Conditions générales

General purchasing and sales conditions of the Juchem GroupVersion: January 2023

§ 1 Validity of the terms and conditions of business

1. The following General Terms and Conditions apply to all transactions of the Juchem Group companies listed below:

– Juchem GmbH
– Megro GmbH & Co. KG
– Juchem Food Ingredients GmbH
– Berg Back GmbH

with their contractual partners acting as entrepreneurs (hereinafter also referred to as “Customers”) regarding the deliveries or services offered by them. They also apply for any future deliveries, services or offerings to the customer, even if they have not been separately agreed upon beforehand.

2. An entrepreneur within the meaning of these General Terms and Conditions is a natural or legal person or a partnership with legal capacity that acts in exercise of their commercial or independent professional activity when undertaking a legal transaction. A consumer within the meaning of these General Terms and Conditions is any natural person who concludes a legal transaction that cannot be predominantly attributed either to their commercial nor their independent professional activity.

3. All of our deliveries, services and offerings are made exclusively based on the following terms and conditions of business. Other terms and conditions are not a component of the contract, even if we do not expressly contradict them. Deviations from the above terms and conditions of business only become effective if we expressly confirm them in writing.

4. If we carry out the delivery or service without express objection, it can under no circumstances be inferred from this that we have accepted any purchasing conditions of the buyer. Accepting our delivery or service constitutes acceptance of our General Terms and Conditions.

5. For all sales and deliveries within the scope of the standard conditions of the German grain trade, in addition to our general terms and conditions, the latest version of the standard conditions of the German grain trade apply; if the standard conditions of the German grain trade contradict our General Terms and Conditions, our General Terms and Conditions will take precedence.

§ 2 Conclusion of contract, prices

1. Contracts are created via proposal and acceptance. Our proposals are non-binding and they initially do not include a proposal to conclude the contract but rather a request to the buyer to issue their own proposal. Proposals, declarations of acceptance and orders sent by the buyer are subsequently made only at the time of contract conclusion if we have accepted it. This generally occurs by sending an order confirmation. The order confirmation is sent within two weeks and can particularly be sent by e-mail too or be replaced by a delivery of the goods as per the order.

2. We reserve ownership and copyrights to illustrations, drawings, calculations and other documentation. This also applies to written documents referred to as “confidential”. Prior to disclosure to third parties, the customer requires our express written consent.

3. Prices are generally based on the price list that is applicable at the time of the order confirmation. Value-added tax is calculated at the statutory amount. Unless otherwise agreed upon, our prices exclude packaging and freight expenses and any other ancillary costs and transport insurance to be added at the request of the buyer.

4. We reserve the right to also deliver products with common industry improvements and/or deviations that are reasonable to the buyer.

5. If the stipulated prices are based on our list prices (see § 2.3. regarding “price list”) and the delivery is intended to take place more than four months after contract conclusion, then the list prices applicable at delivery shall apply by derogation.

§ 3 Payment conditions

1. Our invoices are payable immediately and without deduction, unless otherwise stipulated. Unauthorised discount deductions are not recognised.

2. If the payments made by the buyer are insufficient to amortise the entire debt, then the oldest debt shall be amortised – even if the buyer specifies otherwise. If interest and/or expenses are incurred, then a payment that is insufficient to amortise the entire debt shall – in derogation of Paragraph 1 – first be applied to the oldest expenses, then to the oldest interest rates, and finally to the main payment as per the stipulations of Paragraph 1.

3. Payments owed to us become due upon invoicing. The customer shall fall into arrears if they receive a reminder from us after issuance of the invoice (and, where applicable, upon expiry of the payment term specified to them) or if more than 30 days have transpired since the invoice was issued. Interest must be paid on owed payments at the time that they fall into arrears, and the interest rate shall be 9 percent above the respective, annual, statutory base interest rate of the European Central Bank.

4. Furthermore, we shall have the right to declare due and payable any outstanding receivables from the buyer upon default of payment and execute any deliveries that we owe only against prepayment or comparable guarantees. The same shall apply in case of a degradation of the buyer’s credit worthiness that occurs after conclusion of the contract or that we become aware of after contract conclusion and that jeopardises the fulfilment of any existing payment obligations toward us.

5. Bills of exchange shall be accepted only based on an express agreement. Bills of exchange and checks shall be applicable only after they are actually redeemed as payment. Any fees and expenses incurred during redemption shall be borne by the customer.

6. Any expenses incurred due to payments in arrears – such as reminder fees, collection fees and the sort shall be invoiced to the customer.

7. Retention of payments due to counterclaims that we dispute and that are not legally recognised or settlement with counterclaims that we dispute and counterclaims that are not legally recognised shall be prohibited.

§ 4 Delivery, delivery times

1. The dates and deadlines that we specify are non-binding, unless otherwise explicitly stipulated in writing.

2. Delivery terms begin with the day of the order confirmation. Should the buyer’s information be required to execute the order, then the delivery terms shall begin at the earliest at the time at which we receive the required information.

3. Delivery and performance delays owing to force majeure or other unforeseeable and unavoidable events beyond our control, which make the delivery difficult to a significant degree or even impossible – this includes in particular but is not limited to strikes, official orders, legal lockouts, unrest, war and pandemics – entitle us to postpone the deliveries or services by the duration of the hindrance plus an appropriate period of adjustment or to withdraw from the contract in whole or in part in the case of impossibility owing to the part not yet fulfilled.
We shall inform the buyer as quickly as possible concerning the unavailability of the delivery and its anticipated duration. If the delay lasts longer than one calendar month, the buyer is entitled to withdraw from the not yet fulfilled part of the contract after allowing an appropriate period of grace after expiry of this period.
Insofar as damage compensation claims also arise in the event of our fault, Section 9 shall apply.

4. We reserve the right to source the correct supplies on our own accord at the required time, in so far as the reason for non-delivery is not within our control. We shall be entitled to provide partial services or partial deliveries within a reasonable scope.

§ 5 Transfer of risk, transport expenses, packaging act

1. In case of delivery by us or in vehicles operating on our behalf, the risk shall transfer to the buyer upon handover to the driver ex factory.

2. In other cases, the risk shall be transferred to the buyer as soon as the goods have been transferred to the person carrying out the transportation and/or has departed our warehouse for shipping.

3. Without the requirements of Para. 1 or 2, the risk shall be transferred to the buyer if they enter default of acceptance.

4. Information according to § 15, para. 1 on p. 5 of the Verpackungsgesetz (German Packaging Act):
According to law, we are obliged to accept and recycle packaging that is not required to participate in the German packaging recycling system as per the German Packaging Act. The purpose and rationale of this obligation is to help facilitate the achievement of the recycling targets set by the EU. We are happy to comply with this obligation. If you as our customer and are in need to return some packaging accordingly, feel free to contact us via your contact person at our company.

5. If the buyer wishes, and if an agreement was reached, we will cover the delivery with transport insurance; the buyer shall bear all expenses incurred for this.

§ 6 Retention of title

1. The sold items remain our property until all the claims against the buyer arising from the business relationship are fulfilled, including future claims from contracts concluded at the same time or later. This shall also apply if individual or all claims have been included in an ongoing invoice and the balance has been settled and acknowledged.

2. The buyer is revocably entitled to resell the goods (reserved goods) under reservation of title in a proper business transaction. Other dispositions, particularly pledging or assignment as security, shall be prohibited.

3. The Buyer hereby assigns to us – on account of performance – all claims that they incur from the reselling to their customer or third party; we shall accept this assignment upon conclusion of the contract. If the reserved goods are resold in conjunction with other goods that we do not own, the buyer’s liability towards their purchaser amounting to the delivery price agreed between us and the buyer shall be deemed assigned. We shall revocably authorise the purchaser to collect the claims assigned to us for their invoice in their own name.

4. The buyer shall always process the reserved goods on our behalf without us incurring an obligation as a result thereof. If the reserved goods are processed together with other goods that do not belong to us or are inseparably mixed, we shall acquire co-ownership of the new item in proportion to the value of the reserved goods with the value of the other processed or mixed goods at the time of processing or mixing.

