of the vendor Gustav Wegener u. Sohn GmbH u. Co. KG, Buxtehuder Str. 50 - 52, 21635 Jork, Germany
1. GENERAL – SCOPE – SUPPLEMENTARY TERMS AND CONDITIONS
1.1. All, also including future deliveries by the vendor are exclusively governed by these general terms, unless there is express and written agreement on other terms.
1.2. No consent to the buyer’s conditions shall in any case be construed from silence on the buyer’s conditions or the execution without reservation of the order or the acceptance of the consideration. Contract or other agreements become valid only with the written confirmation by the vendor. Any deviation only applies to the individual case and does not affect the validity of the other conditions.
1.3. Supplementary to these conditions, the COFREUROP conditions of the European Union for fresh, edible horticultural products, always in their current version, apply to all business transactions with buyers and vendors who have their main place of business outside of Germany.
2.1. All offers are non-binding. Prior sale to a third party is reserved unless a written offer submitted by the vendor represents a firm offer.
3. PRICES – TERMS OF PAYMENT
3.1. All prices mentioned by the vendor are net cash, payable on receipt of the goods without any deduction.
3.2. The statutory value added tax is not included in the prices of the vendor. It is shown in the invoice and is added to the net price.
3.3. Delivery to EU member states outside the Federal Republic of Germany leaves the delivery without addition of value added tax if the buyer produces his value added tax identification number. If he does not he will be charged the statutory value added tax.
3.4. If freight cost, duties or taxes increase after the conclusion of the contract such increases will be charged to the buyer.
3.5. Check and bills of exchange are only regarded as a payment when they have been honoured; all related expenses are at the buyer’s expense. The vendor particularly reserves the right to accept bills of exchange based on special agreement. Bills of exchange and other considerations are accepted only on account of fulfilment.
3.6. If payment is overdue the buyer has to pay at least the usual bank interest current at the time to the vendor. The interest rate for claims for payment amounts to eight percentage points over the legal interest base rate. If the vendor is able to prove a higher damage due to the delay, he is authorized to assert this. All expenses related to recovery of the overdue amounts are to be borne by the party who is or was in delay.
3.7. A flat-rate amount of ten euros is charged for every reminder, save for the first.
3.8. If the delay by the buyer results in a debt collection agency being instructed the buyer has to bear all costs save the performance fee payable to the agency.
3.9. The buyer is not entitled to offset counter-claims against the vendor or to assert retention unless such claims are not disputed and have been legally recognized.
3.10. For all contract conclusions the solvency of the buyer is presumed as a warranted characteristic. If after conclusion of the contract the buyer is unable to fulfil his obligation in time the vendor can refuse delivery or can demand security.
3.11. If the value of the securities given in the current business relationship exceeds the claims by the vendor by more than 20% the vendor is obliged when demanded to do so by the purchaser to release securities at his own choosing.
4. PLACE OF PERFORMANCE – PLACE OF JURISDICTION
4.1. Unless agreed differently the vendor’s registered place of business is the place of performance for both delivery and payment.
4.2. The place of jurisdiction is the registered place of business of the vendor. This also applies to legal proceedings based on deeds and bills of exchange as well as for measures to obtain security. The vendor is however also entitled to sue the buyer at his place of residence.
4.3. If the buyer has his place of business outside Federal Republic of Germany the registered place of business of the vendor is the place of jurisdiction.
5.1. All deliveries are only ex warehouse. Unless agreed differently the buyer is obliged to collect immediately. All risks pass to the buyer on conclusion of the contract. Expenses incurred due to late collection are borne by the buyer. If goods purchased are not collected without delay the vendor can dispose of them as he sees fit after giving adequate notice. The buyer is then liable for related expenses and shortfall in proceeds. Dispatch, delivery and possible returns are carried out at the risk and the expense of the buyer.
5.2. Acts of god as well as strike, theft, fire, interruption of operation, transportation impediment, legal prohibitions which cause impossible or delay the timely delivery of the goods release the vendor of the obligation to deliver or authorize him to postpone the date of the delivery.
5.3. Self-supplying is reserved. If the sale relates to goods which the vendor does not have in stock when the contract is concluded he is released from any obligation if he himself is not supplied correctly and in time.
5.4. A delivery date for goods which shall be packed suitably for self-service is valid only subject to failure-free machine operation.
6. BUYER COMPLAINTS
6.1. Any defect whatsoever must be notified within six hours after taking delivery for perishable goods and for other goods within eight hours of taking delivery (the COFREUROP conditions apply). The same applies to shortages and breakages. Defects which may have arisen during transportation have to be notified to the carrier. The vendor can demand that the complaint is justified by official attestations or expert opinions.
6.2. If the buyer or his representative has bought or taken over the product after inspection all complaints are excluded.
6.3. Quality and quantity defects do not entitle the buyer to reject the delivery or to rescind the contract or to claim compensation, but allow only an adequate reduction of the sales price. Other or further claims are excluded. The weight at dispatch is authoritative. Loss during transport customary in the trade is borne by the buyer.
7. PRODUCT IDENTIFICATION
7.1. The buyer is obliged when taking delivery to check for completeness and correctness of packaging and labelling according to the legal provisions.
7.2. This applies particularly to self-service packed goods and if on instruction of the buyer a retail price is inserted by the vendor.
7.3. Legitimate complaints entitle only to a relabeling. Any liability beyond this is excluded.
8. RESERVATION OF TITLE
8.1. The goods delivered remain the property of the vendor until all obligations towards the vendor in respect of current and future claims by the vendor have been satisfied. Any pledging or cession as security is forbidden prior to full satisfaction.
8.2. A resale is only permitted for resellers under the customary and proper reservation of title until full payment has been received.
8.3. For any resale the reseller already now cedes his future claims against his customers from the resale to the vendor as security. The vendor accepts this cession.
8.4. At the request of the vendor the buyer is obliged to notify the subrogation and to let the vendor have all information necessary to enforce his claim, in particular to name the customers and to specifically notify them of the reservation of title in non-cash sales. The buyer is further prevented from contracting a cession prohibition.
8.5. If goods are seized or interfered with in any other way by third parties the buyer has to notify the vendor immediately in writing so that the vendor can issue a writ under section 771 of the Code of Civil Procedure (Zivilprozessordnung). If the third party cannot pay for all court and out-of-court costs of the vendor for the writ under section 771 the buyer is liable for the costs of the vendor.
8.6. The vendor can rescind his agreement to the resale if the buyer stops his payments or when an application has been made to the court for bankruptcy or settlement or insolvency proceedings to be opened or if the buyer has been ordered to file an affidavit concerning his financial circumstances. In such cases the vendor is entitled to demand surrender of the goods subject to reservation of title from the buyer. The vendor is entitled to inspect the goods at the place where they are stored in order to assert his title to the goods.
8.7. The vendor reserves the right under sections 47 and 48 of the Insolvency Statute (Insolvenzordnung) for separation from the insolvency assets or for a financial claim against the insolvent estate.
8.8. In the case of processing the goods as per section 950 of the German Civil Code (Bürgerliches Gesetzbuch) the buyer already now transfers his title under section 930 to the vendor, for whom he safekeeps the processed goods.
8.9. The same applies to part ownership in blended or merged goods if goods are blended or merged.
8.10. If the buyer processes or remodels the goods such processing or remodelling is done for the vendor who therefore becomes immediate owner of the newly produced goods. Should this prove impossible for legal reasons vendor and buyer agree already now that the vendor is at any one time owner of the new goods to that extent that is determined by setting the value of the goods subject to reservation of title against the value of the processed, remodelled or merged goods.
8.11. The buyer already now cedes claims from the sale of the new goods to the vendor. The cession covers that amount that corresponds to the value invoiced by the vendor for the goods subject to reservation of title but now processed, remodelled or merged, plus a surcharge of 10%. The buyer herewith cedes the first-ranking part of the claim to the vendor.
8.12. The vendor agrees to release at the request of the buyer those securities whose realizable value exceeds the secured claims on the buyer by more than 10%. The choice of securities to be released is at the vendor’s discretion.
8.13. If the goods sold by the vendor are further sold on together with other goods without a separate price being agreed for the goods of the vendor, the buyer of the vendor cedes with priority over the remaining part of his claim an amount of the total sales price which corresponds to the value of the delivered goods plus a surcharge of 10%. Until revocation by the vendor the buyer is authorized to collect the amounts ceded.
9.1. The buyer obtains returnable packing materials only on loan for the transport of the goods purchased. Empty packaging has to be returned within 14 days. For packing which is not returned the cost of equivalent new packaging is charged.
9.2. Returnable packing materials have to be returned by the buyer to where he collected the goods. Returnable packing materials have to be in a state on return which allows their use according to the Packing Regulation (Verpackungsverordnung).
10. FINAL PROVISIONS
10.1. The buyer explicitly accepts the binding force of these General Terms and Conditions with his receipt of the invoice. All other conditions are invalid unless they are confirmed in writing by the vendor.
10.2. If for legal reasons or because the parties have agreed a waiver individual provisions of the above conditions are not applicable this does not invalidate any other condition. The void provision is to be replaced by a valid one which best approximates the intention and purpose of the void one.