I. General provisions

1. These General Terms and Conditions of Sale (GTC) apply to all business relationships between Heinrichsthaler Milchwerke GmbH (hereinafter referred to as “HMW”) and its customers (hereinafter referred to as “Buyer”) if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

2. The GTC apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “goods”), regardless of whether HMW manufactures the goods itself or purchases them from suppliers (§§ 433, 651 BGB). Once these GTC have become valid between the Buyer and HMW, they shall also apply to future business relationships with the same Buyer without HMW having to refer to them again in each individual case.

3. These General Terms and Conditions apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that HMW has expressly agreed to their validity in writing. This requirement of consent applies in all cases, for example, even if HMW carries out the delivery to the buyer without reservation in the knowledge of the buyer’s general terms and conditions.

4. Individual agreements made with the buyer take precedence over these General Terms and Conditions. A written contract or written confirmation from HMW is required as proof of such agreements.

5. In addition, the statutory provisions of the Federal Republic of Germany shall apply, excluding those rules of German law according to which the law of another country would be applicable, as well as all international and supranational (treaty) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. This shall also apply in cases where the customer is based abroad or the goods are exported abroad.

II. Conclusion of contract

1. All offers made by HMW are subject to change and non-binding. Price and service information as well as other declarations or assurances are only binding for HMW if they have been submitted or confirmed by HMW in writing. This also applies to agreements made by sales representatives or commercial agents.

2. The purchase order for the goods by the buyer is considered a binding offer to enter into a contract. The offer can be accepted by written confirmation or by execution. The buyer has no claim to acceptance of the offer by HMW. This also applies if a large number of purchase contracts have been concluded between the parties over a longer period of time and the buyer, as a reseller, is obliged to perform vis-à-vis its customers. If an order received by HMW is not confirmed in writing within two weeks of receipt or executed by delivery of the goods, the buyer is entitled to withdraw the order without, however, being able to assert any claims for damages against HMW.

3. We reserve the right to make changes to the order that are insignificant in terms of the usability of the goods. If an order is not executed in full, the contract shall only come into effect with regard to the goods delivered. This delivery does not constitute a contract between HMW and the customer for the goods ordered but not delivered. Partial deliveries are permissible.

4. If insolvency proceedings are initiated against the buyer’s assets, HMW may withdraw from the contract until the proceedings are opened. Such withdrawal is possible either in whole or only for the part of the contract that has not yet been fulfilled.

III. Prices

1. Delivery is free of charge based on HMW’s price list valid on the day of delivery.

2. Unless otherwise stated, prices are in euros and do not include value added tax. Value added tax is to be invoiced separately at the applicable rate in accordance with the applicable tax regulations.

3. Unless otherwise stated, prices include packaging. Based on an express written agreement, this shall be provided by the buyer or invoiced separately by HMW.

4. In the case of free delivery (sale by mail order), the seller shall bear the transport costs. These do not include the costs of any transport insurance requested by the buyer. If the buyer wishes to take out transport insurance, he shall bear the costs himself.

5. Any customs duties, fees, taxes, and other public charges shall be borne by the buyer. HMW does not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it becomes the property of the buyer, with the exception of pallets.

6. HMW reserves the right to change prices appropriately if, after conclusion of the contract, cost reductions or cost increases occur, in particular due to wage agreements or changes in material prices.

IV. Delivery period and delay in delivery

1. Delivery periods are only binding if they have been expressly confirmed as binding by HMW. Confirmation must be in writing.

2. Delivery periods begin on the day on which HMW’s confirmation is issued in writing. The delivery period is deemed to have been met if the goods, work or stock have left the premises within the period. If dispatch or collection is delayed for reasons for which HMW is not responsible, the period shall be deemed to have been met if notification of readiness for dispatch is given within the agreed period.

If HMW is unable to meet binding delivery periods for reasons for which it is not responsible (e.g., mobilization, war, riots, strikes, lockouts, unavailability of services), HMW shall inform the buyer of this immediately and at the same time determine a new delivery period that is reasonable under the circumstances. If the service is also not available within the new delivery period, HMW shall be entitled to withdraw from the contract in whole or in part; any consideration already paid by the buyer shall be refunded immediately. HMW’s statutory rights of withdrawal remain unaffected. In particular, failure to deliver to HMW on time shall be deemed a case of unavailability of the service in this sense if HMW has concluded a congruent covering transaction.

