As of 20 October 2023
§ 1 Scope and Amendment of the Terms and Conditions
(1) All business relations between Gemüsegarten RheinPfalz GmbH (hereinafter referred to as “GRP”) and the Buyer (hereinafter referred to as “Buyer”) shall be governed exclusively by the following General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTC”), unless other special terms and conditions have been agreed upon. The GTC shall only apply to entrepreneurs pursuant to Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law. The German wording is decisive.
(2) The GTC apply in particular (but not limited to) to contracts for the sale and/or delivery of fruit and vegetables (hereinafter referred to as “goods”).
(3) Unless agreed otherwise, the GTC in the version last accepted by the Buyer shall also apply as a framework agreement for all future business transactions without GRP having to refer to them again in each in- dividual case.
(4) The GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that GRP has expressly consented to their application. This requirement of consent shall apply in any case, for example even if the Buyer refers to his General Terms and Conditions in the context of the order and GRP does not expressly object to them.
(5) Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting a deadline, notification of defects, cancellation or reduction) must be made in text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular in case of doubt about the legitimacy of the declaring party, remain unaffected.
(6) The invalidity of individual conditions shall not affect the validity of the remaining conditions. The same applies if individual conditions do not become part of the contract.
(7) In addition, the Commercial Customs for Fresh, Edible Horticultural Products (COFREUROP) apply insofar as they are not amended or supplemented by the following conditions.
§ 2 Conclusion of Contract
(1) The sale of the goods shall take place by private sale. Private sale by treaty means the regular sale of the goods.
(2) GRP’s offers are subject to change and non-binding. Only the order of the goods by the Buyer shall be deemed a binding offer.
(3) Unless otherwise stated in the order, GRP is entitled to accept the Buyer’s offer within 3 days of its receipt by GRP. Acceptance shall be effected by written order confirmation or by delivery of the goods to the Buyer. Private sale be ex GRP or another place agreed upon.
(4) If no price agreement is reached in the case of private sales, a price determined by GRP shall be used as a basis for goods of the same type and quality. GRP shall determine the price at its reasonable discretion (Section 315 (1) BGB). If the determined price is not equitable, it is non-binding and the Buyer may apply for judicial review and determination of the consideration in accordance with Section 315 (3) sentence 2 BGB. With regard to the composition of the purchase price, § 4 (1) of these GTC shall apply.
§ 3 Delivery
(1) Deadlines and dates for deliveries envisaged by GRP in the order confirmation are always only approximate, unless a fixed deadline or date has been expressly agreed.
(2) Compliance with the delivery period or delivery date presupposes that the Buyer fulfils his contractual obligations. A fixed delivery date shall be postponed by the period during which the Buyer fails to fulfil his obligations towards GRP.
(3) Unless otherwise agreed, delivery shall be ex works (EXW, Incoterms 2020). This means, i.a., that the goods are delivered by GRP by making the goods available to the Buyer at GRP’s warehouse at the agreed time or within the agreed period. The Buyer shall bear all risks of loss of or damage to the goods and all costs relating to the goods from the time of delivery. The conclusion of a contract of carriage or insurance is the responsibility of the Buyer.
(4) The Buyer must take delivery of the goods. GRP shall notify the Buyer of everything necessary to enable him to take delivery of the goods. If required by the GRP, the Buyer or his authorised representative shall confirm taking delivery of the goods. The Buyer must bear all additional costs arising from the fact that he does not take delivery of the goods made available to him (e.g. storage costs).
(5) GRP is also entitled to provide the contractual service in instalments if this is reasonable for the Buyer. In this case GRP shall be entitled to invoice the partial deliveries individually. If delivery on call has been agreed, the Buyer must call for delivery within a reasonable period of time.
