General terms and condition of sale

AVE - Absolute Vegan Empire GmbH & Co. KG
Siemensstraße 5, 92907 Nabburg, Germany

§ 1 General Terms, Scope of Application

(1) These terms and conditions of sale (henceforth: "GTC-AVE") apply to all business relations between us, AVE - Absolute Vegan Empire GmbH & Co. KG (henceforth: "AVE") and our customers (henceforth: "Purchaser"). The GTC-AVE are only valid if the buyer is a businessman (§ 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.

(2) The GTC-AVE apply in particular to contracts concerning the sale and/or the delivery of food products, food pre-products and other movables (henceforth also: Goods), regardless of whether such Goods are manufactured by ourselves or purchased by us from third-party suppliers (§§ 433, 651 BGB). The GTC-AVE in their respective version also apply as a framework agreement to any future contracts for the sale and/or delivery of movable goods with the same Purchaser without any particular reference to their application being required from us in each individual case; we’ll inform the Purchaser about changes to our GTC-AVE immediately.

(3) Our GTC-AVE apply to the exclusion of all others. Deviating, conflicting or complementary terms and conditions of the Purchaser become only and insofar part of the contract if we have explicitly consented to their application. Such consent shall be required in any circumstances whatsoever, also if, for example, we have knowledge of conflicting terms and conditions of the Purchaser and perform deliveries to the Purchaser without any reservation.

(4) Individual agreements made with the Purchaser in a particular case (including additional agreements, supplements, amendments) always have priority over these GTC-AVE. For the contents of such arrangements, a written agreement and/or written confirmation from us is authoritative.

(5) Legally binding declarations and notifications which have to be submitted by the Purchaser to us after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, notice of withdrawal from contract or price reduction) must be fixed in writing in order to be valid and enforceable.

(6) As far as these GTC-AVE demand the compliance with the written form, §127 BGB is valid. References to the validity of legal regulations serve only the purpose of clarification.

Also without such a clarification the legal regulations are valid insofar as they are not directly amended or explicitly excluded by these GTC-AVE.

§ 2 Conclusion of Contract

(1) Our offers are without obligation and non-binding. This also applies if we have provided the Purchaser with catalogues, recipes, documentations (e.g. drawings, plans, calculations, computations), other product specifications or documents – also in electronic form – of which we reserve all rights of ownership and copyrights.

(2) The Purchaser’s order of Goods shall constitute a binding contractual offer. Provided that nothing else arises from the order, we are authorized to accept this contractual offer within one week after receiving it.

(3) This acceptance may either be declared in writing (e.g. by an order confirmation) or by delivery of the Goods to the Purchaser.

§ 3 Delivery Periods and Delay in Delivery

(1) Delivery periods are individually agreed upon and/or indicated by us upon acceptance of the purchase order. If neither of this is the case, the delivery period is 14 days from the conclusion of the contract.

(2) Provided that we are unable to meet binding delivery periods for reasons beyond our responsibility (unavailability of service), we will immediately inform the Purchaser thereof and tell at the same time the expected new delivery period. If the service remains still unavailable within the new delivery period, we are entitled to withdraw from the contract completely or in part and shall promptly refund any services already rendered by the Purchaser. Such unavailability of service in this sense particularly includes the failing of our supplier to deliver in good time when we have concluded a congruent hedging transaction, if neither we nor our supplier is at fault or if we are – in the individual case- not bound to any procurement.

(3) The occurrence of a delay in delivery by us is determined by statutory regulations. However, a reminder notice by the Purchaser is required in any case. If delivery by us is delayed and the Purchaser claims compensation for any damage caused by such delay, we reserve in any case the right to prove that the Purchaser incurred no damage at all or just a significantly smaller damage than the aforementioned.

(4) The rights of the Purchaser according to §8 of these GTC-AVE as well as our statutory rights especially in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) remain unaffected.

§ 4 Delivery, Passing of Risk, Acceptance, Default of Acceptance

(1) Delivery is ex warehouse; which is also the place of performance. Goods are delivered to another place of destination upon the request and at the expense of the Purchaser (sale by dispatch). Unless otherwise agreed, we are entitled to determine the method of shipment at our own discretion (including transport company, shipping route, packaging).

