General Terms and Conditions

Allgemeine Geschäftsbedingungen

General Terms and Conditions of Business of


EDEKA Foodservice Stftung & Co. KG, Edekastraße 1, 77656 Offenburg


EDEKA C+C großmarkt GmbH, New-York-Ring 6, 22297 Hamburg


Union SB Großmarkt Südbayern GmbH, Ingolstädter Straße 120, 85080 Gaimersheim


SB UNION Großmarkt GmbH, Industriegebiet Pfieffewiesen, 34212 Melsungen


RM Großmarkt GmbH, Industriegebiet Pfieffewiesen 34212 Melsungen


L. Stroetmann Großverbraucher GmbH & Co. KG, Capeller Str.145, 59368 Werne


(hereinafter referred to as ECCG)



Article 1

Sales to businesses scope of applicability, entitlement to order


1. As a wholesaler, we sell and supply exclusively to businesses, namely traders in the food sector and major commercial consumers. The goods which we offer are intended exclusively for resale or commercial use.


2. The customer must substantiate the type and existence of its business to us on demand. Substantiation may take the form of official confirmation of registration of a business in conjunction with an original invoice from the tax office for payment of VAT, which must not be more than three months old, or a certificate issued by the tax office, the chamber of commerce and industry, an equivalent institution or an accountant. The customer must inform us of any change in the name or form of its business without delay.


3. These terms and conditions of sale, and any additional conditions which we use and impose upon the business relationship, will apply exclusively to all our current and future sales of goods, deliveries and other services. Contradictory, divergent, additional and complementary terms and conditions of business of the customer will only apply if we have expressly agreed to them in writing. Our failure to respond to the customer’s conditions and acceptance of payment will not constitute agreement to the customer’s conditions. Should the customer not agree to this, we must be notified in writing immediately. In this case, we may withdraw our confirmation of order and declarations of acceptance of the customer’s order without the customer having the facility to assert claims of any nature whatsoever against us. We hereby expressly object to any formal reference to the customer’s own terms and conditions of business. Provisions of framework agreements and individual contracts concluded by ourselves or another of the businesses listed above which use these General Terms and Conditions of Business with third parties for the customer, or which are concluded directly with the customer, will take precedence over these conditions, if relevant.


4. We shall be entitled to reject or withdraw the customer’s entitlement to order on serious grounds, particularly in the following cases:

a) If the customer’s credit rating does not guarantee that invoices will be paid when due;

b) If the customer associates itself in any way with a purchasing cooperative, a purchasing consortium or similar purchasing union (herein after also referred to as “organisation”), or such an organisation with which we or ECCG already have a contractual supply relationship;

c) If a commercial credit insurance policy concluded for the customer is cancelled.


5. Should a petition be filed for the opening of insolvency proceedings on the assets of the customer, the customer will automatically forfeit its entitlement to request quotations and place orders, with effect from submission of the petition. The customer must inform us immediately if a petition for the opening of insolvency proceedings is filed by itself or by a third party. However, this will not apply if an evidently groundless petition is filed by a third party.


6. Orders placed but not yet filled will no longer be executed after withdrawal or loss of the entitlement to order. Such orders will be suspended, unless we have already accepted them.


7. Should collection be used in our business relationship with the customer, the latter will be obliged, in the absence of any agreement to the contrary, to put the order together and remove it. The stipulations on customer identity (Article 6) will then expressly apply. If, on the contrary, supply by delivery has been agreed, the provisions of Article 7 will apply. Should supply by drop shipment be agreed, Article 8 will apply. The provisions of customer identity (Article 6) will not then apply.


8. Only delivery will apply to customers of ECCG. The following will also apply to them:

a) Orders (Article 7(2)) and complaints (Article 5(1)) must be sent only to the EDEKA GV service partner appointed by ECCG.

b) ECCG will be entitled to offer the customer additional regional ranges for different parts of Germany.

c) Should a contracting partner of ECCG and the customer have assumed central payment of certain invoices for the customer (central settlement), the customer will lose its entitlement to order on cessation of central payment.



Article 2

Prices and volumes


1. Prices and volumes in written and verbal quotations will be without obligation and non-binding, unless we have expressly designated them as binding.


2. The prices and current prices stated in our quotations are in euros, net of VAT. The prices quoted are net of deposits, in the absence of an express statement to the contrary.


