General Terms and Conditions for the Fulfillment by Kaufland Program

0. Preamble

Kaufland e-commerce GmbH operates a sales platform on kaufland.de, other top-level domains and in mobile applications (apps) (hereinafter referred to as the “Online Marketplace”), via which it sells goods itself to consumers and also acts as an intermediary for purchase transactions from third party merchants (hereinafter referred to as “Sellers”).

Moreover, Kaufland e-commerce GmbH and/or other affiliated companies, or third-party providers, provide a large range of services related to the Online Marketplace.

Thus, any reference to “Provider”, applies to the Kaufland company, named in the program terms and conditions that apply.

1. Object of the General Terms and Conditions

1.1 These General Terms and Conditions (hereinafter: “T&Cs”) govern the use of the Fulfillment by Kaufland program made available by Kaufland e-commerce Fulfillment GmbH (hereinafter: “Provider”) .

1.2 As part of the Fulfillment by Kaufland program, the Provider offers third-party merchants (hereinafter “Sellers”) the option of using a range of logistics services for their product offers on the Online Marketplace in accordance with the provisions of these T&Cs.

1.3 Any rules that derogate from these T&Cs, other general terms and conditions or other provisions are not part of this contract and only apply if the Provider has expressly agreed to them in writing.

1.4 The rights and obligations under Kaufland’s General Terms and Conditions for Sellers (Seller T&Cs) and the provisions of the payment services agreement remain unaffected.

2. Provider’s Services

2.1 Subject to these T&Cs, the Provider offers the Seller various logistics services for the duration of this contract as part of the Fulfillment by Kaufland program. These include, in particular, services in the following areas:

2.1.1 Picking, packaging and sending orders;

2.1.2 Processing goods returns;

2.1.3 Returns management up to 12 months after date of purchase; in those cases where it appears reasonable in the interest of the Seller and/or the end customer, the Provider reserves the right to inform the Seller first and give the Seller the opportunity to contact the end customer and resolve the matter. The foregoing does not apply to returns pursuant to the end customer's statutory right of withdrawal.

2.1.4 Processing customer requests and refunds, e.g. in the case of delivery delay or cancellation of orders shipped by Kaufland (first-level support), up to 12 months after the purchase date.

2.2 Depending on the Seller's requested sales region, the services are provided from various logistics facilities. The Seller is responsible for delivering the goods to the correct logistics facility. This contract does not cover the transport of goods between the logistics facilities. The processing of goods returns and returns management is handled solely at the logistics facility to which the goods were originally delivered.

2.3 The Provider shall inform the Seller on a regular basis, but at least once a month, about the current stock at the respective locations via the seller portal.

2.4 As an ancillary service to the logistics services, the Seller’s products are managed at the Provider’s logistics facilities from Seller product offer submission through to end customer order placement. In this context, it should be noted that externals, Sellers and third parties are not granted any access to the logistic facilities, for example, for stock-taking. Nor is physical inventory included in the range of services offered by the Provider. In such instances, the Seller is free to request the return of its products, at its expense.

2.5 The Provider is entitled to involve third parties in the provision of the services or parts of the services. In particular, the Provider is free to determine the scope of services to be provided by third parties and to select any sub-service providers.

2.6 The range of services offered is limited to products sold on the Online Marketplace. As part of the Fulfilment by Kaufland programme, the regulations for the approved products of the Online marketplace apply (can be viewed here). Furthermore, information on forbidden products can normally be accessed on the Seller Portal. The Provider also reserves the right to provide separate information to the Seller on the blocking of specific products, if necessary. Also in such instances, the Seller is free to request the return of its products or to have them destroyed, at its expense. These T&Cs apply until return or disposal of the products, and, in particular, the fees stated in section 8 of these T&Cs are due for payment.

2.7 Moreover, the Fulfillment by Kaufland program solely covers processing of lawful orders. The Provider reserves the right to suspend or restrict provision of individual services, or to take other action such as cancellation of orders if it is notified of potentially fraudulent customer orders by the Online Marketplace.

