The General Terms and Conditions of Demeter Felderzeugnisse GmbH shall apply.
1. General scope of application
1.1 The General Terms and Conditions of Sale (GTCS) apply to all deliveries from Demeter-Felderzeugnisse GmbH, hereinafter also referred to as DFE, to entrepreneurs. When concluding a contract for a delivery according to these GCS, the buyer confirms that he is an entrepreneur and not a consumer. For all deliveries of DFE, also for all future business transactions, the following GTCS as well as the supplementary special conditions mentioned therein are exclusively decisive if no deviating agreements have been made. Conflicting conditions or conditions of the buyer that deviate from these GCS are not acknowledged, unless DFE has expressly agreed to them in writing. These GCS also apply if DFE executes the order to the buyer without reservation in the knowledge of conflicting conditi ons or conditions of the buyer that deviate from these GCS. The invalidity of individual conditions does not affect the validity of the remaining conditions. The same applies if individual conditions do not become part of the contract. Separate General Terms and Conditions (GTC-OT) apply to our online trade (OT).
1.2 In addition to the General Terms and Conditions of Sale, the following special terms and conditions shall apply subordinately, depending on the subject matter of the contract, with the proviso that in the event of disputes, the arbitration clause under clause 10 shall be agreed in deviation from the aforementioned terms and conditions:
1.2.1 For trade in fruit and vegetables: The conditions for the trade in fruit and vegetables, whether fresh, frozen or intended for industrial use (COFREUROP).
1.2.2 For trade in cereals, by-products, straight feeding stuffs: Unified Contract Terms for the German Cereals Trade together with the Additional Provisions for Trade in Organic Cereals of the Grain Traders Association of the Hamburg Exchange e.V. or, in the case of contracts for malting barley, the Unified Contract Terms for the German Cereals Trade together with the Additional Provisions for Transactions with German Malting Barley.
1.2.3 For trade in oil, oil meal and comparable products: Unified Contract Terms for the German Cereals Trade in connection with the oil mill terms and conditions of the respective mill.
1.2.4 For trade in seed: General Conditions of Sale and Delivery for Seed under the Seed Trade Law with the Exception of Seed Potatoes and Sugar Beet Seed (AVLB Saatgut).
1.2.5 For trade in potatoes, seed potatoes:
For sales in Germany: German Terms and Conditions for Potatoes, Berlin Agreement 1956, version of 9 December 2010.
For sales outside Germany: RUCIP 2006 Terms and Conditions for Inter-European Trade in Potatoes, together with the Rules for Expert Assessment for Potatoes.
1.2.6 For trade in compound feed: “Hamburger Futtermittel-Schlussscheine”.
1.2.7 For trade in roughage:
For sales in Germany: Deutsche Raufutter-Handelsbedingungen (German conditions for trade in roughage).
For sales outside Germany: REPEF European Terms and Conditions for Trading in Straw, Roughage and By-Products.
The conditions shall be made available to the buyer upon request.
2. Conclusion of contract
2.1 An order of the buyer received on the order form of DFE is to be qualified as an offer in the sense of Section 145 German Civil Code (BGB). This offer can be accepted by DFE within one week in the form of a written order confirmation by e-mail, by post or by fax.
2.2 All agreements made between DFE and the buyer are set down in full in writing in the respective contractual declarations. The employees of DFE are not authorized to make verbal promises that deviate from the written contract agreement.
3. Terms of payment - Prices
3.1 Unless otherwise agreed in the order confirmation, all prices are EXW Incoterms 2020 (EX WORKS), net, plus the statutory value added tax.
3.2 Invoices are due immediately. If payment is not received within 30 days after the due date and receipt of an invoice or an equivalent request for payment, the buyer is in default without any further reminder. In this case, DFE is entitled to demand interest on arrears in the amount of 9% points above the base interest rate p.a..
3.3 DFE is entitled to adjust the purchase price accordingly in the event of changes in transport costs and tariffs not foreseen at the time of the conclusion of the contract and other costs beyond the control of the DFE, which lead to an increase in the total costs of the fulfilment of the contract.