3. Goods will not be supplied below the specified minimum order volume. The following minimum order volumes will apply to delivery. The minimum order value will be €400.00 per delivery for goods in the food segment. The minimum order volume for deep-frozen goods will be 6 sales units (excluding partial pallet quantities) within the €400.00 net food delivery. We reserve the right not to fill the order if the minimum volume is not reached, or only to fill it if the customer is prepared to bear the associated outlay.



Article 3

Goods subject to price maintenance, tobacco


If goods subject to price maintenance (tobacco and possibly publications) are purchased, the customer undertakes to maintain the prescribed end consumer prices in a case of resale to end consumers and to place resellers under the same obligation in every case of sale to a reseller. The customer undertakes to pay a contractual penalty of €500, should it culpably breach this obligation by obtaining tobacco from us other than for the purpose of resale as registered with the customs authority. The right to assert further claims for compensation is reserved. Payment of the contractual penalty will be credited against compensation.



Article 4

Payment, information

1. Invoices will be due for payment immediately. Invoices must be paid in cash, strictly net, in stages as goods are supplied. Other methods of payment will only be possible with our express approval. In this connection we state that we reserve the right to invoke the lack of authorisation in the case of an absence of verbal approval by our management or by a party expressly authorised by ourselves. Bills of exchange will not be accepted.


2. Invoices may be settled by direct debit by corresponding agreement with the customer, using the SEPA business to business direct debit scheme. We are obliged to issue prior notification of direct debits one day before the due date. Should the direct debit be rejected, arrears of payment will apply with effect from the due date, without further notice. The customer must refund all the fees and costs arising from rejection of the direct debit. In such a case, we shall be entitled to demand cash payment from the customer from then on (payment of invoices strictly net, in stages, as goods are supplied). The same will apply in the absence of agreement to a direct debit procedure. Article 4(1), sentences 3 and 4 will, apply analogously.


3. Payment must be made within the agreed payment period if made by credit transfer by the customer. Should we not receive any payment within said payment period, arrears of payment will apply with effect from two days after violation of the payment period, without further notice, unless the customer is not responsible for the violation.


4. Statutory interest on arrears of nine percentage points above the Bundesbank base rate will apply to every case of arrears. Further deliveries may also be embargoed in a case of arrears. Moreover, we may demand immediate payment of all unpaid invoices, including those not yet due, in such a case. This will not preclude the assertion of further claims.


5. Should we perform in advance, we shall obtain references on the creditworthiness and information on the name and address before accepting or filling an order.



Article 5

Claims for shortcomings


1. The customer must examine the goods immediately after receipt, to verify their compliance with the contract. Claims for shortcomings must be made immediately in text form (by e-mail or fax) or by telephone. The complaint must:


- be made immediately by telephone, but no later than within 24 hours after delivery of the goods or discovery of the shortcom-ing, in the case of highly-perishable goods (fruit, vegetables, gourmet foods, fresh meat, deep-frozen food and other fresh goods);



- otherwise be made within two days.


Goods collected must be examined immediately and recog-nisable shortcomings reported at once. The above periods will apply analogously to defects which are initially concealed, with effect from the date of their discovery. Should the customer fail to make formal, punctual notification, the goods will be deemed to have been approved, unless the volume or condition evident-ly differs so considerably from the order that we have to consider acceptance by the customer as being precluded. Claims by the customer will also be precluded if the goods have been modified, treated, stored, processed or converted inappropriately after receipt, unless the customer demonstrates that this is not the cause of the shortcomings asserted.


2. We shall guarantee the rectification of defects (for ECCG customers, see Article 1(8) represented by the EDEKA GV service partner acting on our behalf), by supplementary performance i.e. by providing replacement goods free of defects against return of the defective goods, at our discretion, or, if possible, rectify the goods at no charge. Should rectification fail twice, be impossible, be unacceptably delayed or seriously and definitively refused by ourselves, our customer may demand a price reduction or cancel the contract, at its discretion. Moreover, the customer may assert a claim for compensation within the limits of Article 10(2) of these General Terms and Conditions of Business, unless we are not responsible for the defect.

3. If the customer has to accept returned goods which it has sold on to a consumer (consumer goods) within the meaning of Sec-tion 13 of the German Civil Code (BGB) due to defects, or if the consumer has justifiably reduced the purchase price, statutory provisions will apply instead of paragraph 2 above.


4. In cases covered by paragraph 2, returned goods will only be accepted by prior agreement with our appointed agent or with staff expressly authorised for this purpose.


