General Terms and Conditions of Sale and Delivery of Süssmilch GmbH & Co. KG for Use in Contracts with Entrepreneurs
§ 1 Applicability
1.) Our General Terms and Conditions of Sale and Delivery (hereinafter „GTSD“) shall only apply to business transactions with entrepreneurs within the meaning of § 14 BGB, legal persons under public law or special funds under public law (hereinafter „Customer“).
2.) All our supplies, services and offers are provided exclusively on the basis of these GTSD, which form an integral part of all contracts that we conclude with the Customer for the provision of supplies and services offered by us. They shall also apply to all of our future supplies, services or offers provided to the Customer, even if their applicability is not agreed upon separately again.
3.) General terms and conditions of the Customer shall not apply, even if we do not explicitly object to their applicability in an individual case. Even if we refer to a letter or other document containing or referring to general terms and conditions of the Customer or a third party, this shall not constitute consent to the applicability of such terms and conditions.
§ 2 Offers and Conclusion of Contract
1.) All offers made by us are non-binding and without obligation unless they are explicitly identified as binding or fix a specific time limit for acceptance. A contract shall only be concluded upon our written order confirmation.
2.) Our legal relationship with the Customer shall be exclusively governed by the contract, concluded through our written order confirmation or written confirmation of conclusion of contract, including these GTSD. These set forth the entire agreement between the parties regarding the subject matter hereof. Oral commitments made by us prior to the conclusion of the contract are not legally binding and the written contract supersedes any oral agreements between the parties, unless such agreements explicitly state that they continue to be effective and binding.
3.) Additions and amendments to the contract including these GTSD shall only be valid if made in text form. The transmission by telecommunication means, in particular by fax or email, meets the text form requirement, provided that the copy of the signed declaration is sent together with the fax, email etc.
4.) Information provided by us regarding the goods or services to be supplied and descriptions thereof are approximations only unless the suitability for the contractually-agreed purpose requires precise conformity. Information provided by us shall not be construed as guaranteed characteristics, but as a description or identification of the supplies or services. Deviations which are customary in the trade, are due to legal requirements or constitute technical improvements are permissible, provided that they do not affect the suitability for the contractually-agreed purpose.
5.) We retain title and/or copyright to all offers, estimates of cost, samples and specimen provided by us, and to all other documents provided to the Customer. The Customer may not, without our express consent, make accessible or disclose to any third party any of these documents or items or the contents thereof, or use or reproduce them or have them used or reproduced by any third party. At our request the Customer shall return to us any and all of these documents and/or items and destroy any copies made thereof, if the Customer no longer needs them in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 Prices and Payments
1.) Prices are for the scope of supply and services set forth in our order confirmation. Additional or special supplies and services will be charged separately. Prices are in EURO, ex works plus packaging, statutory VAT, customs duties (in the case of exports), as well as fees and other public charges.
2.) If the agreed prices are based on our list prices and delivery is to take place more than four months after the conclusion of the contract, the list prices applicable at the time of delivery shall apply.
3.) Unless otherwise agreed in writing, invoiced amounts are due and payable within thirty (30) days from the date of the invoice, without any deduction. Payment shall be considered to have been made on the date on which the amount of the payment/transfer is actually received in our bank account. If the Customer fails to make any payments when due, interest will accrue on the outstanding amount at a rate of 5% per annum with effect from the due date. We reserve the right to demand higher interest and claim further damages in the event of default.
4.) The Customer may only offset its claims against our claims or exercise a right of retention based on such claims, if its counterclaims are undisputed or have been recognized by final judgement.
5.) Bills of exchange, cheques and payment orders will only be accepted by us if specifically agreed upon in writing and will only be accepted in payment, pending full discharge of the debt, thus payment is only deemed made when the bill of exchange, cheque or payment order has been encashed.
6.) We are entitled to effect outstanding deliveries or provide outstanding services only against advance payment or provision of security, if after conclusion of the contract we become aware of circumstances which may significantly reduce the creditworthiness of the Customer and due to which the settlement of our outstanding receivables resulting from the respective contractual relationship (including other individual orders which are covered by the same framework agreement) is endangered.
