As of: August 2021
1.1 These General Terms and Conditions of Sale and Delivery (« GTSD ») in the version valid at the time of the conclusion of the respective contract shall become an integral part of all contracts between share GmbH, Amtsgericht Berlin (Charlottenburg) HRB 186219 (« share ») and its contractual partners (« customers »).
1.2 These GCSD shall apply to orders placed by or contracts concluded with customers who are entrepreneurs within the meaning of Section 14 of the German Civil Code (« BGB »), a legal entity under public law, or a special fund under public law. These GCSD shall apply to the supply of products offered by share to the customer, in particular food and hygiene products (« share Products »). The GCSD shall be deemed accepted by the customer at the latest upon acceptance of share products by the customer.
1.3 These GCSD shall apply in the version in effect at the time of the customer’s order or in the version most recently provided to the customer in text form, as the case may be, also to similar future contracts between share and the customer, without share having to refer to this in individual cases.
1.4 These GCSD shall apply exclusively. General terms and conditions of the customer shall only become part of the contract if share has expressly agreed to their validity in writing. This consent requirement shall apply in all cases, for example even if share unconditionally performs the delivery to the customer with knowledge of the customer’s general terms and conditions of contract.
1.5 If the term ‘in writing’ is used in these GTCS, this shall generally mean ‘in writing’ within the meaning of Section 126 of the German Civil Code (BGB). For this purpose, the electronic exchange of copies of documents signed by hand shall be sufficient (Section 127 (2) BGB). Simple e-mails are not sufficient.
1.6 Unless these GCSD expressly stipulate written form or another formal requirement, legally relevant declarations made by the customer to share after the conclusion of the contract must be at least in text form within the meaning of Section 126b of the German Civil Code (simple e-mail is sufficient) in order to be effective.
2.1 Offers made by share are subject to change without notice and are non-binding. This shall also apply if share has provided the customer with catalogs, product descriptions, product and price lists, or other documents. share shall retain title and copyright thereto.
2.2 The order of share products by the customer shall be deemed a binding offer of contract. Unless otherwise specified in the order, share shall be entitled to accept the customer’s contract offer within 14 days of its receipt by share.
2.3 A purchase contract shall only be concluded upon receipt by the customer of an order confirmation sent by share in writing or by e-mail and designated as such (« Order Confirmation ») or upon delivery of the share products.
3.1 Only the share products listed in the respective valid share price lists are available for delivery. Minor deviations from the specifications regarding filling quantity, condition and quality shall remain reserved. share shall inform the customer of such deviations prior to submitting the order confirmation.
3.2 share shall generally inform the customer of the expected delivery period in the order confirmation. If a share product is not available at the time of the customer’s order, share shall also inform the customer accordingly.
3.3 The delivery period shall be agreed individually or shall be specified by share in the order confirmation. If this is not the case, the delivery period shall be approximately two (2) weeks from the conclusion of the contract. If share is unable to meet binding delivery deadlines for reasons for which share is not responsible (non-availability of the service), share shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If the service is still not available within the new delivery period, share shall be entitled to withdraw from the contract in whole or in part; share shall immediately refund any consideration already paid by the customer. A case of non-availability of the service in this sense shall be deemed to be, in particular, the failure of share’s suppliers to deliver on time, if share has entered into a congruent hedging transaction, share is not obligated to procure in the individual case, or neither share nor the supplier is at fault.
3.4 The occurrence of a delay in delivery by share shall be determined in accordance with the statutory provisions. In any case, a reminder by the customer shall be required in order to put share in default.
3.5 Serious external events that cannot be prevented even with the utmost reasonable care, in particular labor disputes, riots, armed conflicts, terrorist attacks, pandemics, epidemics, official or legal measures, and epidemics (« force majeure »), shall release share from its performance obligations for the duration of the impediment to performance, even if share is in default. This shall also apply if (i) share and the customer enter into a contract during an ongoing Force Majeure event with the expectation that the event will end or materially improve at a certain point in time, but such event continues for a longer period of time or does not materially improve, contrary to the expectation of the contracting parties, or (ii) an event ends prior to the conclusion of a contract but recurs after the conclusion of the contract (e.g. recurrence of the same epidemic or pandemic). share shall inform the customer immediately of the existence of such an impediment to performance.
4.1 Unless otherwise stated, all prices shall include packaging costs and exclude the statutory value-added tax at the applicable rate.
4.2 Invoices issued by share shall be due and payable within 14 days of receipt of the invoice, unless otherwise agreed. Upon expiration of this period, the customer shall be in default even without a reminder and shall owe default interest at the statutory rate. share reserves the right to assert further damages for default.
5.1 share shall be entitled to make partial deliveries if (i) the partial delivery is usable by the customer within the scope of the contractual intended purpose, (ii) the delivery of the remaining share products ordered is ensured, and (iii) the customer does not incur any significant additional expenses or costs as a result, unless share agrees to bear such costs. share may issue separate invoices for partial deliveries.
5.2 Delivery shall be made ex warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the customer’s request and expense, share products shall be shipped to another destination (mail-order purchase). In the case of express deliveries, express surcharges may apply. In the event of shipment, the risk of accidental loss or accidental deterioration of the share products shall pass to the customer as soon as the share products are handed over to the carrier or other person designated to carry out the shipment. This shall also apply if this person is an employee of share.
5.3 share shall generally ship share products uninsured. Insurance against damage in transit shall generally only be taken out upon written or e-mail instruction and at the expense of the customer.
5.4 If the customer is in default of acceptance, fails to cooperate, or if share’s delivery is delayed for other reasons for which the customer is responsible, share shall be entitled to demand compensation for the resulting damages, including additional expenses (e.g. storage costs). In this case, share shall charge a lump-sum compensation in the amount of 0.5 %. 0.5% of the net invoice amount of the respective order per calendar week, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the share products are ready for collection, but not exceeding a total of 10% of the net invoice amount of the respective order. This shall not affect share’s right to prove that it has suffered greater damage, nor shall it affect share’s statutory claims (in particular compensation for additional expenses, reasonable compensation, withdrawal); however, the lump-sum payment shall be credited against share’s further monetary claims. The customer shall be permitted to prove that share has incurred no damage at all or that the damage is significantly less than the aforementioned lump sum.
6.1 share shall retain title to the share products delivered to the customer (« Retained Goods ») until the customer has settled all existing and future claims arising from its business relationship with share.
6.2 The customer may neither pledge nor assign by way of security the Retained Goods. The customer shall only be authorized to sell or process the goods in the ordinary course of business.
6.3 If the legal requirements are met, share shall be entitled to withdraw from the contract and to demand the return of the delivered goods subject to retention of title on the basis of the retention of title.
6.4 In order to secure share’s existing and future claims arising from the business relationship between the customer and share, the customer hereby assigns to share as a priority its claims arising from any resale of the reserved goods up to the amount of the invoice issued by share. share accepts the assignment.
6.5 Insofar as a reservation of title exists in favor of share or claims of the customer have been assigned to share, the customer shall be obligated to provide share with the information necessary to protect share’s rights. This shall apply in particular to seizures or other access by third parties to share products or to claims assigned to share. The customer shall immediately notify share in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) have access to the products owned by share.
6.6 In addition to share, the customer shall be authorized to collect the receivables assigned to share. share shall not collect the receivables as long as the customer fulfills its contractual obligations to share, the customer’s ability to pay is not impaired, and share’s retention of title is not asserted by exercising a right pursuant to Section 6.3. However, if these conditions are met, share may demand that the customer inform share of the assigned claims and the corresponding debtors, provide all information required for collection, hand over the associated documents to share, and notify the debtors of the assignment. Furthermore, in this case share shall be entitled to revoke the customer’s authorization to further sell and process the reserved goods and to collect the assigned claims.
6.7 Insofar as the realizable value of the securities provided by the customer to share exceeds the amount of share’s claims against the customer by more than 10%, share shall, at the customer’s request, release the securities to the corresponding extent at share’s discretion.
7.1 The customer shall inspect the share products immediately upon receipt. Obvious defects or obvious deviations in quantity or incorrect deliveries shall be reported to share in writing without delay, but no later than five (5) days after receipt of the share products. Hidden defects/quantity deviations/misdeliveries shall be reported to share immediately upon discovery. If these deadlines for notification of defects are not met, the customer’s otherwise existing claims for defects shall lapse.
7.2 In the event of justified complaints, share shall, within a reasonable period of time, subsequently deliver any shortfalls or, at share’s discretion, remedy existing defects or deliver defect-free goods (collectively « subsequent performance »). The customer shall give share the time and opportunity required for the owed supplementary performance, in particular to hand over the rejected share products for inspection purposes.
7.3 If the customer has set share a reasonable deadline for subsequent performance, the customer shall be entitled to reduce the purchase price or, in the case of defects that are not merely insignificant, to withdraw from the contract after the deadline has expired unsuccessfully. The same shall apply if the subsequent performance has failed or if the setting of a deadline for subsequent performance is dispensable in accordance with the statutory provisions.
7.4 Claims of the customer for damages or reimbursement of expenses shall also exist in the case of defects only in accordance with clause 8 and shall otherwise be excluded.
