GENERAL TERMS AND CONDITIONS

1. scope of application
1.1 These General Terms and Conditions shall always apply to all mutual claims arising from and in connection with the conclusion of a contract between business customers who are not consumers within the meaning of § 13 BGB (German Civil Code) in the version valid at the time of the respective conclusion of the contract.
1.2 Our General Terms and Conditions shall apply exclusively; we do not recognize conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we carry out the delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
1.3 Our Terms and Conditions of Sale shall also apply to all future transactions with the customer.

2 Subject matter of the contract, conclusion of the contract
2.1 The contract is concluded when Fresh!Packing GmbH accepts the customer’s order. The customer will be informed of the conclusion of the contract either by a confirmation from us or at the latest by the delivery of the ordered goods.
2.2 Our delivery obligations are subject to correct and timely self-delivery, unless we are responsible for the incorrect or delayed self-delivery.
2.3 All descriptions, data and illustrations of the items listed are non-binding. We reserve the right to make changes to the design; deviating conditions are not valid unless we have expressly agreed to this. The information on the properties of the products is based on our own experience and does not represent bindingly promised characteristics. Due to the large number of influencing factors, customers must check the suitability of the products for their own purposes. Fresh!Packing GmbH accepts no liability for any damage that may arise from this.

3. prices
3.1 All prices are net prices and do not include the statutory value added tax. The prices do not include costs for packaging, transportation and other fees. These will be calculated and shown separately where applicable. Prices are subject to change without notice.
3.2 Clichés, tools, other aids and special productions for the customer shall be borne by the customer, unless otherwise agreed in writing. The customer neither acquires ownership of these items nor are we obliged to hand them over to him.

4. terms of payment
4.1 Payment for the goods shall be made on account. The customer undertakes to pay the invoice amount within the payment period stated in the respective invoice.
4.2 Payments for partial deliveries must be made in accordance with the invoice. If the payment deadline is exceeded, the usual commercial default interest will be charged.
4.3 Offsetting against claims other than those that are undisputed, legally established, ready for decision or recognized by us is excluded. The customer shall only be entitled to exercise a right of retention to the extent that his counterclaim arises from the same contractual relationship.
4.4 If the customer has not made payment despite a prior reminder, all claims arising from the business relationship, namely principal and ancillary claims including other claims from a current account balance, shall become due immediately.
4.5 If unfavorable financial circumstances become known to the customer, payments for deliveries already made shall become due immediately. In this case, we may make future deliveries dependent on the prior payment of the purchase price for these deliveries.

5. delivery and shipping
5.1 Unless otherwise agreed, the choice of shipping route and shipping method shall be at our discretion.
5.2 In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the scope of a lump-sum compensation for delay in the amount of 3% of the delivery value, but not more than 15% of the delivery value.
5.3 We are entitled to make partial deliveries and render partial services if these are of interest to the customer in accordance with the purpose of the contract and the customer does not incur any significant additional expense.

6. acceptance and transfer of risk
6.1 The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon their handover, in the case of sale by dispatch upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment. If the customer is in default of acceptance, this shall be deemed equivalent to handover.
6.2 Transport insurance shall be taken out at the customer’s express instruction and for the customer’s account.
6.3 In the case of goods delivered packed on Euro pallets, the Euro pallets shall remain our property unless they have been delivered to us carriage paid by the customer in advance or exchanged immediately upon delivery of the goods. The customer is obliged to return to us the same number of usable pallets in perfect condition with each delivery or to return these Euro pallets to us carriage paid within four weeks of delivery. If this is not done, we shall be entitled to invoice these Euro pallets at the time of invoicing for the purchase of new pallets at valid prices. The customer’s right to return pallets to us expires when the invoice is issued. The claim for the return of pallets shall not expire until four years after delivery of the last order placed with us by the customer.

7. reservation of title
7.1 We reserve title to the delivered goods until all claims arising from the delivery contract have been paid in full. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased goods if the customer acts in breach of contract.
7.2 The customer is obliged to treat and store the goods in accordance with the regulations for foodstuffs as long as ownership has not yet been transferred to him.
7.3 The customer is entitled to resell the goods subject to retention of title in the normal course of business. The customer hereby assigns to us the customer’s claims arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended.
7.4 In order to secure our claims against the customer, the customer shall also assign to us such claims which accrue to him against a third party through the combination of the reserved goods with a property; we hereby accept this assignment.
7.5 In the event of seizure or confiscation, the customer must inform us immediately in writing and inform third parties of our retention of title immediately in a suitable form.

8. warranty
8.1 We reserve the right to deviations in physical and chemical quantities, including colors, dimensions, weights and quantities, which are customary in the trade or technically unavoidable with due care, even compared to reference samples. We are entitled to excess or short deliveries of up to 10% of the agreed quantity.
8.2 In the event of a breach of a contractual obligation, the customer shall be entitled to the statutory rights against us in accordance with the following provisions.
8.3 The customer shall only be entitled to warranty claims if it has complied with its inspection and complaint obligations in accordance with Section 377 of the German Commercial Code (HGB).
8.4 In the event of a justified and timely notification of defects, the customer shall be entitled to subsequent performance during the warranty period; we shall have the right to choose the type of subsequent performance: rectification of the defect or delivery of a defect-free item. If the subsequent performance fails or if further attempts at subsequent performance are unreasonable for the customer, the customer shall be entitled to a reduction in price or to withdraw from the contract.
8.5 If a claim is made against the customer by his customer or a consumer due to a defect in the delivered goods which was already present at the time of the transfer of risk or which was claimed by a consumer as the final purchaser, the customer’s statutory rights of recourse against us pursuant to Sections 478, 479 BGB shall remain unaffected.
8.6) The customer may only assert claims for damages under the conditions set out in clause 10 due to a defect if subsequent performance has failed or we refuse subsequent performance. This shall not affect the customer’s right to assert further claims for damages under the conditions set out in clause 8.

(6) Only the customer is entitled to claims against us due to defects and these are not assignable.
(7) The limitation period for claims for defects is one year from the transfer of risk. This shall not apply insofar as the law prescribes longer periods in accordance with §§ 438 para. 1 no. 2 (buildings and items for buildings), 478, 479 (supplier recourse) and 634 a para. 1 no. 2 BGB (building defects) as well as in cases of injury to life, body or health, in the event of an intentional or grossly negligent breach of duty by us and in the event of fraudulent concealment of a defect.

9. complaints
No liability is accepted for damage that occurs during transportation or at the destination. The customer must notify the transport company of any damage or loss of the goods before taking them over and notify it of the claim for compensation.

10. limitation of liability
10. 1 We shall only be liable for damages incurred if they are based on a breach of a material contractual obligation or on intentional or grossly negligent conduct on our part, on the part of our legal representatives or vicarious agents. If an essential contractual obligation is breached due to slight negligence, our liability shall be limited to the foreseeable damage typical for the contract. An essential contractual obligation is one whose fulfillment is essential for the proper execution of the contract or on whose compliance the customer has relied and was entitled to rely.
10.2 Any further liability for damages is excluded. Liability for culpable injury to life, limb or health in accordance with the statutory provisions remains unaffected. This also applies to mandatory liability under the Product Liability Act.
10.3 Our goods are excluded from export to the USA, US territories and Canada. There is no product liability in these regions.

11. other
11.1 Should individual clauses of these contractual terms and conditions be invalid in whole or in part, this shall not affect the validity of the remaining clauses, unless the omission of individual clauses would place a contracting party at such an unreasonable disadvantage that it can no longer be reasonably expected to adhere to the contract. The contracting parties undertake to replace the ineffective clause with another clause that comes closest to the economic purpose of the ineffective provision and is itself effective. The same applies to loopholes.
11.2 The exclusive place of jurisdiction is the registered office of Fresh!Packing GmbH in the Federal Republic of Germany. German law applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods.