Art. 1 General – Scope of Application

1.1 All contracts concluded between D. Entrup-Haselbach GmbH & Co. KG (hereinafter “DEH“ or “we/us“) and its buyers and customers (hereinafter “Customer” or “Customers”) shall be governed by the General Terms and Conditions of Sale and Delivery (hereinafter “GTCSD”) set out below. These GTCSD shall apply exclusively to entrepreneurs as defined in Sec. 14 of the Deutsches Bürgerliches Gesetzbuch [German Civil Code] (BGB), i.e. natural or legal persons who exercise their commercial or self-employed professional activity when they buy the goods.

1.2 These GTCSD apply exclusively; DEH will not accept any general terms and conditions of the Customer which are opposed to or deviate from these GTCSD, unless DEH explicitly agreed to their application. These GTCSD shall also apply, if DEH makes deliveries to the customer and/or receives payments for deliveries in full awareness of conditions which are opposed to or deviate from these GTCSD. The Customer’s terms and conditions will not apply even if the Customer explicitly refers to them or if DEH fails to object to their application in individual cases.

1.3 These GTCSD apply to all current and future business relations between DEH and the Customer.


Art. 2 Contract Conclusion, Self-Supply Reservation

2.1 Our offers are subject to change, unless they are explicitly identified as being binding or explicitly contain binding commitments. They solely constitute requests for making purchase orders. If the Customer places a purchase order on the basis of such non-binding offers, a contract will only be deemed to be concluded – even in ongoing business transactions – after our written order conformation, if the Customer requests such confirmation. In all other cases, the contract shall be deemed to be concluded after delivery of the goods. Insofar as we confirm the order, the contents of such confirmation shall solely be decisive for the contents of the contract, in particular the scope of delivery and the time of delivery. When ordering goods, the Customer declares bindingly that they wish to acquire them. We shall be authorised, however not obliged, to accept the contract offer existing in the purchase order within 2 weeks after receipt by us.

2.2 Changes of a technical type, as well as changes in form, colour and/or weight remain reserved insofar as such are reasonable. The documents belonging to the offer do not constitute assurances regarding characteristics, but only serve the purpose of informing the Customer.

2.3 The contract is concluded under the proviso that we receive correct and timely deliveries from our suppliers. That applies only in case that any untimely or incorrect delivery by our suppliers is not attributable to us, in particular in case of conclusion of a congruent coverage transaction with the supplier, i.e. a proper and sufficient cover according to the quantity and quality set out in the delivery and service agreement with the Customer. The Customer will immediately be informed about any non-availability of the service and any payment which has already been made on such will be reimbursed immediately.


Art. 3 Retention of Title

3.1 We reserve the ownership to the goods up to the full settlement of all claims under an ongoing business relationship.

3.2 The Customer undertakes to inform us promptly if any third parties access the goods, e.g. in case of pledging as well as any damage or destruction of the goods. The Customer shall notify us promptly about any change of owner of the goods or any change of the residential address.

3.3 We shall be authorised to withdraw from the contract and to request surrender of the goods in case of a conduct of the Customer in violation of the contract, in particular in case of a default of payment, or violation of any of the above-mentioned duties.

3.4 The Customer shall be authorised to resell the goods in the ordinary course of business. They shall assign to us, as security, already as of now, all claims in the amount of the invoice, that they receive due to the resale to any third party. We accept the assignment. After the assignment, the Customer shall be authorised to collect the claim. We reserve the right to personally collect the claim, as soon as the Customer fails to properly fulfil their payment obligations or is in default of payment. If we assert rights under the retention of title, the Customer shall disclose to us the names of the buyers of the resold goods and the amount of the claim arising therefrom.

3.5 Any pleas and objections against the claim for surrender of the goods to which we are entitled or the claims assigned to us hereunder shall be excluded. We shall irrevocably be authorised to enter the Customer’s goods warehouse or to have it entered by an authorised person, in order to determine the goods subject to retention of title.

