General Terms and Conditions
FOR THE GRÜNEWALD CORPORATE GROUP
The FOLLOWING GENERAL TERMS AND CONDITIONS ARE VALID FOR THE COMPANIES
– GRÜNEWALD FRUCHTSAFT GMBH
– MAINFRUCHT GMBH & CO. KG
– ERNTEBAND FRUCHTSAFT GMBH
– POMERANIA SPOLKA z O.O.
– MAINFRANKEN KÜHLHAUS GMBH
– PPHU AGROTEX SPOLKA Z O.O.
– PODGORINA FRUCHT D.O.O.
1. General Provisions
1.1. These terms and conditions are valid for all business between the companies within the Grünewald Corporate Group (hereafter Grünewald) and the customer (companies as well as legal persons governed by public law). They also apply to all future business with said customers, even if they are not explicitly referenced.
1.2. The terms and conditions are the sole regulatory document for all business between Grünewald and the customer. In particular, the customer’s General Terms and Conditions, such as purchasing conditions, are not a contractual component, regardless of whether they contain diverging or additional provisions to those in this contract. This also applies in the event that diverging provisions are listed in customer orders or contractual agreements, or when diverging provisions are referenced in same. Diverging provisions become a contractual component only in the event that Grünewald explicitly accepts them in writing.
2. Conclusion of Contract, Quotes
2.1. Quotes from Grünewald are always non-binding. Only the written order confirmation is relevant in terms of the scope and contents of contractual services. Additional contractual agreements, changes or expansions to the contract also require written confirmation.
2.2. In the event of obvious clerical and numerical errors in the offer or in the written confirmation of contract, Grünewald is entitled, without prejudice to any other rights, to withdraw from the contract. In the event of said withdrawal from contract, no claims for damages are valid.
2.3. The customer has a right to delivery of goods only after completion of a sales contract (confirmation) or written order confirmation for individual deliveries. An acceptance period is defined in the sales contract. Within this time period, the customer may retrieve the goods in accordance with the contract in the agreed upon units (or as a whole). If no acceptance in part or in whole has been specifically agreed to, the default agreement is continuous acceptance within the acceptance period. If the customer deviates from the agreed upon acceptance units, they are responsible for paying the associated extra costs. The entirety of the goods from the sales contract must be accepted by the customer within the acceptance period.
3. Delivery deadlines
3.1. Information on delivery deadlines are non-binding, unless, by way of exception, the delivery appointment is agreed to be binding. If a binding delivery deadline is agreed upon, it begins on the day of order confirmation. The start, however, is postponed in the event that not all aspects of the contract have been clarified, and the customer has not fulfilled their contractual duties, in particular providing required documents and information or provision of any agreed upon deposit, if applicable. The delivery deadline has been kept in the event that the goods are dispatched before the deadline.
3.2. If Grünewald is prevented from delivery by force majeure, e.g. war, terror attacks, strike, IT problems not caused by the company or governmental orders, the delivery deadline is extended without further ado by the duration of the effect of the force majeure plus an appropriate initial period. Any unforeseen circumstances, or those that cannot be attributed to Grünewald which make delivery temporarily impossible or unreasonably difficult are considered equal to force majeure. Examples of such include delivery delays from an upstream supplier, labour disputes, governmental measures, shortages of raw materials or energy, significant operational interruptions, for example by destruction of the entire operation or important departments, or due to breakdown of necessary manufacturing systems, serious interruptions to transport, e.g. through road blockades, labour disputes in the transport industry, energy shortages, driving bans. Should these circumstances continue for more than four months, Grünewald has the right to withdraw from the contract. At the customer’s request, once this deadline has passed, Grünewald must declare whether they are withdrawing from the contract or whether they will deliver within an appropriate time period determined by Grünewald. Claims for damages by the customer shall be excluded.
3.3. If Grünewald is responsible for exceeding an appropriate delivery period, they are only then in arrears if the customer has, in writing, set an appropriate grace period of at least two weeks with threat of refusal, and this has expired unused. If this is the case, the customer may withdraw from the contract. Here, too, Section 3 Number 1 applies to any claims for damages by the customer.
3.4. If the customer does not accept goods that have been listed as ready for shipping in a timely manner, Grünewald has the right to store the goods at the customer’s cost and risk, and to request payment of the purchasing price, or, after an appropriate grace period, to refuse fulfilment of contract and demand payment for damages due to non-fulfilment.
3.5. Grünewald is entitled to make partial deliveries.
3.6 If the delivery becomes legally impossible after conclusion of contract due to contrary national or supranational norms or regulations (e.g. foreign trade measures), this is the responsibility of the customer, the goods will be stored by Grünewald on the customer’s account and must be paid for in accordance with the contract.
4. Shipping, Transfer of Risk
4.1. The goods are shipped, provided no other agreement is made, without insurance and at the customer’s expense.
4.2. Shipping is done at the customer’s risk. This applies even if Grünewald has agreed to pay for shipping costs.
4.3. The risk is transferred to the customer as soon as the goods have left the relevant factory. If shipping is delayed due to customer behaviour, the risk is transferred to the customer as soon as the customer has been informed that the goods are ready to be shipped.
4.4. In the event that the customer has not provided any contradictory instructions, Grünewald will determine the means and route for transport. Claims for damages due to non-compliance with shipping instructions are excluded, except in the case of intent or gross negligence on the part of Grünewald.
4.5. In the event of damage or losses to goods during transport, the customer must notify the carrier immediately and arrange for reporting of the facts. Any damages to the goods must be noted in writing on the transport documents during the acceptance inspection with a recognizable signature. A copy of the documentation must be made before handing it back to the carrier, and must also be provided to Grünewald.
4.6 The customer may not refuse delivery due to minor defects.
5. Prices, Terms of Payment, Offset
5.1. The customer must pay the price listed in the written order confirmation, plus the statutory value added tax. All Grünewald prices, providing no other explicit agreement is made, are understood to be ex works excluding transport, shipping insurance and packaging.
5.2. The price plus statutory value added tax must be paid, provided no other agreement has been made, without any deduction and within 30 days of the invoice date. Partial invoices can be provided for partial deliveries. Payment deadlines are separate for each partial invoice.
5.3. Interest in accordance with Section 288 Paragraph 2 BGB (German Civil Code) is deemed binding. Payment must not incur any charges for Grünewald.
5.4. The customer has the right to offset or retain payments only for those claims that are undisputed or assessed in court. In addition, they only have the right to retain payment in the event that their counter-claim is based on the same contractual relationship.
5.5. The Grünewald company that is a contractual party has the right to make claims against customer claims even using claims against the customer from another Grünewald company named at the beginning of this document.
5.6. The contracting Grünewald company has the right to make their own claims against claims by the customer made to another Grünewald company named at the beginning of this document.
5.7. If, after the contract is signed, the customer suffers significant worsening of financial circumstances, or if we become aware of a previous worsening of financial services, which gives cause to seriously doubt the credit worthiness of the customer, Grünewald has the right to request either prepayment or a security payment. If the customer does not comply with said request, Grünewald has the right to withdraw from the contract.
6. Retention of Title
6.1. Delivered goods remain the property of Grünewald until the customer has paid all fees from the business relationship owed to Grünewald now and in the future. The customer must immediately inform Grünewald in writing in the event of seizures or other third-party interventions. In the event that the third party is not able to reimburse the judicial and extra-judicial costs of a legal action in accordance with Section 771 ZPO (German Code of Civil Procedure), the customer is responsible for the losses incurred.
6.2. The customer may only sell the delivered goods as part of normal business proceedings; pledging or chattel mortgaging is not permitted. Grünewald reserves the right to cancel authorization to sell the goods on in the event that the customer is behind on payments or suffers a significant worsening of financial services after completion of the contract which gives cause to seriously doubt the credit worthiness of the customer. If the customer violates the agreement in clause 1, or if they are behind on payment, Grünewald has the right to take back the goods. If Grünewald does take back the goods in this manner, it does not represent a withdrawal from the contract unless Grünewald provides explicit confirmation of this in writing. After the goods have been repossessed, Grünewald has the right to sell them on; the proceeds from said sale, minus appropriate liquidation costs, are to be applied to the customer’s debt. The obligation to deliver is in abeyance until the circumstances listed in Clause 3 are no longer an issue.
