General Contract Manufacturing, Contract Filling, Sales, Delivery, Contract and Payment Terms and Conditions of MediGrün Naturprodukte GmbH
We, the company MediGrün Naturprodukte GmbH are prepared to conclude a contract exclusively on the basis of these General Terms and Conditions, which are printed in German. We reject the applicability of other terms and conditions, in particular insofar as they contradict or deviate from our terms and conditions. Such general terms and conditions do not bind us, the company MediGrün Naturprodukte GmbH. For all deliveries, including those from future business transactions, our terms and conditions shall apply exclusively.
2. contract production / contract filling
The pure contract production offer does not include any legal examination of marketability. If such is desired, it must be ordered separately by the customer. As the manufacturer, we do not assume any liability or warranty for marketability with regard to composition, dosage, label text, etc. If any statements have been made in this regard, they shall be deemed to be an exchange of information only. Should it become apparent in the course of production that implementation is technically impossible or can only be implemented at unjustifiable additional expense, we shall be free to refuse implementation. In this case, all services received must be refunded. Any further compensation shall be deemed excluded. Our product calculation is based on the quantities specified in the recipes. Due to unavoidable production-related raw material losses, the delivery quantity may deviate from the order quantity by approx. 10%.
3. offer and conclusion of contract
Our offers are always subject to change, unless they are limited in time. Orders shall be deemed accepted when they have been confirmed by us in writing. Only our written confirmation shall be authoritative for the content of the contractual relationship. Samples are considered type samples, the properties of the sample are not guaranteed. The customer is obligated to indemnify and hold us harmless against all claims of third parties. The customer shall be exclusively liable for the correctness – in particular, but not exclusively, safety, purity, marketability, identity, concentration, etc. – of the raw materials provided by him (possibly via third parties).
4.1 Deliveries shall be made ex works.
4.2 Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
4.3 We may – without prejudice to our rights arising from default on the part of the customer – demand from the customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period of time during which the customer fails to meet its contractual obligations towards us.
4.4 The company MediGrün is not liable for impossibility of delivery or for delays in delivery, as far as these are caused by force majeure or other events which were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the lack of, incorrect or untimely delivery by suppliers; untimely customer supplies such as raw materials, packaging materials, cans, lids, labels, leaflets, folding boxes, etc.), for which we are not responsible. Insofar as such events make it significantly more difficult or impossible for us to deliver or perform and the impediment is not only of temporary duration, we shall be entitled to withdraw from the contract.
4.5 In the event of non-delivery for which we are not responsible, however, the Buyer shall have the exclusive right to withdraw from the contract no earlier than 8 weeks after the agreed delivery date. Further claims are waived. Excluded from this are claims for compensation for damages arising from injury to life, limb or health, if we are responsible for the breach of duty, and other damages based on an intentional or grossly negligent breach of duty. A breach of duty of the company MediGrün Naturprodukte GmbH is equal to that of a legal representative or vicarious agent. In the event of cancellation of an order, the customer is obliged, subject to further claims, to compensate us for the damage incurred for the expenses and any loss of profit.
4.6 The risk shall pass to the customer at the latest when the goods are handed over to the forwarding agent, carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made. If the shipment or the handover is delayed due to a circumstance the cause of which lies with the customer, the risk shall pass to the customer at the time when the delivery item is ready for shipment and we have notified the customer of this.
4.7 Storage costs after transfer of risk shall be borne by the customer. In case of storage by MediGruen GmbH, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. The assertion of demonstrably higher or lower storage costs remains mutually reserved.
If packaging is carried out in containers supplied by the customer, no guarantee is assumed for the suitability of the packaging. We are entitled, but not obliged, to give notice of unsuitable packaging material. If no subsequent delivery of the rejected packaging material is made within two weeks, we shall be entitled to use suitable material at the customer’s expense.
Transport damage must be reported to us immediately. If a forwarding agent is commissioned with the shipment, the damage incurred must be noted in the consignment note. In any case, in the event of transport damage, the respective terms and conditions of the carrier must be observed and the damage must also be claimed against the carrier. We shall be entitled to make partial deliveries or render partial services at any time. Excess or short deliveries of a maximum of 10% of the contractual quantity are permissible.
6. notice of defects
Compliance with our delivery and performance obligations shall be subject to the proper and timely fulfillment of the customer’s obligations.
6.1 The customer is obliged to inspect the goods within three working days of receipt. Defects which can be detected during this inspection with due diligence must be notified to us in writing or by e-mail within this period, other defects must be notified to us immediately after detection. Complaints made at a later date will not be recognized. Goods subject to complaint must be returned by the customer until our final decision on the rejection or acceptance of warranty obligations.
and may only be returned with our consent. In any case, the customer must allow us to inspect the goods, if necessary by a third party commissioned by us.
6.2 Deviations from the actual filling weight are possible due to deviating specific weights of individual batches, and are not a defect within the scope of the prepackaging regulation.
