General Terms and Conditions
General Terms and Conditions of Delivery of Boettger Food Ingredients GmbH
All deliveries, services, and offers of Boettger Food Ingredients GmbH (hereinafter referred to as the “Seller”) are made exclusively on the basis of these General Terms and Conditions of Delivery (the “Terms of Delivery”). These Terms of Delivery form an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as the “Buyer”) concerning deliveries or services of the Seller. They shall also apply to all future deliveries, services, or offers to the Buyer, even if not expressly agreed again.
Any terms and conditions of the Buyer or of third parties shall not apply, even if the Seller does not expressly object to their validity in each individual case. A reference by the Seller to a document containing or referring to the Buyer’s or a third party’s terms and conditions shall not constitute agreement with such terms and conditions.
Offer and Conclusion of Contract
All offers made by the Seller are non-binding and subject to change, unless expressly designated as binding. If an offer is expressly designated as binding, the contract shall be concluded when the Buyer’s declaration of acceptance is received by the Seller—unless another period is specified—within seven (7) days.
Orders, purchase orders, or offers from the Buyer may be accepted by the Seller within fourteen (14) days after receipt, unless the Buyer specifies another period. In such case, a contract is concluded when the Seller declares acceptance (at least) in text form, for example by sending an order confirmation, a contract confirmation, or an invoice.
If an order confirmation or contract confirmation by the Seller deviates from the Buyer’s order, offer, or purchase order, the content of the Seller’s confirmation shall be deemed contractually agreed, unless the Buyer objects (at least) in text form within five (5) working days of receipt.
Oral statements made by the Seller prior to the conclusion of the contract are not legally binding. Any oral agreements between the contracting parties shall be replaced by the written (text form) contract unless expressly agreed otherwise by the parties.
Amendments and supplements to the agreements made, including these Terms of Delivery, must be made in text form to be effective.
Samples of goods provided by the Seller prior to the conclusion of the contract shall be regarded as non-binding average samples.
Prices
Offered or agreed prices are net prices and are exclusive of statutory VAT.
Unless otherwise agreed, prices and deliver are agreed “ex works” (EXW Incoterms® 2020) from Seller’s factory or warehouse.
If, after the conclusion of the contract, customs duties (import or export duties) or other public charges are increased or newly introduced, and such increase results in additional costs for the Seller in fulfilling its performance obligations, the Seller shall be entitled to demand a corresponding price adjustment. The Seller shall provide appropriate proof and documentation of such additional costs.
Call-off Deliveries, Delivery Quantity, Delivery Default
If the parties agree on delivery upon call-off (Abruf) by the Buyer, the Buyer shall be obliged to call off and accept the agreed delivery quantity within the agreed delivery period. The Buyer shall inform the Seller in good time about planned call-offs and coordinate the delivery quantity planning in due course. The delivery periods for call-offs shall be agreed individually between the parties or communicated by the Seller upon receipt of a call-off.
Unless otherwise agreed, the Seller shall be entitled to deliver partial quantities.
In the case of over- or under-deliveries, the actual delivered quantity shall be deemed to constitute the Seller’s contractual performance and shall form the basis for invoicing, provided that it does not deviate by more than 5 percent from the ordered quantity.
The occurrence of delivery default (Lieferverzug) on the part of the Seller shall be determined in accordance with statutory provisions of German law. In any case, a reminder by the Buyer is required.
If the Seller is in default with the delivery of a called-off quantity or if a delivery becomes impossible for any reason, the Seller’s liability shall be limited to damages in accordance with Section 7 of these Terms of Delivery, for the respective delivery quantity concerned. The Buyer shall have no right to withdraw from the contract or claim damages for quantities not in default or for the entire contractual relationship, unless continuation of the contract would be an undue hardship (unzumutbar) for the Buyer in the individual case.
The Seller shall not be liable for impossibility of delivery or for delivery default caused by force majeure (höhere Gewalt) or other events that were unforeseeable at the time of contract conclusion (e.g., operational disruptions of any kind, difficulties in procuring materials, transport delays, strikes, lawful lockouts [rechtmäßige Aussperrungen], shortage of energy or raw materials, pandemics or epidemics, or administrative measures [behördliche Maßnahmen]) for which the Seller is not responsible. If such events make delivery or performance substantially more difficult or impossible for the Seller and the hindrance is not merely of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the case of temporary hindrances, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the duration of the hindrance plus a reasonable restart period.
Shipment, Transfer of Risk, Packaging
At the Buyer’s request, the goods shall be shipped to the place of destination specified by the Buyer (Versendungskauf). Unless otherwise agreed, the Buyer shall bear the costs of shipment.
The risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss or accidental deterioration of the goods, as well as the risk of delay, shall pass to the Buyer upon delivery of the goods to the carrier, freight forwarder, or any other person or institution designated to perform the shipment.
