General terms and conditions
General Terms of Purchase (valid as of July 2009)
I. Scope
1. The following General Terms of Purchasing shall apply to contracts of the Chickero Handel- u.Dienstleistungsagentur UG.
2. In business transactions between this company and any other company, public corporation and/or legal entity under public separate fund assets the following terms of business are applicable to the exclusion of any other terms.
3. Our terms of business shall also apply to all future business relation.
4. Any terms and conditions of our contractual partner which deviate from these conditions shall be invalid.
5. These terms shall apply even if we carry out a business transaction in the full knowledge that the terms of trade of our contractual partner are diametrically op- posed to, or deviate from, ours.
6. Our terms of business shall apply to the extent to which no other terms have been agreed with our contract partners in writing.
II. Applicable Law
Unless our terms of trade contain special provisions, the laws governing the relations between domestic parties at our registered office (German law) apply under exclusion of any foreign law. The UN Convention on the International Sale of Goods (CISG) shall be excluded.
III. Place of Performance
The place of performance for all obligations arising from the order shall be our registered office.
IV. Non-Disclosure
1. Any information and all documents, technical or commercial know-how including but without limitation to illustrations, drawings, calculations, which we mark as being confidential must be treated strictly confidential. None of our contract partners is allowed to disclose any confidential information to any third party unless with our express written information.
2. Confidential information which has been made available must only be used for attaining the purpose of the contract. On completion or termination of the contract all confidential documents provided by us must be returned immediately and without our request required.
3. The obligation of secrecy survives the completion or termination of the contract.
4. The obligation of secrecy becomes ineffective if and to the extent to which the contents of the documents or information enter the public domain.
5. Other rights, in particular, ownership, trademarks and copyright, are reserved.
V. Set Off and Retention
No contract partner is entitled to set off any claim against any amount owing to us unless the counterclaim is undisputed and part of a non-appealable declaratory judgment. A contract partner's right of retention is limited to claims under the same contractual relationship.
VI. Transfer of Rights and Obligations
No contract partner is entitled to transfer or assign any rights or obligations without obtaining our written agreement. Where the assignment involves a financial claim, we are entitled to make payment to our contract partner as if the claim had not been assigned.
VII. Orders
Our orders are only binding if they are made in writing or if they have been confirmed in writing following a oral order or an order given by telephone.
VIII. Prices
1. The prices given in our orders are fixed prices. They are inclusive of the current rate of value-added tax. In the case of "carriage paid" they include packaging and for imports they include import duties and other levies.
2. If we agree with a contractual partner to deliver "prices subject to confirmation", then the price shall be the one valid on the day of delivery.
3. In the case of a contractual agreement which foresees the regular call-off of goods by us or regular deliveries to us, our contractual partner hereby agrees to consider price changes in our favour even if prices have been fixed, in particular if he reduces his prices in general or for a number of his customers.
4. Paragraph 3 shall also apply to contracts where we wish to call off the goods four months after finalising the contract or later.
5. We will only accept the charging of fees or remuneration for visits or for the draw- ing up of offers, brochures, cost estimates, etc. if this has been expressly agreed with us.
IX. Nature of the Goods
1. If, when we order, we refer to drawings, diagrams, calculations, plans and toler- ances which have been provided, then we hereby agree with our contractual partner that the nature and features based on these should represent the contractual quality which is to be supplied. This also applies to the outward appearance and the marking of the goods in accor- dance with our instructions.
2. The provision of drawings, diagrams, calculations, plans, and tolerances by us does not relieve the contractual partner from his obligation to check these for accu- racy and suitability for the production and supply of the ordered products.
3. If our order is based on samples, patterns or specimens, then the contractual partner hereby guarantees that this is the quality which he will deliver.
4. If we order on the basis of earlier orders or within the framework of a permanent agreement to supply several products of the same type, then the contractual partner shall be obliged to inform us before delivering to us of any changes in any specifica- tions, production or production process, the composition of the goods and any ingre- dients as well as any changes in sub-suppliers.
5. Any product changes against our order regarding quantity and quality and any other subsequent changes to the contract shall be deemed agreed only if they have been expressly approved by us in writing.
X. Packaging
1. The return of packaging requires a special agreement. If the return of packaging material has been agreed, then any return shall be at the risk and for the cost of our contractual partner.
2. At our request and at his cost, our contractual partner must take back and/or dispose of non-recyclable packaging material. If he does not do so, despite being set a deadline, then he must reimburse us for any costs which we incur and any resulting damages.
XI. Delivery and Late Delivery
1. The delivery deadlines agreed in our order are binding. The delivery period shall commence on the order date.
2. The goods must have been received by us or at a point of reception stipulated by us within the time allowed for delivery or on the deadline itself.
3. If delays are to be expected, then our contractual partner must inform us of this immediately in writing.
4. For freight deliveries, an advice note must be sent to us separately on the day of dispatch.
5. Our order numbers, the quantity and the unit of quantity, gross, net and, as neces- sary, the invoiced weight, article description and article number should be shown on delivery notes and packing slips. In the case of part deliveries the quantity still to be delivered should be shown.
6. For delayed deliveries we shall be able to claim against our contractual partner a one-off lump sum for damages to the tune of 1.5% of the agreed purchase price per completed calendar week - in total a maximum lump sum of 10% of the purchase price. Any further rights and claims which we have by law (withdrawal or compensa- tion) shall remain unaffected. The contractual partner shall have the right to demon- strate to us that no damages or considerably lower damages have arisen as a result of the delay. The damages shall be set higher or lower if we show that the damages have been higher or if our contractual partner demonstrates that the damages were lower.
XII. Buy-Off
We are not obliged to accept goods before expiry of the delivery deadline or before the delivery date.
XIII. Invoicing and Payment
1. So that we can process invoices quickly and correctly, our contractual partner shall be obliged to put on all his invoices our order number, the quantity and the units, gross, net and, as necessary the invoiced weight, the article description with article number, and in the case of partial deliveries the amounts still to be delivered.
2. Without these details we cannot be held responsible for any delays in processing and settling the invoice.
3. If we pay within 8 days of a complete and perfect delivery of the goods and receipt of the invoice, then our contractual partner agrees to grant us a 3% cash discount.
4. Any delay caused by incorrect or incomplete invoicing shall not adversely affect the above-mentioned period for cash discount.
5. Unless the delay is caused by gross negligence or is deliberate, any compensation claim by our contractual partner in the case of a delay in payment by us shall be limited to damages which for us are typically foreseeable in such a situation, or to the damages actually announced before the commencement of the delay.
6. Unless the delay is caused by gross negligence or is deliberate, any claim to which our contractual partner is entitled in respect of compensation instead of performance shall be maximally restricted to the value of the order.
XIV. Retention of Ownership
1. Inasmuch as we provide goods or parts to our contractual partners we reserve right of ownership in them.
2. Any processing or remodelling (reshaping, conversion) of the product by our contractual partner is done in our name. If the product is joined to, or mixed with, other movable items, then we shall acquire part ownership in the new object to the ratio of the value of our provided product to the other items at the time of the reshap- ing or mixing.
3. Our contractual partner must ensure any tools, machines, machine parts or other equipment provided by us at his own cost against damage from fire or water and against theft.
4. We are entitled to take out corresponding insurance under Paragraph 3 if our contractual partner, on demand and after we have set him a deadline, is unable to demonstrate that he has insured the tools, machines, machine parts or other equip- ment provided by us against the aforementioned risks.
5. Our contractual partner is obliged to carry out the requisite maintenance and service work on the tools, machines, machine parts or other plant which we have made available to him at his own cost and in good time and to inform us immediately of any breakdowns.
XV. Faulty Products
1. Our company concludes quality assurance agreements with our contractual part- ners. Our contractual partners are obliged to carry out thorough checks on goods leaving their premises and to bring to our attention any misgivings they may have regarding any faults or deficiencies.