6.3 Any complaints shall only be treated as price-reducing if they are simultaneously documented by a DAkkS (Deutsche Akkreditierungsstelle GmbH) accredited laboratory and must be reported immediately after receipt of the laboratory documents, irrespective of the time limit for complaints in No. 6.1).
6.4 In the case of contract manufacturing, we do not assume any warranty with regard to the chemical, physical and microbial reactions of the finished product caused by the formulation. Likewise, we exclude all claims for damages subject to the following para. 7. “Statute of Limitations, Limitation of Liability” from. The customer is responsible for the analysis of the finished products. The customer may commission us with the analysis of the final products, separately and against payment of costs.
6.5 Warranty for chemical stability, technical shelf life, microbiological development and reaction of the final product with the primary packaging is only assumed after a 6-9 week stress test has been carried out, whereby this is only carried out after a separate order. We do not bear the costs of any analyses ordered by the customer. The correct designation under food law when distributing the goods is independent of our product designation and is the responsibility of the customer.
6.6 We accept raw materials provided by the customer after consultation. The goods can be sent to us after receipt of the order confirmation, but not before. Storage costs for raw goods received before order confirmation shall be borne by the customer. In case of storage by MediGruen GmbH, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per week. The assertion of demonstrably higher or lower storage costs remains mutually reserved.
The goods are only accepted, released and processed with the corresponding certificate of analysis, delivery bill and details of the best-before date and batch number. Otherwise, the raw material cannot be processed.
6.7 If interventions are carried out by third parties, or the delivered goods are not used, stored or treated as intended, etc., any liability of MediGrün Naturprodukte GmbH shall lapse, insofar as existing defects would not have demonstrably occurred even without these interventions or use contrary to the intended purpose, etc..
7. limitation of actions, limitation of liability
7.1 Claims for defects shall become statute-barred 12 months after delivery of the goods to the customer, however, at the earliest after expiry of a specified best-before date. Notwithstanding the foregoing, § 479 BGB shall apply to the limitation period for claims under a right of recourse.
7.2 If, despite all due care, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, subject to proper and timely notification of defects, at our discretion either repair the goods or deliver replacement goods (subsequent performance). We shall always be given the opportunity to remedy the defect within a reasonable period of time. Any recourse claims shall remain unaffected by the above provision without restriction. Beats the
If subsequent performance fails twice, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
7.3 Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear, as well as in the case of damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress or due to special external influences which are not assumed under the contract. If the customer or third parties make improper changes or other processing, there shall also be no claims for defects for these and the resulting consequences.
7.4 Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer’s branch office or to a place of delivery other than the place of delivery expressly agreed in the individual case, unless the transfer is in accordance with their intended use.
7.5 The customer’s right of recourse against us shall exist only to the extent that the customer has not entered into any agreements with its customer that go beyond the statutory mandatory claims for defects. Furthermore, paragraph 7.4 shall apply mutatis mutandis to the scope of the Customer’s right of recourse against the Supplier.
7.6 The above limitations of liability shall not apply to the fulfillment of essential contractual obligations or in the case of guaranteed characteristics. However, our liability for damages is generally limited to such damages that were foreseeable at the time of the conclusion of the contract, taking into account all known or recognizable circumstances with due diligence. Furthermore, we shall only be liable for indirect damage and consequential damage resulting from defects in the goods to the extent that such damage is typically to be expected when the goods are used for their intended purpose.
7.7 The foregoing restrictions and limitations shall not apply:
- For damages resulting from injury to life, body or health, which are based on a negligent breach of duty on our part or an intentional or grossly negligent breach of duty of one of our legal representatives or vicarious agents;
- For other damages based on our grossly negligent breach of duty or on an intentional or grossly negligent breach of duty by one of our legal representatives or vicarious agents;
- For liability under the Product Liability Act.
All of the above liability rules apply equally to the personal liability of our legal representatives, executive bodies, employees and other vicarious agents.
8 Prices, Terms of Payment, Buyer’s Obligation to Cooperate
All prices are net ex works, unless otherwise agreed. The invoice amounts are due within the payment period shown on the invoice in euros without deduction. Any shipping costs will be charged additionally. The customer is solely responsible for any customs formalities, the handling of the import as well as customs clearance; he also bears customs duties, levies, taxes, costs and fees. We shall not be deemed to be the distributor at any time. Any border traffic is done on behalf of the customer.
8.1 Subsequent price changes by our suppliers are reserved in any case and may be passed on to the customer. Only the quantities, masses and weights determined by our plants or distribution warehouses upon dispatch shall be decisive for invoicing. Our invoices are payable net immediately upon receipt, unless otherwise agreed in writing. If the payment deadline is exceeded, we are entitled to charge interest on the purchase price at a rate of 9% above the respective base interest rate of the European Central Bank from the expiry date. We expressly reserve the right to claim further damages for delay. We are furthermore entitled to withhold further deliveries until the buyer has settled all overdue claims in full. We reserve the right to assign the claim to third parties.
