T&C

Bayerische Milchindustrie eG (“BMI”) – General Terms & Conditions
(version: 28.08.2017)

I. Scope of Application

  1. These General Terms & Conditions shall apply for all BMI’s business relations with contractual partners, provided those partners are entrepreneurs as defined in German Civil Code § 14. They shall also apply for all business dealings at any future date, even if they are not expressly re-agreed at the time.
  2. BMI’s General Terms & Conditions shall apply exclusively. Divergent, conflicting or supplementary terms of business laid down by the contractual partner shall be incorporated in the contract only if and to the extent that BMI has expressly consented to their application. This requirement for consent shall apply in all instances – even if e.g. BMI renders performance for the contractual partner unconditionally, despite being aware of the latter’s terms of business.
  3. Individual arrangements agreed with the contractual partner on a case-by-case basis, including ancillary agreements, riders and amendments, shall always take precedence over these General Terms & Conditions. Subject to any substantiation to the contrary, the content of such arrangements or agreements shall be as set forth in a written contract or confirmed by BMI in writing.

II. Quotation, Contract Closure

  1. An order from the contractual partner that must qualify as a proposal to conclude a contract may be accepted by BMI within two weeks, either by sending confirmation of the order or by dispatching the ordered goods within said period.
  2. BMI’s quotations are without obligation and subject to alteration, in particular with regard to quantities, prices and delivery times, unless BMI expressly designates them as binding.
  3. BMI shall reserve its proprietary rights, copyrights and other property rights in all images, calculations, product specifications and drawings as well as other documents. The contractual partner may only disclose such items to third parties with BMI’s written consent, irrespective of whether or not BMI has marked them as confidential.

III. Payment Terms, Setoff, Right of Retention

  1. BMI’s prices are ex works, unless otherwise stated in the confirmation of the order. BMI’s quoted prices do not include statutory turnover tax; wherever it is payable, turnover tax is indicated as a separate item on the invoice at the statutory rate in force on the date of invoice.
  2. Unless otherwise agreed in writing, the invoiced amount shall fall due for payment without deduction within ten days of the date of invoice. Payment is only deemed effected once BMI is able to freely dispose over the amount. If payment is made by cheque, payment is only deemed effected once the cheque has been redeemed.
  3. BMI shall be entitled to deliver outstanding goods and services in return for advance payment only, if it learns of any circumstances subsequent to contract closure which might substantially impair the contractual partner’s credit standing, and might jeopardise payment by the contractual partner of BMI’s outstanding receivables from the respective contractual relationship.
  4. If the contractual partner defaults in payment of any sum, statutory regulations shall apply.
  5. Even if complaints about defects are filed or counterclaims are asserted, the contractual partner shall only have a right of set-off if the counterclaims have been declared res judicata or are undisputed.
  6. 6. The contractual partner shall only be authorised to exercise a right of retention provided its counterclaim is based on the same contractual relationship and has been declared res judicata or is undisputed.

IV. Delivery

  1. Any delivery dates or times given that are not declared binding in the agreement shall be for information only and without obligation. Performance of BMI’s delivery obligations shall be contingent upon the contractual partner’s obligations being duly performed in a timely fashion, and subject to BMI receiving its own supplies correctly and punctually.
  2. BMI shall be entitled at any time to make part-deliveries and provide part-services, insofar as this is reasonably acceptable to the contractual partner.
  3. Insofar as BMI is not able to meet binding delivery dates for reasons for which it is not responsible, it shall inform the contractual partner to this effect without delay and at the same time give notification of the anticipated new delivery date. If the goods or services are not available by the new delivery date either, BMI shall be entitled to withdraw from the contract in whole or in part; BMI shall immediately refund any counter-performance already rendered by the contractual partner.
  4. Any default in delivery on BMI’s part shall be defined in accordance with statutory regulations. In each and every case however, a written warning from the contractual partner shall be required. If BMI defaults in delivery, the contractual partner may demand flat-rate compensation for any default losses. The flat-rate compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. BMI reserves the right to prove that the contractual partner has not been caused any losses, or has only sustained substantially smaller losses than the foregoing flat-rate amount.
  5. The above shall be without prejudice to the contractual partner’s rights pursuant to Section VII. below and without prejudice to BMI’s statutory rights, in particular if the obligation to perform is ruled out, e.g. owing to the impossibility or unreasonableness of performance and/or supplementary performance.

