Date: January 2018

Terms & Conditions of AMIDORI Food Company GmbH & Co. KG

  1. Terms & Conditions
    1. The following Terms & Conditions shall apply exclusively and for all contracts arising from any business relationships with the contacting partner, even where these must not explicitly be made the subject of the agreement in the event of any follow-up business. Terms & Conditions belonging to the contracting partner shall not be recognised.
    2. Any collateral agreements, including amendments and additions to the agreement, shall only be valid where these have been confirmed in writing by AMIDORI.
    3. Our offers are non-binding. Oral agreements, pledges, warranties and guarantees made by our employees in relation to the conclusion of the agreement shall only be binding with our written confirmation.
    4. Information provided in brochures and in other descriptions of our products, their contents, ingredients and properties etc. shall only be considered non-binding unless explicitly marked as binding in writing. Any guarantee of quality or durability shall only apply where this has been explicitly stated in writing.
  2. Prices
    1. All prices are net prices ex-works or warehouse, including packaging; excluding, however, any insurance and transport costs, as well as any duty and other charges, plus VAT in the legally valid amount at the time of delivery. In the event AMIDORI undertakes shipping of the delivery item, the relevant costs arising from this shall also be invoiced.
    2. The prices stated by us are fixed for a duration of four months from conclusion of the contract. AMIDORI shall subsequently be authorised to charge the list price valid on the day of delivery unless otherwise agreed by the parties.
    3. Where charges or other third-party costs contained within the agreed price change or arise later than four weeks after conclusion of the contract, we shall be authorised to change the price accordingly. This also applies for all concluded contracts for which delivery is still outstanding
    4. Any subsequent changes to the concluded contract require mutual agreement between the parties as well as agreement on any additional costs arising from such.
  3. Duties to collaborate on the part of the contracting partner
    1. Any contractually agreed upon time periods and deadlines shall only begin where the contracting partner has fully met its duties to collaborate agreed upon in or otherwise arising from the contract. This includes primarily the handover of any required information, documentation and documents etc.
    2. In the event of self-collection, the contracting partner shall be obliged to collect the goods within one week of receiving a notice of completion, unless otherwise agreed by the parties. In the event of failure to collect the goods, AMIDORI shall be authorised to exercise its legal rights.
    3. Where the contracting partner is in default of acceptance, AMIDORI may charge a fee equal to the customary warehouse fee per pallet and day charged by forwarders. AMIDORI may at its reasonable discretion store the goods elsewhere insofar as this does not affect the quality of the goods. The costs and risks associated with storage shall be borne by the contracting partner.
    4. If the contracting partner fails to accept the goods without reason, AMIDORI shall be authorised to claim compensation in the amount of 25% of the contract value unless AMIDORI proves that the amount in damages is higher than this amount or the contracting partner proves that it is lower.
  4. Execution of deliveries, delivery terms and dates
    1. Goods shall be delivered from the AMIDORI warehouse unless otherwise agreed (EXW in acc. with INCOTERMS 2010).
    2. AMIDORI’s delivery obligation is subject to the correct and timely delivery by our suppliers unless AMIDORI is responsible for such incorrect or delayed delivery.
    3. Information pertaining to delivery times or terms shall only serve as a guide unless explicitly agreed otherwise in writing. Claims for compensation on the part of the contracting partner due to delayed delivery, including deliveries made after an extension set by AMIDORI, shall be excluded unless such is a result of intent or gross negligence on the part of AMIDORI. In this case, claims for compensation on the part of the contracting partner shall be limited to a maximum of 5% of the net order amount. AMIDORI shall not be liable for indirect damages and unusual consequential damages. Where AMIDORI is in default of performance of its obligations, it must first be granted a suitable extension. Upon unsuccessful expiration of this extension, the contract partner may withdraw from the contract. Section 323 (II)(2) of the German Civil Code (BGB) remains unaffected.
    4. In the event of force majeure, AMIDORI shall be authorised to postpone delivery for the duration of the hindrance, plus a suitable start-up period, or withdraw from the performance of the contract services not yet rendered. This shall also apply where such events occur during an existing delay. Force majeure shall include any events outside the control of the parties, such as terrorist actions, fire, machine breakdown, explosions, war, civil war, riots or official measures, strikes, natural disasters, failed harvests in relation to the manufacture of the necessary raw materials, as well as any other circumstances for which AMIDORI is not responsible that significantly impede deliveries or render such impossible. It is irrelevant whether such circumstances arise at AMIDORI, the supplier plant or an upstream supplier. Where the aforementioned events render the performance of the contract infeasible for one of the contracting parties, particularly where performance of significant parts of the contract is delayed, this party may declare the contract avoided. Claims for the contracting partners in relation to parts of the contract not yet performed shall not apply.