7.5 In the event that share should examine, prepare, or carry out recalls of share products, the customer shall be obligated to cooperate with share.
a) For the avoidance of doubt, it is hereby stated that the customer shall be obligated to immediately notify share of any defects (Section 7.1); share shall then, if necessary, initiate a product recall. The customer shall not be entitled to initiate a product recall on its own authority.
b) In this respect, the customer shall in particular be obligated to immediately provide share with any necessary information, such as information on the time, place, and channel of resale of affected share products, in a suitable form.
c) In addition, at share’s request, the customer shall remove the affected, recalled share products from its points of sale, inform end customers as specified by share, and return to share all share products of the recalled type that are in its possession.
d) share shall collect the share products from the customer and refund the purchase price already paid for these products. Any further claims for damages to which the customer is legally entitled shall remain unaffected.
e) In the event that share decides to recall share products (e.g. due to quality defects or as a precautionary measure), share shall be entitled to refuse delivery of the affected products, even if share had already accepted the customer’s order for these products. If the customer has already paid the purchase price at that time, it shall be refunded to the customer within ten (10) business days.
8.1 share shall fulfill its contractual obligations with the due care of a prudent businessman.
8.2 share shall be liable – irrespective of the legal grounds – for intent and gross negligence in accordance with the statutory provisions. In the case of ordinary negligence, share shall only be liable for
a) for damages resulting from injury to life, limb, or health,
b) for damages arising from the breach of a material contractual obligation (an obligation whose fulfillment is a prerequisite for the proper performance of the contract and on whose fulfillment the customer regularly relies and may rely); in this case, however, share’s liability shall be limited to compensation for foreseeable, typically occurring damages.
8.3 The limitations of liability resulting from Section 8.2 shall also apply to third parties and to breaches of duty by persons for whose fault share is responsible according to statutory provisions. They shall not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the customer under the Product Liability Act.
8.4 Insofar as no liability is assumed by share in accordance with section 8.2 or 8.3, share’s liability shall be excluded.
9.1 No provision of these GCSD shall be construed expressly or impliedly as transferring any right or granting any license to intellectual property of share or third parties.
9.2 Both the customer and share shall notify the other contracting party in writing without undue delay if claims are asserted against it for infringement of third party rights, including intellectual property rights or damage to reputation, insofar as they relate to the contract. This shall apply in particular to claims by such third parties who have committed themselves to social responsibility and with whom share cooperates.
10.1 The limitation period for the customer’s claims based on defects of quality and title shall be one year from receipt of the relevant share products. )
10.2 Claims of the customer pursuant to sections 8.2 sentence 1 and sentence 2 lit. a) shall become statute-barred in accordance with the statutory provisions.
10.3 Subject to clause 10.2, the following shall apply in all other respects:
a) The limitation periods pursuant to Section 10.1 shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the share products, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would result in a shorter limitation period in individual cases.
b) Customer claims other than claims based on defects, in particular claims based on breaches of ancillary obligations, pre-contractual liability or tort, shall become statute-barred 2 years after the statutory start of the limitation period.
11.1 The customer may only offset its own claims against claims of share or assert a right of retention to the extent that the customer’s claims have been legally established or are undisputed or acknowledged by share.
11.2 Any assignment of the customer’s claims against share shall require the prior written consent of share. share shall only refuse such consent for an objective reason. § Section 354a of the German Commercial Code shall remain unaffected.
share and the customer are obligated to comply with the applicable statutory provisions for the protection of personal data when processing the contract.
share is a socially responsible company whose business philosophy is based on three pillars of sustainability (social, ecological and economic). share has set itself the goal of complying with appropriate standards throughout the entire production and supply chain of share products and pursues the Sustainable Development Goals (SDGs) of the United Nations’ Agenda 2030. Further details are set out in share’s Code of Conduct (available at https://www.sharefoods.de/share-codex). The customer is obliged to comply with share’s Code of Conduct.
14.1 share reserves the right to amend these GTCS at any time. The amended terms and conditions shall be sent to the customer, subject to a reasonable period of notice before they come into effect, and shall apply to all future contracts of any kind between share and the customer.
14.2 There shall be no verbal collateral agreements.
14.3 Should any provision of these GTCS be or become void, invalid, unenforceable or unenforceable in whole or in part, the validity and enforceability of the remaining provisions of these GTCS shall not be affected thereby.
14.4 The contractual relationship between share and the customer, these GCSD, and all rights arising from or in connection with them shall be governed exclusively by German law, to the exclusion of its international private law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
14.5 The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship between share and the customer and these GCSD shall be Berlin, Germany.
Local Court Berlin (Charlottenburg) HRB 186219