(2) The risk of accidental loss or accidental deterioration of the Goods is transferred to the Purchaser at the latest on delivery. However, in case of sale by dispatch, the risk of accidental loss or deterioration as well as the risk of delay in delivery is transferred already with the delivery of the Goods to the forwarder, carrier or any other person or institution entrusted with the shipment. Provided that an acceptance is agreed, this is authoritative for the passing of risk. The statutory regulations on contracts for work and services apply correspondingly and in all respects to an agreed acceptance. Delivery and/or acceptance are also deemed to have occurred in the case of any default of acceptance by the Purchaser.

(3) In case of default of acceptance by the Purchaser, if the Purchaser fails to provide active co-operation or if delivery by us is delayed for any other reason for which the Purchaser is responsible, we are entitled to claim damages for any losses caused by such delay or failure, including additional expenditures (e.g. storage costs). For such losses we charge the Purchaser a lump compensation in the amount of 2 EUR for each calendar day and for each europallet (or comparable storage space), beginning with the delivery deadline or – in the absence of such a delivery deadline – with our notification of readiness for dispatch of the Goods.

The right to prove any higher damage incurred as well as any of our statutory claims (including especially claims for reimbursement of additional expenditure, claims for appropriate compensation, right of termination) remain unaffected; the lump sum, however, is to be offset against further monetary claims. The Purchaser remains entitled to prove that we suffered no damage at all or that the damage incurred is significantly smaller than the abovementioned lump sum.

§ 5 Prices and Terms of Payment

(1) Unless otherwise agreed in individual cases, prices charged are our current prices at the time of the conclusion of the contract, and apply ex warehouse and exclusive of packaging and statutory VAT at current rate.

(2) In case of sale by dispatch (§4 subparagraph 1) the Purchaser bears the costs of transport ex warehouse and of any transport insurance requested by the Purchaser. Furthermore, the Purchaser bears any customs, charges, taxes and other public dues. We do not take back any transport packaging or other packaging materials subject to the packaging ordinance, as they become the property of the Purchaser – pallets are excluded from this.

(3) The purchase price is due and payable within 14 days from the date of the invoice and delivery or acceptance of the Goods. We are, however, any time entitled to demand advance payment.

(4) With expiration of the abovementioned period of payment, the Purchaser gets into default of payment. During the period of default, interest on the purchase price is to be paid in accordance with the applicable statutory default interest rate. We reserve the right to claim compensation for any further losses caused by default. Our right to charge commercial maturity interest towards merchants remains unaffected (§ 353 HGB [German Commercial Code]). We are entitled to charge a lump sum for our dunning costs as follows: 1st reminder: 10.00 EUR net, 2nd reminder: 20.00 EUR net.

(5) The Purchaser is only entitled to rights of set-off or retention to the extent that the Purchaser’s claim is determined without further legal recourse or undisputed. In the case of defective delivery the counter-rights of the Purchaser remain unaffected, especially according to § 7 subparagraph 6 clause 2 of these GTC-AVE.

(6) If, after the conclusion of the contract, it becomes apparent that our claim to the purchase price is at risk due to the Purchaser’s inability to pay (e.g. by a request to open insolvency proceedings), according to the statutory regulations we are then entitled to refuse service and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In case of contracts concerning the fabrication of specific items (custom-made items) we can withdraw instantaneously; the statutory regulations concerning the dispensability of setting a deadline remain unaffected.

§ 6 Reservation of Ownership

(1) All Goods remain our property until full and total payment of all our present and future claims arising from the purchase contract and from an ongoing business relationship (secured claims).

(2) Any Goods being subject to reservation of ownership may neither be pledged nor transferred as collateral to any third party until full payment of the secured claims is received. The Purchaser must promptly notify us in writing of any action or attempt by third parties to seize or take possession of Goods owned by us.

(3) If the Purchaser acts contrary to the contract, particularly if the Purchaser is in default of payment of the purchase price due, we have the right - in accordance with statutory regulations - to withdraw from the contract and to reclaim the Goods on the basis of the reservation of ownership and the withdrawal from the contract. If the Purchaser does not pay the purchase price due, we may only assert these rights if we have set the Purchaser a reasonable deadline for payment to no avail or if the setting of such deadlines is not necessary according to statutory regulations.

