1. Applicability of our Terms and Conditions
Our Terms and Conditions of Sale are also applicable, in their latest respective version, to all subsequent transactions, without that having to be explicitly mentioned or agreed when such transactions are concluded. Our Terms and Conditions of Sale apply exclusively, unless we have explicitly agreed in writing to other terms and conditions. This principle also applies if know of other terms of business and supply goods without proviso. We hereby and expressly reject any such terms of business. All agreements concluded by and between the Customers and ourselves must be in writing to take effect. Unless otherwise agreed, these Terms and Conditions shall also apply to all future business with the Customer.
2. Offers, prices, payment, no set-off
Our offers are non-binding are subject to the proviso that we are correctly supplied in a timely manner and are subject to any official measures. Unless our confirmation of order states otherwise, net prices are “ex cold storage” or “ex warehouse” and do not include packaging unless that is standard commercial practice. Our net prices already include the rebate for transport packaging disposal costs. Prices are stated net and are subject to value-added tax (VAT) at the applicable statutory rate. Our invoices are due and payable immediately, without deductions, unless other payment terms are stated on the confirmation of order and the invoice.
Payment is not deemed effected until we have irrevocably received it. The Buyer has no right of set-off or retention of whatever kind unless the counterclaim is undisputed by us or has been established as final by a court of law. Bills and cheques shall be accepted as conditional payments only. Payments to representatives or employees of our company are valid only on condition that such persons show their authorisation to collect when payment is made.
3. Delivery terms, insurance
Any delivery date is binding on us only when it has been expressly agreed in writing. In such a case, the delivery period begins when the confirmation of order and/or the order exactly matching the offer has been sent. The delivery deadline has been met if the goods have left our plant by expiry the deadline, or if notification of our readiness to dispatch has been given. The term for delivery shall be extended by a reasonable amount if there are any unforeseen events, particularly if related to industrial disputes, and in the event of strikes or lock-outs. We are not responsible for the aforementioned circumstances, even if they arise when we are already in default. We will notify the Customer as soon as possible about when such hindrances begin and end. Compliance with the term for delivery is conditional on contractual obligations being fulfilled.
The initial weight is measured in our cold store or warehouse and checked. Any discrepancies in weights must be complained about immediately in writing on receipt of the goods and must be noted, with acknowledgement, on the waybill or on the delivery note when delivered, as long as the consignment is still complete. Unless otherwise stated on the confirmation of order, delivery ex warehouse or ex cold storage is deemed agreed.
The contract has been properly fulfilled by us even when we deliver a weight which is short or surplus by up to 10%. In the case of such short or excess weight, the Buyer has no right to additional delivery of the remaining amount or to return the surplus amount. The calculation on our invoice matches the actual amount delivered.
Partial deliveries are permissible, taking our interests into consideration, to an extent that the Customer can reasonably be expected to accept, in particular if
- the partial delivery can be used by the Customer in accordance with its contractual purpose,
- delivery of the remaining goods orders is assured and
- neither substantial extra work nor additional expense is involved for the Customer.
5. Warranty and liability for defects
The goods must be examined by the Buyer immediately after receipt for any defects. Obvious defects in the goods give rise to warranty claims pursuant to these terms and conditions only if the Buyer complains about them in writing to the Seller immediately after the goods have arrived at their destination. This rule also applies to any short or surplus amounts exceeding 10%. In the case of hidden defects, the complaint must be made as soon as they are discovered by the Buyer. The Buyer shall ensure that we can properly check whether the complaint is justified. Sections 377 and 378 the German Commercial Code (HGB) are applicable.
If the goods supplied by us are defective, we fulfil the warranty at our own discretion either by subsequent remedy or by replacement delivery. If efforts at remedy fail, the Customer may reduce the payment or withdraw from the contract, at his own discretion. However, the Customer has no right of withdrawal if there is only a minor breach of contract, in particular if there are only slight defects.
If, after failure to remedy, the Customer chooses to withdraw from the contract due to a legal or material defect, he has no additional entitlement to damages on account of the defect. If, after failure to remedy, the Customer chooses to claim damages, the goods shall remain with the Customer if this can reasonably be accepted. Damages are limited to the difference between the purchase price and the value of the defective item. This principle does not apply if we maliciously caused the breach of contract.
We are obligated to compensate for damages, regardless of legal basis, which includes default, unfeasibility, culpability at conclusion of contract, culpable breach of secondary obligations and other cases of poor defective performance and actionable tort, only if
- the damage was caused deliberately or by gross negligence, or
- we acted in material breach of contract through minor negligence.
In these cases, our liability is limited to the marketable value of the goods.
We shall not bear any liability for any indirect damages, consequential damages caused by a defect, or for lost profits, unless we have acted wilfully, the proprietor, executive employees or vicarious aids have acted in a grossly negligent manner, we have culpably committed a material breach of contract, or have caused personal injury to life, body or health. In general, we bear liability only for damage of the kind that could reasonably be expected at conclusion of contract in the circumstances known to us.
7. Retention of title
We reserve ownership of the purchased item until receipt of all payments accruing from the supply agreement. If the take back the purchased item, this does not constitute withdrawal from the contract unless we have expressly stated same in writing. After taking back the purchased item, we may sell it.
The Customer must notify us immediately and in writing of any attachment of property or other forms of seizure by third parties. The Customer lay resell the purchased item in the ordinary course of business; he hereby assigns to us all the invoiced receivables, including value-added tax, regardless of whether the purchased item is resold without or after further processing. The Customer retains the right to collect such receivables until revocation of that right; we may exercise our right of revocation if the Customer fails to render payment to us. We shall release collateral at our own discretion, on request, if its value exceeds the value of the secured receivables by more than 20%.
Any processing or transformation of the purchased item is always on our behalf. If the goods are processed or mixed with other items, we acquire co-ownership in the new item according to the ratio of values at the time of processing. If the Buyer sells the blended or mixed goods that we have co-ownership of, he hereby assigns to us his receivables from resale, to the amount corresponding to our share in co-ownership.
8. Storage of data
The Customer consents to, and has been informed that all data relating to him in connection with the business relationship, including personal data within the meaning of the Federal Data Protection Act (BDSG), are stored in our IT systems.
9. Place of jurisdiction, place of performance, governing law
If the Customer is a registered business, a legal entity under public law, or a public-law corporation, the place of jurisdiction is our domicile, although we may also sue the Customer at his place of residence. Our registered business address is the place of performance. The laws of Germany apply. If we are a Seller, the UN conventions relating to the international sale of goods (CISG) shall not apply.