6.3. To guarantee the claims that Grünewald has against the customer now and in the future, the customer agrees to relinquish all claims to the amount of the final invoice amount (including value added tax) and all associated rights arising from the resale of the goods to their customers or third parties. The customer retains the right to collect said claims. They must receive these amounts in trust and provide them to Grünewald in order to satisfy the claim made by Grünewald. The right of Grünewald to collect these claims themselves is not affected. However, Grünewald commits to not collecting the claim provided the customer is making payments from the profits they collect, does not get behind on payment and in particular there is no application to open bankruptcy proceedings, insolvency proceedings or settlement proceedings or payment has ceased. If this is the case, Grünewald can demand that the customer make known the relinquished claims and their debtors, and provide all information required to collect said claims, hand over all associated documents to Grünewald and inform the customers or third parties as to the relinquished claim and the amount of same.
6.4. Processing or restructuring of the goods by the customer is always carried out on behalf of Grünewald. If the goods are processed with other items that do not belong to Grünewald, Grünewald acquires joint ownership of the new object to the amount of the ratio of value of their own goods to the other items at the time of processing.
6.5. If the goods are inseparably mixed with other items that do not belong to Grünewald, Grünewald acquires joint ownership of the new object to the amount of the ratio of the value of their own goods to the other items at the time of processing.
7.1. Provided not otherwise agreed, the goods delivered by Grünewald are only defective if
7.1.1 on ordering, after checking and acceptance of one of the samples/advance deliveries/lot specifications available to the customer, the characteristics deviate from the samples/advance deliveries/lot specifications, or
7.1.2 in the event of ordering based on an agreed upon product specification, the characteristics of the delivered goods deviate from these product specifications resulting in impairment of the requisite use of the goods in accordance with the contract.
7.1.3 The quality of the agreed upon goods is determined from the specifications provided by Grünewald in the article number and associated definition. Provided nothing else has been specifically agreed upon, Grünewald will deliver goods that are average in kind and quality of characteristics. If agreed upon in writing, the quality may also be defined by taking representative samples, fixed lots or advance deliveries as a basis. This must be explicitly noted in the contractual agreement.
7.1.4 All delivered goods are natural products. Despite extremely high quality of products and processing/storage, the products may experience natural changes. These do not represent a defect, in particular in the event of purchase based on a sample and a long acceptance period.
7.2. Customer warranty rights require that the customer has fulfilled their investigation and notification duties in accordance with Sections 377, 378 HGB (German Commercial Code) in an orderly manner (the goods must be investigated within three days). Independent thereof, the customer is responsible for and required to carry out relevant comprehensive receiving inspections (in particular state of the art relevant chemical, material and microbiological analyses) to check whether the goods delivered by Grünewald meet pertinent requirements in regards to their intended use (in particular in accordance with food laws) and all other pertinent guidelines and technical norms, and only to process or sell on said goods once these receiving inspections have provided no grounds for complaint. The clause above does not represent an extension of the guarantees and agreed upon characteristics of the goods above and beyond that stated in the delivery conditions and other customer agreements. If the customer does not carry out a comprehensive receiving inspection, or only carries out a partial receiving inspection, all claims made by the customer against Grünewald for damages are excluded in the event that the damage would not have occurred had these duties been carried out. This also applies if the customer processes or sells on goods delivered by Grünewald without waiting to be presented with the results of a test for specific characteristics, agreed upon with Grünewald on an individual basis and carried out by Grünewald, or if the customer sells on or processes the goods even though a test carried out by Grünewald, or the receiving inspection carried out by the customer determined that the characteristics of the goods were not suitable for the intended use. Furthermore the customer is required to check documentation as part of the receiving inspection of the goods.
