I. General information
1) The following terms and conditions form an integral part of the contract concluded with us.
2) Our General Terms and Conditions of Sale apply in their latest version to all subsequent transactions, without this having to be expressly mentioned or agreed upon at the time of conclusion.
3) We hereby reject any counter-confirmations by the buyer with reference to their terms and conditions; any deviating terms and conditions of the buyer shall only apply if confirmed by us in writing. The buyer shall be liable for any damage incurred by us as a result of their failure to comply with these terms and conditions.
4) The purchaser may only assign claims arising from legal transactions concluded with us with our express consent.
II. Offers, orders
1) Our offers are always subject to change, particularly with regard to quantity, price and delivery time.
2) Orders placed by the buyer shall only be deemed accepted once we have confirmed them in writing. If we do not specifically confirm a contract concluded verbally or by telephone in writing or by telephone, the invoice issued by us shall be deemed confirmation.
III. Prices, weights
1) Our prices are exclusive of the value added tax applicable at the time of delivery.
2) If, between the conclusion of the contract and delivery, additional or increased public charges arise due to changes in legal regulations – in particular customs duties, levies, currency adjustments – we shall be entitled to increase the agreed purchase price accordingly.
3) The weight determined at the time of loading is decisive for our purchase price calculation. Normal weight loss during transport shall be borne solely by the buyer.
IV. Quantity, quality, labelling
1) We are always entitled to deliver up to 10% more or less than agreed.
2) The quality of the goods is based on commercial practice, unless otherwise agreed in individual cases, for example, if the goods are purchased ‘after inspection’ or ‘as sampled’.
3) The goods are not considered to be packaged and labelled for the end consumer within the meaning of
the Food Labelling Regulation.
V. Shipping, delivery
1) The goods are always transported uninsured and in any case at the buyer’s risk. This also applies to carriage paid deliveries and regardless of the means of transport used. Transport insurance will only be taken out at the express request of the buyer, and any costs incurred as a result shall be borne solely by the buyer.
2) In the absence of a written agreement to the contrary, the choice of shipping location, transport route and means of transport shall be made by us at our discretion without assuming any liability for the cheapest and fastest transport.
3) If the buyer is responsible for providing the means of transport, they are responsible for ensuring that it is available on time. We must be notified of any delays in good time, and the buyer shall bear any costs incurred as a result.
4) We are entitled to make reasonable partial deliveries.
5) Our delivery obligation is subject to timely and proper delivery to us.
6) The specification of delivery or unloading times is always non-binding, unless expressly agreed otherwise in writing. The customer shall bear all costs and expenses arising from delays in delivery or unloading due to circumstances for which the supplier is not responsible.
7) Delivery obstacles due to force majeure or unforeseen events for which we are not responsible – this also includes operational disruptions, strikes, lockouts, official orders, subsequent loss of export or import opportunities, and our own delivery reservation in accordance with section 5 above) – release us from our obligation to adhere to agreed delivery or unloading times for the duration and to the extent of their impact. They also entitle us to withdraw from the contract without the purchaser being entitled to compensation or other claims.
8) If – without there being any impediment to delivery in accordance with clause 7) above – an agreed delivery or unloading time is exceeded, the purchaser must grant us a reasonable grace period of at least two weeks in writing. If we are also culpably unable to meet this grace period, the purchaser shall be entitled to withdraw from the contract, but not to assert claims for damages due to non-performance or delay, unless we are guilty of intent or gross negligence.
VI. Obligation to inspect and give notice of defects
1) The buyer is obliged to inspect the goods immediately upon delivery to the agreed destination or, in the case of collection by the buyer, upon receipt
a)
to examine the goods in terms of quantity, weight and packaging and to note any complaints on the delivery note or consignment note or on the cold store’s receipt/removal note;
b)
to carry out quality checks, at least on a random basis, opening the packaging (cartons, bags, tins, foil, etc.) to an appropriate extent and checking the goods themselves for external condition, smell and taste, whereby frozen goods must be thawed at least on a random basis.
2) When reporting any defects, the buyer must observe the following forms and deadlines:
a)
The complaint must be made by the end of the working day following delivery of the goods to the agreed destination or their acceptance. In the case of a complaint about a hidden defect that initially remained undetected despite proper initial inspection in accordance with clause 1b) above, the following shall apply: The complaint must be made by the end of the working day following the discovery, but no later than two weeks after delivery of the goods or their acceptance.
b)
The complaint must reach us within the aforementioned time limits in writing, by telegram or by telex. A complaint made by telephone is not sufficient. A complaint regarding defects is also ineffective if it is made only to a representative, broker or agent.
c)
The buyer is obliged to keep the goods complained of available at the place of inspection for examination by us, our supplier, or experts appointed by us.
3) Complaints relating to the quantity or packaging of the goods are excluded if the note required under the above clause 1(a) is missing from the delivery note, consignment note or receipt. Furthermore, any complaint is excluded once the buyer has mixed the delivered goods, forwarded them, or begun their use or processing.
4) Goods not complained about in the proper form and within the prescribed time limits shall be deemed to have been accepted.
VII. Warranty, Limitation of Liability
1) In the case of complaints submitted in the proper form and within the prescribed time limits and which are also substantively justified, the buyer shall have the right to request a reduction in the purchase price, without prejudice to our right to take back the goods complained of instead.
