Terms and Conditions

I. Scope of Application

The present General Terms and Conditions apply to all business relationships of Bayerische Milchindustrie eG (BMI) with our contractual partners, provided they are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB). They also apply to all future business relationships, even if not expressly agreed upon again. Our General Terms and Conditions apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the contractual partner will only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in every case, for example, even if we perform the service to the contractual partner without reservation, with knowledge of their terms and conditions. Individual agreements made with the contractual partner on a case-by-case basis, including collateral agreements, additions, and amendments, shall in all cases take precedence over the General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.

II. Offer and Conclusion of Contract

We may accept an order from the contractual partner, which is to be qualified as an offer to conclude a contract, within two weeks by sending an order confirmation or by dispatching the ordered goods within the same period. Our offers are subject to change and non-binding, particularly regarding quantity, price, and delivery time, unless we have expressly designated them as binding. We reserve our ownership, copyright, and other proprietary rights to all illustrations, calculations, product specifications, and drawings, as well as other documents. The contractual partner may only pass these on to third parties with our written consent, regardless of whether we have marked them as confidential.

III. Terms of Payment, Set-off, Right of Retention

Our prices are ex works, unless otherwise specified in the order confirmation. Our prices do not include the statutory value-added tax. This will be shown separately on the invoice at the statutory rate on the day of invoicing, if applicable. The invoice amount is, unless otherwise agreed in writing, due within ten days from the invoice date without deduction. A payment is only deemed to have been made when we can dispose of the amount. In the case of check payments, payment is only considered made when the check has been cleared. We are entitled to perform outstanding deliveries or services only against advance payment if circumstances become known to us after the conclusion of the contract that are likely to significantly reduce the creditworthiness of the contractual partner and thereby endanger the payment of BMI’s outstanding claims by the contractual partner from the respective contractual relationship. If the contractual partner defaults on a payment, the statutory regulations apply. The contractual partner is only entitled to set off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. The contractual partner is only authorized to exercise a right of retention if their counterclaim results from the same contractual relationship and has been legally established or is undisputed.

IV. Delivery

Delivery dates or deadlines that have not been expressly agreed upon as binding are exclusively non-binding information. The observance of our delivery and performance obligations presupposes the timely and proper fulfillment of the contractual partner’s obligations. Correct and timely self-delivery remains reserved. We are entitled to make partial deliveries and partial performances at any time, insofar as this is reasonable for the contractual partner. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible, we will inform the contractual partner immediately and at the same time communicate the probable new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any consideration already rendered by the contractual partner will be reimbursed immediately. The occurrence of our delivery delay is determined by statutory provisions. In any case, however, a reminder from the contractual partner is required. If we fall into default of delivery, the contractual partner may 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 week of the delay, but no more than 5% of the delivery value of the delayed goods in total. We reserve the right to prove that the contractual partner has incurred no damage or only significantly less damage than the aforementioned lump sum. The rights of the contractual partner according to Section VII. and our statutory rights, in particular in the event of an exclusion of the obligation to perform, e.g., due to impossibility or unreasonableness of performance and/or subsequent performance, remain unaffected.

V. Shipping/Packaging, Transfer of Risk, Default of Acceptance

Unless otherwise agreed, the method of shipping and packaging are at BMI’s dutiful discretion. If product-specific packaging is purchased by BMI at the request of the contractual partner, the contractual partner must coordinate with BMI regarding the quantities of packaging to be purchased before the purchase. If the quantities of packaging purchased in coordination with the contractual partner are not fully consumed for reasons for which BMI is not responsible, the contractual partner shall bear the costs of the unconsumed packaging and any destruction carried out at the contractual partner’s request. The risk of accidental loss and accidental deterioration of the goods passes to the contractual partner at the latest upon delivery. If the contractual partner defaults on acceptance, fails to cooperate, or if our delivery is delayed for other reasons attributable to the contractual partner, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this, we charge a flat-rate compensation of 0.25% of the respective invoice amount per elapsed week, starting from the delivery deadline or from the notification of readiness for dispatch of the goods. Proof of higher damage and our statutory claims, in particular reasonable compensation and termination, remain unaffected; however, the flat rate is to be credited against further monetary claims. The contractual partner is permitted to prove that we have incurred no damage or only significantly less damage than the aforementioned lump sum.