3. Participation and Access

3.1 In principle, all Sellers are entitled to use the Fulfillment by Kaufland programme, that

3.1.1 have successfully completed the registration process for use of the Online Marketplace and have concluded all legally valid contracts for the use of the Online Marketplace and are active on the Online Marketplace (more information on Online Marketplace participation can be found here);

and

3.1.2 have a manufacturer, importer or authorized representative (of the manufacturer) based in the European Union and can provide the relevant contact details

and

3.1.3 are registered for VAT at the relevant logistics facility and have provided proof of this

and

3.1.4 have completed all necessary registrations in registers and have demonstrated participation in relevant systems, such as the system relating to packaging.

3.2 The Seller undertakes to provide all information required to register for the Fulfillment by Kaufland program, particularly those requested by the Provider during registration for or use of the program.

If the Provider deems that further information or documents are needed, the Seller is obliged to provide them at first request.

If the Seller does not comply with the Provider’s reasonable request, or refuses a review, the Provider reserves the right to take action pursuant to section 10 and 12 of these T&Cs or to terminate the contract pursuant to section 13. The Provider expressly reserves the right to take further legal action, in particular the assertion of recourse claims.

3.3 The Seller guarantees that the information he provides to the Provider is correct and complete.

3.4 The Seller also undertakes to keep all information provided up to date, to submit any documents required without further request if necessary and to notify the Provider of any changes to the information provided without undue delay.

3.5 If the Seller provides incorrect or incomplete information or does not keep the information up to date, the Provider is entitled to discontinue the services without notice and to terminate the contract. The provider expressly reserves the right to take further legal action, in particular to claim damages.

3.6 By completing the registration process, the Seller makes a binding offer to use the services. The Provider decides at its discretion whether or not to accept the offer. Upon activation of access to the Fulfillment by Kaufland program via e-mail by the Provider, which constitutes the acceptance of the offer, the contract on use of the Fulfillment by Kaufland program enters into effect in accordance with these T&Cs.

However, there is no entitlement to conclusion of a contract or the option of using the Fulfillment by Kaufland program.

4. General Obligations of the Seller

4.1 The Seller undertakes to acknowledge and comply with all relevant legal provisions, the rules set forth in these T&Cs, and all terms, conditions, and policies set out on the relevant accessible pages (hereinafter referred to as “Helping Pages”) with every use of the Fulfillment by Kaufland program. The Provider may alter, in particular, the terms and policies stated on the Helping Pages, if necessary. It is therefore the Seller’s responsibility to regularly visit and check such Helping Pages for the latest changes.

The Seller agrees, in particular, but not exclusively:

4.1.1 not to send any products, whose sale, storage or transport violates legal regulations (relevant legal regulations are in particular but not exclusively the legal regulations of the registered office of the Provider, the storage location, the buyer's place of residence and the delivery address), official orders, the rights of third parties, these contractual regulations or would transgress standards of public decency.

4.1.2 ensure that all products are labelled in accordance with the statutory provisions (in accordance with Section 4.1.1, that instructions for use and operation and any necessary risk warnings are available and that that they are fully marketable in the markets in which the products are sold. If this is not the case, the Provider shall be entitled to initiate measures in accordance with Sections 10 and 12 of these T&Cs and/or to terminate the contract in accordance with Section 13 of these T&Cs;

4.1.3 to ensure that the provisions of sections 6.2 and 6.4 of the Seller T&Cs relating to this contractual relationship are fulfilled prior to delivery to the logistics facility.

4.1.4 to acknowledge and comply with the terms of delivery, which can be viewed here. It is important to note in this regard, the list of forbidden products in the appendix to the terms of delivery.

4.1.5 to adhere to the stipulated quantities when delivering. Provider liability for delivering more or fewer items than the stipulated quantities is excluded. The Seller bears the costs for management of such quantities. Information on delivery quantities is always available on the seller portal. Moreover, the Provider shall only provide separate information on surplus and shortfall quantities for delivery in exceptional cases.

4.1.6 to include one sample product per EAN sent in with the delivery for the purposes of the Provider.

4.1.7 to respond without undue delay to requests from the Provider, affiliated companies and other third parties in the context of performance of the services.

4.1.7.1 Customer requests about an item or other types of requests not covered under first-level support are to be answered within a maximum of 48 hours (weekdays Monday to Friday, excluding public holidays);

4.1.7.2 Other questions on topics such as dispatches or how certain products are handled, require a response within a maximum of five working days (weekdays Monday to Friday, excluding public holidays).

