Conditions
Our Terms
General Purchasing Terms and Conditions
of Banater Bio-Handel GmbH and of Rolling Kernels SRL (as of: June 2019)
1. Scope of application
These General Purchasing Terms and Conditions (GPC) apply to all purchases and orders made by Banater Bio-Handel GmbH or Rolling Kernels SRL, unless otherwise agreed in writing.
These GPC apply exclusively. Any terms and conditions of the supplier that conflict with or deviate from these GPC will not be recognised unless their validity is expressly agreed to in writing, subject to proof to the contrary. We are not bound by the supplier's conditions even if we do not expressly object to them or if we accept the supplier's deliveries in the knowledge of the supplier’s deviating conditions.
2. Contract conclusion
Our orders are only legally binding in writing or in text form. We are bound by the orders for a maximum of two weeks.
Declarations of acceptance that are made later than two weeks after ordering are considered to be delayed and require our written acceptance or acceptance in text form.
In the event that the order cannot be delivered in full – or even in part – on time, the supplier is obliged to inform us immediately. The supplier’s notification constitutes a new offer and requires our written acceptance or acceptance in text form.
3. Prices/Invoicing/Payment
Unless otherwise agreed, the agreed prices are understood as prices in Euro plus statutory value-added tax and include the services provided in the respectively selected INCO term. Invoices are due for payment after proper performance of services and 30 days after receipt of invoice. The time of receipt is determined for written form by our incoming post stamp and for text form by the date of the text (fax or e-mail).
Unless otherwise specified in individual contracts or orders, payment is made within 30 days after deduction of a 3 % discount.
The proper invoice must be accompanied by our order data, the correct description of the goods and the contract number and sent to the postal address/e-mail address stated in the order. It must not be enclosed with the consignment of goods.
We do not owe any default interest. In the event of default in payment, we owe default interest in the amount of five percentage points above the respective base interest rate in accordance with § 247 BGB.
To the extent permitted by law, we may exercise rights of set-off, retention as well as the defence of non-performance of the contract. In particular, we are entitled to withhold due payments as long as we are still entitled to claims from incomplete or defective services against the supplier.
4. Shipping/Place of Performance
The goods will be dispatched in accordance with the INCO term agreed in writing. The risk of accidental loss and accidental deterioration also depends on the agreed INCO term.
5. Delivery dates
Our delivery dates mean dates of receipt at the place of performance and are binding. If a delivery date is determined by a calendar, it is deemed a fixed date. If a calendar week is specified, delivery must be made by the last working day of the week on Friday at the latest. An early delivery requires our written consent.
The supplier is obliged to inform us immediately of any imminent or occurred non-compliance with a delivery date, its causes and the expected duration of the delay. The foregoing does not affect the occurrence of a default in delivery.
In the event of a default in delivery, we are entitled to all statutory claims.
6. Quality assurance / Bio - Certification
The supplier who produces, processes, stores or markets organic goods in an EU member state holds a valid organic certification in accordance with Regulation (EC) No. 834/2007/ Regulation (EU) No. 2018/848 in the currently valid version and submits the relevant proofs in the currently valid version to Banater Bio-Handel GmbH respectively Rolling Kernels SRL without being requested to do so. Regulation 2018/848 will apply from 01.01.2022
As far as the supplier delivers feed, he has a registration and approval according to Regulation (EC) No. 183/2005 and guarantees the compliance with the feed regulations (EC) No. 999/2001, (EC) No. 1831/2003, (EC) No. 396/2005.
The supplier of food has a quality assurance system that complies with the legal requirements, in particular Regulation (EC) No. 852/2004, and is continuously further developed. The individual food hygiene measures go very far and include all the precautions necessary to control 'hazards' (to the good quality of the food) and to ensure that a food is fit for human consumption, taking into account its intended use. See definition of food hygiene in Regulation (EC) No 852/2004. The definition subsumes all possibilities of adverse modification of foodstuffs, including spoilage by microorganisms, contamination and growth of pathogens, exposure to chemical or biological residues and the presence of foreign bodies in foodstuffs. The supplier shall maintain complete and meaningful documentation that clearly and orderly presents the implementation of its quality assurance measures. Food is produced in accordance with the national 'Guides to good hygiene practice'.
The supplier shall inform Banater Bio-Handel GmbH respectively Rolling Kernels SRL immediately if the supplier becomes aware of circumstances that give reason to doubt the quality, safety or organic quality of the delivered products. Such circumstances exist in particular if it is established in writing by a state investigation office or a publicly appointed and sworn expert that a delivered product is not marketable, harmful to health (Article 14(2)(a), Article 15 (2) of Regulation (EC) No 178/2002) or unsuitable for human consumption (Article 14(2)(b) of Regulation (EC) No 178/2002) or for other reasons is not safe within the meaning of Art. 14, Art. 15 of Regulation (EC) No 178/2002.
7. Quality requirements
The supplier is obliged to supply only goods that comply with the agreed product specification and the properties specified therein. Any deviation of the goods from the agreed specification constitutes in any case a material breach of duty (also within the meaning of Art. 25 CISG), which also entitles us to cancel the contract and may give rise to a claim for damages.
The goods delivered by the supplier comply in every respect, in particular with regard to production, distribution, use and labelling, with the statutory provisions applicable in Germany at the time of delivery and are therefore fully marketable in Germany. This means in particular that the products are "safe" within the meaning of Article 14 and Article 15 of Regulation (EC) No. 178/2002, that they comply with the requirements of the German Food and Feed Code (LFGB) and with the requirements on organic production and labelling of organic products in accordance with Regulations (EC) No. 834/2007 and 889/2008/Regulation (EU) 2018/848 as amended.
The organic goods do not contain, consist of or are not produced from genetically modified organisms (GMOs) within the meaning of Regulation (EC) No 1829/2003 and 1830/2003. Nor does the product contain any ingredients containing, consisting of or produced from GMOs.
The organic goods may only contain residues up to a maximum of 0.01 mg/kg and in accordance with the orientation values of the BNN (Bundesverband Naturkost Naturwaren- German Federal Association for natural food natural products). The product contains no live or dead insects and no dangerous impurities. The product is healthy and suitable for human consumption with characteristic smell and colour and in accordance with the current EU Feed Regulation. The product is certified organic in accordance with EU standards Regulation (EC) No. 834/2007 and Regulation (EC) No. 889/2008. Regulation 2018/848 will apply from 01.01.2022
The goods comply with the ‘Guidelines and Warning Values’ of the German Society for Hygiene and Microbiology (DGHM). The ‘Guideline and Warning Values’ to be observed are listed in Annex I.
