GENERAL TERMS AND CONDITIONS
1. GENERALITIES – SCOPE OF APPLICATION – SUPPLEMENTARY CONTRACTUAL TERMS AND CONDITIONS
1.1 The following Terms and Conditions of Sale shall apply to all contracts concluded between the Buyer and Llombart Handels- und Treuhandges. mbH (hereinafter referred to as “the Seller”) for the supply of goods, unless expressly agreed otherwise. They shall also apply to all future business relations, even if they are not expressly agreed again.
1.2 Any conflicting or deviating terms and conditions of the Buyer which are not expressly recognised by the Seller shall not be binding on the Seller, even if the Seller does not expressly object to them. Silence with regard to the Buyer’s terms and conditions, the unconditional fulfilment of the order or the acceptance of payment shall in no case constitute consent to the Buyer’s terms and conditions.
1.3 In addition to these General Terms and Conditions, the Terms and Conditions for Fresh, Edible Horticultural Products (EEC) – abbreviated to COFREUROP – shall apply to business transactions with buyers/sellers whose registered office is outside the Federal Republic of Germany.
2. CONCLUSION OF CONTRACT
The purchase contract does not require any special format. As far as possible, telephone purchase contracts should be confirmed by telegram or in writing before the contract is executed. Agreements made by written telecommunication shall be considered to be agreements in writing. The content of the confirmation document shall be deemed to have been agreed on unless otherwise indicated immediately via telegram or other form of written telecommunication.
All offers are subject to change. We reserve the right to prior sale insofar as an offer submitted by the Seller in writing does not constitute a firm offer.
3. PRICES AND TERMS OF PAYMENT
3.1 All prices quoted by the Seller are net cash, payable within 30 days of the invoice date.
3.2 Statutory value added tax is not included in the Seller’s prices; the statutory rate will be indicated on the invoice and added to the taxable base.
3.3 In the case of delivery to EU member states outside the Federal Republic of Germany, the delivery is exempt from VAT if the Buyer provides its VAT identification number. Otherwise VAT will be applied at the respective statutory rate.
3.4 If transport costs, fees or duties increase as compared with those which applied when the contract was concluded, such increases shall be borne by the Buyer.
3.5 Cheques and bills of exchange shall not be considered as payment until they have been redeemed; all associated costs and expenses shall be borne by the Buyer. The Seller expressly reserves the right to accept bills of exchange on the basis of special agreements. Bills of exchange and other forms of payment shall only be accepted on account of performance.
3.6 In the event of a delay in payment, at least the customary rate of bank interest shall be payable to the Seller as from the date of invoice. The interest rate for payment claims shall be eight percentage points above the base rate. If the Seller is able to prove greater loss and damage caused by the delay, it shall be entitled to claim these. Furthermore, all costs associated with the collection of payments arising from its claims shall be borne by the party which delayed or is delaying payment.
3.7 A fixed fee of 10.00€ will be charged for each reminder (with the exception of the first reminder).
3.8 If a law firm is commissioned to collect the debt arising from a delay in payment on the part of the Buyer, the latter shall bear the costs arising from this commission with the exception of the success fee.
3.9 The Buyer shall only be entitled to compensation, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, recognised by the Seller or are undisputed. The Buyer shall only be authorised to exercise a right of retention when its counterclaim is based on the same contractual relationship.
3.10. The Buyer’s ability to pay is assumed as an essential characteristic for all contracts. If, after conclusion of the contract, the Buyer is unable to fulfil its obligations in good time, the Seller may refuse to deliver or may demand the provision of security.
3.11. Should the value of the securities exceed by more than 20 % the Seller’s claims against the Buyer arising from the current business relationship, the Seller shall be obliged, at the Buyer’s request, to release, at its discretion, the securities to which it is entitled.
4. PLACE OF COMPLIANCE, JURISDICTION AND APPLICABLE LAW
4.1 The place of compliance and jurisdiction with regard to deliveries and payments (including actions on cheques and bills of exchange), as well as all disputes occurring between the Seller and the Buyer arising from the purchase contracts concluded between the Seller and the Buyer, shall be the Seller’s registered office.
However, the Seller shall also be entitled to sue the Buyer at its place of residence and/or registered office.
4.2 In the event that the Buyer’s registered office is located outside the territory of the Federal Republic of Germany, the Seller’s registered office shall be the place of jurisdiction.
4.3 Relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany.
5. DELIVERY
5.1 All deliveries shall be ex works. Unless otherwise agreed, the Buyer is obliged to collect the goods immediately.
If the Buyer delays acceptance, the Seller shall be entitled to demand compensation for any resulting loss or damage as well as for any possible additional costs. The same shall apply if the Buyer is in culpable breach of its obligations regarding cooperation.
If the goods purchased are not collected immediately, the seller may otherwise dispose of them after setting a reasonable deadline. In such a case, the Buyer shall then be liable for any costs and lost revenue.
The risk of accidental deterioration and accidental loss shall pass to the Buyer at the moment when the latter fails to accept the goods or delays payment.
5.2 Delivery dates or deadlines that have not been expressly agreed as binding are exclusively non-binding information. The delivery period stated by the Seller shall not commence until the technical issues have been clarified. The Buyer must also fulfil all obligations incumbent upon it properly and in good time.
5.3 A delivery date for goods which are to be packaged for self-service shall only be deemed to have been agreed upon subject to the condition that the machines are working correctly.
5.4 Deliveries will be dependent on our own stocks being sufficient.
5.5 The Seller shall be entitled to make partial deliveries and render partial services at any time, provided that this is reasonable for the Buyer.
5.6 Events of force majeure, as well as strikes, theft, fire, operational disruptions, obstacles to transport, government prohibitions, which prevent or delay the timely delivery of the goods, release the Seller from the obligation to deliver or authorise it to postpone the time of delivery.
5.7 If the underlying purchase contract is a fixed-date transaction within the meaning of Art. 286 Paragraph 2.4 of the German Civil Code (BGB) or Art. 376 of the German Commercial Code (HGB), the Seller shall be liable pursuant to the statutory provisions. The same shall apply if the Buyer is entitled to assert the discontinuation of its interest in the further fulfilment of the contract as a result of a delay in delivery for which the Seller is responsible. In this case, the Seller’s liability shall be limited to the foreseeable, typically occurring damage if the delay in delivery is not due to a wilful breach of contract for which the Seller is responsible, with the Seller being liable for any fault attributable to its representatives or vicarious agents.
The Seller shall also be liable to the Buyer in the event of a delay in delivery pursuant to the statutory provisions if this is due to a deliberate or grossly negligent breach of contract for which the Seller is responsible, with the Seller being liable any fault attributable to its representatives or vicarious agents. The Seller’s liability shall be limited to the foreseeable, typically occurring damage if the delay in delivery is not due to a wilful breach of contract for which the Seller is responsible.
5.8 In the event that a delay in delivery for which the Seller is responsible is the result of a culpable breach of a material contractual obligation, whereby the Seller is liable for the fault of its representatives or vicarious agents, the Seller shall be liable pursuant to the statutory provisions, with liability for loss and damages being limited in this case to the foreseeable, typically occurring damage.
5.9 Any further liability for a delay in delivery for which the Seller is responsible is excluded. The Buyer’s further statutory claims and rights to which it is entitled in addition to the claim for any loss and damage arising from a delay in delivery for which the Seller is responsible shall not be affected.
6. NOTIFICATION OF DEFECTS/WARRANTY
6.1 If acceptance of the goods ex works has been agreed on, defects which can be detected by proper inspection must be notified at the time of acceptance at the latest.
6.2 If paragraph 1 does not apply, defects may be notified upon arrival if the inspection is carried out immediately after receipt of the notification of arrival and the loading authorisation. The following then applies:
a. Defects that can be detected by proper inspection before unloading begins must be reported immediately.
b. Defects that can only be detected during unloading despite proper inspection must be reported immediately. Unloading must be stopped immediately. Unloaded goods shall be paid for in full; this shall not apply to goods unloaded solely for the purpose of inspection.
c. The complaint must always be lodged immediately. In any event, in the case of perishable and highly perishable goods, it must be lodged within 4 hours and, in the case of other goods, within 12 hours of the commencement of the right of loading or of the supplier’s declared readiness to unload.
If the commencement of the right of loading or the declared readiness for unloading takes place at an inopportune time, the period for lodging a complaint shall only commence from the time at which it is reasonable to inspect the goods, taking into account local and customary practice in the industry.
d. If, due to an oversight on the part of the railway, the notification of arrival has not been made or has been made late, it must be proven by expert opinion whether, and to what extent, additional spoilage has occurred as a result of this late notification. This spoilage shall be borne by the Buyer. If claims against the transport company arise in the person of the Seller, the Seller must assert these or assign them to the Buyer.
6.3 The quality and appearance of the cargo must not be impaired by an inspection of the contents of the wagon. In the event of complaints about general cargo consignments, the goods must still be in the packaging container.
6.4 Defects that cannot be detected by means of a proper inspection either in the unloaded consignment (6.1. and 6.2.a.) or during unloading (6.2.b.) are hidden defects. The above paragraphs do not apply to hidden defects. Hidden defects must be reported immediately upon discovery. All economically and operationally reasonable measures must be taken to detect any hidden defects as soon as possible.
