including Valensina GmbH and Wolfra Bayrische Natursaft Kelterei GmbH

1. Scope of application, conclusion of contract, procurement risk

1.1 All purchases of goods (including raw materials or auxiliary and operating materials) and/or commodities and deliverables (e.g. services) by Valensina GmbH and its subsidiaries (e.g. Wolfra Bayrische Natursaft Kelterei GmbH, Hitchcock GmbH and PL Drinks GmbH) (hereinafter referred to as “Purchaser”) shall be made exclusively on the basis of the following terms and conditions and quality requirements as well as the relevant specifications or product description notified when the order is placed. The principle of sustainability is taken into account in all purchasing decisions. The Purchaser is oriented by economic, ecological and social criteria. The three levels of consideration are interrelated and are considered to be of equal value.

1.2 These General Terms and Conditions apply exclusively. The Purchaser shall not recognise any terms and conditions of the seller and/or service provider and/or persons engaged by the seller and/or service provider (hereinafter collectively referred to as “Supplier”) that conflict with or deviate from these Terms and Conditions in whole or in part, unless the Purchaser has expressly accepted their validity in writing. They are hereby expressly contradicted as a precautionary measure. This shall also apply if the Purchaser accepts a supply and/or service without reservation in the knowledge of conflicting or deviating terms and conditions of the Supplier and/or the Supplier indicates that only terms and conditions previously recognised by it and deviating from its own terms and conditions shall apply.

1.3 Employees of the Purchaser[1] - with the exception of managing directors or authorised signatories - are not entitled to conclude deviating agreements.

1.4 The Terms and Conditions shall apply to all future orders, even if the Purchaser does not expressly make reference thereto, when placing the order. The Purchaser's terms and conditions of purchase shall be deemed agreed at the latest upon acceptance or execution of an order by the Supplier.

1.5 Effective contracts with the Supplier can be concluded by means of quantity contracts, time contracts, individual contracts and mutual declarations. The respective declarations must be set out in writing or at least confirmed in text form. This also applies to amendments or addenda to existing contracts.

1.6 A contract shall only be deemed concluded with the Purchaser, if it places the order at least in text form by e-mail. If the Purchaser remains silent in response to an offer from a Supplier, this shall not be deemed to be consent or acceptance of the offer. The principles of the commercial letter of confirmation shall not apply to order confirmations or similar letters of the Supplier.

1.7 Written communications to the Purchaser’s business partners are considered received in the ordinary course of mail if they have been sent to the last known address of the Purchaser. Dispatch is considered proven if a signed copy is in the Purchaser’s possession.

1.8 The Purchaser may also demand changes to the delivery item or service after conclusion of the contract and cancel the contract, individual orders or call-off quotas in whole or in part, to the extent reasonable for the Supplier. Cancellation with a lead time of at least 72 hours prior to the execution of the order with the Supplier shall be deemed reasonable - even without compensation - unless special circumstances require a different consideration in the individual case. In the case of these changes, the effects, in particular with regard to any additional or reduced costs as well as the delivery or performance dates, shall be adequately taken into account by both contracting parties. Lump-sum compensation for additional expenses claimed by the Supplier due to the contract amendment or cancellation shall not be recognised and shall not be owed.

1.9 The Supplier assumes the procurement risk for deliveries and services owed by it for its entire upstream supply chain, in particular with regard to self-supply by its Upstream Suppliers.

[1] For reasons of readability, only masculine forms of words are used in these clauses.

 

2. Place of delivery; means of deliveries, delivery terms and conditions

2.1 Goods and/or merchandise shall be delivered to the delivery address of the Purchaser in accordance with the respective order, and services shall be provided there. The costs of delivery shall be borne by the Supplier. “DDP - named place of destination”, Incoterms 2020, shall apply to the terms and conditions of delivery, unless other terms are agreed in individual contracts, at least in text form.

2.2 Goods and/or merchandise shall be transported in such a way as to avoid damage or spoilage during transport. Public law provisions or individually made agreements on shipping have to be complied with. When delivering raw materials in tank trucks, the VdF transport conditions must be adhered to. Deliveries by third parties require the express consent of the Purchaser.

