Conditions

General Terms and Conditions of Delivery of Macalea GmbH & Co. KG
and Macalea Natura GmbH & Co. KG

§ 1 Validity of the Terms and Conditions

The following General Terms and Conditions of Delivery (hereinafter referred to as well as “Terms and Conditions”) shall apply to all our deliveries, services and offers in business transactions with entrepreneurs (section 14 subsection 1 German Civil Code), as well as with legal entities under public law and public-law special funds. These Terms and Conditions do not apply to consumers in the sense of section 13 German Civil Code.
Agreements deviating from our Terms and Conditions shall only be effective if they are confirmed by us in text form.
In addition to the following terms and conditions, the COFREUROP terms and conditions shall apply to trade in fruit and vegetables, unless they are amended or supplemented by the following terms and conditions. The following terms and conditions shall take precedence in all cases. You can of course request the COFREUROP terms and conditions from us.

§ 2 Conclusion of contract, product characteristics

Our offers are subject to change. The order placed by the customer is a binding offer. We are entitled to accept this offer within two weeks by sending an order confirmation or delivery of ordered goods.
Oral agreements require our confirmation in text form to be valid.
We reserve the right to make occasional changes to the specifications products. We will only make such changes for valid reasons, in particular because this is necessary in view of current harvests or changing regulatory requirements. Without the customer’s consent, however, we shall not make any changes which could permanently disturb the contractual balance between the customer and us.

§ 3 Delivery Period, Transfer of Risk

Compliance with our delivery obligation presupposes the timely and proper fulfillment of the customer’s obligations.
Deliveries are made at the risk of the customer to the shipping address specified by him. This also applies if the delivery is made from a different location than our warehouse. We are not obliged to make deliveries abroad; If no domestic shipping address is given, we can also make the ordered goods available for collection.

§ 4 Terms of Payment/Prices

Our invoices are due for payment within 14 days from the date of invoice without deduction, unless otherwise stated in our order confirmation.
The customer shall only be entitled to set-off rights if his counterclaims have been awarded in a legally binding way, are undisputed or have been acknowledged by us. Furthermore, he shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
Our prices are net prices, and exclude statutory value-added tax (which, as the case may be, needs to be added), freight and packaging and are valid ex our warehouse or another loading point named by us.
We reserve the right to increase our prices accordingly if cost increases occur after the conclusion of the contract due to collective wage agreements or energy price increases or price increases of material, and if there are more than four months between the conclusion of the contract and the agreed delivery. We shall provide evidence of the price increases to the customer upon request.
We shall be entitled to demand advance payment or progress payments on the agreed purchase price.

§ 5 Withdrawal, Force Majeure

In the event of suspension of payment by the customer, impaired creditworthiness and trustworthiness as well as in the event of the occurrence of other events which jeopardize or may jeopardize the proper performance of the transaction, we shall be entitled to release ourselves from our obligation to perform and to withdraw from the contract if the customer is not prepared to perform according to the “performance upon counter-performance-principle” (as set out in sections 320, 322 German Civil Code) or to provide security despite being requested to do so.
In the event of non-availability of the ordered goods for which we are not responsible, we shall also be entitled to withdraw from the contract. We undertake to inform the customer immediately about the non-availability and to reimburse any counter-performance of the customer without delay.
In cases of force majeure, such as in particular fire damage, floods, strikes, lawful lockouts, war or warlike conflicts and epidemic palgues (including epidemics and pandemics) insofar as a danger level of at least “moderate” is defined by the German Robert Koch Institute (RKI), the contracting party affected thereby shall be released from the obligation to deliver or accept the goods for the duration and to the extent of the effect.

§ 6 Advertisement

All illustrations in our advertising (catalogue, internet, flyer, etc.) reflect the goods depicted at the time of printing or first publication of the corresponding advertising; we reserve the right to make subsequent changes.
We reserve the right of ownership, copyright and all other rights to illustrations, drawings, calculations and other documents which we make available to the customer; they may not be made accessible to third parties without our express written consent. After completion of the order, they must be returned to us without being requested to do so; a right of retention is excluded in this respect. They must be kept secret from third parties.

§ 7 Notice of Defects

The customer is obliged to check the type, quantity and condition of the delivered goods immediately after receipt. The customer is obliged in particular to have the delivered goods immediately examined by a laboratory specializing in the examination of foodstuffs for compliance with the applicable foodstuff laws and regulations.
Defects must be reported immediately in text form, at the latest within a period of 3 working days after receipt of the goods.
If the customer receives a laboratory report in accordance with section 7.1 later than three days after receipt of the contractual goods, any defects found must be notified in text form to us within three days of receipt of the respective laboratory report by the customer.
If a defect of the delivered goods becomes apparent at a later date than set out above, which could not be detected despite due examination (hidden defect), the customer shall notify us of the hidden defect in text form without undue delay, but no later than three working days after becoming aware of the defect.
In all cases of notification of defects, the date of receipt of the notification of defects by us shall be decisive.