2) The buyer shall have no further rights or claims. In particular, we shall not be liable to the buyer for damages due to non-performance or defective performance, unless the goods supplied by us lack a guaranteed characteristic or there is intent or gross negligence on our part.
VIII. Payment
1) Our claims for the purchase price are generally payable net cash without any deduction immediately upon receipt of the invoice, unless a different payment term has been agreed in writing.
2) Bills of exchange or cheques are accepted only on the basis of a special agreement and always on account of payment only. Discount charges and bill charges shall be borne by the buyer and are payable immediately.
3) If the invoice amount is not settled within no more than ten calendar days from the invoice date or by any other agreed due date, we shall be entitled to charge default interest in the proven amount, but at least 5% above the base rate or, after 31 December 2001, the applicable key interest rate of the European Central Bank of equivalent function, without the need for a separate reminder.
4) If the buyer no longer conducts business in the ordinary course, in particular if attachments are levied against him, a cheque or bill protest occurs, payment difficulties arise or payments are suspended, or if judicial or extrajudicial composition proceedings or insolvency proceedings concerning him are applied for, we shall be entitled to declare all our claims arising from the business relationship immediately due and payable, even if we have accepted bills of exchange or cheques. The same shall apply if the buyer falls into arrears with payments to us or if other circumstances become known that cast doubt on his creditworthiness. In such cases, we shall also be entitled to demand advance payment or security or to withdraw from the contract.
5) The buyer shall be entitled to set-off, retention, or reduction only if the counterclaims asserted by him have been legally established by a final court decision or acknowledged by us.
IX. Retention of Title
1) The goods supplied by us shall remain our property until the buyer has settled all our claims arising from the business relationship – including balance claims from current account – in particular, until all cheques issued by him and bills of exchange accepted by him have been honoured.
2) The buyer is entitled to resell the goods supplied by us. However, this does not apply if the buyer no longer conducts business in the ordinary course (see above VIII.4). Furthermore, we are entitled to revoke the buyer’s resale authorisation if he defaults on his obligations to us, in particular on his payments, or if other circumstances become known that cast doubt on his creditworthiness.
3) The above clause 2) shall apply correspondingly to the buyer’s right to process the goods supplied by us. The processing does not confer ownership of the fully or partially manufactured items to the buyer; processing is carried out free of charge exclusively for us as the manufacturer within the meaning of § 950 BGB. Should our retention of title nevertheless be extinguished under any circumstances, the buyer and we hereby agree that ownership of the items shall pass to us upon processing, we shall accept the transfer, and the buyer shall remain the gratuitous custodian of the items.
4) If our reserved goods are processed or inseparably mixed with goods belonging to third parties, we shall acquire co-ownership of the new items or the mixed stock. The extent of this co-ownership shall be determined by the ratio of the invoice value of the goods supplied by us to the invoice value of the other goods.
5) Goods in which we acquire ownership or co-ownership pursuant to clauses 3) and 4) shall be regarded as reserved goods in the same way as the goods delivered under retention of title pursuant to clause 1).
6) The buyer hereby assigns to us all claims arising from the resale of reserved goods. We hereby accept this assignment. If the reserved goods are a processed product or a mixed stock containing, in addition to goods supplied by us, only items that either belonged to the buyer or were delivered to him by third parties under simple retention of title, the buyer shall assign the entire claim from the resale of the goods to us. In other cases, i.e., where prior assignments to us and other suppliers coincide, we shall be entitled to a proportionate share of the claim from the resale, corresponding to the ratio of the invoice value of our goods to the invoice value of the other processed or mixed goods.
7) To the extent that our claims are unequivocally secured by the assignments stated above to more than 120%, any surplus shall be released at the buyer’s request at our discretion.
8) The buyer is authorised to collect the receivables from the resale of the goods. This authorisation ceases if the buyer no longer conducts business in the ordinary course (see VIII.4). Furthermore, we may revoke the buyer’s collection authorisation if he defaults on his obligations to us, in particular on payments, or if other circumstances become known that cast doubt on his creditworthiness. If the collection authorisation ceases or is revoked by us, the buyer shall immediately provide us, upon request, with the details of the debtors of the assigned claims and the information and documents necessary for collection.
9) In the event of third-party access to our reserved goods, the buyer shall indicate our ownership and notify us immediately. The costs of any intervention shall be borne by the buyer.
10) In the event of a breach of contract, in particular payment default, the buyer is obliged to surrender to us, upon first request, any reserved goods still in his possession and to assign to us any claims he may have against third parties for the return of reserved goods. The repossession and attachment of reserved goods by us shall not constitute a withdrawal from the contract.
X. Empty Containers / Packaging
The buyer is obliged to return empty containers such as Euro crates, pallets, and Euro hooks to us in a hygienically clean condition and in the same type, quantity, and value as received with the delivery of our goods. If the buyer is unable to return them to us at the same time as the delivery of our goods, he must immediately, and at his own expense, ensure the settlement of the empty container account (obligation to deliver).
XI. Final Provision
1) The place of jurisdiction for all disputes arising from the contractual relationship shall be Cologne.
2) The law of the Federal Republic of Germany shall apply.International sales law is excluded; the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall also be inapplicable.
3) Should individual provisions of these General Terms and Conditions of Sale be invalid, the validity of the remaining provisions shall remain unaffected. The invalid provisions shall be deemed replaced by such valid provisions as are suitable to achieve, as far as possible, the economic purpose of the invalid provisions.
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