General Terms and Conditions

General Terms and Conditions

(Status of: May 2019)

EDEKA Foodservice Stiftung & Co. KG, Edekastrasse 1, 77656 Offenburg

EDEKA C+C großmarkt GmbH, New-York-Ring 6, 22297 Hamburg

(hereinafter referred to as ECCG)

Union SB Großmarkt Südbayern GmbH, Ingolstädter Strasse 120, 85080 Gaimersheim

SB UNION Großmarkt GmbH, Industriegebiet Pfieffewiesen, 34212 Melsungen

RM Großmarkt GmbH, Industriegebiet Pfieffewiesen 34212 Melsungen

L. Stroetmann Großverbraucher GmbH & Co. KG, Capeller Str.145, 59368 Werne


Art. 1

Sale to entrepreneurs, scope of application, authority to order

1. As a wholesale enterprise, we sell and deliver exclusively to entrepreneurs, namely to persons carrying on a business in the food industry as well as large commercial consumers. The merchandise offered by us is exclusively intended for resale or for commercial use.

2. If requested, the customer is required to provide us with evidence of the nature and existence of its enterprise. This can be done by submitting the officially confirmed business registration, together with an original receipt from the tax office for payment of value-added tax, which must be no older than 3 months, or by a certificate from the tax office, the Chamber of Commerce and Industry or a similar institution or from a tax consultant. The customer must notify us immediately in writing of any change relating to its enterprise.

3. These terms and conditions of sale as well as other terms and conditions used by us, if any, and included in the business relationship shall apply exclusively to all our sales of goods, deliveries and other services, also in the future. Any conflicting, divergent additional and supplementary general terms and conditions of the customer shall only apply if we have expressly agreed to them in writing. Any silence on our part in respect of any conditions of the customer and in the acceptance of delivery or payment does not constitute consent to any conditions of the customer. If our Supplier does not agree to the foregoing, it shall immediately inform us accordingly in writing. In this case we may withdraw our order confirmations and acceptance declarations for customer orders placed, without the customer being able to assert claims of any kind against us. We hereby expressly object to the standard reference to suppliers’ own General Terms and Conditions. Provisions in any of the framework agreements of the above-mentioned companies using these General Terms and Conditions with third parties on behalf of the customer or in any individual contracts concluded directly with the customer shall take precedence over these Terms and Conditions where applicable.

4. We are entitled for material reasons, in particular in the following cases, to unilaterally refuse or withdraw the customer’s right to place orders:

a) if the customer’s credit rating index does not guarantee that invoices will be paid when due;

b) if the customer enters into a purchasing cooperation, a purchasing office or a similar purchasing association (hereinafter also referred to as an organisation) in or with such an organisation in which we or ECCG are already engaged in contractual supply relations in any manner whatsoever;

c) if commercial credit insurance taken out for the customer is terminated.

5. Should an application be filed to initiate insolvency proceedings concerning the assets of a customer, the latter will automatically lose its entitlement to request offers and place orders at the time the application for insolvency proceedings is made. The customer must inform us immediately if it or a third party files an application to initiate insolvency proceedings over the customer’s assets. However, this shall not apply where the application was obviously filed without justification by a third party.

6. Orders that have already been placed but not yet fulfilled will no longer be executed after withdrawal or loss of entitlement to place orders. Such orders shall then be cancelled unless we have already accepted them.

7. To the extent that the collection business is used in our business relationship with the customer, the latter shall be responsible, except as otherwise agreed, for compiling the commissioned merchandise and transporting it away. In this case, the provisions concerning the customer ID card (Art. 6) shall apply in particular. If, in contrast, delivery has been agreed as part of the delivery business as such, then the provisions of Art. 7 shall apply. If delivery by drop shipment has been agreed, Art. 8 shall apply; the provisions on the customer ID card (Art. 6) shall then not be applicable.

8. Only the delivery business applies as far as ECCG customers are concerned. In addition, the following applies to them:

a) Orders (Art. 7 para. 2) and notifications of defects (Art. 5 para. 1) are to be addressed exclusively to the EDEKA GV-Service partner named by ECCG.

(b) ECCG is entitled to offer customers additional regional assortment ranges for different regions of Germany.

c) If a contractual partner of ECCG and the customer has taken over the central settlement of the invoices intended for the customer (as central settlement agent), the customer will lose the right to place orders when the central settlement agent discontinues the central settlement process.

Art. 2

Prices and quantities

1. Our written and oral offers are subject to change and without engagement with regard to price and quantity, unless we have expressly designated them as binding.

2. The prices quoted in our offers are current prices in euros, exclusive of value added tax. The prices quoted do not include a deposit, unless otherwise stated.

3. No delivery of goods below the minimum purchase quantity (minimum order quantity) will be made. The following minimum purchase quantities apply to the delivery business: The minimum net order value is € 400.00 for goods from the food segment per delivery. The minimum order quantity for frozen food is 6VE (no partial pallets) within the net €400.00 food delivery. If the minimum order quantity is not reached, we reserve the right not to execute the order or to execute it only if the customer is prepared to pay the associated expense compensation.


Art. 3

Price-bound goods, tobacco articles, tobacco traceability as part of pick-up business

1. If price-bound goods are purchased (tobacco articles and possibly publishing products), the customer undertakes, in the event of resale to end consumers, to comply with the prescribed end consumer prices and, in the event of sale to resellers, to commit them accordingly. The customer undertakes to pay a conventional penalty in the amount of € 500 in the event that, contrary to this obligation, the customer has culpably not obtained tobacco goods from us for the purpose of reselling them under customs registration. The right to bring further claims for damages, if necessary, remains reserved; a conventional penalty will be offset against the claim for damages.

2. In order to ensure the traceability of tobacco goods at the time of collection as required by EU law, the customer is obliged to inform the ECCG at the time of collection which tobacco goods are delivered with which aUI or upUI to which destination facility (FID). This obligation of the customer does not exist if ECCG has already received the necessary information in advance (e.g. with the order) in such a way that it is possible to assign the tobacco products with the aUI or upUI to the destination facility.

3. If customers purchase tobacco goods under the conditions applicable to non-resellers (e.g. at the band price, without discounts), they are obliged to ensure that these are not offered for sale in a facility.


Art. 4

Payment, information

1. Invoices are due and payable immediately. Payment of the invoice shall be made in cash, step by step without deduction, against delivery of the goods. Other methods of payment are only possible with our express permission; we wish to point out in this context that we reserve the right to invoke the lack of authorization in the event of verbal permission that has not been granted by our management or by a person expressly designated as authorised by us. Bills of exchange are not accepted.

2. If agreed with the customer, invoices due will be settled by direct debit as part of the SEPA corporate direct debit system. We must send the advance notice for the direct debit one day before the due date. If the direct debit is not honoured, default in payment shall occur on the due date without a further reminder being necessary. All fees and costs caused in this connection by the return of the direct debit shall be refunded by the customer. In this case we are entitled to refer the customer to cash purchases from then on (payment of the invoice in cash concurrently with delivery of the goods, without any deduction). The same applies if there is no agreement on a direct debit procedure. Art. 4 para. 1 sentences 3 and 4 shall apply mutatis mutandis.

3. If the customer makes a bank transfer, then payment must be made within the agreed payment period. If no payment is received by us within this payment period, default in payment shall occur two days after exceeding the payment period without a further reminder, unless the customer is not responsible for exceeding the payment period.

4. In each case of default, the statutory default interest of 9 percentage points above the base rate of Deutsche Bundesbank shall apply. In addition, further deliveries can be blocked in cases of default. Furthermore, in this case we may demand immediate payment of all outstanding invoices, even those not yet due. This does not preclude further claims for damages being filed.

5. If we engage in advance performance, we will obtain business information on creditworthiness and names and addresses before accepting or executing an order.

Art. 5

Claims for defects

1. The customer must check the goods immediately upon receipt to ensure that they are in accordance with the contract. Complaints must be made immediately in writing (by e-mail or fax) or by telephone. Complaints must be filed

- in the case of perishable goods (fruit and vegetables, delicatessen, fresh meat, frozen food and similar fresh goods) and shortfalls, immediately by telephone, but no later than within 24 hours of delivery of the goods or discovery of the defect

- otherwise within 2 days

When the goods are collected, they must be inspected immediately and obvious defects must be reported and claimed immediately. In the case of initially latent defects, the aforementioned periods shall apply accordingly, calculated from the time of their discovery. If the customer fails to notify us in good time and in due form, the goods shall be deemed to have been approved, unless the quantity or quality obviously deviates from the order to such an extent that we had to consider approval by the customer to be excluded. Claims of the customer are also excluded if the goods have been improperly modified, treated, stored or processed after receipt, unless the customer proves that the claimed defects are not based thereon.

2. We (in relation to ECCG customers, cf. Art. 1 para. 8, represented here by the EDEKA GV Service partner acting on our behalf) provide a warranty for defects by specific, subsequent performance, i.e. by replacing the defective goods with defect-free goods or, if possible, repairing the goods free of charge at our option against return of the defective goods. Our customer may, at its discretion, demand a price reduction or rescind the agreement if subsequent performance fails twice, is impossible or unreasonably delayed by us or is seriously and finally refused by us. Furthermore, in this case the customer may claim damages within the limits of Art. 10 para. 2 of these terms and conditions of sale, unless we were not responsible for the defect.

3. In lieu of the above paragraph 2, the statutory provisions shall apply if the customer had to take back goods resold to a consumer within the meaning of Section 13 BGB (consumer goods) as a result of their defectiveness or if the consumer has justifiably reduced the purchase price due to existing defects.

4. In the cases referred to in paragraph 2, goods shall only be taken back after prior agreement with the competent body designated by us or with the employees expressly authorised for this purpose.

5. All claims derived from the defectiveness of the goods, including any claims for damages, shall become statute-barred twelve months after the passing of risk, except in the case of gross negligence and claims for compensation for injury to life, limb or health. This shall also apply to any competing congruent claims for damages arising from non-contractual liability. In departure from this, Section 479 BGB (German Civil Code) shall apply to recourse claims for goods (consumer goods) resold to a consumer as contemplated by Section 13 BGB.

6. If, for reasons for which we are not responsible, we do not receive the delivery from our upstream supplier despite proper and sufficient coverage prior to the conclusion of the contract with the customer in accordance with the quantity and quality from our delivery or service agreement with the customer (congruent coverage), or if we do not receive the delivery correctly or on time or if events of force majeure of not inconsiderable duration (i.e. for a duration exceeding 14 calendar days) occur, we shall inform our customer immediately in writing or in text form. In this case we shall be entitled to postpone the delivery for the duration of the impediment or, if the impediment to performance is not only of a temporary nature, to withdraw from the contract in whole or in part on account of the part not yet fulfilled, provided that we have met our above obligation to provide information and have not assumed the procurement risk or a delivery guarantee. Force majeure includes strikes, lockouts, official interventions, shortages of energy and raw materials, transport bottlenecks or obstacles through no fault of our own, operational hindrances through no fault of our own – e.g. due to fire, water and machine damage – and all other hindrances which, from an objective point of view, were not caused through any fault on our part.

Art. 6

Pickup business, customer identity card, prohibition to pass on, conventional penalty

1. Access to our premises and to our sales rooms is only permitted with a valid customer ID issued by us. A prerequisite for the issue of the customer ID card is proof of the type and existence of the company (Art. 1 para. 2).

2. The customer ID card is not transferable and is only valid in conjunction with the identity card of the person entitled to purchase; the purchasers named in the customer ID card are also permitted, who must also identify themselves by means of an identity card. In exceptional cases, the owner of the business enterprise may authorise another person in writing to make a one-time, commercial purchase in the event that the person entitled to purchase is prevented from doing so. This power of attorney must be surrendered at the time of purchase. Each purchase is made in the name and on behalf of the trader. The holder of the customer identity card is thus entitled to make all declarations in connection with the purchase.

3. The customer identity card remains our property and can be collected by us at any time without giving reasons. In the event of termination of business or deregistration thereof, the identity card must be returned to us without a request being necessary to do so. Legal disadvantages resulting from unauthorised or negligent passing on of the purchase identity card are the responsibility of the identity card holder; in such cases the latter is liable for misuse of the identity card in the amount of the damage incurred. The loss of the identity card must be reported to us immediately.

4. We must be notified immediately in writing of any changes in the name of the persons entitled to purchase. The customer undertakes to pay a conventional penalty in the amount of € 500 in the event that an unauthorised person purchases or attempts to purchase with its customer identity card, unless this occurs without consent; the same applies if goods are not purchased with consent for resale or commercial consumption (with the exception of covering own needs typical of the industry).

5. If customers open or damage original containers, then they shall be obliged, at their discretion, to accept them or to compensate us for any damage arising from the resulting deterioration in saleability.

6. The act of bringing an accompanying person along for the purpose of assistance is permitted. It is prohibited to carry bags or containers, objects to be carried separately, pets or animals to the wholesale market, or optical or acoustic recordings.

Art. 7

Delivery business

1. Any additional costs incurred for a delivery will be invoiced.

2. The orders are non-binding and therefore do not constitute an offer to conclude a purchase contract. Instead, the customer has the option of refraining from purchasing the assembled goods at any time until acceptance of the goods upon delivery. A purchase contract with the customer is only concluded if the customer decides upon delivery to purchase all or part of the goods offered to him or her at that time. Customers are given the opportunity to take note of the obligatory information on foodstuffs appearing on the goods so that they can then decide whether they wish to purchase the goods or not. If customers decide to purchase, they confirm this with their signature on the goods receipt confirmation / confirmation of receipt. To the extent that a customer decides against a purchase, any purchase amounts already paid are refunded immediately. ECCG customers will be treated accordingly: The offer shall be deemed to be made by the EDEKA GV-Service Partner in the name of ECCG, and the EDEKA GV-Service Partner accepts the customer’s declaration of acceptance for ECCG.

3. Deliveries of goods shall be made according to an itinerary and time schedule specified by us (or for ECCG customers, cf. Art. 1 para. 8: by the EDEKA GV-Service Partner nominated). This itinerary and time schedule can be adapted by us to the circumstances prevailing from time to time. Individual delivery dates are only binding if they have been expressly agreed in writing. All delivery dates are subject to correct and punctual delivery to us.

4. Deliveries to the customer shall be made using transport aids, such as pallets/roller containers/boxes, etc. in exchange. We are entitled, in particular insofar as no return of transport aids in the same quantity, type and quality is made, to charge the transport aids delivered with the fixed deposit amount plus the applicable rate of statutory value-added tax. In the event of the return of transport aids subject to a deposit, we shall then issue a correction to the invoice to this extent (i.e. to the extent that we do not disregard this due to exchange traffic) and carry out a corresponding correction to the value-added tax. The customers are obliged to take delivery of the goods in the transport aids, to handle the transport aids with care and to return them emptied and cleaned at the time of the next delivery.

5. If requested, the customer shall sign an acknowledgement of receipt for each delivery.

6. The employees delivering the goods are obliged not to render services beyond the work necessary for delivery; the customer cannot demand such services. Should transport aids nevertheless have to be emptied and/or cleaned by our employees, then the customer may be charged the corresponding costs.

7. In the delivery business, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer when the goods are handed over to the shipping agent.

8. Partial deliveries are admissible. This does not apply, however, if the customer has expressly excluded this in the order or if it is obvious that the partial delivery cannot be expected of the customer.

Art. 8

Drop shipments

1. On the basis of special contracts with specified suppliers, they deliver goods directly to our customers in our name and for our account (drop shipment). Our customers are not entitled to demand that we agree to drop shipments with certain suppliers, nor can claims against us be derived from the fact that we order drop shipments with certain suppliers. Furthermore, we are entitled to exclude individual customers from direct business with certain or all upstream suppliers without stating reasons. No claims against us can be derived from this in the process. We will notify the affected customers accordingly.

2. In the case of delivery by drop shipment, the customer must initially assert claims for defects exclusively against the upstream supplier. For example, we will not take back the goods purchased in a drop shipment; any return must be made directly to the upstream supplier. To this end, we assign our warranty claims against the upstream supplier to the customer. The customer accepts the assignment in lieu of performance. Our obligation to remedy defects shall only be revived if claims for defects cannot be asserted against the upstream supplier due to its lack of ability to perform. If defective goods from drop shipments are resold to consumers within the meaning of Section 13 BGB (German Civil Code), our obligation to remedy defects will be revived in the amount of the difference which may arise from the fact that claims for defects against the upstream supplier are calculated on a different basis at the expense of the customer than against us.

Art. 9

Retention of title

1. All goods sold by us and/or in our name and/or for our account shall remain our property until payment in full of all claims which we have against the customer from the existing current account relationship (business relationship) or which we will acquire in the future. The retention of title refers to the acknowledged balance. If cheques are handed in by the customer, our reserved ownership shall remain in effect until the relevant cheques have been cashed. However, the customer shall be entitled to resell the goods which are our property in the ordinary course of its business.

2. The processing or transformation of the goods by the customer is always carried out on our behalf. If the goods are processed, inseparably combined or mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the goods to the other processed, combined or mixed objects at the time of processing, combining or mixing. In all other respects, the same shall apply to the object created thereby as to the reserved goods.

3. If the goods are sold, regardless of whether they have been processed, mixed or not, the customer hereby assigns its entire claim against its customer in the amount of our total outstanding claims. The customer also assigns to us the claims to secure our claims against him which accrue to him against a third party through the combination of the goods with a piece of real estate (land).

4. Interventions or measures by third parties in the goods subject to our retention of title must be reported to us by the customer without delay. In the event of seizure, the customer must inform the bailiff that the seized objects are our reserved property and immediately send us a copy of the seizure record.

5. In the event of breach of contract by the customer, particularly in the event of default in payment, the goods subject to retention of title may be demanded by us, taken into possession and freely disposed of. If we assert the retention of title in this way or expressly or if we seize the reserved goods, this shall always constitute a rescission of the purchase agreement.

Art. 10

Liability

1. Parking on our premises, entering the warehouses and using the means of transport available there is at the customer’s risk.

2. Claims for damages are excluded for all instance of damage that have not occurred to the purchased goods themselves, if there is no case of intent, gross negligence, culpable violation of material contractual obligations, liability under the Product Liability Act, the assumption of a guarantee or injury caused to life, limb or health. In the event of culpable breach of material contractual obligations, we shall only be liable for reasonably foreseeable damage typical of the contract in question. Material contractual obligations within the meaning of the preceding sentence are to be understood as obligations which protect the customer’s legal positions which are essential to the contract and which the contract is intended to grant him in terms of content and purpose, as well as obligations the fulfilment of which is a prerequisite for the execution of the contract and the compliance with which the customer regularly relies and may rely.

3. Bringing children under the age of 14 is strictly prohibited. Should children under the age of 14 nevertheless sustain any injury while on our premises, the customer responsible for the child is obliged to release us from liability.

Art. 11

Return of empties and transport aids

1. Returnable empties charged for will only be taken back in original containers – sorted by type – against reimbursement of the deposit amount.

2. The one-way drinks carried by us (or, for ECCG customers: by the EDEKA GV-Service Partner) subject to mandatory deposit with the DPG identification of the Deutsche Pfandsystem GmbH (DPG) and an EAN code registered with the DPG are also taken back by us (or for ECCG customers by the EDEKA GV-Service Partner). No deposit can be refunded for containers that do not show that a deposit has been paid for them. This may also be the case for containers which are crushed, rusted or soiled and on which the DPG mark is therefore not recognisable.

3. Empties shall only be taken back by us if they have been purchased from us in full, and furthermore only to the extent that we are obliged to take back additional quantities on the basis of public law regulations.

4. If transport aids (cf. Art. 7) are not returned or not returned in full, we may demand compensation in the amount of the respective replacement value – less the deposit amount paid to us by the customer for these transport aids – whereby the customer is free to prove that the damage incurred is lower.

Art. 12

Service packaging

According to the Packaging Ordinance, the obligation to participate in a dual system (Section 6 (1) of the Packaging Ordinance) exists, among other things, for those who place service packaging filled with goods on the market for the first time. In this respect, the goods delivered or handed over by SB UNION Großmarkt GmbH, Melsungen, and by RM Großmarkt GmbH, Melsungen, to the customer (also to the customer of ECCG, if applicable) in the field of service packaging are already licensed under a dual system. In all other cases, the following shall apply:

In order to burden the customer with costs only when this is unavoidable, we only trade in service packaging (i.e. “packaging of the trade, gastronomy and other service providers that enable or support the handover of goods to end consumers”, e.g. pizza cartons and disposable tableware, if the customer actually hands over goods to its customers) that is not yet licensed under a dual system. This prevents service packaging from being “unnecessarily” licensed in advance unless it is established whether its subsequent actual use involves the handover of goods to final consumers and therefore really requires licensing. As a customer, please note that if you use service packaging in this sense, you are obliged to participate in a dual system.

We would be pleased to assume such a participation on behalf of the customer at the latter’s request. However, the costs would have to be borne by the customer in the form of an increased purchase price. Therefore, if you are a customer, please understand that if you request service packaging to participate in a dual system, you must express this request before purchasing the goods in question and we must then have the opportunity to inform you of the corresponding surcharges for future purchases – which we would charge retroactively after the end of a quarter for the previous quarter in one sum. We will be pleased to send you a corresponding price list on request.

Art. 13

LMIV data

If desired, we will provide you with data according to the Food Information Ordinance (LMIV data) on the articles sold to you – if available. This is voluntary, revocable at any time and free of charge. There is no entitlement to such transmission. We cannot assume any liability for the correctness, completeness and current status of the LMIV data. Depending on the type of intended use, we recommend checking the data beforehand if necessary. However, we shall be liable in accordance with the statutory provisions if we are responsible for injury to life, limb or health or if we can be accused of intent or gross negligence.

Art. 14

Pyrotechnic articles

Pyrotechnic articles may be purchased before 29 December of each year only by dealers who are authorised to distribute pyrotechnic articles.

Art. 15

Final provisions

Any price lists and order records issued by us shall remain our property and shall be treated as strictly confidential. The customer shall remain bound to absolute secrecy with regard to all conditions, sales prices and discounts for all assortments and other articles for a period of 2 years after termination of the business relationship. The customer is also obliged to commit its employees to secrecy to the same extent.

The place of performance for all services arising from the contractual relationship shall be the location of the warehouse from which the goods are procured. Nevertheless, the place of performance for ECCG customers shall be Hamburg. The place of jurisdiction shall be the competent courts for the registered office of our company. Irrespective of the buyer’s place of business, the contractual relationship including the resulting claims shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the CISG Agreement.

The invalidity of individual provisions of these General Terms and Conditions shall not affect the validity of the remaining provisions thereof.

AGB

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