Terms and conditions of sale and delivery
1. General remarks
1.1 These general terms and conditions of sale and delivery (hereinafter: GTC) apply to all our deliveries and services to companies.
1.2 They shall also apply to our future deliveries and services even if they are not explicitly agreed to again.
1.3 If the customer unconditionally accepts any service/delivery by us, this shall also constitute the customer’s acknowledgement of our GTC.
1.4 Any deviating and/or supplementary GTC of the customer shall not apply. We hereby object to these. They shall only apply if and when we have explicitly agreed to them or parts thereof.
1.5 Even the unconditional delivery and/or service performance by us does not constitute acknowledgement of the customer’s GTC that deviate from or supplement these GTC.
2. Offer and conclusion of contract, right of representation
Our offers are subject to alteration and non-binding. Declarations of acceptance and all orders require our explicit confirmation to become legally effective. The same applies to supplements, changes or collateral agreements. All details regarding measurements, weights or other technical data are only binding if and when we explicitly designate them as binding.
3.1 The prices stated in our order confirmation shall apply plus any statutory value added tax. In the absence of an explicit, deviating agreement, our prices valid on the day of delivery shall be decisive.
3.2 Unless explicitly agreed otherwise, prices include normal packaging from our warehouse, exclusive of shipping costs, which must be borne by the customer, unless explicitly agreed otherwise. Special packaging shall be charged separately or provided on a rental basis for a fee. This must be returned to us carriage paid in an orderly condition no later than three months from the invoice date.
3.3 All taxes, customs duties, fees, etc. incurred due to delivery outside of Germany shall be borne by the customer unless something else has been agreed separately.
4. Shipping, delivery
4.1 Regardless of the warehouse from which the delivery is made, 52159 Roetgen is the place of performance for our deliveries. Shipping is carried out at the customer’s risk. The shipping type and route shall be chosen by us. If additional costs are incurred due to explicitly agreed customer requirements, these shall be borne by the customer.
4.2 Partial deliveries are permitted provided that they are reasonable for the customer.
4.3 Delivery dates are only binding if they have been explicitly agreed. Delivery dates are met if the delivery item has left the works by the time the date has expired or we have given the notice of the shipment being ready.
4.4 Compliance with agreed deadlines for deliveries/services requires the timely receipt of all documents provided by the customer, all necessary permits and releases, notably plans, as well as compliance with the agreed terms of payment (e.g. advance payment, deposits) and other obligations by the customer. If these requirements are not fulfilled in time, the agreed delivery and performance periods shall be extended appropriately; this shall not apply if we are responsible for the delay.
4.5 If non-compliance with agreed deadlines is due to force majeure, e.g. mobilisation, war, riots or similar events, e.g. strike, lockout, overriding emergency measures (epidemics), the agreed deadlines shall be extended accordingly. The same shall apply in the event that we ourselves have not been supplied on time or properly (in the case of agreed delivery dates, the following applies: subject to timely delivery by others to us).
5. Payment, due date interest, default, offsetting and retention
5.1 Our invoices are due for payment without deductions within the agreed deadlines from the invoice date; without explicit agreement of a deadline, immediately after receipt of the invoice. We are entitled to charge interest at 5% from the due date; we reserve the right to assert additional claims. We are entitled to charge interest at a rate of nine percentage points above the respective base interest rate from the date of default.
5. 2 In the event of default on payment as well as in the event of justified doubts regarding the customer’s ability to pay or creditworthiness, we shall be entitled, regardless of our other rights, to demand advance payment for any outstanding deliveries and to make all claims under the business agreement due immediately. Our delivery shall be suspended as long as the customer is in default with a due payment.
5.3 The customer is only entitled to withhold payments because of undisputed counterclaims or those determined by a court of law. The customer is only entitled to offset payments against undisputed counterclaims or those determined by a court of law.
5.4 We shall be entitled to offset and retention rights without limitation to the extent permitted by law.
6. Transfer of risk, notification of defects
6.1 Risk shall pass to the customer at the latest when the goods are dispatched (or handed over to the customer for loading onto the customer’s vehicles in the case of self-collection), even if partial deliveries are made or we have provided other services in individual cases, for example, the shipping costs or transport or distribution on site.
6.2 If shipping is delayed at the request of the customer or as a result of circumstances for which the customer is responsible, the risk shall pass to the customer on the day on which we notify the customer that the goods are ready for shipping.
6.3 The statutory obligations to examine and notify of any defects (Section 377 German Commercial Code – HGB) are in place without limitation. If the customer fails to immediately examine the goods in accordance with Section 377 HGB or fails to immediately notify a defect, the goods shall be deemed to be approved and the customer can no longer assert any rights based on the defect or an incomplete delivery. If we negotiate with the customer regarding a complaint made by the customer, this shall not constitute implicit acceptance of the defect without explicit notification. The same shall apply to any willingness on our part to rectify the defect (or in the case of actual subsequent rectification) that we may have declared. Defect notifications must be made in writing.
