General Terms and Conditions
(Rev.: March 2012)
1. General provisions
1.1 Our deliveries to entrepreneurs, legal entities under public law and special assets under public law shall take place exclusively on the basis of these General Delivery Conditions. In the course of an ongoing business relationship, this also applies to all future transactions with the ordering party. Any conditions that oppose or deviate from these General Delivery Conditions or the legal provisions shall only apply if we have expressly agreed to their applicability in writing.
1.2. Contracts are established by way of an order and our order confirmation. However, we can also accept an order without order confirmation by delivering the item to the destination. Our failure to respond shall not constitute the conclusion of a contract.
1.3. Product-related information and illustrations in our brochures, drawings and publications as well as product and packaging samples are non-binding, and are for general informational purposes only.
2. Prices, payment, Incoterms
2.1. Subject to an alternative agreement, our prices are "ex works” and do not include packaging, freight, insurance or other auxiliary costs.
2.2. The agreed prices also do not include statutory value-added tax, which is indicated separately on each invoice. The value-added tax is payable together with the invoiced amount in each case. For deliveries to other countries, all taxes, customs and other public charges that we incur for the international export must be refunded by the ordering party.
2.3. Our payment claim is payable net (in full) as soon as the invoice is received. Any banking fees and expenses are borne by the ordering party.
2.4. The ordering party only has a right of retention and an offsetting right to the extent that the counterclaims are undisputed or legally established.
2.5 In the event of a significant deterioration in the ordering party’s assets that endangers our claim after the conclusion of the contract – particularly if payment is suspended, a petition is filed to initiate insolvency proceedings for the ordering party’s assets, or such insolvency proceedings are initiated or refused due to lack of assets – we are entitled to request an advance payment or security deposit for outstanding deliveries, with a grace period, or to withdraw from the contract.
2.6 The valid Incoterms at the time of the contract’s conclusion shall apply when it comes to interpreting trade clauses.
3. Deadlines, hindrances to fulfillment
3.1. Delivery periods shall begin on the date when we confirm the order, but not until all details of the order have been fully clarified.
3.2 Deliveries are subject to timely, proper and complete deliveries from our own suppliers.
3.3. The agreed delivery deadlines are considered to have been met once the ordering party has been notified of readiness to ship, even if the delivery cannot be sent in time through no fault of our own.
3.4. If we are hindered from fulfilling our obligations due to unforeseeable events that affect us or our suppliers and/or subcontractors for a significant length of time and that we were unable to prevent even with reasonable care according to the circumstances of the case – for instance war, civil unrest, natural forces, accidents, labor disputes, arbitrary official or political acts and other operational disruptions and delays in delivering significant raw materials, ingredients or upstream products – the delivery deadlines shall be deferred by the length of the hindrance plus a reasonable lead time. If such a hindrance makes it impossible or unreasonable for us to fulfill our obligations, we can withdraw from the contract; the ordering party has the same right if it is unreasonable for it to accept delivery due to the delay.
4. Delay in delivery, default of acceptance
4.1. In the event of a delay in delivery, our liability is based on the statutory provisions under the following conditions. A defective delivery is not considered a delayed delivery. Damage compensation for the ordering party due to our delay in delivery is limited to 0.5% for each full week of the delay, up to a total of 5% of the net order value. This limitation does not apply in the event of intent or gross negligence or in the event of a culpable loss of life, bodily injury or damages to health. The ordering party can only withdraw from the contract due to a delay in delivery if we are responsible for the delay. The above regulations do not establish any change in the burden of proof.
4.2. If the ordering party is in default of acceptance or culpably violates other cooperation obligations, we are entitled to request compensation for any damages we incur as a result, including any additional expenses. Further rights are hereby reserved.
5. Transfer of risk, shipping
5.1. The delivery shall take place at the ordering party’s risk and expense. The risk of accidental destruction and accidental deterioration shall be transferred to the ordering party, including for carriage-free and partial deliveries, upon selection and notification of readiness to ship, but no later than the time when they leave our supplier facility.
5.2. If we are responsible for the transport, we are free to choose the transport method and route. The same applies to choosing the shipping company or freight forwarder.
5.3. Partial, excess or short orders are permissible as long as these are reasonable for the ordering party with consideration for common tolerances in the industry. The same applies accordingly for premature deliveries. The ordering party cannot refuse shipment or acceptance of deliveries due to insignificant defects.
6. Reservation of title
6.1. Regardless of the contractual provisions regarding the transfer of risk, ownership of the delivery item (goods subject to reservation of title) shall only be transferred to the ordering party once all of our claims from the business relationship have been fulfilled.
6.2. Before paying the price in full, the ordering party shall
6.2.1. take the goods subject to reservation of title into custody for us;
6.2.2. according to the following provisions, (i) properly secure the goods subject to reservation of title and store them separately from the ordering party’s other property and third-party property, and (ii) keep them in complete, proper condition, free from defects, particularly complying with the applicable cooling requirements.
6.3. The ordering party must treat the goods subject to reservation of title with care and shall provide adequate insurance against theft, breakage, fire, water and other damages at its own expense, at replacement value, providing evidence of this to us upon request. Purely as a precaution, the ordering party shall authorize us to pursue all compensation claims from these insurance policies. Any necessary inspections of the goods subject to reservation of title shall be performed by the ordering party at its own expense and risk.
6.4. The ordering party can sell the goods subject to reservation of title to third parties in the course of normal business operations. The ordering party is not entitled to pledge, assign by way of security or otherwise transfer or modify the goods subject to reservation of title. Any claims arising from the further sale are hereby transferred to us in advance. The ordering party is entitled to collect the claims against the third party that have been transferred to us.