2.3 All consignments must be labelled and properly packaged in accordance with the provided specifications. If the goods to be delivered require labeling or packaging in compliance with specific national or international shipping regulations, the Supplier has to comply with those even without an express request.

2.4 Each delivery must include the corresponding delivery note, or alternatively, a shipping notice must be sent in duplicate on the date of dispatch. The Supplier is required to indicate the exact order number on all shipping documents and delivery notes. The order quantity unit must also be specified. Additionally, each delivery note must include the corresponding article number, batch number and customs tariff number as well as the correct place of receipt must also be listed on all delivery notes. For deliveries of organic or RFA raw materials, this must be indicated separately on the delivery note, and the eco-control number, as well as the raw material specification number with the respective designation RS SPO, RS WOL or RS FSP according to the order and the Valensina article number must be provided. For deliveries of additives, an analysis certificate must be included with each delivery.

2.5 If the Supplier fails to provide the information specified in section 2.4, the Purchaser shall not be liable for any resulting delays. The information on the delivery note must match that of the delivery; in the event of discrepancies (e.g., in the case of quantity differences), the Supplier shall promptly issue a corrected delivery note. Acknowledgments of receipt on the delivery note are only valid if they are duly signed by the Purchaser.

2.6 The shipping and transport risk, i.e. the risk of accidental loss and accidental deterioration of the goods, shall be borne by the Supplier until the goods are handed over to the Purchaser. The handover takes place with the actual acceptance of the goods at the named place of destination of the Purchaser. It shall not be made in the event of rejection of acceptance in accordance with the specifications of these General Terms and Conditions (e.g. in the event of open defects or a short/excess delivery). The delivery of the goods must be carried out in accordance with the respective order using ramp-capable trucks or tankers.

 

3. Delivery time; delays in delivery; default

3.1 All delivery dates, including any extension periods, are always agreed as fixed.

3.2 As soon as the Supplier can assume that it will not be able to fulfil its contractual obligation in whole or in part or not in due time, it shall notify this immediately at least in text form, stating the reasons and, where known, the expected duration of the delay. Should the Supplier be in default, the Purchaser may - in addition to further statutory claims - demand lump-sum compensation for the damage caused by default in the amount of 0.15% of the net price of the delayed performance items per calendar day, but in total not more than 5% of the net price of the performance items in default. The Purchaser reserves the right to prove that a higher damage has occurred. The Supplier reserves the right to prove that no damage at all or only significantly less damage has been incurred. The assertion of further claims resulting from this, in particular the loss of profit as well as the reimbursement of all useless costs incurred for the order, shall remain unaffected by this.

 

4. Partial deliveries, short deliveries, excess deliveries

4.1 Partial deliveries require the prior written consent of the Purchaser. In such cases, the outstanding remaining quantity will be listed on the delivery note. If the Purchaser accepts partial deliveries even without prior consent, this does not constitute any anticipated due date for payment obligations or consent to the assumption of additional transport costs.

4.2 The Purchaser reserves the right to accept excess or short deliveries in individual cases. Otherwise, deviating deliveries shall generally not be recognised as being in accordance with the contract and shall entitle the Purchaser to reject the delivery. In the event of excess deliveries, the Purchaser shall be entitled to refuse acceptance of the complete delivery. Additional costs and damages caused by excess/short deliveries shall be borne by the Supplier.

 

5. Prices

5.1 Agreed or confirmed prices are binding fixed prices. Amendments for the future must at least be made in text form to be effective. Prices refer to the net quantity without any packaging for goods and/or merchandise. The weight of the packaging (“tare”) is not paid. Each delivery shall be made DDP Named Place of Destination (Incoterms 2020). Costs incurred during customs clearance (e.g. third countries) shall be borne by the Supplier (exception only after consultation with the purchasing department, which shall be confirmed at least in text form).