(4) The Purchaser is authorized to resell and/or further process any Goods subject to the reservation of ownership in the ordinary course of business. In that case, the following supplementary provisions apply:
(a) The reservation of ownership extends to any products in their full value which arise from further processing, mixing or combining of our Goods with other goods, in which case we are considered to be the manufacturer. If during such further processing, mixing or combination with products of any third parties their ownership rights remain, we become a co-owner of the manufactured product at the ratio of the invoice values of the goods involved in such further processing, mixing or combination. Also, for the resulting product applies the same as for any delivered Goods subject to reservation of ownership.
(b) The Purchaser hereby assigns to us now, for use as collateral, any claims against third parties arising from the resale of Goods or resulting products in their full amount or to the extent of our co-ownership according to the foregoing paragraph. We herewith accept such assignment. Any obligations of the Purchaser stated in (2) do also apply in respect of the assigned claims.
(c) In addition to us, the Purchaser remains authorized to collect any outstanding claims. We agree to refrain from any collection of such claims as long as the Purchaser continues to meet its payment obligations to us, the Purchaser is not in default of payment, no application to open insolvency proceedings is filed and there is no other indication of the Purchaser’s inability to exert contractual performance. However, if this is the case we may demand that the Purchaser informs us of all assigned claims and their debtors, to provide any information necessary for purposes of collection, to deliver any documents relating thereto as well as to notify all debtors (third parties) of the assignment of those claims.
(d) If the realizable value of the collateral securities exceeds our claims by more than 10 %, we shall release, at the request of the Purchaser, securities of our own choice.

§ 7 Warranty Claims of the Purchaser

(1) Unless otherwise determined in the following, the rights of the Purchaser in respect of defects in quality or in title (including wrong and short delivery) are governed by the statutory regulations. In all cases, special statutory provisions on final deliveries of Goods to a consumer remain unaffected (recourse against supplier according to §§ 478, 479 BGB).

(2) The basis for our liability for defects is first and foremost the agreement made regarding the quality of the Goods. The product specifications (also by the manufacturer) that have been provided to the Purchaser prior to its purchase order or have been incorporated in the contract in the same way as these GTC are considered to be such an agreement regarding the quality of the Goods.

(3) As far as quality has not been agreed upon, the existence of defects therein shall be determined in accordance with statutory regulations (§ 434 subparagraph 1, clauses 2 and 3 BGB). However, we assume no liability for any public statements made by the manufacturer or by any other third party (e.g. advertising messages).

(4) The warranty claims of the Purchaser require that the Purchaser fulfilled his/her statutory obligations of immediate examination and to give notice of defects (§§ 377, 381 HGB). If a defect is discovered during such examination or at a later date, this has to be reported to us in writing without delay. The notification is considered to be ‘without delay’ if made within two weeks, whereby compliance with this deadline is met if the notification is sent off in time. Irrespective of the aforementioned obligation of immediate examination and notification, the Purchaser has to notify in writing all apparent defects (including wrong and short delivery) within 10 workdays from delivery; whereby also here compliance with this deadline is met if the notification is sent off in time. If the Purchaser fails to immediately examine goods and/or notify defects as required, our liability for any defects not reported is excluded.

(5) If the delivered item is defective, the Purchaser is initially free to choose whether he demands subsequent performance in the form that the defect is fixed (rectification) or by delivery of a flawless item (replacement). If the Purchaser does not declare which of these two rights he chooses, we may set an appropriate deadline for that. If the Purchaser does not choose within this deadline, then the right to choose is transferred to us with expiration of the deadline.

(6) We are entitled to make any owed subsequent performance dependent on whether the Purchaser pays the purchase price due. The Purchaser, however, is entitled to retain a fraction of the purchase price which is in appropriate proportion to the defect.

(7) The Purchaser has to grant us the time and opportunity necessary for any owed subsequent performance, especially to hand over any Goods claimed to be defective for purposes of inspection. In case of replacement delivery, the purchaser has to return the defective item to us according to statutory regulations.