7.1 We do not assume any independent guarantee beyond the statutory guarantee or in addition to the existing one. Exceptions shall only apply if they have been explicitly agreed. We shall be liable for any defects in the delivery under the exclusion of further claims as follows:
7.2 There shall be no claims based on defects in the event of negligible deviations from the agreed quality or – in the absence of an agreement – from the usual quality, in the event of only negligible impairment of the usability, in the event of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment or due to particular external influences not anticipated under the contract, or in the event of non-reproducible software errors. If the customer or third parties make incorrect changes or repairs to the goods or the packaging, no claims for defects shall exist for these and the resulting consequences.
7.3 All goods delivered that have a defect shall be repaired or replaced free of charge at our discretion, if and to the extent that the cause of the defect was already present at the time of the transfer of risk (subsequent performance).
7.4 In the event of a justified notification of defects, the customer shall grant us the opportunity to provide subsequent performance within a reasonable period of time.
7.5 If the supplementary performance fails or is unreasonable for the customer (Section 440 German Civil Code – BGB) or unnecessary because
a) the subsequent performance is definitively rejected by the supplier,
b) the subsequent performance has not been done on a contractually agreed date or within a certain period of time and in the contract, the customer has bound the continuance of its interest in performance to the timely delivery of performance, o
c) special circumstances exist that justify the immediate withdrawal taking both parties’ mutual interests into consideration (Section 323 Para. 2 BGB); the customer is then immediately entitled to choose to either reduce the purchase price or to withdraw from the contract and to demand (if necessary, also supplementary) compensation instead of performance or compensation for futile expenses.
7.6 We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs. This shall not apply if the expenses increase because the item has been taken to a place other than the destination of the deliveries after the deliveries have been made, unless this transfer is in accordance with the intended use of the item.
7.7 If the customer accepts a defective delivery even though it is aware of the defect, it shall only be entitled to claims and rights based on the defect if it reserves these rights upon acceptance.
7.8 The statements made in brochures, advertising material, descriptions, etc. regarding measurements, weights, performance, etc. are approximations and not indications of quality. They do not constitute a guarantee of quality or durability. We reserve the right to deviations to an extent reasonable for the customer. This also applies to formulations or technological changes during production.
7.9 Claims to subsequent performance shall become time-barred one year after the statutory start of the limitation period. The same applies to withdrawal and reduction as well as compensation. The period shall not apply if the law according to Sections 438 Para. 1 No. 2 (buildings and things used for buildings), 479 Para. 1 (recourse claims) and 634a Para. 1 No. 2 (building defects) German Civil Code (BGB) prescribes mandatory longer periods and also not in the event of intent, fraudulent concealment of the defect as well as non-compliance with a quality guarantee and not in the event of a breach of essential contractual obligations (cardinal obligations). In that case, the legal statutes of limitation shall apply. The statutory provisions on suspension of the statute of limitations, suspension and restart of the periods remain unaffected.
7.10 Any recourse claims made by the customer against us in accordance with Section 478 BGB (recourse of the entrepreneur) shall only exist if the customer has not made any agreements with its own customer that go beyond the statutory claims for defects. Sections 7.2 to 7.8, 7.10 and Section 8 (in full) of these GTC shall also apply accordingly for the scope of the recourse claims against us according to Section 478 Para. 2 BGB.
7.11 Any claims for damages by the customer due to a material defect are based on Section 8.
8. Exclusion and limitation of liability
8.1 Any claims for damages made by the customer – regardless of the legal basis – are excluded. This shall not apply in the event of fraudulent concealment of the defect, failure to comply with a quality guarantee, injury to life, body or health and/or in the event of an intentional or grossly negligent breach of duty by us or in the event of a breach of duty the fulfilment of which is essential for the proper performance of the contract and compliance with which the customer may usually rely upon (“essential contractual obligations/cardinal obligations”). Claims according to the German Product Liability Act are also not affected by this limitation of liability. This limitation of liability shall apply equally to breaches of duty by our institutions and vicarious agents.
8.2 The claim for damages for the breach of essential contractual duties is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, body or health.
8.3 The aforementioned limitations of liability shall apply equally to claims for compensation for futile expenses (Section 284 BGB). A change in the burden of proof to the disadvantage of the customer is not associated with the aforementioned provisions.
9. Reservation of title
9.1 We shall retain the title to all delivered goods (hereinafter: “reserved goods”) until all claims, regardless of their legal basis, including future or conditional claims arising from contracts concluded at the same time or at a later date, have been fulfilled. This shall also apply if payments are made on specially designated claims.
9.2 If there are indications that justify the assumption of the customer’s inability to pay or the threat of such inability, we shall be entitled to withdraw from the contract without setting a deadline and to demand the return of the reserved goods.
9.3 Processing the reserved goods shall be carried out for us as manufacturer within the meaning of Section 950 BGB without any obligation on our part. The processed goods shall be regarded as reserved goods within the meaning of Section 9.1. In the event that the customer processes, combines and mixes the reserved goods with other goods, we shall be entitled to co-ownership of the new item proportionate to the ratio of the value of the invoice for the reserved goods to the value of the invoice of the other goods used. If our ownership expires due to combining or mixing, the customer shall hereby assign its ownership rights to the new stock or item to the extent of the invoice value of the reserved goods to us and shall keep them safe for us free of charge. The resulting co-ownership rights shall be deemed as reserved goods within the meaning of Section 9.1.
9.4 The customer shall only be entitled to resell, process or combine or otherwise integrate the reserved goods with other items within the scope of proper business operations and as long as it is not in default with the payment of the purchase price. Any other provision of the reserved goods is not permitted. We must be notified immediately of any seizure or other access to the reserved goods by third parties. All intervention costs shall be borne by the customer if they cannot be collected from the third party and the third-party proceedings have been justifiably filed. If the customer defers the purchase price to its customer, it must reserve ownership of the reserved goods with respect to the customer under the same conditions under which we have reserved ownership of the delivery of the reserved goods. However, the customer is not obliged to reserve the ownership with regard to the claims against its customer that will only arise in the future. Otherwise, the customer is not authorised to resell the goods.
9.5 The customer’s claims from the resale of the reserved goods are hereby already assigned to us. They serve as security to the same extent as the reserved goods. The customer shall only be entitled and authorised to resell the goods if it is ensured that the claims to which it is entitled as a result thereof are transferred to us.
9.6 If the reserved goods are sold by the customer together with other goods not supplied by us at a total price, the assignment of the claim from the sale shall be to the amount of the invoice value of the reserved goods sold in each case.
9.7 If the assigned claim is included in an open account, the customer hereby assigns us a part of the balance corresponding to the amount of this claim, including the final balance from the open account.
9.8 Until revocation by us, the customer is authorised to collect the assigned claim. We shall be entitled to revoke this authorisation if the customer does not properly fulfil its payment from the business relationship or if we become aware of circumstances that are likely to considerably reduce the customer’s creditworthiness. If the conditions for exercising the right of revocation are met, the customer must, at our request, immediately disclose the assigned claims and their debtors, provide all information necessary for the collection of the claims, hand over the relevant documents and notify the debtor of the assignment. We are also entitled to notify the debtor of the assignment. The customer is not authorised to assign the claims in any other way, not even based on our collection authorisation.
9.9 If the nominal value (invoice amount of the goods or face value of the claim rights) of the securities that exist for us exceeds the secured claims by a total of more than 10%, we are obliged to release securities of our choice at the customer’s request.
9.10 If we assert the reservation of title, this shall only be considered as withdrawal from the contract if this is explicitly declared by us. The customer’s right to own the reserved goods shall expire if it does not fulfil its obligations under this or any other contract.
9.11 We shall retain title to the delivered goods as security for all claims against the customer to which we are entitled from the business relationship. The retention of title also covers the full value of the new products created by processing, mixing or combining our goods, whereby we shall be regarded as the manufacturer. If our goods are processed, combined or mixed with items that do not belong to the customer, we shall acquire co-ownership proportionate to the ratio of the value of the invoice for the reserved goods to the value of the invoice for the other materials.
9.12 The customer hereby assigns us all claims from the sale of the reserved goods in total or to the amount of our possible co-ownership share as security. As long as the customer is willing and able to properly fulfil its obligations to us, it may dispose of the goods we own or co-own in the ordinary course of business and collect the claims assigned to us itself. The customer may only transfer ownership by way of security, pledges and assign claims, including by way of the sale of claims, with our prior written consent. The customer must inform us immediately of any access by third parties to the goods and claims belonging to us. In the event the value of the securities exceeds the claims to be secured by more than 10%, we shall release securities of our choice at the customer’s request. Exercising reservation of title does not mean withdrawal from the contract.
10. Taking back goods as a gesture of goodwill
If we take back goods at the customer’s request as a gesture of goodwill without being legally obliged to do so, we shall be entitled to charge the customer a flat-rate processing fee of approximately EUR 2.00 per kilogram, but at least EUR 250.00. The goods must be returned to taste line 21 at the customer’s expense. The customer shall be permitted to provide evidence that we have not incurred any expenses in this amount as a result of the return.
11. Data privacy
The customer has been informed and has given consent that account data is processed and stored by data processing systems within the context of order processing. The delivery note and invoice apply simultaneously as notifications within the meaning of the provisions of the GDPR.
12. Applicable law, place of jurisdiction
12.1 The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire business relationship with the customer carried out within their scope. The applicability of the uniform international sales law (UN Convention on Contracts for the International Sale of Goods) and the conflict-of-law rules of international private law, notably the Rome I Regulation, is excluded.
12.2 The place of performance for all our deliveries and services is 52159 Roetgen.
12.3 The exclusive place of jurisdiction for all legal disputes arising from the business relationship is Aachen.
12.4 If a provision in these terms and conditions or a contractual agreement is or becomes invalid, the validity of all other provisions and agreements shall not be affected.
Last updated: 1 January 2019