General Terms and Conditions of Sale and Delivery of Schwarzwälder Eismanufaktur GmbH
1.1 For all deliveries and services by us, the
Schwarzwälder Eismanufaktur GmbH, Wüste 2, DE 79227 Schallstadt,
Tel. 07664 4032700, Fax. 07664 4032709,
E-Mail: email@example.com, represented by the sole representative
owner Matthias Rothacher, VAT number: DE 31 72 14 651
Register court: Local court Freiburg
Registration number: Commercial Register Freiburg HRB 717816
(hereinafter: SEM), these Terms and Conditions of Sale and Delivery (hereinafter: Terms and Conditions of Sale) shall apply exclusively.
(hereinafter: Terms and Conditions of Sale).
1.2 These Terms and Conditions of Sale shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
1.3 We shall only recognize terms and conditions of the Purchaser that conflict with or deviate from our Terms and Conditions of Sale if we expressly agree to their validity in writing.
1.4 These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser or Customer, as the case may be, insofar as legal transactions of a related nature are concerned.
1.5 Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.6 These Terms and Conditions of Sale shall be deemed to have been accepted by the customer at the latest upon acceptance of the
shall be deemed to have been accepted by the customer.
II Offer, conclusion of contract, quality
2.1 Offers made by SEM are subject to change without notice.
2.2 Contracts shall be concluded upon receipt of a written order confirmation by SEM, but no later than upon delivery of the goods or performance of the service by SEM.
2.3 The content of the contract shall be determined by the offer of SEM, the order confirmation by SEM and these Terms of Sale.
2.4 The agreed quality of delivered goods shall be exclusively those properties and characteristics which are stated in the offer of SEM, on the product packaging or in the order confirmation of SEM. Other or more extensive properties and characteristics shall only be deemed to be the agreed quality if they have been expressly confirmed in writing by SEM.
2.5 Declarations by SEM regarding the quality of a good shall not constitute a guarantee of quality (§ 443 BGB), unless and to the extent expressly designated by SEM as a guarantee of quality.
III Delivery, Transport, Delivery Time, Force Majeure
3.1 Delivery by SEM shall generally be made carriage paid to the destination specified in the contract or by the Customer, unless otherwise agreed between the parties.
3.2 If, at the Buyer's request, SEM ships the sold goods to a place other than the place of performance, the risk shall pass to the Buyer as soon as SEM has handed over the goods to the carrier, the forwarding agent or any other person or institution designated to carry out the shipment. The selection of the means of transport and the transport route as well as of the carrier, freight forwarder or other shipping person shall be incumbent upon SEM.
3.3 The Buyer shall ensure that sufficient storage capacities and access to storage facilities are available at the scheduled, expected delivery date communicated or agreed by SEM, in particular so that the cold chain is not interrupted.
3.4 Delivery and performance dates shall only be binding if expressly confirmed in writing by SEM. Agreed delivery times shall apply subject to timely fulfillment of all obligations of the Buyer. SEM reserves the right to plead non-performance of the contract.
3.5 SEM shall not be in default of delivery and debtor's delay if the goods which are the subject matter of the contract cannot be dispatched in time through no fault of SEM.
3.6 Force majeure shall interrupt SEM's delivery obligation for its duration and to the extent of its effect, even if SEM is already in default of delivery. Force majeure shall mean unforeseen circumstances and events beyond SEM's control which could not have been avoided with the diligence of a prudent businessman, such as labor disputes, war, fire, transport obstacles, shortage of raw materials or official measures.
3.7 If SEM is in default of performance or delivery, the Buyer may withdraw from the contract after expiration of a reasonable grace period set by the Buyer in writing. The same shall apply if the delivery or performance has become impossible for SEM due to circumstances for which SEM is responsible.
3.8 If SEM has concluded a congruent hedging transaction with a sub-supplier in due time, the delivery and performance date stated by SEM shall be subject to timely and proper self-supply. If SEM does not receive delivery in due time and in due form and if SEM has informed the Customer thereof without undue delay, SEM shall be entitled to withdraw from the contract after two weeks - calculated from the delivery or performance date stated to the Customer. Any consideration already paid by the customer shall be refunded by SEM without delay.
3.9 In the case of deliveries on call, the goods shall be accepted in quantities and batches distributed as evenly as possible over the term of the contract, unless otherwise agreed between the parties. Upon expiry of the agreed call-off period, SEM shall be entitled to deliver the entire remaining quantity immediately. In case of later acceptance, SEM reserves the right to charge the purchase price according to the current daily price.
3.10 SEM shall be entitled to make partial deliveries to the extent that these are reasonable for the Customer. Should SEM in this case be in default with further partial deliveries, the right of rescission shall be limited to the part of the contract not yet performed. No. 3.7 of these Terms and Conditions of Sale and Delivery shall apply accordingly.