Shipment shall be insured by the Seller only upon the Buyer’s express request and at the Buyer’s expense against theft, transport, fire, water damage, or other insurable risks.
Intermediate Bulk Containers (“IBCs”) provided by the Seller shall remain the property of the Seller and must be returned by the Buyer within a reasonable period. If the Buyer fails to return the IBCs within eight (8) weeks from the invoice date, the Seller shall be entitled to charge a rental fee of EUR 0.25 per day and per IBC/drum. IBCs may not be used for other purposes and must be stored in a food-safe manner. The Buyer shall be liable for any damage or loss.
Payment
Invoices shall be payable within the agreed payment period. However, the Seller shall be entitled—even within an ongoing business relationship—to make a delivery, in whole or in part, only against advance payment. The Seller shall declare such a reservation at the latest upon sending the order confirmation.
In the case of bank transfers, payment shall be deemed made only when the amount has been unconditionally credited to the Seller’s account. Payment by cheque is excluded unless otherwise agreed.
The crediting of accepted bills of exchange shall only occur after they have been honoured. Any costs related to bills of exchange shall be borne by the Buyer. If payment by bill of exchange has been agreed, the bill must reach the Seller within eight (8) days and have a maximum term of 90 days from the invoice date. If this deadline is exceeded, the Seller may demand cash payment instead. If a bill of exchange is protested, the entire invoice amount shall become due immediately, even if other bills have been issued.
If the Seller grants the Buyer a payment term for any claim and the risk of non-payment is covered by trade credit insurance, such payment term shall only be valid as long as and to the extent that the total amount of the claims against the Buyer does not exceed the credit limit set by the credit insurer for that Buyer. The portion of claims exceeding the insured credit limit shall become immediately due and payable.
Upon expiry of the agreed payment period, the Buyer shall be deemed in default. During default, the purchase price shall bear interest at the applicable statutory default interest rate. The Seller reserves the right to assert further damages caused by default. For merchants, the Seller’s right to commercial default interest (§ 353 German Commercial Code, HGB) remains unaffected.
If, after conclusion of the contract, a significant deterioration occurs in the Buyer’s financial situation, the Seller shall be entitled to demand security for all outstanding claims, including those not yet due. If the Buyer does not comply with this demand within a reasonable period, the Seller shall be entitled to withdraw from the contract.
The Buyer may offset claims or withhold payments only if the Buyer’s counterclaims are undisputed or have been legally established (rechtskräftig festgestellt).
Warranty Claims of the Buyer
The Buyer shall be obliged to inspect the delivered goods no later than seven (7) days after receipt and to notify the Seller of any defects, insofar as this is feasible in the ordinary course of business. If the Buyer fails to provide such notice, the goods shall be deemed approved, unless the defect was not detectable upon inspection. If such a hidden defect later becomes apparent, the notice of defect must be made no later than seven (7) days after discovery. Timely dispatch of the notice shall suffice to preserve the Buyer’s rights. These obligations to inspect and give notice shall not apply if the Seller fraudulently concealed the defect.
If a defect exists, the Seller shall, at its discretion, first be entitled to remedy the defect or deliver replacement goods free from defects.
The Seller may make the owed subsequent performance conditional upon the Buyer’s payment of the due purchase price. However, the Buyer shall be entitled to withhold a portion of the purchase price that is reasonable in relation to the defect.
The warranty period shall be one (1) year from the date of delivery. This period shall not apply to damage compensation claims arising from injury to life, body, or health, or from intentional or grossly negligent breaches of duty by the Seller or its agents; such claims shall be subject to the statutory limitation periods.
At the Seller’s request, the goods subject to complaint shall be returned carriage paid to the Seller. If the notice of defect is justified, the Seller shall reimburse the costs of the least expensive shipping method; this does not apply if the costs increase because the goods are located at a place other than the place of intended use.
Liability of the Seller
The Seller’s liability for damages, regardless of the legal basis—in particular due to impossibility, delivery default, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, or tort—shall be limited as follows, insofar as fault is relevant in each case.
The Seller shall not be liable for simple negligence on the part of its corporate bodies, legal representatives, employees, or other agents, unless it concerns a breach of essential contractual obligations (cardinal obligations). Cardinal obligations (Kardinalplfichten) are those duties whose fulfillment is essential to the proper execution of the contract and whose observance the contracting party may regularly rely upon. They include, in particular, the obligation to deliver goods free from legal or material defects that substantially impair the suitability of the goods for their contractual purpose, as well as duties of advice, protection, and care that enable the Buyer to use the goods as intended or serve to protect life, body, or property from significant damage.
Where the Seller is liable for damages under the above paragraph, such liability shall be limited to damages that the Seller foresaw at the time of contract conclusion as a possible consequence of a breach of contract, or which it should have foreseen if it had exercised ordinary care. Indirect or consequential damages, which are the result of defects in the delivered goods, shall be compensable only if such damages are typical and foreseeable when the goods are used as intended. The foregoing limitations in this paragraph shall not apply in cases of intentional or grossly negligent conduct.