Packaging and packaging aids used anmust be suitable for foodstuffs and comply with the requirements of Regulation (EC) No 1935/2004 and - where applicable - Regulation (EC) No 10/2011 as well as other relevant statutory provisions, guidelines or standards in the version valid at the time of delivery. The supplier shall submit corresponding certificates of conformity for the packaging materials.
8. Examination/sample draw
Prior to delivery to us, the supplier shall inspect the goods for compliance with the statutory provisions and guarantee compliance with the relevant European and German food and feed law and competition law provisions in their current version as well as the marketability of the goods. Upon request, the supplier shall provide investigation reports, declarations of no objection and certificates proving that the delivered goods and packaging comply with applicable legal requirements and agreed product specifications. The latter ensures complete traceability of the products.
We are entitled, at our discretion, to take samples from the supplier's current production at any time in order to examine these both for compliance with the statutory regulations and for quality characteristics. Should the sampled goods prove not to be in accordance with the contract, the supplier is obliged to reimburse us for the inspection costs.
9. Defects investigation
Insofar as goods are received at our premises, it is incumbent upon us to inspect the goods within a reasonable period of time for any deviations in quality and quantity. The quality check is always carried out without chemical or microbiological analyses. The complaint is deemed to have been made in good time if it is received by the supplier within 3 working days of receipt of the goods with regard to obvious defects and within 7 working days of discovery with regard to hidden defects. Hidden defects can also be asserted if, for example, they only occur or are detected during production or due to complaints by our customers regarding the finished products.
We do not recognise any conflicting inspection or testing obligations.
10. Implied Warranties
We are entitled to statutory warranty claims in full. In the event of defects, we are entitled, at our discretion, to demand subsequent performance (rectification of defects or replacement delivery) and, after the occurrence of default, withdrawal from the contract, reduction of the purchase price and compensation for damages or reimbursement of futile expenses. Damages also include any damage due to delay in performance, the necessary ancillary costs (§ 439 sub-para. 2 BGB), consequential damages, recall costs and lost profit.
We are entitled to remedy the defect ourselves at the supplier's expense if the supplier has not remedied the defect within a reasonable period set by the client. If there is a risk of delay or special urgency, no deadline needs to be set before the client remedies the defect itself.
The limitation period for warranty claims is 24 months, unless the law provides for a longer warranty period.
11. Recourse
We are entitled without restriction to the legally determined recourse claims within a supply chain (supplier recourse in accordance with §§ 445a, 445b, 478 BGB) in addition to the defect claims. In particular, we are entitled to demand from the supplier exactly the type of subsequent performance (rectification of defects or replacement delivery) that we owe to our respective customer in individual cases. Our legal right to choose (§ 439 Abs. 1 BGB) is not restricted by this.
Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with §§ 445a sub-para. 1, 439 sub-para. 2 and 3 BGB), we shall notify the supplier and request a written statement, briefly explaining the facts of the case. In the event that a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us will be deemed to be owed to our customer. In this case, the supplier is responsible for providing proof to the contrary.
Claims arising from supplier recourse also apply if the defective goods have been further processed by us or another entrepreneur.
12. Product Liability
Insofar as the supplier is legally responsible for product defects or damage caused by defective products, the supplier is obliged to indemnify us against claims for material defects-, damages and compensation for pain and suffering by third parties upon first request. The obligation to indemnify does not apply insofar as the claim is based on grossly negligent or intentional breach of duty on our part.
The supplier is also obliged to reimburse us for any expenses arising from or in connection with any recall or return action, destruction or appropriate legal defence carried out by us. We will inform the supplier about the content and scope of the recall or return measures to be carried out – as soon as this is possible and reasonable for us – and give the latter the opportunity to comment.
For the duration of the business relationship, the supplier must take out and maintain extended product liability insurance with a minimum coverage of at least € 1 million. The supplier is obliged to provide us with corresponding proof of cover upon request.
13. Obligation to provide information
Food and feed law apply to our products. The supplier is obliged to provide us with all available information for the products supplied by the latter that we require in order fulfilling our statutory obligations to provide information, labelling, documentation and information to the authorities and consumers (including toxicological and health assessments). The provision of this information is regarded as an essential secondary obligation.
14. Confidentiality
The supplier is obliged to keep secret and not make available to third parties any and all business and trade secrets that have become known to the latter within the scope of the business relationship, in particular all information concerning the products of Banater Bio-Handel GmbH respectively Rolling Kernels SRL such as recipes, specifications, drawings, production processes, drafts and the like, as well as all customer-related data. Oral statements and know-how developed within the framework of the business relationship are also covered by the confidentiality obligation.
The supplier is not entitled to use the recipes and know-how for its own purposes or those of third parties.
Irrespective of the duration of this cooperation, the obligation to maintain secrecy also applies for the period thereafter and in particular also in the event that the parties, for whatever reason, come to the conclusion that they will refrain from future cooperation.
For each case of infringement, the supplier undertakes to pay a contractual penalty to Banater Bio-Handel GmbH respectively Rolling Kernels SRL in the amount of 15 % of the order sum, at least € 10,000.00. The assertion of further damages remains unaffected by this.
15. Loyalty obligations
The supplier may not enter into its own contractual relations for a period of two years after delivery within the framework of a contract with Banater Bio-Handel GmbH or Rolling Kernels SRL with customers and end customers of Banater Bio-Handel GmbH respectively Rolling Kernels SRL that the supplier has supplied within the framework of the contractual relationship with Banater Bio-Handel GmbH or Rolling Kernels SRL. The supplier undertakes to pass on the same obligation to its employees and vicarious agents.
Should the supplier violate this obligation, Banater Bio-Handel GmbH respectively Rolling Kernels SRL is entitled to injunctive relief and damages including loss of profit.
16. Retention of title
The supplier's retention of title only applies insofar as it relates to our payment obligation for the respective products to which the supplier retains title. In particular, extended or prolonged reservations of title are inadmissible.
17. Arbitration agreement and choice of law
17.1. If the registered office of the supplier is in Germany, the following applies:
a) These GPC and the contractual relationship between the Supplier and us shall be governed by German Law including the UN Convention on Contracts for the International Sale of Goods (CISG).
b) Exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship with Banater Bio Handel GmbH is Kempten/Allgäu. Place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship with Rolling Kernels SRL is the headquarter of the supplier. However, we are entitled to sue the aupplier at any other legal place of jurisdiction.
