Terms and Conditions
GEPRO Geflügel-Protein Vertriebsgesellschaft GmbH & Co. KG
Section 1 - Scope
(1) All deliveries, services and offers of GePro Geflügel-Protein Vertriebsgesellschaft GmbH & Co. KG (hereinafter: “GEPRO”) shall occur exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts, which GEPRO concludes with its principals (hereinafter: “Principals”) for the deliveries or services, which it offers or receives. They are also applicable to all future deliveries, services or offers, even if they are not agreed upon again separately.
(2) These General Terms and Conditions of Delivery regulate the business relationships between GEPRO and companies within the meaning of section 14 BGB [German Civil Code] (natural persons or legal entities or partnerships with legal capacity, which are exercising their commercial or freelance professional activity in concluding a legal transaction). They do not apply to legal relationships with consumers, who are not active on a commercial or freelance basis.
(3) Terms and conditions of the Principal or third parties shall not apply, even if GEPRO does not separately object to their validity on a case-by-case basis. Even if GEPRO refers to a letter, which contains or refers to terms and conditions of the Principal or third parties, this shall not constitute any agreement with the validity of those terms and conditions.
Section 2 - Offer and contract conclusion
(1) All offers of GEPRO are subject to confirmation and non-binding, provided that they are not expressly identified as being binding or contain a specific term of acceptance. GEPRO can accept orders or contracts within 14 days after receipt.
(2) The contract concluded in writing, including these General Terms and Conditions of Delivery, are solely decisive for the legal relationships between GEPRO and the Principal. This fully reflects all agreements between the contracting parties in relation to the contract subject matter. Verbal commitments by GEPRO prior to the conclusion of this contract are legally nonbinding and verbal agreements of the parties shall be replaced by the written contract, unless they expressly indicate that they are to remain valid.
(3) Amendments and changes to the agreements made, including these General Terms and Conditions of Delivery, must be in written form in order to be valid. With the exception of Managing Directors or authorised officers, the employees of GEPRO are not authorised to make verbal agreements, which deviate from the written agreement. To preserve the written form, sending via telecommunication is sufficient, particularly by telefax or by e-mail, if the copy of the signed declaration is sent.
(4) Details from GEPRO regarding the subject matter of the delivery or service, such as weights, tolerances or technical data, shall only be approximately authoritative, provided that the usability for the contractually envisaged purpose does not require exact conformity. They are not guaranteed condition features, but rather, descriptions or identifications of the delivery or service. Commercially customary discrepancies and those discrepancies that occur on the basis of legal regulations or which constitute technical improvements, are permitted as long as they do not impair the usability for the contractually envisaged purpose.
Section 3 - Prices and payments
(1) The prices are valid for the scope of service and delivery listed in the order confirmations. Extra or special services will be charged separately. In the absence of a separate agreement, the prices are stated in Euro ex works or warehouse plus packaging, freight costs, costs for specialist packaging, pallets, the statutory value-added tax, for export deliveries, customs duties, as well as fees and other public levies unless otherwise agreed in writing. These costs shall be borne by the Principal.
(2) Invoice amounts are payable within 14 days without any deductions, unless agreed otherwise in written form. The receipt by GEPRO is relevant for the date of the payment. If the Principal fails to pay upon maturity, the outstanding amounts shall bear interest of 5% p.a. from the date of maturity; the assertion of higher interest and additional damages in the event of default remains unaffected by this.
(3) Set-off against counterclaims of the Principal or the retention of payments due to such claims is only permitted, if the counterclaims are undisputed or established as final and absolute by a court of law or arise from the same contract, under which the respective delivery occurred.
(4) GEPRO is authorised to execute still-outstanding deliveries or services only in return for advance payment or provision of a security deposit, if it becomes aware of circumstances after the conclusion of the contracts, which are appropriate for significantly reducing the Principal‘s creditworthiness and due to which the payment of GEPRO‘s outstanding claims by the Principal from the respective contractual relationship (including from other individual contracts, for which the same framework contract applies) is at risk.
(5) An invoice or an account statement are deemed to be accepted, if no objection is made within one week to GEPRO in written form. Receipt by GEPRO is definitive for compliance with a deadline.
(6) Crossed cheques and bills of exchange will only be accepted on account of performance. Costs incurred as a result of this shall be borne by the Principal and will fall due upon acceptance of the bill of exchange or cheque.
(7) In case of a tax free intra-common delivery the buyer is obliged to send a confirmation of accession for the goods received. GEPRO will pass over a form to the buyer monthly. If the buyer fails to return a proper confirmation of accession up to the 10. of the following months, GEPRO reserves the right to debit the legal tax subsequently.
Section 4 - Delivery and time of delivery
(1) Deliveries occur ex works or ex warehouse.
(2) The time of delivery shall not start prior to the documents, approvals and releases to be provided by the Principal, as well as prior to the receipt of an agreed advance payment. The time of delivery is met, if the delivery has left GEPRO‘s factory, or readiness for delivery has been notified, prior to its expiry.
(3) The deadlines and dates held out as a prospect by GEPRO are always only approximations, unless a fixed deadline or a fixed date has been expressly promised or agreed in written form. If shipping has been arranged, the delivery periods and delivery deadlines shall be based on the time of handover to the freight forwarder, freight carrier or other third parties commissioned with the transport.
(4) Notwithstanding its rights from default by the Principal, GEPRO can request from the Principal an extension of the delivery and performance deadlines or a postponement of the delivery and performance dates by the time period in which the Principal fails to ful-fil the contractual obligations vis-à-vis GEPRO.
(5) GEPRO shall not be liable for impossibility of its deliveries or for delivery delays, insofar as these have been caused by force majeure or other unforeseeable events at the time of concluding the contract, such as operational disruptions of all types, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, a shortage of labour, energy or raw materials, difficulties with the procurement of necessary official permits, official measures or an absence of, incorrect or nontimely delivery by the Principal, which are beyond the control of GEPRO. If such events significantly impede the delivery or performance by GEPRO or make it impossible and the impediment is not of a temporary nature, GEPRO shall be entitled to withdrawal from the contract. With impediments of a temporary nature, the delivery or performance deadlines will be extended or postponed by the period of the impediment plus an appropriate lead time. If the acceptance of the delivery or service cannot be rea-sonably expected by the Principal as a consequence of the delay, he can withdraw from the contract by means of an immediate written declaration vis-à-vis GEPRO.
(6) GEPRO is only entitled to make partial deliveries, if the partial delivery is usable for the Principal within the scope of the contractual intended purpose, the delivery of the remaining goods is ensured and no significant extra time and effort or additional costs as a result of this arise on the part of the Principal, unless GEPRO declares that it is prepared to accept these costs.
(7) Should GEPRO enter into default with a delivery or service or if a delivery or service becomes impossible for GEPRO for any reason whatsoever, liability shall be limited to compensation for damages on the basis of section 8 of these General Terms and Conditions of Delivery.
(8) In case of a tax free intra-common ex works or warehouse delivery, the buyer is obliged to inform GEPRO before the collection immediatly, in case of an order by a third consignee. In that case GEPRO reserves the right to debit the legal tax subsequently.
Section 5 - Place of performance, shipping, packaging, transfer of risk
(1) The place of performance for all obligations from the contractual relationship is Diepholz, unless contractually specified otherwise.
(2) The shipping method and packaging are subject to the due discretion of GEPRO.
(3) Additional freight for requested or necessary other types of transportation shall be for the account of the Principal. The departure weight determined upon shipping or delivery in GEPRO‘s operation is definitive. For deliveries below 100 kg, even if nothing is speci-fied otherwise, the charging of the shipping costs shall remain reserved in any case.
(4) The risk shall be transferred no later than with the handover of the delivery item (whereby the start of the loading procedure is definitive) to the freight forwarder, freight carrier or other third parties specified by the Principal to perform the shipping. The start of the loading procedure is definitive. This also applies if partial deliveries occur or GEPRO has also accepted other services, such as shipping. If the shipping or handover is delayed due to a circumstance, the cause of which lies with the Principal, the risk shall be transferred to the Principal from the day on which the delivery item is ready for shipping and GEPRO has notified the Principal thereof.
(5) Storage costs after transfer to risk, as well as in the case of shipping delay upon request by the Principal, shall be borne by the Principal. With storage by GEPRO, the storage costs shall amount to [0.25 % of the order value for the products to be stored per elapsed week] from the date of notification of readiness for shipping. The assertion and proof of additional or lower storage costs shall remain reserved.
(6) Only at the explicit request and expense of the Purchaser, will the consignment be insured at his expense by GEPRO against theft, breakage, transport, fire and water damage, as well as other insurable risks.
(7) The delivery item shall be accepted by the Principal, notwithstanding his further rights, even if it shows insignificant defects. Insofar as an acceptance inspection occurs, the purchased object shall be deemed to be accepted, if the delivery is completed, GEPRO has notified the Principal about this with reference to acceptance fiction according to this section 5 paragraph 7 and has asked him to accept, 12 working days have elapsed since the delivery or the Principal has started to use the purchased object and in this case, 3 working days have elapsed and the Principal has omitted acceptance within this time period for a reason other than due to a defect notified by GEPRO, which makes the use of the purchased object impossible or significantly impedes it.
(8) In the case of acceptance default by the Principal, after setting and fruitless expiry of an adequate grace period, GEPRO shall be entitled to dispose otherwise of the delivery object and deliver to the customer after an adequate, extended period. The threat is dis-pensable, if the goods are exposed to spoilage and risk of loss in delay. However, the retrieval of the delivery item does not constitute any withdrawal from the contract, unless GEPRO has expressly declared this in written form. GEPRO is entitled to demand damages incurred by GEPRO, including possible additional costs.
Section 6 - Retention of title, seizure
(1) All deliveries by GEPRO are performed subject to retention of title. The ownership shall only pass on to the Principal once he has fulfilled all obligations from the respective contract. Up to this time, the Principal shall store the goods separately. However, the Principal is entitled to sell on the goods acquired subject to retention of title in normal day-to-day business. He herewith assigns his claims from such an onward sale in advance to GEPRO, including value-added tax, up to the amount of the respective invoice amount. GEPRO accepts this assignment. The Principal remains entitled to collect the claim after the assignment. GEPRO‘s authority to collect the claim itself remains unaffected by this. However, GEPRO undertakes to refrain from collecting the claim, as long as the Principal fulfils his payment obligations vis-à-vis GEPRO, is not in payment default and specifically has not filed an application for the instigation of insolvency or settlement proceedings or cessation of payments has occurred. However, if this is the case, GEPRO can demand that the Principal discloses the assigned claims and their debtors to GEPRO, provides all necessary details for collection, surrenders the related documentation and notifies the debtor (third party) about the assignment.
(2) The pledging of the delivery item by GEPRO shall not constitute a withdrawal from the contract. GEPRO is authorised to dispose of the delivery item after its retrieval. The disvposal proceeds shall be applied to the Principal‘s liabilities, less appropriate disposal costs.
(3) GEPRO will release collateral to which GEPRO is entitled upon request by the Principal, insofar as the value of the collateral exceeds the claims to be secured by more than 20 %. The selection of the collateral to be released is incumbent upon GEPRO. The reference value is the respective purchase price.
Section 7 - Warranty and material defects
(1) The warranty period is one year from delivery or, if an acceptance inspection is necessary, from the acceptance inspection. This time limit does not apply to claims for damages from injury to life, limb or health or from premeditated or grossly negligent breaches of duty by GEPRO or its legal agents, which respectively expire according to the statutory provisions.
(2) The delivered items must be inspected in detail immediately after delivery. With respect to obvious defects or other defects, which would not have been identifiable with an immediate, diligent inspection, they shall be deemed to be approved by the purchaser, if GEPRO has not received a written notice of defects within 5 days after delivery. With regard to other defects, the delivery items shall be deemed to be approved by the purchaser, if GEPRO does not receive the notice of defects within 5 working days after the time at which the defect appeared. However, if the defect was already obvious during normal use at an earlier time, this earlier time shall be definitive for the start of the complaint period.
(3) In the case of a notice of defects, a sample shall be taken in an appropriate amount and provided to GEPRO. This sample shall be stored and transported in compliance with the relevant regulations. With a justified notice of defects, GEPRO shall compensate the costs for the most cost-effective shipping method. This shall not apply if the costs increase because the delivery item is in a different location than the intended use.
(4) In the case of material defects on the delivered items, at its discretion, to be decided on within an appropriate time limit, GEPRO shall be obligated and entitled to repair or replacement delivery. In the event of failure, i.e. impossibility and reasonability, refusal or inappropriate delay of repair or replacement delivery, the Principal can withdraw from the contract or reduce the purchase price appropriately.
(5) Goods rejected by third parties cannot be disposed of by the Principal without GEPRO‘s consent.
(6) If a defect is based on culpability by GEPRO, the Principal can request compensation for damages under the specific preconditions in section 8.
Section 8 - Liability for damages due to culpability
(1) GEPRO‘s liability for damages, regardless of the grounds, particularly due to impossibility, default, deficient or incorrect delivery, breach of contract, violation of duties during contractual negotiations, insofar as it depends on fault, is limited on the basis of this section 8.
(2) GEPRO is not liable in the case of simple negligence by its executive bodies, legal representatives, employees or other legal agents, insofar as it does not involve a breach of material contractual duties. For example, the delivery of grossly defective goods or a delivery delay of more than two weeks is regarded as materially contractual.
(3) Insofar as GEPRO is liable for damages in accordance with section 8 (2) on its own merits, this liability is limited to damages that GEPRO anticipated upon conclusion of the contract as a possible consequence of a breach of contract or which GEPRO should have anticipated, when applying due care and attention. Collateral damages and consequential damages, which result from deficiencies to the delivery object, can only be compensated insofar as such damages are typically expected from intendeduse of the delivery object.
(4) In the event of liability for simple negligence, the obligation of GEPRO to pay compensation for material damage and resulting additional pecuniary damages is limited to the cover sum of its product indemnity insurance, even if it involves an infringement of ma-terial contractual duties.
(5) The foregoing liability disclaimers and limitations apply equally in favour of the executive bodies, legal representatives, employees and other legal agents of GEPRO.
(6) Insofar as GEPRO provides technical information or acts in an advisory capacity and this information or advisory does not belong to GEPRO‘s owed contractually agreed scope of service, this shall take place free of charge and to the exclusion of any liability.
(7) The restrictions of this section 8 do not apply to the liability of GEPRO for premeditated conduct, for guaranteed condition features, due to injury to life, limb or health or according to the Product Liability Act.
Section 9 - Provided items
(1) The lent packagings provided to the Principal, such as shipping containers, containers, plastic packaging, barrels, boxes, pallets, etc., shall remain the sole, unreserved property of GEPRO. They must be returned immediately by the Principal after intended use, in an immaculate and cleaned condition. Otherwise, GEPRO shall be entitled to invoice the Principal for the cleaning and replacement costs.
Section 10 - Non-disclosure
(1) GEPRO shall retain the ownership or copyright of images, calculations, descriptions and other documents provided to the Principal. The Principal is not permitted to make such documents accessible to third parties or use or duplicate them himself, without GEPRO‘s express consent. Upon request by GEPRO, he shall completely return the documents, if he no longer requires them in the proper course of business or if negotiations do not lead to the conclusion of a contract. Copies made by the Principal shall be destroyed in this case. The only exception to this is retention within the scope of statutory retention du-ties, as well as the storage of data for backup purposes during the course of conventional data backup.
(2) The Principal undertakes to keep contractual terms and conditions and all information and documents provided to him for this purpose (except for publicly accessible information) confidential for a period of 5 years after conclusion of the contract and only use them for the execution of this contract. After settlement or processing of the contractual relationship, he will send them back to GEPRO without undue delay.
(3) Without GEPRO‘s express consent, the Principal is not permitted to refer to the business relationship in advertising materials, brochures, etc.
(4) The Principal shall obligate his subcontractors and business partners in accordance with this section 10.
Section 11 - Assignment
(1) The Principal is not entitled to assign his claims from the contractual relationship to third parties. This does not apply, insofar as monetary claims are involved.
Section 12 - Privaty Policy / Personal Data
(1) Individual related / personal data are onliy permitted to be collected, worked with used or transferred in accordance with the assigned purpose of the contract on limited scale. Additional / Advanced limitations of the rights and power of individual related / personal data in terms of applicable law of data privacy / data protection and in terms of the agreed contract are still valid and remain unaffected by the previous sentence. Company data are in general strictly confidential.
Section 13 - Place of jurisdiction, applicable law, final provisions
(1) If the Principal is a trader, a public-law legal entity or a special public-law fund or has no general legal jurisdiction in the Federal Republic of Germany, the legal jurisdiction for any disputes from the business relationship between the Principal and GEPRO shall be the registered office of GEPRO, at GEPRO‘s discretion. Mandatory legal provisions concerning exclusive legal jurisdictions remain unaffected by this regulation. (2) The relationships between GEPRO and the Principal are exclusively governed by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) is excluded.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain regulatory loopholes, it is agreed that these loopholes will be closed with those legally valid regulations that the Principals would have arranged in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery, if they had been aware of the regulatory loophole.
Diepholz, in January 2020