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Delivery and payment terms

Stand: February 2019

Delivery and payment terms of RUF Lebensmittelwerk KG

1. Scope

The following Delivery and Payment Conditions (“D&P”) shall exclusively apply: RUF Lebensmittelwerk KG (“Seller”) shall not acknowledge any conditions of the buyer, which are contradictory or deviate from these D&P, unless it has expressly consented to their validity. This consent requirement shall apply in any case, for example, even if the Seller carries out the delivery in the awareness of conditions that contradict or deviate from these.

1.2 These D&P shall only apply vis-à-vis companies, public-law legal entities and special public-law funds within the meaning of Articles 310 Para. 1 and Article 14 of the BGB [German Civil Code].

1.3 Indications concerning the validity of legal regulations are for the purposes of clarification only. Therefore, also if no such clarification has been provided, legal regulations shall apply, provided that these have not been directly changed in these D&P or explicitly ruled out.

2. Offers and order content; notices of the buyer after contract conclusion

2.1 The offers of the Seller vis-à-vis the buyer are subject to confirmation. The buyer’s order shall be a binding contract offer. If not otherwise indicated in the order, the Seller shall be entitled to accept this contract offer within two weeks after receipt by the Seller.

2.2 The content and scope of the concluded contractual relationship, particularly the details of the scope of delivery and the delivery period, shall exclusively be based on the order confirmation. Oral agreements, in particular with our travelling representatives, and telephone agreement must be confirmed in writing by the parties.

2.3 Declarations or notices that are only to be issued by the buyer to the Seller after conclusion of the contract (e.g. setting of deadlines, defect notices, declaration of withdrawal or reduction) must be in writing in order to be valid.

3. Prices and payment conditions

3.1 Provided that nothing different is individually agreed, the respective current ex-factory prices of the Seller at the time of contract conclusion shall apply. They shall not include the costs of packaging, shipping, transport insurance or statutory VAT. The price calculation shall take place in euro (€). The buyer shall bear the extra costs of payment in foreign currency.

3.2 Provided that nothing else has been individually agreed, the invoices issued by the Seller shall be payable without any deductions within 30 days of the invoice date and delivery.

3.3 The buyer shall only be entitled to set-off and retention rights, if its counterclaims are legally established or uncontested. The buyer shall also not be entitled to any right of retention due to contested counterclaims. In the case of delivery defects, the counter-rights of the buyer shall remain unaffected, in particular, in accordance with Section 5.3. Furthermore, a right of retention shall only exist if the asserted claim is based on the same contractual relationship as the Seller’s counterclaim.

3.4 In case of delayed payment, the Seller shall be entitled to charge statutory default interest. The Seller shall also have unfettered entitlement to the other rights and claims due to payment default, particularly for compensation for further default losses.

4. Delivery, transfer of risk

4.1 The delivery shall take place ex-factory, where the place of performance for the delivery and any supplementary performance also is. At the request and expense of the buyer, the goods shall be shipped to a different destination (mail order purchase).

4.2 The risk of accidental loss and accidental deterioration of the goods shall transfer to the buyer no later than upon handover. However, with a mail order purchase, upon delivery of the goods, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay shall already transfer to the forwarding agent, freight forwarder or other persons or institutions appointed to carry out the shipment. The risk of accidental loss and accidental deterioration of the goods shall also be transferred to the buyer if the buyer delays acceptance.

5. Warranty

5.1 Defect claims by the buyer shall require that it has properly fulfilled his statutory inspection and complaint duties.

5.2 If physical defects or legal defects should exist, the Seller can initially choose whether it provides supplementary performance by rectifying the defect (reworking) or by delivering a non-defective item (replacement delivery). The buyer’s right to refuse the chosen type of supplementary performance under legal conditions shall remain unaffected.

5.3 The Seller shall be entitled to make the owed supplementary performance dependent upon the buyer paying the purchase price due. However, the buyer shall be entitled to retain an adequate portion of the purchase price in proportion to the defect.

5.4 The buyer shall give the Seller the necessary time and opportunity for the owed supplementary performance, particularly, to hand over the goods complained about for inspection purposes. In case of replacement delivery, the buyer shall return the defective item to the Seller in accordance with statutory regulations.

5.5 The necessary costs for the purpose of inspection and supplementary performance, particularly shipping, travel, operational and material costs, as well as removal and installation costs shall be borne or reimbursed by the Seller in accordance with statutory provisions, should such a defect exist. Otherwise, the Seller shall be entitled to demand compensation for the costs arising from the unjustified demand for corrective action (in particular, testing and shipping costs), unless the lack of deficiency could not be recognised by the buyer.

5.6 If the supplementary performance should fail or if an adequate deadline to be set by the buyer for supplementary performance should expire unsuccessfully or be expendable according to statutory regulations, the buyer shall be entitled to withdraw from the purchase contract or reduce the purchase price. However, no right of withdrawal exists in the case of negligible defects.

5.7 Claims by the buyer for compensation and replacement of fruitless costs shall only exist on the basis of the following Section 6 and shall be ruled out, ceteris paribus.

6. Other liability, liability limitations

6.1 Provided that these D&P, including the provisions below, do not indicate otherwise, the buyer shall be held liable for a violation of contractual or non-contractual duties pursuant to the relevant statutory regulations.