3.4 If the buyer is in default of payment of more than € 500 to DFE under the respective contract or any other contract, DFEs entire claims shall become due immediately. If the buyer is in default of payment according to sentence 1 or if he has revoked a direct debit issued to him by DFE according to the contract or has allowed it to go back unpaid, then DFE is entitled - subject to other rights - after the unsuccessful expiry of an appropriate grace period for the payment of the amounts due, to withdraw from individual or all contracts not yet processed in full and/or in part and / or to demand compensation for damages due to non-fulfilment subject the statutory requirements. Insofar as the buyer has issued a SEPA direct debit mandate, he assures to ensure sufficient coverage of his account. Costs incurred due to non-payment or reversal of the direct debit shall be borne by the buyer unless he can prove that he is not responsible for the reversal.
3.5 The buyer is only entitled to rights of set-off or retention if his counterclaims are established by a non-appealable court decision, undisputed or acknowledged by DFE. This restriction does not apply to claims of the buyer due to the (partial) non-fulfilment of the contract or due to defects, insofar as these claims arise from the same contract as the claims of DFE.
3.6 If the financial circumstances of the buyer deteriorate after conclusion of the contract and if the fulfilment of the claims of DFE is endangered as a result, then DFE is entitled to make the fulfilment of its contractual obligations dependent on an advance payment or a security deposit. If the buyer does not comply with a corresponding request within a reasonable period, DFE is entitled to withdraw from the contract.
3.7 The assignment of claims against DFE requires the consent of DFE.
4. Delivery and Delivery time
4.1 The start of the delivery time offered by the DFE requires the clarification of all technical questions between the DFE and the buyer.
4.2 Unless otherwise agreed in writing, delivery and transfer of risk are always EXW (according to Incoterms 2020) of the warehouse or production facility of DFE or the warehouse or production facility of DFE’s contractual partner on the supply side. DFE fulfils its contractual obligation upon making the goods available for collection. DFE is not responsible for damages and / or consequential costs in the event of delayed delivery by external service providers, unless these are due to the fault of DFE.
4.3 DFE is entitled to provide the contractual service in partial deliveries, as far as this is reasonable for the buyer. If delivery on call is agreed, the buyer must call within a reasonable period.
4.4 Insofar as DFE is liable in the case of a delay in delivery according to the legal provisions, the liability for damages caused by delay (damages in addition to performance) is limited to 5% of the net price of the delayed delivery except for intent or gross negligence. Liability for personal injury remains unaffected. Liability for damages in lieu of performance shall be determined in accordance with clause 8.
4.5 If the delivery is made impossible or excessively difficult by events of force majeure such as natural disasters, crop failures or shortfalls, pandemics and epidemics, official measures or measures of other control bodies, strikes, or similar circumstances for which DFE is not responsible, also at suppliers of DFE, then DFE is released from the obligation to deliver for the duration of the hindrance and its after-effects. In the case of pandemics and epidemics, this also applies if these had already occurred at the time of conclusion of the contract, insofar as their concrete effects on the contract were neither known nor concretely foreseeable at the time of conclusion of the contract. DFE will inform the buyer immediately about the occurrence of the hindrance and its expected duration.
If the hindrance lasts longer than three months or if it is otherwise unreasonable for one of the parties to adhere to the contract due to the duration of the hindrance, each of the parties is entitled to withdraw from the contract. In this case, DFE will refund the buyer any purchase price already paid.
4.6 The delivery is also subject to correct and timely self-delivery. If DFE is not completely supplied due to crop failures or shortfalls on the part of our upstream suppliers, DFE is also entitled to deliver only to the extent that corresponds to the percentage of the harvest in the areas of its upstream suppliers.
4.7 The buyer undertakes to release DFE, without remuneration, from any take-back obligations with regard to transport packaging and all other packaging, which affect DFE on the basis of the regulations of the Packaging Act; except for reusable packaging and reusable pallets.
4.8 If the buyer is in default with his performance of contract, then DFE is entitled, after the unsuccessful expiry of a reasonable grace period set by DFE, insofar as such grace period is not dispensable according to the legal provisions, to withdraw from the contract or to sell or auction the goods on the open market. DFE is entitled to demand compensation for damages due to non-fulfilment, unless the buyer proves that he is not responsible for the breach of duty. The same applies if the buyer is only in default with regard to a partial performance.
