General Terms and Conditions

General Terms and Conditions of Purchase

of FCF Holding GmbH, the companies affiliated with it pursuant to §§ 15 et seq. AktG (German Stock Corporation Act) and Eat Happy GmbH under the laws of Luxemburg

Note: This is a translation of the German version. In cases of uncertainty or conflict, the German version shall prevail.

I. Application

These General Terms and Conditions shall apply to all ongoing and future purchase orders for merchandise and services and their processing. To the extent the term „seller“ is used in these conditions of purchase, this term shall apply also to all service providers. Seller‘s conditions diverging from these Conditions will not be acknowledged unless otherwise stipulated within these Conditions or otherwise agreed in the contract with the Seller. Should we accept the merchandise while not expressly objecting these Conditions, the Seller may in no case assume our consent with his conditions.
Any oral agreements made by our employees shall become binding on us only if and in so far as we confirm them in writing.
Any offer made by Seller will be free of charge and not binding on us.
Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time.

II. Prices

The contract price shall be regarded as a fixed price.
In case of purchases on a “delivered” basis, the price shall include the costs for freight and packaging. In case of “unfree” delivery, we shall bear the lowest possible freight rates only, unless a special kind of delivery has been requested by us.
In case of doubt, the latest version of the Incoterms shall be decisive for the interpretation of trade clauses.

III. Payment

Unless otherwise agreed the following terms of payment shall apply: Payment shall be made either within 14 days with 3 pct. discount or within 30 days without discount. Should the Seller’s conditions for payment be more favourable, they shall prevail.
Payment and discount periods shall begin with the receipt of the invoice but not before the receipt of the merchandise. In case of services, such periods shall begin only after the transaction has been approved by us. If the delivery includes documentation (e.g. mill test certificates) or similar written material, such periods shall begin only after receipt of the same as agreed upon in the contract.
Payment shall be made by bank remittance. Payment is considered to be in time if the bank has been instructed to make the remittance latest by the due date.
We will be liable for interest only if and in so far as we are in arrears for payments, not at their mere maturity date. The interest rate will then be 5 %points above the ECB Basic Interest Rate. We are, in any case, entitled to establish a lower rate than claimed by the Seller.
We shall be entitled to all statutory rights as to the set-off and retention of our claims against the Seller’s.

IV. Delivery Time / Late Delivery

The delivery schedule and deadlines stipulated in our purchase orders shall be binding upon seller. The seller will immediately inform us of any imminent risk of delivery delay. At the same time, seller will make suggestions for appropriate countermeasures to prevent detrimental consequences.
Unless otherwise agreed in writing, any contractual terms and dates of delivery shall be considered met only if and in so far as the merchandise has been handed over to us at such dates.
If and in so far as the Seller defaults in delivery, we shall be entitled to our statutory rights. In particular but without limitation, we shall have the right to claim damages for non-performance if and insofar as the Seller fails to effect delivery within a reasonable grace period set to him. Our right to request delivery shall be excluded only if the Seller has compensated us for our damages.
The Seller may claim relief for his default by reason of lack of any documents to be submitted by us only in such cases where we have, upon the Seller’s written reminder, failed to provide such documents.

V. Retention of Title

The Seller‘s terms covering his retention of title shall be valid subject to the condition that title in the merchandise shall pass to us on the date of payment for such goods. Consequently, the extended forms of the so-called current account retention (“Kontokorrentvorbehalt”) shall not apply.
The Seller may claim return of the merchandise based on the retention clause only if he has previously withdrawn from the contract.

VI. Performance of Deliveries and Passing of Risks

The Seller shall bear the risks of accidental loss and accidental deterioration of the merchandise until it has been handed over to us at its place of delivery. This provision shall also apply in cases of purchases on a delivered basis.
We will not accept partial deliveries unless we have given our prior express consent to them.
Excess deliveries or short deliveries are admissible only in a range of +/5%, unless agreed differently in writing.
Seller will bear packaging expenses, unless agreed differently in writing. If we agree to bear packaging expenses in singular cases, we will be charged the lowest possible price.
The obligation to take back packaging for contractors domiciled in the EU is based upon the German Act on the placing on the market, the take-back and the high-quality recycling of packaging (Verpackungsgesetz) as of July 7, 2017 in its respectively valid version. Wooden packaging must be in compliance with IPPC Standard (ISPM No. 15).

VII. Processing / Toll manufacturing

To the extent we make available to a contractor material for refinement, alteration, filling, bottling etc., such shall hereinafter be termed „toll manufacturing“.
The contractor shall bear the risk of accidental loss, destruction or deterioration of the material made available for toll manufacturing from the time the unprocessed material is delivered to the first carrier until the contractor delivers the finished goods to us or our customer at the defined destination.
The material made available remains our property. Toll manufacturing shall be done for us as manufacturer as defined in § 950 BGB (German civil code) without placing us under any obligation. The contractor is obliged to store the material separately and to mark it as our property. The contractor will immediately inform us of any seizure of our property or any other infringement of our property rights by third parties.
The contractor is obliged to adequately insure the material made available for toll manufacturing against all customary risks, in particular against theft, fire, water, etc. Upon request, the contractor will provide evidence for such insurance.
Immediately after receiving the material made available for further toll manufacturing, the contractor will inspect it for any defects and/or transport damages and will immediately notify us of any defects and/or transport damages. All toll manufacturing work will be ceased immediately. The contractor shall be liable for all damages we incur due to non-compliance with the above stated inspection and notification obligations.
The contractor shall comply with the statutory and technical regulations (in particular hygiene and food law regulations, DIN, VDS, VDE) required for its business operations as well as for the performance of its contractual obligations at its own expense during the entire term of the contract and shall at all times indemnify or hold us harmless from any requirements or any claims arising from the violation of such regulations.
At our request, the contractor shall submit relevant test certificates from an acknowledged and independent expert / accredited foodstuffs institute.
We may set the contractor a reasonable period for the fulfilment of the obligations as per clause 6 above. After the fruitless expiry of this period, we may have the necessary measures carried out at the contractor‘s expense.
The Contractor shall indemnify us on first demand against all claims of third parties, including any claims under the German Product Liability Act (ProdHaftG), which are asserted against us.

VIII. Declarations of Origin

Where the Seller makes a declaration in regard to the preferential or non-preferential origin of the sold merchandise, the following terms shall apply:

The Seller will allow verification through customs authorities and submit all necessary information as well as any required certification.
The Seller shall compensate us for any damages and losses incurred to us, if and in so far as the competent authorities, due to any deficient certification or impossibility to verify, fail to acknowledge the declared origin, unless he proves that he is not responsible for such consequences.

IX. Warranty Provisions and Statute of Limitations

The Seller shall deliver the merchandise free of any material and legal defects. He guarantees in particular that his deliveries and his services comply with the state of the art and with any contractual requirements and standards.
When receiving the goods, we are only obliged to comparing labels and any other IDs with the delivery note, the number of packaging units (largest unit, e. g. pallets, barrels, sacks, cartons etc.) as well as any visible transport damages. We are not obligated to make any further inspections such as but not limited to opening of the packages. Notices of defects shall be considered having been made in due time if the seller receives these by mail, telefax, e-mail or telephone within 10 working days. The term for any notices of defects begins at the time we – or in the case of transfer orders, our customers – become aware of the defect or should have become aware of the defect.
If the merchandise shows a defect, we may exercise our statutory rights. If the Seller tries to repair the merchandise, such remedy is considered to have failed after the first unsuccessful attempt. We shall have the right to withdraw from the contract also in such cases where a breach of contract is not considered to be substantial.
Where the merchandise was already defective at the time the risk passed to us, we may claim from the Seller also those expenditures in connection with such defect which we must pay to our customer.
Any claims arising from defects of the merchandise will be governed by the statutory limitation periods. Such periods will begin with the timely notification of the defect in accordance with the provisions of No. 2 of this clause. The Seller’s warranty for the merchandise will elapse at the latest ten years after its delivery. Such time limit will not apply in those cases where our claims rely on facts which the Seller knew or should have known and which he did not reveal to us.
The Seller hereby assigns to us – on account of performance (“erfüllungshalber”) – the benefit of any claims against his supplier arising from the delivery of deficient merchandise or of such merchandise being not in compliance with the guaranteed / agreed characteristics. He will supply us with any documents necessary to enforce such claims.

X. Compliance / Corporate Social Responsibility

The Seller hereby certifies to commit himself to honesty, integrity, and fair dealing. As a minimum standard of conduct, the Seller assures to comply with all applicable international, national, provincial and local laws, standards and other regulatory requirements.
Additionally, and with respect to the performance of the activities under this Agreement, the Seller represents that he prevents any and all conducts in breach of the principles of the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions, the provisions of the United Nations Convention against Corruption and any provision of any act, rule or regulation of the laws of the country of incorporation of the Seller pertaining to anti-bribery, anti-corruption, anti-money laundering, the export or import of technical data, restrictive trade practices regardless of their technical applicability and undertakes to continue effectively implementing such instructions for the entire duration of the business relationship to us. In particular and in accordance with the abovementioned laws and conventions, the Seller undertakes to abstain (and to cause its directors, employees and/or agents to abstain) from, directly or indirectly, offering, promising, giving, paying or accepting any third party’s or public official’s request for a gift, or authorizing anyone to give or pay, directly or indirectly, any sums, other benefits or advantages or anything of value to or for a public official or any other third party.
It is of utmost importance to us that corporate activities consider social responsibility towards employees and society. This applies both to us and to our suppliers. The Seller undertakes to comply with the principles and rights adopted by the International Labour Organisation (ILO) in the „Declaration on Fundamental Principles and Rights at Work“ (Geneva, 06/98), the guidelines of the UN Global Compact initiative (Davos, 01/99) and the UN Guiding Principles on Business and Human Rights (2011). The following principles are of particular importance:
- Respect for human rights,
- prohibition of child labour and forced labour,
- positive and negative freedom of association,
- no discrimination based on gender, race, ethnic origin, religion or belief, trade union membership or similar, disability, age, sexual identity, nationality, marital status, political affiliation, veteran status, or any other characteristic protected by local law,
- compliance with occupational health and safety requirements,
- protection against individual arbitrary personnel actions,
- ensuring employability through education and training,
- compliance with socially adequate working conditions,
- establishing conditions that allow employees to enjoy a decent standard of living, including remuneration that enables livelihood security, including social and cultural participation,
- achieving equal opportunities and family-friendly conditions,
- protection of indigenous rights.
During the performance of the respective contract with us, the Seller shall effectively use the necessary resources, in particular materials, energy and water, and minimise the environmental impact, in particular with regard to waste, sewage, air and noise pollution. This also applies to the logistics/transport effort.
It is the responsibility of the Seller to ensure that its subcontractors also comply with the provisions of this clause.

XI. Place of Performance, Jurisdiction, Applicable Law

Unless otherwise agreed, our agreed place of delivery shall be our place of business or our warehouse.
In case the Seller has its legal seat in the EU, the place of jurisdiction shall be Cologne. We may, however, sue the Seller at his place of jurisdiction or at the court which is competent for our branch office with which the contract in question has been concluded.
For Seller’s domiciled outside the EU the following arbitration clause shall apply: All disputes arising out of or in connection with the contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of a sole arbitrator. The seat of the arbitration is Cologne, Germany. The language of the arbitration shall be English.
All legal relationships between us and the Seller shall be governed by the laws of the Federal Republic of Germany supplementing these Purchase Conditions, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCITRAL).