General Terms and Conditions of Sale (GTC)
Content
01. Scope
02. Registration as a customer
03. Conclusion of Contract
04. Availability of goods
05. Delivery dates and delays in delivery
06. Delivery, Transfer of Risk, Acceptance, Default of Acceptance
07. Prices and terms of payment
08. Retention of Title
09. Customer's Claims for Defects
10. Incoming Goods Inspection
11. Liability
12. Confidentiality
13. Final Provisions
01. Scope
01.01. The following General Terms and Conditions of Sale (hereinafter referred to as "GTC") apply to all business relationships between Yumbau Food GmbH ("Yumbau") and its customers ("Customers"), regardless of whether contracts are concluded online or offline. Yumbau only sells to B2B customers at this time. The T&Cs only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. Unless otherwise agreed, these T&Cs shall apply in the version confirmed by the customer at the time of conclusion of the contract.
01.02. The GTC apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), regardless of whether Yumbau manufactures the goods itself or purchases them from suppliers (§§ 433, 650 BGB).
01.03. Yumbau's T&Cs apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that Yumbau has expressly agreed to their validity in writing (e.g. e-mail, letter). This consent requirement applies in any case, in particular if Yumbau carries out the delivery to the customer without reservation in the knowledge of the customer's general terms and conditions.
01.04. Individual agreements between Yumbau and the Client (including ancillary agreements, additions and amendments) take precedence over these T&Cs. Subject to evidence to the contrary, the content of such agreements shall be governed by a contract or confirmation by Yumbau in written or text form.
01.05. The customer must submit legally relevant declarations and notifications in relation to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) in written or text form (e.g. e-mail, letter). Legal formal requirements and other evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.
01.06. References to the applicability of statutory provisions are only of clarifying value. The statutory provisions therefore apply even without a corresponding notice, insofar as they are not directly changed or expressly excluded in these GTC.
02. Registration as a customer
02.01. For online orders, it is necessary for the customer to register for the Yumbau online store.
02.02. Yumbau creates a user account for each registered customer. The data required to create the user account must be provided completely and truthfully by the customer. Subsequent changes to the customer's personal data must be reported to Yumbau immediately.
03. Conclusion of Contract
03.01. The presentation of the goods in the catalogue, in newsletters, advertising brochures for promotions or in the Yumbau online shop does not constitute a legally binding offer by Yumbau. This is merely an invitation to the customer to make a binding offer to purchase goods.
03.02. The order of the goods by the customer – whether online or offline – is considered a binding contractual offer. Unless otherwise stated in the order, Yumbau is entitled to accept this contractual offer within 5 working days of receipt of the order.
03.03. Yumbau may accept the offer in writing by order confirmation (e.g. e-mail, letter) or by delivery of the goods to the customer. Unless otherwise stated in the order confirmation, Yumbau's order confirmation is to be seen as a binding acceptance by Yumbau.
03.04. The subject matter of the contract is the goods and other services listed in the order confirmation.
03.05. Yumbau is entitled to have the customer's order fulfilled in whole or in part by third parties. The customer's consent is not required for this.
03.06. After order confirmation or delivery by Yumbau, changes and additions to the order requested by the customer are only possible by separate agreement between Yumbau and the customer.
04. Availability of goods
04.01. If, at the time of ordering, the goods ordered by the Customer are no longer available, the Seller shall refrain from issuing a declaration of acceptance.
04.02. If the Seller does not accept the Client's offer, the Seller shall immediately refund to the Client any payments already made.
05. Delivery dates and delays in delivery
05.01. The delivery dates stated in Yumbau's order confirmation are non-binding as expected delivery dates for Yumbau. If, by way of derogation, binding delivery dates are expressly guaranteed in writing (e.g. e-mail, letter) by Yumbau, these are subject to defect-free and timely self-delivery by suppliers.
05.02. If Yumbau is unable to meet binding delivery dates for reasons for which Yumbau is not responsible (unavailability of the service), Yumbau will inform the customer immediately and at the same time inform him of the expected new delivery date. If the service is still not available on the new delivery date, Yumbau is entitled to withdraw from the contract in whole or in part. In the event of withdrawal by Yumbau, Yumbau will immediately reimburse any consideration already provided by the customer. In particular, the case of unavailability of the service in this sense shall be deemed to be the failure of Yumbau's supplier to supply the service itself in a timely manner.
05.03. Yumbau is entitled to make partial deliveries, provided that this does not unreasonably disadvantage the customer.
05.04. Yumbau shall not be liable for the impossibility of delivery or delays in delivery if these were caused by force majeure (i.e. unforeseeable, unavoidable events) vis-à-vis Yumbau or Yumbau's suppliers. Such circumstances for which Yumbau is not responsible shall extend the delivery period to a reasonable extent.
05.05. The rights of the customer according to clauses 9 and 11 of these GTC and the statutory rights of Yumbau, 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.
06. Delivery, Transfer of Risk, Acceptance, Default of Acceptance
06.01. The delivery takes place from the warehouse, where the place of performance (§ 269 para. 1 BGB) for the delivery and any subsequent performance is. Upon request and – unless otherwise specified – at the expense of the customer, the goods will be shipped to another destination (mail order purchase). Unless otherwise agreed, Yumbau is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.
06.02. Rental containers (pallets, meat crates, trolleys, etc.) for the transport of goods remain the property of Yumbau even if Yumbau has charged a deposit for them. They must be returned to Yumbau immediately and properly cleaned after the goods have been transported. Yumbau may refuse the return of soiled or defective rental containers or have them cleaned at the customer's expense.
06.03. Unless otherwise agreed, a delivery requested by the customer will be made by Yumbau in temperature-controlled refrigerated vehicles of Yumbau, its subcontractors or carriers. Upon delivery, the customer confirms by signing the delivery note that the corresponding temperature requirements are met at the time of delivery of the goods (frozen goods not above -15 °C; refrigerated goods 0 °C to +4 °C).
06.04. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon delivery. In the case of consignment purchases, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is already transferred to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment when the goods are delivered. Insofar as acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, too, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance. It is equivalent to handover or acceptance if the customer is in default of acceptance. It is the customer's responsibility to take out transport insurance.
06.05. If the customer is in default of acceptance, if he fails to cooperate or if delivery is delayed by Yumbau for other reasons for which the customer is responsible, Yumbau is entitled to demand compensation for the resulting damage (e.g. storage costs).
06.06. Proof of higher damages by Yumbau as well as Yumbau's statutory claims (reimbursement of additional expenses, appropriate compensation, termination) remain unaffected. However, the lump-sum compensation pursuant to Section 6.5 sentence 2 shall be offset against further monetary claims. The customer is entitled to prove that Yumbau has suffered no damage at all or only less than the lump-sum compensation pursuant to clause 6.5 sentence 2.
06.07. Yumbau is registered with the central registration office in accordance with the Packaging Act, which has been in force since 01.01.2019. Any service packaging costs are to be paid by the customer to Yumbau prior to delivery.
07. Prices and terms of payment
07.01. The prices are agreed individually, excluding VAT and shipment.
07.02. If the customer instructs Yumbau to ship the goods, the price includes the packaging of the goods and agreed additional costs of the shipment to a delivery address. The customer is responsible for any customs duties, fees, taxes, and other public charges.
07.03. Unless otherwise agreed, the purchase price is due for payment in advance, cash payment on delivery or immediate direct debit. Yumbau reserves the right to change the payment methods.
07.04. If the customer does not pay the purchase price despite the due date, he is in default. The purchase price shall bear interest during the period of default at the applicable statutory default interest rate. Yumbau reserves the right to assert further damage caused by delay. Yumbau's claim to the commercial maturity interest against merchants (§ 353 HGB) remains unaffected.
07.05. A payment by the customer shall be deemed to have been made when Yumbau is able to dispose of the amount. Only upon receipt of the payment on Yumbau's account will any default in payment by the customer end.
07.06. The customer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. This does not apply to the customer's rights of retention that are based on counterclaims of the customer arising from the same contractual relationship. In the event of defects in the delivery, the counter-rights of the customer, in particular in accordance with section 9.4 sentence 2 of these GTC, remain unaffected.
07.07. If, after the conclusion of the contract, it becomes apparent that Yumbau's claim to the purchase price is jeopardized by the customer's lack of ability to pay (e.g. by filing for the opening of insolvency proceedings), Yumbau is entitled to refuse performance in accordance with the statutory provisions and – if necessary, after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts to produce unjustifiable items (one-off products), Yumbau can declare the withdrawal immediately. The statutory provisions on the dispensability of setting deadlines remain unaffected.
08. Retention of Title
08.01. Until full payment of all current and future claims of Yumbau arising from the contract and an ongoing business relationship (secured claims), Yumbau retains ownership of the goods sold.
08.02. For the duration of the retention of title, the customer may dispose of the goods only during proper business transactions. To be on the safe side, the customer assigns the resulting receivables from third parties to Yumbau. Yumbau hereby accepts the assignment. In the case of a resale against cash payment, the proceeds take the place of the goods directly, whereby the transfer of the proceeds is replaced by the fact that the customer owns the amount of money as custodian. The retention of title is not lost despite the inclusion of the claim in a current account balance and its acknowledgement.
08.03. In the event of processing of the goods delivered under retention of title, Yumbau acquires ownership of the new product. Rather, the processing is carried out by the customer on behalf of Yumbau. If the goods subject to retention of title are processed with other items not owned by Yumbau, Yumbau acquires co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed items at the time of processing. The same applies to the new item resulting from processing as to the goods subject to retention of title.
08.04. In the event of inseparable mixing of the goods subject to retention of title with other items that do not belong to Yumbau, Yumbau acquires co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other mixed items at the time of mixing. If, as a result of the mixing, the customer's property is to be regarded as the main thing, the customer and Yumbau agree that the customer transfers co-ownership of the main property to Yumbau on a pro rata basis; Yumbau hereby accepts the transfer. The resulting sole or co-ownership of an item by Yumbau shall be held by the customer on behalf of Yumbau.