6.5 The notification of defects must be made as follows:
a. at the place of departure, orally or by telephone; written confirmation is required;
b. at the place of arrival, by telephone or telegraph with confirmation in writing or via written telecommunication.
6.6 The notification of defects must contain:
a. a detailed and precise description of the defect;
b. the wagon number or police registration number of the lorry;
c. the place of departure;
d. the indication of any other fact from which it can be inferred that the goods delivered and the goods which are the subject of the complaint are identical. The information under b. and c. can only be requested if it is evident from the dispatch note or the accompanying documents.
6.7 If the Buyer or its authorised representative has purchased or accepted the goods after inspection, any complaint is excluded.
6.8 In addition to the provisions of Paragraphs 1 to 6, the Buyer shall fulfil its obligations to inspect and give notice of defects pursuant to Art. 377 of the German Commercial Code (HGB).
6.9 With regard to defects of quality and quantity, the dispatch weight shall be decisive. The Buyer shall be responsible for the customary shrinkage in transit.
6.10. In the event of a defect in the goods for which the Seller is responsible, the Seller shall be obliged, without prejudice to the Buyer’s right to withdraw from the contract, to reduce the sales price appropriately or to provide subsequent fulfilment, unless the Seller is entitled to refuse subsequent fulfilment on the basis of the statutory provisions. In the event of subsequent fulfilment, the Buyer shall grant the Seller a reasonable period of time for subsequent fulfilment. Subsequent fulfilment shall be effected by means of the delivery of new goods.
If the subsequent fulfilment fails, the Buyer may, at its discretion, demand a reduction in the purchase price (abatement) or declare its withdrawal from the contract. Rectification shall be deemed to have failed after the second unsuccessful attempt, unless further attempts at rectification are appropriate and reasonable for the Buyer due to the subject matter of the contract.
6.11. The Buyer’s warranty claims shall expire one year after delivery of the goods to the Buyer, unless the Seller has fraudulently concealed the defect, in which case the statutory provisions shall apply.
7. EXPERT PROCEEDINGS
7.1 If a delivery is objected to pursuant to Section 6 and the parties do not immediately reach an amicable settlement, the Buyer shall appoint an expert designated by a competent authority in order for him/her to prepare an expert report.
7.2 The Seller or its authorised representative must be informed without delay of the time and day of the expert’s examination. Both parties must attend the examination, but not the preparation of the report and, other than the right to be heard, have no right to interfere in the preparation of the report. If the fact of the existence of a dispatch or inspection report is noted in the consignment note or invoice or brought to their attention, both parties are obliged to submit this report to the expert.
7.3 The goods may not be sold to the expert.
7.4 The costs of the expert’s report shall be borne by the Seller if the complaint is justified and by the Buyer if the complaint is unjustified.
7.5 If a party is not represented at the appraisal, the expert’s report must be sent to it by the other party without delay.
8. LIABILITY
8.1 The Seller shall be liable without limitation pursuant to the statutory provisions for any harm to life, limb and health resulting from a negligent or intentional breach of duty by the Seller, its legal representatives or its vicarious agents, as well as for any loss or damage covered by liability under the German Product Liability Act. For any loss and damage not covered by sentence 1 and which arise from wilful or grossly negligent breaches of contract or fraudulent intent on the part of the Seller, its legal representatives or its vicarious agents, the Seller shall be liable pursuant to the statutory provisions. In this case, however, the liability for loss and damage shall be limited to the foreseeable, typically occurring damage, unless the Seller, its legal representatives or its vicarious agents have acted wilfully.
To the extent that the Seller has given a guarantee of quality and/or durability in respect of the goods or any part thereof, the Seller shall also be liable under this guarantee. However, the Seller shall only be liable for any loss or damage caused by the absence of the guaranteed quality or durability, but which is not produced directly in the goods, if the risk of such damage is clearly covered by the guarantee of quality and durability.
8.2 The Seller shall also be liable for loss or damage caused by simple negligence, insofar as the negligence relates to a breach of contractual obligations, the fulfilment of which is of particular importance for the achievement of the purpose of the contract (cardinal obligations). However, the Seller shall only be liable insofar as the loss or damage is typically associated with the contract and is foreseeable.
8.3 Any further liability shall be excluded irrespective of the legal nature of the asserted claim; this shall also apply in particular to tortious claims or claims for the reimbursement of futile expenses instead of performance; this shall not affect the Seller’s liability pursuant to Sections 5.7, 5.8 and 5.9.
Insofar as the Seller’s liability is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, representatives and vicarious agents.