5.2 Subsequent claims by the Supplier are excluded as a matter of principle. No price increase is possible during the term of the order processing. Any unilateral right of the Supplier to adjust prices is hereby expressly excluded. In particular, the possible discovery of a gas shortage does not constitute an event that would entitle the Supplier to adjust the price without further ado. Rather: Price increases must be expressly confirmed by the Purchaser at least in text form. The Purchaser expressly objects to clauses and arrangements containing automatic price adjustment mechanisms, stable value clauses or unilateral price adjustment rights for the Supplier. In the event of a proven increase in raw material and production costs to a considerable extent, the Purchaser shall be prepared to discuss in good faith with the Supplier a consideration for future (framework) contracts. Until an agreement is reached, the previous prices shall apply.

5.3 The respective price is understood to be in euros, unless another currency is agreed in writing.

 

6. Product quality

6.1 The specifications of the delivered goods are the basis for the standards of the products and are part of the agreed quality of the delivered goods.

6.1.1 Contracts for raw materials are concluded based on the specifications provided by the Purchaser. The Supplier must also submit product samples that must be approved by the Purchaser for the validity of the contract.

6.1.2 For contracts concerning services, packaging, and other goods/products to be delivered, regardless of whether they are used for production or testing purposes, the Supplier must provide the Purchaser with current specifications, related documentation, and product samples for approval.

6.2 After the approval of the specifications — including the approval of the product samples — the specification approval will be incorporated into the order. Any intended changes to the specifications regarding the properties of the item must be communicated to the Purchaser unsolicited and without delay, and a new product sample must be submitted with the notification.

6.3 Suppliers of food, as well as those providing the necessary auxiliary and raw materials and packaging for its production, are obliged to comply with the applicable national and community legal provisions (particularly food and consumer goods regulations) at both the manufacturing and delivery locations. This obligation extends to subordinate guidelines and regulations that reflect the prevailing interpretation and common understanding of the law. Upon request, the Supplier shall provide evidence of their controls regarding compliance with these regulations. Furthermore, a declaration must be included with the delivery of goods according to this section 6.3, stating that the goods comply with the relevant legal requirements (“Declaration of Conformity”).

6.4 The details of the sustainability-related product requirements are derived from the Valensina Group's Supplier Code of Conduct for Sustainability (“Code of Conduct”) in the version valid at the time of contract conclusion. In the event of contradictions, the provisions of these General Terms and Conditions shall take precedence. The Purchaser reserves the right to adjust the Code of Conduct.

 

7. Energy Management

The Supplier is informed that the Valensina Group is certified in energy management according to DIN ISO 50001 and pursues the use of energy-efficient components wherever it is sensible and economically viable. A proactive exchange regarding opportunities for energy-efficient equipment is expected from the Supplier.

 

8. Invoice, payment, set-off and retention rights, discount

8.1 Payments shall generally be made in accordance with the payment terms agreed upon with the order or otherwise at least in text form. In other respects, invoices are due net 45 days after proper invoicing. If payment is made within 14 days after proper invoicing, the Purchaser is entitled to deduct a 3 percent discount. The start of the payment period granted to the Purchaser is determined by the receipt of the invoice by the Purchaser.

8.2 The invoices must contain the delivery address, article description, delivery date, delivery quantity, delivery note number, article number, customs tariff number and order number. Quantities and prices stated in the invoices must correspond to the weights and prices determined upon handover (receipt of goods). Invoices shall be issued on the day of delivery at the earliest.

8.3 Invoices shall be issued on the basis of the actual quantity received. In the event of deviations, the delivered quantity determined by the Purchaser shall be communicated to the Supplier and shall form the basis of a revised delivery invoice. The corrected invoice shall be made available by the Supplier within 48 hours.

8.4 Invoices shall be issued in accordance with VAT requirements.

8.5 Invoices with incomplete or incorrect information will be returned unprocessed to the Supplier for rectification. The payment conditions or payment targets agreed with the respective Supplier shall only come into effect after receipt of the corrected documents.

8.6 Unless explicitly agreed otherwise, the billing address is as follows: Valensina GmbH, Ruckes 90, 41238 Mönchengladbach. All invoices must generally be sent as a PDF via email to: buchhaltung@valensina-gruppe.de. For orders from Wolfra Bayrische Natursaft Kelterei GmbH the billing address is as follows: Justus-von-Liebig-Straße 8, 85435 Erding. In this case, invoices must be submitted as a PDF via email to buchhaltung@wolfra.de.

8.7 All payments shall be made by the Purchaser only to the Supplier. The assignment of the Supplier's claims against the Purchaser to third parties is excluded

8.8 The Supplier has a right of set-off or retention only in the case of legally established or undisputed counterclaims.

8.9 The Purchaser shall have the right to set off claims of the Supplier against claims disputed by the Supplier or to exercise a right of retention. The Purchaser may also set off claims of the Supplier against claims of companies with which the Purchaser is legally associated.

 

9. Warranty; scope of the Supplier's liability

9.1 The Supplier is obligated to deliver goods free from defects. They guarantee that the goods or services are free from material and legal defects, in accordance with the latest state of technology, and comply with the applicable national and European legal provisions (in particular also, but not limited to, the law on consumer goods as well as the law on substances), the regulations and guidelines of authorities, professional associations and trade associations as well as the specifications underlying the contract. The Supplier further guarantees that the goods or services meet the subjective requirements according to Section 434, Paragraph 2, Sentence 1 of the German Civil Code (BGB), the objective requirements according to Section 434, Paragraph 3, Sentence 1 BGB, and, if applicable, the installation requirements according to Section 434, Paragraph 4 BGB, as well as the specifications in the order/contract and the Declaration of Conformity.

9.2 Deviations from the requirements according to Section 434, Paragraph 3 BGB can only be made by contract prior to the notification of a defect to the Supplier if the Purchaser has been specifically informed before making its contractual declaration that a certain characteristic of the goods or services deviates from the objective requirements, and this deviation has been expressly and separately agreed upon in the contract.

9.3 The Supplier further guarantees that the goods or services are suitable for the agreed use or the intended use resulting from the nature of the goods or services and that they do not contain any prohibited or unrated substances. The Supplier further warrants that the goods can be stored until the expiry of the warranty period without any significant impairment of their quality.

9.4 The Supplier also guarantees that the goods are properly labelled.

9.5 The statutory provisions shall apply to the rights of the Purchaser in the event of material defects or defects of title in accordance with this Clause ‎9 and by law: The Purchaser shall be entitled to the statutory warranty claims in full. Insofar as individual warranty claims exceed the statutory claims, these shall remain unaffected.

9.6 In urgent cases, if the Supplier could not be reached and there is a risk of disproportionately high damage, the Purchaser has the right to carry out the subsequent performance at the Supplier's expense and risk or to have it carried out by third parties. The Purchaser will promptly inform the Supplier of such measures.

9.7 A period of 36 months applies in each case to claims for defects subject to the limitation period, beginning with the receiving of the goods at the place of destination. In the case of the provision of other services, the regular limitation period shall apply. Longer statutory limitation periods for the limitation of claims for defects as well as the course of the statutory limitation period for guarantees remain unaffected by this.

9.8 The Purchaser's right to assert claims for damages shall remain unaffected by the withdrawal or a reduction. Terms and conditions of the Supplier which exclude liability for damages in certain cases (e.g. slight negligence) or which limit liability on the merits or in terms of amount shall not be recognised.

9.9 The payment of invoices in the ordinary course of business shall never constitute a waiver of warranty claims of the Purchaser.

9.10 Construction Services: The contractual basis for construction services is the "Allgemeine Vertragsbedingungen" (DIN 1961) and the corresponding "Allgemeinen Technischen Vorschriften" (DIN 18300 – 18384) of the German Construction Contract Procedures (Verdingungsordnung für Bauleistungen - VOB). According to this, the Purchaser may particularly demand a reduction in remuneration if it is impossible for the Supplier to remedy the defect or if doing so would involve an unreasonable effort, and the Supplier therefore refuses to do so.