3.6 If the Customer processes, transforms or combines the goods with other objects, such processing, transformation or combination shall be deemed to be done for DEH. DEH will become the direct owner of the object arising from such processing, transformation or combination. If that proves impossible, for legal reasons, DEH and the Customer agree that DEH will become the owner of the new object at any time of processing, transformation or combination. The Customer will keep the new object for DEH with the care of a prudent businessman. The object which arises from processing, transformation or combination shall be deemed to be goods subject to retention of title. In case of a processing, transformation or combination with other objects not owned by DEH, DEH shall be entitled to a co-ownership in the new object up to the share resulting from the ratio in the value of the processed, transformed or combined goods subject to retention of title to the value of the new object. In the event of a sale or leasing of the new object, the Customer will hereby assign to the seller, as a security, their claim arising from the sale or leasing against their customer, including all ancillary rights, where no subsequent special statements shall be required for that purpose. The assignment, however, only applies to the amount corresponding to the value of the processed, transformed or combined goods subject to retention of title as invoiced by DEH. The share of the claim assigned to DEH shall have priority over the remaining claim.

3.7 If the value of the security exceeds the claims of DEH against the Customer under the ongoing business relationship by more than 20 %, DEH shall, at the Customer’s request, be obliged to release securities at its choice.


Art. 4 Prices and Payment Terms

4.1 Our prices are quoted in Euros, unless otherwise indicated and exclude value added tax at the legal rate, any customs charges, import duties, local or similar taxes or any type of charges which might be raised on a local or national level. Otherwise, prices include delivery free domicile within Germany, unless otherwise provided for in the offer.

4.2 The Customer undertakes to pay the purchase price immediately, however not later than within 3 days after receipt of the goods and the invoice. The Customer shall be in default after expiry of this period.

4.3 Any right of retention of the Customer shall be excluded, unless it is based on the same contractual relationship and any set-off with disputed claims or claims which have not been found to be final by a court shall be excluded. We shall be authorised to prevent the exercise of the right of retention by the provision of a security, even by way of a guarantee.

4.4 We are authorised, at any time, even after the conclusion of the contract to request a sufficient security – to secure our claims, even those which are not yet due – and to make any further services on our part dependent on such. That shall apply, in particular, if any doubts arise regarding the Customer’s solvency, or any deficient cover or lack of liquidity or if the original credit volume is increased.

4.5 We shall be entitled to separately bill partial deliveries.

4.6 If our payment terms are not fulfilled, or if other events occur at the Customer which raise doubts about their creditworthiness or if we do not become aware of such circumstances which existed prior to the conclusion of the contract until later, we may, notwithstanding our other rights and for the duration of such payment default, make further deliveries under the same legal relationship dependent on prepayments until any claims outstanding under such relationships were settled, and/or cancel the residual quantity, in full or in part, and/or withdraw from existing contracts after a dunning letter with grant of a grace period which expired without success, where no threat of rejection shall be required. No rights will arise for the Customer in such situations.


Art. 5 Transfer of Risk, Delivery, Force Majeure

5.1 The risk of an accidental destruction and the accidental deterioration of the goods shall be transferred to the Customer upon hand-over to the forwarder, the transporter or any other person appointed for exercising the shipment, unless explicitly otherwise agreed between the Parties.

5.2 Specified delivery periods shall be non-binding, unless otherwise agreed in writing. In case of non-binding or approximated (approx. rough, etc.) dates or periods of delivery, we will make all efforts to comply with them. Delivery periods agreed bindingly in writing will commence upon receipt of the order confirmation by the Customer, however not, before all details for exercising the order have been clarified and unless all other preconditions to be fulfilled by the Customer are fulfilled; the same shall apply to delivery dates. Deliveries prior to the expiry of the delivery period are permitted.

5.3 If we are prevented from making a timely delivery by the occurrence of unforeseeable events or events not attributable to us – e.g. force majeure (inter alia explosion, fire, flood, civil unrest, measures by governments, labour disputes, pandemics, epidemics), including the interruption of the manufacturing, shipment or transporter caused thereby – the delivery period shall be prolonged by the duration of such impairment. In this case, we shall be obliged to immediately inform the Customer about the impairment and its probable duration.

