Our rules of the game
These GTC apply to all contracts of fruitwork Handelsgesellschaft mbH (hereinafter also referred to as "Seller") with Buyers who are businesses within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law, if and to the extent that reference is made to these GTC in the contract.
Unless otherwise agreed in these GTC or the sales confirmation, we sell and deliver exclusively in accordance with the terms and conditions of the “Waren-Verein der Hamburger Börse e.V.”, in the version valid at the time of conclusion of the contract, which is attached to these GTC. Furthermore, the customer is advised that these terms and conditions can be obtained from:
WAREN-VEREIN DER HAMBURGER BÖRSE E.V.
Große Bäckerstraße 4, 20095 Hamburg
Deviating terms and conditions of the Buyer or a broker or agent as well as collateral agreements on the content of the contract and amendments to the contract shall only become part of the contract if we agree to them in writing. This shall also apply if the Buyer's order (contractual offer) is made with reference to the Buyer's General Terms and Conditions and these General Terms and Conditions of the Buyer are not rejected by fruitwork Handelsgesellschaft mbH.
(1) The goods shall remain the property of the Seller (reserved goods) until full payment of all claims of the Seller against the Buyer arising from the mutual business relationship, including conditional or future claims. In the case of current accounts, the retention of title shall serve as security for the respective balance claim of the Seller.
(2) The Buyer shall only be permitted to process, treat, mix, or sell goods subject to retention of title on condition that they keep detailed records of the respective whereabouts of the goods subject to retention of title in terms of quantity and value. In the event of arrears, they are obliged to provide the Seller with corresponding evidence at their own expense.
(3) The handling or processing of the goods subject to retention of title is always carried out on behalf of the Seller, without any liabilities arising for the Seller. The Seller shall be entitled to ownership of the new item created by processing or treatment. In the event of processing with other goods not belonging to the Seller, the Seller shall be entitled to co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the other processed goods at the time of processing. The value of the goods subject to retention of title is to be understood, also in the following, as the purchase price charged to the Buyer by the Seller. In the event that the goods subject to retention of title are mixed or combined with other goods, the Buyer hereby assigns to the Seller their ownership or co-ownership rights to the mixed stock or the combined uniform item and shall store these (hereinafter also goods subject to retention of title) for the Seller.
(4) The Buyer is authorized to resell goods subject to retention of title in the ordinary course of business subject to retention of title; pledging or transfer by way of security is prohibited. All customer claims to which the Buyer is entitled from the resale, regardless of whether this takes place before or after processing, mixing, or combining, including all ancillary rights, are hereby transferred by the Buyer to the Seller as security.
(5) In the event that goods subject to retention of title are sold by the Buyer themselves or - irrespective of their condition - together with other goods at a total price, the assignment of the claim arising from the resale, which has already been executed herewith, shall only be to the amount that the Seller has charged the Buyer for the part of the goods subject to retention of title in question.
(6) In the event that the Buyer receives bills of exchange or cheques from their customer from the resale, they hereby assign to the Seller the corresponding bill of exchange and cheque claims existing against their customer in the amount of the claim assigned to the Seller from the resale in accordance with paragraph (4). Ownership of the bills of exchange and cheque documents is hereby transferred from the Buyer to the Seller; the Buyer shall hold the documents in safekeeping for the Seller.
(7) The Buyer is authorized to collect the assigned claim until revoked.
(8) In the case of cancellation, the Buyer must provide all requested information at the request of the Seller, notify their customers of the subrogation and hand over any relevant customer bills of exchange and cheques to the Seller.
(9) The Buyer must return the reserved goods to the Seller at the Seller's request if they fall into arrears with a payment. Furthermore, the Buyer must inform the Seller immediately telegraphically or in writing of access by third parties to the goods subject to retention of title and/or to the claim assigned to the Seller.
(10) In the event of seizure of the goods subject to retention of title, the bailiff and the seizing creditor must be informed immediately by the Buyer of the Seller's retention of title.
(11) At the request of the Buyer, the Seller shall release a security to the extent and at their discretion that its value exceeds the claims to be secured by more than 25 %.
(1) The Seller shall endeavor to conclude contracts primarily with upstream suppliers who have GFSI-recognized certification. If the upstream suppliers are otherwise suitable, sentence 1 may be deviated from in individual cases, so that the Seller cannot guarantee that the goods originate from GFSI-certified upstream suppliers.
(2) We have the highest requirements for the use of pesticides in general and for pesticide residues in the products supplied to us. The following document applies 5.2-FB-18 Nutwork Requirements for Pesticides.