 

10. Obligation to carry out inspections and give notice of defects

10.1 The statutory provisions (§§ 377, 381 HGB [German Commercial Code]) shall apply to the commercial obligation to carry out inspections and give notice of defects as follows: The Purchaser's obligation to carry out inspections is limited to defects that are evident during an incoming goods inspection with external examination including the delivery documents (e.g. transport damage, wrong and short delivery) or that are recognisable during the quality inspection in a random sampling procedure. Moreover, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered later remains unaffected. Notwithstanding the duty to inspect, a complaint will in any case be deemed to have been sent without undue delay and in good time if it is sent within three working days from discovery or, in case of apparent defects, from delivery.

10.2 The obligation to give notice of defects shall be deemed fulfilled if the Purchaser describes the defects to the Supplier in such a way that the Supplier can investigate the cause of the defect. If, in the Supplier's opinion, further information is required to determine the cause of the defect, the Supplier shall notify the Purchaser thereof at least in text form.

10.3 The preliminary handling of the rejected goods shall generally be governed by § 379 HGB. The Supplier shall contribute half of the ongoing storage and any realisation costs. Insofar as the complaint is unjustified, the Purchaser shall reimburse these costs to the Supplier after determining that the goods are free of defects. Insofar as the complaint is justified, the Supplier shall be obliged to bear the costs in full within the scope of the warranty.

10.4 Notwithstanding the above provision, rejected goods shall be taken back by the Supplier at the named place of destination at its own expense within seven days of a corresponding request by the Purchaser. If the Supplier does not take back the goods within the aforementioned period, the Purchaser shall be entitled to dispose of the goods by private contract.

 

11. Handling fee

Notwithstanding any other claims, the Purchaser shall be entitled to charge a lump sum of 40 euros (net) per worker and hour or part thereof for the handling of warranty and delay claims and related expenses. The Supplier reserves the right to prove that a corresponding expense was not incurred or was not incurred in this amount.

 

12. Handling of loading equipment; packaging

12.1 Loading equipment are taken back by the Supplier in the exchange or return procedure. The exchange will take place immediately if possible, otherwise with the next delivery. The exchange shall be documented and countersigned by both parties.

12.2 The Supplier shall be obliged to take back and dispose of the packaging waste generated in the course of the performance relationship in accordance with the applicable statutory provisions at its own expense.

 

13. Supplier recourse

13.1 The legally determined recourse claims within a supply chain (supplier recourse according to §§ 445a, 445b, 478 BGB) are available to the Purchaser without restriction in addition to the defect claims. In particular, it is entitled to demand from the Supplier exactly the type of subsequent performance (repair or replacement) that it is expected to carry out in respect of its customer in the individual case. The statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.

13.2 Before the Purchaser acknowledges or fulfils a claim for defects asserted by the customer (including reimbursement of expenses pursuant to §§ 445a, para. 1, 439, para. 2 and 3 BGB), it will notify the Supplier and request a written statement, briefly setting out the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is brought about, the claim for defects actually granted will be deemed to be owed to its customer. In this case, the Supplier is responsible for proving the contrary.

13.3 The Purchaser's claims from supplier recourse also apply if the defective goods have been further processed by the Purchaser or another entrepreneur.

 

14. Third-party property rights; ownership and retention of title

14.1 The Supplier has to ensure that the Purchaser does not infringe the industrial property rights of third parties by using or selling the goods in accordance with the contract. The Supplier will indemnify the Purchaser against all claims made against the Purchaser for infringement of an industrial property right and will bear the costs of protecting the relevant rights if the claims are based on the culpable breach of duty by the Supplier. In the event of a claim, the Purchaser will inform it immediately.

14.2 The transfer of ownership to the Purchaser shall take place at the time of delivery. The Purchaser objects to retention of title regulations of the Supplier insofar as these go beyond the simple retention of title. They require a prior written agreement in individual cases. Should it nevertheless occur that upstream suppliers assert property rights, co-ownership rights or liens vis-à-vis the Purchaser or have enforcement measures carried out, the Purchaser will raise a claim against the Supplier for all damages arising from this.

