicable and except with regard to the direct sale of perishable goods.
Hainich Konserve is to be notified forthwith in writing of any apparent defects within 5 working days.
If fulfilment of the contract or order is delayed through no fault of Hainich Konserve, liability shall expire no later than 24 months after the passing of risk. With regard to third-party products, Hainich Konserve’s liability shall be limited to assignment to the business associate, principal or trade partner of Hainich Konserve’s liability claims against the supplier of the third-party products.
b) The right of the business associate, principal or trade partner to assert claims on account of defects shall expire in all instances 24 months after the date of delivery/acceptance.
c) All warranty cover shall lapse if Hainich Konserve’s instructions for use or handling of the warranted item are not followed, modifications are carried out on the user’s own initiative or consumables are used which do not correspond to the original specifications.
d) If the business associate, principal or trade partner requires warranty measures to be performed at a place which they specify, Hainich Konserve may meet such a request, whereby materials covered by the warranty shall not be charged for, while labour costs and ancillary wage costs shall be reimbursable to Hainich Konserve at the standard rates.
e) Liability shall be limited to the obligation to replace the defective part of the warranted item with a serviceable part, insofar as is possible. No liability shall apply for normal wear and tear or the effects of actions which do not correspond to common practice.
f) The above clauses cover only the warranty for Hainich Konserve’s goods and services, to the exclusion of any other form of warranty claims.
g) Merchandise and material goods are free of material defects when they are suitable for the customary form of use and are of a quality which is customary for items of the given kind and which the buyer may expect of the type of merchandise and material goods concerned.
Any damage caused in transit is to be notified to the carrier/forwarding agent immediately by way of a written note on the confirmation of delivery when taking receipt of the goods/delivery.
h) The grounds for and extent of the notice of defects must be clearly discernible. With regard to complaints concerning quality characteristics, the quality standards which are generally applicable to the contractual item or the goods shall apply.
No guarantee can be provided for the degree of dryness and the weight of deliveries of organic materials. No guarantee can be given regarding growth or accretion.
2. Right of rescission
Hainich Konserve shall be entitled to withdraw from any form of legal transaction if the economic circumstances of the business associate, principal or trade partner deteriorate so severely after the placement of an order or conclusion of a contract that the company cannot reasonably be expected to fulfil the order or contract. This shall also apply where an extension to the time of performance or a deadline extension had initially been agreed.
3. Applicable law and jurisdiction/place of performance
a) The goods and services, contractual performance and all legal relations between Hainich Konserve and the business associate, principal or trade partner shall be subject solely to the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) shall apply to all export transactions.
b) Hainich Konserve is neither prepared nor obliged to participate in a dispute resolution process before an arbitration body for consumer complaints.
c) Where legally permissible, 99974 Mühlhausen/Thuringia shall be the sole place of jurisdiction for any disputes arising directly or indirectly from the transaction, the contractual relationship or any other agreements. The place of performance shall be 99986 Vogtei, district of Niederdorla.
d) Should any individual provisions and stipulations of these General Terms and Conditions or a provision of any other agreements be or become invalid, this shall not affect the validity of any other provisions and agreements.
Vogtei, 01.03.2019