2. As concerns our obligation to check and complain under § 377 HGB we are only obliged to carry out a minimum check, comprising the delivery note and any transport damage.
3. In the case of a fault or deficiency we are entitled, within the framework of the obligation to completely fulfil a contract, to require from the contractual partner, at our discretion, that he put right the fault or deliver a new item. If we are entitled to with- draw from the contract, then we can limit the withdrawal to the faulty part of the order, or we can declare our withdrawal from the complete order. We shall be unreservedly entitled to all claims and rights arising from this under the law.
4. The guarantee period shall be 36 months, calculated from the time of the transfer of risk.
5. Inasmuch as we are entitled to recourse in respect of our contractual partner under § 478 BGB (Civil Code), then the period of limitation for our particular claims under §§ 437 and 478 II BGB against our contractual partner for a fault in a newly produced item sold to our buyer shall commence at the earliest 6 months after the point in time at which we met the claims of our buyer.
6. If the goods supplied by our contractual partner are faulty, and if our contractual partner can therefore also claim a re-work, replacement, assignment, repayment of (a part of) the price, compensation for costs incurred or other damages against his sub- suppliers or subcontractors, then he hereby agrees, by way of precaution, to assign these claims to us which we hereby accept. This assignment for safety reasons shall cease to apply if our contractual partner has fulfilled all claims in respect of us which refer to the faulty goods. We will not disclose this assignment provided the supplier fulfils his faulty obligations towards us in a correct manner.
7. If our contractual partner has improved, exchanged, or repaired the goods sup- plied, or parts of them, then there shall be a new guarantee time of 36 months for the delivered or exchanged part or the repair work, from the time of the new delivery, the exchange or the hand-over of the repair work.
8. The stipulations in this section does not shorten any longer legal periods of limita- tion, nor does it limit the statutory provisions on the stoppage and re-commencement of deadlines.
XVI. Liability of our Contractual Partner
1. If claims are made against us as a result of product liability or for other liabilities, and if our contractual partner is responsible for the fault or product damage, or if the cause results from his domain or organisational entity, then our contractual partner must release us from any liability resulting therefrom on first demand, inasmuch as he himself is liable via a relationship to a third party.
2. Within the framework of his liability for damages under 1), our contractual partner is also obliged to reimburse any expenses which have resulted from, or in connection with, any recall action carried out by us. Inasmuch as is possible and reasonable, we will inform our contractual partner of the content and scope of the recall measures– and will give him the chance to state his case.
3. Our contractual partner is obliged to take out corresponding third party insurance with a flat-rate cover of 500.000,00 Euros per person/material damage. Our contractual partner must prove that he has taken out this insurance and that he is paying the premiums.
4. Our other legal claims and rights remain in place and are unaffected by the above provision.
XVII. Trademark Rights and the Rights of Third Parties
1. The supplier guarantees that in connection with his delivery, as well as via his delivery and via its contractual use by us, the rights of third parties are not infringed.
2. In the event that we are held liable by any third party in such respect, our Contract- ing Partner shall be obliged upon the first request in writing to release us from said liability and this latter provision shall also apply, in the event that we guaranteed to such third party the release from any third-party proprietary rights and/or domestic or foreign property rights; we shall not be entitled to enter into any agreement, including, in particular, a conciliation, with such third party without the consent of our Contracting Partner.
3. This obligation to exempt refers to all costs which we of necessity incur as a result of, or in connection with, any claims of a third party, or to costs which we under- standably assume to be expenses incurred to correctly settle the claim.
4. The period of limitation for these claims shall be ten years, calculated from the time of the transfer of the goods or the execution of the performance.
5. Our contractual partner is obliged to inform us of any of his own trade mark rights which may exist in respect of his performance to us.
XVIII. Liability
1. If we are obliged to pay damage under applicable law and these General Terms, our liability is limited in the event of normal negligence: We are only liable for infringement of any essential duties under the contract or of any cardinal duty and our liability is limited to typical damage that was foreseeable at the time the contract was concluded. This limitation does not extend to physical injury, including death, or damage to health. If the damage is covered by an insurance concluded for the particular event by our contract partner (excluding fixed-sum insurance), we are only liable for any related disadvantage suffered by our contract partner, e. g., higher insurance premium or interest until the time payment is made by the insurer. our legal representatives, servants or employees for damage caused by them due to normal negligence is excluded.
XIX. Appliance of bsci Code of conduct
The contracting party is obliged to apply the bsci Code of Conduct (www.bsci- eu.com) and to arrange the same agreement with the subcontractors and service providers. Upon request our contracting parties will prove this to us.
XX. Contractual Language
The language of the contract is German. If any contract documents are drawn up in a language other than German, the legal relationship between the parties, if any, is exclusively defined by the German version of the contract.
XXI. Place of Litigation
For all disputes arising from this business relationship, including those arising from bills of exchange or cheques, any legal proceedings must be brought at the court having jurisdiction, both internationally and nationally, for the registered office of our company. We can bring action against our contract partner in the local court with jurisdiction over the contract partner's or any of his affiliated company's registered office.
XXII. Omissions
If it is found that any provision deemed agreed and considered necessary to be agreed between us and our contract partner in reality does not represent effective agreement, we are entitled, complementing what has been agreed, to close loophole by an effective provision giving due consideration to the interests of both parties.
XXIII. Severability Clause
If it is found that any provision in a contract is or becomes ineffective, such ineffec- tiveness does not affect the contract as a whole. If any provision of the contract is or becomes ineffective for reasons other than §§ 305 – 310 BGB (German civil code), we and our contract partner will replace the ineffective provision by an effective one as closely as possible reflecting the eco- nomic intention of the parties. This also applies if any provision of a contract is or becomes ineffective for reasons of §§ 305 – 310 BGB (German civil code) provided that there is no provision regarding this matter in the law.
General Terms of Sale (valid as of May 2007)1. The following General Terms of Purchasing shall apply to contracts of the Chickero Handel- u.Dienstleistungsagentur UG.
2. In business transactions between this company and any other company, public corporation and/or legal entity under public separate fund assets the following terms of business are applicable to the exclusion of any other terms.
3. Our terms of business shall also apply to all future business relation.
4. Any terms and conditions of our contractual partner which deviate from these conditions shall be invalid.
5. These terms shall apply even if we carry out a business transaction in the full knowledge that the terms of trade of our contractual partner are diametrically op- posed to, or deviate from, ours.
6. Our terms of business shall apply to the extent to which no other terms have been agreed with our contract partners in writing.
II. Applicable Law
Unless our terms of trade contain special provisions, the laws governing the relations between domestic parties at our registered office (German law) apply under exclusion of any foreign law. The UN Convention on the International Sale of Goods (CISG) shall be excluded.
III. Place of Performance
The place of performance for all obligations arising from the order shall be our registered office.
IV. Non-Disclosure
1. Any information and all documents, technical or commercial know-how including but without limitation to illustrations, drawings, calculations, which we mark as being confidential must be treated strictly confidential. None of our contract partners is allowed to disclose any confidential information to any third party unless with our express written information.
2. Confidential information which has been made available must only be used for attaining the purpose of the contract. On completion or termination of the contract all confidential documents provided by us must be returned immediately and without our request required.
3. The obligation of secrecy survives the completion or termination of the contract.
4. The obligation of secrecy becomes ineffective if and to the extent to which the contents of the documents or information enter the public domain.
5. Other rights, in particular, ownership, trademarks and copyright, are reserved.
V. Set Off and Retention
No contract partner is entitled to set off any claim against any amount owing to us unless the counterclaim is undisputed and part of a non-appealable declaratory judgment. A contract partner's right of retention is limited to claims under the same contractual relationship.
VI. Transfer of Rights and Obligations
No contract partner is entitled to transfer or assign any rights or obligations without obtaining our written agreement. Where the assignment involves a financial claim, we are entitled to make payment to our contract partner as if the claim had not been assigned.
