Last update: October 2018
§ 1 Scope
1. Deliveries, performances and offers of Ornua Deutschland are subject to these Terms and Conditions exclusively. These Terms and Conditions shall also apply to all future business relationships even if no specific determination is made in this regard. At the time of receipt of the merchandise delivered by Ornua Deutschland at the latest, the Terms and Conditions herein are deemed accepted.
2. Any deviations from these Terms and Conditions are valid only if confirmed in writing by Ornua Deutschland.
3. Buyer's terms and conditions shall be excluded, even if Ornua does not explicitly object to their use. The Terms and Conditions of Ornua Deutschland shall apply in their valid version from time to time at the closing of the respective agreement.
§ 2 Offer and Closing
The offers made by Ornua Deutschland are subject to change and are nonbinding with regards to price, volume, delivery time and delivery options. Any agreements made with Ornua Deutschland and its representatives become binding only after written confirmation by Ornua Deutschland. If goods are delivered without written confirmation, the invoice shall be considered the order confirmation.
§ 3 Prices
All prices are quoted excluding the statutory VAT valid at the time of delivery or performance ex works or warehouse, unless explicitly stipulated otherwise. In the event that the price changes because of circumstances outside of the sphere of responsibility of Ornua Deutschland, Ornua Deutschland shall be entitled to raise the stipulated price accordingly.
§ 4 Payment and Default
1. Unless otherwise agreed, all invoiced amounts are payable immediately and in full.
2. It is preferred that payments be made cashless. Cash payments with discharging effect can be made only to such persons authorised in writing by Ornua Deutschland to accept payments.
3. Bank drafts and cheques shall be accepted on account of payment only. The maximum term of draft for a bank draft shall be 90 days after the date of invoice. Discount and/or note charges, note taxes and similar fees starting 30 days after invoice date shall be borne by Buyer. Ornua Deutschland shall not be liable for the timely production or adduction of a protest for bank drafts or cheques.
4. If justified doubts as to Buyer's ability to pay or credit rating exist, and Buyer is not willing to pay in advance or able to provide suitable security for its obligation upon request, Ornua Deutschland shall be entitled to rescind the contract inasmuch as it has not fulfilled its contractual obligations.
5. VAT must be added to any deposits and advance payments.
6. Payments are considered effective only after the amount is available without conditions in an account of Ornua Deutschland.
7. Buyer's default starts no later than 7 days after an invoiced amount has become due. In the event of payment default, Ornua Deutschland shall be entitled to add default interest in the amount of 9 percentage points above the base lending rate. In addition, Ornua Deutschland will add a default fine in the amount of € 40. This applies also if the receivable amount is a payment on account or other instalment payment. Ornua Deutschland shall offset the default fine against a possible claim for damages, inasmuch as such damages arise from the costs of prosecution. This shall not affect evidence of higher damages for delayed performance.
8. Ornua Deutschland reserves the right to use payments in fulfilment of the oldest payable invoice items plus the accrued default interest and costs in the following order: costs, interest, principal claim.
9. Retention by Buyer shall be excluded. Buyer shall be entitled to offset only against undisputed or legally established claims or claims ready for judiciary decision.
§ 5 Delivery and Passage of Risk
1. Delivery takes place ex works Neukirchen-Vluyn or from an entrepot. If delivery by Ornua Deutschland's vehicle was stipulated, delivery takes place ex vehicle.
2. Unless otherwise agreed, the risk of accidental deterioration and destruction shall transfer to Buyer at time of delivery, as soon as Buyer has taken possession of the goods in the customary manner. In the event that Buyer did not take possession of the goods immediately following delivery, it shall suffice for the transfer of risk that Buyer was given the opportunity to take possession in the customary manner.
§ 6 Delivery Time
1. Ornua Deutschland endeavours to deliver as expediently as possible at all times. There are no fixed delivery times.
2. In the event that – in deviation from this rule - a fixed delivery date was stipulated, Buyer is obligated to allow for a reasonable grace period of two weeks in general in the event of delayed delivery.
3. In the event that deliveries on call have been agreed upon, Buyer shall determine the scope of delivery in a timely manner and allow Ornua Deutschland to deliver monthly amounts of similar volumes. If a delivery has not been called in or divided in a timely manner, Ornua Deutschland – after unsuccessfully setting a deadline - shall be entitled to divide and deliver the goods at its discretion, or to withdraw from any unfulfilled obligations.
