General Terms
and Conditions
1. Scope / Amendments to these Terms and Conditions
For all deliveries by the Producer Organisation, including those arising from future transactions with the contracting party, the following terms and conditions shall apply exclusively unless deviating special conditions have been agreed. The invalidity of individual provisions shall not affect the validity of the remaining provisions. The same shall apply if individual provisions do not become part of the contract.
In addition, the commercial practices for fresh edible horticultural products (COFREUROP) shall apply insofar as they are not amended or supplemented by the following provisions.
Amendments to these Terms and Conditions will be communicated to the contracting party in text form. They shall be deemed approved unless the contracting party objects in text form. The Producer Organisation will expressly draw attention to this consequence when notifying the contracting party of the amendments. The contracting party must send its objection to the Producer Organisation within 6 weeks of notification of the amendments.
These General Terms and Conditions shall apply only to businesses within the meaning of Section 14 of the German Civil Code (BGB).
2. Conclusion of Contract
If contracts with businesses are concluded subject to written or telegraphic confirmation, the content of the Producer Organisation’s confirmation letter shall be decisive unless the recipient objects without undue delay.
If no price agreement is made, the price determined by the Producer Organisation for goods of the same type and quality shall apply.
3. Verification of Statements
Statements issued by the Producer Organisation must be checked by the business without undue delay for accuracy, in particular with regard to the VAT rate shown. Any objections or the indication of an incorrect VAT rate must be reported to the Producer Organisation in writing within 14 days of receipt of the statement.
If the Producer Organisation does not receive any notification from the business within the 14-day period, the VAT rate shown by the Producer Organisation shall be decisive. If the duty to notify is breached, the business shall be liable to the Producer Organisation for damages in accordance with the statutory provisions.
4. Payment
Unless otherwise agreed, payment for deliveries and services provided by the Producer Organisation must be made without deduction immediately upon receipt of the invoice. In the case of delivery or performance on credit, the payment term shall be calculated from the date of delivery or performance. The Producer Organisation may require payment or the provision of security before the goods are delivered.
Payment by bill of exchange is permitted only if expressly agreed and, even then, shall be accepted only on account of performance. In the case of payment by cheque, payment shall not be deemed made upon receipt of the cheque by the Producer Organisation, but only upon final clearance.
Discount charges and collection charges shall be borne by the buyer and are payable immediately.
The contracting party may set off only those counterclaims that are undisputed by the Producer Organisation or have been finally determined by a court. The contracting party may not exercise a right of retention that is not based on the same legal relationship.
In the case of payment by SEPA Core Direct Debit or SEPA Business-to-Business Direct Debit, the Producer Organisation shall notify the contracting party of a one-off SEPA direct debit and each recurring SEPA direct debit with varying amounts no later than one business day before the debit is collected. For the first recurring SEPA direct debit with identical amounts, the cooperative shall notify the contracting party no later than one business day before the first debit of both the first debit and the subsequent debits.
5. Current Account
All mutual claims arising from the business relationship may, where separately agreed, be entered into a current account to which Sections 355 et seq. of the German Commercial Code (HGB) shall apply. In business relationships with farmers, a current-account arrangement shall be deemed agreed.
Notwithstanding the interest provisions arising from Sections 355 et seq. HGB, the Producer Organisation shall be entitled, for any period in which the applicable payment term is exceeded, to charge interest at 9% above the base interest rate, but at least in the amount of the interest loss actually incurred by it.
The Producer Organisation’s account statements issued at the end of each year shall be deemed final account statements. The balance shall be deemed accepted unless the account holder raises objections within one month of receipt of the final account statement. The Producer Organisation will expressly draw attention to this when sending the final account statement. Statutory claims shall remain unaffected.
6. Liability
Claims for damages by the contracting party, regardless of the legal basis, in particular for breach of obligations arising from the contractual relationship or from tort, are excluded.
This shall not apply where liability is mandatory by law, in particular in cases of
- fraudulent concealment, intent and gross negligence
- injury to life, limb or health
- the assumption of a guarantee, e.g. for the existence of a particular characteristic
- the breach of material contractual obligations, or
- liability under the German Product Liability Act
Claims for damages arising from the negligent breach of material contractual obligations shall be limited to the foreseeable loss typical for the contract.
Where liability is excluded or limited, this shall also apply to the personal liability of the Producer Organisation’s employees, staff, representatives and vicarious agents.
The foregoing provisions do not entail any change in the burden of proof to the detriment of the contracting party.