§ 8 Claims for Material Defects

The customer’s claims for defects shall be limited, at our discretion, to the replacement delivery of defect-free goods or the rectification of defects. If we are unable to do so within a reasonable period of time or if the subsequent performance is otherwise deemed to have failed, the customer may, at its option, demand a reasonable reduction or withdraw from the contract with respect to the defective performance.

§ 9 Claims for Defects of Title

We shall defend the customer against all claims resulting within the limitation period from an infringement of an industrial property right or copyright by the delivered goods. We shall only be liable in such cases for damages for legal costs and other damages imposed on the customer by a court of law, if the customer has notified us immediately in writing of such claims and has reserved the right to all defensive measures and settlement negotiations.
Section 9.1 shall not apply in cases where the customer has provided us with specifications regarding the labelling, layout, design, equipment or other aspects of the delivered goods and their packaging. In this case, the customer shall be solely responsible for any claims of third parties resulting from his specifications and shall indemnify us against such claims upon first request.
If claims have been asserted against the customer in accordance with section 9.1 or are to be expected and if section 9.2 does not apply, we may replace the delivered goods at our own expense to an extent that is reasonable for the customer. If this is not possible or if it is not possible to obtain a right of use at reasonable expense, the customer’s rights shall be governed by the correspondingly applicable provision of section 8.

§ 10 Compensation for Damages

We shall only be liable for damages for which we are responsible, irrespective of the legal grounds, if the damage
a) has been caused by a culpable breach of a material contractual obligation or in a manner that jeopardizes the achievement of the purpose of the contract, or
b) has been caused with gross negligence or intent.
If we are liable pursuant to section 10.1 a) without gross negligence or intent, our liability shall be limited to the extent of the damage that we typically had to expect at the time of conclusion of the contract based on the circumstances known to us at that time.
The limitations of liability according to sections 10.1 to 10.2 shall also apply mutatis mutandis in favour of our employees and agents.
We shall be liable without limitation for damages resulting from injury to life, body or health due to a negligent breach of duty by us or an intentional or negligent breach of duty by one of our legal representatives or one of our vicarious agents.
Our liability under the German Product Liability Act, our liability in the event of fraudulent concealment of a defect and our liability in case of the assumption of a guarantee for the condition of the delivered products shall remain unaffected.

§ 11 Transport Packaging

The return of transport packaging delivered by us can only take place neatly bundled and carriage paid at our warehouse or at another loading point indicated by us; any costs incurred in this connection shall be borne by our customer.

§ 12 Retention of Title

We reserve the title of ownership to the delivered products until receipt of all payments arising from the business relationship with the customer.
In the event of seizures or other intrusions by third parties regarding the delivered products, the customer shall notify us immediately in writing so that we can file a third party action in accordance with section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to section 771 ZPO, the customer shall be liable for the loss incurred by us.
The customer assigns to us, already upon conclusion of the contract, all claims in the amount of the final invoice amount (including VAT) which accrue to him from a resale against his customers or third parties, irrespective of whether the resale was permitted in the individual case. The customer shall remain authorized to collect this payment claim against his customer even after assignment. Our right to collect the payment claim ourselves shall remain unaffected. However, we undertake not to collect the payment claim as long as the customer meets his payment obligations from the moneys collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no suspension of payments. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection of payment claims, hands over the relevant documents and notifies the debtors (third parties) of the assignment.

END OF MACALEA TERMS OF SALE AND DELIVERY

General Terms and Conditions of Purchase
of Macalea GmbH & Co. KG and Macalea Natura GmbH & Co. KG