14.3 The Purchaser retains ownership of items provided to the Supplier. Any processing, mixing, or connection (further processing) of the provided items by the Supplier is deemed to be carried out for the Purchaser. If the Purchaser's retained goods are processed with other items not belonging to the Purchaser, the Purchaser acquires co-ownership of the new item in proportion to the value of their item (purchase price plus VAT) in relation to the other processed items at the time of processing.

 

15. Intellectual property

Unless otherwise agreed, all copyrighted rights of use, industrial property rights and legal positions similar to industrial property rights in the contractually provided services and in all other written, machine-readable and other work results created within the scope of the provision of services, including know-how, shall pass to the Purchaser upon their creation without any further condition and without additional consideration. They shall be the exclusive property of the Purchaser, unrestricted in terms of space, time and content, and may be extended, transferred, revised, adapted, modified, reproduced, decompiled or published by the Purchaser without the Supplier's consent.

 

16. Visiting conditions and house rules

The Supplier shall ensure that it itself, as well as its employees and other third parties engaged by it, comply with the visiting conditions, if any, the house rules and company-related instructions of the Purchaser and its vicarious agents (in particular the safety instructions for visitors) at all times.

 

17. Liability; insurance

17.1 The Supplier shall be obliged to indemnify the Purchaser against claims of third parties within the scope of producer and product liability insofar as the defect giving rise to the liability is attributable to a product manufactured or supplied by the Supplier and the Purchaser is unable to prove that the defect is not attributable to the Supplier and does not result from its area of manufacture or organisation. The claim also includes the costs of any recall action.

17.2 The Supplier shall also draw the Purchaser's attention to the risks emanating from its product in the event of improper use.

17.3 The Supplier undertakes to maintain product liability insurance with an appropriate annual sum insured. Upon request, the Seller shall immediately provide the Purchaser with proof thereof. The scope of any claims to which the Purchaser may be entitled shall not be affected by the scope of the insurance cover.

 

18. Purchaser’s liability

18.1 The liability of the Purchaser for violations which neither relate to material contractual obligations of the Purchaser nor have resulted in damage to life, limb or health shall be excluded insofar as such violations are neither grossly negligent nor intentional. The statutory distribution of the burden of proof remains unaffected.

18.2 The liability of the Purchaser for the breach of its material contractual obligations shall be limited to the foreseeable damage typical for the contract. Material contractual obligations are those without the fulfilment of which the contract cannot be thought of.

 

19. Force Majeure

“Force Majeure”, i.e. unavoidable external events such as war, civil war, terrorist attacks, strikes, industrial action, insurrection, riots, pandemics, natural disasters, severe storms, etc. shall release the respective party from the obligation to accept the ordered delivery/service for the duration of the disruption and to the extent of its effect.  In this case, the concerned party shall provide the other party with the necessary information without delay within the bounds of what is reasonable. Delivery shall be made without delay after the Supplier has been notified of the cessation of the event. If the delivery/service is no longer usable for the Purchaser due to the delay caused by the force majeure, taking into account economic aspects, both parties shall be entitled to withdraw from the contract. General tensions in the global supply chains which make procurement more difficult, in particular delivery delays and delivery failures at the Supplier's Upstream Suppliers - e.g. as a result of energy and/or raw material supply problems or due to economically difficult conditions - do not constitute force majeure without the occurrence of further circumstances, even if these could not have been foreseen by the Supplier in the individual case.

 

20. Socio-ecological and ethical compliance

20.1 The Supplier undertakes to recognise the socio-ecological and ethical requirements of the Code of Conduct (as essentially contained in the Code of Conduct on sustainability), to comply with them and to address them appropriately within its own supply chain vis-à-vis Upstream Suppliers. The socio-environmental and ethical requirements are hereinafter also referred to as “Behavioural Obligations”. They must be observed even if the Supplier should not be directly within the scope of the relevant laws, in particular the Supply Chain Due Diligence Act (Lieferkettensorgfaltspflichtengesetz). The Supplier shall submit a sustainability questionnaire upon request by the Purchaser within 2 weeks. By submitting the sustainability questionnaire, the Supplier confirms respect for socio-ecological compliance and adherence to the Behavioural Obligations. The Supplier acknowledges that compliance with the Behavioural Obligations is essential for cooperation with the Purchaser.

