Standard Terms and Conditions of Sale
Ornua Deutschland GmbH
Last update: July 2021
Sec. 1 Scope
- These Standard Terms and Conditions of Sale (“Terms of Sale”) apply to all business relationships with customers (“Customers”) of Ornua, without requiring a reference to the Terms of Sale by Ornua in each individual case.
- The Terms of Sale apply on an exclusive basis. Any conflicting, deviating or supplemental terms of business of the Customer shall govern each Contract (defined below) only if and to the extent that Ornua expressly consents to their application in text form. Consent in text form is required without any exception, including in cases where Ornua delivers the goods to or performs services for the Customer without reservation and with knowledge of the terms of business of the Customer.
- The Terms of Sale only apply if the Customer is an entrepreneur, a natural person that is not a consumer, corporate or unincorporated body (Sec. 14 BGB), a legal person under public law or a fund under public law.
- Individual agreements (subsidiary agreements, amendments and/or modifications) with the Customer shall have priority over provisions of the Terms of Sale. All agreements that are concluded with Ornua or its representatives orally only become binding upon confirmation by Ornua in text form.
Sec. 2 Offer and acceptance
- Any offer for the supply of goods and/or services (“Offer”) made by Ornua is non-binding (freibleibend).
- The Customer shall notify Ornua of obvious errors and incomplete information in the Offer before accepting the Offer to allow for correction and/or completion.
- The Customer shall have a period of 14 calendar days from the order date to accept the Offer unless a different period is stated on the Offer (“Acceptance Period”). The Offer and the Customer’s acceptance constitute the “Contract” (which includes these Terms of Sale). The Offer shall be deemed to be accepted by the Customer on the earlier of (a) the Customer issuing acceptance in text form to Ornua without reservation or (b) the Customer’s acceptance of Ornua’s delivery of the goods and/or provision of the services without reservation.
Sec. 3 Prices
- All prices are quoted as net prices, excluding the statutory VAT and apply for deliveries EXW Neukirchen-Vluyn or an agreed depot (Incoterms 2020).
- Ornua shall amend the prices accordingly if unforeseeable significant cost increases or decreases regarding price relevant components occur between contract conclusion and delivery for which Ornua is not responsible and if these price relevant components formed part of the original price calculation. Such significant cost increases or decreases may in particular be based on newly charged fees, additional or changed charges or taxes, changes of legal requirements, changes in material or production costs, in particular energy costs, transportation/freight costs, including customs duties, import and export fees as well as changes as a result of exchange rate fluctuations. Price relevant components will be set out in the respective offer. The product price shall be adjusted in relation to the price change of the price relevant component according to the relevant reference point and the proportion of the price relevant component of the end product. If e.g. milk is named as a price relevant component and if it forms 10% of the end product, then any change in the chosen milk price index or other chosen reference point shall be considered in the purchase price of the end product with 10%, e.g. if the change to the chosen reference point is 5 percentage points and the product consists of 10% milk then the change to the end product price shall be 0.5 percentage points.
Sec. 4 Payment and Default
- Payments shall be made immediately in full in Euros via wire transfer to Ornua’s bank account set out on the invoice.
- Bank drafts and cheques may be accepted on account of payment only. The maximum term 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 the Customer. Timely presentation or provision of a protest for bills of exchange and cheques is the Customer’s obligation.
- If the Customer’s financial situation is deteriorating or is about to deteriorate and if this is jeopardizing the Customer’s fulfilment of its obligations towards Ornua, and the Customer is not willing to pay in advance or able to provide suitable security for its payment obligation upon request, Ornua shall be entitled to terminate the Contract if the Contract is a contract for recurring supply of goods and services or, if no services have been rendered to date, to withdraw from the Contract.
- Down payments and pre-payments are to be made plus VAT.
- The Customer is deemed to be in default of payment (Verzug) if payment has not been received within 30 days after the due date and receipt of invoice. In the event the Customer defaults on payment, Ornua shall be entitled to add default interest in the amount of 9 percentage points above the base lending rate. In addition, Ornua is entitled to a lump sum payment of EUR 40. This shall also apply if the claim for payment is in respect of an advance payment or other payment by instalments. The lump sum payment shall be set off against any potential damages claim, insofar as the damages are attributable to the costs of a debt recovery action. The right to prove a higher damage due to the default (Verzugsschaden) shall not be affected thereof.
- Ornua reserves the right to use payments received to settle the oldest due invoice items plus the default interest and costs accrued thereon in the following order: costs, interest, principal claim.
- Retention and offsetting of claims by the Customer shall be excluded, except that Customer shall be entitled to withhold and offset against undisputed or legally established claims or claims ready for judicial decision.
Sec. 5 Delivery and Passage of Risk
Delivery takes place EXW (Incoterms 2020) Neukirchen-Vluyn or from an agreed depot.
Sec. 6 Delivery Time
- Delivery/performance dates are non-binding and are subject to Ornua’s ability to deliver (Lieferfähigkeitsvorbehalt).
- In the event that call-off deliveries were agreed on, the Customer shall provide Ornua with a rolling forecast for a reasonable time period and call-offs shall be in equal monthly quantities. If a delivery is not called-off or the forecast is not provided in a timely manner, Ornua – after unsuccessfully setting a deadline to remedy the lack of provision of the forecast – shall be entitled to divide and deliver the goods at its discretion, or to withdraw from any unfulfilled obligations.
- Ornua assumes no liability for delays in delivery or performance due to events that significantly impede or make impossible delivery by Ornua, including, but not limited to difficulties in procuring materials, operational disruptions, strikes, lockouts, personnel shortages, lack of haulage means, official orders etc., including where such events apply to Ornua’s suppliers or their respective sub-suppliers, (“Force Majeure Events”) to the extent Ornua is not responsible for these delays (Vertretenmüssen). Ornua shall be entitled to postpone delivery for the duration of any Force Majeure Events plus a reasonable start-up time. Ornua shall also be entitled to withdraw from the Contract in whole or in part with regards to the unfulfilled parts of the performance if the Force Majeure Events is not only of a temporary nature.
- Ornua shall be entitled to effect partial deliveries at any time to a reasonable extent.
Sec. 7 Reservation of Title
- Title to the goods shall not pass to the Customer until Ornua receives payment in full for the goods and all of Ornua’s present and future claims resulting from the Contract and the ongoing business relationship between Ornua and the Customer („Retained Goods“). In case of running accounts, the retention of title serves to secure Ornua’s outstanding balance claim.
- The Customer is not entitled to pledge, to transfer by way of security or to otherwise dispose of the Retained Goods in a way which jeopardizes Ornua’s proprietorship. The Customer shall immediately inform Ornua in writing if and insofar as third parties access the Retained Goods.
- In case of a breach of contract by the Customer, Ornua is entitled to (a) withdraw from the Contract in accordance with the applicable statutory provisions and/or (b) to demand the return of any Retained Goods not sold on in the ordinary course of business, based on its retention of title.
- in the event of processing of the Retained Goods, the Customer shall act on behalf of Ornua without, however, without acquiring any claims against Ornua due to the processing. Ornua’s ownership of the Retained Goods extends to the products resulting from the processing. If the Retained Goods are processed together with goods owned by third parties or if the Retained Goods are mixed or combined with goods owned by third parties, Ornua shall acquire co-ownership of the resulting products in the ratio of the invoice value of the reserved goods to the invoice value of the goods owned by third parties. If the goods are combined or mixed with a product belonging to the Customer, the Customer hereby assigns its ownership rights to the new item to Ornua.
- The Customer must treat the Retained Goods with care for the duration of the retention of title, insure them against loss and damage in a commercially reasonable amount and assign the claims against the insurance company to Ornua. The Customer has to explicitly label the Retained Goods as Ornua’s property.
- If delivery is made to other jurisdictions, in which the preceding provision for the retention of title does not have the same security effect as in Germany, the Customer shall do everything possible to provide Seller with equivalent security rights without undue delay. The Customer shall cooperate concerning all measures necessary and expedient for the effectiveness and enforceability of such security rights, such as registration, publication.
- As long as the Customer duly fulfills its obligations towards Ornua, the Customer shall be entitled to dispose of the Retained Goods in the ordinary course of business, if all outstanding payments for such Retained Goods are made to Ornua immediately and in full. The Customer assigns in advance to Ornua all claims arising from such resales in order to secure all claims against the Customer arising from the business relationship. As long as the Customer meets its payment obligations in due time, the Customer is entitled to collect the receivables from resales directly from its buyers.
