General Terms of Business (Allgemeine Geschäftsbedingungen)
The Buyer assures that his command of the English language enables him to read, understand and adhere to these General Terms of Business (in German / auf Deutsch: Der Käufer bestätigt und sichert zu, dass er/sie über ausreichende Englischkenntnisse verfügt, um diese Allgemeinen Geschäftsbedingungen zu lesen, zu verstehen und zu akzeptieren).
Definitions
“General Terms” refers to this document;
“ABI” refers to the private company with limited liability Abbott Blackstone International GmbH under German Law, which is the supplier/seller of goods;
“Buyer” the person or entity purchasing the goods, including any successors thereof;
“Parties” refers to ABI and Buyer together;
“Offer” refers to all written quotations, proposals and other offers made by ABI to Buyer;
“Contract” refers to the written contract or Sales Order Confirmation (SOC) between Parties and signed by parties;
“Price” refers to the total value of the Contract to be received by ABI without deductions or charges;
“Goods” refers to food ingredients or related goods, such as, but not limited to nuts, dried fruits, superfoods, grains, seeds, spices, oils, fats and syrup, supplied and/or delivered for or by ABI to Buyer;
“Calendar Days” refers to all days of a year including weekends, national holidays, religious holidays or other non- working days.
Applicability
The General Terms shall apply to all Offers, agreements and Contracts of ABI. These General Terms shall apply with the express rejection of Buyer’s general terms, howsoever described.
The text of the Contract prevails over any commercial proposal, conversation or correspondence before the date of signing of the Contract. The text of the Contract also prevails over the General Terms. Invalidation or un enforceability of any of the provisions of the Contract and/or the General Terms does not impair the validity of the remaining provisions.
Offer, Order and Contract
Correspondence via e-mail is accepted by the Parties as legally binding correspondence. Descriptions and prices in offers are given subject to availability of goods and are non-binding until explicitly confirmed in writing. The Buyer cannot derive any rights from any errors in an Offer.
If an Offer is accepted by the Buyer the Contract is concluded unless ABI revokes the Offer within five (5) Calendar Days of receipt of the Buyer’s acceptance.
A purchase order placed by the Buyer is binding; the Contract will be concluded at the moment of confirmation of the order by ABI.
Offers are once-only and will not apply to repeat orders.
Contracts concluded with ABI are conditional in the event of shortages and/or other circumstances beyond ABI’s control that make delivery impossible.
Certification
The products supplied by Abbott Blackstone International GmbH are procured from carefully chosen suppliers. Our suppliers either possess a GFSI recognized certification or are carefully vetted to make sure they fulfil food safety standards. With the purchase the buyer agrees that the seller may deliver products that come from suppliers which may not have a GFSI recognized certification. This agreement will be considered valid until it is revoked by the buyer.
Delivery
Unless otherwise confirmed by ABI in writing, delivery is EXW Hamburg, Germany. (Incoterms 2010).
Should ABI deliver the goods to the Buyer, all dates quoted for delivery of the Goods are approximate only, and ABI is not liable for any losses or damages suffered by the Buyer due to any delay in delivery or non-delivery of the Goods howsoever caused. Should the Buyer not be able to take timely possession of the goods or fail to provide adequate delivery instructions, ABI may continue to transport and store the Goods at the Buyer’s risk and cost until actual delivery or cancel the Contract or any part thereof.
Should the Buyer fail to pick up the released Goods as agreed, ABI may continue to store the Goods or cancel the Contract or any part thereof.
Partial shipment or partial delivery and/or transhipment is permitted. Each partial shipment or delivery is a fulfilment of a separate and independent Contract.
Risk of damage or loss of the Goods passes to the Buyer upon receipt by him or his contracted agent/forwarder/accomplice as per Incoterm agreed in the Contract.
Minor deviations in the deliveries effected by ABI in terms of quantities, weight and composition specified, are not a failure or default.
Examination and Notice
Immediately upon receipt of the Goods the Buyer is to carry out a thorough examination of the Goods in order to ascertain whether the Goods are in conformity with the Contract.
The Buyer loses the right to make claims against ABI for non-conformity or loss, if the Buyer fails to notify ABI in writing and with detailed documentation of any non-conformity or loss of the Goods within seven (7) Calendar Days of receipt of the Goods.
Goods received by the Buyer can only be returned to ABI after written consent from ABI and under conditions to be determined by ABI. The costs of the return are at the Buyer’s expense unless the Buyer and ABI have established that the Goods are non-conform due to a liability of ABI.
If the Goods are determined to be non-conform due to circumstances for which ABI is liable, the Buyer may – subject to the time limits given above and the provision of evidence of the non-conformity – reject such Goods whereafter ABI at its discretion may either issue a credit note in respect of such non-conforming Goods, make a deduction in the Price of the Goods corresponding to the reduced value of the Goods, or replace the non-conform Goods. No further remedy is available to the Buyer in the event of nonconformity of the Goods, howsoever caused. Non-conforming Goods rejected by the Buyer are the property of ABI and shall, at ABI’s request, be made available to ABI. Unless ABI elects to take back the non-conform Goods, such Goods shall be disposed of by the Buyer for ABI’s risk and account in the manner directed by ABI, always provided that the Buyer shall use all commercial efforts to mitigate the costs of such disposal.