  5. Shipment, transfer of risk, packaging, partial deliveries
    1. Where AMIDORI is willing to organise the shipment of goods for the contracting party, AMIDORI exclusively shall determine the dispatch route and means of shipment, including the forwarder and haulier. Where the contracting partner fails, for whatever reason, to accept the ordered goods, AMIDORI shall be authorised to request compensation for costs of packaging material specifically manufactured for the business relationship with the contracting partner which, due to its design or imprint, cannot be otherwise used. This shall also apply where AMIDORI has acquired packaging material under the expectation of orders based on forecasts or other plans from the contracting partner and the such corresponding orders are not ultimately made by the contracting partner.
    2. All risk, including risk of seizure, shall be transferred to the contracting partner as soon as goods are handed over to a forwarder or haulier, or at the latest upon the goods leaving the warehouse or supplier plant. AMIDORI shall only provide for insurance on the instruction and costs of the contracting partner. The costs and obligations of unloading shall be borne by the contracting partner.
    3. AMIDORI shall be authorised to perform partial deliveries and early deliveries to a reasonable extent, unless otherwise agreed. Exceeding or falling short of the agreed quantity by up to 3% shall be permitted. In such cases, the contracting partner shall only be obliged to pay for the quantity of goods actually delivered.
  6. Payment due dates, offsetting and retention
    1. All remuneration shall be payable upon receipt of the invoice and must be paid in full without deducting discounts, expenses, taxes and fees of any kind within 30 calendar days. AMIDORI may, however, issue a notice of default by way of a reminder upon expiration of a suitable period of time, or before expiration of this period. Offsetting with counter claims of any kind, as well as the exercise of any rights of retention shall be excluded unless such counter claims are undisputed or established by a final judgement.
    2. Where the prerequisites set out under Section 321 BGB are met, AMIDORI shall also be authorised to declare all outstanding receivables from the business relationship with the contracting partner payable, withhold goods not yet delivered and cease further work on ongoing orders until such payment is secured. Furthermore, AMIDORI shall be authorised to prohibit the resale of goods delivered under retention of title, request the return or concession or joint ownership at the cost of the contracting partner, or prohibit the recovery of assigned receivables.
    3. The statutory provisions shall apply in the event of default of payment. As such, in accordance with Section 288 (2) BGB, a default interest rate of 9% above the basic rate of interest shall apply.
  7. Retention of title
    1. All goods delivered shall remain under the ownership of AMIDORI until all receivables arising from the business relationship, for whatever legal reason, including any future or conditional receivables and receivables from simultaneous or later contracts, are settled.
    2. The contracting partner may only sell goods subject to this retention of title as part of its normal business operations under its normal business conditions and only where the contracting partner is not in default. Sale of such goods shall only be permitted, however, provided that the receivables arising from the resale are transferred to AMIDORI in accordance with paragraphs 3 to 5. The contracting partner shall not be authorised to make any other disposals of the goods subject to retention of title, in particular including the creation of liens or assignment as security.
    3. Receivables and all ancillary rights of the contracting partner arising from the resale of the goods subject to retention of title shall be hereby assigned to AMIDORI. AMIDORI hereby accepts this assignment. Upon request by AMIDORI, the contracting partner shall be obligated to notify its customer of the assignment to AMIDORI and provide the customer with the relevant information and documents pertaining to the recovery. The assignment of receivables shall serve as security to the same extent as the good subject to retention of title. Where the goods subject to retention of title are sold together with other goods not delivered by AMIDORI, this assignment of receivables arising from the resale shall only apply in the amount of the resale value of the relevant goods subject to retention of title sold. Where the contracting partner receives receivables arising from the resale of goods subject to retention of title as part of a current account relationship with its customer, this current account receivable must be assigned to AMIDORI in its full amount. Once this has been successfully offset, it shall be substituted with the recognised balance that shall be deemed as assigned up to the amount of the sum that the original current account receivable represented.