- If Ornua considers that the realisation of its claims is threatened, the Customer shall, upon request, inform its buyers of the assignment of claims and provide Ornua with all necessary information and documents. The Customer has to inform Ornua immediately in the event a third party takes possession of the Retained Goods.
Sec. 8 Damages
- Ornua’s liability is limited as set out below:
- Ornua is fully liable for loss or damage due to wilful intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit).
- If Ornua breaches in a slightly negligent manner (leichte Fahrlässigkeit) a contractual obligation that is essential for the purpose of the transaction and where the Customer generally trusts that these obligations are fulfilled (Kardinalpflichten), Ornua is only liable for foreseeable damages that are typical for this kind of transaction. For other damages caused as a result of slight negligence (leichte Fahrlässigkeit), Ornua’s liability is excluded.
- The aforementioned exclusions and limitations do not apply in case of fraud or fraudulent misrepresentations of a defect, for the promise of a guarantee, for claims based on product liability law and in the event of death, personal injury or illness.
Insofar as Ornua’s liability is excluded or limited, this also applies to the personal liability of its employees, representatives and agents.
- Insofar as Ornua’s liability is excluded or limited, this also applies to the personal liability of its employees, representatives and agents.
Sec. 9 Defects
- The Customer’s rights in the event of material or legal defects shall be subject to the applicable statutory provisions, unless agreed otherwise herein below.
- The specific statutory provisions regarding the final delivery of the products to a consumer (recourse against the supplier pursuant to Secs. 478, 479 BGB) shall remain unaffected.
- The Customer’s obligation according to Sec. 377 HGB to inspect and notify Ornua of obvious defects immediately upon delivery and of non-obvious (latent) defects immediately upon discovery remains unaffected.
- If the delivered good is defective, Ornua has the right to choose whether to effect subsequent performance by repairing or replacing the defective good (substitution).
- Ornua’s right to refuse such substitution pursuant to the applicable statutory provisions shall remain unaffected.
- Ornua is entitled to make the substitution subject to payment of the due purchase price by the Customer. The Customer is, however, entitled to retain part of the purchase price in an amount reasonably proportionate to the defect.
- The Customer shall grant Ornua the time and opportunity required for the substitution, in particular, the Customer will provide Ornua with the goods subject to complaint for inspection. In case of a replacement, the Customer shall return the defective item to Ornua pursuant to the applicable statutory provisions.
- Any expenses for the inspection and substitution, in particular costs of transport, travel, work and materials shall be borne by Ornua if a defect actually exists, except if the expenses are increased because the product was brought to another place than the seat of the Customer after the delivery unless this is according to its regular use. However, should a demand by the Customer to remedy a defect prove unwarranted, Ornua is entitled to claim compensation for the expenses incurred.
- If substitution has failed or if the period to be set by the Customer for the substitution has expired or was not required pursuant to the applicable statutory provisions, the Customer may withdraw from the Order or reduce the purchase price. However, there shall be no right to withdraw in case of an insignificant defect.
- Any claims for damages by Customer shall fall under the limitations of liability set out in the previous paragraphs of this Sec.10.
- The warranty period is 1 year from the transfer of risk in the goods unless the product is perishable and has a shorter shelf life. In this event, the warranty period applies only for this period of time.
- An issue is not considered a defect
a) if the Customer failed to follow Ornua’s oral or written instructions as to the storage, handling or use of the Goods or (if there are none) good trade practice;
b) if the issue arises as a result of Ornua following any drawing, design or specification supplied by the Customer;
c) if the defect arises as a result of Ornua using any ingredients, packaging or other raw materials supplied by the Customer or sourced from a third party specified by the Customer for use by Ornua in the manufacture or processing of the Goods;
d) if the Customer alters or repairs such Goods without the written consent of Ornua causing the issue; or
e) if the issue arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions by the Customer or third parties;
f) if the packaging of the goods and the information on the packaging of the Goods (for example the integration of technical data such as nutritional information for consumers and the identification of ingredients) do not comply with applicable laws in the respective country of sale, if the goods are packaged under the Customer’s own label and in accordance with the instructions of the Customer;
g) if it is unlawful that the goods are supplied or offered for sale outside the country of delivery, unless supply for a particular country is expressly stated in the goods’ specifications; or
h) if the goods are not suitable for mixing, blending, compounding with or incorporating into other goods or products other than what usually can be expected from the goods, unless expressly stated in the goods’ specifications.