VII. Orders
Our orders are only binding if they are made in writing or if they have been confirmed in writing following a oral order or an order given by telephone.
VIII. Prices
1. The prices given in our orders are fixed prices. They are inclusive of the current rate of value-added tax. In the case of "carriage paid" they include packaging and for imports they include import duties and other levies.
2. If we agree with a contractual partner to deliver "prices subject to confirmation", then the price shall be the one valid on the day of delivery.
3. In the case of a contractual agreement which foresees the regular call-off of goods by us or regular deliveries to us, our contractual partner hereby agrees to consider price changes in our favour even if prices have been fixed, in particular if he reduces his prices in general or for a number of his customers.
4. Paragraph 3 shall also apply to contracts where we wish to call off the goods four months after finalising the contract or later.
5. We will only accept the charging of fees or remuneration for visits or for the draw- ing up of offers, brochures, cost estimates, etc. if this has been expressly agreed with us.
IX. Nature of the Goods
1. If, when we order, we refer to drawings, diagrams, calculations, plans and toler- ances which have been provided, then we hereby agree with our contractual partner that the nature and features based on these should represent the contractual quality which is to be supplied. This also applies to the outward appearance and the marking of the goods in accor- dance with our instructions.
2. The provision of drawings, diagrams, calculations, plans, and tolerances by us does not relieve the contractual partner from his obligation to check these for accu- racy and suitability for the production and supply of the ordered products.
3. If our order is based on samples, patterns or specimens, then the contractual partner hereby guarantees that this is the quality which he will deliver.
4. If we order on the basis of earlier orders or within the framework of a permanent agreement to supply several products of the same type, then the contractual partner shall be obliged to inform us before delivering to us of any changes in any specifica- tions, production or production process, the composition of the goods and any ingre- dients as well as any changes in sub-suppliers.
5. Any product changes against our order regarding quantity and quality and any other subsequent changes to the contract shall be deemed agreed only if they have been expressly approved by us in writing.
X. Packaging
1. The return of packaging requires a special agreement. If the return of packaging material has been agreed, then any return shall be at the risk and for the cost of our contractual partner.
2. At our request and at his cost, our contractual partner must take back and/or dispose of non-recyclable packaging material. If he does not do so, despite being set a deadline, then he must reimburse us for any costs which we incur and any resulting damages.
XI. Delivery and Late Delivery
1. The delivery deadlines agreed in our order are binding. The delivery period shall commence on the order date.
2. The goods must have been received by us or at a point of reception stipulated by us within the time allowed for delivery or on the deadline itself.
3. If delays are to be expected, then our contractual partner must inform us of this immediately in writing.
4. For freight deliveries, an advice note must be sent to us separately on the day of dispatch.
5. Our order numbers, the quantity and the unit of quantity, gross, net and, as neces- sary, the invoiced weight, article description and article number should be shown on delivery notes and packing slips. In the case of part deliveries the quantity still to be delivered should be shown.
6. For delayed deliveries we shall be able to claim against our contractual partner a one-off lump sum for damages to the tune of 1.5% of the agreed purchase price per completed calendar week - in total a maximum lump sum of 10% of the purchase price. Any further rights and claims which we have by law (withdrawal or compensa- tion) shall remain unaffected. The contractual partner shall have the right to demon- strate to us that no damages or considerably lower damages have arisen as a result of the delay. The damages shall be set higher or lower if we show that the damages have been higher or if our contractual partner demonstrates that the damages were lower.
XII. Buy-Off
We are not obliged to accept goods before expiry of the delivery deadline or before the delivery date.
XIII. Invoicing and Payment
1. So that we can process invoices quickly and correctly, our contractual partner shall be obliged to put on all his invoices our order number, the quantity and the units, gross, net and, as necessary the invoiced weight, the article description with article number, and in the case of partial deliveries the amounts still to be delivered.
2. Without these details we cannot be held responsible for any delays in processing and settling the invoice.
3. If we pay within 8 days of a complete and perfect delivery of the goods and receipt of the invoice, then our contractual partner agrees to grant us a 3% cash discount.
4. Any delay caused by incorrect or incomplete invoicing shall not adversely affect the above-mentioned period for cash discount.
5. Unless the delay is caused by gross negligence or is deliberate, any compensation claim by our contractual partner in the case of a delay in payment by us shall be limited to damages which for us are typically foreseeable in such a situation, or to the damages actually announced before the commencement of the delay.
6. Unless the delay is caused by gross negligence or is deliberate, any claim to which our contractual partner is entitled in respect of compensation instead of performance shall be maximally restricted to the value of the order.
XIV. Retention of Ownership
1. Inasmuch as we provide goods or parts to our contractual partners we reserve right of ownership in them.
2. Any processing or remodelling (reshaping, conversion) of the product by our contractual partner is done in our name. If the product is joined to, or mixed with, other movable items, then we shall acquire part ownership in the new object to the ratio of the value of our provided product to the other items at the time of the reshap- ing or mixing.
3. Our contractual partner must ensure any tools, machines, machine parts or other equipment provided by us at his own cost against damage from fire or water and against theft.
4. We are entitled to take out corresponding insurance under Paragraph 3 if our contractual partner, on demand and after we have set him a deadline, is unable to demonstrate that he has insured the tools, machines, machine parts or other equip- ment provided by us against the aforementioned risks.
5. Our contractual partner is obliged to carry out the requisite maintenance and service work on the tools, machines, machine parts or other plant which we have made available to him at his own cost and in good time and to inform us immediately of any breakdowns.
XV. Faulty Products
1. Our company concludes quality assurance agreements with our contractual part- ners. Our contractual partners are obliged to carry out thorough checks on goods leaving their premises and to bring to our attention any misgivings they may have regarding any faults or deficiencies.
2. As concerns our obligation to check and complain under § 377 HGB we are only obliged to carry out a minimum check, comprising the delivery note and any transport damage.
3. In the case of a fault or deficiency we are entitled, within the framework of the obligation to completely fulfil a contract, to require from the contractual partner, at our discretion, that he put right the fault or deliver a new item. If we are entitled to with- draw from the contract, then we can limit the withdrawal to the faulty part of the order, or we can declare our withdrawal from the complete order. We shall be unreservedly entitled to all claims and rights arising from this under the law.
4. The guarantee period shall be 36 months, calculated from the time of the transfer of risk.
5. Inasmuch as we are entitled to recourse in respect of our contractual partner under § 478 BGB (Civil Code), then the period of limitation for our particular claims under §§ 437 and 478 II BGB against our contractual partner for a fault in a newly produced item sold to our buyer shall commence at the earliest 6 months after the point in time at which we met the claims of our buyer.
6. If the goods supplied by our contractual partner are faulty, and if our contractual partner can therefore also claim a re-work, replacement, assignment, repayment of (a part of) the price, compensation for costs incurred or other damages against his sub- suppliers or subcontractors, then he hereby agrees, by way of precaution, to assign these claims to us which we hereby accept. This assignment for safety reasons shall cease to apply if our contractual partner has fulfilled all claims in respect of us which refer to the faulty goods. We will not disclose this assignment provided the supplier fulfils his faulty obligations towards us in a correct manner.
7. If our contractual partner has improved, exchanged, or repaired the goods sup- plied, or parts of them, then there shall be a new guarantee time of 36 months for the delivered or exchanged part or the repair work, from the time of the new delivery, the exchange or the hand-over of the repair work.
8. The stipulations in this section does not shorten any longer legal periods of limita- tion, nor does it limit the statutory provisions on the stoppage and re-commencement of deadlines.
XVI. Liability of our Contractual Partner
1. If claims are made against us as a result of product liability or for other liabilities, and if our contractual partner is responsible for the fault or product damage, or if the cause results from his domain or organisational entity, then our contractual partner must release us from any liability resulting therefrom on first demand, inasmuch as he himself is liable via a relationship to a third party.