5. Recipes, Competition
5.1 DFE reserves the right to deviate from the recipe at any time, unless otherwise agreed between the buyer and DFE. Within the framework of an existing contract, this only applies insofar as the deviation is reasonable for the buyer and in particular neither impairs the suitability for a contractually agreed and otherwise usual purpose, nor leads to a reduction in the value of the goods.
5.2 During the term of the contract, at the longest within a period of 5 years from the conclusion of the contract, the buyer may not manufacture, have manufactured or market products which are essentially identical to the contractual products with regard to the formulations.
6. Rights in case of defects
6.1 The buyer is obliged to inspect the delivered goods immediately after delivery and to notify the DFEin writing of any
recognisable defects without delay (at the latest by the second working day aftertaking delivery of the goods). The
buyer's duty to inspect also extends to the completeness / defectiveness of the shipping documents, documents,
labelling, in particular to all documents confirming the organic conformity of the goods. Further obligationsto examine
and to give notice of defects remain unaffected. The buyer is obliged to request available analyses before further
processing of the delivered goods or to analyse the goods himself.
6.2 Notices of defects are only acknowledgedas such by DFE if they have been communicated in writing. Complaints
made to field staff or transporters or other third parties donot constitute formal or timely complaints.
6.3 Any defects which are notified late, i.e. contrary to the above obligations (6.1 and 6.2), are -with the exception of
fraudulently concealed defects -excluded from liability for defects.
6.4The return of the goods to DFE, which is necessary in the event of a defect, can only take place with the prior
agreement of DFE. Returns that are made without the prior consent of DFE do not need to be accepted by DFE. In this
case, the buyerbears the costs of the return.
6.5The existence of a defect, which has been communicated by an effective notice of defect, establishes the following
rights of the buyer:
6.5.1 In the event of a defect, the buyerfirst has the right to demand subsequent performance from DFE.
6.5.2 The right to choose whether a new delivery of the item or a rectification of the defect takes place is at the
discretion of DFE.
6.5.3 In addition, DFE has the right to carry out a new supplementary performance, again at its own discretion, if a
supplementary performance attempt fails.
6.5.4 If the second attempt at subsequent fulfilment is also unsuccessful, if subsequent fulfilment is impossible or
unreasonable, or if it is refused by DFE, the buyeris entitled to withdraw from the contract or toreduce the purchase
price under the legal conditions. Claims for damages only exist within the scope of clause 8.
6.6The limitation period regarding liability for defects is one year from delivery of the goods. This does not apply to
claims for damages due to intent or gross negligence or due to culpable injury to life, body or health.
6.7The buyer must in any case prove that the defect already existed at the time of delivery of the goods.
6.8 Declarations regarding the quality and durability of the goods, with which DFE grants the buyeradditional rights in
the event of a warranty claim, without prejudice to his legal claims, only represent a guarantee of quality and durability
in the sense of §443 BGB if DFE has expressly designated them as a guarantee. The rights of the buyerin the case of
a warranty arise exclusively from the warranty declaration.
7. Retention of title
7.1 DFE retains ownership of the purchased goods (reserved goods) until all claims of the DFE from the business relationship, including future claims, also from contracts concluded at the same time or later, have been settled (balance claims). This also applies if individual or all claims of DFE have been included in a current invoice and the balance has been drawn and acknowledged.
7.2 In the case of behaviour of the buyer that is contrary to the contract, in particular in the case of default of payment, DFE is entitled to withdraw from the contract according to the statutory requirements and to take back the purchase item. For this purpose, DFE may enter the buyer's premises in which the goods subject to retention of title are stored and take possession of the goods subject to retention of title; the buyer bears the costs of the repossession.
7.3 The buyer undertakes to store the purchased goods properly and, if measures are necessary to maintain the value of the goods (cooling, ventilation, etc.), to carry these out immediately at his own expense.
7.4 The buyer is not permitted to assign or pledge the goods subject to retention of title as security. The Buyer shall immediately notify the DFE in writing of any seizure or other intervention by third parties. Insofar as the third party is not in a position to reimburse DFE for the court and out-of-court costs of an action in accordance with § 771 ZPO, the buyer is liable for the loss incurred by DFE.