(1) The Buyer shall immediately inform the Seller of any product defects, complaints from customers, authorities, or such generally from the market as well as risks in the use of the products (hereinafter collectively referred to as "product liability") of which they become aware. Any resulting warranty claims of the Buyer's customers against the Buyer as well as claims of the Seller against the Buyer, in particular in accordance with the following paragraph 2, remain unaffected by this.
(2) Notwithstanding paragraph 1 above, the Buyer shall provide the Seller with reasonable support in the event of a product recall becoming necessary or other related actions such as product warnings, customer information, etc. (hereinafter collectively referred to as "market correction measures") and shall comply with the measures ordered by the Seller insofar as these are reasonable for the Buyer. The Buyer shall only be entitled to reimbursement of costs incurred as a result in accordance with paragraph 4 (cf. in particular lit. c).
(3) If any third-party claims asserted directly against the Seller on the basis of product liability are due to the fact that the Buyer has modified or further processed products delivered by the Seller, their equipment or their packaging and/or has removed or modified existing warnings (hereinafter collectively referred to as "product modifications"), the Buyer shall fully indemnify or reimburse the Seller against such claims, including any legal fees and/or court costs necessarily incurred in the course thereof, unless the Buyer is not responsible for the product modifications giving rise to the claim. In the event of product modifications, the Buyer shall have no claims against the Seller under warranty, reimbursement of recall or product warning-related costs or other damages resulting from the product modification.
(4) The Buyer shall only be entitled to reimbursement of costs, damages, etc. incurred by themselves as a result of product defects, whether voluntary or due to an official order, or market correction measures taken by the Buyer at the instigation of the Seller (see para. 2), subject to the following conditions (cumulative):
a. The Buyer has fully complied with their information obligations in accordance with paragraph 1 and has agreed any cost-incurring measures with the Seller in advance. This shall only not apply if prior information and prior coordination was unreasonable for the Buyer or impossible, for example due to existing circumstances, which the Buyer must prove in a suitable form.
b. Notwithstanding the above, in the event of market correction measures ordered directly by the authorities or to be carried out by the Buyer on their own responsibility in accordance with the law, the Buyer must always choose the mildest suitable means - also with regard to the associated costs. Irrespective of this, the Buyer must always carefully examine the necessity of intended market correction measures in advance. The Buyer shall not be entitled to reimbursement of costs incurred as a result of market correction measures that are not necessary and/or not to be taken by the Buyer, taking into account the official order and/or the relevant legal requirements.
c. With the exception of the cases regulated above under lit. b and in the case of product changes, only the Seller is responsible for initiating and implementing market correction measures and is authorized to do so. If the Seller involves the Buyer in market correction measures in accordance with paragraph 2, the Buyer shall only be entitled to reimbursement of the costs incurred by them in the course of this if the corresponding measures of the Buyer were specifically commissioned by the Seller or agreed with the Seller in advance, whereby the Seller must also inform the Buyer of the expected costs in good time in advance on request. Furthermore, a reimbursement obligation only exists for such costs that the Buyer has proven to the Seller in a suitable form.
If, after formation of this contract, a legal norm becomes effective on the basis of which a levy is imposed, or if the costs for the agreed transport of these goods to the port of destination are changed and the Seller's demonstrable expenses change as a result, the purchase price shall change accordingly by this difference. Any freight surcharges - including those already existing - shall be borne by the Buyer.
(1) Unless otherwise stated in these GTC including the following provisions, the Seller shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) The Seller shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in cases of intent and gross negligence. In the event of minor negligence, the Seller shall be liable, subject to statutory limitations of liability (e.g. care in its own affairs; minor breach of duty), only (1) for damages resulting from injury to life, body or health, (2) for damages resulting from the breach of a material contractual obligation (obligation whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, liability shall be limited to compensation for foreseeable, typically occurring damage.
(3) The above limitations of liability shall also apply to third parties and to breaches of duty by persons (including in their favour) whose fault the Seller is responsible for in accordance with statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the Buyer under the Product Liability Act. (ProdHaftG)
(4) The Buyer may only withdraw from or cancel the contract due to a breach of duty that does not consist of a defect if the Seller is liable for the breach of duty.
The court of jurisdiction for both parties is Hamburg.
Should one of the clauses of these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining clauses of the purchase contract as a whole. The parties shall replace the invalid clause with a clause that comes as close as possible to the economic purpose of the invalid clause in a legally permissible manner. The same applies to any loopholes.
This order confirmation shall be deemed to be approved in all parts if it is not immediately objected to in writing.