2. Within the framework of his liability for damages under 1), our contractual partner is also obliged to reimburse any expenses which have resulted from, or in connection with, any recall action carried out by us. Inasmuch as is possible and reasonable, we will inform our contractual partner of the content and scope of the recall measures– and will give him the chance to state his case.
3. Our contractual partner is obliged to take out corresponding third party insurance with a flat-rate cover of 500.000,00 Euros per person/material damage. Our contractual partner must prove that he has taken out this insurance and that he is paying the premiums.
4. Our other legal claims and rights remain in place and are unaffected by the above provision.
XVII. Trademark Rights and the Rights of Third Parties
1. The supplier guarantees that in connection with his delivery, as well as via his delivery and via its contractual use by us, the rights of third parties are not infringed.
2. In the event that we are held liable by any third party in such respect, our Contract- ing Partner shall be obliged upon the first request in writing to release us from said liability and this latter provision shall also apply, in the event that we guaranteed to such third party the release from any third-party proprietary rights and/or domestic or foreign property rights; we shall not be entitled to enter into any agreement, including, in particular, a conciliation, with such third party without the consent of our Contracting Partner.
3. This obligation to exempt refers to all costs which we of necessity incur as a result of, or in connection with, any claims of a third party, or to costs which we under- standably assume to be expenses incurred to correctly settle the claim.
4. The period of limitation for these claims shall be ten years, calculated from the time of the transfer of the goods or the execution of the performance.
5. Our contractual partner is obliged to inform us of any of his own trade mark rights which may exist in respect of his performance to us.
XVIII. Liability
1. If we are obliged to pay damage under applicable law and these General Terms, our liability is limited in the event of normal negligence: We are only liable for infringement of any essential duties under the contract or of any cardinal duty and our liability is limited to typical damage that was foreseeable at the time the contract was concluded. This limitation does not extend to physical injury, including death, or damage to health. If the damage is covered by an insurance concluded for the particular event by our contract partner (excluding fixed-sum insurance), we are only liable for any related disadvantage suffered by our contract partner, e. g., higher insurance premium or interest until the time payment is made by the insurer. our legal representatives, servants or employees for damage caused by them due to normal negligence is excluded.
XIX. Appliance of bsci Code of conduct
The contracting party is obliged to apply the bsci Code of Conduct (www.bsci- eu.com) and to arrange the same agreement with the subcontractors and service providers. Upon request our contracting parties will prove this to us.
XX. Contractual Language
The language of the contract is German. If any contract documents are drawn up in a language other than German, the legal relationship between the parties, if any, is exclusively defined by the German version of the contract.
XXI. Place of Litigation
For all disputes arising from this business relationship, including those arising from bills of exchange or cheques, any legal proceedings must be brought at the court having jurisdiction, both internationally and nationally, for the registered office of our company. We can bring action against our contract partner in the local court with jurisdiction over the contract partner's or any of his affiliated company's registered office.
XXII. Omissions
If it is found that any provision deemed agreed and considered necessary to be agreed between us and our contract partner in reality does not represent effective agreement, we are entitled, complementing what has been agreed, to close loophole by an effective provision giving due consideration to the interests of both parties.
XXIII. Severability Clause
If it is found that any provision in a contract is or becomes ineffective, such ineffec- tiveness does not affect the contract as a whole. If any provision of the contract is or becomes ineffective for reasons other than §§ 305 – 310 BGB (German civil code), we and our contract partner will replace the ineffective provision by an effective one as closely as possible reflecting the eco- nomic intention of the parties. This also applies if any provision of a contract is or becomes ineffective for reasons of §§ 305 – 310 BGB (German civil code) provided that there is no provision regarding this matter in the law.
I. Scope
1. These General Terms of Sale shall apply to contracts of Chickero Handel- u.Dienstleistungsagentur UG.
2. In business transactions between this company and any other company, public corporation and/or legal entity under public separate fund assets the following terms of business are applicable to the exclusion of any other terms.
3. Our terms of business shall also apply to all future business relation.
4. Any terms and conditions of our contractual partner which deviate from these conditions shall be invalid.
5. These terms shall apply even if we carry out a business transaction in the full knowledge that the terms of trade of our contractual partner are diametrically opposed to, or deviate from, ours.
6. Our terms of business shall apply to the extent to which no other terms have been agreed with our contract partners in writing.
II. Applicable law
Unless our terms of business contain particular provisions, the laws governing the relations between domestic parties at our registered office (German law) apply under exclusion of any foreign law. The application of the UN Convention on Contracts of the International Sale of Goods (CISG) shall be excluded.
III. Place of performance
The place of performance for all obligations arising from the order shall be our registered office.
IV. Secrecy
1. Any information and all documents, technical or commercial know-how including but without limitation to illustrations, drawings, calculations, which we mark as being confidential must be treated strictly confidential. None of our contract partners is allowed to disclose any confidential information to any third party unless with our express written information.
2. Confidential information which has been made available must only be used for attaining the purpose of the contract. On completion or termination of the contract all confidential documents provided by us must be returned immediately and without our request required.
3. The obligation of secrecy survives the completion or termination of the contract.
4. The obligation of secrecy becomes ineffective if and to the extent to which the contents of the documents or information enter the public domain.
5. Other rights, in particular, ownership, trademarks and copyright, are reserved.
V. Set Off and Retention
No contract partner is entitled to set off any claim against any amount owing to us unless the counterclaim is undisputed and part of a non-appealable declaratory judgment. A contract partner's right of retention is limited to claims under the same contractual relationship.
VI. Assignment of rights and obligations
No contract partner is entitled to transfer or assign any rights or obligations without obtaining our written agreement. Where the assignment involves a financial claim, we are entitled to make payment to our contract partner as if the claim had not been assigned.
VII. Conclusion of contract
1. Our offers, in particular offers in printed material and advertisements, are without obligation and are to be understood as solicitation for submission of a binding proposal.
2. Any order placed by our contracting partner constitutes a binding proposal with a validity of two weeks. No contract is concluded unless we confirm acceptance of the order within the validity period in writing or make delivery.
3. We are obliged to inform the contract partner without delay if we do not accept an order.
VIII. Prices
1. Our prices are quoted exclusive of applicable value-added tax. Unless agreed otherwise, our prices are "ex works" prices, exclusive of packaging, which is billed extra. For shipments outside Germany customs fees and other charges will be invoiced separately.
2. "Prices are subject to change" means that the contract partner agrees that we sell the goods at the price effective on the date of shipment.
3. For regular shipments of goods to customers, even where a price is agreed at the time of conclusion of contract, we reserve the right to adjust prices upward or downward if market prices or costs change after the conclusion of contract, for example as a result of higher taxes, customs fees or other charges, purchasing or examination fees, freight, transshipment or rates of exchange.
4. Clause 3 above also applies to contracts for delivery of goods shipment of which is to be made at the end of four months after the conclusion of contract or later. If pursuant to the above provisions (in clause 3 and clause 4) the agreed price increases by more than 5 %, the contract partner is entitled to cancel the contract or in the case of clause 3 or other types of continuous obligation to terminate the contract.
5. Slaughter house compensation payment, if any, must always be made by the buyer, who is also obliged to register.
6. Our bill is for the weight calculated by us as seller at the time of delivery. We do not credit for natural loss of weight during transport or interim storage.
7. We will only accept the charging of fees or remuneration for visits or for the drawing up of offers, brochures, cost estimates, etc. if this has been expressly agreed with us.
IX. Nature of the goods
1. If the contract is concluded with reference to a product description provided by us, the product data in the product description is agreed as the nature and intended use of the goods.
2. All samples are average samples. If orders are based on samples or specimens, no warranty is made that the character of the goods actually supplied is the same as that of the samples or specimens.
3. It is agreed that quality deviations typical of the goods delivered and deviations of less than 11 % of the size and/or weight specified per unit of weight are acceptable tolerance.