Prices and Payment
The Price is fixed and will not be subjected to any changes.
The currency of the Price and all payments is in EURO, unless another currency is stated in the Contract or invoice.
Unless otherwise agreed, the Price does not include value added tax (VAT), import duties, other taxes and charges, costs of quality inspection and/or testing, banking or transferring costs, costs of loading and unloading, packaging, transport, insurance and any other costs.
All payments are due as specified on the invoice. If no payment terms are included in the Contract, all payments are due seven (7) Calendar Days after invoice date.
Whatever the means of payment used, payments are deemed to have been effected when ABI’s account has been fully and irrevocably credited.
All payments are to be effected free of any deductions or charges to the account of ABI, including cash discounts (“Skonto”) unless explicitly agreed in writing.
If the Buyer fails to make any payment by any stipulated date:
ABI is entitled to suspend the Contract’s performance or the delivery of Goods of a separate contract until ABI receives all due payments.
ABI is entitled to report the Buyer’s late payment to ABI’s credit insurance and/or collection office.
ABI is entitled to charge a fixed collection fee of 15% of the outstanding payment. This applies automatically and without prior written notice.
ABI is entitled to interest from the day on which the payment was due until the day such payment was received at an interest of at least one per cent (1%) per month. Interest on late payment is considered partially as compensation and partially as penalty for default of Buyer. This applies automatically and without prior written notice.
If ABI has cause to suspect that the Buyer will be unable to perform its obligations under the Contract, ABI is entitled to terminate the Contract with immediate effect by notice in writing in the following events:
If after the conclusion of the Contract ABI doubts the necessary liquidity of the Buyer and the Buyer cannot dispel such doubts by providing adequate supporting documents or sufficient security;
- If a receiver, trustee, conservator or liquidator of the Buyer of all or a substantial part of its assets is appointed;
- If the Buyer is declared bankrupt or granted suspension of payments, or if an application to that end is filed; or
- If the Buyer’s business is liquidated or discontinued.
In the event of termination of the Contract by ABI, all amounts receivable from the Buyer become immediately due and payable.
Extended and Prolonged Retention of Title
Title to the delivered Goods only passes to the Buyer once ABI has received all payments which have been invoiced to the Buyer in connection with any delivery of Goods by ABI as specified above.
Until ABI has received all payments invoiced to the Buyer, the Buyer is not permitted to mortgage, transfer, hire, pledge or however this may be described, loan or dispose of the Goods, either in an original or processed state, except within the normal conduct of its business.
Should the Buyer process or mix the Goods delivered by ABI with other goods, prior to a full payment, the Buyer transfers his ownership of these newly processed goods to ABI to the degree of the open invoice value. The buyer will store these co-owned processed goods at no cost to ABI.
This retention of title does not affect the passing of liability, responsibility, costs and risks under clause “Delivery”.
In the event of late payment, ABI is entitled to repossess or arrange for the return of any Goods delivered without further notice of default and without legal intervention.
The Buyer authorizes ABI in advance to access all sites in and around the Buyer’s business to this end.
Indemnification, General Liability and Product Liability
Unless otherwise confirmed by ABI in writing the Goods comply with the national legal requirements applicable in Germany and/or the European Union. ABI is not liable for the compliance of the Goods with the requirements of statutes, administrative rules and/or regulations applicable in the country of delivery and undertakes no risk or liability in respect hereof. The Buyer shall be responsible for complying with any and all legislation, administrative rules and/or regulations governing the importation of the Goods into the country of distribution and the subsequent processing, marketing, distribution, resale and/or use hereof.
ABI SHALL NEVER BE LIABLE FOR ANY OPERATING LOSS, LOSS OF ORDERS, LOSS OF INCOME, LOSS OF PROFITS, LOSS OF TIME, LOSS OF PUBLIC SUBSIDIES, LOSS OF GOODWILL OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER, HOWSOEVER CAUSED.
ABI is not liable for the fitness for intended purpose of the Goods and the Buyer undertakes the risk and liability that the Goods are suitable for the purpose for which they are marketed and/or used by the Buyer.
ABI is not liable for damages incurred by Buyer due to improper handling, natural shrinkage, dampness, excessive heating of rooms, other exceptional weather and temperature effects as well as insect and beetle infestation with regard to the Goods.
Unless otherwise confirmed in writing by ABI, ABI is at all times without incurring liability entitled to modify or amend the specifications, production processes, packaging and/or labelling of the Goods without notice to the Buyer.
Where the performance of a Contract becomes onerous on ABI due to the occurrence of events that fundamentally alter the preconditions of the Contract either because the costs of performance have increased or the performance for other reasons is subject to hardship ABI shall be entitled to withhold performance or be released of such Contract without incurring liability.
