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General terms and conditions MIAVIT Food GmbH, as of 05/2022

The deliveries, services and offers of MIAVIT Food GmbH – hereinafter referred to as “Seller” – shall be based exclusively on these Terms and Conditions. They shall therefore apply in current and for all future business relations, even if they are not expressly agreed again. Any terms and conditions of the customer – hereinafter referred to as “Buyer” – which are contrary to or deviate from the terms and conditions of the Seller or which supplement these terms and conditions are hereby rejected. They require the express consent of the seller to become part of the contract.

1. Offer, Conclusion of contract, Content of contract

1.1 The offers/cost estimates of the Seller are subject to change and non-binding.
1.2 If the Buyer makes an offer by placing an order, the contract shall be concluded by the Seller’s order confirmation.
1.3 The agreements made between the parties upon conclusion of the contract shall be set down in writing in their entirety. The Seller’s employees shall not be authorized to make any verbal subsidiary agreements or to give any verbal assurances which go beyond the contents of the written contract. Insofar as this clause refers to written agreements, this shall also include declarations in text form.
1.4 The Seller shall only and exclusively provide the deliveries and/or services expressly specified in its order confirmations.

2. Prices

2.1 The prices stated in the Seller’s order confirmation plus the applicable statutory value added tax shall apply. Unless expressly agreed otherwise, the prices shall be FCA Essen (Oldb.) in accordance with INCOTERMS 2020.
2.2 Deductions of cash discount require an explicit agreement.

3. Delivery and performance period

3.1 The delivery period shall commence on the date of dispatch of the Seller’s order confirmation, but not before the Buyer has provided any documents, approvals, releases to be obtained and not before the Seller has received an agreed down payment.
3.2 Force majeure and other circumstances or events for which the Seller is not responsible and which impede the timely performance of the Seller’s contractual obligations (including, in particular, strikes, lawful lockouts, natural disasters, statutory or official orders, epidemics and pandemics, war or warlike conditions, etc.) shall release the Seller from its obligation to perform/deliver for the duration of their effects and a reasonable restart period or, if they lead to the permanent impossibility of performance, completely. In the event of an epidemic or pandemic, this shall also apply if such epidemic or pandemic had already occurred at the time of conclusion of the contract, but the resulting measures or circumstances leading to the impediment were neither known to the Seller nor should have been known to the Seller. The above provision shall apply accordingly if events of force majeure occur at the Seller’s suppliers or their sub-suppliers.
3.3 If the impediment lasts longer than three months, each of the parties shall be entitled to rescind the contract with respect to the part not yet performed. The Buyer’s right to rescind the contract shall be subject to the granting of a reasonable grace period. If the delivery time is extended or if the Seller is released from its obligation, the Buyer may not derive any claims for damages from this. The Seller may only invoke the aforementioned circumstances if it notifies the Buyer without delay.
3.4 Delivery shall also be made subject to correct and timely delivery to the Seller.
3.5 If the Seller is in default due to simple negligence, its liability for damages caused by delay (damages in addition to performance) shall be limited to 5 % of the invoice value of the deliveries and services affected by the delay. This shall not apply in the event of culpable injury to body, life or health.
3.6 The Seller shall be entitled to make partial deliveries and render partial services, provided that these are reasonable for the Buyer.
3.7 Compliance with the Seller’s delivery and performance obligations shall be subject to the timely and proper fulfillment of the Buyer’s obligations.