4. No warranty is made for the nature or shelf life or otherwise of the goods.
5. Under contracts providing for the regular supply of goods by us, we reserve the right to change the agreed supplies if so required by changes of the production process, changed packaging, changes of the state of the art, modifications of applicable laws and provisions or in view of recommendations by employer organizations or experts and provided such changes or modifications are reasonable considering the mutual interests of our contract partners.
6. Clause 5 above also applies to contracts for goods to be delivered at the end of four months after conclusion of contract or later.
7. If and to the extent to which we or the manufacturer uses codes or numbers for identification of the order or the object of purchase ordered, no rights can be derived solely on the strength of such use.
X. Delivery and delay
1. We do not accept any procurement risk for which we are not liable based on fault.
2. All deliveries are made in anticipation of timely and correct self-delivery and in case of failure our contract partners have no right to claim damage. We will notify our contract partner of any failure in self-delivery without delay and assign rights, if any, from our liability contract with our suppliers to our contract partner.
3. Dates and terms of delivery, which can be binding or non-binding, must be fixed in writing. The term of delivery commences with the conclusion of contract.
4. Under contracts for the delivery of goods on call, our contract partners must issue the call allowing a reasonably short period between the date of the call and the required date of delivery. If partial deliveries on call are agreed and no additional arrangement is made, the packaging units, assortment and articles of the partial deliveries bear the same percentage relationship as the complete order.
5. If a non-binding date or term of delivery is agreed, we are in default if we fail to make delivery at the agreed date or after the agreed term after a reminder to this effect from our contract partner. If a binding date or term of delivery is agreed and we fail to deliver by the agreed date or within the agreed term, we are in default when the date or term of delivery is exceeded.
6. No damage for delayed delivery can be claimed in case of ordinary negligence.
7. If while we are at default, we cannot make delivery due to contingency and our contract partner can claim compensation of loss due to delay, such compensation is limited to 5 % of the agreed purchase price. If while we are at default, we cannot make delivery due to contingency and our contract partner can claim damage in lieu of delivery, such damage is limited to maximum 30% of the agreed purchase price. We are not liable if the damage would have occurred even if delivery had been made on time.
8. In cases of force majeure or any other event that could not be foreseen and was not caused by our fault and in cases of exceptional circumstances beyond our control to the extent to which such events or circumstances prevent us from delivering the goods at the agreed date or within the agreed term, the date or term of delivery shall be extended by the duration of such event or circumstance preventing the performance of the contract.
9. If the causes in clause 8 above prevent the performance of the contract for a period of more than four months, we and our contract partner are entitled to cancel the contract or any part of it. Other rights of cancellation of our contract partner shall remain unaffected.
10. We are entitled to make partial deliveries of goods to the extent to which this can reasonably be expected to be acceptable to our contract partner and any such partial delivery is regarded as partial fulfillment of the contract.
11. All goods are shipped and any activity incidental to such shipment are undertaken in the name and risk of the ordering party, even if we pay the transport charges. Our contract partner must provide all necessary insurances.
XI. Payment
1. The purchase price and the prices of incidental activities are payable directly to this company on delivery of the goods and submission or transmission of the invoice; all payments must be made without deduction of postage or charges of any kind. No discount is granted unless expressly agreed separately and our contract partner makes payment of the respective amount within a fortnight of the due date. The immediate maturity of any amount due is not affected if a discount is agreed. In case of partial delivery, the price of the goods making up the partial delivery for which an invoice is made out, becomes due and payable to this company directly on delivery of the goods and submission or transmission of the invoice.
2. We are not obliged to make advances. Goods are delivered against advance payment, cash payment or cash on delivery, in particular, to buyers who have not submitted references and who are unknown to us, or to contract partners delaying payment.
3. Payment is considered to be effectively made when the amount has finally been credited to the account of this company.
4. Our contract partner defaults on payment at the latest if he fails to make payment within 14 days after the due date and receipt of the invoice or an equivalent list for payments. If the date at which the invoice or list for payment is delivered is insecure, the contract partner defaults latest 14 days after the due date and receipt of the goods.
5. In case of major violation of contract, e.g., if agreed partial payments are delayed in two consecutive cases, we are entitled to demand immediate payment of all other outstanding amounts irrespective of any agreed credit period, including interest accrued, notwithstanding our acceptance of checks or bills of exchange. The above provision does not apply if the delay or major violation of contract is not the fault of our contract partner.
6. If there is substantial reason to assume that our contract partner will not honor his payment obligations because of lacking creditworthiness, especially if our contract partner starts selling his stocks for the purpose of liquidation, if he ceases payment or requests his creditors for a respite of payment or extrajudicial proceedings are instituted into his assets with the aim of debt settlement pursuant to § 305 I 1 InsO (German bankruptcy law) or he pleads insolvency, we are also entitled to demand immediate payment of all outstanding amounts unless our contract partner provides security within a reasonable period of time allowed by us.
7. In any of the cases in clause 6 above we are also entitled to withdraw from the contract.
8. If our contract partner does not make payment designation, we can in our discretion set off payments received against any outstanding claim or accessory claim which we have on our contract partner.
XII. Delay of acceptance
1. If our contract partner delays acceptance of the goods and we claim damage, the rate of such damage is 15 % of the purchase price. The amount of damage shall be increased or decreased if we are able to prove that the damage is higher or our contract partner can prove that it is lower.
2. If deliveries or partial deliveries are agreed on call without a definite period for performance and our contract partner fails to issue a call for agreed deliveries or partial deliveries within a commercially reasonable call-off period, we can require that the goods are called. If our contract partner fails to comply with our request within a reasonable period allowed by us, we are entitled to terminate the contract and claim damages.
XIII. Treatment of goods, advertising and labeling of goods
1. From the time of delivery of the goods, our contract partner is responsible for compliance with all provisions, regulations, requirements and recommendations by laws, government agencies or the official veterinary regarding the proper treatment, in particular, cooling of the goods during loading and unloading, in transit, storage, sorting or packaging as well as during export or import.
2. Our contract partner shall make public statements concerning our products and their characteristics, in particular, in advertisements or as part of the labeling of our products, only in accordance with product information supplied by us and only in reasonable manner.
3. Our contract partner is responsible that products on sale are designated correctly if the designation is different according to local or trade habit.
XIV. Retention of title
1. We retain title in the goods delivered by us until full payment of all amounts due to us under the respective purchase contract has been made. Title is also retained until payment has been made of all claims, including future claims for whatever cause under the business relationship with our contract partner, which are in temporal or factual connection with the delivery of the goods the title to which is retained.
2. On our contract partner's request we are obliged to waive the retention of title if our contract partner has fulfilled all claims in connection with the goods sold and the fulfillment cannot be contested and reasonable security exists for all other claims in the normal course of business.
3. The contract party is obliged to treat and keep safe all delivered goods with the diligence of a prudent merchant. He shall insure the goods at his own cost if this is part of the due diligence.
4. The contract partner is entitled to process the goods, combine or mingle them with other objects and/or sell them in the ordinary course of business; the contract partner is not entitled to pledge such goods or put them in escrow. Any processing of the goods by our contract partner is for our benefit. We become the owner of the object. If the goods are combined or mingled with other objects that are not our property, we become co-owner of the new object prorated the respective value of the combined or mingled goods at the time of their combination or mingling. The retention of title also extends to the parts or partial quantities of the delivered goods set apart from them.