7.3. Complaints must be made in writing (Section 126 BGB).
7.4. If the goods are defective, Grünewald has the right to select whether to rectify the situation or deliver replacements. The customer only has the right to require cancellation of contract or reduction of the contractually agreed upon price in the event that
7.4.1 rectification of the situation or replacement delivery is not possible;
7.4.2 Grünewald is unable to rectify the situation or replace the delivery within a reasonable amount of time;
7.4.3 Grünewald unjustifiably refuses to rectify the situation or replace the delivery or
7.4.4 Grünewald culpably delays rectification or replacement delivery.
Liability for damages related to defects to the customer’s other rights or legal assets, from loss of profits etc, is excluded. Even in the event of a culpable violation of the duty to rectify the situation or provide a replacement, the right to claim damages is excluded, even for damages caused by delayed fulfilment of this duty, except in the case of intent or gross negligence on the part of Grünewald.
7.5. In the event of absence of promised features, Grünewald is liable for damages to the customer’s other rights or legal assets if the guarantee states that no such damages will occur. Liability for losses attributed to defects, that is liability for the reduced value of the goods due to the lack of the promised feature as well as for lost profit, is excluded.
7.6. Provided not otherwise agreed upon, the samples and specimens provided by Grünewald to the customer do not represent samples or specimens in accordance with Section 494 BGB. Characteristic features listed by Grünewald in analysis results or samples delivered with the goods are, in principle, not guaranteed features the lack of which would trigger assumption of liability without fault, provided nothing has been agreed to the contrary in the individual case.
7.7 If Grünewald should be culpable and reproachable for being behind schedule, the customer, provided they can prove damages arising from this, can request compensation of 0.5 % of the price of the part of the delivery that was unable to be used appropriately due to the delay for every completed week behind schedule, to a total of at the most 5 % of said price.
7.8 Claims for subsequent performance by Grünewald and customer claims for expense compensation in accordance with Section 445a BGB lapse within 12 months from the statutory limitation period.
8.1. Customer claims for compensation (as well as compensation for useless efforts), regardless of legal basis, in particular from tort liability, manufacturer liability, incorrect or neglected consultation, culpa in contrahendo and positive claims infringement are excluded for slight negligence. The preceding exclusion of liability does not apply to delays, impossibility or violation of duties required for orderly completion of contract: in these cases liability in the event of slight negligence is limited to reimbursement of the foreseeable, typical damage on conclusion of contract. Absence of promised features is covered solely by 7.4.
8.2. The customer is required to indemnify and hold Grünewald harmless from customer damage claims due to a feature of a product sold by the customer, if and inasmuch as they themselves contributed to the damage.
9.1. If the goods are not retrieved by the customer within a timely manner as defined by the contract, they will be stored at the customer’s cost. An appropriate storage fee of EUR 0.02 per started month and kg is understood to be agreed upon.
10. Choice of Law, Place of Fulfilment
10.1. The place of fulfilment
The place of fulfilment for all contractual duties is the headquarters of the relevant Grünewald company with which the contract was signed.
10.2. The place of jurisdiction
For legal action against Grünewald, the sole place of jurisdiction for any disputes arising from the preparation and implementation of contracts is the court responsible for the location of the headquarters of the Grünewald company with which the contract was signed. Grünewald has the right to move court proceedings to another legally responsible court.
10.3. Choice of law
Only the laws of the Federal Republic of Germany apply to legal relationships arising from the preparation and implementation of contracts. The UN convention on contracts for the international sale of goods does not apply.
11. Data protection
Grünewald collects, processes and uses personal data only to answer requests, complete contracts agreed upon with the customer and for technical administration, provided this is necessary for completing contractual services. Provision of personal data grants the approval to use said data as detailed above. Provision of personal data to third parties is in principle never undertaken, unless this is required for providing services to the customer or the customer has agreed to said provision or this has been requested by the authorities. The granting of permission for data use can be cancelled at any time effective for the future.
The responsible parties in accordance with Data Protection Law are the relevant Data Protection Officers in the Grünewald Corporate Group factories. After written request, Grünewald will provide information on the personal data they have saved on the customer/applicant.
Grünewald deletes saved personal data once the customer/applicant cancels their agreement to have said data saved, once the data is no longer needed to fulfil the purpose served by saving the data or if saving the data is or becomes impermissible for other legal reasons.