    4. The contracting partner shall be authorised to collect receivables arising from the resale. AMIDORI shall in this respect, however, have the right of withdrawal that it may only exercise in the cases set out in Section VI (3).
    5. An assignment of receivables arising from the resale shall not be permitted unless it involves an assignment typical of genuine factoring of which AMIDORI is notified, and for which the factoring proceeds exceed the value of our secured receivable. Our receivable shall be payable immediately with the credit note of the factoring proceeds.
    6. In the event AMIDORI exercises the retention of title, this shall only be deemed as a withdrawal from the contract where this is explicitly declared in writing. The right of the contracting partner to own the goods subject to retention of title shall be forfeited where it does not fulfil its obligations arising from this or another contract.
    7. The contracting partner must notify AMIDORI immediately of any seizure or other interference by third parties. Any seizures or assignments as security require the permission of AMIDORI.
    8. Where the invoice value of the existing securities exceeds the secured total value of receivables, including secondary claims (interest, costs etc.), by more than 20%, AMIDORI shall be obligated upon the request of the contracting partner to release securities at AMIDORI’s option.
    9. The contracting partner shall be obligated to hold the goods subject to retention of title free of charge, store or label these separately and secure them against common risks. Any potential claims against third parties as a result of loss or damage of these goods shall be hereby assigned to AMIDORI. AMIDORI hereby accepts this assignment.
  8. Notice of defects and warranty
    1. Any minor deviations in the delivered contractual items from the contractual specifications shall not constitute defects where these are a result of natural changes of the raw materials used and which do not signify any qualitative impairment.
    2. Any complaints pertaining to the goods must be submitted to AMIDORI immediately. For visible defects, complaints must be submitted no later than one week after delivery. For hidden defects, complaints must be submitted no later than one week after discovering the defect. All complaints must be made in writing and must provide details of the defect.
    3. Where notice of defects is submitted correctly and within the given timeframe, AMIDORI may choose to repair the defect or deliver a defect-free item (supplementary performance). In the event AMIDORI fails to complete this supplementary performance on two occasions, the contracting partner shall be authorised to reduce the contract price or request cancellation of the contract. The same shall apply where AMIDORI refuses to complete this supplementary performance.
  9. General limitation of liability
    1. In the event of any violation of contractual and extra-contractual obligations, in particular as a result of impossibility, default, breach of duties prior to the contract and unlawful acts, AMIDORI, including its executives and other agents, shall only be liable in the event of intent or gross negligence, and such liability shall be limited to damages foreseeable at the time of concluding the contract and that are typical of such contracts. Liability is otherwise excluded.
    2. These limitations of liability shall not apply in the event of any culpable violation of significant contractual obligations that jeopardises the purpose of the contract, in cases of mandatory liability under product liability laws, in the event of damage to life, body and health, or where AMIDORI has maliciously concealed defects in the item or guaranteed that such defects do not exist. The regulations pertaining to the burden of proof shall remain hereby unaffected.
    3. Unless otherwise agreed, all contractual claims due to the contracting partner shall become statute-barred one year after delivery of the goods, unless such claims are in relation to damages to the body or health or typical, foreseeable damages, or where these arise from intent or gross negligence on the part of AMIDORI. The statute of limitations for legal rights of recourse shall be hereby unaffected. In the event of any supplementary performance, this limitation period shall not restart.
  10. Return of packaging
    1. Old packaging shall be recycled by AMIDORI. The costs for return transport shall be borne by the contracting partner.
  11. Miscellaneous
    1. The place of performance for all contractual obligations is Bamberg.
    2. The place of jurisdiction for all disputes arising from the contract shall be the local and district court responsible for the AMIDORI headquarters, where the contracting partner is a business person, legal entity under public law or a public law special fund. AMIDORI shall be authorised, however, to choose to file a suit in the jurisdiction of the contracting partner.
    3. In addition to these conditions, German law shall also apply for all legal relationships between us and the contracting partner. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 shall not apply.
    4. In the event one provision of the contract becomes invalid or incomplete, the validity of the remaining contract provisions shall be unaffected.
  12. Deliveries and performances by the contracting partner
    1. Subject to any other contractual regulations, the relevant statutory provisions shall apply in the place of Section II up to and including X for all deliveries and performances by the contracting partner. The provisions in Section VIII shall apply accordingly for the completion of inspections of incoming goods and any potential related notice of defects.