§ 4 Delivery and Time of Delivery
1.) Deliveries will be ex works (EXW Rheda-Wiedenbück).
2.) Dates and periods for deliveries and services indicated by us are approximates only, unless a fixed period or fixed date has been expressly accepted or agreed upon. If shipping has been agreed upon, delivery dates and deadlines refer to the time of handing-over to the forwarder, carrier, or other third party assigned to transport the goods.
3.) Without prejudice to our rights upon the default of the Customer, we are entitled to an extension of the time for the delivery of goods or the provision of services equal to the period of time during which the Customer fails to fulfil its contractual obligations towards us.
4.) We shall not be liable for any failure of or delay in delivery if such failure or delay is due to the occurrence of a force majeure event or any other event which could not be foreseen at the time of conclusion of the contract (e.g. interruption of operations of any kind, difficulties in the procurement of material, transport delays, strikes, legal lock-outs, shortage of labour, energy or raw materials, difficulties in obtaining necessary permits from the authorities, acts of authorities, or any failure of or delay in delivery or delivery of non-conforming goods on the part of suppliers) and for which we are not responsible. Insofar as such events significantly impede the delivery of goods or the provision of services or render the delivery of goods or the provision of services impossible and insofar as such impediments are not merely temporary in nature, we are entitled to withdraw from the contract. In case of temporary impediments, any period for the delivery of goods or the provision of services shall be extended and any dates set for the delivery of goods or the provision of services shall be postponed by the period of time that such impediment exists, plus a reasonable starting period. If, due to the delay, the Customer cannot reasonably be expected to accept the goods or services, it may withdraw from the contract by immediate written notice to us.
5.) We shall be entitled to partial deliveries, if
- the partial consignment can be used by the Customer within the scope of the purpose for which it is intended according to the contract,
- the delivery of the remaining goods ordered is ensured and
- no substantial additional effort or costs are thereby incurred by the Customer, unless we agree to bear these additional costs.
6.) Partial deliveries at the request of the Customer will only be made with our prior written consent. Any additional costs caused by such partial deliveries shall be borne by the Customer.
7.) If we default in making delivery or providing services or if, for whatever reasons, it becomes impossible for us to effect delivery or provide services, our liability for damages shall be limited as set forth in § 7 of these GTSD.
§ 5 Place of Performance, Shipment, Packaging, Passing of Risk, Acceptance
1.) The place of performance for all obligations resulting from the contractual relationship shall be our registered office in Rheda-Wiedenbrück.
2.) We choose the mode of transport and the type of packaging in our reasonably exercised discretion.
3.) Risk shall pass to the Customer, at the latest, when the goods are handed over to the forwarder, carrier, or other third party assigned to transport the goods. In this respect the goods are deemed handed over at the start of the loading process. If shipment or handover of the goods is delayed due to circumstances caused by the Customer, the Customer shall bear the risk of loss, destruction and damage from the day on which the goods are ready for shipment and we have notified the Customer thereof.
4.) Storage costs incurred after the passing of risk shall be borne by the Customer. The storage costs for storage provided by us amount to 1 % of the amount of the invoice for the goods to be stored for each completed week. We reserve the right to claim and provide evidence of additional or higher storage costs.
5.) We will only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request and at the expense of the Customer.
§6 Warranty, Defects of Quality
1.) The warranty period commences on the date of delivery, or, if agreed upon, on the date of acceptance. The warranty period shall be one year unless applicable mandatory law provides for a longer warranty period.
2.) The goods delivered have to be examined carefully immediately upon delivery to the Customer or to a third party designated by the Customer. The Customer shall inform the forwarder, carrier or other third party assigned to transport the goods of any damage to or defects in the goods which are obviously discoverable upon delivery and make a note directly on the consignment note specifying the damage or defect. The goods shall be deemed to be accepted with regard to apparent defects or other defects which would have been discoverable during an immediate, careful examination of the goods, unless we receive a written notice of defects within five working days from the date of delivery. With regard to other defects, the Customer is deemed to have accepted the goods supplied unless we receive a written notice of defects within five working days from the day on which the defect became apparent. If, however, the Customer could discover the defect during normal use of the goods at an earlier date, the period for making a complaint of the defect shall run from this earlier date. At our request, the rejected goods shall be returned to us, freight paid. In the event of a justified complaint, we shall reimburse the costs of the most favorable shipping route; this does not apply if an increase in cost occurs due to the goods supplied being located at a place other than the place of intended use.