1. General, Scope, Conclusion of Contract

Our Terms and Conditions of Purchase shall apply exclusively; we shall not accept any terms and conditions of the contractor/service provider/supplier (hereinafter uniformly referred to as “Supplier”) that conflict with or deviate from our Terms and Conditions of Purchase unless we expressly agree to their application in text form. This shall also apply to terms and conditions stated in order confirmations or other confirmations of the Supplier.
These Terms and Conditions of Purchase shall apply to all purchases of goods and services ordered by us in business transactions with entrepreneurs, i.e. natural or legal persons or partnerships with legal capacity who, when concluding a contract, act in the exercise of their commercial or independent professional activity (Section 14 (1) of the German Civil Code (BGB)), as well as to legal persons under public law and special funds under public law. They shall not apply to consumers within the meaning of § 13 BGB.
All agreements amending or supplementing these Terms and Conditions of Purchase made between us and the Supplier shall only be valid if made in text form.
Any terms and conditions contained in our purchase orders originating from us shall take precedence over these Terms and Conditions of Purchase in the event of contradictions. If, however, the COFREUROP Terms and Conditions are made the subject matter of a contract between us and the supplier in addition to these Terms and Conditions of Purchase, these Terms and Conditions of Purchase and any other terms and conditions contained in the order originating from us shall take precedence over the COFREUROP Terms and Conditions in the event of contradictions.
Our order constitutes an offer by us to purchase the goods or services in accordance with these Terms and Conditions of Purchase. The order shall be deemed to have been accepted when the Supplier accepts it by (a) a declaration of acceptance in text form or (b) by commencing performance with respect to the order.

2. Offer Documents

We reserve ownership, copyright and all other rights to illustrations, drawings, calculations and other documents which we make available to the supplier; they may not be made accessible to third parties without our express written consent. They are to be used exclusively for production on the basis of our order; after completion of the order, they are to be returned to us without being requested; a right of retention is excluded in this respect. They must be kept secret from third parties.

3. Prices, Terms of Payment

Agreed prices are fixed prices and exclude subsequent claims. In the absence of deviating agreements in text form, the price includes delivery “free our premises” and, if applicable, packaging. We are not obliged to return the packaging. At our request, the supplier is obliged to collect and dispose of its packaging and transport materials at its own expense at the place of delivery/service.
Additional deliveries/services and/or changes to the agreed deliveries/services shall only be bindingly agreed if a prior agreement has been concluded in text form.
Payments on due claims of the Supplier shall be made within 21 days without any deduction.
The payment period shall commence upon receipt by us of an auditable (final) invoice that complies with the statutory requirements, but not before the day of delivery/performance of the contractual service.
If instalment payments have been agreed, the payment period shall commence on the day of receipt of an auditable instalment invoice which complies with the statutory requirements.
Section 286 paragraph 3 German Civil Code is waived.

4. Assignment, Right of Retention, Set-off

The Supplier is prohibited from assigning his claims against us to third parties.
The Supplier shall not be entitled to any rights of retention insofar as they are based on counterclaims from other legal transactions with us.
The supplier may only offset such claims (also from other legal relationships) that are undisputed or have been legally binding established.

5. Performance of Delivery/Service, Provided Material, Ownership

Within the business or operating hours of the Supplier, we may inform ourselves about the correct contractual execution of the delivery/service. In this respect, we as well as our employees and agents shall be granted access to the production and storage facilities of the Supplier after prior notification. Upon request, the documents required for sufficient information shall be disclosed to us for inspection or shall be sent to us upon our request. We may request copies of the relevant documents if these are required to prove compliance with our own due diligence obligations.
The Supplier undertakes to provide us immediately upon request with all evidence and certificates contractually prescribed, in particular any organic certificates concerning the Supplier, the upstream suppliers in the supply chain, the Producer and the delivered goods.
Any transfer of the execution of the delivery/service owed by the Supplier or essential parts thereof to third parties requires our prior consent in text form.
Materials provided by us to the Supplier shall remain our property and shall be stored, designated and managed separately free of charge. They may only be used for the purposes of the respective contract. Processing or transformation of materials provided by us by the Supplier shall be carried out for us. If these are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item to the other processed items at the time of processing.
Upon delivery of the ordered goods – whether to us or to a third party named by us – they shall immediately become our property. In any case, we are authorised to resell the delivered goods.

6. Delivery, Delivery Time, Delay

An agreed delivery and performance time is binding.
Deliveries to our goods receiving department must be made within the normal opening hours of the agreed warehouse at the agreed delivery address. The Supplier is obliged to inform himself about the opening hours of the warehouse before delivery. We may reject goods delivered to us outside these opening hours.
The Supplier must inform us immediately in writing if circumstances occur or become apparent according to which the specified delivery and performance time cannot be met.
In the event of default on the part of the Supplier, we shall be entitled to the full statutory rights. In the event of default on the part of the supplier, we shall be entitled to demand a contractual penalty of 0.3% of the gross purchase price of the delayed delivery/service per day, but no more than 5% of the gross purchase price of the full order. The Supplier reserves the right to prove that a lesser damage has occurred. The contractual penalty shall be credited against the total damage caused by the delay.