(6) If delivery becomes impossible or excessively difficult due to force majeure, i.e. any event beyond GRP’s control, e.g. official measures, strikes, lawful lockouts, plant shutdowns, natural disasters (e.g. fires, floods), extreme weather conditions (e.g. hail or thunderstorm damage, pandemics or epidemics or similar circumstances – including at GRP’s suppliers – GRP shall be entitled to suspend delivery for the duration of the hindrance. GRP shall be released from its delivery obligations in whole or in part in the event of non-delivery or inadequate delivery to GRP by its suppliers while force majeure lasts. This shall only apply if GRP has taken the necessary precautions to procure the goods to be supplied by it and has carefully selected its suppliers. In this case, GRP undertakes to assign its claims against the supplier to the Buyer on request. In this case, the purchaser remains obliged to provide consideration in accordance with § 326 para. 3 BGB. GRP shall inform the purchaser immediately of the occurrence and cessation of force majeure and/or non-availability and shall use its best endeavours to remedy the force majeure and to limit its effects as far as possible. GRP shall be entitled to withdraw from the contract if the force majeure or unavailability lasts for more than 3 days after the agreed delivery date. In the event of cancellation, GRP shall refund the Buyer’s consideration without delay.
(7) The occurrence of default in delivery by GRP shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the Buyer is required for the occurrence of default in delivery.
(8) In the event of changes in transport costs, tariff changes, ice, high or low water surcharges, GRP may change the purchase price accordingly if delivery takes place more than four months after conclusion of the contract.
§ 4 Purchase Price and Payment
(1) The purchase price is made up of the agreed price of the goods, plus the costs for the respective packaging, plus other ancillary costs, plus VAT at the applicable rate.
(2) Unless otherwise agreed, GRP shall be entitled to payment of the invoice amount without deduction within 24 days of conclusion of the purchase contract. GRP may at any time, even in the context of an ongoing business relationship, demand payment before delivery of the goods (advance payment) or the provision of security.
(3) Payment by bill of exchange is only permitted if expressly agreed and even then and only as a conditional payment. In the case of payment by cheque, payment shall not be deemed to have been made when the cheque is received by GRP, but only when it is finally cashed.
(4) The Buyer may only set off counterclaims which are not disputed by GRP or which have been recognised by declaratory judgement. The Buyer may not exercise a right of retention that is not based on the same contractual relationship.
§ 5 Current Account
(1) All mutual claims arising from the business relationship shall be entered in a current account to which the provisions of Sections 355 et seq. HGB (German Commercial Code) apply.
(2) GRP is entitled, in deviation from the interest regulations resulting from Sections 355 et seq. HGB, GRP shall be entitled to claim interest at a rate of 9% above the base rate for the period in which the respective payment term is exceeded, at least the interest loss incurred by GRP.
§ 6 Retention of Title
(1) The goods delivered by GRP, including packaging, shall remain the property of GRP until full payment of the purchase price and all claims that GRP has or acquires in the future against the Buyer from the business relationship with the Buyer.
(2) In the event of breach of contract by the Buyer, in particular if the Buyer defaults on payment of the purchase price, GRP shall be entitled, after setting an unsuccessful deadline, to withdraw from the contract and/or to demand the return of the goods on the basis of retention of title. The demand for surrender does not, at the same time, include a declaration of cancellation. Rather, GRP shall be entitled merely to demand the return of the goods and reserve the right to withdraw from the contract.
(3) If the goods subject to retention of title become inseparably mixed, blended or combined with other goods owned by the Buyer or a third party, GRP shall acquire co-ownership of the uniform item in a proportion corresponding to the value of its goods subject to retention of title in relation to the value of these mixed goods at the time of mixing, blending or combining. By handling or processing the goods subject to retention of title, GRP shall acquire ownership of the new item in a proportion corresponding to the value of its goods subject to retention of title; the Buyer shall keep these goods in safe custody for GRP.
(4) As long as title to the delivered goods has not passed to the Buyer, the Buyer shall be liable to GRP for the loss of or damage to the goods. At GRP’s request, the Buyer must insure the goods belonging to GRP against the risks specified by the Buyer at the Buyer’s expense and to the extent requested by GRP and assign the insurance claims to GRP. GRP is also authorised to pay the insurance premiums at the expense of the Buyer.
(5) The Buyer shall only be authorised to resell the goods, including the goods produced by mixing, blending, combining, processing or machining, within the scope of his ordinary business operations. He is not a thorised to dispose of these goods in any other way, in particular to pledge them or assign them as security to third parties. The Buyer must inform GRP immediately in text form if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to GRP (e.g. seizure).