5. All claims arising from the defectiveness of goods, including claims for compensation, will be time-barred in twelve months, with effect from the transfer of risk, except in cases of gross negligence and claims for compensation for harm to life, limb or health. This will also apply to competing, congruent compensa-tion claims arising from extra-contractual liability. Notwithstand-ing the aforegoing, Section 479 BGB will apply to rights of re-course in the case of goods sold on to a consumer within the meaning of Section 13 BGB (consumer goods).


6. Should we fail to receive delivery from our supplier to fulfil our contractual delivery for reasons for which we are not responsi-ble, despite proper, adequate coverage prior to conclusion of the contract with the latter (congruent coverage) in accordance with the quantity and quality from our supply or performance agreement with the customer, not receive it correctly or punctually, or should force majeure circumstances of a not inconsiderable length arise (i.e. with a duration in excess of 14 calendar days), we shall inform our customers without delay, in writing or in text form. In such a case we shall be entitled to postpone delivery by the duration of the obstacle or, should the obstacle to performance be of more than a temporary nature, to cancel the contract in whole or in part due to the unfulfilled portion of the contract, provided that we have complied with our above duty to provide information and have not assumed the procurement risk or a supply guarantee. Strikes, lockouts, official interventions, shortages of energy and raw materials, transport bottlenecks or obstacles for which we are not responsible, obstacles to operations for which we are not responsible - e.g. due to fire, water and machine damage - and any other obstacles which are objectively not attributable to culpability on our part will be deemed equivalent to force majeure.



Article 6

Collection, customer identification, prohibition of passing on, contractual penalty


1. Access to our site and sales premises is only permissible with a valid customer card issued by ourselves. Proof of the type and existence of the business is a requirement for issue of the customer card (Article 1(2)).


2. The customer card is not transferable and only valid in conjunction with the ID card of the party entitled to purchase. Purchasers named on the customer card are also permitted, but must also produce a personal ID card. Should the party entitled to make purchases be unable to attend, the proprietor of the business may grant written authorisation to another party to make commercial purchases on this occasion only, under exceptional circumstances. Such authorisation must be produced when purchases are made. Every purchase will be made in the name and on behalf of the business operator. The customer card holder will therefore be entitled to make any declarations associated with purchasing.


3. We shall retain title to the customer card and may withdraw it at any time, without stating reasons. Should the business cease trading or be de-registered, the card must be returned to us on the holder’s initiative. The cardholder will be responsible for legal disadvantages arising from unauthorised or negligent passing on of the customer card. The cardholder will be liable for abusive use of the customer card in the amount of the loss incurred in such cases. Loss of the card must be reported to us without delay.


4. We must be informed immediately of any change in the name of the parties entitled to make purchases The customer undertakes to pay a contractual penalty of €500, should an unauthorised party use its customer card to make or attempt to make purchases, unless this takes place without the customer’s consent. The same will apply if goods are acquired with the customer’s consent for purposes other than resale or commercial use (with the exception of internal use typical of the sector).


5. Should the customer open or damage original containers it will be obliged to accept them or compensate us for the loss arising from the reduced saleability thus caused.


6. Accompaniment by a second person for assistance is permitted. Carrying bags or containers, items to be carried separately and animals, and the making of video and sound recordings, are prohibited on the cash and carry premises.



Article 7

Deliveries


1. Additional costs arising for delivery will be invoiced.


2. Orders will not be binding and will thus not constitute an offer to conclude a purchase contract. On the contrary, the customer will have the facility to dispense with purchase of the goods assembled at any time, until acceptance of the delivery. A purchase contract with the customer will only be concluded if the customer decides to acquire the goods offered to it in whole or in part on delivery. The customer will be granted the opportunity to inform itself of the binding information on food on the goods so that it may decide whether it wishes to acquire the goods or not. Should the customer decide to purchase, it must confirm this by signing the incoming goods confirmation/confirmation of receipt. Should the customer decide against a purchase, any amounts already paid will be refunded immediately.

The procedure will be analogous for ECCG customers. The offer by the EDEKA GV service partner will then be deemed to have been made in the name of ECCG and the EDEKA GV service partner will accept the declaration of acceptance by the customer on behalf of ECCG.


3. Deliveries of goods will take place in accordance with a round plan and timetable specified by ourselves (or by the appointed EDEKA GV service partner in the case of ECCG customers, see Article 1(8)). We may adapt this plan to the current circumstances. Individual delivery times will only be binding if they have been expressly agreed in writing. All delivery times are subject to correct, punctual deliveries to ourselves.