3.) In case of defects in the quality of the goods supplied, we shall and may, in the first place, at our option – to be exercised within a reasonable period of time – repair or replace the defective goods. Where the defect has not been successfully remedied, i.e. in case of impossibility, unreasonableness, refusal or unreasonable delay in the repair or replacement of such goods, the Customer may rescind the contract or reduce the purchase price by an appropriate amount.
4.) If a defect results from our fault, the Customer may claim damages, provided that the requirements set forth in § 7 are met.
5.) The warranty shall not apply if the Customer modifies the goods supplied or has them modified by a third without our consent thereby making removal of defects impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs for the removal of defects incurred as a result of the modification.
§ 7 Damages for Fault
1.) Our liability for damages, regardless of the cause of action, but in particular for impossibility, default, faulty delivery, delivery of the wrong goods, breach of contract, breach of a duty in the course of contract negotiations or tortious acts, shall be limited as set forth in this §7, to the extent that such liability requires an element of fault.
2.) We shall not be liable in the case of ordinary negligence of our bodies, legal representatives, employees or other vicarious agents, unless a fundamental contractual obligation has been violated. Fundamental obligations include (i) the obligation to make timely delivery and installation of goods which are free from defects of title and from defects which impair their fitness for use more than insignificantly and (ii) duties to provide advice, duties of protection or duties to exercise proper care, which are intended to enable the Customer to use the goods in accordance with the contract or to protect the body or life and limb of personnel of the Customer or to protect the property of the Customer from severe damage.
3.) If we are liable to pay damages in accordance with § 7 (2), liability shall be limited to the damage which we foresaw or, in the exercise or due care and attention, ought to have foreseen at the time of the conclusion of the contract, as a possible consequence of the breach of contract. Direct and consequential damage resulting from defects of the goods supplied, shall only be recoverable in so far as such damage is typically to be expected when the goods supplied are used as intended.
4.) The foregoing exclusions and limitations of liability shall apply in the same way for the benefit of our organs, legal representatives, employees and other vicarious agents.
5.) If we provide technical information or advice and such information or advice is not part of the contractually agreed scope of performance owed by us, such information or advice shall be provided free of charge and to the exclusion of any liability.
6.) The limitations set forth in this § 7 shall not apply to our liability for wilful conduct, guaranteed quality features, injury to life, body or health, or liability under the [German] Product Liability Act.
§ 8 Intellectual Property Rights, Software
1.) If we manufacture and/or deliver goods to the specifications of the Customer, we assume no liability that the delivery items are free from industrial property rights or copyrights of any third party. If, with regard to goods manufactured to the specifications of the Customer, a claim is brought against us by a third party based on the infringement of rights, the Customer shall indemnify us and hold us harmless from and against any and all claims resulting from such infringement.
2.) If the goods supplied infringe industrial property rights or copyrights of any third party for reasons for which the Customer is not responsible according to § 8 (1), we shall, at our option and expense, modify or replace the goods in such a way that rights of third parties are no longer infringed while the goods continue to fulfil the contractually agreed function, or obtain for the Customer the right to continued use by entering into a license agreement.
3.) The Customer is granted a non-exclusive right to use all Software supplied with the goods, including its documentation, in connection with the use of the goods.
4.) The Customer may not make copies of the software for any purposes, other than the use of the goods as set forth in § 8 (3) or for backup purposes.
5.) The Customer may only transfer its rights to use the software to a third party, if, at the same time, the Customer transfers title to the good(s) concerned to such third party and does not retain any copies of the software. The Customer shall have no further rights to the software, including its documentation. In particular, the Customer shall not be entitled to grant sub-licences.
6.) Under no circumstances shall we be required to disclose the source code of the software.
§ 9 Retention of Title
1.) For security purposes, all goods supplied by us (goods subject to retention of title) shall remain our property until settlement in full of all our present and future claims against the Customer arising from the supply contract and the business relationship with the Customer (including current account balance claims under a current account relationship which is limited to this business relationship).