(6) The Buyer hereby assigns to GRP all claims arising from the resale of the goods subject to retention of title or the goods produced from them by handling or processing. The same shall apply to other claims which take the place of the goods subject to retention of title or otherwise arise in respect of the goods subject to retention of title. Of the claims arising from the sale of goods to which GRP has acquired co-ownership by mixing, blending or combining, the Buyer hereby assigns to GRP a partial amount corresponding to GRP’s co-ownership share in the goods sold. If the Buyer sells goods owned or co-owned by GRP together with other goods not belonging to GRP at a total price, the Buyer hereby assigns to GRP a partial amount of this total claim corresponding to the share of the goods subject to retention of title.
(7) The Buyer is authorised to collect the assigned claims from the resale. GRP may revoke this authorisation at any time if the Buyer fails to meet his payment obligations, is in default of payment or if there is a deficiency in his ability to pay (e.g. an application for insolvency has been filed or there are suspension of payment or enforcement measures by third parties). Upon request, the Buyer shall name the assigned claims and their debtors to GRP, hand over the relevant documents and notify the debtors of the assigned claims of the assignment or hand over notices of assignment to GRP.
(8) As long as the Buyer fulfils his payment obligations, GRP shall not disclose the assignment. If the realisable value of the securities existing for GRP exceeds the secured claims by more than 10 % in total, GRP shall be obliged to release securities of its choice at the Buyer’s request. At GRP’s request, the purchaser is obliged to confirm the assignment of his claims against the third party in text form. GRP is entitled to inform the third party of the assignment of claims.
§ 7 Default of Performance or of Acceptance
(1) The purchase price shall become due immediately if the Buyer finally refuses to pay the purchase price. The same legal consequence occurs if the Buyer is in arrears with an amount exceeding one instalment in the case of agreed instalment payments and if the amount in arrears amounts to at least 10% of the total purchase price. In the event of final refusal to pay the purchase price, GRP may refuse to fulfil the purchase contract even without setting a grace period and demand compensation for all costs and expenses incurred as well as compensation for loss of value.
(2) If the goods sold are not accepted on time in whole or in part or are returned to GRP by the Buyer in agreement with GRP, GRP shall be entitled to realise these goods itself without setting a further deadline. The first Buyer shall compensate GRP for any resulting loss of proceeds, plus any further costs incurred as a result of the delay in acceptance.
(3) GRP may demand immediate payment of all claims and make deliveries dependent on advance payment or the provision of security if there is a significant deterioration in the Buyer’s financial or income situation or if the Buyer’s assets are significantly endangered; otherwise Section 321 BGB shall apply.
§ 8 Notice of defects / claims for defects
(1) Claims for defects on the part of the Buyer presuppose that he has fulfilled his statutory inspection and notification obligations (Sections 377, 381 HGB). After the goods have been made available ex market or agreed handover point, the goods must be inspected immediately for material defects, e.g. number, quantity, weight, quality, condition. Defects that can be detected during a proper inspection must be reported immediately and before the goods have left the market or the agreed handover point.
(2) GRP is entitled to make any subsequent fulfilment owed dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a reasonable part of the purchase price in proportion to the defect.
§ 9 Liability
(1) GRP shall be liable without limitation for any legal reason in the event of
- wilful intent and gross negligence,
- injury to life, limb or health,
- fraudulent concealment of a defect,
- the assumption of a guarantee, e.g. for the existence of a warranted characteristic,
- Liability under the Product Liability Act.
(2) Claims for damages due to negligent breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless unlimited liability is assumed in accordance with the preceding paragraph. Material contractual obligations are obligations whose fulfilment is essential for the proper performance of the contract and on whose compliance the Buyer regularly relies and may rely.
(3) Any further liability on the part of GRP is excluded. Insofar as liability is excluded or limited, this shall also apply to the personal liability of GRP’s employees, staff, representatives and vicarious agents.
(4) A change in the burden of proof to the detriment of the Buyer is not associated with the above provisions.
§ 10 Limitation of Liability
10.1 GRP shall be liable for damages within the framework of liability for culpability in cases of intent and gross negligence. Subject to statutory limitations of liability, GRP shall be liable in the case of simple negligence,
- for damages resulting from injury to life, limb or health and
- for damages resulting from the breach of an essential contractual obligation
Essential contractual duties are duties which through their fulfilment make the fundamental proper performance of the contract possible and the performance of which the contracting counterparty is usually entitled to rely on. Claims for damages for a breach of essential contractual obligations are limited to the amount typical and foreseeable.