4. Delivery to the customer will take place using returnable loading aids such as pallets, trolleys, crates, etc). We may charge for the loading aids supplied at the specified rate of deposit plus the applicable statutory VAT, particularly if the same quantity, type and quality of loading aid is not returned. If loading aids subject to a deposit are returned, we shall correct the invoice and the VAT (i.e. insofar as we do not ignore it on the basis of exchange). Customers will be obliged to accept the goods in loading aids, to treat the loading aids with care and to return them emptied and cleaned on the next delivery.


5. The customer must sign a confirmation of receipt for each de-livery on demand.


6. Staff delivering the goods will be instructed not to perform services beyond the work required for delivery. The customer may not demand such services. Should loading aids nevertheless have to be emptied and/or cleaned by our staff, the customer may incur the corresponding costs.


7. The risk of chance loss or deterioration of the goods will be transferred to the customer on transfer of the goods to the shipping agent.


8. Partial deliveries will be admissible. However, this will not apply if it has been expressly precluded by the customer when ordering or if it is evident that the customer cannot be expected to accept partial delivery.



Article 8

Drop shipments


1. Under special contracts with specified sub-suppliers, they deliver goods (drop shipments) directly to our customers in our name and for our account. Our customers will have no entitlement to our agreeing drop shipments with specific sub-suppliers. Neither may claims be asserted against us to abandon drop shipments using certain sub-suppliers. We shall also be entitled to preclude individual customers from drop shipments using certain, or all, sub-suppliers, without stating grounds. No claims may be asserted against us in this respect. We shall inform affected customers accordingly.


2. Claims by customers for shortcomings must first be asserted only against the sub-supplier in the case of delivery by drop shipment. We shall therefore not accept returned goods pro-cured from drop shipments. Any returns must be made directly to the sub-supplier. For this purpose, we therefore assign our claims against the sub-supplier for shortcomings to the customer. The customer will accept assignment in lieu of fulfilment. Only if claims for shortcomings against the sub-supplier cannot be enforced due to the latter’s failure to perform will our obligation to rectify the shortcoming be restored. Should defective goods from drop shipments to consumers be sold on within the meaning of Section 13 BGB, our obligation to rectify defects will be restored in the amount of the difference which could arise from calculating claims for shortcomings against the sub-supplier to the detriment of the customer on a different basis than against ourselves.



Article 9

Reservation of title


1. We shall retain title to all of the goods sold by ourselves and/or in our name and/or for our account until full payment of all receivables which we have or acquire from the existing current account (business relationship) with the customer. Reservation of title refers to the acknowledged balance. If the customer submits cheques, we shall reserve title until they have been cleared. However, the customer will be entitled to sell on goods to which we have reserved title within the scope of its proper business practice.


2. Conversion or modification of the goods by the customer will always be carried out on our behalf. Should the goods be converted, inseparably combined or mixed with other items which do not belong to us, we shall acquire joint title to the new item in the proportion of the value of the goods to the other converted, combined or mixed items at the time of conversion, combination or mixing. In other respects, the same will apply to the item as to the goods delivered subject to reservation of title.


3. Should the goods be sold, whether converted, mixed or not, the customer hereby assigns its entire receivable from its customer in the amount of all our receivables. The customer also assigns its receivables from a third party to secure our receivables from the customer arising from combination of the goods with property.


4. The customer must notify us immediately of actions or measures by third parties affecting goods subject to our reservation of title. In the case of distrait, the customer must inform the bailiff that the attached items are subject to our reservation of title and send us a copy of the bailiff’s return immediately.


5. In the case of anti-contractual behaviour by the customer, particularly in a case of arrears of payment, we may demand the surrender of goods subject to reservation of title, take possession thereof and dispose of them freely. Assertion of reservation of title by ourselves expressly or in this way, or attachment the goods subject to reservation of title by ourselves, will always represent cancellation of the purchase contract.



Article 10

Liability


1. Parking on our premises, entering the warehouse and use of the transport resources available there will be at the customer’s risk.


2. Claims for compensation will be precluded for all damage not incurred by the goods purchased themselves, except in a case of deliberate intent, gross negligence, culpable infringement of major contractual obligations, liability under the German Product Liability Act, assumption of a guarantee or causing harm to life, limb or health. In a case of culpable infringement of major contractual obligations we shall only be liable for contractually typical, reasonably foreseeable losses. For the purposes of the preceding sentence, major contractual obligations will be interpreted as obligations which protect contractually crucial legal positions of the customer which the content and purpose of the contract are intended to provide, and also obligations of which the fulfilment renders implementation of the contract possible and in the observation of which the customer may normally be confident and trust.