3.11 Any further rights based on delay in delivery or impossibility, in particular claims for damages, shall be excluded, unless the delay or impossibility is due to intent or gross negligence of SEM, its legal representatives or its vicarious agents.
IV. Prices, payment
4.1 Unless otherwise agreed, our prices are ex warehouse SEM including packaging and plus VAT at the applicable rate. If no fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries which take place 3 months or later after conclusion of the contract.
4.2 If the price of the goods is determined by weight or if the weight of the goods is relevant for other reasons, the weight determined by SEM shall be decisive. The calculation shall be based on the total weight of the consignment, irrespective of the means of transport. Differences compared to the calculated individual weights shall be distributed proportionally among them. In case of bundling and palletizing SEM shall weigh gross for net. Unless otherwise agreed by contract, SEM shall deliver the goods in standard packaging.
4.3 All invoices of SEM shall be due for payment within 14 calendar days after receipt without any deduction, unless otherwise agreed or otherwise noted on contractual documents by SEM. In case of non-compliance with the payment deadline, default shall occur; the statutory provisions shall apply.
4.4 A payment by the Customer shall be deemed to have been made with effect of performance only when SEM can finally dispose of the amount.
4.5 If a risk to SEM's outstanding claims becomes apparent due to the Customer's inability to pay, SEM shall be entitled to declare all further claims from the entire business relationship with the Customer immediately due and payable to the extent that SEM has already rendered its performance. This shall also apply if SEM has already accepted bills of exchange or checks. A risk within the meaning of this provision shall exist in particular if the information provided by a bank or credit agency suggests that the Customer is not creditworthy.
4.6 The same shall apply if the Customer is in default of payment of at least two invoices. In this case, SEM shall also be entitled to set the Customer a reasonable period of time within which the Customer shall, at its option, either effect counter-performance or provide security for such counter-performance concurrently with the receipt of outstanding services. After unsuccessful expiration of this period, SEM may withdraw from the contract. The setting of a grace period shall not be necessary if the Customer is insolvent or over-indebted.
4.7 The customer shall only be entitled to set-off against counterclaims that are undisputed or have been finally adjudicated. Insofar as offsetting is not permitted, the customer shall also have no right of retention. The customer shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
V. Notice of defects and warranty
5.1 After delivery of the goods by SEM, the Customer shall be subject to the obligations to inspect and give notice of defects postulated in § 377 of the German Commercial Code (HGB). Accordingly, the Customer is obliged to inspect the received goods without undue delay and to notify SEM immediately in writing of any visible defects or deviations in quantity. Warranty rights of the customer presuppose that the customer has complied with the aforementioned obligations to examine the goods and to give notice of defects. This shall also apply to any defective bar coding on the goods. Defects which were not recognizable but hidden upon receipt of the goods in compliance with the above obligations shall be notified in writing immediately after their discovery or knowledge by the Customer.
5.2 Claims for defects shall not exist in the case of merely insignificant deviation of the delivered actual condition from the agreed condition, in the case of only insignificant impairment of the usability of the goods or in the case of damage that occurs after the transfer of risk as a result of incorrect or negligent handling of the goods by the customer - for example, through interruption of the cold chain.
5.3 In case of defectiveness of the goods, claims for damages of the Customer shall be excluded, unless
(a) the defect is due to intentional or grossly negligent conduct of SEM, its legal representatives or agents,
(b) the defect was fraudulently concealed by SEM,
(c) the defect is covered by a guarantee of quality given by SEM, which in the event of a guarantee also entitles Customer to claim damages, or
(d ) the intentional or grossly negligent breach of duty by SEM causes an injury to life, body and health of our customers.
5.4 In the event of a justified and timely notice of defects, SEM shall be entitled to rectify the defect or to make a subsequent delivery at our discretion. The opportunity for subsequent performance within a reasonable period of time shall always be given. The customer may assert further rights based on defects if the reasonable period for subsequent performance has expired unsuccessfully, if SEM finally and seriously refuses subsequent performance, if subsequent performance has failed or is unreasonable for the customer.
5.5 Setting of a time limit shall not be required in the case of reduction, withdrawal and claims for reimbursement of expenses if the Customer had to take back the goods received from SEM as a consequence of their defectiveness from a consumer or if a consumer has reduced the purchase price to him.
5.6 Quality complaints about delivered goods shall be assessed in accordance with the relevant statutory provisions. An examination of rejected goods shall be carried out in accordance with § 64 of the Foodstuffs and Feedstuffs Code (Lebensmittel- und Futtermittelgesetzbuch, LFBG).
5.7 SEM shall be given the opportunity to examine the complaint before further processing or resale of the goods complained about.