3. The occurrence of a delay in delivery on the part of HMW shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required. In the event of a delay in delivery on the part of HMW, the buyer is entitled to demand lump-sum compensation for the damage caused by the delay. The lump sum compensation amounts to 0.5% of the net price (delivery value) for each full calendar day of delay, but no more than 5% of the delivery value of the goods delivered late. HMW reserves the right to prove that the buyer has not incurred any damage or only significantly less damage than the above lump sum. Any other claims for compensation by the buyer are excluded in all cases of delayed delivery, even after expiry of a grace period set for HMW. This does not apply in cases of mandatory liability due to intent, gross negligence, or breach of essential contractual obligations. The same applies insofar as mandatory liability exists for foreseeable damages typical for this type of contract due to the absence of warranted characteristics.

4. If the buyer causes a delay in the collection, shipment, or delivery of the goods, HMW is entitled to charge the buyer for the additional costs incurred as a result.

V. Delivery, transfer of risk, default of acceptance

1. Delivery is free of charge from the warehouse. The place of performance is the warehouse in Radeberg (sale by delivery). Unless otherwise agreed, HMW is entitled to determine the type of shipment (in particular the transport company, shipping route, packaging) itself. The buyer is responsible for unloading the delivery vehicles at the destination.

2. The risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the buyer when the goods have left the HMW factory or warehouse by being handed over to the buyer or the transport company, regardless of whether this is done using HMW’s own or third-party means of transport and regardless of who bears the costs of shipment. This also applies if the buyer collects the goods themselves or has them collected. The handover is deemed to have taken place if the buyer is in default of acceptance.

3. If the buyer defaults on acceptance, fails to cooperate, or delays delivery for other reasons for which the buyer is responsible, HMW shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this, HMW shall charge a flat-rate compensation of 0.7% of the net price (delivery value) per calendar week or part thereof for each full calendar day of default in acceptance, but not exceeding a total of 5% of the delivery value, beginning with the delivery period or, in the absence of a delivery period, with the notification that the goods are ready for shipment. Proof of higher damages and the statutory claims of HMW (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the flat rate shall be offset against further monetary claims. The buyer is entitled to prove that HMW has incurred no damage at all or only significantly less damage than the above flat rate.

4. If the buyer fails to perform an act of cooperation incumbent upon him within the scope of the contract, even after HMW has notified him of this and requested him to perform it, within a period of 3 days after receipt of the notification, HMW shall be entitled to withdraw from the contract. In this case, the buyer shall not be entitled to claim damages. This shall not apply in cases of mandatory liability due to intent, gross negligence, or breach of essential contractual obligations. The same shall apply in cases of mandatory liability for foreseeable damages typical for this type of contract due to the absence of warranted characteristics.

VI. Terms of payment

1. All payments must be made to HMW’s paying agent within 14 working days of invoicing and delivery of the goods at the latest – in case of doubt, from the invoice date – without any deductions. The place of performance for payment is Radeberg. Payment deadlines shall be deemed to have been met if HMW has access to the amount within the deadline. Payments may be offset against other outstanding claims at HMW’s discretion. Discount and collection charges as well as interest shall be reimbursed to HMW without delay.

2. If the buyer is in default of payment of the purchase price, interest shall be charged on the purchase price at the applicable statutory default interest rate, but at least 9% per annum. HMW reserves the right to assert further claims for damages caused by default.

3. The buyer shall only be entitled to set-off or retention rights insofar as the respective counterclaim has been legally established or recognized by HMW. In the event of defects in the delivery, Section VIII. No. 6 shall remain unaffected. HMW shall be entitled to avert the exercise of the right of retention by providing security, including by way of a guarantee.

4. If a buyer has been granted payment by installments or the purchase price has been deferred in whole or in part, or if a current account relationship or similar relationship exists, the following shall apply: If the buyer suspends payment or is in default with an installment in whole or in part, is over-indebted, or if the opening of composition or insolvency proceedings is applied for, or if the buyer is in default with the redemption of due bills of exchange or checks, the total claim of HMW shall become due immediately. The same shall apply in the event of any other significant deterioration in the buyer’s financial circumstances. In such cases, HMW shall be entitled to demand sufficient security or to withdraw from the contract.

VII. Retention of title

1. The goods remain the property of HMW until all claims against the buyer have been fulfilled (reserved goods), even if the individual goods have been paid for.

2. Pledging or transfer by way of security of the reserved goods is not permitted. The buyer must immediately notify HMW in writing if third parties have access to the goods belonging to HMW.

3. If the buyer acts in breach of contract, in particular by failing to pay the purchase price due, HMW is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for surrender does not simultaneously constitute a declaration of withdrawal; rather, HMW is entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the buyer fails to pay the purchase price due, HMW may only assert these rights if HMW has previously set the buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.

4. The buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

4.1 In the event of resale of the goods subject to retention of title, the buyer hereby assigns to HMW, by way of security and without the need for any further declarations, all future claims against its customers arising from the resale until all claims of HMW have been settled. the assignment also extends to balance claims arising within the framework of existing current account relationships or upon termination of such relationships between the buyer and its customers. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the buyer shall assign to HMW, with priority over the remaining claim, that part of the total price claim which corresponds to the value of the goods subject to retention of title invoiced by HMW. Until revoked, the buyer is authorized to collect the assigned claim from the resale; however, he is not entitled to dispose of it in any other way, for example by assignment. At HMW’s request, the buyer shall notify the customer of the assignment and provide HMW with the documents necessary to assert its rights against the customer, for example invoices, and provide the necessary information. All costs of collection and any interventions shall be borne by the buyer. If the buyer receives bills of exchange on the basis of the authorization granted to him to collect the assigned claims from the resale, ownership of these documents shall be transferred to HMW as security. The transfer of the bills of exchange shall be replaced by the agreement that the buyer shall take them into custody for HMW and then deliver them to HMW immediately and endorsed. In the event that the equivalent value of the claims assigned to HMW is received by the buyer or a financial institution of the buyer in the form of checks, the buyer shall be obliged to report the receipts immediately and to transfer the funds. Ownership of the checks shall pass to HMW with the certified right as soon as the buyer receives them. The transfer of the documents shall be replaced by the agreement that the buyer shall take them into custody for HMW and then deliver them to HMW immediately and endorsed.

4.2 If the buyer processes the goods subject to retention of title, transforms them, or combines them with other items, the processing, transformation, or combination shall be carried out on behalf of HMW. HMW shall become the direct owner of the items produced by the processing, transformation, or combination. If this is not possible for legal reasons, HMW and the buyer agree that HMW shall become the owner of the new item at any time during the processing, transformation, or combination. The buyer shall store the new item for HMW with the care of a prudent businessman. The item created by processing, transformation, or combination shall be considered goods subject to retention of title. In the event of processing, transformation, or combination with other items not belonging to HMW, HMW shall be entitled to co-ownership of the new item in proportion to the ratio of the value of the processed, transformed, or combined goods subject to retention of title to the value of the new item. In the event of the sale of the new item, the buyer hereby assigns to HMW its claim from the sale against its customer with all ancillary rights as security, without the need for any further special declarations. However, the assignment shall only apply to the amount corresponding to the value of the processed, transformed, or combined goods subject to retention of title invoiced by HMW. The portion of the claim assigned to HMW shall take precedence over the remaining claim.

4.3 If the buyer defaults in whole or in part on its payment obligations or the redemption of due bills of exchange or checks, is over-indebted or has suspended payments, or if a composition or insolvency petition has been filed, HMW shall be entitled to immediately take possession of all goods still subject to retention of title; it may also immediately assert its other rights arising from the retention of title; the same applies in the event of any other significant deterioration in the buyer’s financial circumstances. The buyer shall grant HMW or its agents access to all business premises during business hours. The demand for surrender or repossession does not constitute a withdrawal from the contract. HMW is entitled to sell the goods subject to retention of title with the diligence of a prudent businessman and to satisfy its outstanding claims from the proceeds.

5. If the value of the securities exceeds HMW’s claims against the buyer arising from the current business relationship by more than 30% in total, HMW shall be obliged, at the buyer’s request, to release securities to which it is entitled at its discretion.

6. However, the prerequisites and effects of the retention of title pursuant to Section VI are subject to the law at the respective place of storage of the item, insofar as the choice of law in favor of German law is inadmissible or ineffective.

VIII. Buyer’s claims for defects

1. Claims for defects for all HMW products shall become time-barred after one year, unless otherwise specified in Section XIII of these General Terms and Conditions.

2. An agreement on the quality of the goods does not constitute a guarantee. HMW shall only provide special guarantees on the basis of a separate written agreement that regulates the content and scope of the guarantee independently of these General Terms and Conditions, the buyer’s General Terms and Conditions, and the buyer’s statutory rights. Information on the packaging (e.g., the embossed best-before date) does not constitute a guarantee.

3. Unless the quality has been agreed upon, the goods are free of material defects if they are suitable for the use specified in the contract. In addition to the statutory provisions, the goods are also free of material defects if they have the characteristics that the buyer can expect according to the product description provided by HMW; it is sufficient if the product description was provided to the buyer after conclusion of the contract (in particular together with the goods). The best-before date printed on the packaging is considered a product description in this sense. However, we accept no liability for public statements made by other manufacturers or other third parties (e.g., advertising claims).

4. The buyer’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, HMW must be notified immediately. The notification shall be deemed immediate if it is made within one week; the notification must be received by HMW within this period in order to be considered timely. The notification must be made in writing. Irrespective of the above obligations to inspect and give notice of defects, the buyer must notify HMW in writing of obvious defects (including incorrect and short deliveries) within one week of delivery and other defects within one week of becoming aware of them; The timely receipt of the notification of defects by HMW is sufficient to meet the deadline. The notification must be made in writing. The notification of defects also requires the buyer to provide the rejected goods or samples thereof in sufficient quantity for quality control. If the buyer fails to give the above-mentioned notifications of defects, liability for the unreported defect is excluded.

5. If the delivered goods are defective, HMW may initially choose whether to provide subsequent performance by remedying the defect (repair) or by delivering defect-free goods (replacement delivery). The right to refuse the chosen type of subsequent performance under the statutory conditions remains unaffected.

6. HMW is entitled to make the subsequent performance owed contingent upon the buyer paying the purchase price due. However, the buyer is entitled to retain a portion of the purchase price that is reasonable in relation to the defect.

7. The buyer must give HMW the time and opportunity necessary for the subsequent performance owed, in particular to provide the rejected goods or samples thereof in sufficient quantity for quality control. The expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, shall be borne by HMW. In the event of a replacement delivery, the buyer shall return the defective item to HMW in accordance with the statutory provisions.

8. If the subsequent performance has failed or if a deadline set by the buyer for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect. Upon declaration of withdrawal or reduction, the buyer’s claim to delivery of defect-free goods shall lapse.

9. Further claims by the buyer, in particular for consequential damage caused by defects, are generally excluded. This does not apply in cases of intent, gross negligence, or breach of essential contractual obligations by HMW, or in cases of injury to life, limb, or health. The buyer’s right to withdraw from the contract remains unaffected.

IX. Liability in the event of resale to consumers

1. If the buyer has resold the newly manufactured goods delivered to him by HMW to a consumer, the provisions in the following paragraphs shall apply to the buyer’s claims for defects in addition to the provisions in Section VIII.

2. The legal presumption that the defect already existed at the time of transfer of risk to the buyer (Sections 478 (3), 476 BGB) shall not apply, except in cases regulated by law, even if there is a period of more than six weeks between the transfer of risk to the buyer and the transfer of risk to the buyer’s customer. Furthermore, the presumption shall not apply if the defect is only discovered after the expiry of the minimum shelf life specified by us.

3. In cases of direct resale of the goods to a consumer, the buyer may demand from HMW the type of subsequent performance that the buyer owes to the consumer in the individual case, taking into account the buyer’s statutory and contractual rights of refusal; HMW has no right of choice in such cases. The buyer is entitled to assign this claim for subsequent performance to the consumer, but only for the purpose of performance and/or security, i.e., without prejudice to its own liability towards the consumer. An assignment in lieu of performance is invalid. HMW’s right to refuse this subsequent performance under the statutory conditions remains unaffected.

4. If HMW has agreed with the buyer on equivalent compensation within the meaning of Section 478 (4) of the German Civil Code (BGB), the claim for reimbursement of expenses incurred in relation to its customer (Section 478 (2) BGB) is excluded.

X. Property rights

1. HMW assumes liability towards buyers based in the Federal Republic of Germany that the goods are free from third-party property rights.

2. This assumption of liability is subject to the condition that the buyer immediately informs HMW of any claims arising from property rights asserted against him by third parties and that he acts in agreement with HMW in dealing with these claims and pursuing his rights. If one of these conditions is not met, HMW shall be released from its obligation. If there is an infringement of third-party property rights for which HMW is liable under the terms and conditions, and if the buyer is therefore legally prohibited from using the goods in whole or in part, HMW shall, at its own expense, either

a) procure the right for the buyer to use the goods, or

b) design the goods in such a way that they are no longer protected, or

c) replace the goods with another item with equivalent performance characteristics that does not infringe any property rights, or

d) take back the goods and refund the purchase price.

3. If the buyer makes changes to the goods or combines the goods with other items, in particular foodstuffs, and this results in the infringement of third-party property rights, HMW shall not be liable.

4. The buyer shall not be entitled to any further or other claims due to the infringement of third-party property rights. In particular, HMW shall not compensate for any consequential damages, such as loss of production and use, or loss of profit. These limitations of liability shall not apply in cases of mandatory liability due to intent, gross negligence, or breach of essential contractual obligations. The same applies insofar as mandatory liability exists for contractually typical foreseeable damages due to the absence of warranted characteristics. The buyer’s right to withdraw from the contract remains unaffected.

5. The buyer does not acquire any claims to the use of the property rights available to HMW that may arise from the use or interaction of the goods with other objects.

XI. General provisions regarding liability

1. Unless otherwise specified in these General Terms and Conditions, HMW and its vicarious agents shall be liable for any breach of contractual and non-contractual obligations, positive breach of contract, breach of duties during contract negotiations, and tort as follows:

a) Liability for personal injury shall be governed by the statutory provisions.

b) Liability for property damage shall be limited to €2.5 million per claim.

c) Liability for financial loss shall be excluded.

The limitation of liability under b) and the exclusion of liability under c) shall not apply in cases of mandatory liability for damage to privately used items under the Product Liability Act or in cases of intent or gross negligence or in the event of a breach of essential contractual obligations. The same applies insofar as mandatory liability applies for foreseeable damage typical for the contract due to the absence of warranted characteristics.

2. HMW shall only be liable for damages—regardless of the legal basis—in cases of intent and gross negligence. In addition, HMW shall also be liable in cases of simple negligence, for damages resulting from injury to life, limb, or health, and for damages resulting from the breach of a material contractual obligation; material contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on which the contractual partner regularly relies and may rely. In this case, however, liability is limited to compensation for the foreseeable, typically occurring damage. The above limitations of liability do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims by the buyer under the Product Liability Act.

3. The buyer may only withdraw from the contract due to a breach of duty that does not constitute a defect if HMW is responsible for this breach of duty. Withdrawal must be declared in writing.

4. The buyer may only demand a contractual penalty if this has been expressly agreed in writing, unless otherwise stipulated in these General Terms and Conditions.

XII. Trademark protection and copyrights

1. If the buyer adopts the design and features of a private label in connection with its name for the marketing of the goods it has ordered, it shall also be entitled to all design and property rights for this private label.

2. HMW undertakes to use the features and name of the own brand exclusively for the products of the buyer described in paragraph 1 and not to manufacture, sell, or deliver any products under this own brand to third parties.

3. If HMW violates the obligation under paragraph 2, it shall only be obliged to make payments to the buyer on the basis of such a violation if the violation continues even after receipt of a letter from the buyer pointing out the violation and containing a request to refrain from this behavior.

4. HMW’s right to use the goods it has manufactured or purchased under its own brand (Heinrichsthaler and Elbländer) or under the brand of a third party, in particular to sell and deliver them to third parties, remains unaffected in any case. This also applies if identical or similar goods have been or are being manufactured, sold, or delivered under a buyer’s own brand.

5. If the buyer, as a reseller, purchases goods from HMW under the “Heinrichsthaler” and “Elbländer” brands and sells them to third parties, they do not acquire any rights to the ‘Heinrichsthaler’ and “Elbländer” brands. This shall also apply if a large number of purchase contracts have been concluded between the parties over a longer period of time and the buyer, as a reseller, is obliged to perform vis-à-vis its customers and the buyer has been involved in the design and specification of the product.

XIII. Limitation period

1. The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise specified in these General Terms and Conditions.

2. Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. However, claims arising from defects of title shall not become time-barred as long as the third party can still assert its rights against the buyer in the absence of a limitation period. In all cases, the statutory provisions in the event of fraudulent intent (Section 438 (3)) shall remain unaffected.

3. The above limitation periods shall also apply in the event of resale to consumers in accordance with Section IX; However, the statutory limitation period for claims for reimbursement of expenses (Sections 478 (2), 479 (1), (3) BGB) and the statutory suspension of the limitation period (Section 479 (2), (3) BGB) remain unaffected.

4. Insofar as HMW owes the buyer contractual damages pursuant to Section IX due to or as a result of a defect, the unabridged statutory limitation periods of the law of sale (§ 438 BGB) shall apply. These limitation periods shall also apply to competing, non-contractual claims for damages, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) leads to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected.

XIV. Binding nature of the contract

Should individual provisions of these terms and conditions be invalid or void, this shall not affect the validity of the remaining provisions or the contract itself. The invalid or void provision shall be replaced by a provision that complies with the statutory provisions.

XV. Place of jurisdiction

If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive—including international—place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Radeberg. However, HMW shall also be entitled to bring an action at the buyer’s general place of jurisdiction.

As of January 2016