17.2. If the registered office of the supplier is outside Germany, the following applies:
a) Disputes between the supplier and us arising out of or in connection with the contractual relationship will be finally settled by an arbitration tribunal acting on the basis of the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e. V.) (DIS). The seat of the arbitral tribunal is Munich.
b) In lieu of appealing to the arbitral tribunal, we are entitled to bring our matter before a competent court of law with regard to the subject matter and location.
c) These GPC and the contractual relationship between the supplier and us are governed by German law, including the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). German law also applies to the procedure.
18. Miscellaneous
Should any provision of this Agreement, or any provision incorporated into this Agreement in the future, be or become invalid or unenforceable, the validity or enforceability of the other provisions of this Agreement shall not be affected thereby. The same shall apply if the Parties have failed to address a certain matter in this Agreement. The invalid or unenforceable provision shall be deemed to be substituted by, and the Parties shall be deemed to have agreed upon. A suitable and equitable provision which, to the extend legally permissible, comes closest to the purpose of the invalid or enforceable provision or to the presumed intent of the Parties if had they considered the matter.
This Agreement is executed in the German, the English and the Romanian languages. In the event of any inconsistencies, the German version shall prevail.
Banater Bio-Handel GmbH
Hartmannsberger Str. 9
87634 Obergünzburg
of Banater Bio-Handel GmbH and of Rolling Kernels SRL (as of: June 2019)
1. Scope of application
These General Purchasing Terms and Conditions (GPC) apply to all purchases and orders made by Banater Bio-Handel GmbH or Rolling Kernels SRL, unless otherwise agreed in writing.
These GPC apply exclusively. Any terms and conditions of the supplier that conflict with or deviate from these GPC will not be recognised unless their validity is expressly agreed to in writing, subject to proof to the contrary. We are not bound by the supplier's conditions even if we do not expressly object to them or if we accept the supplier's deliveries in the knowledge of the supplier’s deviating conditions.
2. Contract conclusion
Our orders are only legally binding in writing or in text form. We are bound by the orders for a maximum of two weeks.
Declarations of acceptance that are made later than two weeks after ordering are considered to be delayed and require our written acceptance or acceptance in text form.
In the event that the order cannot be delivered in full – or even in part – on time, the supplier is obliged to inform us immediately. The supplier’s notification constitutes a new offer and requires our written acceptance or acceptance in text form.
3. Prices/Invoicing/Payment
Unless otherwise agreed, the agreed prices are understood as prices in Euro plus statutory value-added tax and include the services provided in the respectively selected INCO term. Invoices are due for payment after proper performance of services and 30 days after receipt of invoice. The time of receipt is determined for written form by our incoming post stamp and for text form by the date of the text (fax or e-mail).
Unless otherwise specified in individual contracts or orders, payment is made within 30 days after deduction of a 3 % discount.
The proper invoice must be accompanied by our order data, the correct description of the goods and the contract number and sent to the postal address/e-mail address stated in the order. It must not be enclosed with the consignment of goods.
We do not owe any default interest. In the event of default in payment, we owe default interest in the amount of five percentage points above the respective base interest rate in accordance with § 247 BGB.
To the extent permitted by law, we may exercise rights of set-off, retention as well as the defence of non-performance of the contract. In particular, we are entitled to withhold due payments as long as we are still entitled to claims from incomplete or defective services against the supplier.
4. Shipping/Place of Performance
The goods will be dispatched in accordance with the INCO term agreed in writing. The risk of accidental loss and accidental deterioration also depends on the agreed INCO term.
5. Delivery dates
Our delivery dates mean dates of receipt at the place of performance and are binding. If a delivery date is determined by a calendar, it is deemed a fixed date. If a calendar week is specified, delivery must be made by the last working day of the week on Friday at the latest. An early delivery requires our written consent.
The supplier is obliged to inform us immediately of any imminent or occurred non-compliance with a delivery date, its causes and the expected duration of the delay. The foregoing does not affect the occurrence of a default in delivery.
In the event of a default in delivery, we are entitled to all statutory claims.
6. Quality assurance / Bio - Certification
The supplier who produces, processes, stores or markets organic goods in an EU member state holds a valid organic certification in accordance with Regulation (EC) No. 834/2007/ Regulation (EU) No. 2018/848 in the currently valid version and submits the relevant proofs in the currently valid version to Banater Bio-Handel GmbH respectively Rolling Kernels SRL without being requested to do so. Regulation 2018/848 will apply from 01.01.2022
As far as the supplier delivers feed, he has a registration and approval according to Regulation (EC) No. 183/2005 and guarantees the compliance with the feed regulations (EC) No. 999/2001, (EC) No. 1831/2003, (EC) No. 396/2005.
The supplier of food has a quality assurance system that complies with the legal requirements, in particular Regulation (EC) No. 852/2004, and is continuously further developed. The individual food hygiene measures go very far and include all the precautions necessary to control 'hazards' (to the good quality of the food) and to ensure that a food is fit for human consumption, taking into account its intended use. See definition of food hygiene in Regulation (EC) No 852/2004. The definition subsumes all possibilities of adverse modification of foodstuffs, including spoilage by microorganisms, contamination and growth of pathogens, exposure to chemical or biological residues and the presence of foreign bodies in foodstuffs. The supplier shall maintain complete and meaningful documentation that clearly and orderly presents the implementation of its quality assurance measures. Food is produced in accordance with the national 'Guides to good hygiene practice'.
The supplier shall inform Banater Bio-Handel GmbH respectively Rolling Kernels SRL immediately if the supplier becomes aware of circumstances that give reason to doubt the quality, safety or organic quality of the delivered products. Such circumstances exist in particular if it is established in writing by a state investigation office or a publicly appointed and sworn expert that a delivered product is not marketable, harmful to health (Article 14(2)(a), Article 15 (2) of Regulation (EC) No 178/2002) or unsuitable for human consumption (Article 14(2)(b) of Regulation (EC) No 178/2002) or for other reasons is not safe within the meaning of Art. 14, Art. 15 of Regulation (EC) No 178/2002.
7. Quality requirements
The supplier is obliged to supply only goods that comply with the agreed product specification and the properties specified therein. Any deviation of the goods from the agreed specification constitutes in any case a material breach of duty (also within the meaning of Art. 25 CISG), which also entitles us to cancel the contract and may give rise to a claim for damages.
The goods delivered by the supplier comply in every respect, in particular with regard to production, distribution, use and labelling, with the statutory provisions applicable in Germany at the time of delivery and are therefore fully marketable in Germany. This means in particular that the products are "safe" within the meaning of Article 14 and Article 15 of Regulation (EC) No. 178/2002, that they comply with the requirements of the German Food and Feed Code (LFGB) and with the requirements on organic production and labelling of organic products in accordance with Regulations (EC) No. 834/2007 and 889/2008/Regulation (EU) 2018/848 as amended.
The organic goods do not contain, consist of or are not produced from genetically modified organisms (GMOs) within the meaning of Regulation (EC) No 1829/2003 and 1830/2003. Nor does the product contain any ingredients containing, consisting of or produced from GMOs.
The organic goods may only contain residues up to a maximum of 0.01 mg/kg and in accordance with the orientation values of the BNN (Bundesverband Naturkost Naturwaren- German Federal Association for natural food natural products). The product contains no live or dead insects and no dangerous impurities. The product is healthy and suitable for human consumption with characteristic smell and colour and in accordance with the current EU Feed Regulation. The product is certified organic in accordance with EU standards Regulation (EC) No. 834/2007 and Regulation (EC) No. 889/2008. Regulation 2018/848 will apply from 01.01.2022
The goods comply with the ‘Guidelines and Warning Values’ of the German Society for Hygiene and Microbiology (DGHM). The ‘Guideline and Warning Values’ to be observed are listed in Annex I.
Packaging and packaging aids used anmust be suitable for foodstuffs and comply with the requirements of Regulation (EC) No 1935/2004 and - where applicable - Regulation (EC) No 10/2011 as well as other relevant statutory provisions, guidelines or standards in the version valid at the time of delivery. The supplier shall submit corresponding certificates of conformity for the packaging materials.
8. Examination/sample draw
Prior to delivery to us, the supplier shall inspect the goods for compliance with the statutory provisions and guarantee compliance with the relevant European and German food and feed law and competition law provisions in their current version as well as the marketability of the goods. Upon request, the supplier shall provide investigation reports, declarations of no objection and certificates proving that the delivered goods and packaging comply with applicable legal requirements and agreed product specifications. The latter ensures complete traceability of the products.
We are entitled, at our discretion, to take samples from the supplier's current production at any time in order to examine these both for compliance with the statutory regulations and for quality characteristics. Should the sampled goods prove not to be in accordance with the contract, the supplier is obliged to reimburse us for the inspection costs.
9. Defects investigation
Insofar as goods are received at our premises, it is incumbent upon us to inspect the goods within a reasonable period of time for any deviations in quality and quantity. The quality check is always carried out without chemical or microbiological analyses. The complaint is deemed to have been made in good time if it is received by the supplier within 3 working days of receipt of the goods with regard to obvious defects and within 7 working days of discovery with regard to hidden defects. Hidden defects can also be asserted if, for example, they only occur or are detected during production or due to complaints by our customers regarding the finished products.
We do not recognise any conflicting inspection or testing obligations.
10. Implied Warranties
We are entitled to statutory warranty claims in full. In the event of defects, we are entitled, at our discretion, to demand subsequent performance (rectification of defects or replacement delivery) and, after the occurrence of default, withdrawal from the contract, reduction of the purchase price and compensation for damages or reimbursement of futile expenses. Damages also include any damage due to delay in performance, the necessary ancillary costs (§ 439 sub-para. 2 BGB), consequential damages, recall costs and lost profit.
We are entitled to remedy the defect ourselves at the supplier's expense if the supplier has not remedied the defect within a reasonable period set by the client. If there is a risk of delay or special urgency, no deadline needs to be set before the client remedies the defect itself.
The limitation period for warranty claims is 24 months, unless the law provides for a longer warranty period.
11. Recourse
We are entitled without restriction to the legally determined recourse claims within a supply chain (supplier recourse in accordance with §§ 445a, 445b, 478 BGB) in addition to the defect claims. In particular, we are entitled to demand from the supplier exactly the type of subsequent performance (rectification of defects or replacement delivery) that we owe to our respective customer in individual cases. Our legal right to choose (§ 439 Abs. 1 BGB) is not restricted by this.
Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses in accordance with §§ 445a sub-para. 1, 439 sub-para. 2 and 3 BGB), we shall notify the supplier and request a written statement, briefly explaining the facts of the case. In the event that a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us will be deemed to be owed to our customer. In this case, the supplier is responsible for providing proof to the contrary.
Claims arising from supplier recourse also apply if the defective goods have been further processed by us or another entrepreneur.
12. Product Liability
Insofar as the supplier is legally responsible for product defects or damage caused by defective products, the supplier is obliged to indemnify us against claims for material defects-, damages and compensation for pain and suffering by third parties upon first request. The obligation to indemnify does not apply insofar as the claim is based on grossly negligent or intentional breach of duty on our part.
The supplier is also obliged to reimburse us for any expenses arising from or in connection with any recall or return action, destruction or appropriate legal defence carried out by us. We will inform the supplier about the content and scope of the recall or return measures to be carried out – as soon as this is possible and reasonable for us – and give the latter the opportunity to comment.
For the duration of the business relationship, the supplier must take out and maintain extended product liability insurance with a minimum coverage of at least € 1 million. The supplier is obliged to provide us with corresponding proof of cover upon request.
13. Obligation to provide information
Food and feed law apply to our products. The supplier is obliged to provide us with all available information for the products supplied by the latter that we require in order fulfilling our statutory obligations to provide information, labelling, documentation and information to the authorities and consumers (including toxicological and health assessments). The provision of this information is regarded as an essential secondary obligation.
14. Confidentiality
The supplier is obliged to keep secret and not make available to third parties any and all business and trade secrets that have become known to the latter within the scope of the business relationship, in particular all information concerning the products of Banater Bio-Handel GmbH respectively Rolling Kernels SRL such as recipes, specifications, drawings, production processes, drafts and the like, as well as all customer-related data. Oral statements and know-how developed within the framework of the business relationship are also covered by the confidentiality obligation.
The supplier is not entitled to use the recipes and know-how for its own purposes or those of third parties.