7.5 The buyer is entitled to resell the purchased item in the ordinary course of business, however, he already now assigns to DFE all claims to the extent of DFE's claims (invoice, final amount plus the statutory value added tax), which accrue to him from the resale against his buyers or third parties, regardless of whether the purchased item has been resold without or after processing. The buyer remains authorised to collect this claim even after the assignment; DFE's authority to collect the claim itself remains unaffected by this. However, DFE undertakes not to collect the claim as long as the buyer meets his payment obligations from the collected proceeds, is not in default of payment, in particular no application for the opening of composition or insolvency proceedings has been filed, or payments have been suspended. If this is the case, however, DFE can demand that the buyer informs it of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
7.6 The processing, treatment or mixing of the object of sale by the Buyer shall always be carried out on behalf of DFE, without any obligations arising for DFE as a result. If the purchased item is processed or mixed with other items not belonging to DFE, DFE acquires co-ownership of the new item in a proportion that corresponds to the value of the goods subject to retention of title (invoice, final amount, incl. VAT) in relation to the value of the goods mixed with the goods subject to retention of title at the time of the mixing or blending.
7.7 DFE undertakes to release the securities to which it is entitled at the request of the buyer insofar as the realisable value of the securities exceeds the claims to be secured by more than 20%. The choice of the security to be released shall be incumbent on DFE.
DFE is liable according to the statutory provisions, insofar as the buyer asserts claims for damages, which are based on intent or gross negligence or a culpable violation of an essential contractual obligation. Essential contractual obligations are those whose fulfilment is necessary to achieve the purpose of the contract and on whose fulfilment the buyer regularly relies and may rely. Insofar as DFE can neither be charged with intent nor gross negligence, the liability for damages in the aforementioned cases is limited to the foreseeable damage typical for the contract.
Liability due to culpable injury to life, body or health remains unaffected; this also applies to the mandatory liability according to the Product Liability Act as well as to the mandatory liability according to Section 24 of the German Food and Feed Code (LFGB).
Unless otherwise provided above, liability for damages shall be excluded irrespective of the legal nature of the asserted claim.
The above provisions apply accordingly, insofar as the buyer demands compensation for futile expenses instead of a claim for compensation for damages instead of performance.
Insofar as the liability for damages against DFE is excluded or limited, this also applies with regard to the personal liability for damages of the legal representatives, employees and vicarious agents.
The buyer is not entitled to change trademarks and other marks of DFE on the goods or to remove them from the goods, the packaging or the advertising. The trademarks may only be used in media other than those provided by DFE, except for the customary advertising on the buyer's website(s), after prior consultation with and consent of DFE. This applies in particular to use on the internet, e.g. as a domain name or in social media.
The examination of the risk of a trademark infringement for the distribution of the goods in territories in which the trademarks of DFE do not enjoy protection is the responsibility of the buyer.
10. Compliance with legal regulations abroad
The buyer of the goods is solely responsible for compliance with any special national regulations and legal framework conditions in the recipient country.
11. Applicable law, arbitration agreement and place of jurisdiction
11.1 Subject to the provision under clause 11.2, all disputes arising out of and in connection with the contract shall be finally settled by the Arbitration Court of the Mannheim Commodity Exchange, E4, 12-16, D-68063 Mannheim, Germany, in accordance with the Arbitration Rules of the Südwestdeutsche Warenbörse e.V., excluding the ordinary courts of law.
11.2 In deviation from clause 11.1, if the contractual partner is a merchant, a legal entity under public law or a special fund under public law, DFE is optionally entitled to bring an action before the ordinary court instead of bringing an action for arbitration. In this case, the exclusive place of jurisdiction shall be Darmstadt. In the event that DFE brings an action before the ordinary court, the arbitration agreement does not prevent the assertion of counterclaims of the buyer by way of set-off or counterclaim within the framework of these proceedings.
11.3 German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
12. Partial invalidity
Should any of the above clauses be invalid, the remainder of the contract shall remain unaffected. Instead of the ineffective clause, the corresponding legal regulations shall apply.