VI. limitation of liability
6.1 SEM as Seller shall be liable for all damages culpably caused by it, its representatives or its vicarious agents, in case of intent and gross negligence.
6.2 In the event of
- Injury to life, body or health,
- Damages which are subject to the Product Liability Act,
- damages resulting from the breach of a contractual cardinal obligation (cardinal obligations are obligations the fulfillment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner may regularly rely on) as well as in the event of a
- violation of quality agreements as well as fraudulent concealment of defects, SEM shall also be liable for slight negligence and thus for any fault, also of its representatives or vicarious agents.
6.3 In the event of a breach of cardinal obligations, the liability of SEM shall be limited to the amount of the foreseeable damage typical for the contract, unless another of the cases of extended liability listed above applies at the same time.
6.4 The provisions in 6.1 - 6.3 shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal grounds, in particular due to defects, breach of duties arising from the contractual obligation or tort. They shall also apply to the claim for reimbursement of futile expenses.
6.5 A change in the burden of proof to the detriment of the Buyer is not associated with the above provisions.
6.6 If SEM has granted the Customer certain rights within the scope of a quality guarantee in the event of a defect, these rights shall remain unaffected by the above limitations of liability.
VII Retention of title
7.1 SEM retains title to the delivered goods until full payment of all claims arising from the purchase / delivery contract.
the purchase / delivery contract. This shall also apply to future deliveries, even if we do not always expressly refer to this. We shall be entitled to reclaim the object of sale if the customer acts in breach of contract.
7.2 The processing or transformation of the object of sale by the Customer shall always be carried out in the name and on behalf of SEM.
7.3 If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing or blending. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us.
7.4 The Purchaser shall be entitled to resell the Retained Goods in the ordinary course of business. The claims against the customer arising from the resale of the goods subject to retention of title (including all balance claims from the current account), insurance claims, as well as claims against third parties due to damage, destruction, theft or loss of the goods) are already now assigned by the customer to SEM by way of security in the amount of the agreed final invoice amount (including value added tax); SEM accepts the assignment. This assignment shall apply regardless of whether the object of sale has been resold without or after processing.
7.5 Our customer shall remain authorized to collect the claim from the resale even after the assignment. Our authority to collect the claim ourselves shall remain unaffected thereby. However, we shall not collect the claim as long as the customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
7.6 To the extent that SEM is only entitled to co-ownership of the Retained Goods, the advance assignment shall be limited to that part of the claim which corresponds to the share of co-ownership of SEM in the Retained Goods (based on the invoice value).
7.7 In the event of resale of the goods, the customer shall retain title to the reserved goods vis-à-vis its customers until the purchase price has been paid in full. The customer shall not be entitled to resell the goods to third parties if the purchase price claim from the resale is subject to a prohibition of assignment.
7.8 SEM hereby revocably authorizes Customer to collect the claim assigned to SEM for its own account in its own name. This authorization to collect may be revoked if the Customer does not properly meet its payment obligations to SEM or if SEM's claims appear to be at risk due to the Customer's inability to pay. Upon request, the Customer shall inform SEM of the debtors of the assigned claim.
7.9 In the event of access by third parties to the reserved goods, the Customer shall point out SEM's (co-)ownership and notify SEM without delay. Insofar as the third party is not able or not obliged to reimburse us for the judicial and extrajudicial costs of an intervention or action pursuant to § 771 ZPO, the Customer shall be liable for the loss incurred by us.
7.10 Securities to which we are entitled shall be released by SEM at the Customer's request to the extent that their realizable value exceeds the claims to be secured by more than 10%.
7.11 Receivables to be released in each case shall be selected by the SEM.
7.12 In the event of default of payment by the Customer, SEM shall be entitled, even without granting a grace period, to demand the temporary return of the goods delivered under reservation of title at the Customer's expense or, if applicable, to demand the assignment of a claim for return of the Customer against third parties. Any repossession as well as any seizure of the reserved goods by SEM shall not constitute a rescission of the contract.
7.13 SEM shall be entitled at any time to return the goods taken back to the Customer concurrently with payment of the purchase price.
7.14 If, in case of delivery abroad, the agreed retention of title does not fit into the foreign law, the present provisions shall apply mutatis mutandis and in accordance with the foreign law.
VIII Place of performance, place of payment, applicable law
8.1 The sole place of performance for all obligations of SEM shall be SEM's place of business.
8.2 This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
9.1 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between SEM and a merchant shall be the place of business of SEM. In addition, SEM shall have the right to sue the Customer at its general place of jurisdiction.
9.2 In case of cross-border deliveries, the exclusive place of jurisdiction for all disputes arising from a contractual relationship shall be the place of business of SEM. SEM reserves the right to bring the matter before any other court having jurisdiction under the EuGVVO and the LugÜ.