(8) We bear any necessary expenses for the purpose of examination and subsequent performance, in particular costs of transport, travelling, labor and costs of materials if the product is confirmed to be really defective. If, however, the Purchaser’s demand for remedy of defects turns out to be unjustified, we may claim compensation from the Purchaser for any expenses resulting from this.

(9) In urgent cases e.g. when the operational safety is at risk or to avoid disproportional damage, the Purchaser is entitled to remedy the defect himself and to claim from us compensation for the objectively necessary expenses. We must be informed without delay, if possible beforehand, of such activities of self-remedying of defects. This right of the Purchaser to remedy any defect himself does not exist if we would be entitled to refuse a corresponding subsequent performance according to statutory regulations.

(10) If subsequent performance has failed or if an appropriate deadline for subsequent performance to be set by the Purchaser has expired to no avail or such a deadline is dispensable according to statutory regulations, the Purchaser may withdraw from the contract or abate the purchase price. However, this right to withdraw from the contract does not exist in the case of insignificant defects.

(11) Claims by the Purchaser for damages and/or for compensation of wasted expenditures exist only in accordance with § 8 of these GTC-AVE and are otherwise excluded.

§ 8 Further liability

(1) Insofar as nothing different arises from these GTC-AVE, including the following provisions, we are liable according to the relevant statutory regulations in the case of a breach of contractual and non-contractual obligations.

(2) We are liable for damages – on whatever legal ground – in case of intent and gross negligence. In case of ordinary negligence, we are only liable
a) for damage arising from injury to life, body or health,
b) for damage resulting from the breach of an essential contractual obligation (obligation the fulfilment of which makes the proper execution of the contract possible in the first place and the observance of which the contractual partner regularly and justifiably relies upon); in that case, however, our liability is limited to the reimbursement of foreseeable, typically occurring damage.

(3) The limitations of liability arising from § 8 (2) do not apply if we have fraudulently concealed a defect or if we have given a guarantee for the quality of the Goods. The same applies to claims of the Purchaser under the German Product Liability Act (‘Produkthaftungsgesetz’).

(4) In case of any breach of duty which is not based on defects, the Purchaser may only withdraw from the contract or terminate the contract if we are responsible for that breach of duty. A free right of termination by the Purchaser (particularly according to §§ 651, 649 BGB) is excluded. As for the rest the statutory requirements and legal consequences do apply.

§ 9 Limitation Periods

(1) Notwithstanding § 438 subparagraph 1 no. 3 BGB, the general limitation period for claims arising from material defects or defects of title is one year from delivery. Insofar as acceptance has been agreed, the limitation period begins with the date of that acceptance.

(2) Any special statutory regulations concerning third-party in rem claims for restitution (§ 438 subparagraph 1, no. 1 BGB), fraudulent intent by the seller (§ 438 subparagraph 3 BGB) and rights of recourse against the supplier in case of final deliveries to a consumer (§ 479 BGB) remain also unaffected.

(3) The aforementioned limitation periods of the sales law apply also to any contractual and non-contractual claims for damages of the Purchaser based on defects in Goods, unless, in the individual case, the application of the regular statutory limitation (§§ 195, 199 BGB) would result in a shorter limitation period. The limitation periods according to the German Product Liability Act (‘Produkthaftungsgessetz’) remain unaffected in each and every case. Unless otherwise stated, the statutory limitation periods apply exclusively for the Purchaser’s claims for damages according to §8 of these GTC-AVE.

§ 10 Choice of Law and Place of Jurisdiction

(1) These GTC-AVE and all legal relationships between us and the Purchaser are governed by the laws of the Federal Republic of Germany under exclusion of international private law and especially the UN Convention on Contracts for the International Sale of Goods (CISG). Prerequisites and effects of the reservation of ownership according to § 6 of these GTC-AVE are governed by the laws of the respective location of the thing, insofar as – under such law - the choice of law made in favour of German law is inadmissible or void.

(2) If the Purchaser is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, our registered office in Nabburg is the exclusive – and also international - place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship. However, we are also entitled to take legal action at the place of general jurisdiction of the Purchaser.

Last revised: March 2015

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