4.1.7.3 With regard to enquiries about disputes with third parties, for example official complaints, reference is made to Section 10 of these T&Cs.

4.2 As described in section 4.3, the Provider is entitled, at its own discretion, to represent the Seller and take action such as order cancellation, returning or destroying products concerned at the Seller’s expense, or to take other action pursuant to section 10 and 12 of these T&Cs or to terminate the contract pursuant to section 13 of these T&Cs in the event of non-compliance with response times.

4.3 Upon conclusion of the contract, the Seller authorizes the Provider as a representative of the Seller to the customer, other Sellers, affiliated companies of the Provider and third parties and to accept or make declarations and to take action, such as canceling orders, or to take back products even after the expiry of the revocation period, at the expense of the Seller, if this is necessary for the enforcement of this contract or execution of the Fulfillment by Kaufland program.

4.4 the Seller shall be responsible for storing all documents, such as, delivery notes and other information provided by the Provider on its systems. This contract does not cover any permanent storage of such information by the Provider.

4.5 The liability of the Provider towards the Seller in the event of non-compliance with the respective obligations on the part of the Seller is excluded, unless a case of Section 9.1 exists. The Provider expressly reserves the right to take further legal action, in particular to claim damages in such cases.

5. Other Obligations of the Seller

5.1 The Seller acknowledges that the following rules are valid for use of the logistics services of the Fulfillment by Kaufland program and will ensure their application – particularly in relation to end customers –:

5.1.1 Shipments sent under the Fulfillment by Kaufland program are free of charge for end customers;

5.1.2 End customers’ old electrical appliances are taken back free of charge, regardless of the size of any warehouse location. The Provider is entitled to pass on to the Seller any costs it incurs as a result, such as for the return of the goods and for their destruction; For the sake of clarity, it is hereby agreed that the Seller is solely responsible for compliance with the relevant provisions of the Waste Electrical and Electronic Equipment (WEEE) Directive.

5.1.3 In providing the services, the Provider applies the standards of accommodating customer service. By accepting the T&Cs, the Seller authorizes the Provider to decide at its own discretion on any deadlines and grounds for complaint.

6. Responsibilities

The Seller remains responsible at all times for its own products, their sale and the use of these services. The responsibility of the Seller includes, in particular, compliance with the laws of all relevant jurisdictions, statutory regulations, tax and customs requirements and official orders in relation to the properties and sale of its products and the use of the services of the Provider.

The Provider’s responsibilities are limited to performing the services in accordance with these T&Cs and on behalf of the Seller.

If the Seller uses an uninsured shipment method (e.g. envelope) while making use of the services, the Seller acknowledges that the Provider cannot offer tracking information or an acknowledgement of receipt. Liability for loss or damage to the shipment lies solely with the seller.

7. Hazardous Goods

7.1 Hazardous goods are all regulated substances or materials that pose a risk during storage, handling or transport (in particular, reference is made to § 2 of the Hazardous Substances Ordinance and the definition anchored therein: "hazardous substance" as well as to comparable provisions in relevant statutory regulations in accordance with section 4.1.1). The risk arises either from the nature of the goods themselves, for example because they contain flammable, pressurized, corrosive or otherwise harmful substances, or because the substances and objects, due to their nature, property or condition in connection with the transport, may pose risks to public safety or order, in particular to the general public, to important common property, to human life and health, and to animals and property. Hazardous goods also include consumer goods such as laptops, smartphones, household cleaners, spray paints and cosmetics. More information on hazardous goods is available here.

7.2 The shipment of hazardous goods is prohibited, with the following exceptions. In this regard, the list of excluded products in the appendix to the delivery conditions must be observed.

The following dangerous goods may be sent in under the Fulfillment by Kaufland program in limited quantities. Cosmetic products are not subject to the chemical regulations on classification, labelling, packaging, and safety data sheets, but the handling regulations of the Hazardous Substances Ordinance still apply.

Hazardous goods that are conveyed must comply with all applicable regulations at the time the items are listed order to ensure safe and correct transport, storage, handling and labeling. Sellers are accordingly obliged to ensure that their products comply with all hazardous goods provisions, to keep themselves informed of currently relevant laws and regulations and to provide complete and correct information on the products at the time the items are listed.