7. Notification of Concerns, Obstruction Notice, Force Majeure

The Supplier shall inform us immediately in writing if he has reservations about the way in which we wish the delivery/service to be carried out or if he considers himself to be hindered in the execution of his delivery/service by third parties or by us.
In the event that the execution deadline is exceeded as a result of force majeure, we may demand the delivery/service from the Supplier at the originally agreed conditions after the reason for the impediment has ceased to exist or we may withdraw from or terminate the contract in whole or in part after the expiry of a reasonable period of grace. The same applies if the Supplier is prevented from delivering/perform service for more than three months beyond the agreed date of performance. Any statutory claims for damages to which we are entitled shall remain unaffected.

8. Acceptance, Period for Complaint, Transfer of Risk, Transfer of Titel

For each delivery/performance of service of the Supplier, the delivery/acceptance shall take place at the agreed place of delivery/service.
Unless otherwise agreed in text form, deliveries shall be made at the Supplier’s expense and risk to the agreed delivery address.
Inspection and notice of defects:
a) In deviation from §§ 377 HGB (German Commercial Code), we are entitled to inspect delivered goods and give notice of defects, deviations in quality or quantity within a period of one week after complete delivery of the goods. If there is a hidden defect in the goods, we are entitled to give notice of the defect within one week after discovery of the defect.
b) If delivery is not made to us but directly to a third party named by us, the agreed period for inspection and giving notice of defects shall commence upon delivery of the goods to the third party.
c) If the goods are delivered to our customer from an intermediate warehouse in a receiving port or receiving airport without delivery to us, the inspection and notice period of one week shall commence upon delivery of the goods to our customer.
d) For an inspection, it is sufficient that representative samples of the respective delivery batch of goods are examined.
e) The goods may be inspected by us, the customer or a competent third party.
f) For a sufficient notice of defects, it is also sufficient if we send the customer inspection reports by email which identify quality or quantity problems.
If the contractual performance or parts of the contractual performance are rejected or objected to by us as not being in accordance with the contract after handover against confirmation or on the occasion of the acceptance date, the Supplier shall be obliged to immediately take back the contractual performance/partial performance concerned at its own expense. We are entitled to return the contractual performance/partial performance to the Supplier at the Supplier’s expense after the expiry of a reasonable deadline set by us. In such cases, the risk shall not pass to us before the rectified performance has been handed over again against confirmation or acceptance.
The contractual performance or parts of the contractual performance which are to be handed over or accepted again at the agreed place of delivery/service against confirmation, or the items to be delivered as a replacement, shall be delivered/supplied again by the Supplier to the/at the agreed place of delivery/service at its own expense and risk.

9. Specifications, Claims for Defects, Liability

The goods delivered to us must comply with the legal and other requirements applicable in the contracting states of the EU, in particular with regard to quality and labelling. This applies in particular to the delivery of foodstuffs, additives and their packaging. If goods to be delivered to us are recognisably intended for onward delivery to countries outside the EU, the goods must comply with the legal requirements applicable there. Certificates, expert opinions, analyses and product samples required to verify the corresponding quality shall be made available to us without delay and free of charge at our request.
If the customer is aware that goods ordered by us are intended for sales programs of our customers, the product specifications of these customers shall be deemed to be the agreed quality. It is the responsibility of the supplier to inform himself about the product specifications of our customers.
Fruit delivered to us must be completely free from rot, injury or damage to the skin and flesh, foreign odor and damage caused by pests and must retain this quality for at least ten days from delivery of the goods to us. In the case of direct delivery to our customer, the above shall apply from the time of handover to our customer. If the goods are delivered to our customer from an interim storage facility at a port or airport of destination without delivery to us, the above shall also apply from the time of handover to our customer, but no longer than fourteen days after arrival of the goods at the port or airport of destination.
We shall be entitled to the statutory claims for defects in full. The Supplier shall remain solely responsible for its delivery/services and its defect-free performance even if we have signed, approved, stamped or marked with a “seen” note or similar the specifications, recipes, plans, drawings, calculations and other execution documents submitted by the Supplier.
If parts of a delivery are defective, we shall always be entitled to return the entire delivery concerned to the supplier at the supplier’s expense. At our request, the supplier shall be obliged to resubmit the goods to us after taking remedial measures (e.g. sorting out defective products). The supplier shall bear all associated costs. If we carry out corresponding remedial measures instead of the supplier, the supplier shall indemnify us against all associated costs at our first request.
If our customers assert claims for damages against us which are based on defects in the goods delivered by the supplier, the supplier undertakes to indemnify us against such claims for damages by our customers on first demand.
The limitation period for claims for defects shall be governed by the statutory provisions, but with the following proviso:
a) The limitation period shall be extended by the time during which the defective delivery/service cannot be used/utilised due to the defect.
b) The limitation period shall be suspended by receipt of a notice of defects by the Supplier.
c) The limitation period for claims for defects shall also be suspended if the Supplier checks the existence of a defect itself.
The suspension of the limitation period in the aforementioned sense shall only end when the Supplier notifies us in writing that it acknowledges or rejects the notified defects. The resumption of the negotiation, examination of defects or measures taken to remedy defects shall again lead to the suspension of the limitation period.
Besides, the Supplier shall be liable in accordance with the statutory provisions.