Irrespective of the duration of this cooperation, the obligation to maintain secrecy also applies for the period thereafter and in particular also in the event that the parties, for whatever reason, come to the conclusion that they will refrain from future cooperation.
For each case of infringement, the supplier undertakes to pay a contractual penalty to Banater Bio-Handel GmbH respectively Rolling Kernels SRL in the amount of 15 % of the order sum, at least € 10,000.00. The assertion of further damages remains unaffected by this.
15. Loyalty obligations
The supplier may not enter into its own contractual relations for a period of two years after delivery within the framework of a contract with Banater Bio-Handel GmbH or Rolling Kernels SRL with customers and end customers of Banater Bio-Handel GmbH respectively Rolling Kernels SRL that the supplier has supplied within the framework of the contractual relationship with Banater Bio-Handel GmbH or Rolling Kernels SRL. The supplier undertakes to pass on the same obligation to its employees and vicarious agents.
Should the supplier violate this obligation, Banater Bio-Handel GmbH respectively Rolling Kernels SRL is entitled to injunctive relief and damages including loss of profit.
16. Retention of title
The supplier's retention of title only applies insofar as it relates to our payment obligation for the respective products to which the supplier retains title. In particular, extended or prolonged reservations of title are inadmissible.
17. Arbitration agreement and choice of law
17.1. If the registered office of the supplier is in Germany, the following applies:
a) These GPC and the contractual relationship between the Supplier and us shall be governed by German Law including the UN Convention on Contracts for the International Sale of Goods (CISG).
b) Exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship with Banater Bio Handel GmbH is Kempten/Allgäu. Place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship with Rolling Kernels SRL is the headquarter of the supplier. However, we are entitled to sue the aupplier at any other legal place of jurisdiction.
17.2. If the registered office of the supplier is outside Germany, the following applies:
a) Disputes between the supplier and us arising out of or in connection with the contractual relationship will be finally settled by an arbitration tribunal acting on the basis of the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e. V.) (DIS). The seat of the arbitral tribunal is Munich.
b) In lieu of appealing to the arbitral tribunal, we are entitled to bring our matter before a competent court of law with regard to the subject matter and location.
c) These GPC and the contractual relationship between the supplier and us are governed by German law, including the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). German law also applies to the procedure.
18. Miscellaneous
Should any provision of this Agreement, or any provision incorporated into this Agreement in the future, be or become invalid or unenforceable, the validity or enforceability of the other provisions of this Agreement shall not be affected thereby. The same shall apply if the Parties have failed to address a certain matter in this Agreement. The invalid or unenforceable provision shall be deemed to be substituted by, and the Parties shall be deemed to have agreed upon. A suitable and equitable provision which, to the extend legally permissible, comes closest to the purpose of the invalid or enforceable provision or to the presumed intent of the Parties if had they considered the matter.
This Agreement is executed in the German, the English and the Romanian languages. In the event of any inconsistencies, the German version shall prevail.
Banater Bio-Handel GmbH
Hartmannsberger Str. 9
87634 Obergünzburg
Rolling Kernels SRL
Fecioarei Str., Nr. F.N.
310350 Ard, Judetul Arad
Romania
Fecioarei Str., Nr. F.N.
310350 Ard, Judetul Arad
Romania
General Sales Terms and Conditions
of Banater Bio-Handel GmbH and of Rolling Kernels SRL (as of: June 2019)
Preamble
In the interest of a partnership-based relationship with our business partners (Buyers), Banater Bio-Handel GmbH and Rolling Kernels SRL base their business transactions on the following General Terms and Conditions of Sale (GSC). These General Sales Terms and Conditions only apply if the buyer is an entrepreneur as defined in §14 of the German Civil Code (BGB), a legal entity organised under public law, or a special public fund.
1. Scope, Differing Terms and Conditions, Written Form
1.1. Our GSC apply exclusively. They form the basis of all our offers, deliveries and services. They also apply to future business transactions within the framework of ongoing contractual relationships.
1.2. Deviating general business relations of the buyer will not be recognised unless we have agreed to them in writing or in text form in individual cases, subject to proof to the contrary. This requirement of consent applies in every eventuality, for example also if we agree without reservation to make a delivery in full knowledge of the buyer's GTC.
1.3. Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in writing or text form (e. g. letter, email, fax). Statutory requirements as to form and further evidence, in particular in cases of doubt as to the declarant's legitimation, remain unaffected.
2. Offers, Contract Conclusion
2.1. Offers and other information in brochures, advertisements and price lists concerning weight, dimensions, filling and price are subject to change without notice. They will only become binding if this is expressly agreed in writing or in text form or confirmed by us, subject to proof to the contrary.
2.2. The order by the buyer is a binding contract offer, which we accept within two weeks after receiving. Acceptance may either be declared in writing, or implied by delivering the goods.
3. Delivery Date
3.1. The delivery date is agreed by oral or written agreement with the buyer.
3.2. Should we not be able to meet binding delivery deadlines for reasons that are beyond our control, we will notify the buyer immediately and indicate the expected new delivery deadline at that time.
3.3. In the case the delivery cannot be made within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any payments already made by the buyer will be refunded immediately. Such unavailability in this sense applies especially if our supplier is late in making its delivery to us, if we have made a congruent transaction to cover our expected orders and if neither our supplier nor we are responsible for said delay, or if we are not otherwise obliged to procure the delivery in the particular instance.
4. Passing of Risk
4.1. Place of performance is our registered office or distribution centre. This applies for deliveries and for a possible remedy. The risk of accidental loss and accidental deterioration of the goods passes to the buyer when the goods are transferred to the buyer.
4.2. Unless otherwise agreed in an INCO term, the dispatch of the goods (sale by delivery) is at the risk and expense of the buyer. In this case, the goods are dispatched from our registered office or delivery warehouse. When sending the risk is transferred to the buyer as soon as we have the goods to the shipper, carrier or otherwise transferred to the dispatch person.
4.3. If the buyer does not accept the goods in time, although they have been offered to it, the risk passes to the buyer upon notification that the goods are ready for dispatch. The buyer is obliged to compensate us for any damage arising from the default of acceptance, including additional expenses (e.g. storage costs).
5. Prices
5.1. Our prices are quoted in Euro (€) including packaging costs, plus statutory value-added tax. The prices are ex-warehouse.
5.2. In the case of sale by delivery to destination, the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer as well as any customs duties, fees, taxes and other public charges, unless we have agreed in writing with the buyer an INCO term with other legal consequences.
6. Liability for Defects and Notification of Defects
6.1. The statutory provisions apply to the buyer's rights in the event of material defects and defects of title, unless otherwise specified below. In all cases, the special statutory provisions remain unaffected upon final delivery of the unprocessed goods to a consumer, even if the consumer has further processed them. Claims arising from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur.
6.2. The basis for any claim for defects is first and foremost the agreement regarding the condition/quality of the goods. All product descriptions and manufacturer information which are the subject of the individual contract or which were made public by us at the time of conclusion of the contract are deemed an agreement on the quality of the goods.
6.3. The buyer must inspect the delivered goods immediately upon receipt for transport damage and obvious defects. Transport damage must be written off on the consignment note by the consignee stating the quantity and nature of the damage and confirmed immediately on the consignment note by the deliverer, otherwise no compensation will be paid.
Recognisable defects must be notified within 24 hours of receipt of the goods.
The buyer is obliged to have the goods tested in the laboratory after receipt for compliance with the contractually agreed properties, such as residue values, microbiology and mycotoxins, which can be determined analytically, insofar as this is reasonable for the buyer. In the case of goods intended for further processing, a laboratory examination must be carried out prior to further processing. Exceedances of residue values or other loads, which were duly determined, must be reported to Banater Bio-Handel GmbH or to Rolling Kernels SRL in writing within 14 days. Otherwise, the goods are considered to be approved.
Hidden defects in the goods must be reported to us in writing by the buyer immediately after discovery. Otherwise, the goods are considered approved.
Loss of weight due to natural shrinkage, storage and the like cannot be excluded and will not be at our expense.
In the case of defects asserted in a timely manner, we are entitled and obliged to remedy the defect or make a replacement delivery (subsequent performance) at our discretion within a reasonable period of time.
6.4. Our liability for defects does not extend to damages and defects if and to the extent that these are caused by improper handling, natural shrinkage, moisture, strong heating of the rooms, other unusual weather and temperature influences as well as insect and beetle infestation.
6.5. Notwithstanding § 438 sub-para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title and for damages is one year from delivery, unless the application of the regular statutory limitation period would lead to a shorter limitation period in individual cases. Claims for damages of the buyer in accordance with 7.1 and 7.3 as well as in accordance with the Product Liability Act become statute-barred, however, exclusively in accordance with the statutory limitation periods.
7. Liability
7.1. We are liable in all cases of contractual and non-contractual liability for intent and gross negligence in accordance with the statutory provisions for damages or reimbursement for futile expenses.
7.2. In other cases we are liable - insofar as not otherwise regulated in paragraph 3 and subject to statutory limitations of liability such as care in our own affairs - only in the event of a breach of a contractual obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the buyer could rely, limited to compensation for the foreseeable and typical damage.
In the case of product mixes, liability for the claimants is jointly limited to the sum of the liability insurance of 3 million for Banater Bio Handel GmbH and to the sum of the liability insurance of 1 million for Rolling Kernels SRL.
7.3. Liability for damages resulting from injury to life, limb or health remains unaffected by the above limitations and exclusions of liability.
8. Retention of Title
8.1. The delivered goods remain our property as reserved goods until complete fulfilment of all claims arising from the business relationship and existing at the time of conclusion of the contract and such claims that we subsequently acquire against the buyer in direct connection with the goods.
This applies even if the payments on specifically designated claims have been made.
8.2. In the case of a current account, the reserved title is deemed security for our balance claims.
8.3. The buyer is entitled to resell the reserved goods in the ordinary course of business.
8.4. In order to secure all outstanding claims against the buyer, the buyer hereby assigns to us its claims against its customers arising from the resale in full or in the amount of our possible co-ownership share. We accept this assignment. As long as we are still the owner of the reserved goods, we are entitled to revoke the authorisation to resell if there is an objectively justified reason.
8.5. The buyer is revocably authorised to collect the assigned claim. Our authority to collect the claim ourselves remains unaffected, but we undertake not to collect the claims as long as the buyer duly meets its payment obligations.
8.6. The processing or transformation of the object of sale by the buyer is always carried out for us. If the object of sale is processed with other objects not belonging to us, we acquire co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of processing. In all other respects, the same applies to the object created by processing as to the object of sale delivered under reservation.
8.7. If the object of sale is inseparably mixed with other objects not belonging to us, we acquire co-ownership of the new object in the ratio of the value of the object of sale to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the buyer's item is to be regarded as the main item, it is deemed agreed that the buyer transfers co-ownership to us on a pro-rata basis. The buyer shall hold the resulting sole ownership or co-ownership in safe custody for us. In all other respects, the same applies as for the object of sale delivered under reservation.
8.8. If the buyer does not stop payments only temporarily, if it applies for the opening of insolvency proceedings or if insolvency proceedings are opened over its assets, it is obliged, at our request, to surrender the object of sale that is still our property at its own expense. Unless otherwise stated repossession does not constitute a withdrawal from the contract.
9. Terms of Payment, Late Payment, Set-off, Retention
9.1. Our invoices are to be paid immediately upon receipt of the delivery. We grant neither discounts nor other rebates.
9.2. If it becomes apparent after conclusion of the contract that our claim to consideration is at risk due to the buyer's lack of ability to pay, we are entitled to refuse the performance incumbent upon us until the buyer has effected consideration or provided advance payment/security for it.
9.3. Bills of exchange and cheques are accepted on account of performance and only on the condition that they are discountable. In addition, cheques or payments by bill of exchange require prior written consent. Collection and discount charges are owed in addition to the invoice amount.
9.4. If the buyer is in default of payment, we are entitled to charge default interest of 9 % above the base rate. Our right to claim higher default damages will not be affected.
9.5. The buyer may only offset against our agreement counterclaims that are undisputed, ready for decision or have been finally determined by a court of law. The buyer may only assert a right of retention insofar as it is based on undisputed claims from the same contractual relationship that are ready for a decision or have been legally established.
10. Arbitration agreement and applicable law
10.1. If the buyer is a merchant with its registered office in Germany and the contractual partner is Banater Bio Handel GmbH, the following applies:
Exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Kempten/Allgäu. We are however entitled to sue the buyer at any other legal place of jurisdiction.
10.2. If the buyer is a merchant with it registered office in Germany and the contractual partner is Rolling Kernels SRL, the following applies:
Place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the buyer´s registered office. We are however entitled to sue the buyer at any other legal place of jurisdiction.