1. General scope of application
1.1 The General Terms and Conditions of Purchase (GTCP) apply to all orders, deliveries and future busi-ness transactions of Demeter-Felderzeugnisse GmbH, hereinafter also referred to as DFE, with suppliers or contractors, hereinafter also referred to as Contractor. When concluding a contract in accordance with the GTCP, the Contractor confirms that he is an entrepreneur and not a consumer. For all deliveries and also for all future business transactions, the following GTCP shall apply exclusively, unless expressly agreed other-wise. Terms and conditions of the Contractor that are contrary to or deviate from these GTCB shall not be accepted, unless DFE has expressly agreed to them in writing. These GTCB also apply if DFE carries out the pick-up without reservation being aware of conflicting or deviating conditions of the contractor.
1.2 All agreements between DFE and the Contractor are set down in writing in the order. The employees of DFE are not authorised to make deviating agreements verbally. Verbal agreements are set out in written order confirmations from DFE by fax or e-mail. The order confirmation, by which previous verbal agreements are summarised, is authoritative for the determination of the content of the contract, insofar as the Contractor does not object without undue delay.
1.3 Insofar as reference is made to Incoterms, the Incoterms (International Commercial Terms) of the Inter-national Chamber of Commerce (ICC) shall apply in the version valid at the time of the conclusion of contract, unless expressly agreed otherwise in the contract.
1.4 In addition to the GTCB, the following special terms and conditions shall apply subordinately, depending on the subject matter of the contract, with the proviso that in the event of disputes, the arbitration clause under clause 13 shall apply in deviation from the aforementioned conditions.
1.4.1 In trade with fruit and vegetables: The conditions for the trade in fruit and vegetables, whether fresh, frozen or intended for industrial use (COFREUROP), shall apply.
1.4.2 In trade with grain, by-products, sole feed products: The uniform conditions for the German grain trade as well as the ancillary conditions for the trade in organic grain of Verein der Getreidehändler [grain traders’ association] of Hamburger Börse e.V. as well as the ancillary conditions to the uniform conditions for the Ger-man grain trade for transactions or, in the case of contracts for malting barley, the uniform conditions for the German grain trade together with the Additional Provisions for Transactions in German Malting Barley.
1.4.3 In trading in oil, oil meal and comparable products: The uniform conditions in the German grain trade following the oil mill terms and conditions of the respective mill with the oil mill conditions for the respective mill shall apply.
1.4.4 In trade with seeds: The general terms and conditions of sale and delivery for seeds in accordance with the Saatgutverkehrsgesetz [German seed marketing act] with the exception of seed potatoes and sugar beet seeds (AVLB Saatgut) shall apply.
1.4.5 In trade with potatoes, seed potatoes:
For purchases within Germany: The German terms and conditions for potatoes, Berliner Vereinbarung [Berlin agreement] 1956, version of 9th December 2010, shall apply.
For purchases outside Germany: RUCIP 2006 - Rules and practices of the Inter-European Trade in Potatoes, including the regulation on the assessment of potatoes, shall apply.
1.4.6 In trade with compound feed: Hamburger Futtermittel-Schlussscheine [Hamburg contract notes on feed] shall apply.
2. Delivery times, delayed delivery, contractual penalty
2.1 The delivery times/deadlines stipulated in the order shall be binding and shall be deemed to have been met only if the object of the contract including the pertaining delivery documents has arrived at the agreed place of receipt.
2.2 All documents shall be enclosed in German or at least in English and in duplicate. These documents shall be part of the scope of the order even if not specifically mentioned and shall be delivered with the other items at the time of transfer.
2.3 The Contractor is in default without further ado in the event of non-compliance with agreed delivery dates. The delay entitles DFE, at its discretion, to withdraw from the contract after setting a reasonable period of grace (insofar as this is not dispensable according to the legal regulations) and/or to demand compensation under the legal preconditions.
2.4 If compliance with the delivery dates/periods is at risk, the contractor must inform DFE in good time of the impending hindrance and its expected duration. Claims due to delay remain unaffected by this.