In cases of liability for simple negligence, the Seller’s liability for property and financial losses shall be limited to EUR 500,000 per damage event, even if an essential contractual obligation has been breached.
The foregoing exclusions and limitations of liability shall apply to the same extent in favor of the Seller’s corporate bodies, legal representatives, employees, and other agents.
If the Seller provides information or advice and such information or advice is not part of the agreed contractual performance, this shall be done free of charge and with no liability whatsoever.
The above limitations shall not apply to the Seller’s liability for intentional acts, for guaranteed characteristics (garantierte Beschaffenheitsmerkmale), for injury to life, body, or health, or under the German Product Liability Act (Produkthaftungsgesetz).
Retention of Title
The following retention of title serves to secure all present and future claims of the Seller against the Buyer arising from their business relationship (including any balance claims resulting from a current account limited to this business relationship).
The goods delivered by the Seller to the Buyer shall remain the property (Eigentum) of the Seller until full payment of all secured claims has been made. The goods, as well as any items or claims replacing them under the following provisions, shall hereinafter be referred to as the “Reserved Goods”.
The Buyer shall store the Reserved Goods free of charge for the Seller.
The Buyer shall be entitled to process and sell the Reserved Goods in the ordinary course of business until the occurrence of an enforcement event. Pledging or transfer by way of security shall not be permitted.
If the Reserved Goods are processed by the Buyer, it is agreed that such processing shall be carried out on behalf of and for the account of the Seller as manufacturer, and that the Seller shall immediately acquire ownership, or—if the processing involves materials of several owners or if the value of the processed goods exceeds the value of the Reserved Goods—co-ownership (fractional ownership) of the newly created goods, in proportion to the value of the Reserved Goods to the value of the newly created goods. If no such ownership should arise for the Seller, the Buyer hereby transfers to the Seller its future ownership or, as applicable, co-ownership in the newly created goods as security. If the Reserved Goods are combined or inseparably mixed with other items to form a single product, and one of these items is deemed the main item, such that the Seller or the Buyer acquires sole ownership, the party owning the main item hereby transfers to the other party proportionate co-ownership of the unified product in the proportion defined above.
In the event of a resale of the Reserved Goods, the Buyer hereby assigns to the Seller, by way of security (sicherheitshalber), the resulting claim against the purchaser, in the amount corresponding to the Seller’s co-ownership share, if applicable. The same applies to any other claims replacing the Reserved Goods or otherwise arising with respect to the Reserved Goods (e.g., insurance claims or claims in tort in the event of loss or destruction). The Seller hereby revocably authorizes the Buyer to collect the claims assigned to the Seller in its own name. The Seller may revoke this authorization only in the event of enforcement.
If third parties seize the Reserved Goods – especially through attachment – the Buyer shall immediately point out the Seller’s ownership and inform the Seller without delay to enable the Seller to enforce its ownership rights. If the third party is unable to reimburse the Seller for judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for such costs.
The Seller shall release the Reserved Goods or the items or claims replacing them to the extent that their value exceeds the Seller’s secured claims by more than 50%. The Seller shall select which items to release.
If the Seller withdraws from the contract due to the Buyer’s breach of contract—especially default of payment—the Seller shall be entitled to demand return of the Reserved Goods (enforcement event).
Miscellaneous and Final Provisions
The relationship between the Seller and the Buyer shall be governed exclusively by the lasw of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 shall not apply.
If the Buyer is a merchant (Kaufmann), a legal entity under public law, or a special fund under public law, or if the Buyer has no general place of jurisdiction in Germany, the place of jurisdiction for all disputes arising from the business relationship between the Seller and the Buyer shall, at the Seller’s discretion, be Berlin (Germany) or the Buyer’s registered office. For actions brought against the Seller, Berlin shall be the exclusive place of jurisdiction in such cases. Mandatory statutory provisions regarding exclusive jurisdictions remain unaffected.
The Seller sources its products primarily from suppliers that hold a Global Food Safety Initiative (GFSI)-recognized certification. However, not all suppliers of the Seller possess such certification. If a supplier lacks GFSI-recognized certification, listing shall occur only after a detailed review by the Seller’s quality management. Each non-GFSI-certified supplier must operate a verifiable quality management system that meets the Seller’s requirements for food safety, food fraud prevention, and food defense according to its internal GFSI standards. The Buyer explicitly agrees to this procedure.
Should the contract or these Terms of Delivery contain any gaps, the validity of the remaining provisions shall not be affected. In such a case, the contract shall be interpreted as if the parties had agreed upon those legally valid provisions that correspond to the economic purpose and intent of the contract and of these Terms of Delivery had they been aware of the gap.