6.2 Within the scope of fault-based liability, the Seller shall be liable for compensation in case of its own fault and the fault of its legal representatives, employees and other vicarious agents – regardless of the legal grounds – only in case of intent and gross negligence. In the event of negligence, the Seller shall only be liable for damages from damages deriving from injury to life, limb or health, for damages from the violation of a significant contractual obligation (an obligation where the fulfilment of which makes the proper implementation of the contract possible in the first place and the compliance with which the contracting party regularly trusts and can trust); in this case, however, liability on the part of the Seller shall be limited to the reimbursement of damage that is typically anticipated to occur.

6.3 The liability limitations contained in Section 6.2 shall not apply, if the Seller should maliciously conceal a defect or has assumed a guarantee for the state of the goods. The same shall apply to claims by the buyer under the German Product Liability Law.

6.4 Provided that the Seller’s liability is ruled out or limited, this shall also apply to its legal representatives, employees, co-workers, and other vicarious agents.

7. Reservation of ownership

7.1 The delivered goods shall remain the property of the Seller (“reserved goods”) until full payment of the purchase prices, as well as until payment of all current and future claims arising from the purchase contract and the business relationship (including ancillary claims, compensation claims, future claims, redemption of cheques, release from sureties, guarantees or similar collateral). The reservation of ownership shall also exist, when individual claims of the Seller are included in a running invoice (current account reservation) and the balance has been drawn and acknowledged. The Seller shall be entitled to the reservation of ownership for the acknowledged and abstracted balance, as well as the existing causal balance, in the case of the buyer becoming insolvent. This shall finally lapse with the compensation of all claims still outstanding at the time of payment and included in the extended reservation of ownership.

7.2 The buyer shall be revocably entitled to process and sell the reserved goods in the regular course of business. These authorities shall specifically end with default or discontinue payment by the buyer or when insolvency proceedings are initiated over his property. An authority to sell and process shall not exist in cases where the Seller has agreed an assignment prohibition with his buyer. Pledges and security transfers of the reserved goods or the assigned claims shall be inadmissible.

7.3 The claims created from the onward sale or other legal basis (insurance, tort) regarding the reserved goods (including all current account balance claims), shall now already be assigned fully by the buyer to the Seller, who herewith accepts this assignment. The Seller shall revocably authorise him to collect the assigned claims. This collection authorisation can be revoked if the buyer does not properly fulfil his payment obligations.

7.4 The processing and conversion or reformation of the reserved goods shall always take place by the buyer on behalf of the Seller, without the Seller incurring costs for this. If the reserved goods should be processed, combined or linked with other items not belonging to the Seller, the Seller shall acquire the co-ownership of the new item, in the proportion of the value of the delivered goods (final invoice amount including VAT) to the other items at the time of processing/combining or linking. If processing, combining or linking should take place in a manner, such that the buyer’s item is regarded as a main item, the buyer shall transfer the proportional co-ownership to the buyer. The buyer shall keep the sole ownership or co-ownership created in this manner on behalf of the Seller. For the new item resulting from the processing or conversion, linking or combining that is subject to (co-)ownership by the Seller, the same shall apply as for the reserved goods.

7.5 In case of access by third parties to reserved goods, particularly pledges, the buyer shall refer to the Seller’s co-ownership and immediately notify the Seller, so that it can enforce its ownership rights. If the third party should not be able to compensate the Seller for judicial or extra-judicial costs arising in this context, the buyer shall be held liable for this.

7.6 In case of anti-contractual conduct by the buyer, particularly in case of payment default, the Seller – notwithstanding further (compensation) claims – shall be entitled to withdraw from the contract, after unsuccessfully issuing a warning and setting a grace period, and demand the return of the reserved goods. A grace period shall not be required to be set, if this is dispensable, according to the law. The Seller shall be authorised to realise the reserved goods after their return. The realisation proceeds shall be applied to the buyer’s liabilities – less adequate realisation costs.

8. Statute of limitations

8.1 For claims and rights due to a defect, a limitation period of one year from delivery of the goods shall apply, or if an acceptance inspection has been agreed, from the time of acceptance.

8.2 The above mentioned period shall not apply to compensation claims due to defects, as well as to claims and rights for which the law mandatorily prescribes longer periods or later termination of the limitation periods, pursuant to Article 438 Para. 1 No. 2 BGB [German Civil Code] for structures and building materials (5 years), pursuant to Article 438 Para. 1 No. 1 BGB for third-party physical release claims (30 years), pursuant to Article 438 Para. 3 BGB for a case of malicious concealment of a defect by the Seller (3 years from awareness) and for supplier recourse claims in accordance with Articles 445a et seq. of the BGB. In these cases, the statutory limitation periods shall apply.

8.3 The preceding purchasing-right limitation periods shall also apply to contractual and extra-contractual compensation claims of the buyer, which are based on a defect of the goods, unless the application of the ordinary statutory limitation periods (Articles 195, 199 of the BGB [German Civil Code]) would result in a shorter limitation period on an individual basis. However, compensation claims of the buyer in the case of damages deriving from injury to life, limb or health, in the case of intent and gross negligence as well as in accordance with the product liability law shall only expire according to the statutory limitation periods.

9. Place of performance, legal venue, choice of law

9.1 Provided that nothing else is agreed, the place of performance shall be the Seller’s registered office.

9.2 If the Seller is a merchant in accordance with the code of commercial law, a legal entity under public law or a special fund under public law, the exclusive – also international – legal venue for all disputes arising directly or indirectly from this contractual relationship is the registered office of the Seller in Quakenbrück. However, the Seller shall also be entitled to file legal action at the buyer’s general legal venue.

9.3 The law of the Federal Republic of Germany applies to this D&P and all legal relationships between the seller and the buyer to the exclusion of international uniform law, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods.