TERMS OF SERVICE
General Terms and Conditions of Sale and Delivery of MILEI GmbH and MILEI Protein GmbH & Co. KG
1. Scope of application
Sales and deliveries by MILEI GmbH and MILEI Protein GmbH & Co. KG (“MILEI”) shall be made exclusively in accordance with the following General Terms and Conditions of Sale and Delivery (“Terms of Delivery”), which shall be accepted by Customer by the placing of an order or the receipt of delivery. They shall also apply to all future transactions with Customer. The application of Customer’s conflicting or supplementary terms and conditions shall be excluded, even if MILEI does not expressly object to such terms and conditions.
2. Conclusion of Contract
2.1 Offers by MILEI shall be non-binding. A contract shall only become effective once it has been confirmed by MILEI in a written confirmation of order and shall be governed exclusively by the contents of the confirmation of order and these Terms of Delivery. Verbal agreements or promises shall only be valid if an authorized employee of MILEI has confirmed them in writing.
2.2 MILEI retains all rights in the sales documentation (in particular images, drawings, data on weight and size) and samples. These items must not be made available to third parties and must be returned to MILEI without undue delay on demand.
2.3 The field staff of MILEI is not authorized to represent MILEI. In particular, the field staff cannot conclude contracts and make binding promises concerning the goods to be delivered (Liefergegenstand) (“Goods”) or other conditions.
3. Delivery Periods and Delivery Dates
3.1 Delivery dates and delivery periods are only binding if they have been agreed in the contract as binding and Customer has provided MILEI in a timely manner with all of the information or documentation required for the performance of such delivery and Customer has made any advance payments in the manner and amount as agreed upon by the parties. Delivery periods shall commence on the date of the order confirmation. In the event of additional or supplementary contracts entered into at a later date, the delivery periods and delivery dates shall be extended or rescheduled accordingly, as applicable.
3.2 Events that are unforeseeable, unavoidable and outside the control and sphere of influence of MILEI and for which MILEI does not bear responsibility, such as acts of God, war, natural disasters or labor disputes, shall release MILEI for the duration of such event from its obligation to make timely delivery. Delivery periods or dates, as the case may be, shall be extended or rescheduled, as applicable, by the length of such disturbance, and Customer shall be informed of the occurrence of such disturbance in a reasonable manner. If the end of such disturbance is not foreseeable or should it continue for more than two months, either party may rescind the contract.
3.3 If deliveries by MILEI are delayed, Customer shall only be entitled to rescind the contract if MILEI is responsible for the delay and a reasonable grace period set by Customer has expired to no avail.
3.4 Should Customer be in default of the acceptance of delivery or should he be in breach of any other obligations to cooperate with MILEI, MILEI shall be entitled, without prejudice to its other rights, to reasonably store the Goods at Customer’s risk and expense or to rescind the contract in accordance with the statutory provisions.
3.5 MILEI may make partial deliveries for good reason if and to the extent this is reasonable for Customer.
4. Shipment, Passage of Risk, Transport Insurance
4.1 Unless otherwise agreed, shipment shall be made ex works Leutkirch im Allgäu. In order to comply with its delivery obligation, MILEI has to package the Goods for safe transport and, unless otherwise agreed upon, hand over the Goods to Customer free Leutkirch im Allgäu site (Holschuld). Upon handover of the Goods to Customer, forwarding agent, carrier or any other third party designated to perform shipment the risk shall transfer to Customer.
4.2 Unless otherwise agreed, MILEI is entitled to select the shipping method and packaging in its due discretion. Customer is obliged to dispose of the used packaging material at his own expense. To the extent that shipping containers (e. g. cans, barrels, pallets, boxes) were lent to Customer, Customer shall return these items to MILEI after use without undue delay, in good condition, (if necessary) cleaned and carriage paid.
4.3 Should Customer be in default of acceptance, risk shall pass to Customer upon default. If, in case the Goods shall be collected by Customer or a third party authorized by Customer, and delivery is delayed on grounds for which Customer is responsible, risk shall pass to Customer on the date Customer is notified of the readiness of the Goods for shipment.
4.4 A transport insurance shall be taken out only upon request and at the expense of Customer.
4.5 If the parties agreed on delivery on call, MILEI is entitled to deliver the Goods at the latest six (6) months after the earliest possible delivery date agreed even if Customer has made no delivery call-off. Customer is obliged to pay the purchase price in this case as well.
5. Prices, Terms of Payment
5.1 Unless the parties have agreed upon a certain price, the price shall be determined by MILEI’s price list as applicable at the date of the conclusion of the contract.
5.2 With regard to long term contracts concluded with Customer, i.e. especially long term supply contracts, MILEI is entitled to reasonably increase its prices with effect from the first day of January of any calendar year if and to the extent MILEI’s costs for the Goods increased during the previous calendar year. MILEI shall inform Customer in writing of the intended price increase at least eight weeks before it will take effect; in this case, Customer shall be entitled to terminate the contract for cause effective for future deliveries charged at the increased prices.
5.3 All prices of MILEI are ex works Leutkirch im Allgäu exclusive of statutory VAT in the respective applicable amount and do not include any shipment and packaging costs, which will be charged separately. Customer shall bear any public charges such as possible customs duties that may arise in connection with the import of the Goods.
5.4 MILEI is entitled to issue separate invoices for partial deliveries as defined in Section 3.5.
5.5 Each invoice of MILEI shall be due for payment without any deductions within 14 calendar days after receipt of the invoice; if this period for payment lapses unsuccessfully, Customer shall be in default. Payments by Customer shall not be deemed to have been made until MILEI has received and may freely dispose of such payment.
5.6 In the event that Customer is in default, MILEI shall be entitled to demand default interest in the applicable statutory amount. Any claims for further damages due to the default shall remain unaffected.
5.7 Bills of exchange and checks shall only be taken on account of performance upon special arrangement and without any bank charges or other costs for MILEI.
5.8 Customer is only entitled to a set-off if his counterclaim is uncontested, ready for decision or has been finally adjudicated. In the event of any defects of the Goods, Customer’s right to set off against any claims based on defects shall remain unaffected.
5.9 Customer is only entitled to assert a right of retention to the extent that his counterclaim is based on the same contract and is uncontested, ready for decision or has been finally adjudicated. In the event of any defects of the Goods, Customer’s retention right based on defects shall remain unaffected.
5.10 If MILEI becomes aware of the risk of Customer’s impossibility to perform (mangelnde Leistungsfähigkeit) after conclusion of the contract, MILEI shall be entitled to make outstanding deliveries only against prepayment or the provision of security. If such prepayments or security have not been rendered even after the expiry of a reasonable grace period, MILEI may partially or totally rescind individual or all of the affected contracts. MILEI shall remain entitled to assert further rights.
6. Retention of Title
6.1 The Goods shall remain the property of MILEI until any and all claims of MILEI arising from its business relationship with Customer have been paid in full.
6.2 In the case of current accounts, this retention of title shall serve as security for the claim for the balance to which MILEI is entitled.
6.3 Customer shall only be allowed to sell the Goods subject to retention of title (“Products subject to Retention of Title”) within normal and proper business transactions. Customer is not entitled to pledge the Products subject to Retention of Title, grant chattel mortgages on them or make other dispositions endangering MILEI’s title to such products. Customer hereby assigns his receivables arising from the resale of the products to MILEI, and MILEI hereby accepts such assignment. Should Customer sell the Products subject to Retention of Title after processing or mixing of such products with other goods or together with other goods, this assignment of receivables shall only be agreed to for an amount equivalent to the price agreed to between MILEI and Customer plus a safety margin of 10% of this price. Customer is granted the revocable authorization to collect in trust the claims assigned to MILEI in its own name. MILEI may revoke such authorization and the right to resell the products if Customer is in default of the performance of material obligations such as making payment to MILEI.
6.4 Any processing of the Products subject to Retention of Title by Customer shall always be performed for MILEI. If Products subject to Retention of Title are processed with other goods, MILEI shall acquire joint ownership of the new goods in the ratio of the value of the Products subject to Retention of Title to the other processed goods at the time of processing. The new goods created by way of processing shall be subject to the same provisions as applicable to the Products subject to Retention of Title.
6.5 Should the Products subject to Retention of Title be mixed with other goods, MILEI shall acquire joint ownership of the new goods in the ratio of the value of the Products subject to Retention of Title to the other goods at the date of mixing. Should the mixing of the goods occur in such manner that Customer’s goods are to be viewed as the main goods, it shall be deemed to be agreed that Customer assigns proportionate joint ownership to MILEI. Customer shall hold the joint ownership created in such manner in custody for MILEI.
6.6 Customer shall provide MILEI at all times with all desired information concerning the Products subject to Retention of Title or receivables assigned to MILEI under this contract. Customer shall immediately notify MILEI of any attachments of or claims to the Products subject to Retention of Title by third parties and shall provide the necessary documents in this regard. Customer shall at the same time advise the third party of MILEI’s retention of title. The costs of a defense against attachments and claims shall be borne by Customer.
6.7 Customer is obliged to treat the Products subject to Retention of Title with care for the duration of the retention of title.
6.8 Should the realizable value of the securities exceed all of MILEI’s claims that are to be secured by more than 10%, Customer shall be entitled to demand a release to such extent.
6.9 Should Customer be in default of material obligations such as payment to MILEI, and should MILEI rescind the contract, MILEI may, notwithstanding any other rights, request surrender of the Products subject to Retention of Title and may make use of them otherwise for the purpose of satisfying its matured claims against Customer. In such case, Customer shall grant MILEI or MILEI’s agents immediate access to the Products subject to Retention of Title and surrender the same.
6.10 In the case of deliveries to other jurisdictions in which the foregoing provisions governing the retention of title do not have the same effect as in Germany, Customer shall do everything to create equivalent security rights for MILEI without undue delay. Customer shall cooperate in all measures such as registration, publication, etc. that are necessary and beneficial to the validity and enforceability of such security rights.
6.11 On MILEI’s demand, Customer is obliged to appropriately insure the Products subject to Retention of Title, provide MILEI with the respective proof of such insurance and assign the claims arising under such insurance to MILEI.
7. Intellectual Property Rights and Confidentiality
7.1 Customer shall not perform and may not authorize a third party to perform any act that may endanger the trademarks or other intellectual property rights used by MILEI in relation to the Goods. In particular, trademarks and/or other distinctive features attached to the Goods may neither be obscured nor altered, removed or supplemented.
7.2 The parties undertake to keep the trade secrets of the respective other party confidential during the parties’ business relationship and thereafter; this shall not apply to information that is part of the public domain. Trade secrets means in particular all information that in this sense is not generally known such as customer lists, price lists, drawings, process instructions, formula, recipes and inventions. This duty of confidentiality shall not apply to information that had already been known to the receiving party prior to receipt, that the receiving party lawfully received or will receive from a third party without a concomitant confidentiality obligation or that are subject to mandatory disclosure pursuant to applicable law or a governmental or court order (e. g. disclosures to licensing authorities, regulatory authorities, government authorities or advisors bound to professional secrecy).
7.3 The information, data, documents and other records provided to Customer by MILEI may exclusively be used for the purposes of the business relationship with MILEI. If in the framework of the business relationship Customer is lawfully provided with trade secrets from MILEI or he obtains knowledge hereof Customer shall treat the trade secrets confidential and shall carry out reasonable measures in order to guarantee the maintenance of the confidentiality.
7.4 In its dealings with third parties, Customer shall not make reference to the business relationship with MILEI without MILEI’s express written consent.
8. Quality, Purchaser’s Rights in case of Defects, Duty to Inspect the Goods
8.1 Upon passing of the risk the Goods shall be of the agreed quality. The quality will exclusively be determined by the specific written agreements concluded by the parties concerning the characteristics, features and specifications of the Goods and the quality standards of the respective relevant statutory provisions applicable from time to time (in particular the German Food, Commodities and Feed Code (Lebensmittel-, Bedarfsgegenstände- und Futtermittelgesetzbuch; “LFGB”) and its provisions for implementation).
8.2 Information provided in sales catalogues, price lists and any other informative literature provided to Customer by MILEI or any other descriptions of the Goods shall under no circumstances constitute a guarantee for any specific quality of the Goods; such specific guarantees must expressly be made in writing.
8.3 Customer’s rights in case of defects of the Goods shall require that he inspects the Goods upon delivery without undue delay and notifies MILEI of any defects in writing and without undue delay following delivery; hidden defects must be notified to MILEI in writing without undue delay upon their discovery.
8.4 In the event of a notification of a defect, MILEI shall have the right to inspect and test the Goods to which objection was made. Customer will grant MILEI the required period of time and opportunity to exercise such right. Should Customer’s notification of the defect prove to be unjustified, and provided Customer has realized this prior to the notification of the defect or has not realized it in a negligent manner, Customer shall be obliged to reimburse MILEI for all costs incurred in this respect, e.g. travel expenses or shipping costs.
8.5 MILEI shall be entitled to remove defects at its option by remedying the defect, if possible, or by supplying a defect-free replacement (together “Subsequent Performance”), each free of charge to Customer.
8.6 Customer shall grant MILEI reasonable time and opportunity to effect the Subsequent Performance.
8.7 Goods that have been replaced by MILEI shall be returned to MILEI upon its demand.
8.8 Customer’s rights in case of defects shall be excluded if the defect of the Goods is caused due to reasons for which Customer is exclusively responsible.
8.9 If the Subsequent Performance fails, if such remedy is unreasonable for Customer or if MILEI has refused such remedy pursuant to section 439(4) German Civil Code (Bürgerliches Gesetzbuch; “BGB”), Customer may, at his option, rescind the contract in accordance with the statutory provisions, reduce the purchase price and/or claim either damages pursuant to section 9 or the reimbursement of its futile expenses.
8.10 The limitation period for Customer’s claims for defects shall be twelve months as of the handover of the Goods . The provisions on the statute of limitations of section 445b BGB shall remain unaffected. The statutory limitation periods shall remain applicable
(a) to Customer’s rights with respect to defects concealed in bad faith or caused intentionally;
(b) if and to the extent that MILEI has assumed a guarantee;
(c) to any claims for damages of Customer due to culpably caused damage to life, body or health;
(d) to any claims for damages of Customer due to damage caused by MILEI intentionally or by gross negligence;
(e) to any claims for damages of Customer for reasons other than defects of the goods; as well as
(f) to claims under the German Product Liability Act (Produkthaftungsgesetz) or in case of other mandatory statutory liability provisions.
9. Limitation of Liability and Damage Compensation
9.1 MILEI’s obligation to pay damages shall be limited as follows:
(a) For damages caused by a breach of a material contractual obligation, MILEI shall only be liable up to the amount of the typically foreseeable damage at the time of entering into the contract; MILEI shall not be liable for damages caused by a breach of a non-material contractual obligation.
(b) The limitation of liability as set out above shall not apply to damages caused intentionally or by gross negligence, culpably caused personal injuries nor to any liability under the German Product Liability Act and in case of any further mandatory liability. Furthermore, it shall not apply if and to the extent MILEI has assumed a guarantee.
9.2 Customer shall take all reasonable measures necessary to avert and reduce damage.
10. Product Liability
If Customer sells the Goods, whether unchanged or changed, whether after processing or mixing with other goods, Customer shall indemnify MILEI in their internal relationship against any product liability claims of third parties if and to the extent Customer is responsible for the defect leading to the liability also within their internal relationship.
11. Compliance and Documents
11.1 MILEI and Customer will comply with the anti-corruption laws applicable to them.
11.2 MILEI retains the title and reserves the copyright in all documents and materials provided to Customer (e.g. offers, product descriptions, calculations). Customer must not use, copy or disclose such documents and materials to third parties without MILEI’s prior written consent. Upon MILEI’s request, Customer is obliged to return the documents provided to him if he does not (or no longer) require them to duly fulfill the business relationship.
12. General Provisions
12.1 Customer may only assign the rights arising from the parties’ contractual relationship to third parties with MILEI’s written consent. Section 354a German Commercial Code (Handelsgesetzbuch; “HGB”) shall remain unaffected hereby.
12.2 Any changes of and amendments to the contract and/or these Terms of Delivery and any side agreements shall require written form. The same shall apply to any amendment of this written form requirement.
12.3 If a provision of the contract and/or these Terms of Delivery is invalid in whole or in part, the validity of the remaining provisions shall remain unaffected hereby.
12.4 Exclusive venue for any and all disputes arising from or in connection with the parties’ contractual relationship shall be the registered seat of MILEI. MILEI shall be entitled, however, to sue Customer at any other court of statutory jurisdiction.
12.5 The laws of the Federal Republic of Germany shall apply to these Terms of Delivery and the parties’ contractual relationship to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).