By sending the stock, the Seller confirms to the Provider that the products shipped belong to the above class, that all products comply with the legal requirements and that the information provided is complete, correct and up to date.

7.3 In the event of non-compliance of the Seller with respect to:

7.3.1 classification, packaging and labeling requirements,

7.3.2 the provisions of these regulations, and

7.3.3 other legal or contractual requirements,

the Seller shall bear the consequences for any damage that may occur during the use of the program Fulfillment by Kaufland. Moreover, the Provider reserves the right to destroy the products concerned, to return them to the Seller at the Seller’s expense, or to take other action pursuant to section 10 and12 of these T&Cs or to terminate the contract pursuant to section 13 of these T&Cs.

8. Compensation and Payment Processing

8.1 The Seller shall pay the fees for use of the logistics services stated in the valid conditions overview (can be viewed here.

8.1.1 The fees essentially consist of charges for (a) fulfillment, (b) replenishment, (c) processing/managing goods returns and (d) additional services per item. See conditions overview for more information.

8.1.2 The Provider reserves the right to amend the fees at any time. The amended fees will be e-mailed to the Sellers at least 14 days before they take effect. If the Seller has not objected to application of the amended fees within 14 days, the amended fees are deemed accepted. If the Seller objects to application of the amended fees within the specified period, the Provider reserves the right to terminate the contract pursuant to section 13 of these T&Cs.

8.2 The services rendered are invoiced on a monthly basis by the Provider and are due and payable immediately.

8.2.1 Invoices are generated electronically.

8.2.2 The services rendered are normally settled through offsetting, accordingly deducting the compensation due under this contract from the amounts received in the clearing account for the Seller prior to payment to the Seller’s account. The Provider is also entitled at any time to request that the Seller transfer the compensation due to a bank account to be named by the Provider, in particular if offsetting is not possible against the available credit held by the payment service provider. The payment period in this case is seven days.

8.3 In the event of payment default or reasonable doubts about the Seller’s creditworthiness or solvency, the Provider – without prejudice to any other rights – is entitled to demand security or advance payments for outstanding services. The Provider is entitled to halt provision of the service or to block access until all outstanding invoice items have been paid in full should default occur for any reason whatsoever.

8.4 Moreover, unless otherwise agreed, the Seller revocably authorizes the Provider to debit the reference account specified in the payment services agreement by the payments to be made by the Seller when due, by means of direct debit, if the payments cannot be offset against the credit balance held by the payment service provider. Revocation of the direct debit authorization entitles the Provider to terminate the contract for cause.

8.5 The Provider is to be notified in text form (by e-mail to: fbk-support@kaufland-marketplace.com) of any objections to fees charged. The invoices are deemed approved by the Seller if no objections have been raised to them within three weeks after receipt.

9. Liability of the Provider

9.1 The Provider and its vicarious agents are liable only in the event of willful misconduct, gross negligence, culpable injury to life, limb or health, simple negligent breach of a material contractual duty (“cardinal obligation”; this refers to an obligation the fulfillment of which is a requirement for achievement of the contract’s purpose, and on the fulfillment of which the Seller can thus normally rely), in the event of a breach of a guarantee to be expressly designated as such and in the event of mandatory liability under the German Product Liability Act (Produkthaftungsgesetz) or comparable local regulations in accordance with the relevant statutory provisions (in accordance with section 4.1.1). In the event of a simple negligent breach of a cardinal obligation, liability is limited to the damage typical for the contract foreseeable at the time of contract conclusion, which the Provider must have expected at the time of contract conclusion due to the circumstances known at that time. Liability is excluded in all other respects.

9.2 Furthermore, the Provider and its vicarious agents shall not be liable for delayed provision or non-provision of services or for technical failures of the services due to reasons, events or other circumstances that are beyond the reasonable control of the Provider and its vicarious agents and for which it is therefore not responsible.

9.3 The Provider is only liable for loss of data in accordance with the above paragraphs if such loss could not have been avoided by reasonable data backup measures on the part of the Seller.

10. Provider Indemnification against Claims of Rights Infringement and Seller’s Duty of Cooperation

10.1 The Seller agrees to indemnify the Provider at first request against all claims and charges asserted by third parties or fines imposed by authorities – irrespective of the legal grounds – against the Provider for infringement of their rights or violation of the law on the basis of the offers and/or content and/or information to the provider submitted by the Seller, and for which the Seller is responsible, and/or in respect of the goods and services intended for performance of the contract. In this regard, the Seller agrees to bear the necessary costs incurred for all measures this requires, including the necessary costs incurred for the Provider’s resulting legal defense (unsuccessful or successful). This does not apply if the Seller is not responsible for such infringement of rights. The above obligation also applies in favor of the Provider’s executive bodies and employees.

10.2 The Seller also agrees, in the event of dispute with third parties, e.g. official complaints, to furnish the Provider at first request all information concerning the dispute and necessary for the defense without undue delay. The Seller also agrees to refrain from any action that is contrary to fulfillment of its duty of cooperation.

11. Data Privacy

11.1 The Provider is the controller of all customer personal data collected in connection with the Fulfillment by Kaufland program. Thus, the use of the services provided by the Sellers within the framework of the Fulfillment by Kaufland program is a third-party professional service provided by an independent responsible party. The Provider is therefore entitled to use the data collected as part of the purchase process on the Online Marketplace and transmitted by Kaufland e-commerce GmbH to the Provider, if this is necessary for performance of the contract.

11.2 The Seller is the controller of all customer personal data that is absolutely necessary to fulfill orders. Reference is made to the rules stipulated in the Seller T&Cs for more information.

12. Sanctions for Contractual Breaches

12.1 If the Seller or the Provider has a reasonable suspicion that the Seller

12.1.1 is violating the law (in accordance with section 4.1.1), such as trademark, patent or copyright regulations or common decency;

12.1.2 infringing third-party rights, such as intellectual property rights;

12.1.3 has made a product available on the market that could pose a risk to the safety or health of persons or other property and/or does not comply with regulatory requirements, in particular under relevant European legislation in conjunction with harmonized standards;

12.1.4 is disregarding contractual obligations;

or a similar circumstance develops,

12.2 the Provider, at its own discretion, can react as listed here – at least until the facts of the case have been fully clarified, but also beyond that if necessary - taking into account the legitimate interests of the Seller concerned:

12.2.1 the Provider warns the Seller;

12.2.2 the Provider refuses to accept the products sent;

12.2.3 the Provider returns the products concerned to the Seller at the Seller’s expense or destroys them;

12.2.4 the Provider stops the shipment;

12.2.5 the Provider blocks the stock of Seller;

12.2.6 the Provider instructs the Online Marketplace operator to hide the Seller;

12.2.7 the Provider instructs the Online Marketplace operator to remove the offers or content posted by the Seller;

12.2.8 the Provider restricts the Seller’s rights to use the services offered in these T&Cs;

12.2.9 the Provider terminates the contractual relationship and definitively blocks the Seller from using the Fulfillment by Kaufland program.

12.2.10 the Provider informs the manufacturer and/or the relevant authorities.

The order of the actions listed does not imply any prioritization and consequently does not bind the Provider to take action in a certain sequence.

12.3 If there is a legitimate interest in so doing, the Provider is also entitled at any time to assert a right of retention to a portion of the Seller’s credit balance for a period of at least 90 days or until the matter has been fully resolved.

12.4 Monetary claims under this section constituted damages.

12.5 The liability of the Provider for any consequences resulting from the implementation of measures in accordance with this Section 12 is excluded.

13. Term and Termination

13.1 The contract on participation in the Fulfillment by Kaufland program is concluded for an indefinite period.

13.2 The Seller is entitled to terminate the contract with a notice period of 14 days. The Provider is entitled to terminate the contract without cause at any time giving 30 days’ notice.

13.3 The validity of contracts on the use of the Online Marketplace – if concluded – and of other related contracts, such as the payment services agreement, remains unaffected. In the event of regular termination by the Seller or the Provider, the other providers of the Online Marketplace-related services, such as the payment service provider, are also entitled to terminate the respective contractual relationships.