5. Our contract partner agrees ex ante to assign to us, and we accept the assignment of, any claim against third parties from the sale of delivered or processed goods, including contingent and future claims. This also applies to claims from or in connection with the sale of such delivered or processed goods, which our contract partner has under applicable laws. If the goods are sold after combination or mingling with objects that are not our property, the ex ante assignment to us shall be for an amount equal to the ratio the value of the delivered goods bears to the sales value of the objects made therefrom. In the event of the destruction or damage of the goods delivered or the objects made from the goods delivered, our contract partner agrees ex ante to assign to us any claims under insurance contracts relating to the goods and we accept such assignment. In the event of destruction or damage of the new objects this relation is for an amount equal to the ratio the value of the goods delivered by us bears to the sales value of the objects made therefrom. In the event that the goods delivered and title to which is retained are sold without or after processing with other objects that are not our property, our contract partner agrees to assign to us any claims from the sale only for an amount equal to the ratio the value of the goods delivered by us bears to the sales value of the total quantity. If an open account is agreed, the assignment ex ante relates to the balance at the time of closing the account instead of to each individual claim.
6. The permission to sell in the ordinary course of business is only given to the extent to which we become the owner of the claim for compensation from such sale. Our contract partner is not permitted to enter into an arrangement with a third party, which restricts his right of assigning claims acquired through the sale. If requested by us, our contract partner must inform us without delay of the names of all parties liable for the assigned claims and submit to us all documents and other information necessary to enforce the claims and inform the liable party of the assignment. We shall also be entitled to inform the liable parties of the assignment of the claims.
7. Our contract partner is entitled on our behalf to collect the claims assigned to us.
8. We can withdraw the permission to process, transform, combine, mingle, mix, sell and collect claims, in particular for the reason of lacking creditworthiness pursuant to clause XI.6.
9. If the value of the securities provided in our favor exceeds the value of our outstanding debts by more than 20%, we are obliged - on the customer's request - to release on securities of our choice in a corresponding value.
10. Our contract partner is not entitled to dispose of the goods title to which is retained except in the manner set forth in the preceding clauses XIV.1.–9.
11. Any pledging or other intervention by any third party in the goods title to which is retained shall be communicated by our contract partner to us without delay in writing. If our intervention against an attempted pledge by a third party was successful whereas the attempt to collect the cost from such third party by seizure by way of execution fails, our contract partner is obliged to reimburse the cost to us.
XV. Defects
1. Claims of our contract partner from defects in newly made products become time barred one year after the passing of risk. This provision does not extent to the time bar of the company's rights of recourse pursuant to § 479 clause 1 BGB (German civil code). Claims of our contract partner from defects of products not made new are excluded. In case of fraudulent non-disclosure of any defect or the acceptance of quality warranty, any other claims are not affected. The liability for physical injury, including death, or damage to health due to gross negligence or premeditated violation of any obligation or infringement of any essential provision of the contract or of any cardinal duty pursuant to section XVI, is also not affected by the above provisions.
2. Any overt or ascertainable defect must be communicated to us in writing without delay after delivery, or not later than within 24 hours of delivery in the case of perishable food, or latest within one week of delivery in case of any other goods, otherwise the goods are deemed approved and accepted. Any defect that is not obvious directly but is noted later must be communicated in writing without delay after detection, within 24 hours of its detection in the case of easily perishable goods, or within five working days in case of other goods, otherwise the goods are deemed approved and accepted. The above provision does not apply to cases of fraudulent nondisclosure of defect.
3. Notwithstanding the right to contingent sale pursuant to § 379 II HGB (German commercial code), our contract partner shall make provision at his own cost for the temporary proper storage of all defective goods. No goods shall be returned to us except with our prior permission.
4. Defects are made good by us at our discretion either by repair or replacement. As long as we meet our obligation of making the defect good and the attempt at making good does not fail, our contract partner cannot demand a lower price (price reduction) or cancellation of the contract (rescission). If only a part of a consignment is defective, the ordering party that has a right of cancellation can cancel the contract as a whole only if it is not interested in the remaining part of the delivery.
XVI. Liability
1. If we are obliged to pay damage under applicable law and these General Terms, our liability is limited in the event of normal negligence: We are only liable for infringement of any essential duties under the contract or of any cardinal duty and our liability is limited to typical damage that was foreseeable at the time the contract was concluded. This limitation does not extend to physical injury, including death, or damage to health. If the damage is covered by an insurance concluded for the particular event by our contract partner (excluding fixed-sum insurance), we are only liable for any related disadvantage suffered by our contract partner, e. g., higher insurance premium or interest until the time payment is made by the insurer. The same applies to damage caused by a defect of the object of purchase.
2. Notwithstanding our fault, our liability, if any, for fraudulent non-disclosure of the defect or for acceptance of a quality warranty or for a supply risk and pursuant to the product liability law are not affected.
3. Our liability for delayed delivery is finally defined in section X of these General Terms.
4. Any personal liability of any of our legal representatives, servants or employees for damage caused by them due to normal negligence is excluded.
XVII. Contractual language
The language of the contract is German. If any contract documents are drawn up in a language other than German, the legal relationship between the parties, if any, is exclusively defined by the German version of the contract.
XVIII. Legal venue
For all disputes arising from this business relationship, including those arising from bills of exchange or cheques, any legal proceedings must be brought at the court having jurisdiction, both internationally and nationally, for the registered office of our company. We can bring action against our contract partner in the local court with jurisdiction over the contract partner's or any of his affiliated company's registered office.
XIX. Ineffectiveness
If it is found that any provision deemed agreed and considered necessary to be agreed between us and our contract partner in reality does not represent effective agreement, we are entitled, complementing what has been agreed, to close loophole by an effective provision giving due consideration to the interests of both parties.
XX. Severability Clause
If it is found that any provision in a contract is or becomes ineffective, such ineffectiveness does not affect the contract as a whole. If any provision of the contract is or becomes ineffective for reasons other than §§ 305 – 310 BGB (German civil code), we and our contract partner will replace the ineffective provision by an effective one as closely as possible reflecting the economic intention of the parties. This also applies if any provision of a contract is or becomes ineffective for reasons of §§ 305 – 310 BGB (German civil code) provided that there is no provision regarding this matter in the law.
1. These General Terms of Sale shall apply to contracts of Chickero Handel- u.Dienstleistungsagentur UG.
2. In business transactions between this company and any other company, public corporation and/or legal entity under public separate fund assets the following terms of business are applicable to the exclusion of any other terms.
3. Our terms of business shall also apply to all future business relation.
4. Any terms and conditions of our contractual partner which deviate from these conditions shall be invalid.
5. These terms shall apply even if we carry out a business transaction in the full knowledge that the terms of trade of our contractual partner are diametrically opposed to, or deviate from, ours.
6. Our terms of business shall apply to the extent to which no other terms have been agreed with our contract partners in writing.
II. Applicable law
Unless our terms of business contain particular provisions, the laws governing the relations between domestic parties at our registered office (German law) apply under exclusion of any foreign law. The application of the UN Convention on Contracts of the International Sale of Goods (CISG) shall be excluded.
III. Place of performance
The place of performance for all obligations arising from the order shall be our registered office.
IV. Secrecy
1. Any information and all documents, technical or commercial know-how including but without limitation to illustrations, drawings, calculations, which we mark as being confidential must be treated strictly confidential. None of our contract partners is allowed to disclose any confidential information to any third party unless with our express written information.
2. Confidential information which has been made available must only be used for attaining the purpose of the contract. On completion or termination of the contract all confidential documents provided by us must be returned immediately and without our request required.
3. The obligation of secrecy survives the completion or termination of the contract.
4. The obligation of secrecy becomes ineffective if and to the extent to which the contents of the documents or information enter the public domain.
5. Other rights, in particular, ownership, trademarks and copyright, are reserved.
V. Set Off and Retention
No contract partner is entitled to set off any claim against any amount owing to us unless the counterclaim is undisputed and part of a non-appealable declaratory judgment. A contract partner's right of retention is limited to claims under the same contractual relationship.
VI. Assignment of rights and obligations
No contract partner is entitled to transfer or assign any rights or obligations without obtaining our written agreement. Where the assignment involves a financial claim, we are entitled to make payment to our contract partner as if the claim had not been assigned.