5.4 Packaging for transport and other packaging in accordance with the German Packaging law (VerpackG) shall not be taken back. Pallets and other loading aids shall be exchanged with those of the same quality by the Customer. Our transport packaging is not liable to make contributions to the system and is intended exclusively for use in business to business transactions (B2B), inter alia due to the labelling, and the Customer must thus not provide it to any end customer (B2C). The Customer will be liable for damage and expenses arising for us due to violations of the above obligations.


Art. 6 Quality of Goods, Warranty, Duty to Report Complaints

6.1 In case of any defects in the goods, we will fulfil our warranty obligation initially by repair or delivery of replacement, at our choice. If such subsequent fulfilment fails, the Customer may generally request, at their choice, a reduction of the remuneration (reduction) or cancellation of the contract (withdrawal). The Customer shall, however, not have a right of withdrawal in case of an only minor incompliance with the contract, in particular in case of minor defects. The right to assert damages pursuant to Art. 8 of these GTCSD shall remain unaffected thereby.

6.1 The Customer shall inspect the goods immediately after receipt, insofar as that is reasonable in the proper course of business, and shall, if any defect is detected, notify DEH, in writing, immediately, not later than within 10 days after delivery of the goods (cf. the special conditions applicable to food set out in Art. 7 hereof). Negotiations about any claims for defects will not constitute a waiver of DEH of the claim that the complaint was not made in due time, was not justified materially or was otherwise insufficient. Otherwise, Sec. 377 of the HGB [German Commercial Code] shall apply, in particular regarding the legal consequences of a complaint for defects not made in due time.

6.2 Any complaints regarding the quantity, obvious damage caused by transport or other defects which are already recognisable upon delivery must, in addition, be confirmed by the deliverer on the freight documents, including signature, already upon receipt of the delivery. The Customer shall ensure that such a confirmation will be made.

6.3 The manufacturer’s product description shall generally be deemed to be the sole agreement as to the quality of the goods. Any public statements, promotions and advertising made on the part of the manufacturer or on our part will not constitute any promise regarding the quality of the goods under the contract. Any documents, drawings, weight information, samples, etc. which might be enclosed in our offer shall only be decisive as approximations. We accept neither guarantees nor do we assume any procurement risk, unless that is explicitly identified, in writing, as “legally guaranteed” or “acceptance of the procurement risk”. Any reference to standards and similar technical regulations does not constitute a statement on the fitness of our products for a certain purpose, unless that is identified explicitly as a “characteristic of the product”. Any manufacturer guarantees – which apply exclusively in the relation between customer and manufacturer – shall remain unaffected thereby.

6.4 The Customer shall not be entitled to any right of withdrawal, right to returns or order cancellations outside of the warranty rights (hereinafter referred to as “returns”). We accept returns exclusively at our sole discretion, as a gesture of goodwill and pursuant to the provisions below. Returns will generally only be accepted after a prior notification and agreement on the return, where the original delivery documents shall be enclosed and where a precondition on our part is the perfect condition of the goods. We reserve a general right to reject such returns. If we agree with a return or cancellation of the order, the Customer shall bear any and all expenses required for the purpose of handling, such as e.g. return packaging or delivery costs.

6.5 Claims for defects shall become statute barred within one year after the transfer of risk pursuant to Article 5.1 of these GTCSD. That shall not apply in cases pursuant to Article 8.2 of the GTCSD; the legal provisions shall apply insofar.


Art. 7 Inspection of Food

7.1 If the goods are food, the following special provisions shall apply to the inspection by the Customer which shall prevail in case of contradictions with the above Articles 6.1 and 6.2.