4. Ornua Deutschland assumes no liability - even if delivery dates and deadlines were stipulated bindingly - for delivery and performance delays due to force majeure and due to events that significantly impede or make impossible delivery by Ornua Deutschland, including, but not limited to difficulties in procuring materials, operational disruptions, strikes, lockouts, personnel shortages, lack of haulage means, official orders etc., even if such events apply to suppliers of Ornua Deutschland or their respective sub-suppliers. In the aforementioned events, Ornua Deutschland shall be entitled to delay delivery for the duration of the impediment plus a reasonable start-up time. Ornua Deutschland shall also be entitled to withdraw from the contract in whole or in part with regards to the unfulfiled parts of the performance if the delivery impediment is not only of a transitional nature.
5. Ornua Deutschland shall be entitled to effect partial deliveries at any time.
6. If buyer is part of a corporate group or a group of otherwise affiliated companies, the rights of Ornua Deutschland stipulated in the aforementioned provisions shall also apply to the other companies of the respective corporate group or group of affiliated companies.
§ 7 Reservation of Title
1. Any goods shall be transferred into Buyer's property only after it has fulfilled its all of its obligations resulting from the business relationship with Ornua Deutschland, including ancillary claims, claims for damages and cashing of cheques and bank drafts. This reservation of ownership shall be maintained even if individual claims are included in the current invoicing by Ornua Deutschland and the balance has been drawn and acknowledged.
2. Ornua Deutschland shall be entitled to demand that Buyer return any conditional commodity without setting a grace period or withdrawing from the contract, if Buyer has defaulted with regards to its obligations vis-à-vis Ornua Deutschland. Any acceptance of returned conditional commodities shall be construed as a rescission of the contract only if Ornua Deutschland has confirmed this in writing. If Ornua Deutschland rescinds the contract, it shall be entitled to demand reasonable remuneration for the time period the goods were used.
3. In the event that the conditional commodities have been processed, Buyer works on behalf of Ornua Deutschland; however, Buyer does not acquire any claims whatsoever from the processing against ORNUA Deutschland. The reservation of title by Ornua Deutschland also includes the goods created through processing. If the conditional commodity is processed together with other, third-party-owned commodities, or if the conditional commodity is mixed with or connected to third-party-owned commodities, Ornua Deutschland shall acquire partial ownership in the created goods in the ratio of the invoiced value of the conditional commodity to the invoiced value of the third-party-owned commodity. If the conditional commodity is mixed with or connected to one of Buyer's main assets, Buyer shall - at this time - transfer its ownership title in the new asset to Ornua Deutschland.
4. Buyer agrees to keep the conditional commodity safely on behalf of Ornua Deutschland and to insure it against loss and damage in a commercially reasonable amount. At this time, Buyer assigns its claims from the respective insurance policies to Ornua Deutschland.
5. Inasmuch as Buyer properly fulfils its obligations vis-à-vis Ornua Deutschland, it shall be entitled to dispose of the conditional commodities in the due course of its business. However, this shall not apply if and inasmuch a prohibition to assign the purchase price claim exists between Buyer and its customers. Buyer is not entitled to pledge, assign for security purposes or otherwise encumber the conditional commodities. If Buyer resells the conditional commodities to its customers, it agrees to transfer ownership on condition of full payment only.
6. With this, Buyer shall assign in advance to Ornua Deutschland all of its claims resulting from the resale of the conditional commodities, including all ancillary and security interests - and also including bank drafts and cheques - as a security for all claims Ornua Deutschland has against Buyer from their business relationship. In the event that the conditional commodities are sold together with other goods for one total price, the assignment shall be restricted to the portion of the amount invoiced by Ornua Deutschland with regards to the sold conditional commodities. If any goods are sold which are subject to partial ownership title by Ornua Deutschland as contemplated in numeral 3 above, the assignment shall be limited to those portions of the claim corresponding to the partial ownership portion of Ornua Deutschland. If Buyer uses the conditional commodities for the upgrading of third-partyowned goods against payment, it shall - in advance - assign its payment claim vis-à-vis the third party to Ornua Deutschland. Inasmuch as Buyer fulfils its payment obligations in a timely manner, it shall be entitled to collect any payment claims from resale or upgrading. Buyer is not entitled to pledge or assign such claims, however.
7. In the event that Ornua Deutschland has reason to consider the realisations of its claims in danger, Buyer shall - upon request - inform its buyers of the assignment and make available to Ornua Deutschland all required information and documentation. Buyer agrees to inform Ornua Deutschland immediately of any third-party access to the conditional commodities and assigned claims.
8. If the value of the security due to Ornua Deutschland exceeds the value of the claims to be secured between Ornua Deutschland and Buyer by more than 20%, Ornua Deutschland shall - upon Buyer's request - release securities in the corresponding amount. The selection of the securities to be released shall be made by Ornua Deutschland.