13.4 Purchase agreements already concluded by the termination date must still be fully performed and settled (including complaints processing). The provisions of this contract continue to be valid for such purchase agreements until final settlement. The Provider shall return any of the Seller’s remaining warehouse stock to the Seller at the Seller’s expense or destroy it within a reasonable amount of time after termination.

13.5 The Provider is entitled to assert a right of retention to a portion of the Seller’s credit balance until all open orders have been settled in full. The Provider shall send the relevant information on the amount to be withheld from the Seller by the Provider.

13.6 The right of the Provider to terminate the contract for cause remains unaffected. The Provider can terminate the contract on participation in the Fulfillment by Kaufland program without notice, in particular, if:

13.6.1 the Seller provides incorrect or incomplete information when registering pursuant to section 3 of these T&Cs;

13.6.2 the Seller revokes its direct debit authorization to the payment service provider;

13.6.3 in the event of amendment of the T&Cs, the Seller objects to the validity of the new T&Cs within the period specified;

13.6.4 the Seller violates these T&Cs, the rules set out in the Help pages, the rights of third parties, the law or common decency;

13.6.5 the Seller breaches other contractual obligations and does not refrain from breach of obligation even after the first request by the Provider to do so.

13.7 If the Provider has terminated the contract, the Seller has no claim to the establishment of a new contractual relationship, not even under a different name or other description.

13.8 Any termination must be made in text form.

14. Contact and Communication

If the Seller has questions or complaints about the Fulfillment by Kaufland program, they can contact Online Marketplace Seller support at the following e-mail address or phone number at any time: E-Mail: fbk-support@kaufland-marketplace.com Phone: +49 221 / 20 29 07 77 (hotline Mon. - Fri. 8:00 a.m. - 6:00 p.m. CET))

15. Complaints Management and Mediation

In this regard, reference is made to the rules stipulated in the Seller T&Cs.

16. Final Provisions

16.1 The Provider reserves the right to amend, discontinue or restrict these T&Cs, the structure and design of the services, individual processes or warehouse capacities per Seller at any time without stating any reasons.

16.1.1 Amendments to the T&Cs will be sent to the Seller at least 15 days prior to their scheduled effective date. If the Seller has not objected to the validity of the new T&Cs within 15 days of receipt of the e-mail, the amended T&Cs are deemed accepted. In the e-mail on the amendments to the T&Cs, the Provider shall specifically indicate to the Seller the importance of this deadline, the right to object and the legal consequences of remaining silent. The mechanism for amendments does not apply to amendments to the primary contractual obligations. If the Seller objects to the validity of the amended T&Cs within the specified period, the Provider reserves the right to terminate the contract on provision of services for the Fulfillment by Kaufland program pursuant to section 13 of these T&Cs.

16.1.2 Notice of any potential amendments above and beyond the foregoing shall only be given if absolutely necessary.

16.2 The Seller may only set off against claims that are undisputed or legally effective.

16.3 The Seller is only entitled to assign the rights and obligations arising from this contract with the Provider’s advance written consent.

16.3.1 The Provider is entitled to assign some or all of the rights and obligations arising from this contract/the existing business relationship to third parties. The Provider shall inform the Seller of this in text form two weeks prior to the intended assignment. The assignment shall be deemed approved if the contracting party does not object in text form within two weeks of receipt of notification.

16.3.2 The Provider is also entitled to assign the contract concluded on the basis of these T&Cs to its legal successors in the event of a partial or complete transfer of the services business to a third party. Consent may only be refused if there are serious doubts as to the technical and/or economic capacity of the successor. The Seller’s consent is not required if the services business is transferred to an affiliated Schwarz Group company.

16.4 The laws of the Federal Republic of Germany apply, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

16.5 If the Seller has no general place of jurisdiction in Germany or is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch - HGB), the place of jurisdiction for all legal disputes is 70327 Stuttgart. The Provider is also entitled to take legal action at the Seller’s general place of jurisdiction.

16.6 If individual provisions of this contract are legally ineffective in full or in part, or subsequently become ineffective, this shall not affect the validity of the T&Cs otherwise. The invalid provisions shall be replaced by legally valid provisions. The same applies to any gaps or omissions in the T&Cs that were not intended.

16.7 In the event of discrepancies between the German version and a translation, the German version takes precedence.