2.) The Customer shall hold the goods, which are subject to retention of title, in custody for us, free of charge.
3.) Until payment in full of all secured claims, the goods subject to retention of title may not be pledged or transferred by way of security to a third party. In case of intervention by a third party affecting the goods subject to retention of title, in particular in case of seizure, the Customer shall immediately inform the third party that the goods are our property and promptly inform us of the intervention, so that we may exercise our property rights. If the third party is unable to reimburse us for the extrajudicial or judicial costs incurred in this connection, the Customer shall be liable for such costs.
4.) If the Customer is in breach of contract, in particular in case of default in payment, we may rescind the contract and/or assert the retained ownership rights and demand the return of the goods subject to retention of title, in accordance with the statutory provisions (“Event of Default”). The claim for the return of the goods shall not – at the same time – be deemed a notice of rescission of the contract; rather, we may demand the return of the goods subject to retention of title and reserve the right to rescind the contract.
5.) The Customer may process and/or sell the goods subject to retention of title in the ordinary course of its business as long as there is no Event of Default. If the goods subject to retention of title are processed by the Customer, it is agreed that such processing shall be done in our name and for our account as manufacturer and that we directly acquire the ownership of the newly created item. If processing involves materials of different owners or if the value of the processed goods exceeds the value of the goods subject to retention of title, we shall acquire co-ownership (ownership in fractional undivided shares) of the newly created item, the share to be determined by the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that we do not acquire such ownership, the Customer hereby, by way of security, transfers its future ownership or – in the aforementioned ratio – co-ownership of the newly created item to us. If the goods subject to retention of title are combined or inseparably mixed with other goods to form one uniform item and if one of these other goods is to be considered as the main item, we transfer proportionate co-ownership of the uniform item to the Customer in the ratio set forth in sentence one above, if we are the owner of such main item.
6.) In case the Customer resells the goods subject to retention of title, the Customer hereby, by way of security, assigns to us its claims against the acquirer resulting from such resale. If we are co-owner of the goods subject to retention of title the assignment shall be an assignment of a proportionate part of such claims corresponding to the co-owner’s share. The same shall apply to any other claims that take the place of the goods subject to retention of title or otherwise arise with respect thereto, e.g. insurance claims or claims in tort in the event of loss or damage. We grant the Customer revocable authority to collect claims assigned to us in its own name. This authority will be effective as long as the Customer meets its payment obligations towards us and does not default in payment, no petition for the opening of insolvency proceedings has been filed and the financial standing of the Customer has not been impaired in any other way. In that case we may demand that the customer disclose to us the assigned claims and their respective debtors, provide all information required for collection of the debts, hand over all related documents and notify the debtor (third party) of the assignment. We may only revoke the authorization to collect debts if an Event of Default occurs..
7.) At the request of the Customer, we shall, at our choice, release the goods subject to retention of title as well as the items or claims taking the place thereof, if their realizable value exceeds (i) the amount of the secured claims by more than 10% or (ii) the nominal amount of the claims secured by more than 50%.
§ 10 Place of Jurisdiction, Applicable Law, Non-assignment Clause, Validity, Data
1.) The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship – including proceedings in which plaintiffs rely entirely on documentary evidence, proceedings on claims arising from a bill of exchange, proceedings on claims asserted concerning the payment of a cheque and summary proceedings for a payment order – shall be our registered office in Rheda-Wiedenbrück. We are also entitled to sue the Customer at any other permissible place of jurisdiction.
2.) Contracts concluded between us and the Customer shall be governed by the laws of the Federal Republic of Germany, to the exclusion of its conflict of law principles and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN-Sales law).
3.) The Customer may not assign any claims arising out of contracts concluded with us without our express prior written consent. This restriction shall not apply to claims for money.
4.) We hereby advise the Customer that we store data from the contractual relationship in accordance with § 28 of the German Data Protection Act for the purpose of data processing and reserve the right to transfer these data to third parties (e.g. insurance companies), as far as this is necessary for the performance of the contract.
5.) The invalidity of one or more provisions shall not affect the validity of the remaining provisions.