General Terms and Conditions, Delivery Terms and Terms of Payment of the Intergusto GmbH
Status as of July 1st 2012
| § 1 General Terms and Conditions | |||
| (1) | The following General Terms and Conditions, Delivery Terms and Terms of Payment apply to all present and future business transactions and partnerships. We hereby expressly object to any deviating general Terms and Conditions as well as Purchasing Conditions of the Customer. They shall only become binding if expressly agreed to by us in writing. This approval requirement shall apply in any case, for example also if with the knowledge of the General Business Terms of the Buyer, we carry out the delivery to him without reservation. | ||
| (2) | Previous agreements shall not apply, should they conflict these Term and Conditions. Individual agreements reached with the Buyer on an individual basis (including side agreements, additions and amendments) shall take priority over these conditions. The content of such agreements shall be documented in a written contract or written confirmation | ||
| (3) | Legally relevant declarations and notifications, which shall be submitted to us by the Buyer after conclusion of the contract (e.g. deadlines, notifications of defects, declaration of cancellation or reduction), shall be invalid unless made in writing. | ||
| (4) | If any part of this agreement becomes ineffective, the validity of the remaining content shall remain intact. | ||
| (5) | The Buyer may not assign any claims arising from transactions with us without our prior written approval. | ||
| § 2 Offers and Orders | |||
| (1) | The order signed by the Buyer is a binding offer. | ||
| (2) | We shall have the right to accept this offer within two weeks by either sending an order confirmation or delivering the merchandise ordered. | ||
| (3) | All offers by the Vendor are subject to change, in particular in regards to quantity, quality, price and delivery time. Offers or orders of the Buyer shall be deemed to be accepted by us only upon written consent. Verbal agreements of any type must be in written form in order to be legally valid; | ||
| (4) | All information about our products solely serve as descriptions. They are no guarantee unless the guarantee is given in written from. | ||
| § 3 Prices, Quantities, Weights | |||
| (1) | Value added tax at the statutory rate is not included in the prices; it is shown in invoices as a separate item at the rate in force on the day of issue of the invoice. | ||
| (2) | We reserve the right to change the purchase price, should reductions or increases in price occur after the conclusion of the contract, particularly due to modified circumstances or legal norms or modified import duties. Taxes, expenses and other dues or costs that occur or increase after conclusion of the contract and are due to legislative amendments or official and legal measures, are always at the expense of the Buyer. | ||
| (3) | Purchase price calculations are subject to the weight of the product as determined upon loading. For imported goods, the weight calculated by the shipping company determines the price. | ||
| (4) | Standard decrease in weight that occurs during transport, is always at the expense of the Buyer. | ||
| (5) | We shall be entitled to supply 10 % more or less than the amount agreed upon. | ||
| § 4 Insurance | |||
| (1) |
Unless otherwise stated in the order confirmation, our delivery shall be ‘ex warehouse’. Delivery of the products shall be executed without insurance and at the Buyer’s risk. The Buyer shall pay for the cost of carriage ex warehouse and if requested by the Buyer the cost for insured delivery. The same applies if the products are sold ‘cif’ (cost insurance freight), so that all damage, weight decrease and loss that occurs during transport is at the expense of the Buyer. |
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| (2) | Transport insurance will only be provided upon request. Any costs that result from the insurance are solely at the expense of the Buyer. | ||
| (3) | The clause ‚free at destination‘ or ‘free domicile’ only refers to the assumption of freight costs on pur part and does not include the transport risk. | ||
| § 5 Empties | |||
| The Buyer shall be obligated to return empties such as Euro stacking containers, pallets and eurohooks of the same type, in the same amount and of the same value as he received them. They must be in satisfactory hygiene condition. Should the Buyer not be able to return the items at the time of delivery of the goods, he shall be obligated to settle the empties account immediately and at is own expense. | |||
| § 6 Delivery, Delivery Time | |||
| (1) |
Our obligation to deliver shall at all times be subject to timely and orderly delivery by our own suppliers. We are entitled to make partial deliveries. |
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| (2) | Delivery deadlines or delivery periods or unloading times are in principle regarded as non-binding, unless the order confirmation states otherwise. | ||
| (3) |
Keeping our obligation to deliver assumes that the Buyer fulfills all his obligations in due time and manner. Plea of unfulfilled contract shall remain reserved. |
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| (4) | The selection of the transport route and place as well as the means of transport shall, in the absence of any written arrangement, be dictated by us and our best discretion. We do not assume liability for selecting the most affordable or quickest transport. | ||
| (5) |
Should the Buyer provide the means of transport, he is responsible for the punctual provision of the same. We shall be notified of any possible delays in a timely fashion. The Buyer shall bear any occurring costs. |
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| (6) | Should the Buyer default of acceptance or if he culpably breaches other duties of cooperation we shall be entitled to demand compensation for the damages suffered. The right to make any further demands shall be reserved. | ||
| (7) | In this case, the risk of accidental loss or of accidental degradation of the item purchased transfers to the Buyer as soon as the item leaves the warehouse. This is also the case if we execute the transport upon request of the Buyer or have it transported. | ||
| (8) | In the event that we are unable to keep delivery deadlines, due to reasons we are not responsible for (force majeure, non-availability of the service) we shall inform the Buyer hereof immediately and at the same time inform him of the expected, new delivery deadline. If the service is still not available within the new delivery deadline we shall be entitled to withdraw from the contract in full or in part; we will reimburse the Buyer for any considerations already paid, immediately. Deemed as case of non-availability of the service within this meaning is in particular a delayed delivery on the part of our suppliers if we have concluded a congruent hedging transaction and neither the supplier nor we are responsible for the delay or we are not required to deliver in unique cases. | ||
| (9) |
Whenever any late delivery is the result of a breach of an essential contractual obligation, for which we are at fault, the Buyer is entitled to withdraw from the contract after an appropriate grace period of at least two weeks, in which time the Buyer gave us the opportunity to provide the service or deliver the goods. Should partial shipments have been delivered, the withdrawal of the contract is only valid for the goods which were not delivered. Additional claims such as compensation are defined in § 9. |
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| (10) | Unexpected events that cannot be foreseen (e.g. energy shortages, damages stemming from our suppliers, import difficulties, operational and transport disruptions, strikes, lock-outs, official directives or force majeur) allow us to extend the delivery deadlines appropriately and relieve us of any delivery obligation for the time of the obstruction. We shall be obligated to inform the Buyer of any such events as well as inform them about the duration of the problem to the best of our knowledge. Should we at that point still not be able to deliver, we are entitled to withdraw from the contract. This does not entitle the Buyer to make any kind of claim, including a claim for compensation. In the event of a withdrawal from the contract we shall be obligated to reimburse the Buyer immediately for any amounts already paid. | ||
| § 7 Quality, Marking | |||
| (1) | The products supplied by us are subject to custom and usance, unless the contrary was explicitly agreed to in writing. | ||
| (2) | The goods shall not be deemed as packaged and marked in accordance with food labeling laws for the end consumer. The rules of the Food Labeling Regulation shall be obliged. | ||
| § 8 Notice of Defect and Warranty | |||
| (1) | The Buyer shall be obligated to conduct the following actions immediately upon receiving the goods at the stipulated point of destination or, in cases of pickup by the Buyer: | ||
| a) | check quantities, weight and packaging and record any objections thereto on the delivery note or consignment note of the cold storage warehouse and | ||
| b) | conduct quality checks representatively on a spot check basis and, for such purpose, open the packaging (cartons, bags, tins, foils etc) and check the shape, smell and taste of the goods itself provided that frozen goods shall be thawed at least on a spot check basis. | ||
| (2) | In case of deficiencies the following formalities and deadlines shall be observed: | ||
| a) | The claim shall be made by the end of the working day, following the delivery of the goods to the agreed upon location or the acceptance of the goods. In the event of hidden defects which, despite a first inspection in accordance with subsection 1 b) have remained unidentified at first, the following shall apply: The complaint shall be submitted by the end of the following working day, however at the latest within two weeks after delivery of the products or their acceptance. | ||
| b) | The detailed complaint shall be submitted to us within the timeframe stated, either in writing, by telegraph, telex or fax. Any other type of complaint shall not be taken into account. Complaints to sales agents, agents or intermediaries are irrelevant. | ||
| c) | The complaint shall clearly state the type and extend of the deficiency. | ||
| d) |
The Buyer shall be obligated to keep the rejected products ready for inspection at the site of examination so that we, our suppliers or experts appointed by us may inspect them. In the case of rejected products the Buyer shall be obligated to store frozen goods at a temperature of at least -22°C and fresh goods at of temperate of at least -1° to +1°. We shall have the right to request proof that the cold chain was never interrupted. |
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| (3) |