VII. Conclusion of contract
1. Our offers, in particular offers in printed material and advertisements, are without obligation and are to be understood as solicitation for submission of a binding proposal.
2. Any order placed by our contracting partner constitutes a binding proposal with a validity of two weeks. No contract is concluded unless we confirm acceptance of the order within the validity period in writing or make delivery.
3. We are obliged to inform the contract partner without delay if we do not accept an order.
VIII. Prices
1. Our prices are quoted exclusive of applicable value-added tax. Unless agreed otherwise, our prices are "ex works" prices, exclusive of packaging, which is billed extra. For shipments outside Germany customs fees and other charges will be invoiced separately.
2. "Prices are subject to change" means that the contract partner agrees that we sell the goods at the price effective on the date of shipment.
3. For regular shipments of goods to customers, even where a price is agreed at the time of conclusion of contract, we reserve the right to adjust prices upward or downward if market prices or costs change after the conclusion of contract, for example as a result of higher taxes, customs fees or other charges, purchasing or examination fees, freight, transshipment or rates of exchange.
4. Clause 3 above also applies to contracts for delivery of goods shipment of which is to be made at the end of four months after the conclusion of contract or later. If pursuant to the above provisions (in clause 3 and clause 4) the agreed price increases by more than 5 %, the contract partner is entitled to cancel the contract or in the case of clause 3 or other types of continuous obligation to terminate the contract.
5. Slaughter house compensation payment, if any, must always be made by the buyer, who is also obliged to register.
6. Our bill is for the weight calculated by us as seller at the time of delivery. We do not credit for natural loss of weight during transport or interim storage.
7. We will only accept the charging of fees or remuneration for visits or for the drawing up of offers, brochures, cost estimates, etc. if this has been expressly agreed with us.
IX. Nature of the goods
1. If the contract is concluded with reference to a product description provided by us, the product data in the product description is agreed as the nature and intended use of the goods.
2. All samples are average samples. If orders are based on samples or specimens, no warranty is made that the character of the goods actually supplied is the same as that of the samples or specimens.
3. It is agreed that quality deviations typical of the goods delivered and deviations of less than 11 % of the size and/or weight specified per unit of weight are acceptable tolerance.
4. No warranty is made for the nature or shelf life or otherwise of the goods.
5. Under contracts providing for the regular supply of goods by us, we reserve the right to change the agreed supplies if so required by changes of the production process, changed packaging, changes of the state of the art, modifications of applicable laws and provisions or in view of recommendations by employer organizations or experts and provided such changes or modifications are reasonable considering the mutual interests of our contract partners.
6. Clause 5 above also applies to contracts for goods to be delivered at the end of four months after conclusion of contract or later.
7. If and to the extent to which we or the manufacturer uses codes or numbers for identification of the order or the object of purchase ordered, no rights can be derived solely on the strength of such use.
X. Delivery and delay
1. We do not accept any procurement risk for which we are not liable based on fault.
2. All deliveries are made in anticipation of timely and correct self-delivery and in case of failure our contract partners have no right to claim damage. We will notify our contract partner of any failure in self-delivery without delay and assign rights, if any, from our liability contract with our suppliers to our contract partner.
3. Dates and terms of delivery, which can be binding or non-binding, must be fixed in writing. The term of delivery commences with the conclusion of contract.
4. Under contracts for the delivery of goods on call, our contract partners must issue the call allowing a reasonably short period between the date of the call and the required date of delivery. If partial deliveries on call are agreed and no additional arrangement is made, the packaging units, assortment and articles of the partial deliveries bear the same percentage relationship as the complete order.
5. If a non-binding date or term of delivery is agreed, we are in default if we fail to make delivery at the agreed date or after the agreed term after a reminder to this effect from our contract partner. If a binding date or term of delivery is agreed and we fail to deliver by the agreed date or within the agreed term, we are in default when the date or term of delivery is exceeded.
6. No damage for delayed delivery can be claimed in case of ordinary negligence.
7. If while we are at default, we cannot make delivery due to contingency and our contract partner can claim compensation of loss due to delay, such compensation is limited to 5 % of the agreed purchase price. If while we are at default, we cannot make delivery due to contingency and our contract partner can claim damage in lieu of delivery, such damage is limited to maximum 30% of the agreed purchase price. We are not liable if the damage would have occurred even if delivery had been made on time.
8. In cases of force majeure or any other event that could not be foreseen and was not caused by our fault and in cases of exceptional circumstances beyond our control to the extent to which such events or circumstances prevent us from delivering the goods at the agreed date or within the agreed term, the date or term of delivery shall be extended by the duration of such event or circumstance preventing the performance of the contract.
9. If the causes in clause 8 above prevent the performance of the contract for a period of more than four months, we and our contract partner are entitled to cancel the contract or any part of it. Other rights of cancellation of our contract partner shall remain unaffected.
10. We are entitled to make partial deliveries of goods to the extent to which this can reasonably be expected to be acceptable to our contract partner and any such partial delivery is regarded as partial fulfillment of the contract.
11. All goods are shipped and any activity incidental to such shipment are undertaken in the name and risk of the ordering party, even if we pay the transport charges. Our contract partner must provide all necessary insurances.
XI. Payment
1. The purchase price and the prices of incidental activities are payable directly to this company on delivery of the goods and submission or transmission of the invoice; all payments must be made without deduction of postage or charges of any kind. No discount is granted unless expressly agreed separately and our contract partner makes payment of the respective amount within a fortnight of the due date. The immediate maturity of any amount due is not affected if a discount is agreed. In case of partial delivery, the price of the goods making up the partial delivery for which an invoice is made out, becomes due and payable to this company directly on delivery of the goods and submission or transmission of the invoice.
2. We are not obliged to make advances. Goods are delivered against advance payment, cash payment or cash on delivery, in particular, to buyers who have not submitted references and who are unknown to us, or to contract partners delaying payment.
3. Payment is considered to be effectively made when the amount has finally been credited to the account of this company.
4. Our contract partner defaults on payment at the latest if he fails to make payment within 14 days after the due date and receipt of the invoice or an equivalent list for payments. If the date at which the invoice or list for payment is delivered is insecure, the contract partner defaults latest 14 days after the due date and receipt of the goods.
5. In case of major violation of contract, e.g., if agreed partial payments are delayed in two consecutive cases, we are entitled to demand immediate payment of all other outstanding amounts irrespective of any agreed credit period, including interest accrued, notwithstanding our acceptance of checks or bills of exchange. The above provision does not apply if the delay or major violation of contract is not the fault of our contract partner.
6. If there is substantial reason to assume that our contract partner will not honor his payment obligations because of lacking creditworthiness, especially if our contract partner starts selling his stocks for the purpose of liquidation, if he ceases payment or requests his creditors for a respite of payment or extrajudicial proceedings are instituted into his assets with the aim of debt settlement pursuant to § 305 I 1 InsO (German bankruptcy law) or he pleads insolvency, we are also entitled to demand immediate payment of all outstanding amounts unless our contract partner provides security within a reasonable period of time allowed by us.
7. In any of the cases in clause 6 above we are also entitled to withdraw from the contract.
8. If our contract partner does not make payment designation, we can in our discretion set off payments received against any outstanding claim or accessory claim which we have on our contract partner.
XII. Delay of acceptance
1. If our contract partner delays acceptance of the goods and we claim damage, the rate of such damage is 15 % of the purchase price. The amount of damage shall be increased or decreased if we are able to prove that the damage is higher or our contract partner can prove that it is lower.
2. If deliveries or partial deliveries are agreed on call without a definite period for performance and our contract partner fails to issue a call for agreed deliveries or partial deliveries within a commercially reasonable call-off period, we can require that the goods are called. If our contract partner fails to comply with our request within a reasonable period allowed by us, we are entitled to terminate the contract and claim damages.