2.5 If the Contractor is in default, DFE can additionally claim a contractual penalty of 0.3% of the total con-tract price for each working day of the delay in delivery/service, but no more than 5% of the total contract price, taking into account any compensation for damages. The claim to a contractual penalty remains valid despite unconditional acceptance of the delayed delivery, provided that it is asserted at the latest at the time of settlement of the invoice claim - in the case of contractually agreed instalments up to the time of payment of the final instalment. The contractual penalty is then deducted directly from the invoice amount. Further claims and rights of DFE due to delay or due to non-fulfilment remain unaffected.
2.6 If the Contractor sells or distributes goods intended for sale according to this contract elsewhere against or without payment and for this reason does not fulfil his delivery obligations or does not fulfil them in time, DFE is entitled, after unsuccessful setting of a grace period, to rescind the contract in whole or in part and/or to make a covering purchase at the supplier's expense for the delivery shortage. DFE is entitled to declare the rescission not only with regard to the undelivered quantity, but also with regard to further remaining quantities still to be delivered at this time within the framework of the contract. A grace period is not required for the ex-ercise of the aforementioned rights, if a firm deal exists, the contractor seriously and finally refuses the delivery or other special circumstances exist, which justify an immediate covering purchase.
3. Adjournment of receipt/acceptance
In case of force majeure or other external circumstances which DFE could not foresee and/or for which DFE is not responsible, DFE shall have the right to adjourn the receipt of deliveries and/or performances or ac-ceptance correspondingly.
The Contractor agrees that DFE or a third party commissioned by DFE may take samples from the contractual sites at any time in order to examine these for residues and contaminants.
DFE may demand from the Contractor representative samples of the batches/lots of the contractual product intended for delivery, even on several occasions.
The costs for shipping the samples shall be borne by the Contractor.
5. Limitation of liability
Claims for damages and reimbursement of expenses can only be asserted by the contractor against DFE and its vicarious agents in case of intent or gross negligence.
This limitation of liability does not apply to damages from injury to life, body or health and from the breach of essential contractual obligations, which are based on a negligent or intentional breach of duty by the legal representative or a vicarious agent. Material contractual obligations are those whose fulfilment is essential for achieving the purpose of the contract and on whose compliance the Contractor regularly relies and may rely. In the event of a breach of material contractual obligations, the Contractor's claims for damages and reim-bursement of expenses in the event of simple negligence shall be limited to the foreseeable damage typical for the contract, with the exception of personal injury.
6. Place of performance, acceptance and transfer of risk
6.1 Delivery shall always be made DAP (in accordance with Incoterms 2020) to the destination named in the order, which shall also be the place of performance.
The risk of accidental loss or accidental deterioration is transferred to DFE at the place of performance. Quan-tities and quality determination are always carried out at the place of unloading, the place of destination.
6.2 Should a delivery be rejected for quality reasons, it is at the discretion of the Contractor to have the quality determined by an officially recognized expert appointed by him. The costs arising from the complaint shall be borne by the defeated party.
6.3 Pallets or packaging suitable for exchange, such as, for example, EUR pallets, big packs, etc., shall not be paid but only exchanged. Only flawless, clean pallets or packaging may be used. If EUR pallets or packag-ing no longer suitable for exchange are used, these will be charged to the supplier at replacement value.
6.4 Lose items; bulk goods:
a) If collection EXW in accordance with Incoterms 2020 has been agreed, it shall be incumbent on the Contractor to ensure that the loading point can be driven to and from without danger for the purpose of loading and that it can be reached without hindrance via sufficiently paved, load-bearing roads that can be driven on by heavy trucks.
Any damage to transport vehicles as a result of unsuitable access/transit roads shall be borne by the Contractor.
b) Waiting times at the loading station shall not exceed 1.5 hours. Any additional waiting time beyond that shall be charged to the Contractor.
c) In case of pick-up by DFE, freight charges shall always be calculated on the freight rate for 25 t net goods. If less than 25 t net are delivered, the freight charges shall be borne by the Contractor on a prorata basis.
In addition, the supplier shall bear pro rata freight charges for shortfalls and undesired particles. Loaded and empty vehicles shall be weighed on officially calibrated scales.
d) The Contractor shall be obliged to duly seal each shipment and to attach the seal number to the goods receipt.