3. Accompaniment by children under the age of 14 years is prohibited. Should children under the age of 14 years suffer harm on our premises, the customer responsible for the child will be obliged to indemnify us against liability.



Article 11

Return of empties and loading aids


1. Chargeable returnable empties will only be accepted in original containers, sorted by type, against a refund of the deposit.


2. We (or the EDEKA GV service partner in the case of ECCG customers) shall also accept recyclable beverage containers subject to a deposit bearing the DPG (Deutsches Pfandsystem GmbH - German Deposit System) mark and an EAN barcode registered with DPG which are stocked by ourselves (or by EDEKA GV service partner in the case of ECCG customers). No deposit can be refunded for containers which do not show that a deposit has been paid for them. This may also apply to containers which have been crushed, squashed or soiled, which have rusted and on which the DPG mark therefore cannot be discerned. This may also apply if the EAN code can no longer be discerned for the aforesaid reasons.


3. We shall only accept empties to the extent to which we have sold full containers and also insofar as we are obliged to accept the return of excess quantities under the provisions of public law.


4. Should loading aids (see Article 7) not be returned or not returned in full, we may demand compensation in the amount of the respective replacement value, less the deposit paid to us by the customer for such loading aids, whereby the customer will have discretion to prove that the loss incurred is lower.



Article 12

Sales packaging


Under the European Packaging Ordinance, the first party to market sales packaging filled with goods is obliged inter alia to participate in a dual waste disposal system (Section 6 (1) of the Packaging Ordinance). In this respect, goods supplied or consigned to the customer (and also to customers of ECCG, if applicable) in sales packaging by SB UNION Grossmarkt GmbH, Melsungen and RM Grossmarkt GmbH, Melsungen, are deemed to be already licensed for a dual system. The following will apply in other cases:


In order only to impose charges on the customer when this is una-voidable, we only trade in sales packaging (which means “packag-ing used by the distributive trades, restaurants and other service providers which makes possible or supports the transfer of goods to the end user”, e.g. pizza boxes and disposable cutlery) which is not yet licensed for a dual system, provided that the customer uses such packaging to provide actual goods to its own customers. This avoids the “unnecessary” licensing of sales packaging in advance if it has not been established that its later specific use includes the provision of goods to end users, therefore rendering licensing really necessary. Please note that, as a customer, you are obliged to participate in a dual system in this sense, if you use sales packaging.


We shall be happy to assume such participation for the customer on demand by the latter. However, the costs must be borne by the customer, in the form of a higher purchase price. As a customer, please therefore understand that you must express this requirement if you demand participation in a dual sales packaging system before purchasing the goods in question and that you must therefore give us an opportunity to notify you of the corresponding supplements for future purchases, which we shall charge inclusively in arrears for the preceding quarter at the end of said quarter. We shall be happy to send you a corresponding price list on request.



Article 13

FIC data


If desired, we shall provide you with data on the items sold to you under the European Food Information to Consumers Regulation (FIC data), if it is available to us. This will be voluntary, revocable at any time and free of charge. There will be no entitlement to disclosure. We cannot assume any guarantee for the accuracy, integrity and topicality of FIC data. Depending upon its intended use, we recommend verifying the data beforehand. However, we shall bear statutory liability, if we are responsible for harm to life, limb or health, or if we are guilty of deliberate intent or gross negligence.



Article 14

Pyrotechnic products


Prior to the 29th December of each year, pyrotechnic products may only be purchased from dealers licensed to sell them.



Article 15

Miscellaneous provisions


We shall retain title to any price lists and order forms issued by ourselves, which must be treated in strict confidence. The customer will remain bound to observe the absolute confidentiality of all conditions, selling prices and discounts applicable to all ranges and other items until two years have elapsed since the end of the business relationship. It will also be obliged to place the same confidentiality obligation on its employees.


The place of fulfilment for all services arising from the contractual relationship will be the place at which the warehouse from which the goods are obtained is situated. Notwithstanding the aforegoing, the place of fulfilment for ECCG customers will be Hamburg. The court of jurisdiction will be the court with jurisdiction at our registered office. Notwithstanding the registered office of the purchaser, the contractual relationship and any claims arising thereoutof will be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).


The invalidity of individual provisions of these General Terms and Conditions of Business will not affect the validity of the remaining provisions.

AGB

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