4. Place of Performance, Takeover, Acceptance and Transfer of Risk

4.1 Unless expressly agreed otherwise, delivery shall be made FCA Essen (Oldb.) in accordance with INCOTERMS 2020. The place of performance for deliveries and services of the Seller, including subsequent performance, shall thus be the warehouse of the Seller in Essen (Oldb.). The risk shall pass to the Buyer as soon as the consignment has been handed over to the person carrying out the transport or has left the Seller’s warehouse in Essen (Oldb.) for the purpose of dispatch, unless a deviating provision has been expressly agreed. This shall also apply to partial deliveries/services, even if the Seller has assumed other services (e.g. transport or transfer). In the event that shipment becomes impossible through no fault of the Seller or is delayed for reasons for which the Seller is not responsible, the risk shall pass to the Buyer upon notification of readiness for shipment.
4.2 The Seller shall be entitled to store the supplies/services which the Buyer has not accepted within the agreed period of time at the Buyer’s expense for the customary local remuneration and to insure them against theft, breakage, fire, water and other damage at the Buyer’s expense if the Buyer does not prove in writing that such insurance has been taken out within a reasonable period of time (however, no longer than five working days).
4.3 The Buyer shall immediately accept and take delivery of the supplies/services.

5. Rights of the Buyer due to defects

5.1 The Buyer shall inspect the received goods for completeness, transport damage and defects. Obvious defects shall be reported immediately upon receipt of the delivery, defects detectable in the course of a proper inspection shall be reported no later than one week after delivery, and other defects that become apparent later shall be reported no later than one week after discovery within the warranty period. Defects discovered shall in any case be notified before processing, mixing or resale. Transport damages shall be notified directly to the carrier.
5.2 The Seller warrants that its products are of merchantable quality.
5.3 The delivered products shall be used for their intended purpose within three months after delivery, unless a longer shelf life has been expressly stated by the Seller.
5.4 The limitation period for material defects and defects of title shall be one year and shall commence with the passing of risk. This shall not apply to claims for damages based on intent or gross negligence or in the event of the existence of one of the liability cases specified in Section 8.3. The limitation provision of §445b of the German Civil Code for the case of supplier recourse shall also remain unaffected.
5.5 The Seller shall not be obliged to have goods purchased from it analyzed prior to resale if it has had the contents/content guaranteed at the time of purchase or if it may assume from experience that the purchased goods have the agreed quality. The Seller shall not be liable for any damage resulting from the Seller’s instructions for use or application not being followed or the Buyer modifying the products.
5.6 The Buyer shall give the Seller the opportunity to effect subsequent performance within a reasonable period of time, namely, at the Seller’s option, by remedying the defect, by replacing the delivery or by subsequent delivery of missing quantities.
5.7 If the subsequent performance finally fails, is refused by the Seller, cannot reasonably be expected of the Seller or the Buyer, or is only possible at disproportionate cost, the Buyer may – without prejudice to any claims for damages – rescind the contract or reduce the remuneration.