VI. Liability for Defects

For the rights of the contractual partner in the event of material and legal defects, the statutory provisions apply, unless otherwise stipulated below. In all cases, the special statutory provisions for the final delivery of unprocessed goods to a consumer (§ 478 BGB) remain unaffected. The basis of our liability for defects is primarily the agreement reached on the quality of the goods. All product specifications that are the subject of the individual contract are considered an agreement on the quality of the goods; it makes no difference whether the product specifications originate from the contractual partner, manufacturer, or us. We do not assume liability for public statements by the manufacturer or other third parties, e.g., advertising statements. Claims and rights for defects of the contractual partner only exist if the contractual partner has properly complied with their obligations to inspect and give notice of defects pursuant to § 377 HGB. If a defect becomes apparent during inspection or later, we must be notified immediately in writing. If the contractual partner fails to properly inspect and/or notify of the defect, our liability for the unnotified defect is excluded. If the delivered goods are defective, we can initially choose whether to provide subsequent performance by remedying the defect or by delivering a defect-free item. Our right to refuse subsequent performance under the statutory conditions remains unaffected. The contractual partner has to give us the necessary time and opportunity for subsequent performance and replacement delivery, in particular to hand over the complained goods for inspection purposes. We bear the expenses necessary for inspection and subsequent performance, in particular transport, labor, and material costs, if a defect actually exists. Otherwise, we can demand reimbursement from the contractual partner for the costs incurred from the unjustified request for defect removal, in particular inspection and transport costs, unless the lack of defectiveness was not recognizable to the contractual partner. If subsequent performance has failed or a reasonable deadline to be set by the contractual partner for subsequent performance has expired unsuccessfully or is dispensable according to statutory provisions, the contractual partner may withdraw from the contract or demand a reduction of the agreed price. However, there is no right of withdrawal for an insignificant defect. Claims of the contractual partner for damages or reimbursement of futile expenses exist for defects only according to the provisions of Section VII. and are otherwise excluded. The limitation periods for claims arising from material and legal defects are one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.

VII. Other Liability

Unless otherwise stipulated in these General Terms and Conditions, including the following provisions, we are liable for a breach of contractual and non-contractual obligations in accordance with statutory provisions. We are liable for damages – regardless of the legal reason – within the framework of fault liability for intent and gross negligence. In the case of simple negligence, we are liable, subject to a milder standard of liability according to statutory provisions, only (a) for damages resulting from injury to life, body, or health, and (b) for damages resulting from the non-insignificant breach of an essential contractual obligation, whereby in this case our liability is limited to compensation for the foreseeable, typically occurring damage. These limitations of liability also apply to breaches of duty by persons whose fault we are responsible for according to statutory provisions. They do not apply insofar as we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods or for claims under the Product Liability Act. Due to a breach of duty that does not consist of a defect, the contractual partner can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the contractual partner is excluded. Otherwise, the statutory prerequisites and legal consequences apply. The limitation periods regulated in Section VI. 8. also apply to contractual and non-contractual claims for damages of the contractual partner based on a defect in the goods; this does not apply to claims for damages pursuant to Section VII. 2. sentences 1 and 2 (a) as well as to claims for damages under the Product Liability Act, which are exclusively subject to the statutory limitation periods.

VIII. Retention of Title

We reserve ownership of the sold goods until full payment of all our current and future claims from the contractual relationship and the ongoing business relationship, hereinafter also referred to as the secured claims. The goods subject to retention of title may not be pledged to third parties or transferred as security before full payment of the secured claims. The contractual partner must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or insofar as third-party access, e.g., seizures, to the goods belonging to us occurs. In the event of behavior by the contractual partner contrary to the contract, in particular in the event of non-payment of the due invoice amounts, we are entitled to withdraw from the contract in accordance with statutory provisions or/and to demand the return of the goods due to the retention of title. The demand for surrender does not at the same time constitute a declaration of withdrawal; we are rather entitled to merely demand the return of the goods and reserve the right to withdraw. These rights will only be asserted if we have previously set the contractual partner a reasonable payment deadline unsuccessfully or if such a deadline is dispensable according to statutory provisions. The contractual partner is entitled to properly sell and/or use the reserved goods in the ordinary course of business, as long as they are not in default of payment. The contractual partner hereby assigns to us in full by way of security all claims arising from the resale or any other legal reason, e.g., insurance reimbursements, relating to the reserved goods; we hereby accept the assignment. We revocably authorize the contractual partner to collect the claims assigned to us for their account in their own name. The direct debit authorization can be revoked at any time if the contractual partner does not properly meet their payment obligations. The contractual partner is also not authorized to assign these claims for the purpose of debt collection by way of factoring, unless the factor simultaneously undertakes to make the counter-performance in the amount of the claims directly to us as long as secured claims from us against the contractual partner exist. Any processing or transformation of the reserved goods by the contractual partner will in any case be carried out for us. If the reserved goods are processed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the reserved goods to the other processed items at the time of processing. If the contractual partner’s item is to be regarded as the main item as a result of the mixing, the contractual partner and we agree that the contractual partner transfers pro rata co-ownership of this item to us; we hereby accept the transfer. The contractual partner stores our sole or co-ownership thus created in the item free of charge for us. If the realizable value of the securities exceeds our secured claims by more than 10%, we will release securities of our choice upon request of the contractual partner.

IX. Place of Performance, Place of Jurisdiction, Applicable Law

The place of performance and place of jurisdiction for all disputes arising between us and the contractual partner from contracts concluded between us and them (including actions based on checks and bills of exchange) is Landshut, provided that the contractual partner is a merchant or entrepreneur within the meaning of § 14 BGB. However, we are also entitled to sue the contractual partner at their place of residence and/or business. The relationships between the contracting parties are governed exclusively by the law applicable in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.