08.05. In the event of a breach of contract on the part of the customer, in particular in the event of non-payment of the purchase price due, Yumbau shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods based on the retention of title. The demand for surrender does not at the same time include the declaration of withdrawal; Rather, Yumbau is entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, Yumbau may only assert these rights if Yumbau has previously set the customer a reasonable deadline for payment without success or if such a deadline is unnecessary according to the statutory provisions.
08.06. If the realizable value of the collateral exceeds Yumbau's receivables by more than 10%, Yumbau shall, at the request of the client, release collateral of Yumbau's choice.
09. Customer's Claims for Defects
09.01. The rights of the customer in the event of material defects and defects of title (including incorrect and underdelivered) are governed by the statutory provisions, unless otherwise stipulated below.
09.02. The statutory special provisions remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has further processed them (supplier recourse according to §§ 478 BGB). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur.
09.03. If the delivered item is defective, Yumbau may choose whether subsequent performance is to be provided by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Yumbau's right to refuse subsequent performance under the statutory requirements remains unaffected.
09.04. Yumbau is entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
09.05. Yumbau shall reimburse the customer for the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs in accordance with the statutory provisions, if there is actually a defect. Otherwise, Yumbau may demand reimbursement from the customer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defect was not recognizable to the customer.
09.06. Claims by the customer for damages or reimbursement of futile expenses shall only exist in the event of defects in accordance with Section 11 and are otherwise excluded.
10. Incoming Goods Inspection
10.01. The Customer's claims for defects pursuant to Section 9 shall presuppose that the Customer has complied with its statutory obligations to investigate and notify (Sections 377, 381 of the German Commercial Code (HGB)). In the case of foodstuffs, an examination must always be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later date, Yumbau must be notified immediately in writing. Obvious defects must be asserted on the day of delivery. Defects that are not detectable during the inspection must be reported in writing (e.g. letter, e-mail, fax) on the day the defect is discovered.
10.02. In particular, the goods must be checked for delivery temperature. It is also necessary to check that the expiry date indicated on the goods corresponds to the expiry date indicated on the delivery note.
10.03. If the customer fails to properly investigate and/or report defects, Yumbau shall not be liable for the defect that has not been reported or has not been reported in a timely manner or is not properly reported in accordance with the statutory provisions.
10.04. The Client shall notify Yumbau and the carrier, freight forwarder or other person designated to ship the goods ("Transport Company") of any loss or damage to the goods. Externally recognizable damage or shortages must be reported to the transport company at the latest upon delivery; hidden defects on the day the defect was discovered. Notification of loss or damage must be made in writing (e.g. letter, e-mail, fax) with sufficient documentation. If the customer reports the damage late or improperly, he must compensate Yumbau for all resulting damages.
11. Liability
11.01. In the event of a breach of contractual and non-contractual obligations, Yumbau shall be liable in accordance with the statutory provisions, unless otherwise provided for in these GTC, including the following provisions.
11.02. Yumbau shall be liable for damages – regardless of the legal basis – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, Yumbau shall only be liable, subject to statutory limitations of liability (e.g. diligence in its own affairs; insignificant breach of duty)
a) for damage resulting from injury to life, limb or health,
b) for damages resulting from the breach of a material contractual obligation (i.e. an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party regularly relies and may rely); in this case, however, liability is limited to compensation for the foreseeable, typically occurring damage.
11.03. The limitations of liability resulting from clause 11.2 shall also apply in the event of breaches of duty by or for the benefit of persons whose fault Yumbau is responsible for in accordance with statutory provisions. They do not apply to the extent that Yumbau has fraudulently concealed a defect or assumed a guarantee for the quality of the goods as well as to claims of the customer under the Product Liability Act.
11.04. The customer may withdraw from the contract or terminate the contract only if Yumbau is responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the legal requirements and legal consequences apply.
12. Confidentiality
12.01. Prices negotiated individually between Yumbau and the Client are customer-specific and subject to confidentiality by the Client.
12.02. If customer-specific prices are passed on by the customer and Yumbau suffers damage as a result, Yumbau may demand compensation for the damage incurred from the customer.
13. Final Provisions
13.01. Yumbau is entitled to inform customers registered for the online shop about updates to the system and to regularly check the up-to-dateness of the stored master data.
13.02. These GTC as well as the contractual relationship, i.e. also for the individual purchase contracts between Yumbau and the customer, shall be governed by the law of the Federal Republic of Germany to the exclusion of uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods, and to the exclusion of the provisions of private international law.
13.03. The exclusive place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship is Munich. Yumbau is entitled to bring an action at the general place of jurisdiction of the customer.
13.04. Changes and additions to the contract must be made in writing in order to be effective. This also applies to the waiver of the above written form requirement.
13.05. Without the prior written consent of Yumbau, the Client is not entitled to transfer and/or assign rights and obligations arising from the contractual relationships binding the Parties to third parties. This prohibition of assignment does not apply to monetary claims.