7. Place of Performance, Jurisdiction and Applicable Law
The business premises of the Producer Organisation shall be the place of performance for both parties if the customer is a merchant, a legal entity under public law or a special fund under public law, or if the customer is resident outside the Federal Republic of Germany.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the Producer Organisation may bring an action at the place of jurisdiction corresponding to the place of performance and may be sued only at that place of jurisdiction.
If the Producer Organisation uses a cooperative fiduciary office to enforce its claims, it may also bring an action at the general place of jurisdiction of that office.
The law applicable at the place of performance shall govern all legal relationships between the customer, where the customer is a business, and the Producer Organisation, even if the legal dispute is conducted abroad.
The provisions of Sections 8 to 14 shall additionally apply to deliveries by the Producer Organisation:
8. Delivery
The Producer Organisation shall also be entitled to make partial deliveries where this is reasonable for the contracting party. If delivery on call has been agreed, the contracting party must call off the goods within a reasonable period.
If delivery becomes impossible or excessively difficult due to force majeure, official measures, business closure, strikes, extreme weather conditions (e.g. storms, hail, drought, high or low water levels) or similar circumstances, including such circumstances affecting suppliers of the Producer Organisation, the Producer Organisation shall be released from its delivery obligation for the duration of the impediment and its after-effects.
This shall also entitle the Producer Organisation to withdraw from the contract if and to the extent that it can no longer reasonably be expected to adhere to the contract. If the Producer Organisation is not supplied or is inadequately supplied by its upstream suppliers, it shall be released wholly or partly from its delivery obligations.
This shall apply only if the Producer Organisation has taken the necessary precautions to procure the goods it is required to deliver and has selected its upstream suppliers with due care. In such a case, it undertakes, upon request, to assign its claims against the supplier to the contracting party. In this case, the contracting party shall remain obliged to provide consideration in accordance with Section 326(3) BGB.
The Producer Organisation shall inform the contracting party without undue delay of the occurrence of the above events and the resulting unavailability and, in the event of withdrawal, shall refund the buyer’s consideration without undue delay.
Increases in transport costs, changes in tariffs and surcharges due to ice, high water or low water may be added to the purchase price by the Producer Organisation.
Shipment shall be made at the contracting party’s expense and risk, even if the goods are transported in vehicles belonging to the Producer Organisation. The contracting party shall also bear the risk in the case of freight-paid delivery. The Producer Organisation shall select the method of shipment unless the contracting party gives specific instructions. At the contracting party’s request, the Producer Organisation shall take out transport insurance to the extent requested and at the contracting party’s expense.
9. Packaging
Disposable packaging shall be invoiced to the buyer at the price determined by the Producer Organisation, and the buyer shall undertake to dispose of the disposable packaging on behalf of the Producer Organisation.
Reusable packaging and transport materials provided by the Producer Organisation shall remain its property unless they are owned by a third party. In that case, the respective special conditions of use in their current version shall also apply.
All types of reusable packaging and transport materials shall be provided to the buyer against payment of a deposit and a usage fee, both of which are due and payable immediately. The buyer must return the reusable packaging provided in proper condition and within the applicable period. Reusable packaging owned by the Producer Organisation must be returned within 12 months of being provided.
After the transfer of risk, the buyer shall bear the risk of loss of the reusable packaging. If the reusable packaging is lost or destroyed for any reason whatsoever, the Producer Organisation shall not be obliged to refund the deposit paid for it.
If reusable packaging is returned damaged, unusable or late, the Producer Organisation may, at its discretion, claim damages or a special usage fee, or refuse to accept the return with forfeiture of the deposit. When reusable packaging is returned, deposits shall be credited only if and to the extent that the packaging material was borrowed from the Producer Organisation and deposits were paid for it.
10. Notification of Defects / Warranty Claims
Upon handover of the goods sold or their provision for collection, the risk of accidental loss and accidental deterioration shall pass to the buyer.
Once the goods have been made available ex market or at the agreed handover point, they must be inspected without undue delay for material defects, e.g. quantity, quality and condition. Defects that can be identified by proper inspection must be reported without undue delay and before the goods leave the market or agreed handover point. In all other respects, Section 377 HGB shall apply in dealings with businesses.
Justified complaints shall entitle the buyer only to a reduction of the purchase price.
11. Non-performance and Default
The purchase price shall become due immediately if the contracting party finally refuses to pay it. The same legal consequence shall apply if, where payment by instalments has been agreed, the contracting party is in arrears by an amount exceeding one instalment and the outstanding amount is at least 10% of the total purchase price.
If payment of the purchase price is finally refused, the Producer Organisation may, even without setting an additional deadline, refuse performance of the purchase contract and demand reimbursement of all costs and expenses incurred as well as compensation for any loss in value.
If the contracting party is in default of acceptance, the Producer Organisation may store the goods at the contracting party’s expense and risk on its own premises or with a third party, or realise the goods for the contracting party’s account in a manner it considers suitable, without prior notice being required.
The Producer Organisation may demand immediate payment of all claims and make deliveries conditional upon advance payment or the provision of security if the contracting party’s financial or income circumstances deteriorate materially or if a significant risk to its assets arises.
12. Retention of Title
The delivered goods, including packaging, shall remain the property of the Producer Organisation until the purchase price and all claims that the Producer Organisation has or may in future acquire against the contracting party arising from the business relationship have been paid in full. In the event of conduct by the buyer in breach of contract, in particular default in payment, the Producer Organisation shall be entitled to withdraw from the contract after setting a reasonable deadline.
If the goods subject to retention of title are inseparably mixed, blended or combined with other goods owned by the buyer or a third party, the Producer Organisation shall acquire co-ownership of the resulting item in a proportion corresponding to the value of its goods subject to retention of title in relation to the value of the other goods at the time of mixing, blending or combination.
By processing or transforming the goods subject to retention of title, the Producer Organisation 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 hold the new item in custody for the Producer Organisation.
At the Producer Organisation’s request, the buyer must insure the goods belonging to the Producer Organisation, at the buyer’s expense and to the extent requested by the Producer Organisation, against the risks specified by it and assign the insurance claims to the Producer Organisation. The Producer Organisation shall also be entitled to pay the insurance premiums at the buyer’s expense.
The buyer may resell the goods, including goods produced by mixing, blending, combining, processing or transformation, only in the ordinary course of business. The buyer is not entitled to make any other dispositions over these goods, in particular by pledging them or transferring them by way of security.
The buyer hereby assigns to the Producer Organisation all claims arising from the resale of the goods subject to retention of title or goods produced from them by processing or transformation. The same shall apply to other claims that take the place of the goods subject to retention of title or otherwise arise in relation to such goods.
From claims arising from the sale of goods in which the Producer Organisation has acquired co-ownership through mixing, blending or combination, the buyer hereby assigns to the Producer Organisation a first-ranking partial amount corresponding to the Producer Organisation’s co-ownership share in the goods sold.
If the buyer sells goods owned or co-owned by the Producer Organisation together with other goods not belonging to the Producer Organisation for an aggregate price, the buyer hereby assigns to the Producer Organisation a first-ranking partial amount of the aggregate claim corresponding to the share represented by the goods subject to retention of title.
The buyer is authorised to collect the assigned claims arising from resale. The Producer Organisation may revoke this authorisation to collect at any time if the buyer fails to meet its payment obligations, is in default of payment, an application for insolvency has been filed, payments have been suspended or enforcement measures by third parties are pending.
At the Producer Organisation’s request, the buyer must identify the debtors of the assigned claims, notify them of the assignment or provide the Producer Organisation with the notices of assignment.
As long as the contracting party meets its payment obligations, the Producer Organisation will not disclose the assignment. If the realisable value of the securities available to the Producer Organisation exceeds the secured claims in total by more than 10%, the Producer Organisation shall, at the contracting party’s request, release securities of its choice to the corresponding extent.
At the Producer Organisation’s request, the contracting party is obliged to confirm in writing the assignment of its claims against the third party. The Producer Organisation shall be entitled to notify the third party of the assignment of claims.
13. Protection of Existing Arrangements
The buyer is aware that, in accordance with their membership relationship with the Producer Organisation, the members of the Producer Organisation are obliged to deliver their entire crop of fruit, vegetables and horticultural products intended for sale to the Producer Organisation or to market it through the Producer Organisation.
The members’ obligation is based on the common market organisation for fruit and vegetables in accordance with the applicable European Union framework regulation, currently Regulation (EC) No 2200/96 of 28 October 1996, including all European Union and national implementing regulations.
In order to prevent infringements of the market organisation for fruit and vegetables, the buyer is prohibited from purchasing fruit, vegetables and/or horticultural products directly from one or more members of the Producer Organisation while bypassing the Producer Organisation.
Where the buyer is found to have infringed the provisions of Section 14, the buyer shall be liable for the loss suffered by the Producer Organisation as a result of the unauthorised direct purchase from its member or members.
Paragraphs 1 to 7 shall apply accordingly to deliveries of agricultural products by farmers to the Producer Organisation.