V. Shipping/Packaging, Passing of Risk, Delay in Acceptance

  1. Unless otherwise agreed, the shipping method and the type of packaging shall be chosen at BMI’s own conscientious discretion.
  2. If BMI procures special packaging for a particular product at the contractual partner’s request, the contractual partner shall hold consultations with BMI on the quantities of packaging that are to be obtained before they are actually procured. If the quantities of packaging procured in consultation with the contractual partner are not fully used up for reasons for which BMI is not responsible, the contractual partner shall bear the costs for the excess packaging, as well as for destruction thereof if the contractual partner requests that this be done.
  3. The risk of accidental loss or accidental deterioration of the goods shall pass to the contractual partner at the latest when they are handed over.
  4. If the contractual partner defaults in acceptance or fails to cooperate, or if delivery by BMI is delayed for other reasons for which the contractual partner is responsible, then BMI shall be entitled to demand compensation for the losses thus incurred, including extra outlay (e.g. storage costs). For this, BMI shall charge flat-rate compensation at a rate of 0.25% of the respective invoiced amount per week that passes, commencing on the delivery date or on notification that the goods are ready for dispatch. This shall be without prejudice to BMI’s right to prove bigger losses and to its statutory rights, in particular claiming adequate compensation and terminating the contract; however, the flat-rate compensation shall be counted towards any further pecuniary claims. The contractual partner shall be allowed to prove that BMI has not been caused any losses, or has only sustained substantially smaller losses than the foregoing flat-rate amount.

VI. Liability for Defects

  1. Unless otherwise specified below, statutory regulations shall apply for the contractual partner’s rights in the event of material defects and defects in title. In all cases this shall be without prejudice to the special regulations that apply if the final recipient of the goods is a consumer (German Civil Code § 478, § 479).
  2. The agreement on the goods’ quality features shall first and foremost be the basis for BMI’s liability for defects. All product specifications covered by the individual contract shall be deemed agreed quality features; it shall be immaterial whether such product specifications originate from the contractual partner, from the manufacturer or from BMI. BMI shall not assume any liability for public statements made by the manufacturer or by other third parties, e.g. advertising messages.
  3. The contractual partner’s defect-related claims and rights shall only apply provided the contractual partner has duly performed its inspection and reporting duties pursuant to German Commercial Code § 377. If a defect emerges during the initial inspection or later, this must be reported to BMI promptly in writing. If the contractual partner fails to make a proper inspection and/or duly report a defect, BMI’s liability for the unreported defect shall be excluded.
  4. If the goods delivered are defective, BMI may choose first of all whether to render supplementary performance by eliminating the defect or by supplying a new item in perfect condition. This shall be without prejudice to BMI’s right to refuse supplementary performance on the conditions laid down by law. The contractual partner must allow BMI the time and opportunity required for rendering supplementary performance and for making a substitute delivery, and in particular it must hand over the rejected goods to BMI for testing purposes.
  5. If a defect does in fact exist, BMI shall bear the costs required for conducting tests and for rendering supplementary performance, in particular transport costs, labour costs and material costs. Otherwise, BMI can demand that the contractual partner reimburse the costs that are incurred as a result of its unjustified demand for the elimination of defects, in particular testing costs and transport costs, unless it was not evident to the contractual partner that the item was not defective.
  6. If supplementary performance fails, or if a reasonable period for supplementary performance having to be set by the contractual partner expires to no avail or can be dispensed with by law, then the contractual partner may withdraw from the contract or demand a reduction in the agreed price. In the event of a minor defect, however, the right of withdrawal shall not exist.
  7. In the case of defects, the contractual partner’s right to claim damages or compensation for wasted expenditures shall likewise only exist in accordance with the provisions of Section VII. below, and otherwise be excluded.
  8. The limitation periods for claims based on material defects and defects in title shall be one year from the date of delivery. If formal acceptance procedure has been agreed, the limitation period shall commence on formal acceptance.

