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 Divodo International GmbH 


General Conditions of Sale 

  § 1 scope, form 

(1) These General Terms and Conditions of Sale (AVB) apply to all our business relationships with our customers (“buyers”). The AVB only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. 

(2) The AVB apply in particular to contracts for the sale and/or delivery of movable items (“goods”) that we purchase exclusively from suppliers and do not manufacture ourselves. Unless otherwise expressly agreed in writing or in text form (e.g. letter, e-mail, fax), the GTC in the version valid at the time of the purchaser's order or at least in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts , without us having to refer to them again in each individual case. 


(3) Our AVB apply exclusively. General terms and conditions of the buyer only become part of the contract if and to the extent that we have expressly agreed to their validity in writing or in text form. This requirement for consent applies in any case, for example even if we carry out the delivery to the buyer without reservation in knowledge of the general terms and conditions. 


(4) Individual agreements made with the buyer in individual cases (including ancillary agreements, additions and changes) always take precedence over these AVB. Subject to proof to the contrary, a contract concluded in writing or in text form or our confirmation given in text form is decisive for the content of such agreements. 


(5) Legally relevant declarations and notifications by the buyer in relation to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be submitted in written or text form. Statutory formal requirements and other evidence, especially in the event of doubts about the legitimacy of the declarant, remain unaffected. 


(6) References to the validity of legal regulations are only of clarifying importance. Even without such a clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these AVB. 

 § 2 conclusion of contract 

(1) Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogues, other product descriptions or documents - also in electronic form - to which we reserve the property rights and copyrights. 


(2) The ordering of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 2 (two) weeks after we receive it. 

(3) The acceptance will be declared by us in writing or in text form (e.g. by order confirmation) or by delivery of the goods to the buyer. 

§ 3 Delivery period and delay in delivery 

(1) The delivery period is agreed individually or specified by us when accepting the order. If this is not the case, the delivery period is approx. 2 (two) weeks from the conclusion of the contract. 

(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible, we will inform the buyer of this immediately and at the same time communicate the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the buyer. A case of unavailability of the service in this sense is in particular the untimely or incorrect delivery by our suppliers if we have concluded a congruent hedging transaction, we are not at fault or we are not obliged to procure in individual cases._cc781905-5cde-3194- bb3b-136bad5cf58d_

(3) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder by the buyer is required. If we are in default of delivery, the buyer can demand lump-sum compensation for his damage caused by the delay. The flat-rate compensation for damages is 0.5% of the net price (delivery value) for each full calendar week of delay, but no more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer suffered no damage or only a significantly lower damage than the above flat rate. 

(4) The rights of the buyer according to § 8 of these AVB and our legal rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to the impossibility or unreasonableness of the service and/or supplementary performance), remain unaffected. 

§ 4 Delivery, transfer of risk, insurance, acceptance, default of acceptance, quantity and labeling 

(1) The delivery takes place from the Glinde warehouse, which is also the place of performance for the delivery and any supplementary performance. At the request and expense of the buyer, the goods will be sent to another destination (sales by mail). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging). 

(2) We are only obliged to take out transport insurance if this has been expressly agreed in writing or in text form. 

(3) The risk of accidental loss and accidental deterioration of the goods is transferred to the buyer at the latest when the goods are handed over. In the case of mail-order sales, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is already transferred when the goods are delivered to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. For the rest, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance. The handover or acceptance is the same if the buyer is in default of acceptance. 

(4) We are entitled to deliver up to 5% more or less than the agreed quantity; the quantity actually delivered is calculated. 

(5) We are entitled to reasonable partial deliveries. 

(6) The goods are not packaged and labeled for the end consumer in terms of food law regulations. 

§ 5 Prices and Terms of Payment 

(1) Unless otherwise agreed in individual cases, our current prices at the time the contract is concluded shall apply, ex warehouse plus statutory sales tax. If additional or increased duties, taxes, customs duties or fees are incurred between the conclusion of the contract and delivery due to changed legal provisions, we are entitled to increase the purchase price accordingly. The weight determined upon shipment to the buyer is decisive for the calculation of the purchase price; Normal weight loss during shipping is the sole responsibility of the buyer. 

(2) The purchase price is due and payable immediately upon receipt of the invoice and the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation. 

(3) With the expiry of the above payment period, the buyer is in default. Interest is to be paid on the purchase price during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by delay. Our claim to the commercial maturity interest (§ 353 HGB) remains unaffected towards merchants. 

(4) The buyer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the counter rights of the buyer remain unaffected, in particular in accordance with Section 7 (6) sentence 2 of these AVB. 

(5) If it becomes apparent after the conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is at risk due to the buyer's inability to pay, we are entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw authorized by the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we can declare our withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected. 

§ 6 Retention of title 

(1) We reserve title to the goods sold until full payment of all our current claims from the purchase contract and any ongoing business relationship (secured claims). 

(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us (e.g. attachments). 

(3) If the buyer behaves in breach of contract, in particular if the purchase price due is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not include a declaration of withdrawal; on the contrary, we are entitled to only demand the return of the goods and to reserve the right to withdraw from the contract. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the buyer a reasonable deadline for payment or setting such a deadline is unnecessary under the statutory provisions. 

§ 7 Buyer's claims for defects 

(1) The statutory provisions shall apply to the rights of the buyer in the event of material defects and defects of title (including incorrect and short deliveries), unless otherwise specified below. In all cases, the special statutory provisions for the final delivery of the unprocessed goods to a consumer remain unaffected, even if the latter has processed them further (supplier recourse in accordance with §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by combining them with another product. 

(2) Our liability for defects is primarily based on the agreement made on the quality of the goods. All product descriptions and manufacturer information that are the subject of the individual contract or that were made public by us (in particular in catalogs or on our Internet homepage) at the time the contract was concluded are deemed to be an agreement on the quality of the goods._cc781905-5cde-3194-bb3b- 136bad5cf58d_


(3) If the quality has not been agreed, it is to be assessed according to the statutory regulation whether there is a defect or not (§ 434 Para. 1 Clause 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g. advertising statements) that the buyer has not pointed out to us as decisive for his purchase. 


(4) Any claims for defects by the buyer presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). This applies in particular to the number of items, weight, packaging, temperature and condition (smell, taste, appearance, etc.) of the goods. Frozen goods are to be thawed randomly. The buyer must complain about transport damage directly to the carrier. In the case of foodstuffs and other goods intended for further processing, an inspection must always be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing or in text form within 2 (two) working days of delivery and defects that cannot be identified during the inspection must be reported within the same period of time after discovery. Notifications of defects to legal representatives (brokers, agents, etc.) are irrelevant. The type  and scope of the alleged defect must be clearly described in the notification of defects. The buyer must keep the goods complained about ready for inspection by us or an expert appointed by us. If the buyer fails to carry out the proper inspection and/or notification of defects, our liability for the defect that is not reported or not reported in a timely or proper manner is excluded in accordance with the statutory provisions. 


(5) If the delivered item is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the statutory requirements remains unaffected. 


(6) We are entitled to make the supplementary performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold a part of the purchase price that is reasonable in relation to the defect. 


(7) The buyer must give us the time and opportunity required for the supplementary performance owed and, in particular, hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. 


(8) We will bear or reimburse the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs in accordance with the statutory provisions if there is actually a defect. Otherwise, we can demand reimbursement from the buyer for the costs incurred from the unjustified request for rectification of defects (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the buyer. 


(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We must be informed immediately, if possible beforehand, of such a self-performance. The right to take action ourselves does not exist if we were entitled to refuse subsequent performance in accordance with the statutory provisions. 


(10) If the subsequent performance has failed or a reasonable period of time to be set by the buyer for the subsequent performance has expired without success or is unnecessary according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect. 


(11) Claims of the buyer for damages or reimbursement of wasted expenses exist only in accordance with § 8 and are otherwise excluded. 

§ 8 Other liability 

(1) Unless otherwise stated in these AVB including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions. 

(2) We are liable for damages – for whatever legal reason – within the framework of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we are only liable, subject to statutory limitations of liability (e.g. diligence in our own affairs; insignificant breach of duty).

a) for damage resulting from injury to life, limb or health, 

b) for damages resulting from the breach of a material contractual obligation (obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage. An example of an essential contractual obligation is our obligation to deliver the goods. 

(3) The limitations of liability resulting from paragraph 2 also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims by the buyer under the Product Liability Act. 


(4) Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the legal requirements and legal consequences apply. 

§ 9 Statute of limitations 

(1) Contrary to Section 438 Paragraph 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance. 


(2) The above limitation periods of sales law also apply to contractual and non-contractual claims for damages by the buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases to lead. Claims for damages of the buyer according to § 8 paragraph 2 sentence 1 and sentence 2(a) as well as according to the Product Liability Act expire exclusively after the statutory limitation periods. 

§ 10 Choice of law and place of jurisdiction, severability clause 

(1) The law of the Federal Republic of Germany applies to these AVB and the contractual relationship between us and the buyer, excluding international uniform law, in particular the UN sales law. 


(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in Glinde. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. In all cases, however, we are also entitled to file suit at the place of performance of the delivery obligation in accordance with these AVB or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding legal regulations, in particular regarding exclusive responsibilities, remain unaffected. 


(3) If individual terms of these AVB are void or unenforceable, the rest of the contract remains valid and binding. The parties are obliged to mutually replace void or unenforceable clauses with such legally compliant regulations that come closest to the economic purpose of the void or unenforceable clause. 

[Version 1/2020] 

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