Conditions of Purchase | cpf-distribution

Conditions of Purchase

General Conditions of CPF Distribution GmbH

Stand: 1. Januar 2022

§ 1.	Application
1.1	The following general terms and conditions of purchase shall apply to all commercial relations of CPF Distribution GmbH (hereinafter: „purchaser“) and its seller and supplier (hereinafter: „contractual partner“), under which the contractual partner delivers goods or performs services.
1.2	These general terms and conditions of purchase shall apply exclusively – also to future contracts. Deviating, contradicting or supplementary general terms and conditions of the contractual partner shall only become part of the contract insofar as purchaser expressly agrees to them in writing. This requirement of express written agreement shall also apply in case of unconditional acceptance of the contractual partner‘s goods even in case purchaser is aware of the contractual partner’s general terms and conditions.
1.3	Any rights of purchaser against the contractual partner according to statutory law that go beyond these general terms and conditions of purchase shall remain unaffected.

§ 2.	Conclusion of contract and Delivery
2.1	A contract with purchaser shall be concluded if the order is issued by purchaser in writing. Unless expressly specified by the contractual partner in the individual case, the contractual partner’s offer shall be binding for a period of four weeks after receipt of the offer by purchaser. Silence of purchaser following an offer of the contractual partner shall not be considered as approval or acceptance.
2.2	In case purchaser issues an order without a prior offer of the contractual partner, the contract shall be concluded by written acceptance of the offer by the contractual partner. The contractual partner shall declare written acceptance within a week following receipt of the order.
2.3	In case contractual partner intends to change or to stop the production of the contractual goods, purchaser shall notify purchaser immediately and in writing, provided that the last order does not date back more than 6 months. Contractual partner shall ensure that the contractual goods are deliverable for a period of at least 6 months after the notice to purchaser.

2.4	The agreed time or period for delivery or service shall be binding. The goods need to arrive at the place of fulfilment within the agreed period of time. The contractual partner shall be obliged to immediately notify purchaser in writing and to state the reasons if contractual partner cannot meet the agreed time of delivery/performance. Purchaser’s acceptance of a new delivery date shall not constitute a prolongation of the contractually agreed time of delivery or performance. Any rights to rescission and damages, in particular damages for default of performance, shall remain unaffected.
2.5	In case of default of performance, purchaser shall be entitled to claim a contractual penalty fine of 0,2 % of the net price per working day, but not exceeding a total of 5% of the net price of each delivery/service. Purchaser shall be entitled to claim this contractual penalty fine alongside or instead of the fulfilment of the contract and as a minimum sum of the damages the contractual partner has to pay according to statutory law; rights to further compensation for damages and a potential right to rescind the contract shall remain unaffected. The contractual penalty fine has to be deducted from other claims for damages In case purchaser accepts the delayed performance, the contractual penalty fine will be claimed with the last payment rate at the latest.
2.6	In case the contractual partner does not fulfil an essential delivery/performance under a multi-delivery contract or a partial delivery contract at all or not at the right time, purchaser shall be entitled, following fruitless expiration of a reasonable time limit, to rescind the whole contract and to claim damages instead of performance.
2.7	The delivery/performance of parts of the contractual goods or of a higher or reduced quantity of goods shall not be permitted if purchaser has not given explicit written approval.

2.8	The contractual partner shall not entitled without prior written approval by purchaser to let performance be rendered by a third party. Suppliers of the contractual partner shall be regarded as contractual partner’s vicarious agents.
2.9	The contractual partner shall bear the risk of procurement with regard to its own supply by its partners.
2.10	Unless expreslly agreed to the contrary, the delivery shall be conducted at costs and at risk of the contractual partner to the place of performance stated in the order. In case no place of performance is indicated the delivery/performance shall be rendered at the refrigerating storage house Am Altenwerder Kirchtal 4 in 21129 Hamburg, Germany.
2.11	For each delivery a delivery note including date, content of the delivery, order number of purchaser and date of the order as well as the type of packaging and the weight shall be attached. Also a dispatch note with the same content shall be sent to the purchaser. In case the delivery note or the dispatch note is missing or incomplete, the purchaser shall not be liable for any delay in the process or the payment resulting thereof.

2.12	The contractual partner guarantees that he fulfills all relevant provisions on delivery and declaration as well as any relevant export and import provisions. He will provide the necessary documents to purchaser on time. Inter alia, but not limited to this, the contractual partner ensures the compliance with the applicable rules and regulations and provides the purchaser with the documents required for the usage of contingents in this regard. The contractual partner will indemnify the purchaser for any consequential damages, inter alia, but not limited to, loss of bond or differences in value, in case these documents are not available to purchaser at the time of delivery.
2.13	The contractual partner ensures the traceability of the delivered goods and provides the relevant documentation to the purchaser.
2.14	The risk of accidental loss or accidental damage to the goods shall only be transferred to purchaser if and when the goods are handed over to purchaser at the place of fulfilment or when they are accepted by purchaser.