10.3. If the buyer´s registered office is outside Germany, the following applies:
Disputes between us (Banater Bio Handel GmbH, Rolling Kernels SRL) and the buyer arising out of or in connection with the contractual relationship will be finally settled by a court of arbitration acting on the basis of the Rules of Arbitration of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e. V.). (DIS). The seat of the arbitral tribunal is Munich.
In lieu of appealing to the arbitral tribunal, we are entitled to bring our matter before a competent court of law with regard to the subject matter and location.
10.4. These GSC and the contractual relationship between Banater Bio Handel GmbH or Rolling Kernels SRL and the buyer are governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). German law also applies to the procedure and in arbitration proceedings.
10.5. Should any provision of this Agreement, or any provision incorporated into this Agreement in the future, be or become invalid or unenforceable, the validity or enforceability of the other provisions of this Agreement shall not be affected thereby. The same shall apply if the Parties have failed to address a certain matter in this Agreement. The invalid or unenforceable provision shall be deemed to be substituted by, and the Parties shall be deemed to have agreed upon. A suitable and equitable provision which, to the extend legally permissible, comes closest to the purpose of the invalid or enforceable provision or to the presumed intent of the Parties if had they considered the matter.
10.6. This Agreement is executed in the German, the English and the Romanian languages. In the event of any inconsistencies, the German version shall prevail.
Banater Bio-Handel GmbH
Hartmannsberger Str. 9
87634 Obergünzburg (Germany)
Rolling Kernels SRL
Fecioarei Str., Nr. F.N.
310350 Arad, Judetul Arad
Romania
of Banater Bio-Handel GmbH and of Rolling Kernels SRL (as of: June 2019)
Preamble
In the interest of a partnership-based relationship with our business partners (Buyers), Banater Bio-Handel GmbH and Rolling Kernels SRL base their business transactions on the following General Terms and Conditions of Sale (GSC). These General Sales Terms and Conditions only apply if the buyer is an entrepreneur as defined in §14 of the German Civil Code (BGB), a legal entity organised under public law, or a special public fund.
1. Scope, Differing Terms and Conditions, Written Form
1.1. Our GSC apply exclusively. They form the basis of all our offers, deliveries and services. They also apply to future business transactions within the framework of ongoing contractual relationships.
1.2. Deviating general business relations of the buyer will not be recognised unless we have agreed to them in writing or in text form in individual cases, subject to proof to the contrary. This requirement of consent applies in every eventuality, for example also if we agree without reservation to make a delivery in full knowledge of the buyer's GTC.
1.3. Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in writing or text form (e. g. letter, email, fax). Statutory requirements as to form and further evidence, in particular in cases of doubt as to the declarant's legitimation, remain unaffected.
2. Offers, Contract Conclusion
2.1. Offers and other information in brochures, advertisements and price lists concerning weight, dimensions, filling and price are subject to change without notice. They will only become binding if this is expressly agreed in writing or in text form or confirmed by us, subject to proof to the contrary.
2.2. The order by the buyer is a binding contract offer, which we accept within two weeks after receiving. Acceptance may either be declared in writing, or implied by delivering the goods.
3. Delivery Date
3.1. The delivery date is agreed by oral or written agreement with the buyer.
3.2. Should we not be able to meet binding delivery deadlines for reasons that are beyond our control, we will notify the buyer immediately and indicate the expected new delivery deadline at that time.
3.3. In the case the delivery cannot be made within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any payments already made by the buyer will be refunded immediately. Such unavailability in this sense applies especially if our supplier is late in making its delivery to us, if we have made a congruent transaction to cover our expected orders and if neither our supplier nor we are responsible for said delay, or if we are not otherwise obliged to procure the delivery in the particular instance.
4. Passing of Risk
4.1. Place of performance is our registered office or distribution centre. This applies for deliveries and for a possible remedy. The risk of accidental loss and accidental deterioration of the goods passes to the buyer when the goods are transferred to the buyer.
4.2. Unless otherwise agreed in an INCO term, the dispatch of the goods (sale by delivery) is at the risk and expense of the buyer. In this case, the goods are dispatched from our registered office or delivery warehouse. When sending the risk is transferred to the buyer as soon as we have the goods to the shipper, carrier or otherwise transferred to the dispatch person.
4.3. If the buyer does not accept the goods in time, although they have been offered to it, the risk passes to the buyer upon notification that the goods are ready for dispatch. The buyer is obliged to compensate us for any damage arising from the default of acceptance, including additional expenses (e.g. storage costs).
5. Prices
5.1. Our prices are quoted in Euro (€) including packaging costs, plus statutory value-added tax. The prices are ex-warehouse.
5.2. In the case of sale by delivery to destination, the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer as well as any customs duties, fees, taxes and other public charges, unless we have agreed in writing with the buyer an INCO term with other legal consequences.
6. Liability for Defects and Notification of Defects
6.1. The statutory provisions apply to the buyer's rights in the event of material defects and defects of title, unless otherwise specified below. In all cases, the special statutory provisions remain unaffected upon final delivery of the unprocessed goods to a consumer, even if the consumer has further processed them. Claims arising from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur.
6.2. The basis for any claim for defects is first and foremost the agreement regarding the condition/quality of the goods. All product descriptions and manufacturer information which are the subject of the individual contract or which were made public by us at the time of conclusion of the contract are deemed an agreement on the quality of the goods.
6.3. The buyer must inspect the delivered goods immediately upon receipt for transport damage and obvious defects. Transport damage must be written off on the consignment note by the consignee stating the quantity and nature of the damage and confirmed immediately on the consignment note by the deliverer, otherwise no compensation will be paid.
Recognisable defects must be notified within 24 hours of receipt of the goods.
The buyer is obliged to have the goods tested in the laboratory after receipt for compliance with the contractually agreed properties, such as residue values, microbiology and mycotoxins, which can be determined analytically, insofar as this is reasonable for the buyer. In the case of goods intended for further processing, a laboratory examination must be carried out prior to further processing. Exceedances of residue values or other loads, which were duly determined, must be reported to Banater Bio-Handel GmbH or to Rolling Kernels SRL in writing within 14 days. Otherwise, the goods are considered to be approved.
Hidden defects in the goods must be reported to us in writing by the buyer immediately after discovery. Otherwise, the goods are considered approved.
Loss of weight due to natural shrinkage, storage and the like cannot be excluded and will not be at our expense.