No objections regarding quantity or packaging of the goods shall be possible, provided that the note on the delivery ticket/freight bill or counterfoil as required pursuant to subparagraph 1(a) above is missing. If the Buyer fails to carry out the proper inspection and/or report of defects our liability for the unreported defect is excluded. In the event of a complaint regarding weight, only weights per carton can be accepted, weight lists cannot be accepted. The Buyer shall provide proof of a difference in weight by providing a weight list per carton. In addition, any complaint shall be excluded as soon as the delivered goods are combined, redistributed, resold or processed in any way. Objections which have not been raised in accordance with the procedures and deadlines set out above, shall be regarded as approved and accepted according to § 377 HGB. |
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| (4) | Insofar as the product is defective, the Buyer shall be entitled to a supplementary performance either in the form of remedial action or the delivery of a new, properly functioning product. This decision lies with us. In case of an elimination of defects, we shall be obliged to bear all expenses particularly for transport, travel, labor and material, as long as they will not be increased by the fact that the merchandise was transported by the Buyer. This obligation shall only be effective if there is an actual defect. However, should a Buyer’s demand for replacement be proven unjustified, we can demand the incurred costs be reimbursed by the Buyer. | |
| (5) | We shall be entitled to make the owed subsequent performance dependent on the fact that the Buyer pays the due purchase price. The Buyer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect. | |
| (6) | If subsequent fulfillment fails, the buyer is entitled to demand withdrawal or reduction of the purchase price. | |
| (7) | The Buyer shall be entitled to claim compensation or reimbursement of expenses incurred in vain only as provided in § 9 otherwise such claims shall be excluded. | |
| § 9 Joint Liability | ||
| (1) | Unless stated otherwise in these Terms and Conditions and the following provisions, we shall be liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual duties | |
| (2) | We shall be liable for compensation - on any legal ground in cases of premeditation or grave negligence. In cases of minor negligence we are only liable: | |
| a | for damages resulting from the destruction of life, personal injury or health damages, | |
| b | for damages from the breach of an essential contractual duty (obligation) the satisfaction of which only enables the proper execution of the contract possible and the observance of which the contractual partners regularly rely upon; in this case our liability is however limited to the reimbursement of the foreseeable, typically occurring damages. | |
| (3) | The liability restrictions which can be derived from Par. 2 shall not apply insofar as we have maliciously failed to disclose a defect or have assumed a guaranty for the condition of the delivery item. The same shall apply for claims on the part of the Buyer according to the Product Liability Act. | |
| (4) |
The Buyer can only withdraw from the contract because of a breach of duty not based on a product defect if the circumstances justify that we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise the statutory requirements and legal consequences shall apply |
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| (5) | To the extent that liability has been limited in accordance with the aforementioned provisions this shall also be applied in case of our employees, legal representatives and vicarious agents. | |
| § 10 Limitations | ||
| (1) | Deviating from § 438 Paragraph 1 No. 3 BGB the general limitation period for warranty claims shall be one year from delivery of goods. | |
| (2) | The above-mentioned limitation period shall also apply to the Buyer's contractual and extracontractual compensation which are attributable to a defect of the goods except if the use of the standard legal limitation period (§§ 195, 199 BGB) would result in a shorter limitation period in that individual case. The limitations of the Product Liability Act remain unaffected. Otherwise any claims for damages by the Buyer under § 9 shall be governed exclusively by the statutory limitations. | |
| § 11 Payment, delayed payment | ||
| (1) | Unless not otherwise provided in the confirmation of order, the net sales price (without deduction) shall be due for payment with the receipt of the invoice. The statutory rules concerning the consequences of default of payment apply. | |
| (2) | Should the payment deadline be exceeded, while simultaneously reserving the right to assert further damage interest will be charged in the amount of 8% above the respective basic interest rate of the European Central Bank without further proof or overdue notice. In the case of delayed payment, we shall be entitled to claim a fee of 5 euros for every payment reminder. | |
| (3) | Bills of exchange and cheques will only be accepted as means of payment and count as payment only when they have been cleared. We reserve the right to refuse payments with bills of exchange without giving reasons. The Buyer shall bear all incurring costs. | |
| (4) | The Buyer shall only be entitled to offset amounts of payment if his counterclaims have been stated legally binding, undisputed or recognized by our company. Offsets of payment shall be in writing and shall be signed by both parties and are therefore only valid upon mutual consent. Moreover, the Buyer is authorized to exercise a right of retention only in so far as his counterclaim rests on the same contractual relationship. | |