Sec. 10 Confidentiality
- The Customer shall keep the terms of the Contract as well as all information and content of documents regarding Ornua’s trade, products and business secrets (“Confidential Information”) confidential during the term of, and for a period of 5 years after, termination of the business relationship.
- Only with Ornua’s express written approval may the Customer disclose Confidential Information to third parties, except for (a) its employees and professional advisors who need to know the Confidential Information for the purpose of the Contract and who are subject to statutory professional confidentiality and (b) public authorities within the scope of statutory disclosure obligations.
- The confidentiality obligations as set out in Sec. 11, subsections 1 and 2 do not apply to information that is or becomes generally known or available to the public through no fault of the Customer, or that the Customer can demonstrate was in its possession before receipt from Ornua, was lawfully obtained from a third party who has the right to make such disclosure or was independently developed without reference to any of Ornua’s Confidential Information.
Sec. 11 Data Privacy Protection
Pursuant to Art. 13, and/or Art. 14 of the General Data Protection Regulation (GDPR), Ornua informs the Customer that it is handling the Customer’s personal data (contact data etc.) which Ornua receives within the framework of the business relationship. The controller is Ornua Deutschland GmbH, email@example.com. The legal basis for the processing of this personal data is specified in Art. 6(1) para. 1 lit. b) and lit. f) GDPR. The purpose of the data processing and Ornua’s legitimate interest is the performance of the business relationship between Ornua and the Customer. The Customer’s data will be kept for the duration of this business relationship (including electronically in Ornua’s systems) and will subsequently be erased, subject, however, to any applicable statutory retention periods and unless Ornua requires the data for asserting, exercising or protecting Ornua against any legal claims. If the Customer consented to any other type of use, Ornua will delete the data as soon as the Customer revokes its consent. Only Ornua’s 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 applicable statutory provisions (e.g. investigative authorities). If certain prerequisites pursuant to Art. 15 to Art. 18 GDPR are fulfilled, the Customer has an access right, a right for correction or deletion of the Customer’s personal data and a right for limitation of Ornua’s processing of the Customer’s data. Furthermore, the Customer can object to the further processing of the Customer’s personal data pursuant to Art. 21 para. (1) GDPR. Pursuant to Art. 77 para. (1) GDPR, the Customer also has the right to file a complaint with a supervisory authority if the Customer are of the opinion that the processing of the Customer’s personal data infringes the GDPR. For further information regarding the processing of the Customer’s data, please refer to the „data protection“ section under www.kerrygold.de.
Sec. 12 Intellectual property rights
- All intellectual property rights in or arising out of or in connection with the goods and services (other than intellectual property rights in any materials supplied by the Customer) shall be owned by Ornua to the extent that Ornua’s employees or subcontractors created these intellectual property rights to the goods and services.
- To the extent that the goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer warrants that use of such specification will not infringe any third party’s intellectual property rights.
- To the extent that the goods are to be manufactured using materials supplied by the Customer, the Customer warrants that use of such materials will not infringe any third party’s intellectual property rights.
- Where the goods are supplied in any packaging or containers designed by the Customer or which are marked in accordance with the Customer’s instructions or requests, the Customer warrants that such packaging, containers and markings will not infringe any third party’s intellectual property rights.
- The Customer grants Ornua a non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Ornua for the term of the Contract for the purpose of providing the Goods and/or Services to the Customer.
Sec. 13 Final Provisions
- The laws of the Federal Republic of Germany shall apply to these Terms of Sale, the Contract and the entire business relationship (contractual and non-contractual) between Ornua and the Customer. The United Nation Convention on Contracts for the International Sale of Goods shall not apply.
- The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Moers, Germany. The place of performance for any payments shall be Neukirchen-Vluyn.
- In case of conflict between the German language version and the English language version of these Terms of Sale, the German language version shall take precedence and be the binding version.