20.2 In the event of contradictions, the provisions of these GTC shall take precedence over the Code of Conduct. The Purchaser reserves the right to adjust the Code of Conduct at any time.

20.3 The Supplier undertakes to pass on the risks, expectations and Behavioural Obligations identified by the Purchaser and communicated to the Supplier through the Code of Conduct with regard to human rights, environmental and ethical concerns to its respective sub-suppliers and sub-service providers (“Upstream Suppliers”) in the supply chain within the scope of what is reasonable and to encourage them to comply with the Code of Conduct. Alternatively, the Supplier may require its Upstream Suppliers to comply with its own code of conduct (or similar arrangements) if and to the extent that this provides at least the same level of protection as the arrangements made with the Purchaser, in particular from the Code of Conduct.

20.4 Upon justified request, the Supplier is obliged to inform the Purchaser once a year, and additionally as required, in an appropriate manner about the violations identified in the risk analysis conducted by the Purchaser. Upon justified inquiry from the Purchaser, the Supplier must also inform the Purchaser about the implementation of the Behavioural Obligations and the risks identified by the Purchaser within its supply chain. In any case, the Supplier is required to provide immediate notification if a significant violation of a protected legal position occurs or is imminent, whether with them or with a sub-supplier, which is recognisable to them. The Purchaser has the right, as necessary, to conduct audits with the Supplier, in consultation with the Supplier and to a reasonable extent, and in cases of imminent danger, even without prior notice, to verify compliance with the Behavioural Obligations. The Supplier is particularly obliged to grant the Purchaser or a third party commissioned by the Purchaser access to its business premises and production facilities during normal business hours and to provide all necessary documentation and information, as long as this is legally permissible. The protection of legitimate business and trade secrets of the Supplier must be duly considered. Data protection and other legal provisions must be complied with. Upon request and within reasonable limits, the Supplier will make efforts to ensure that its subcontractors, engaged for service provision, grant appropriate audit rights in favour of the Purchaser.

20.5 The Supplier shall provide the Purchaser with such documents and information as the Purchaser may require in order to comply with its own regulatory obligations. In the event of an official request for documents, the Purchaser shall give the Supplier reasonable opportunity to protect its trade and business secrets vis-à-vis the authorities.

20.6 Remedial measures

20.6.1 The focus is on the claim of the Purchaser to comply with the Behavioural Obligations. In the event of violations or human rights, environmental or ethical risks, the Purchaser is interested in a consensual and tiered approach. On the contrary, sanctioning the Supplier for the violation of Behavioural Obligations shall not be a goal in itself and should not be used as a means to enforce purely commercial interests. Cooperative remedial measures, in particular the joint creation and implementation of a remedial concept, usually take precedence over a suspension or termination of the contract.

20.6.2 The Supplier shall adopt immediate remedial measure in cooperation with the Purchaser in the event of violations of the Behavioural Obligations notified by it or identified by the Purchaser and/or in the event of human rights, environmental and ethical risks in its own business area. Should violations occur or if there are human rights, environmental or ethical risks at the Upstream Suppliers, the Supplier, in cooperation with the Purchaser, shall make reasonable efforts to implement remedial measures at the Upstream Suppliers.

20.6.3 If a remedy does not succeed within a reasonable period of time after a warning by the Purchaser, the Purchaser shall be ultimately entitled to terminate the existing contracts with the Supplier extraordinarily without notice for good cause. In the case of significant or repeated violations, a prior warning is not required. The Purchaser is also always entitled to give notice of termination with a given expiry period.