8.4 The Buyer’s claims for loss or damage due to a defect shall become time-barred one year after delivery of the goods. This shall not apply in the case of any harm to life, limb or health caused by the Seller, its legal representatives or its vicarious agents, or if the Seller or its legal representatives have acted wilfully or with gross negligence, or if any simple vicarious agent of the Seller has acted wilfully.
9. LABELLING OF THE GOODS
9.1 Upon acceptance of the goods, the Buyer is obliged to check the packaging and labelling for completeness and correctness, pursuant to the statutory provisions.
9.2 This applies in particular to self-service packaged goods and if the Sellers uses a retail price on the Buyer’s instructions.
9.3 In the case of justified complaints, the Seller is solely obliged to relabel; any further liability is excluded.
10. RETENTION OF TITLE
10.1 The delivered goods shall remain the property of the Seller until all claims to which the Seller is entitled against the Buyer, as well as any future claims, have been fulfilled. Prior to this, the Seller is prohibited from pledging and transferring the goods by way of security.
10.2 Resale is only permitted to resellers in the ordinary course of retention of title until full payment has been made.
10.3 In the event of resale, the Buyer hereby assigns to the Seller, by way of security, its future claims against its customers arising from the resale. The Seller accepts said assignment.
10.4 The Buyer is obliged to notify the Seller upon request of the assignment of claims and to provide the Seller with all information necessary to assert the claim, in particular to name its respective customers and to expressly inform them of the existing retention of title in the case of credit sales. The Seller is also prohibited from agreeing with his buyer on a prohibition of assignment of the purchase price claim.
10.5 In the event of seizures or other interventions by third parties, the Buyer must notify the Seller immediately in writing so that the Seller can bring an action pursuant to Art. 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse the Seller for the judicial and extrajudicial costs of an action pursuant to Art. 771 ZPO, the Buyer shall be liable for the loss incurred by the Seller.
10.6 The Seller may revoke the authorisation to resell if the Buyer suspends payments, if an application is made to open bankruptcy, composition or insolvency proceedings, if the Buyer has to make an affidavit regarding its financial circumstances or if payments are suspended. In such cases, the Seller shall be entitled to demand that the Buyer surrender the goods subject to retention of title. In order to establish ownership, the Seller shall be permitted the necessary access to the storerooms at any time.
10.7 The seller reserves the right to segregation and substitute segregation pursuant to Arts. 47 & 48 of the German Insolvency Code.
10.8 In the event of further processing pursuant to Art. 950 BGB, the Buyer hereby transfers ownership of the items produced in this way pursuant to Art. 930 BGB to the Seller, for whom it takes these items into safekeeping.
10.9 The same shall apply in the event of combination or mixing with regard to the quota of joint ownership in the combined/mixed items.
10.10. If the Buyer processes or remodels the goods, this processing or remodelling shall be carried out for the Seller. Accordingly, the latter shall become the direct owner of the newly manufactured item. If this is not possible for legal reasons, the Seller and the Buyer agree that the Seller shall become the owner of the new item at any time during the processing or remodelling in the amount of the quota resulting from the relation between the value of the processed, remodelled or combined goods subject to retention of title and the value of the new item.
10.11. The Buyer hereby assigns to the Seller any claims arising from the sale of the new item. The assignment shall only apply to the amount corresponding to the value of the processed, remodelled or combined reserved goods invoiced by the Seller plus a surcharge of 10 %. The Buyer hereby assigns the first-ranking share of the claim to the Seller.
10.12. The Seller undertakes, at the request of the Buyer, to release the securities to which it is entitled to the extent that the realisable value of its securities exceeds the claims to be secured by more than 10%. It shall correspond to the Seller to select the securities to be released.
10.13. If the Seller’s goods are resold together with other items without an individual price having been agreed for the goods, the Buyer shall assign to the Seller, with priority over the remaining claim, that part of the total price claim which corresponds to the value of the delivered goods plus a surcharge of 10 %. Until revocation, the Buyer is authorised to collect the assigned claims.
11 PACKAGING
11.1 The Buyer shall only receive returnable packaging on loan for the transport of the purchased goods. Empty packaging must be returned within three days. The new value of equivalent packaging must be paid for any packaging that is not returned.
11.2 The Buyer shall return transport packaging to the Seller pursuant to the transport packaging provisions corresponding to the delivery process at the place where the goods are delivered. At the time of return, the transport packaging must be in a condition that allows it to be recycled in accordance with the German Packaging Ordinance.
12. FINAL PROVISION
In the event that one or more of provisions of these General Terms and Conditions were or became wholly or partly invalid, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic effect comes as close as possible to that of the invalid provision.