| (5) |
The Vendor shall be entitled, irrespectively of any contrary terms and conditions of the Buyer, to assign any payments first of all to any previous debts. If costs and interest have already occurred, we are entitled to first credit the payment to the costs, then to the interest and finally against the main account. |
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| (6) |
In the event that Buyer is in default or has suspended payment or if any personal or economic circumstances relevant to the deferment have undergone major changes, we are entitled to require advanced payments or securities due to claims stemming from this contract or any other contracts in addition to all our other rights. In addition to that we shall be entitled to withdraw from any contract with the Buyer at any time, either partially or completely. |
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| § 12 Title Retention | ||
| (1) | Until payments of all our current and future claims stemming from the purchase contract are made in full, (including secured claims) we shall claim the ownership of all goods and products. The Buyer shall be obligated to insure the goods and products appropriately against fire and water damage as well as theft. | |
| (2) | Goods for which ownership is reserved can neither be pledged nor assigned by way of security to third parties until they are paid for in full. The Buyer shall inform us immediately in writing if and insofar as there is any access of third parties to the goods which belong to us. | |
| (3) |
If the purchaser acts in breach of contract, particularly in the event of default in payment, we shall be entitled to withdrawal according to the statutory provisions of the law and/or demand that the goods be returned on the basis of the reservation of title and to resell them. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal. We shall rather be entitled to claim the return of the goods and to reserve the right of cancellation. If the Buyer does not pay the purchase price due, we may assert these rights only if we have first set an appropriate deadline for the Buyer or if setting a deadline may be dispensed, according to the provisions of law. |
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| (4) |
The Buyer shall be entitled to sell the goods under reservation of title within accepted business practices. In this case the following provisions shall apply in addition. |
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| a) | The retention of title shall also cover the products which are produced by processing, mixing or combination of our goods at their full value, we shall remain the producer. Should the rights of third parties during the processing, mixing or combination of goods exist, we shall acquire co-ownership in such processed goods in proportion to the invoice value. These products and goods, shall be treated in the same manner as reserved goods. | |
| b) | The Buyer hereby assigns to us by way of security all claims resulting from the resale of the goods or in the amount of our possible co-ownership share, against third parties. We accept the assignment. The obligations of the Buyer stated in Par. 2 shall also apply in view of the assigned claims. | |
| c) |
The customer remains authorized to collect the debt following the assignment. We undertake nothing to demand the claims as long as the Buyer fulfils his payment obligations to us, no application is made for opening insolvency proceedings, and there is no other deficiency in the Buyer's performance capacity and solvency. Should this be the case, however, we may demand that the customer discloses the assigned claims to us and their debtors, that he furnishes all necessary information the related documents and advises the debtors (third parties) of the assignment. |
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| d) | Should the realizable value of the securities exceed the aggregate of the Supplier's claims which are to be secured by more than 10%, we shall upon request of the Buyer release collateral items at our choice. | |
| e) | The Buyer shall be obligated to tell the Seller all co-owners of the reserved items including their names, address as well as their particular share, immediately upon request. | |
| § 13 Place of Performance, Jurisdiction, Miscellaneous | ||
| (1) | Our registered place of business is the sole place of jurisdiction. We shall however have the right to sue the Buyer at the court of his residential address. | |
| (2) | The law of the Federal Republic of Germany has validity with the exclusion of Uniform International Law, particularly UN commercial law. The pre-requisites and effects of the reservation of title according to §12 shall be governed by the law in force at the place where the goods are stored if, under that law, a choice of law made in favor of German law is not permitted or is void. | |
| (3) | Unless stated otherwise in our purchase order, our business location is the place of fulfillment. | |
| (4) | The invalidity of individual regulations of the general terms and conditions does not result in the invalidity of the remaining regulations. Ineffective provisions shall be deemed replaced by such effective stipulations that are eligible to fulfill the economic purposes of the eliminated regulations. | |