7. Invoice and payment
7.1 The agreed prices shall be fixed prices including costs for packaging, transport and insurance, expens-es, licensing fees as well as public charges. Value added tax shall be shown separately.
The invoice must always be sent in duplicate to the ordering department of DFE indicating the person placing the order and the ordering department.
7.2 Unless otherwise agreed, payment shall be made less 3% discount within 14 days or else net within 30 days. The payment term shall commence upon receipt of a verifiable, legally correct invoice, but not prior to defect-free performance of contract and/or acceptance of goods. In case of defective performance, DFE shall have the right to withhold the payment on a pro-rata basis until due performance has been made. Payment itself does not constitute any recognition of receipt or compliance of the performance.
8. Assignation, set-off, right of retention
Without DFE’s prior written consent, the Contractor shall not be entitled to assign its claims against DFE or to have these collected by third parties.
If extended retention of title has been agreed, consent shall be deemed to have been granted. This shall not affect the stipulations in sec. 354a HGB [German commercial code]. The Contractor may not claim any right of retention and may not declare set-off unless the counterclaim is undisputed or determined by a non-appealable court decision.
9. Compliance with statutory provisions; requirements for the delivery of organic goods
9.1 In fulfilling his contractual obligations, the Contractor undertakes to comply with all applicable statutory provisions, in particular the applicable food and feed law regulations and, if applicable, transport regulations.
9.2 The Contractor undertakes to comply with the provisions of Council Regulation (EC) No. 834/2007 of 28 June 2007 on organic production and labelling of organic products (EC Organic Regulation) and Commission Implementing Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implemen-tation of Council Regulation (EC) No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (Organic Implementing Regulation) and its successor regulations (EU) No. 2018/848 and No. 2020/464 and to oblige its suppliers accordingly. The Contractor shall subject itself and its suppliers to the control procedures laid down for organic farming and shall submit the docu-ments required for a flow of goods control. Copies of the current certificates or the current certificates of con-formity shall be made available by the contractor immediately after they have been submitted to DFE. DFE or a third party commissioned by it shall be authorised to inspect the cultivation area, production and storage.
9.3 The Contractor is obliged to notify DFE immediately if it is not or has not been recognised by the asso-ciation or as organic supplier.
The Contractor assures that no proceedings have been initiated against it by an inspection body (according to EC Regulation) or by his association or that no accusations have been raised which could lead to the with-drawal of the accreditation as an organic company. If such accusations are raised during the term of the con-tract, it is obliged to inform DFE without undue delay.
9.4 The Contractor shall be fully liable for all damages incurred by DFE from the violation of these obliga-tions or from a possible loss of accreditation as an organic company, unless it can prove that it is not responsible for the violation.
9.5 The Contractor assures that it will comply with all regulations of Regulation (EC) No. 834/2007 during storage and transport and any regulations of the DFE which serve to ensure these regulations and which will be made available to the Contractor separately.
9.6 The Contractor shall hand over a batch certificate to DFE on request.
9.7 In the case of contractual goods that are designated as "association goods", the Contractor also under-takes to comply with the respective association guidelines.
9.8 The products to be delivered must in any case be free of pesticides, pest control and storage protection agents, prohibited substances as well as contamination with heavy metals, radioactivity and other undesirable substances.
9.9 The marketing standards of Regulation (EU) 1308/2013 shall apply to fresh market goods.
10. Liability for material defects and defects of title
10.1 The Contractor warrants that its deliveries/services comply with the applicable laws and legal regula-tions of the Federal Republic of Germany and the European Union, e.g. accident prevention regulations, the recognised rules of technology, in particular any applicable DIN and VDE standards, the requirements of Reg-ulation (EC) No. 852/2004 on food hygiene, veterinary law - where applicable - and the stipulated specifica-tions. All products subject to the CE marking obligation must be accompanied by a declaration of conformity without being requested to do so.
10.2 The Contractor must inform DFE in writing of any reservations about specifications, drawings or other documents belonging to the order before it begins with the execution of the order. The contractor bears the risk for the correctness and the implementation/execution of drawings, calculations and other technical docu-ments of the Contractor.