6.5 In the event that the ordering party’s financial situation significantly deteriorates after conclusion of the contract, thereby endangering our claim – particularly in the event of a suspended payment, an application to initiate insolvency proceedings for the ordering party’s assets, initiation of such proceedings or refusal thereof due to lack of assets – we are entitled to revoke the authorization for further sales and for the collection of claims. The same applies if the ordering party is in default with payments.
6.6 The ordering party must immediately inform us of any threat to our property.
7. Material defects
7.1. Defect rights, with the exception of the right to subsequent fulfillment, shall not exist on the basis of insignificant material defects.
7.2. If deliveries are defective, we shall be entitled to our choice of subsequent fulfillment in the form of defect rectification or delivery of new, fault-free items. If the subsequent fulfillment fails, the ordering party is entitled to its choice of withdrawal from the contract or a reduction in price.
7.3. We are not obligated to refund transport costs that were borne by the buyer as expenses for subsequent fulfillment if these are higher because the delivery item was later delivered to a place other than the ordering party’s facility.
7.4. At our request, the ordering party must declare within a reasonable period whether it will withdraw from the contract due to a material defect, or wishes to continue delivery.
7.5. We are not liable for damages resulting from the following causes: natural deterioration of perishable delivery items; negligent or faulty handling, particularly a violation of the applicable cooling regulations; chemical, electrochemical or electrical influences that are not our responsibility; and the effects of unusual temperature or weather.
7.6. For the rest, Point 9 shall apply to damage compensation and expense reimbursement claims. Further claims and alternate claims other than those regulated in Points 7 and 9 against us and our vicarious agents due to material defects are hereby excluded.
8. Industrial property rights and defects of title
8.1. Unless otherwise agreed, we shall only be obligated to provide deliveries that are free from industrial property rights and third-party copyrights (hereinafter: industrial property rights) within the country of the delivery location. For violations of industrial property rights and other defects of title, we are liable according to Point 7.
8.2. Claims by the ordering party are excluded if the ordering party is responsible for the violation of industrial property rights or if the violation arose due to special requirements by the ordering party. In this case, the ordering party shall release us from all third-party claims against us that are based on a violation of industrial property rights.
9. Damage and expense reimbursement claims
9.1. We shall only be liable according to the statutory provisions, under the following conditions.
9.2. Damage and expense reimbursement claims (hereinafter: damage compensation claims), regardless of legal basis and particularly due to a violation of contractual obligations or unauthorized actions, are hereby excluded.
9.3. Liability for loss of use, lost sales or profits, damages from operational disruptions and financing costs as well as indirect damages and subsequent damages is hereby excluded.
9.4. The above liability limitations (Points 9.2 and 9.3) do not apply in the following cases: a) in the event of liability according to the Product Liability Act, b) in the event of intent or gross negligence, c) in the event of liability due to a culpable loss of life, injury or damages to health, d) in the event of liability due to the violation of significant contractual obligations, in other words contractual obligations that must be fulfilled in order for the contract to be properly executed and that the ordering party regularly depends upon and can reasonably depend upon. However, damage compensation for the violation of significant contractual obligations is limited to the typical, foreseeable damages for this type of contract as long as there is no intent or gross negligence, and as long as there is no liability due to a loss of life, bodily injury or damages to health, or liability according to the Product Liability Act.
9.5. The above regulations do not establish any change in the burden of proof.
9.6. If our liability is limited by this Point 9, this limitation shall also apply to the corresponding personal liability of our employees, vicarious agents and legal representatives.
10. Export permits, transfer rights
10.1. The export of the delivery items may be subject to a permit requirement, for instance due to the type of item or intended use.
10.2. We can transfer the rights and obligations from this Agreement to a third party. The transfer of our obligations shall not be valid if the ordering party objects to this in writing within four weeks of receiving a corresponding notification; this condition shall be indicated in the notification.
11. Limitation period
11.1. The limitation period for defects is one year from the start of the statutory limitation period. This shall not apply in the case of § 438 Para. 3 BGB [German Civil Code] (bad faith), 479 Para. 1 BGB (entrepreneur’s recourse) or to damage compensation claims for defects in cases of intent, gross negligence, loss of life, bodily injury and damages to health as well as liability according to the Product Liability Act. In these cases, the limitation period shall be based on the statutory provisions.
11.2. For the rest, the regular limitation period in the sense of § 195 BGB shall apply for claims by the ordering party, 18 months as of the start of the statutory limitation period. For damage compensation claims, this shall not apply in cases of intent, gross negligence, loss of life, bodily injury and damages to health as well as liability according to the Product Liability Act. In these cases, the limitation period shall be based on the statutory provisions.
11.3 We will fundamentally perform redeliveries and repairs at our own expense and without acknowledgement of a legal obligation. An acknowledgement that causes the limitation period to be reset shall only apply if we expressly declare this to the ordering party. The statutory provisions for resetting a limitation period due to an acknowledgement shall remain unaffected hereby.
12. Place of fulfillment, partial invalidity
12.1. The place of fulfillment for our delivery and for the subsequent performance is the location of our supply facility, subject to an alternate agreement. The place of fulfillment for the ordering party’s payment obligation is also the location of our supply facility.
12.2. The invalidity or partial invalidity of individual provisions shall not affect the validity of the other provisions or the contract as a whole. The same applies for loopholes.
13. Place of jurisdiction, applicable law
13.1. The exclusive place of jurisdiction for all legal disputes, including proceedings based on bills of exchange and checks, is Tönisvorst. However, we reserve the right to bring action against the ordering party at its general place of jurisdiction, at the location where the violation occurred, or at another responsible court.
13.2. All of our legal relationships with the ordering party are exclusively subject to the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).