General Terms and Conditions of Delivery
1. Scope of Application, Conclusion of Contract
1.1 Our deliveries to entrepreneurs within the meaning of Section 14 German Civil Code [Bürgerliches Gesetzbuch – "BGB"], legal entities under public law and special funds under public law are made exclusively on the basis of these General Terms and Conditions of Delivery. Within the scope of an ongoing business relationship, this shall also apply to any and all future transactions with the purchaser. Any terms and conditions to the contrary or deviating from these General Terms and Conditions of Delivery or from statutory provisions shall only apply if we have expressly agreed to their validity in writing.
1.2 A contract is concluded through an order and our order confirmation. However, we can also accept an order without an order confirmation by delivering the delivery item to the place of delivery. Our silence does not allow the purchaser to trust in the conclusion of contract.
1.3 Specifications of the delivery item and its presentation (e.g. in advertising materials) are only approximate unless its usability for the purpose set forth in the respective contract or a legal provision requires exact conformity. They do not represent guaranteed characteristics of state, but merely descriptions or designations of the delivery. Deviations which are customary in the trade and deviations which are carried out by reason of legal regulations or which represent improvements, and the replacement of components by equivalent parts are permissible, provided that they do not impair the usability for the purpose set forth in the contract.
2. Prices, Payment, Incoterms
2.1 Unless otherwise agreed, prices are "EXW" and do not include packaging, freight, insurance and other ancillary costs.
2.2 Value added tax at the applicable statutory rate shall be added to the agreed price. The value added tax is due for payment together with the amount invoiced in each case.
2.3 Our payment claim becomes due net (without deduction) immediately upon receipt of the invoice. In case of export deliveries, any and all taxes, customs duties and other public charges payable by us abroad or when exporting abroad shall be reimbursed by the purchaser.
2.4 As a matter of principle, we always send invoices by e-mail. At the purchaser's express request, the purchaser will receive an invoice in paper form.
2.5 The purchaser is only entitled to a right of retention and a right of set-off insofar as its counterclaims are undisputed or established as final and absolute, or in case the purchaser's claim originates from the same contractual relationship as our claim and is in an appropriate relationship to it.
2.6 In case, after conclusion of the contract, a significant deterioration in the financial circumstances of the purchaser becomes apparent, which places one our claims at risk, in particular any cessation of payments, an application for the opening of insolvency proceedings against the purchaser's assets or frequent enforcement measures, we are entitled to make outstanding deliveries only against provision of an appropriate advance payment or security in the event of advance performance obligations on our part. If the purchaser does not make an advance payment or does not provide a security within a reasonable period of time set for the purchaser, we are entitled – without prejudice to other rights of withdrawal and claims for compensation – to revoke the contract or to terminate it.
2.7 Standard trade terms shall be interpreted in accordance with the Incoterms in the version valid at the time when the contract is signed.
3. Dates, Impediments to Performance, Delay in Delivery
3.1 Delivery times begin on the day our order confirmation is issued, but not until all details of the order have been completely clarified. Delivery dates and deadlines shall only be binding if they are agreed in writing.
3.2 Our deliveries are subject to the timely, correct and complete delivery by our own suppliers.
3.3 The agreed delivery dates are deemed to be complied with upon announcement of the readiness for dispatch; this also applies if deliveries cannot be dispatched in due time without our fault.
3.4 In case we are prevented from fulfilling our obligations by force majeure, such as war, civil unrest, forces of nature, accidents, industrial disputes, official or political arbitrary acts as well as other operational disturbances and delays in the delivery of essential raw materials, ingredients or preliminary products of not only short-term duration in each case, the delivery dates shall be postponed by the duration of the hindrance and an appropriate start-up period. If the fulfilment of our obligations becomes impossible or unreasonable for us due to such a hindrance, we can revoke the contract; the purchaser shall have the same right if acceptance is unreasonable for the purchaser due to the delay.
3.5 In the event of a delay in delivery, our liability shall be governed by the statutory provisions in compliance with the following conditions. The purchaser's damages for delay in delivery shall be limited to 0.5% for each full week of delay, not to exceed, however, a maximum of 5% of the net order value. This limitation shall not apply if we have acted with intent or gross negligence or in the event of culpable injury to life, body or health. The purchaser may only revoke the contract on the grounds of a delay in delivery if we are responsible for the delay. The preceding provisions do not cause a modification of the burden of proof.
4. Transfer of Risk, Dispatch
4.1 Delivery is at the purchaser's risk and expense. Also, in the case of freight-paid deliveries and partial deliveries, the risk shall pass to the purchaser upon segregation and notification of readiness for dispatch, but at the latest when leaving our delivering plant.
4.2 Partial, excess or short deliveries are admissible to the extent that they are in consideration of the customary tolerance and reasonable for the purchaser. The same shall apply to early deliveries.
5. Retention of Title
5.1 Ownership of the delivery item (Reserved Goods) shall not pass to the purchaser until all of our claims arising from the business relationship have been fulfilled.
5.2 Prior to the payment of the full price, the purchaser shall (a) properly secure the Reserved Goods and store them separately from the other property of the purchaser and third parties (b) keep them free from defects in a complete and proper condition, and, in particular, observe refrigeration regulations.
5.3 The purchaser is obliged to treat the Reserved Goods with due care and to insure them against theft, fire, water, and breakage damage at its own expense. The purchaser shall carry out any and all necessary inspections of the Reserved Goods at its own expense and its own risk.
5.4 The purchaser may sell the Reserved Goods to third parties in the normal course of business. The purchaser is not entitled to pledge, transfer by way of security or otherwise transfer or change the Reserved Goods. The purchaser hereby assigns to us any and all claims arising from the resale with immediate effect. The purchaser is authorised to collect the receivables from the third party which have been assigned to us.
5.5 In the event of a significant decline in the financial circumstances of the purchaser after conclusion of the contract, which places one of our claims at risk, in particular in the event of a suspension of payments or an application for the opening of insolvency proceedings against the purchaser's assets, we are entitled to revoke the authorization to resell and to collect claims. The same shall apply in case the purchaser is in default of payment. In the cases set forth in sentence 1, we are entitled to take back the Reserved Goods, even without revoking the contract.
6. Defects of Quality
6.1 Our liability for defects shall be governed by the statutory provisions in compliance with the following conditions.
6.2 Obvious defects must be reported in writing without undue delay, but at the latest within five working days after delivery; any other defects must be reported immediately after discovery and at the latest within five working days.
6.3 Insofar as deliveries are defective at the time of the passing of risk, we are entitled, at our discretion, to subsequent performance in the form of rectification of defects or new delivery. Should the subsequent performance fail, the purchaser is entitled, at its discretion, to withdraw from the contract or to reduce the purchase price.
6.4 As a general rule, any supplementary performance by us is affected on a goodwill basis and without recognition of a legal obligation. An acknowledgement with the consequence of a recommencement of the limitation period requires our express declaration to the purchaser.
6.5 At our request, the purchaser shall notify us within a reasonable time, whether the purchaser revokes the contract or continues to insist on performance.
6.6 Any and all claims for defects for damages which have arisen for the following reasons shall be excluded: natural deterioration of perishable delivery items, negligent or incorrect treatment by the purchaser, chemical, electro-chemical or electrical influences for which we are not responsible.
6.7 The limitation period for claims and rights arising from defects in quality or title is one year from the statutory start date of the limitation period. Notwithstanding, the statutory period of prescription shall apply
a) in case of Section 438 (1) No. 1 a) BGB (a real right of a third party) and b) (right registered in the Land Register), Sections 438 (1) No. 2 (building; a thing that has been used for a building in accordance with the normal way it is used and has resulted in the defectiveness of the building), in case of recourse claims pursuant to Section 445b (1) BGB, and in case of fraudulent intent; and
b) in the event of claims for damages based on a liability due to intent or gross negligence, injury to life, limb or health, or pursuant to the Product Liability Act.
6.8 Besides, Section 7 shall apply in the event of claims for damages and reimbursement of expenses due to a defect.
7. Claims for Damages and Reimbursement of Expenses
7.1 Claims for damages and reimbursement of expenses of the purchaser, irrespective of the legal grounds, in particular on grounds of a breach of duties arising from the contractual obligation and from tortuous acts, shall be excluded.
7.2 The preceding exclusions of liability shall not apply in the event of: a) a liability under the German Product Liability Act [Produkthaftungsgesetz], b) intent or gross negligence, c) injury to life, body or health caused by culpable conduct, and d) a liability on grounds of an infringement of essential contractual obligations, i.e. such duties whose fulfilment is essential for enabling the due performance of the contract and on whose observation the purchaser habitually relies and may rely on. However, damages based on the infringement of essential contractual duties shall be limited to the foreseeable, typical damage, unless we acted with intent or gross negligence or are liable for injury to life, body or health, or under the German Product Liability Act. Section 3.5 takes precedence in case of damages caused by delay.
7.3 The preceding provisions do not cause a modification of the burden of proof.
7.4 Should our liability be limited pursuant to this Section 7, this shall also apply to the corresponding personal liability of our employees, vicarious agents, and legal representatives.
8. Export Control Regulations
8.1 We are entitled to refuse the fulfilment of our obligations under a contract with the purchaser to the exclusion of any and all claims of the purchaser against us, if and to the extent that the fulfilment of contractual obligations is prohibited or impaired by national or international foreign trade law regulations or embargoes and/or other comparable sanctions hindering the fulfilment (hereinafter "Foreign Trade Law").
8.2 If the fulfilment of our obligations under a contract is hindered by reason of Foreign Trade Law, any deadline for the fulfilment of these obligations shall be extended accordingly. The purchaser's claims for damages against us based on such delays shall be excluded if and to the extent that we are not responsible for such delays.
8.3 The purchaser is obliged to comply with any and all applicable Foreign Trade Law.
8.4 Should the fulfilment of our obligations under the Contract be prohibited or hindered by applicable national or international Foreign Trade Law for a period of (3) three months or longer, both parties are entitled to terminate or revoke the Contract without notice.
9. Place of Performance, Partial Invalidity, Place of Venue, Applicable Law
9.1 Place of performance for our deliveries and for the purchaser's obligation to pay is the place of our delivering plant, unless otherwise agreed.
9.2 The invalidity or partial invalidity of individual provisions shall not affect the validity of the remaining provisions and the contract as a whole. The same shall apply in case of gaps or omissions in the provisions of the contract.
9.3 The exclusive place of jurisdiction for any and all disputes arising from and in connection with the contractual relationship is our registered office, provided that the purchaser is a merchant. However, we reserve our right to file an action against the purchaser at the purchaser's general place of jurisdiction or any other competent court. The foregoing provisions do not apply if the law provides for an exclusive place of jurisdiction.
9.4 Any and all legal relations between us and the purchaser shall be exclusively governed by the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention of 11 November 1980 on Contracts for the International Sale of Goods (CISG).