General Terms and Conditions of Sale and Delivery (GTC) of Surply GmbH

§ 1 Scope and Defence Clause

(1) The following General Terms and Conditions (GTC) apply to all contracts, deliveries and other services of Surply GmbH (hereinafter “Surply”) towards its contractual partners (hereinafter “Buyer”). These GTC apply exclusively to legal transactions with entrepreneurs within the meaning of section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.

(2) Our offers, deliveries and services are made exclusively on the basis of these GTC.

(3) Deviating, conflicting or supplementary general terms and conditions of the Buyer are hereby expressly rejected. They do not become part of the contract unless Surply expressly agrees to their application in writing.

§ 2 Conclusion of Contract

(1) Offers from Surply, in particular in e-mails or on the website, are subject to change and non-binding. They constitute an invitation to the Buyer to submit a purchase offer (invitatio ad offerendum).

(2) A contract is concluded when Surply accepts the Buyer’s order by means of an express order confirmation transmitted in text form.

(3) The order confirmation transmitted by Surply reflects the content of the concluded contract in full and authoritatively, including all preceding negotiations and agreed specifications. If the Buyer has objections to the content of the order confirmation, it must object in text form without undue delay, at the latest within two (2) working days of receipt. If no objection is raised within this period, the terms of the order confirmation are deemed to have been bindingly accepted by the Buyer.

(4) All agreements made between Surply and the Buyer for the purpose of performing a contract must be recorded in writing in the order confirmation.

§ 3 Subject of Performance and Product Quality

(1) The subject of the contract is exclusively the goods sold with the properties and characteristics set out in the product information provided by Surply. This information may consist in particular, but not exclusively, of product specifications, certificates of analysis, samples or photographs.

(2) Surply trades in surplus food raw materials which may deviate from standard specifications (e.g. due to the best-before date or “off-spec” characteristics). The quality of the goods owed is therefore limited exclusively to the properties defined in the product information pursuant to paragraph 1. Surply assumes no guarantee or liability for any quality, suitability or usability of the goods beyond that.

(3) The Buyer is solely responsible for assessing, on the basis of the information provided, whether the goods are suitable for its intended purpose. If the Buyer decides not to request further information or samples, it bears the sole risk with regard to any properties of the goods that were not covered by the product information provided.

(4) Surply makes no stipulations or restrictions regarding the further use of the goods by the Buyer. Responsibility for compliance with food law or other statutory provisions in further processing or placing on the market lies exclusively with the Buyer.

(5) Over- or under-deliveries of the agreed quantity of up to 10 %, which are customary in the industry, are permissible and are taken into account accordingly in the final invoice amount.

§ 4 Prices and Payment Terms

(1) All prices quoted by Surply are net prices in euros and are subject to statutory value added tax at the rate applicable on the day of delivery.

(2) Unless otherwise agreed in writing, invoices are payable in advance without deduction. Where a deviating arrangement has been agreed, invoices are due within the period stated on the invoice.

(3) In the event of late payment, Surply is entitled to charge default interest at the statutory rate (currently 9 percentage points above the base rate). The assertion of further damages caused by default remains reserved.

(4) The Buyer is only entitled to set off or withhold payments if its counterclaims have been legally established, are undisputed or have been acknowledged in writing by Surply.

§ 5 Delivery, Transfer of Risk and Default of Acceptance

(1) Delivery dates and periods are non-binding approximate indications, unless they are expressly designated as “binding” in writing.

(2) If Surply is in default with a delivery, the Buyer must set a reasonable grace period of at least two weeks as a rule. Only after this grace period has expired without result is the Buyer entitled to withdraw from the contract.

(3) Responsibility for transport (organisation and costs) as well as the time of the transfer of risk are agreed individually in writing for each deal. In the absence of a deviating agreement, delivery is “ex works” (EXW Incoterms® 2020), whereby the risk passes to the Buyer once the goods have been made available for collection.

(4) If the Buyer is in default of acceptance or culpably breaches other duties to cooperate, Surply is entitled to claim compensation for the damage incurred in this respect, including any additional expenses (e.g. storage costs, costs for repeated delivery attempts).

§ 6 Retention of Title

(1) The goods delivered by Surply remain the property of Surply (goods subject to retention of title) until all claims arising from the business relationship have been paid in full.

(2) The Buyer is not entitled to resell the goods subject to retention of title before payment in full.

(3) Any processing or mixing of the goods subject to retention of title by the Buyer is always carried out on behalf of Surply. If the goods subject to retention of title are processed or inseparably mixed with other items not belonging to Surply, Surply acquires co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the other processed or mixed items at the time of processing or mixing.

§ 7 Warranty and Notice of Defects

(1) The Buyer must inspect the goods without undue delay after delivery and, if a defect becomes apparent, notify Surply in writing without undue delay, at the latest within three (3) working days. If the Buyer fails to give such notice, the goods are deemed approved unless the defect was not detectable during the inspection.

(2) The warranty is excluded for defects that result from the specific nature of the goods as surplus or special lots (cf. § 3) and of which the Buyer was aware or should have been aware on the basis of the product information.

(3) In the case of a defect notified in time and for which Surply is responsible, Surply is entitled, at its own discretion, to remedy the defect, to deliver goods free of defects (where possible) or to take the goods back against reimbursement of the purchase price. As a rule, the goods will be taken back. A price reduction may be agreed in writing on a case-by-case basis.

(4) The limitation period for claims based on defects is one year from the transfer of risk.

§ 8 Liability

(1) Surply is liable without limitation in accordance with statutory provisions for damage to life, body and health resulting from a negligent or intentional breach of duty by Surply, its legal representatives or its vicarious agents, as well as for damage covered by liability under the German Product Liability Act.

(2) For other damage, Surply is only liable if it results from an intentional or grossly negligent breach of duty or from the culpable breach of a material contractual obligation (cardinal obligation) by Surply, its legal representatives or its vicarious agents.

(3) In the event of a slightly negligent breach of a material contractual obligation, Surply’s liability is limited to the typical, foreseeable damage. In any case, liability is limited to the value of the goods of the underlying transaction.

§ 9 Force Majeure

(1) If a party is prevented from fulfilling its contractual obligations due to force majeure, it is released from its performance obligations for the duration of the impediment plus a reasonable start-up period, without being liable to the other party for damages.

(2) Force majeure means all unforeseeable events as well as events whose effects on the performance of the contract are not the responsibility of either party. These include in particular, but not exclusively, natural disasters, war, industrial action, pandemics, official orders and material operational disruptions for which no party is at fault.

(3) Each party must notify the other party in writing without undue delay of the occurrence of an event of force majeure.

(4) If the event of force majeure lasts longer than three (3) months, each party is entitled to withdraw from the contract.

§ 10 Final Provisions

(1) The place of performance and the exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Düsseldorf, Germany.

(2) The law of the Federal Republic of Germany applies exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(3) These General Terms and Conditions are provided in German and English. In the event of deviations or contradictions between the German and the English version, the German version shall be exclusively authoritative and legally binding.

(4) Should individual provisions of these GTC be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. In place of the invalid provision, a valid provision shall be deemed agreed which comes closest to the economic purpose of the invalid provision.