8.2 The customer shall support us in the performance of the contractually owed services. The customer is obliged to provide the services to be provided by him (e.g. notification of the delivery address, delivery of the labels, delivery of the suitable packaging, delivery of the provided raw materials) in due time. In the event of a delay on the part of the customer, we shall be entitled to invoice our production costs incurred up to that point. In this case, the customer shall be in default no later than 14 days after receipt of a written request from us. A right of the customer to refuse performance is excluded. Offsetting by the customer is only permissible insofar as the customer’s counterclaim is acknowledged by us in writing or has been legally established. If the invoice is not paid, we shall be entitled to demand payment of the amount specified in Section 8.1. of these conditions to demand the agreed interest rate. Despite any provisions of the customer to the contrary, we shall be entitled to offset payments against the customer’s older debts first. In this case, we will inform the customer immediately about the type and amount of the settlement made. A payment shall only be deemed to have been made when we can dispose of the amount. Checks and bills of exchange are only accepted on account of performance.
9. retention of title
9.1 All goods delivered shall remain our property until the customer has settled all claims, in particular claims from bills of exchange and checks still in circulation, as well as the claims from the respective balance of the business relationship with us.
9.2 Machining and processing of the goods delivered under retention of title shall be carried out for us as manufacturer within the meaning of § 950 of the German Civil Code (BGBB) without any obligation on our part. In the event of processing by the customer with other goods not belonging to us or delivered by us, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods delivered under retention of title to the invoice value of the processed goods. The same applies in the event of mixing.
9.3 Should the reserved property expire due to combination, processing or mixing, the customer hereby assigns to us the rights to which it is entitled in the new stock or the new item in the amount of the respective invoice value of the goods delivered under reservation of title. The customer shall store the new stock or the new item for us free of charge. The co-ownership rights created shall also be deemed to be our reserved property.
9.4 The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business as long as he is not in default of performance to us. The customer is obliged to agree a reservation of title with his customers. The customer’s claim arising from the resale shall already now be deemed assigned to us in the amount of the purchase price attributable to the goods subject to retention of title. We accept this assignment already today. The retention of title shall expire in the event of resale or upon payment of the full purchase price to us. If the customer enters into or has entered into a current account agreement with its customers which results in the claim from the resale not passing directly to us, the claim from the current account relationship against the customer’s customer shall be deemed assigned to us already now. We in turn hereby accept this assignment. All claims of the customer arising from the resale of the reserved goods which have been assigned to us on the basis of this condition shall serve as security for the claim to the same extent as the reserved goods themselves.
9.5 The customer shall inform us immediately if execution measures are taken against the reserved property. If the customer should acquire claims against an insurer or other third parties as a result of damage, reduction, loss or other destruction of the reserved goods, these claims with all ancillary rights shall already now be assigned to us to the extent of the value of the reserved goods at the time of delivery, and we hereby accept the assignment. The retention of title is conditional in such a way that it expires without further ado upon full payment of all claims arising from the business relationship. In this case, ownership of the reserved goods shall pass to the customer and the customer shall also be entitled to the assigned claims. If the value of the securities exceeds our claims by more than 20%, we shall release securities of our choice to this extent at the customer’s request.
10 Liability of the customer
The customer bears sole responsibility for all textual and promotional statements on the packaging and in the environment of the marketing. Insofar as liability for us should nevertheless arise from the respective legal situation, the customer shall indemnify us internally against any claims and shall provide corresponding compensation for damages, including all costs for the defense against such claims. This applies in particular to any legal fees and court costs incurred. This provision shall also apply insofar as the rights of third parties are impaired by the marketing of the respective product (e.g. patent rights or similar). This applies in particular in the event that our goods are exported by the customer to territories outside the Federal Republic of Germany, especially if our products infringe the property rights of third parties. The same applies if physical injury or damage to health as well as damage to property occurs due to improper use.
11. place of performance
Unless otherwise stated in the order confirmation, the place of performance is the registered office of MediGrün Naturprodukte GmbH.
12 Jurisdiction / Choice of Law
The place of jurisdiction is the court responsible for the registered office of MediGrün Naturprodukte GmbH. However, we are additionally entitled to bring an action against the customer at its general place of jurisdiction or at another place of jurisdiction provided for by law, Union law or international law.
The implementation, application and interpretation of these general terms and conditions, the contracts concluded on their basis and the business relationship with the customer as a whole shall always be governed exclusively by German law, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods.
13. severability clause
Should individual provisions of these General Business Relationships, and/or the respective supplementary individual contractual provisions with the Customer, including this provision itself, be or become invalid in whole or in part, the validity of the remaining provisions or parts of such provisions shall remain unaffected. The invalid provision shall be replaced by valid provisions which come closest to the economic intent, in case of doubt the respective statutory provisions shall apply as a substitute.