20.7 Compensation for damages; contractual penalties for breaches of Behavioural Obligations

20.7.1 The Supplier shall pay a contractual penalty if

a) the Supplier fails to fulfil its obligation to promptly inform the Purchaser in the event of an imminent or actual material infringement of a protected legal position of the Code of Conduct,

b) the Supplier does not enable an audit or training measure by the Purchaser or does not provide necessary information,

c) the Supplier does not immediately adopt a remedial measure in the event of imminent or actual breaches of the Behavioural Obligations or refuses to cooperate in a remedial concept of the Purchaser.

For each case of violation by the Supplier, payment of an appropriate contractual penalty of up to a maximum of 50,000 euros each shall be due, the exact amount of which shall be determined by the Purchaser in each individual case at its reasonable discretion and may be reviewed by the regional court in whose district the Purchaser has its registered office in the event of a dispute. The contractual penalty shall not be due if the Supplier is not responsible for the infringement with intent or negligence.

20.7.2 Without prejudice to the foregoing, the Supplier shall be liable for any damage suffered by the Purchaser as a result of a breach of the Behavioural Obligations by the Supplier or a vicarious agent of the Supplier and shall indemnify and hold the Purchaser harmless in this respect. However, liability does not apply if the Supplier is not responsible for the infringement.

 

21. Confidentiality, advertising

21.1 All drawings, calculations, etc. provided by the Purchaser remain the property of the Purchaser and must be returned immediately upon completion of the order. Documents and samples provided to the Supplier must be treated as confidential and may not be made accessible to third parties or otherwise used without prior written consent. The Purchaser reserves the right to reclaim these documents at any time if the Supplier violates such obligations or if ongoing contracts have been terminated. The Purchaser also reserves the right to withdraw from ongoing contracts for an important reason in the event of a breach, as well as to file a criminal complaint to initiate criminal proceedings. The confidentiality obligation remains in effect even after the contract has been completed.

21.2 The Supplier is obliged to maintain confidentiality regarding all operational data and information of which it becomes aware in connection with the business relationship including information about the Purchaser's customers, and to oblige its employees and other vicarious agents accordingly. Data that is generally accessible to the public is excepted from this.

21.3 The Supplier is not entitled to use information about an intended or existing contractual cooperation with the Purchaser for reference or marketing purposes without the Purchaser's written consent. Photography on the premises and business premises of the Purchaser as well as the use or publication of images and data of any kind is prohibited without the written consent of the Purchaser.

 

22. Deterioration of assets

22.1 If, after the conclusion of the contract, a significant deterioration in the financial conditions of the Supplier or its affiliated companies or other indications become known which make the Purchaser's claim to counter-performance appear to be at risk due to the Supplier's lack of ability to perform, the Purchaser shall be entitled to withhold its performance until the Supplier has rendered counter-performance or provided security thereof. If the Supplier fails to provide either the full counter-performance or a suitable security within one week of being requested to do so, the Purchaser shall be entitled to withdraw from the contract in whole or in part. § 323 BGB shall apply accordingly. The right of the Purchaser to claim damages under the statutory conditions remains unaffected.

22.2 In the event of other factually justified indications which appear to seriously jeopardise the continuation of a reliable business relationship and which could not be eliminated by the Supplier even after consultation, the Purchaser shall also be entitled to withdraw from the entire contract.

 

23. Final provisions

23.1 The use of subcontractors by the Supplier is only permissible upon prior information and approval by the Purchaser. Consent may only be denied for good cause.

23.2 The Terms and Conditions and the entire legal relationship between the Purchaser and the Supplier shall be governed exclusively by German law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

23.3 Unless otherwise agreed with the Supplier, the place of performance for deliveries and services is the delivery location specified by the Purchaser; the place of performance for payment is exclusively the location of the Purchaser’s registered office. For all disputes arising from the contractual relationship, Mönchengladbach is agreed as the place of jurisdiction, except for disputes arising from contractual relationships with Wolfra Bayrische Natursaft Kelterei GmbH, for which Erding is agreed as the place of jurisdiction. Notwithstanding this jurisdiction agreement, the Purchaser may also bring legal action against the Supplier in any other court that has jurisdiction under German law.

 

As of: May 2024