XIII. Treatment of goods, advertising and labeling of goods
1. From the time of delivery of the goods, our contract partner is responsible for compliance with all provisions, regulations, requirements and recommendations by laws, government agencies or the official veterinary regarding the proper treatment, in particular, cooling of the goods during loading and unloading, in transit, storage, sorting or packaging as well as during export or import.
2. Our contract partner shall make public statements concerning our products and their characteristics, in particular, in advertisements or as part of the labeling of our products, only in accordance with product information supplied by us and only in reasonable manner.
3. Our contract partner is responsible that products on sale are designated correctly if the designation is different according to local or trade habit.
XIV. Retention of title
1. We retain title in the goods delivered by us until full payment of all amounts due to us under the respective purchase contract has been made. Title is also retained until payment has been made of all claims, including future claims for whatever cause under the business relationship with our contract partner, which are in temporal or factual connection with the delivery of the goods the title to which is retained.
2. On our contract partner's request we are obliged to waive the retention of title if our contract partner has fulfilled all claims in connection with the goods sold and the fulfillment cannot be contested and reasonable security exists for all other claims in the normal course of business.
3. The contract party is obliged to treat and keep safe all delivered goods with the diligence of a prudent merchant. He shall insure the goods at his own cost if this is part of the due diligence.
4. The contract partner is entitled to process the goods, combine or mingle them with other objects and/or sell them in the ordinary course of business; the contract partner is not entitled to pledge such goods or put them in escrow. Any processing of the goods by our contract partner is for our benefit. We become the owner of the object. If the goods are combined or mingled with other objects that are not our property, we become co-owner of the new object prorated the respective value of the combined or mingled goods at the time of their combination or mingling. The retention of title also extends to the parts or partial quantities of the delivered goods set apart from them.
5. Our contract partner agrees ex ante to assign to us, and we accept the assignment of, any claim against third parties from the sale of delivered or processed goods, including contingent and future claims. This also applies to claims from or in connection with the sale of such delivered or processed goods, which our contract partner has under applicable laws. If the goods are sold after combination or mingling with objects that are not our property, the ex ante assignment to us shall be for an amount equal to the ratio the value of the delivered goods bears to the sales value of the objects made therefrom. In the event of the destruction or damage of the goods delivered or the objects made from the goods delivered, our contract partner agrees ex ante to assign to us any claims under insurance contracts relating to the goods and we accept such assignment. In the event of destruction or damage of the new objects this relation is for an amount equal to the ratio the value of the goods delivered by us bears to the sales value of the objects made therefrom. In the event that the goods delivered and title to which is retained are sold without or after processing with other objects that are not our property, our contract partner agrees to assign to us any claims from the sale only for an amount equal to the ratio the value of the goods delivered by us bears to the sales value of the total quantity. If an open account is agreed, the assignment ex ante relates to the balance at the time of closing the account instead of to each individual claim.
6. The permission to sell in the ordinary course of business is only given to the extent to which we become the owner of the claim for compensation from such sale. Our contract partner is not permitted to enter into an arrangement with a third party, which restricts his right of assigning claims acquired through the sale. If requested by us, our contract partner must inform us without delay of the names of all parties liable for the assigned claims and submit to us all documents and other information necessary to enforce the claims and inform the liable party of the assignment. We shall also be entitled to inform the liable parties of the assignment of the claims.
7. Our contract partner is entitled on our behalf to collect the claims assigned to us.
8. We can withdraw the permission to process, transform, combine, mingle, mix, sell and collect claims, in particular for the reason of lacking creditworthiness pursuant to clause XI.6.
9. If the value of the securities provided in our favor exceeds the value of our outstanding debts by more than 20%, we are obliged - on the customer's request - to release on securities of our choice in a corresponding value.
10. Our contract partner is not entitled to dispose of the goods title to which is retained except in the manner set forth in the preceding clauses XIV.1.–9.
11. Any pledging or other intervention by any third party in the goods title to which is retained shall be communicated by our contract partner to us without delay in writing. If our intervention against an attempted pledge by a third party was successful whereas the attempt to collect the cost from such third party by seizure by way of execution fails, our contract partner is obliged to reimburse the cost to us.
XV. Defects
1. Claims of our contract partner from defects in newly made products become time barred one year after the passing of risk. This provision does not extent to the time bar of the company's rights of recourse pursuant to § 479 clause 1 BGB (German civil code). Claims of our contract partner from defects of products not made new are excluded. In case of fraudulent non-disclosure of any defect or the acceptance of quality warranty, any other claims are not affected. The liability for physical injury, including death, or damage to health due to gross negligence or premeditated violation of any obligation or infringement of any essential provision of the contract or of any cardinal duty pursuant to section XVI, is also not affected by the above provisions.
2. Any overt or ascertainable defect must be communicated to us in writing without delay after delivery, or not later than within 24 hours of delivery in the case of perishable food, or latest within one week of delivery in case of any other goods, otherwise the goods are deemed approved and accepted. Any defect that is not obvious directly but is noted later must be communicated in writing without delay after detection, within 24 hours of its detection in the case of easily perishable goods, or within five working days in case of other goods, otherwise the goods are deemed approved and accepted. The above provision does not apply to cases of fraudulent nondisclosure of defect.
3. Notwithstanding the right to contingent sale pursuant to § 379 II HGB (German commercial code), our contract partner shall make provision at his own cost for the temporary proper storage of all defective goods. No goods shall be returned to us except with our prior permission.
4. Defects are made good by us at our discretion either by repair or replacement. As long as we meet our obligation of making the defect good and the attempt at making good does not fail, our contract partner cannot demand a lower price (price reduction) or cancellation of the contract (rescission). If only a part of a consignment is defective, the ordering party that has a right of cancellation can cancel the contract as a whole only if it is not interested in the remaining part of the delivery.
XVI. Liability
1. If we are obliged to pay damage under applicable law and these General Terms, our liability is limited in the event of normal negligence: We are only liable for infringement of any essential duties under the contract or of any cardinal duty and our liability is limited to typical damage that was foreseeable at the time the contract was concluded. This limitation does not extend to physical injury, including death, or damage to health. If the damage is covered by an insurance concluded for the particular event by our contract partner (excluding fixed-sum insurance), we are only liable for any related disadvantage suffered by our contract partner, e. g., higher insurance premium or interest until the time payment is made by the insurer. The same applies to damage caused by a defect of the object of purchase.
2. Notwithstanding our fault, our liability, if any, for fraudulent non-disclosure of the defect or for acceptance of a quality warranty or for a supply risk and pursuant to the product liability law are not affected.
3. Our liability for delayed delivery is finally defined in section X of these General Terms.
4. Any personal liability of any of our legal representatives, servants or employees for damage caused by them due to normal negligence is excluded.
XVII. Contractual language
The language of the contract is German. If any contract documents are drawn up in a language other than German, the legal relationship between the parties, if any, is exclusively defined by the German version of the contract.
XVIII. Legal venue
For all disputes arising from this business relationship, including those arising from bills of exchange or cheques, any legal proceedings must be brought at the court having jurisdiction, both internationally and nationally, for the registered office of our company. We can bring action against our contract partner in the local court with jurisdiction over the contract partner's or any of his affiliated company's registered office.
XIX. Ineffectiveness
If it is found that any provision deemed agreed and considered necessary to be agreed between us and our contract partner in reality does not represent effective agreement, we are entitled, complementing what has been agreed, to close loophole by an effective provision giving due consideration to the interests of both parties.
XX. Severability Clause
If it is found that any provision in a contract is or becomes ineffective, such ineffectiveness does not affect the contract as a whole. If any provision of the contract is or becomes ineffective for reasons other than §§ 305 – 310 BGB (German civil code), we and our contract partner will replace the ineffective provision by an effective one as closely as possible reflecting the economic intention of the parties. This also applies if any provision of a contract is or becomes ineffective for reasons of §§ 305 – 310 BGB (German civil code) provided that there is no provision regarding this matter in the law.