§ 8 Damages
1. Buyer's claims for damages - including those of a noncontractual nature - shall be excluded in the case of slight negligence by Ornua Deutschland, its officers and vicarious agents, unless the violation concerns an obligation of vital importance for the realisation of the purpose of agreement.
2. Ornua Deutschland shall be liable for indirect losses and losses unforeseeable at the time of closing only in case of gross negligence by Ornua Deutschland or one of its officers.
3. The above limitations do not apply to losses due to loss of life, or injuries to body and health. This does not affect any compulsory statutory liability provisions, e.g. liability for warranties or liability under the Product Liability Act (Produkthaftungsgesetz).
§ 9 Notice of Defects
1. Buyer shall issue any notices of defect in writing and without undue delay, that is, on the third day at the latest. The time limit shall begin at the time of delivery of the goods. If Buyer does not issue a timely notice of defect, the goods are deemed accepted, unless the defect could not be detected during proper examination. If such a defect is found at a later time, Buyer shall issue notice immediately after discovery, otherwise the goods are deemed accepted despite the particular defect.
2. Buyer shall give Ornua Deutschland reasonable opportunity to investigate whether the claim is justified. Buyer shall be liable vis-à-vis Ornua Deutschland for any and all disadvantages arising from the non-fulfilment of this obligation.
3. By negotiating a defect claim Ornua Deutschland does not waive the objection that the notice of defect was not issued in a timely manner or in due form.
§ 10 Buyer's Right in Case of Defect, Lapse of Time
1. In case of justified notices of defect, Buyer's warranty shall be limited to replacement by Ornua Deutschland. If a replacement is not possible, or if the attempt to deliver a replacement fails, Buyer, at its discretion, may choose reduction (reduction of purchase price) or rescission (withdrawal from contract). This shall not affect any claims for damages under § 8. Buyer shall not be entitled to reimbursement of expenses accrued due to subsequent performance, such as transportation, mileage, work and material costs, inasmuch as such expenses are higher because the subject of performance has been moved to a different location following delivery, unless such relocation is in keeping with its intended use.
2. Claims based on defects become statute-barred one year from the beginning of the statutory period of limitation. This shall not affect any obligatory statutory provisions on prescription of claims and liability, such as the liability for intentional and grossly negligent actions, loss of life or injury to body and health, the violation of essential contractual obligations, liability under the Product Liability Act (Produkthaftungsgesetz) and the provisions on the sale of consumer goods.
§ 11 Data Privacy Protection
Pursuant to Art. 13, 14 of the General Data Protection Regulation (GDPR), we inform you of the handling of your personal data (contact data etc.) which we receive within the framework of our business relationship. The controller is Ornua Deutschland GmbH, firstname.lastname@example.org. The legal basis for the processing of this personal data is specified in Art. 6 para. 1 lit. b) and lit. f) GDPR. The purpose of the processing of data and our legitimate interest is the performance of the business relationship between us. Your data will be kept for the duration of this business relationship (also electronically in our systems) and will subsequently be erased, subject, however, to any applicable statutory retention periods and unless we require the data for asserting, exercising or protecting ourselves against any legal claims. If you consented to any other type of use, we will delete the data as soon as you revoke your consent. Only our employees and service providers have access to the data, provided that they require the data for the fulfilment of their agreed responsibilities. The data may be transmitted to public bodies on the basis of statutory provisions (e.g. investigative authorities). If certain prerequisites pursuant to Art. 15 to Art. 18 GDPR are fulfilled, you have an access right, right for correction or deletion of your personal data or a right for a limitation of our processing of your data. Furthermore, you can object to the further processing of your personal data pursuant to Art. 21 para. 1 GDPR. Pursuant to Art. 77 para. 1 GDPR, you also have the right to file a complaint with a supervisory authority if you are of the opinion that the processing of your personal data violates the GDPR. For further information regarding the processing of your data, please refer to the "data protection" section under www.kerrygold.de.
§ 12 Final Provisions
1. The laws of the Federal Republic of Germany - excluding conflict of laws - shall apply to the Terms and Conditions herein and the entire business relationship between Ornua Deutschland and Buyer. The United Nation Convention on Contracts for the International Sale of Goods shall be excluded, as well.
2. Place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Moers. Place of performance for any payments shall be Neukirchen-Vluyn; place of performance for deliveries shall be the respective shipping point or Neukirchen-Vluyn, if the goods are to be collected in Neukirchen-Vluyn.
3. In the event that individual provisions of these Terms and Conditions are invalid in whole or in part, the validity of the remaining provisions shall not be affected. The Parties agree to replace such invalid provision with another, valid provision which is closest to the economic purpose of the invalid provision