6. Extended and expanded retention of title

6.1 The Seller shall retain title to the items delivered by it (Retained Goods) until all claims to which it is entitled under the contract or under the business relationship with the respective Buyer, irrespective of their legal basis, and which arise at the time of conclusion of the contract, had already arisen or will arise in the future from the business relationship, have been settled in full.
6.2 The Buyer shall be entitled to resell, process, mix, blend or combine as well as to subsequently sell within the scope of extended retention of title, provided that this is done in the ordinary course of business.
6.3 Any mixing, blending, processing or transformation of the Retained Goods shall be carried out by the Buyer on behalf of the Seller. In the event of any mixing, blending, processing or transformation with other goods not belonging to the Seller by the Buyer, the Seller shall acquire co-ownership of the new item in the amount of the invoice value of the Retained Goods. The new item resulting from the mixing, blending, processing and transformation shall be deemed to be Retained Goods within the meaning of these terms and conditions.
6.4 The Buyer hereby assigns to the Seller in advance all claims arising in connection with the resale of the Retained Goods including ancillary rights as well as any claims against its insurers as security, irrespective of whether the resale takes place before or after processing or mixing or blending. If the Retained Goods are sold by the Buyer together with other goods not belonging to the Seller, whether without or after mixing, blending, processing or transformation, the claims and receivables shall be assigned to the Seller in the amount of the invoice value of the Retained Goods. The Buyer shall remain entitled and obligated to collect the claim from the resale despite the assignment as long as the Seller does not revoke this authorization. The Seller undertakes not to collect the receivables itself as long as the Buyer duly fulfills its contractual obligations. The Buyer shall immediately transfer the collected amounts to the Seller in the amount of the claims due to the Seller and keep them separate from its other assets.
6.5 The Buyer shall not be entitled to pledge the Retained Goods or to assign them as security. The Buyer shall immediately notify the Seller in writing of any impairment of the Seller’s rights, in particular by attachment or seizure of the Retained Goods, enclosing copies of the attachment records, etc. The Buyer shall also notify the Seller in writing of any such impairment of the Seller’s rights. Insofar as the third party is not in a position to reimburse the Seller for the judicial and extrajudicial costs incurred as a result of such intervention, the Buyer shall be liable for the loss incurred by the Seller.
6.6 If the Buyer is in default of payment or violates any of the obligations arising from the agreed extended and expanded retention of title, the entire remaining debt shall become due immediately.
6.7 If the retention of title or the assignment is not effective under the law in whose area the goods are located, the security corresponding to the retention of title or the assignment in this area shall be deemed agreed. If the Buyer’s cooperation is required for the creation, the Buyer shall be obliged to take all reasonable measures (such as registration or publication requirements) at its own expense which are necessary for the creation and maintenance of such rights.
6.8 Upon Buyer’s request, Seller shall be obligated to release to Buyer its title to the Retained Goods and the claims assigned to it to the extent that their value exceeds the value of Seller’s total claims against Buyer by more than 10 %. The choice of the securities to be released shall be incumbent upon the Seller.

7. Payment

7.1 Unless otherwise agreed, invoices of the Seller shall be payable 14 days after the date of the invoice.
7.2 Payment shall be deemed to have been made only when the Seller can dispose of the amount. In the case of checks and bills of exchange, payment shall only be deemed to have been made when these have been honored without reservation.
7.3 The Buyer may only set off claims against the Seller with undisputed or legally established claims and is also only entitled to assert rights of retention on the basis of such claims. This restriction shall not apply to claims of the Buyer due to defects or (partial) non-performance of the contract, insofar as these claims result from the same contract as the claim of the Seller.

8. Liability

8.1 The Seller’s liability for damages of any kind whatsoever shall be excluded unless the damage was caused intentionally or by gross negligence by the Seller, its legal representatives or vicarious agents (Section 278 of the German Civil Code) or unless the damage was caused by the culpable breach of a material contractual obligation by the Seller. Material contractual obligations are those whose fulfillment is necessary to achieve the purpose of the contract and on whose compliance the Buyer regularly relies and may rely.
8.2 Insofar as the Seller is liable in accordance with the above provision, its liability shall be limited to the foreseeable damage typical for the contract, insofar as the Seller and its vicarious agents cannot be charged with intent or gross negligence.
8.3 The above limitations of liability shall not apply in the event of culpable injury to life, body or health, the assumption of a guarantee of quality or the fraudulent concealment of a defect as well as for mandatory liability under the Product Liability Act.
8.4 The provisions under Sections 8.1-8.3 shall apply mutatis mutandis if the Buyer asserts a claim for reimbursement of futile expenses (Section 284 of the German Civil Code) instead of damages in lieu of performance.

9. Applicable law, Place of jurisdiction, Partial invalidity

9.1 These Terms and Conditions and the entire legal relationship with the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.
9.2 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 Seller’s registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
9.3 Should any provision in these Terms and Conditions or any provision within the scope of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
9.4 The Seller shall be entitled to process and store the data relating to the respective contract in compliance with the applicable provisions of data protection law, insofar as this is necessary for the execution and processing of the contract. The collection, transmission or other processing of personal data of the Buyer for purposes other than those mentioned is not permitted.