§ 3.	Prices, Payment
3.1	The price stated in the order shall be binding and shall include all performances and supplementary performances as well as all supplementary costs of the contractual partner. Prices shall generally be in Euro and shall include statutory VAT, unless VAT is declared separately on the invoice.
3.2	The agreed price shall be due for payment within 60 calendar days after complete delivery and performance as well as the receipt of a correct invoice. The payment shall be deemed in time if purchaser instructs its bank to transfer the payment at the last day of the time limit.
3.3	Each invoice always shall include the purchaser’s order number and the date of order. In case of an incorrect invoice or in case of non-performance or malperformance purchaser shall be entitled to delay the payment until due fulfilment of the contract/receipt of a correct invoice without losing any early payment discounts.

§ 4.	Offset, Right to Retain
4.1	The contractual partner shall be entitled to offset only in and insofar as the contractual partner’s counterclaim is undisputed or assessed in a legally binding judgement.
4.2	The contractual partner is entitled to claim retainer rights only to the extent such rights are based on the same contractual relationship.

§ 5.	Warranty
5.1	The contractual partner guarantees that the goods/services are free of material defects and defects in title/legal defects. In particular, but not limited to this, contractual partner guarantees that the goods/services comply with the agreed quality/condition as well as with the description of the product and other samples and specifications provided.
5.2	The contractual partner further guarantees that the goods/services are in conformity with the contract in every respect, in particular regarding the composition and labelling, and that they may be placed on the market in Germany unconditionally.
5.3	Regarding the delivery of packaging material the contractual partner also guarantees that the packaging is well-suited for the contact with foodstuff and that such contact does not lead to negative effects on the foodstuff.

5.4	Alongside these guarantees purchaser shall be entitled to its statutory rights. Deviating from sec. 442 para 1 s. 2 BGB (German Civil Code) purchaser is entitled to its statutory rights without restriction also if purchaser was not aware of the lack of conformity of the goods/services at the time of the conclusion of the contract due to gross negligence.
5.5	Purchaser shall be entitled at its choice to claim either repair or replacement of the goods/rendering of due performance. In case the contractual partner does not fulfil the aforementioned obligation within a reasonable time limit set by purchaser, purchaser shall be entitled to repair or replace the defective goods on its own at the supplier’s expense. If purchaser uses its own workforce to repair the goods, this can be invoiced at common market prices. Further statutory claims for defects remain unaffected.
5.6	If it is unreasonable for purchaser to wait, in particular due to special urgency or imminent danger of disproportionate damages, no time limit for the right to repair or replacement shall be needed. Purchaser will immediately notify the contractual partner in case of such unacceptable circumstances.
5.7	In case the goods are not in conformity with the contract, contractual partner shall bear all costs incurred for the detection of the defect as well as for the repair or replacement of the defective goods irrespective of its fault, also including, but not limited to, the costs arising for purchaser, in particular costs of analysis, storage and labour as well as the costs for commissioning a laboratory. These rules shall also apply in case it turns out that the goods were not defective. Purchaser’s liability for unjustified claims for remedies is reduced to cases in which purchaser was either aware of the absence of the defect or not aware due to gross negligence. Complaints about defective goods, that the contractual partner receives within a period of 5 working days after delivery of the goods or in case of hidden defects after they have been detected,

5.8	shall always be deemed to be immediately within the meaning of § 377 HGB.
5.9	For the case, that the goods are delivered directly to a customer of the purchaser with knowledge of the contractual partner, the parties agree, that the inspection for defects according to § 377 HGB may take place after reception of the goods by the customer and through the customer and that any eventual defects may be reported by the customer within the period set out in the paragraph 8 above.

§ 6.	Limitation
6.1	The period of limitation for claims for defective goods or defect of title is 36 months after passing of the risk. Insofar an acceptance was agreed upon the limitation period starts with the acceptance.
6.2	If contractual partner replaces the defective goods or repairs them, the limitation period for the repaired or replaced goods shall begin anew after the goods are repaired or replaced. In case of repair, this shall only apply to claims following from the same defect or resulting from a defective repair.