10. Guaranties

Without limiting the foregoing warranties and other rights to which we are entitled by law, the Supplier guaranties that, upon delivery of the goods/services the following requirements are met with respect to the goods/services:

The Supplier guarantees that delivered goods comply with the agreed specifications.
The supplier guarantees that the delivered goods meet all material and formal requirements of any agreed organic or other standard.
The Supplier guarantees that delivered goods correspond to their agreed description and are free from defects in design, material and workmanship.
The Supplier guarantees that delivered goods are of contractual quality and that they are suitable for their intended use and purpose.
The Supplier guarantees that the delivered goods comply with all German and EU laws, regulations and other requirements applicable to them and that these goods are marketable without restriction in Germany and the EU.
The Supplier guarantees that delivered goods do not infringe any intellectual property rights and other rights of third parties.
The Supplier guarantees that foodstuffs and additives delivered to us do not contain or consist of any genetically modified organisms that must be declared in accordance with the applicable German and EU laws and regulations.
The Supplier guarantees that it has all necessary rights and licenses (including all licenses, permits, authorisations, certifications and consents required by contract or by law) to supply/perform the goods and services in accordance with these General Terms and Conditions of Purchase, any other agreements between the parties and all applicable laws.

11. Product Liability, Indemnification, Liability Insurance Cover

Insofar as the Supplier is responsible for product damages, he shall be obliged to indemnify us against claims for damages by third parties at our first request insofar as the cause for the damage lies within his sphere of control and organisation and he himself is liable in relation to third parties. Any further legal claims to which we are entitled shall remain unaffected.
If the Supplier is liable according to clause 11.1., he is also obliged to reimburse any expenses arising from or in connection with a recall action carried out by us. We shall inform the Supplier about the content and scope of the recall measures to be carried out – insofar as this is possible and reasonable – and give him the opportunity to comment.
The Supplier undertakes to maintain product liability insurance with a sum insured of at least EUR 2 million per personal injury/property damage. If we are entitled to further claims for damages, these shall remain unaffected.

12. Property Rights

The Supplier guarantees that he is the owner of all rights in connection with his delivery/service and that the rights of third parties (in particular copyrights, patent rights, design rights and trademark rights) are not infringed by the delivery/service.
If claims are asserted against us by a third party due to alleged infringements of property rights with regard to deliveries/services of the Supplier, the Supplier shall be obliged to indemnify us against corresponding claims upon first written request. The Supplier’s obligation to indemnify shall include all damages and expenses incurred by us in connection with the claim by a third party, including reasonable legal defense costs.

13. Secrecy

The Supplier is obliged to keep all illustrations, drawings, calculations and other documents or information received, including those relating to agreed prices, product specifications, recipes, delivery relationships, strictly confidential. They may only be disclosed to third parties for the purpose of fulfilling the contracts concluded with us or with our express consent to be given in text form and only insofar as the third parties have also been obliged to maintain secrecy within the meaning of this section 13.; this applies accordingly to the Supplier’s own employees. The confidentiality obligation shall also apply after the execution of this contract; it shall expire if and to the extent that the production knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known without a breach of this confidentiality obligation. The supplier undertakes to take appropriate technical secrecy measures for the fulfilment of its secrecy obligations (physical/electronic access control according to the “need to know” principle, antivirus measures, firewalls, through state of the art measures).

14. Place of Jurisdiction, Applicable Law, Written Form

The place of jurisdiction is, as far as legally permissible, the place where we have our registered office. In the case of framework agreements, this jurisdiction shall also apply to disputes in connection with individual call-offs. However, we shall also be entitled to take legal action against the Supplier at his place of business.
German law shall apply exclusively to our contractual relationship with the Supplier, to the exclusion of the CISG (Uniform UN Sales Law) and such conflict-of-law provisions that can be waived and according to which foreign law would be applicable.

End of this Terms and Conditions of Purchase, August 2023