General Terms and Conditions for Purchases by MIAVIT Food GmbH, as of 12/2023

1. General

MIAVIT Food GmbH issues orders on the basis of these general terms and conditions for purchases. Any different terms and conditions of the supplier do not become content of the contract, even if we do not expressly object to them. Even if we accept delivery/performance having knowledge about different terms and conditions of the supplier without an express objection against the applicability of such terms and conditions, this is not to be understood as an agreement with the applicability of the terms and conditions for deliveries.

2. Offers / conclusion of the contract

2.1   Offers from the supplier must be submitted in binding form and free of charge. The supplier must automatically point out in the supplier’s offer any price changes and any change with regard to the product (quality, composition, origin etc.) compared to previous orders.
2.2   If we submit an offer by issuing our order, we are bound to the order for three workdays after the order has been received. Order confirmations from the supplier must be sent to supply-food@miavit.de. If the supplier accepts our order subject to deviations, the supplier must clearly point out these deviations to us in an offer. A contract is only concluded when we have consented to these deviations in writing.

3. Delivery dates & contract penalty

3.1   All delivery dates and volumes are binding. Delivery deadlines will be calculated starting as of the order date. Delivery deadlines in an order confirmation which deviate from the delivery dates set forth in our order are only determinative if we have expressly consented to such different deadlines in writing. Compliance with the delivery date depends on proper delivery to the address we have stated for the delivery or the location where the delivered items will be used.
3.2   If the supplier recognizes that agreed delivery dates cannot be complied with for any reasons whatsoever, the supplier must notify this to us without undue delay and state the likely duration and reasons for the delay in text form. This does not affect our claims for delay.
3.3   In the event of delay, the supplier undertakes to pay a contract penalty in the amount of 0.5 % of the gross order value of the goods that are delivered late for each calendar day of the delay up to a maximum of 5 % of the gross order value of the delayed delivery. The contract penalty becomes due when the supplier exceeds the agreed date, unless the suppler is not responsible for exceeding the deadline. We are entitled to reserve the right to assert the contract penalty until the (final) invoice has been settled.

4. Delivery, packaging and markings

4.1   Deliveries are made within Germany “delivery duty paid” [frei Haus] to the location stated in the order. If the destination is not stated and unless agreed otherwise, the delivery must be made to our business headquarters in 49632 Essen (Oldb.). The risk of accidental loss or deterioration passes to us when the handover takes place there. The respective destination is the place of performance for the delivery and any supplementary performance.
4.2   The shipment must be announced to us in advance in writing so that we know the information about the number of units, the package sizes and weights before the goods arrive. This also applies for any special provisions for handling the goods, especially for unloading, transport and storage in our business premises.
4.3   We are open to accept deliveries from 8:00 am – 2:00 pm, Monday through Friday.
4.4   The received weights determined by employees on our shop scales apply for the determination of weight.
4.5   The supplier is required to comply with the agreed specifications and requirements with regard to packaging and labelling.
4.6   The supplier is required to apply the legally required markings at the own expense to the sales packaging delivered by the supplier.
4.7   The supplier is also required to comply with the respectively applicable
        -export control and customs provisions,
        -packaging regulations
        -transport provisions.
4.8   In the event that a violation of the above duties of the supplier leads to damaged goods, delays, non-approval for export or import or other damages, the supplier is liable and will hold us harmless. This does not apply if the supplier proves that it was not responsible for the violation of duty. However, this does not affect strict liability under the law pursuant to § 24 German Act on Food and Feed Materials [Lebensmittel- und Futtermittelgesetzbuch, “LFGB”].