10.2 The limitations of liability resulting from clause 10.1 shall also apply to persons whose fault GRP is responsible for according to statutory provisions. The limitations of liability shall not apply if a defect has been fraudulently concealed or if GRP has assumed a guarantee for the quality of the goods and for claims of the contractual partner under the Product Liability
11. Limitation Period
(1) Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Special statutory provisions on the limitation period shall remain unaffected (in particular Sections 444, 445b BGB).
(2) The aforementioned limitation periods under sales law shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect in the goods. The Buyer’s claims for damages pursuant to § 9 (2) of these GTC shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 11 Packaging
(1) Disposable packaging shall be invoiced to the Buyer at the price determined by GRP. All types of reusable packaging and transport material (e.g. Euro pallets) shall be provided to the Buyer against payment of a deposit and a usage fee, which shall be due and payable immediately.
(2) The reusable packaging and transport materials provided by GRP shall remain the property of GRP, unless they are the property of third parties. In this case, the respective special conditions of use, of the owners. The Buyer must return the reusable packaging provided to him by GRP in perfect condition.
(3) Pursuant to section 15 (1) VerpackG (German law on the placing on the market, take-back and high-quality recycling of packaging), producers and distributors of transport packaging (no. 1), sales and secondary packaging that does not typically accumulate as waste with private final consumers after use (no. 2), sales and secondary packaging for which system participation is not possible due to system incompatibility pursuant to section 7 (5) VerpackG (no. 3), sales packaging containing hazardous substances (No. 4) or reusable packaging (No. 5) shall be obliged to take back, free of charge, used, completely empty packaging of the same type, shape and size as the packaging they have placed on the market at the place of actual delivery or in the immediate vicinity thereof. In this respect, it is agreed that the Buyer shall return the aforementioned packaging to GRP’s place of business, even if this was not the place of delivery. The Buyer shall bear the costs of taking back and disposing of the packaging (Sction 15 (1) sentence 4 VerpackG).
(4) The Buyer shall bear the risk of loss for the reusable packaging after the transfer of risk. If the returnable packaging is lost or if the returnable packaging is returned in a damaged or unusable condition and if this is due to the fault of the Buyer, GRP’s claim for damages in the amount of the current market value of the returnable packaging shall take the place of the claim for return. In this case, the deposit paid shall be offset against the claim for damages. GRP is only obliged to return any surplus. If returnable packaging is returned, deposit amounts shall only be credited if and insofar as the packaging material has been borrowed by GRP and deposit amounts have been deposited.
§ 12 Amendment of the GTC
(1) GRP is authorised to amend these GTC unilaterally, insofar as they are to be classified as a framework agreement within the meaning of § 1 (3) of these GTC, provided there is a valid reason for the amendment and this is reasonable for the Buyer. A valid reason exists in particular if a change in the legal situation, supreme court rulings or market conditions make it necessary to amend clauses. Doubts of interpretation that have arisen may also constitute a reason for amendment.
(2) The Buyer shall be notified of changes to these GTC in text form. The Buyer has a right of objection. The Buyer may object to the amendment of the GTC within six weeks of receipt of the notification of the amendments. The Buyer’s consent shall be deemed to have been given if the Buyer does not object to the amendment of the GTC within six weeks of receipt of the notification of the amendments. GRP shall specifically draw the purchaser’s attention to these consequences of silence when notifying the amendments.
(3) In the event of an objection, the framework agreement shall continue to run under the previous conditions. However, in the event of an objection by the Buyer, GRP shall be entitled to terminate the framework agreement with the Buyer with a notice period of four weeks from the date of the objection by the Buyer.
§ 13 Place of Fulfilment, Place of Jurisdiction, Applicable Law
(1) These GTC and the contractual relationship between GRP and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) The business premises of GRP shall be the place of fulfilment for both parties if the purchaser is a merchant or a legal entity under public law or a special fund under public law or if the purchaser’s place of residence is outside the Federal Republic of Germany.
(3) If the customer is a merchant within the meaning of the German Commercial Code (HGB) or is a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of GRP in Ludwigshafen. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 BGB. However, GRP is also entitled in all cases to bring an action at the place of fulfilment or at the general place of jurisdiction of the Buyer.