AVE – Absolute Vegan Empire GmbH & Co. KG
Siemensstraße 5, 92907 Nabburg
§ 1 General, Scope of Application
(1) These General Terms and Conditions of Sale (hereinafter: "AVB-AVE") apply to all business relations between us, AVE - Absolute Vegan Empire GmbH & Co. KG (hereinafter: "AVE"), with our customers (hereinafter: "Buyer"). The AVB-AVE shall only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The AVB-AVE apply in particular to contracts for the sale and/or delivery of food products, food pre-products and other movable goods (hereinafter also referred to as "goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). The AVB-AVE in their respective version shall also apply as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same buyer, without us having to refer to them again in each individual case; in this case we shall inform the buyer immediately of any changes to our AVB-AVE.
(3) Our AVB-AVE apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example, even if we carry out the delivery to the Buyer without reservation in knowledge of the Buyer's General Terms and Conditions.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC-ACU. A written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(6) Insofar as these AVB-AVE require the written form, § 127 BGB shall apply. References to the validity of legal regulations have only clarifying meaning. Even without such a clarification, the legal provisions shall therefore apply, unless they are directly amended or expressly excluded in these GCSD-AEV.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, recipes, documentation (e.g. drawings, plans, calculations, calculations), other product descriptions or documents - also in electronic form - to which we reserve ownership and copyrights.
(2) The order of the goods by the Buyer shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within one week of its receipt by us.
(3) The acceptance can be declared either in text form (e.g. by order confirmation) or by delivery of the goods to the Buyer.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or specified by us when the order is accepted. If this is not the case, the delivery period shall be 14 days from conclusion of the contract.
(2) If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of performance), we shall inform the Buyer of this immediately and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already provided by the buyer. The case of non-availability of the service in this sense is especially the non-timely self-supply by our supplier, if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obligated to procure in individual cases.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer is required. If we are in default of delivery and the Buyer demands compensation for the damage caused by the delay, we reserve the right in all cases to prove that the Buyer has not incurred any damage or only a significantly lower damage.
(4) The rights of the buyer according to § 8 of these AVB-AVE and our legal rights, especially in the case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance) remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be ex warehouse, which is also the place of performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon delivery. In the case of mail order purchases, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the passing of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the Buyer is in default of acceptance, it shall be deemed equivalent to handover or acceptance.
(3) If the Buyer is in default of acceptance, if he fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a lump-sum compensation of 2 EUR per calendar day per euro-pallet or comparable storage space, beginning with the delivery period or - in the absence of a delivery period - with the notification that the goods are ready for dispatch.
The proof of a higher damage and our legal claims (in particular compensation for additional expenses, appropriate compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The Buyer shall be entitled to prove that we have incurred no damage at all or only a significantly lower damage than the above lump sum.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, namely ex warehouse, plus statutory value added tax.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. We do not take back transport packaging and all other packaging in accordance with the German Packaging Ordinance; it becomes the property of the buyer; pallets are excluded.
(3) The purchase price shall be due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled to demand advance payment at any time.
(4) Upon expiry of the above payment period, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by default. Our claim to the commercial due date interest (§ 353 HGB) against merchants remains unaffected. We are entitled to charge our reminder costs at a flat rate as follows: 1st reminder: € 10.00 net, 2nd reminder: € 20.00 net.
(5) The Buyer shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter rights, in particular in accordance with § 7 Para. 6 Sentence 2 of these AVB-AVE, shall remain unaffected.
(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer's inability to pay (e.g. due to an application to open insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unacceptable goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer shall notify us immediately in writing if and to the extent that third parties have access to the goods belonging to us.
(3) If the Buyer acts in breach of contract, in particular if he fails to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the reservation of title and the withdrawal. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the buyer a reasonable deadline for payment or if such setting of a deadline is dispensable under the statutory provisions.
(4) The Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case the following provisions shall apply in addition.
(a) Retention of title shall extend to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing or combination with goods of third parties, their right of ownership remains, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under reservation of title.
(b) The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product, in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
(c) In addition to us, the Buyer shall remain authorized to collect the claim. We undertake not to collect the claim as long as the Buyer meets his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other defect in his ability to pay. However, if this is the case, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.
§ 7 Claims for defects of the buyer
(1) The statutory provisions shall apply to the Buyer's rights in the event of defects of quality and defects of title (including incorrect and short delivery), unless otherwise provided for in the following. In all cases, the statutory special provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse according to §§ 478, 479 BGB).
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions (including those of the manufacturer) designated as such, which were provided to the Buyer prior to his order or which were included in the contract in the same way as these General Terms and Conditions of Business, shall be deemed to be the agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed upon, the legal regulation shall be used to determine whether or not there is a defect (§ 434 (1) sentences 2 and 3 BGB). However, we do not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The Buyer's claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect is revealed during the inspection or later, we must be notified of this in writing without delay. The notification shall be deemed to be without delay if it is made within two weeks, whereby the timely dispatch of the notification shall be sufficient to meet the deadline. Irrespective of this obligation to examine and give notice of defects, the buyer shall notify us in writing of obvious defects (including wrong and short delivery) within 10 working days of delivery, whereby timely dispatch of the notification shall also be sufficient to meet the deadline. If the buyer fails to carry out the proper examination and/or notification of defects, our liability for the unreported defect is excluded.
(5) If the delivered goods are defective, the buyer may initially demand, at his discretion, either removal of the defect (repair) or delivery of a defect-free item (replacement) as subsequent performance. If the buyer does not declare which of the two rights he chooses, we can set him a reasonable deadline for this. If the buyer does not make the choice within the deadline, the right to choose is transferred to us upon expiry of the deadline.
(6) We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(7) The Buyer shall give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: dismantling and installation costs), if a defect actually exists. If, however, the Buyer's demand for the removal of a defect turns out to be unjustified, we may demand reimbursement of the costs incurred from the Buyer.
(9) In urgent cases, e.g. if operational safety is endangered or in order to prevent disproportionate damage, the Buyer shall have the right to remedy the defect himself and to demand reimbursement from us of the expenses objectively required for this purpose. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
(10) If the subsequent performance has failed or a reasonable period of time to be set by the Buyer for subsequent performance has expired without success or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right to withdraw from the contract.
(11) The Buyer's claims for damages or compensation for futile expenses shall only exist in accordance with § 8 and shall be excluded in all other respects.
§ 8 Other liability
(1) Unless otherwise stated in these AVB-AVE including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages - regardless of the legal basis - in the event of intent and gross negligence. In case of simple negligence we shall only be liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (obligation the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the Buyer under the Product Liability Act.
(4) Due to a breach of duty which does not consist of a defect, the Buyer may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination by the Buyer (in particular pursuant to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation period
(1) Notwithstanding § 438 (1) No. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) Special statutory provisions for in rem restitution claims of third parties (§ 438 Para. 1 No. 1 BGB), in case of fraudulent intent of the Seller (§ 438 Para. 3 BGB) and for claims in supplier recourse in case of final delivery to a consumer (§ 479 BGB) shall also remain unaffected.
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer's claims for damages pursuant to § 8.
§ 10 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these AVB-AVE and all legal relations between us and the Buyer, excluding private international law and international uniform law; in particular the UN Convention on Contracts for the International Sale of Goods (CISG). Conditions and effects of the reservation of title according to § 6 are subject to the law of the respective location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Nabburg. We are, however, also entitled to bring an action at the buyer's general place of jurisdiction.