10.3 DFE is obliged to inspect the goods for quality and quantity deviations within a reasonable period of time after complete delivery and, if applicable, loading and assembly activities owed by the Contractor. The notice of defects is on time if it is received by the Contractor within a period of 7 working days, calculated from the receipt of the goods, or in the case of hidden defects, from the time of discovery.
10.4 DFE is entitled to the legal claims for defects without restriction; the Contractor is liable to the legal ex-tent. If the Contractor does not fulfil its obligation to rectify or replace within a reasonable period of time, de-spite being requested to do so, then DFE is entitled to take the necessary measures itself at the expense and risk of the contractor.
10.5 Warranty claims become time-barred within 3 years from the acceptance of delivery of the goods, un-less expressly agreed otherwise. The same shall apply to claims based on defects of title. The statutory limita-tion provisions in the case of supplier recourse pursuant to § 445b BGB shall remain unaffected.
10.6 The Contractor is liable for all damages caused directly and indirectly by the defect, including conse-quential damages, which are incurred by DFE and/or a third party, and indemnifies DFE against claims for damages by third parties, unless it proves that it is not responsible for the defect. This also applies to damages in the case of complaints under food and feed law that are raised by official authorities against DFE or the customer of DFE, who brings the contractual object or a product made from it into circulation, due to a defect in the goods. The damages to be compensated include, in particular, costs from return handling, relabelling, product destruction, legal prosecution, legal defence, etc. Further legal claims remain unaffected.
11. Infringement of proprietary rights, product liability
11.1 The Contractor warrants that no patents or other industrial property rights of third parties in Germany or abroad are infringed by its delivery/service and its exploitation. Insofar as the delivery/service performed by the Contractor infringes the industrial property rights of third parties, the Contractor indemnifies DFE from claims of the legal owners, unless it proves that it is not responsible for the infringement.
11.2 The Contractor is obliged to indemnify DFE against claims for damages by third parties from product liability, which are based on a defect in the product supplied by the Contractor which is within the Contractor's sphere of control and organisation and for which the Contractor is liable vis-à-vis the third party. The Contrac-tor is also liable for expenses incurred by DFE in such a case due to public warnings or recall campaigns. 11.3 The Contractor undertakes to maintain appropriate product liability insurance for the duration of this contract, but at least until the respective expiry of the warranty period for the delivery/service. At the request of DFE, the contractor must prove the existence of the insurance. If DFE is entitled to further claims for damages, these remain unaffected.
12. DFE’s right of property
All drawings, samples, models and documents provided to the Contactor for the execution of orders shall re-main property of DFE and many only be disclosed to third parties if express consent has been granted. Prod-ucts produced on the basis of these documents may only be supplied to DFE and not to third parties. The Contractor shall not be entitled to use requests from DFE, orders and pertaining correspondence for the pur-pose of advertisement.
13. Arbitration, place of jurisdiction, applicable law
13.1 The contractual relationships are exclusively subject to German law. The application of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
13.2 Subject to the provision under clause 13.3, all disputes arising from and in connection with the contract shall be finally settled by the Arbitration Court of the Mannheim Commodity Exchange, E4, 12-16, D-68063 Mannheim, Germany, in accordance with the Arbitration Rules of the Südwestdeutsche Warenbörse e.V., excluding the ordinary courts of law.
13.3 In deviation from clause 13.2, if the Contractor is a merchant, a legal entity under public law or a special fund under public law, DFE is optionally entitled to bring an action before the ordinary court instead of bringing an action for arbitration. In this case, the exclusive place of jurisdiction shall be Darmstadt. In the case of legal action by DFE before the ordinary court, the arbitration agreement does not prevent the assertion of counter-claims of the Contractor by way of set-off or counterclaim within the framework of these proceedings.
14. Severability clause
If one of the aforementioned clauses is ineffective, the rest of the contract remains unaffected. In the place of the invalid provision, the corresponding statutory provisions shall apply.
15. Data processing / Declaration of agreement
The Contractor's data required for the execution of the contract are stored and processed centrally at DFE in compliance with all applicable data protection regulations. The contractor expressly agrees to this.
Date: 5th October 2021 | Drawn up by: K. Brügesch | Revised by: K. Brügesch | Released by: K. Brügesch