ABI’s cumulative overall liability in connection with the Goods, regardless of the kind of liabilities and/or non- performances, under the Contract shall not exceed a maximum overall amount equal to 100% (one hundred percent) of the Price paid to ABI under the Contract or the maximum overall amount that ABI’s liability insurer will pay out in the particular case, whichever is less, even if held to amount to a breach of warranty. Buyer shall indemnify defend and hold harmless ABI for such claims over this percentage/amount.
Any claims of the Buyer under this clause to ABI are void within one (1) year of occurrence of the alleged breach of ABI’s obligations or defect of the Goods.
The Buyer agrees to hold harmless and indemnify ABI, its affiliates and representatives against and from all costs, losses, liabilities, damages and expenses arising out of or resulting from the death of or injury to any person or from any damage to or loss of property due to the acts and/or omissions of the Buyer.
ABI is only liable for physical injury and/or damage to property caused by the Goods if it is proven that the injury or damage is attributable to ABI or such liability follows from applicable mandatory law.
In the event of a recall of the Goods instigated by ABI or a competent authority the Buyer shall in consultation with ABI take all necessary actions that are appropriate in the circumstances. These may include, without limitation, to stop delivery of the Goods and to recall the Goods from warehouses, distributors and retailers. The Buyer shall not interfere with the recall proceedings, which shall be controlled by ABI only, and shall not make public any actual or planned recall of the Goods, except as provided by applicable mandatory law or as instructed by ABI.
Intellectual Property Rights
All intellectual property rights or other proprietary rights in and to the Goods or related to the Goods, including but not limited to their formula, design, documentation, packaging and know-how, and any modifications or developments thereto, as well as the trademarks and trade names under which the Goods are marketed are and shall remain the sole and exclusive property of ABI and the Buyer acquires no rights, title or license therein or thereto. If the Buyer challenges, harms or prejudices the validity or enforceability of such proprietary rights, ABI is without liability entitled to immediately terminate any cooperation between the parties with immediate effect and to terminate any existing Contract.
Force Majeure
ABI cannot be held liable for a failure to perform any of ABI’s obligations or deemed in breach thereof, if ABI shows that the failure was due to an impediment beyond the control of ABI. The occurrence of such an event, which is understood as an event of force majeure, relieves ABI from damages, penalties and other contractual sanctions.
An event of force majeure includes in particular, but is not limited to strikes, lockouts, labour disputes, interruptions of operations, explosion, fire, natural disasters, governmental measures and restrictions imposed by national or foreign authorities, confiscation, embargoes, currency restrictions, lack of transport, veterinary diseases, malicious tampering, acts of terror, environmental measures and defective or delayed supplies from sub-contractors.
In the event of force majeure, ABI is entitled to postpone the time for performance of the Contract for such period as may be reasonable, thereby excluding the Buyer’s right, if any, to terminate or revoke the Contract.
ABI is entitled to terminate the Contract by notice in writing to the Buyer without judicial intervention if performance of Contract is suspended under the preceding clause for more than six (6) months. In such event, the Buyer is not entitled to compensation of damages or repayment of any kind whatsoever, nor does he have the legal right to claim performance of the Contract.
Transfer of Rights; Third Parties
The Buyer may not transfer his rights and/or obligations ensuing from the Contract with ABI to third parties or have them serve as security regarding claims by third parties, without the prior written consent of ABI.
ABI is authorized to engage third parties in the performance of the Contract on behalf of and at the expense of the Buyer, if there is cause to do so in ABI’s opinion or if such ensues from the Contract.
Miscellaneous
If any provision contained in these General Terms should be held to be void or unenforceable, the validity of the other provisions shall not be affected thereby.
No waiver by ABI of any breach by the Buyer, or failure by ABI to insist on the Buyer’s performance of obligations are to be considered a waiver of any subsequent breach of the same or any other provision.
The Buyer is to hold in confidence and not disclose to any third party any confidential information disclosed by ABI. The Buyer shall not use such information for the Buyer’s own benefit or the benefit of any third party.
Nothing in the relationship between ABI and the Buyer creates an agency, partnership or joint venture between the parties and in specific the Buyer is not be entitled to make any representation or warranty on behalf of ABI.
The Buyer accepts that both English and German are equally valid and binding languages both contractually as well as commercially.
Governing Law and Jurisdiction
Any disputes arising out of or in connection with any Contract or Offer, quotation or order confirmation issued by ABI or in connection with the delivery of the Goods to the Buyer, including but not limited to disputes relating to the construction of these General Terms, shall be settled in accordance with German law.
The United Nations Convention on Contracts for the International Sales of Good shall apply.
Any dispute shall be settled before the courts of law in Munich, Germany. ABI is at all times at its discretion entitled to initiate legal proceedings against the Buyer in the country in which the registered office of the Buyer is located.