In the case of defects asserted in a timely manner, we are entitled and obliged to remedy the defect or make a replacement delivery (subsequent performance) at our discretion within a reasonable period of time.
6.4. Our liability for defects does not extend to damages and defects if and to the extent that these are caused by improper handling, natural shrinkage, moisture, strong heating of the rooms, other unusual weather and temperature influences as well as insect and beetle infestation.
6.5. Notwithstanding § 438 sub-para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title and for damages is one year from delivery, unless the application of the regular statutory limitation period would lead to a shorter limitation period in individual cases. Claims for damages of the buyer in accordance with 7.1 and 7.3 as well as in accordance with the Product Liability Act become statute-barred, however, exclusively in accordance with the statutory limitation periods.
7. Liability
7.1. We are liable in all cases of contractual and non-contractual liability for intent and gross negligence in accordance with the statutory provisions for damages or reimbursement for futile expenses.
7.2. In other cases we are liable - insofar as not otherwise regulated in paragraph 3 and subject to statutory limitations of liability such as care in our own affairs - only in the event of a breach of a contractual obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the buyer could rely, limited to compensation for the foreseeable and typical damage.
In the case of product mixes, liability for the claimants is jointly limited to the sum of the liability insurance of 3 million for Banater Bio Handel GmbH and to the sum of the liability insurance of 1 million for Rolling Kernels SRL.
7.3. Liability for damages resulting from injury to life, limb or health remains unaffected by the above limitations and exclusions of liability.
8. Retention of Title
8.1. The delivered goods remain our property as reserved goods until complete fulfilment of all claims arising from the business relationship and existing at the time of conclusion of the contract and such claims that we subsequently acquire against the buyer in direct connection with the goods.
This applies even if the payments on specifically designated claims have been made.
8.2. In the case of a current account, the reserved title is deemed security for our balance claims.
8.3. The buyer is entitled to resell the reserved goods in the ordinary course of business.
8.4. In order to secure all outstanding claims against the buyer, the buyer hereby assigns to us its claims against its customers arising from the resale in full or in the amount of our possible co-ownership share. We accept this assignment. As long as we are still the owner of the reserved goods, we are entitled to revoke the authorisation to resell if there is an objectively justified reason.
8.5. The buyer is revocably authorised to collect the assigned claim. Our authority to collect the claim ourselves remains unaffected, but we undertake not to collect the claims as long as the buyer duly meets its payment obligations.
8.6. The processing or transformation of the object of sale by the buyer is always carried out for us. If the object of sale is processed with other objects not belonging to us, we acquire co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of processing. In all other respects, the same applies to the object created by processing as to the object of sale delivered under reservation.
8.7. If the object of sale is inseparably mixed with other objects not belonging to us, we acquire co-ownership of the new object in the ratio of the value of the object of sale to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the buyer's item is to be regarded as the main item, it is deemed agreed that the buyer transfers co-ownership to us on a pro-rata basis. The buyer shall hold the resulting sole ownership or co-ownership in safe custody for us. In all other respects, the same applies as for the object of sale delivered under reservation.
8.8. If the buyer does not stop payments only temporarily, if it applies for the opening of insolvency proceedings or if insolvency proceedings are opened over its assets, it is obliged, at our request, to surrender the object of sale that is still our property at its own expense. Unless otherwise stated repossession does not constitute a withdrawal from the contract.
9. Terms of Payment, Late Payment, Set-off, Retention
9.1. Our invoices are to be paid immediately upon receipt of the delivery. We grant neither discounts nor other rebates.
9.2. If it becomes apparent after conclusion of the contract that our claim to consideration is at risk due to the buyer's lack of ability to pay, we are entitled to refuse the performance incumbent upon us until the buyer has effected consideration or provided advance payment/security for it.
9.3. Bills of exchange and cheques are accepted on account of performance and only on the condition that they are discountable. In addition, cheques or payments by bill of exchange require prior written consent. Collection and discount charges are owed in addition to the invoice amount.
9.4. If the buyer is in default of payment, we are entitled to charge default interest of 9 % above the base rate. Our right to claim higher default damages will not be affected.
9.5. The buyer may only offset against our agreement counterclaims that are undisputed, ready for decision or have been finally determined by a court of law. The buyer may only assert a right of retention insofar as it is based on undisputed claims from the same contractual relationship that are ready for a decision or have been legally established.
10. Arbitration agreement and applicable law
10.1. If the buyer is a merchant with its registered office in Germany and the contractual partner is Banater Bio Handel GmbH, the following applies:
Exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Kempten/Allgäu. We are however entitled to sue the buyer at any other legal place of jurisdiction.
10.2. If the buyer is a merchant with it registered office in Germany and the contractual partner is Rolling Kernels SRL, the following applies:
Place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the buyer´s registered office. We are however entitled to sue the buyer at any other legal place of jurisdiction.
10.3. If the buyer´s registered office is outside Germany, the following applies:
Disputes between us (Banater Bio Handel GmbH, Rolling Kernels SRL) and the buyer arising out of or in connection with the contractual relationship will be finally settled by a court of arbitration acting on the basis of the Rules of Arbitration of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e. V.). (DIS). The seat of the arbitral tribunal is Munich.
In lieu of appealing to the arbitral tribunal, we are entitled to bring our matter before a competent court of law with regard to the subject matter and location.
10.4. These GSC and the contractual relationship between Banater Bio Handel GmbH or Rolling Kernels SRL and the buyer are governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). German law also applies to the procedure and in arbitration proceedings.
10.5. Should any provision of this Agreement, or any provision incorporated into this Agreement in the future, be or become invalid or unenforceable, the validity or enforceability of the other provisions of this Agreement shall not be affected thereby. The same shall apply if the Parties have failed to address a certain matter in this Agreement. The invalid or unenforceable provision shall be deemed to be substituted by, and the Parties shall be deemed to have agreed upon. A suitable and equitable provision which, to the extend legally permissible, comes closest to the purpose of the invalid or enforceable provision or to the presumed intent of the Parties if had they considered the matter.
10.6. This Agreement is executed in the German, the English and the Romanian languages. In the event of any inconsistencies, the German version shall prevail.
Banater Bio-Handel GmbH
Hartmannsberger Str. 9
87634 Obergünzburg (Germany)
Rolling Kernels SRL
Fecioarei Str., Nr. F.N.
310350 Arad, Judetul Arad
Romania