5. Warranty and complaints about defects

5.1   We only carry out an inspection of received goods immediately after they are received and only with regard to externally visible (transport) damage and deviations in terms of identity and volume which can be recognized from the outside. We will complain about such defects without undue delay after delivery. We will conduct any further examination, based on the circumstances, as soon as practical in the normal course of business. We will give notification about the determination of any defects without undue delay after they have been identified.
5.2   We have the full claims under the law related to defects and warranty; in any event, the purchaser is entitled to demand from the supplier, at the selection of the purchaser, correction of the defect (corrective performance) or delivery of goods which are free of defects. This does not affect the right to claim damages instead of performance. We are entitled to correct the defects ourselves or have them corrected by a third party at the expense of the supplier in the event of an emergency or if there is special urgency which requires immediate action and renders the setting of a grace period beforehand unreasonable [unzumutbar] when the interests of both sides are considered.
5.3   To the extent not agreed otherwise, the time bar period for claims for defects is 36 months calculated starting with the delivery of the goods.

6. Documentation and origin of goods

6.1   The supplier will always provide to us for each ordered item product data sheets as well as a safety data sheet automatically at the latest upon delivery. The corresponding analysis certificate will accompany each delivery to us.
6.2   The delivery and freight papers must contain all information for tracing back the delivered party without any gaps and free of ambiguities. The supplier must state information about the origin of raw materials (country of origin) before performing the delivery contracts. Upon request, the upstream sources (producer and/or supplier) of the party must be notified in order to assure the ability to trace goods.
6.3   Upon our request, the supplier will submit a certificate of origin for the goods.

7. Certification and audits

Suppliers of raw materials must at least have HACCP Concept implemented.
We are entitled, but not required, to ourselves conduct an audit of the supplier or have an audit conducted by an expert and/or advisor chosen by us.
This includes an examination of the operations and the quality assurance system of the supplier and a subsequent assessment. The knowledge obtained in this manner will become our basis for further awarding orders as well as for the internal classification of the operations.

8. Subcontractors

If the order is supposed to be completely or partially performed by the supplier’s subcontractors and/or third parties retained by the supplier, the supplier must designate by name the subcontractors/third parties for the purpose of quality assurance and especially in order to assure that items can be traced back. The performance by a subcontractor/‌third party requires our prior written consent which can only be refused for just cause [wichtiger Grund]. The supplier undertakes to impose on the subcontractor/‌third party all obligations under this Agreement, especially with regard to the aspects and measures for quality, and the supplier must ensure compliance.

9. Disposal of packaging

Except as agreed otherwise, we will handle the disposal of transport packaging materials and pass on the costs we incur for this purpose. Otherwise, the supplier is required to pick up and properly dispose of the transport packaging without undue delay at the own expense at the delivery address or location for use indicated by us.

10. Confidentiality and data protection

10.1   The supplier undertakes to use all confidential information obtained from us, above all with regard to specifications, production processes, products, current research and development projects as well as all corporate data related to us exclusively for the performance of the purpose of the contract and to keep such information confidential and not to disclose it to third parties without our written consent. The duty of confidentiality does not apply for information which is generally known, legally acquired from third parties without a violation of duties to maintain confidentiality or developed independently by third parties or information which must be disclosed due to obligations under the law or on the basis of an order by a court or public authority. To the extent permissible and possible, the supplier will inform us in advance in the latter situation about the pending disclosure and will limit the disclosure to the absolutely required scope.
10.2   The supplier will only disclose confidential information to those employees who must know the information for the purpose of performing this Agreement, and the supplier must impose on these employees their own obligations to maintain confidentiality in the extent set forth in paragraph 1. This applies accordingly if the supplier discloses information to sub-suppliers; this does not affect the requirements for consent under paragraph 1 as well as Section ‎8.
10.3   The provisions in the law in the German Data Protection Act [Bundesdatenschutzgesetz] must be complied with.

11. Jurisdiction and applicable law

11.1   The courts at our registered office have exclusive jurisdiction for all disputes under and in connection with the contract between us and the supplier.
11.2   The law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies.

12. Severability

If individual provisions of this Agreement are invalid, this does not affect the validity of the other provisions.

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