VII. Other Liability

  1. Unless otherwise specified in these General Terms & Conditions including the following provisions, BMI shall be liable in accordance with statutory regulations for any breach of contractual or non-contractual duties.
  2. In the context of liability for fault, BMI shall be liable to pay compensation – for whatsoever legal cause – in cases of wilful intent and gross negligence. Subject to less stringent liability criteria being laid down by law, BMI shall only be liable in cases of simple negligence (a) for losses resulting from mortal injury, physical harm or health damage, and (b) for losses resulting from a not insubstantial breach of cardinal duty, whereby in this latter case BMI’s liability shall be limited to compensation for the foreseeable damage typically occurring. These limitations of liability shall also apply in cases where a breach of duty is committed by a person for whose fault BMI by law has to assume responsibility. They shall not apply insofar as BMI has fraudulently concealed a defect, or has assumed a guarantee for the goods’ quality features, or is liable under the German Product Liability Act.
  3. The contractual partner can only rescind or terminate the contract on the grounds of a breach of duty that does not involve a defect if BMI is responsible for such breach of duty. A free right of termination on the part of the contractual partner is excluded. In all other respects, statutory regulations and legal consequences shall apply.
  4. The limitation periods laid down in Section VI. 8. above shall also apply for the contractual partner’s contractual and non-contractual compensation claims that are based on a defect in the goods; this shall not apply for compensation claims pursuant to Section VII. 2. sentences 1 and 2 (a), or for compensation claims under the German Product Liability Act which shall become statute-barred exclusively in accordance with the statutory limitation periods.

VIII. Retention of Title

  1. BMI shall reserve title to the goods sold until such time as all its current and future receivables ensuing from the contractual relationship and on-going business dealings – also referred to below as “Secured Claims” – have been paid in full.
  2. Until such time as the Secured Claims have been paid in full, the reserved goods may neither be pledged to third parties, nor assigned by way of security. The contractual partner must notify BMI in writing without delay if a petition for the institution of insolvency proceedings is filed, or if third parties interfere with any goods belonging to BMI, e.g. via attachment.
  3. If the contractual partner acts in breach of contract, in particular if its fails to pay due invoiced amounts, BMI shall be entitled by law to withdraw from the contract and/or to demand surrender of the goods by reason of its retention of title. A demand for surrender of the goods shall not be deemed a simultaneous declaration of withdrawal from the contract; on the contrary, BMI shall be entitled to merely demand surrender of the goods whilst reserving the right to declare withdrawal. These rights shall only be asserted after BMI has set the contractual partner a payment deadline to no avail, or if setting such a deadline can be dispensed with by law.
  4. As long as it does not default in payment, the contractual partner shall be entitled to duly sell and/or use the reserved goods in business operations. By way of security, the contractual partner here and now fully assigns to BMI the receivables in respect of the reserved goods that are created on reselling them or on other legal grounds, e.g. insurance repayments; BMI hereby accepts such assignment. Until further notice, BMI authorises the contractual partner to collect in its own name and for its own account any receivables that have been assigned to BMI. This collection authority can be revoked at any time if the contractual partner does not duly perform its payment obligations. The contractual partner is not authorised to assign these receivables, even for factoring purposes, unless – as long as BMI still has Secured Claims in relation to the contractual partner – the factor is simultaneously obligated to make over to BMI directly any payments up to the amount of the receivables.
  5. Any processing or modification of the reserved goods by the contractual partner shall in all events be done on BMI’s behalf. Insofar as the reserved goods are processed with other items not belonging to BMI, BMI shall acquire joint title to the new item at a rate of the value of the reserved goods in proportion to that of the other items processed at the time of processing. If as a result of such combination the contractual partner’s item then has to be regarded as the main object, BMI and the contractual partner agree that the contractual partner shall assign pro rata joint title to such object to BMI; BMI hereby accepts this assignment. BMI’s solely or jointly owned property thus created shall be stored by the contractual partner on BMI’s behalf free of charge.
  6. If the realisable value of the collateral exceeds BMI’s Secured Claims by more than 10%, BMI shall release items of security of its own choosing at the contractual partner’s request.

IX. Place of Performance, Venue, Governing Law

  1. Landshut shall be place of performance and venue for all and any disputes arising between BMI and the contractual partner from the contracts concluded by and between the contractual partner and BMI (including lawsuits involving cheques and bills of exchange), provided the contractual partner is a registered trader or entrepreneur as defined in German Civil Code § 14. However, BMI shall be entitled to also sue the contractual partner at its place of residence and/or place of business.
  2. Relations between the Parties shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Sales Convention (CISG).