7.2 The Customer shall perform the verification of the marketability under food laws in compliance with the Customer’s duty of care under food laws for each delivery, within 24 hours after receipt of the delivery, however not later than prior to the further processing, unless that is unreasonable in their proper course of business. The Customer shall, in addition, inspect deep frozen and fresh products for open defects immediately after delivery, demonstrably report complaints to the deliverer, if necessary, and – after a coordination with us by phone – return them. Sec. 377 of the HGB shall apply otherwise, in particular regarding the legal consequences of an untimely complaint for defects.

7.3 Furthermore, the Customer must not further process the goods nor provide or sell them to any third parties in case of a defect which restricts the marketability of the goods under food laws (which also includes a defective description of the ingredients). The Customer shall, insofar, also take their own suitable precautions which prevent any accidental surrender, further processing or resale.

7.4 If a defect exists in any individual item belonging to an entire delivery which restricts or prevents the marketability of the goods under food laws pursuant to the above provisions, the Customer shall be obliged to verify, at least by making suitable spot checks, whether the detected defect occurred as a single event or whether it constitutes an error in production and treatment which affects the entire batch of the goods. The Customer shall, in any case, notify us immediately and shall send any complained products to us for the purpose of a supplementary verification.


Art. 8 Limitations of Liability

8.1 We shall not be liable, in particular not for claims of damages of the Customer or claims for reimbursement of expenses – regardless of the legal reason – and/or a violation of duties arising from the contractual relationship and from tort.

8.2 The exclusion of liability above shall not apply

-     to own intentional or grossly negligent violations of duties and intentional or grossly negligent violations of duties
      by legal representatives or vicarious agents;

-     to the violation of essential contractual duties; essential contractual duties are those,
      the fulfilment of which enable the performance of the contract and on which the Customer may rely;

-     in case of a violation of life, limb and health, also by legal representatives or vicarious agents;

-     in case of a default, insofar as a fixed date of delivery and/or service was agreed;

-     insofar as we accepted a guarantee for the quality of the goods or the existence of a performance-related success
      according to these GTCSD or if we accepted a procurement risk;

-     in case of a liability under the product liability act or any other mandatory legal liability.

8.3 In case that we or our vicarious agents are only subject to a slight negligence or if no case set out under Article 8.2, bullet points 1., 3., 4., 5. and 6 applies, we shall also be liable in case of a violation of essential contractual duties, limited to the damage which was foreseeable upon conclusion of the contract or which is typical for the contract

8.4 Any liability on the part of DEH going beyond the one above shall be excluded. Any liability for damage which arose exclusively due to unsuitable or improper use, in particular non-compliance with the instructions for use enclosed with the goods or attached to the goods, or based on changes, repairs or repair attempts made by the Customer, any buyer of the Customer of third parties engaged by the Customer or their buyer shall be excluded.


8.5 The exclusions or restrictions of liability pursuant to the above Articles 8.1 to 8.4 and 8.6 apply, to the same extent, in favour of executive or non-executive employees and other vicarious agents and the subcontractors of DEH.

8.6 Insofar as the Customer is entitled to claims for damages under this Article 8, such shall become statute barred upon expiry of the period of limitation applicable to warranty claims pursuant to Art. 6.5 hereof. Art. 8.2 of these GTCSD shall apply, mutatis mutandis.

8.7 The above regulations will not result in a reversal of the burden of proof.


Art. 9 Data Protection

DEH’s “Privacy Notice for Contract Partners“ as attached hereto shall apply.


Art. 10 Final Provisions

10.1 Place of fulfilment for any and all duties of the Customer shall be at the registered office of DEH.

10.2 The laws of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on the International Sale of Goods (CISG).

10.3 The exclusive place of jurisdiction for all disputes arising from this contract shall be at our registered office. We shall, however, also be authorised to sue the Customer at their general place of jurisdiction.

10.4 Any oral agreements made after the conclusion of the contract, in particular subsequent amendments and supplements of these GTCSD – including of this written form clause as well as side agreements of any type – shall be made in writing to be effective (email, fax suffices). The priority of any individual agreements as defined in Sec. 305 b of the BGB shall remain unaffected thereby.