§ 7.	Compliance with Food Law Regulations
7.1	The contractual partner shall be obliged to comply with the relevant national and European legal regulations (in particular, but not limited to, the German Food and Feed Code (LFGB)). Contractual partner shall also comply with other regulations and directives (i.a. of trade and professional associations), if they have been named by purchaser to contractual partner.
7.2	The contractual partner shall indemnify purchaser and hold purchaser harmless from and against any and all claims by third parties arising out of breach of the provisions in clause 7.1 at first request and shall reimburse purchaser for all necessary costs (including, but not limited to, legal costs and court fees) that might arise in this context.

§ 8.	Product liability
8.1	The contractual partner shall indemnify purchaser and hold purchaser harmless from and against any and all claims of third parties that relate to personal injuries or damages of goods caused by a defective product delivered by the contractual partner. The contractual partner shall reimburse purchaser for all costs and expenses caused by or in relation with claims of third parties, including, but not limited to, those of product recalls carried out by purchaser. The purchaser will notify the contractual partner about the content and the extent of the product recall – insofar as possible and reasonable – in advance and will give the contractual partner an opportunity to state its point of view. Further statutory rights remain unaffected.
8.2	The contractual partner shall maintain a product liability insurance for all damages resulting from defective products including, but not limited to, the risk of product recalls for its own account with sufficient coverage for personal injuries, damages to goods and financial losses (in principal at least € 5 million for each case of personal injury or financial loss) until the limitation period for all claims that may result from the contractual relationship elapses.

§ 9.	Force Majeure
9.1	The purchaser shall not be responsible for the impediment of the receipt of goods or acceptance of the goods/performance due to force majeure beyond purchaser’s control. Cases of force majeure shall be inter alia, but not restricted to these examples, strike, lock-out, mobilisation, war, blockade, export and import bans and other state intervention regardless of whether they occur on the part of the purchaser or on the part of purchaser’s vicarious agents.
9.2	Events of force majeure entitle the purchaser, following immediate notification to the contractual partner also regarding the expected duration of the hindrance, to delay the receipt of goods or acceptance of the goods/performance insofar as well as for a reasonable, following period of adjustment. Alternatively, the purchaser may in such cases rescind the contract, partially or wholly, because of the part not fulfilled. In case the hindrance persists for an unreasonable period of time (usually more than two months), the contractual partner may, after setting a reasonable additional period of time, rescind the contract with respect to the yet unfulfilled part of the delivery. In such case, any amounts paid in advance shall be reimbursed to the purchaser without delay.

§ 10.	Retention of title, Assignment and Right to summation
10.1	The transfer of property of the goods to purchaser shall in principal be unconditional and without respect to the payment of the price. If in individual cases purchaser accepts an offer of the contractual partner to transfer the property on the condition of payment of the price, the retention of title lapses at the latest with the payment of the price for the delivered goods. In such case purchaser shall remain entitled also before payment of the price to resell the goods and to receive the due payment in its own name in good business practice while assigning the claims resulting thereof to the contractual partner. All other forms of retention of title, in particular an extended retention of title and a retention of title referring to the processing of goods, are explicitly excluded.
10.2	Assignments without prior written approval by purchaser are invalid. § 354a HGB remains unaffected.
10.3	The contractual partner shall be entitled to offset only in and insofar as the contractual partner’s counterclaim is undisputed or assessed in a legally binding judgement.

10.4	The contractual partner is entitled to claim retainer rights only to the extent such rights are based on the same contractual relationship.

§ 11.	Secrecy
11.1	The contractual partner shall be obliged to keep all confident information originating from the cooperation strictly confidential and to process this information solely for the purposes of the contractual relationship. This includes in particular requests for information and offers, technical data, the amount of contractual goods, prices, information about products and product development, information about science and development activities, all business data and all working material provided by purchaser.
11.2	This confidentiality agreement shall continue to apply for five more years after termination of the contractual relationship.

§ 12.	Written form requirement
12.1	All modifications and amendments to the contract must be in writing in order to be valid. This agreement on written form may only be set aside by written agreement.
12.2	Insofar these general terms and conditions of purchase require written form, the transfer via email or fax is sufficient.

§ 13.	Applicable law, Jurisdiction
13.1	All contracts with the seller shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods), unless explicitly agreed upon to the contrary in writing between the parties.
13.2	Place of fulfilment for delivery or performance shall be the place of performance indicated by purchaser. Place of payment for the payment duties of purchaser is Hamburg.
13.3	Exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Hamburg. This shall also apply in case the contractual partner has no general place of jurisdiction in the Federal Republic of Germany or moved its domicile abroad after the conclusion of the contract. Nonetheless, the purchaser shall be entitled to bring a claim against the contractual partner at any other statutory place of jurisdiction.