5. The buyer is obliged to properly store the reserved goods for us and to look after it. The same shall apply for the newly created items due to the processing or mixing.

6. In the case of imminent access to the reserved goods by third parties, particularly during seizure, the buyer must suitably indicate that it is our property and notify us immediately. Para. 5 Sentence 2 applies accordingly.

7. If the buyer behaves in breach of contract, particularly in the case of payment in arrears, we reserve the right to demand the return of the reserved goods and the authority to sell in the ordinary course of business (para. 2 sentence 1) and revoke the direct debit authorisation (Para. 3 sentence 3) or to withdraw from the contract. If the buyer is an entrepreneur, then our withdrawal of the reserved goods shall constitute a contract cancellation only if we explicitly declare it in writing. Once we take back the reserved goods, we shall in any case be authorised to liquidate the reserved goods with the proceeds – minus reasonable liquidation expenses – going towards the buyer’s liabilities. Para. 5 Sentence 2 applies accordingly.

8. If a liability under a bill of exchange is established on our part due to the payment of the purchase price by the buyer, then the retention of title and the claim from goods deliveries that underlie the retention of title shall not lapse until the bill of exchange is redeemed by the buyer as the drawee.

9. If the value of the existing securities exceeds the claims to be secured by more than 10%, we are obliged to release the security upon written request by the buyer; we shall be responsible for selecting the securities to be released.

§ 7 Condition of the goods, sampling

1. Unless otherwise agreed upon, only the condition described in product descriptions, specifications, names etc. shall be deemed the condition of the goods.

2. We spare no effort to deliver flawless goods. However, goods such as grains, feed etc. entail variations in individual characteristics within statutory and common industry tolerance thresholds. Therefore, our samples and/or descriptions can describe only approximate, average values. Specifically, our information is not to be understood as guarantees within the meaning of § 443 BGB (German Civil Code).

3. Sampling and analysis for feed takes place according to the respective applicable feed sampling and analysis ordinance. Sampling and analysis for other goods takes place according to the appropriate, statutory guidelines.

§ 8 Rectification of defects

1. We provide a guarantee for defects through replacement delivery or reworking according to our choice. Deviations as defined by § 2.4 and § 7.2 sentence 2 and 3 are not subject to complaint.

2. Obvious defects can only be claimed immediately after receipt of the goods and must be confirmed in writing by our driver or transport operator. Hidden defects must be reported to us immediately after their discovery. If the buyer is an entrepreneur, failure to comply with the statutory examination and/or the above duty to complain results in exclusion of the right to enforce warranty claims. In the case of improper storage, treatment or processing by the buyer, the right to enforce a claim for any defects is excluded, unless the buyer can demonstrate at his expense, that we are responsible for the defects. Also for the remaining part, the buyer – so long as they are an entrepreneur – must bear the full burden of proof for all claim requirements, in particular for the defect themselves, for the time at which the defect arose and for the timeliness of the notice of defect.

3. After two failed attempts at reworking, the buyer can demand reduction or withdrawal from the contract. However withdrawal is only possible if a partial service provided is of no interest to the buyer or the defect triggering the warranty is considerable. § 9 applies for possible damage compensation claims.

4. If the buyer is an entrepreneur, warranty claims on account of a defect become statute-barred after one year after delivery of the goods. If the buyer is an entrepreneur, warranty claims on account of a defect become statute-barred after two years after delivery of the product for new goods, and after one year for used goods. § 9 governs liability for claims for damages and it shall remain unaffected.

5. We shall not grant the buyer any guarantees on the condition of the item. Any third-party guarantees shall remain unaffected and must be asserted directly with the same.

§ 9 Liability restrictions

The seller shall be liable to the customer for compensation for damages and reimbursement of expenses arising from all contractual, contract-like and statutory claims, including tortuous ones as follows:

1. The seller shall be liable for any legal reason without limitation
– in case of intent or gross negligence
– in case of deliberate or grossly negligent injury to life, body or health
– due to a guarantee promise (in contravention of § 9.5) unless otherwise stipulated
– due to mandatory liability such as according to the German Product Liability Act (Produkthaftungsgesetz).

2. If the seller negligently violates an essential contractual obligation, then the liability shall be limited to typical, predictable contractual damage, unless there are no restrictions to the liability according to the preceding clause. Essential contractual obligations are obligations that the contract imposes on the seller based on its content to achieve the contractual purpose and whose fulfilment enables proper execution of the contract in the first place and whose compliance the customer may ordinarily rely on.

3. Furthermore, there shall be no liability on the part of the seller.

4. The preceding liability regulations shall also apply with regard to the seller’s liability for their vicarious agents and legal representatives.

5. The buyer’s claims for damages due to a fault shall lapse one year after the goods are delivered, regardless of the legal grounds on which the claims may be based, unless a longer statute of limitations is required by law, the claims are due to intent or gross negligence, or relate to death, physical injury or damage to health.

§ 10 Rules on supplier regress

1. The customer shall only be entitled to any statutory rights of recourse in connection with a sale of consumer goods at the end of the supply chain to the extent that they have not entered into any agreements with their customer that go beyond the statutory claims for defects. The buyer is obliged to immediately inform us about their use arising from the sale of consumer goods.

2. The reimbursement of any expenses incurred may only be claimed in the event that evidence is provided of the manner in which the expenses were incurred.

3. The entitlement to compensation shall apply in accordance with § 9. In case of a supplier regress, the statutory statute of limitations shall remain unaffected according to the latest version of the stipulations of the German Civil Code (BGB).

§ 11 Data storage

Personal information relating to customers shall be processed for data processing purposes. This shall take place in compliance with the General Data Protection Regulation (GDPR) and German Data Protection laws. Furthermore, please consult our privacy policy, which we have provided to you separately and which you can open here as a PDF at any time.

§ 12 Applicable law, place of jurisdiction, contractual language, miscellaneous

1. Unless otherwise stipulated from the order confirmation, the place of fulfilment for all rights and obligations shall be the place of business of the respective company from the Juchem Group.

2. The customer’s rights arising from this contract are non-transferable.

3. The laws of the Federal Republic of Germany shall apply for all legal relationships of the parties excluding laws regarding the international sale of goods.

4. If the customer acts as merchant, legal entity under public law or special fund under public law whose headquarters is located within the territory of the Federal Republic of Germany, the place of business of the respective company of the Juchem Group shall be the sole place of jurisdiction for any disputes arising from or in conjunction with this contract. If the customer’s headquarters is located outside of the territory of the Federal Republic of Germany, then our domicile shall be the sole place of jurisdiction for all disputes arising from this contract, even if the agreement or claims arising from the agreement can be attributed to the customer’s professional or commercial activity. However, in the preceding cases, we shall in any event reserve the right to appeal to the court at the customer’s place of jurisdiction.

5. The sole contractual language shall be German. The contents of the agreement shall always be interpreted based on German legal understanding. If these General Terms and Conditions are translated to another language, it shall be done for practicability reasons but does not change the fact that the German language version shall be definitively binding. The foreign-language version is solely for informational purposes and shall not become part of the legal transaction.
This shall apply accordingly to contracts concluded based on these General Terms and Conditions; if they are
a. drafted in several languages, the foreign language versions are solely for informational purposes and shall not become part of the legal transaction;
b. concluded solely in a foreign language, then this is done merely for practicability reasons and should not constitute grounds to refer to the laws, jurisprudence or case law of an English-speaking jurisdiction during interpretation.
The contracts and/or the text of the General Terms and Conditions are always interpreted and/or their meaning is determined using the German version and/or German legal understanding and German law.

6. Should individual provisions of this contract be or become wholly or partially ineffective, the validity of the remaining provisions shall not be affected hereby. The wholly or partially ineffective provision shall be replaced by a provision whose economic purpose comes as close as possible to that of the ineffective provision. In the event that a provision of these general purchase and delivery terms and conditions becomes ineffective, the statutory regulations shall apply to this extent.