1. Scope of application
The following Terms and Conditions of Sale apply for all offers made by us and contracts between the buyer and us for delivery of goods. They also apply for all future business relationships even if not expressly agreed on again. We are not bound by terms and conditions of the buyer that deviate from these if we do not expressly accept them, even if we do not expressly reject them. The following Terms and Conditions of Sale also apply if we execute the buyer's order without reservation even in the knowledge of contradictory or deviating terms and conditions of the buyer.
All agreements made between the buyer and us regarding execution of the purchase contracts are recorded in writing in the contracts.
2. Offer and contract creation
A purchase order by the buyer, which is considered an offer to create a purchase contract, can be accepted by us within two weeks by sending an order confirmation or by sending the ordered product within the same period of time.
Our offers are subject to change and not binding unless we have expressly designated them as binding.
Prices stated are net prices and, unless otherwise noted, are in euros per kilogram or piece or packaging unit. Packaging is not charged separately provided that the buyer does not request special packaging. Freight costs are the buyer's expense. Added to the prices is value added tax in the respective statutory amount. We reserve the right to charge the list prices valid on the day of shipment. If the purchase order is not made as part of a commercial business transaction, we are bound by the offer prices if delivery after the order should take place within four months after contract creation.
4. Terms of payment
Our invoices are due and payable net without deduction upon receipt of the invoice. Payments shall be made to one of the accounts specified on our invoices. Our agents may collect payment only upon presentation of a power of attorney for collection signed by us. Acceptance of drafts or cheques is only for payment and with exclusion of any liability for timely or proper presentation or protest. All fees involved are the buyer's expense. Drafts and cheques are deemed as payment only when credited.
If the payer falls into arrears in payment, the statutory rules regarding interest on arrears apply, under which the interest rate is currently 8 percentage points above the base interest rate of the European Central Bank. If the buyer falls into arrears with a payment or its financial situation deteriorates materially after contract creation, all amounts owed to us from the business relationship, even in the case of deferment, become due immediately.
A buyer not previously known to us receives delivery only against advance payment or cash on delivery.
The buyer is entitled to offset amounts owed, including in the case of deficiency complaints or counterclaims, when the counterclaims have been legally confirmed, recognised by us or are undisputed. The buyer is entitled to withhold performance only when the counterclaim is based on the same contractual relationship.
5. Transfer of risk
Loading and shipment/delivery are made uninsured and at the risk of the buyer.
We do not take back transport and all other packaging in accordance with the Packaging Ordinance; pallets are exceptions. The buyer shall take care of disposal of the packaging at its own expense.
If shipment is delayed at the request or fault of the buyer, we are entitled to store the goods at the buyer's expense and risk. In this case, announcement of readiness to ship is equivalent to shipment.
6. Retention of ownership
The delivered goods (goods subject to retention) remain our property until fulfillment of all claims, including all balance claims on account, against the buyer to which we are entitled now or in future. In case of behaviour by the buyer in breach of contract (e.g. payment in arrears), we have the right, after setting a suitable deadline, to take back the goods subject to retention. If we take back the goods subject to retention, this represents a withdrawal from the contract. If we impound the goods subject to retention, this is a withdrawal from the contract. We are entitled to liquidate the goods subject to retention after taking them back. After deduction of an appropriate amount for liquidation costs, the proceeds will be allocated against the amounts owed us by the buyer.
The buyer shall treat the goods subject to retention with care and adequately insure them at its own expense against fire, water and theft at new value.
The buyer is entitled to properly sell the goods subject to retention in commercial transactions and/or to use them as long as the buyer is not in payment arrears. Pledging or assigning the goods as collateral is not permitted. The buyer even now assigns to us the claims (including all claims for balance on account) regarding the goods subject to retention arising from resale or any other legal reason (insurance, civil wrong) in their full amount; we hereby accept the assignment. We authorise the buyer, subject to revocation, to collect the claims assigned to us in its own name and for its own account. This collection authorisation can be revoked at any time if the buyer fails to properly meet its payment obligations. The buyer is also not entitled to assign these claims for the purpose of collecting claims through factoring unless the factor simultaneously obligates itself to remit payment in the amount of the claim directly to us for as long as we have claims against the assigning creditor.
Processing or transformation by the buyer of the goods subject to retention will in any case be performed for us. If the goods subject to retention are processed together with other items not belonging to us, we acquire an ownership share in the new item in the ratio of the value of the goods subject to retention (final invoice amountÂ incl. value added tax) to the other items to be processed measured at the time of processing. For the new item created by processing, the same applies as for the goods subject to retention. In the case of inseparable mixing of the goods subject to retention with other items not belonging to us, we acquire an ownership share in the new item in the ratio of the value of the goods subject to retention (final invoice amount incl. value added tax) to the other items to be processed measured at the time of processing. If the buyer's item resulting from the mixture shall be seen as the main item, the buyer and we agree that the buyer transfers a pro rata ownership share in this item to us; we hereby accept this transfer. The buyer shall protect for us the sole or shared ownership of an item.
If third parties attempt to access the goods subject to retention, in particular through attachment, the buyer shall point out our ownership and inform us immediately so that we can enforce our property rights. If the third party is not able to reimburse us for the court or out-of-court costs connected with this, the buyer shall be liable for them.
We are obligated to release the security to which we are entitled to the extent that the realisable value of our security exceeds the claims to be secured by more than 20%. In this case, we are entitled to select the security to be released.
Deficiency claims of the buyer exist only if the buyer properly meets the duties of examination and complaint required under § 377 HGB (German Commercial Code). The complaint shall be made in writing within a reasonable time (if at all possible within three days) after receipt of the goods. If public authorities take samples, the buyer is obligated to provide us official check samples immediately.
If there are deficiencies in the goods for which we are responsible, we are obligated to make supplementary performance, with exclusion of the rights of the buyer to withdraw from the contract or lower the purchase price (reduction), unless we are legally entitled to refuse supplementary performance under law. The buyer shall grant us an appropriate period for supplementary performance. The buyer can choose repair of the defect or delivery of new goods as supplementary performance. We bear the required expenses for correction of the deficiencies to the extent they are not increased because the subject of the contract is at a location other than the place of performance.
The buyer can assert warranty claims due to the deficiency only when the supplementary performance has failed.
We are not liable for compensation of direct or indirect damages to the extent legally permissible. Warranty and damage compensation claims of the buyer due to a deficiency expire one year after delivery of the goods. This does not apply if we, our legal representatives or our agents have acted with intent or gross negligence.
In case of damage to or loss of weight of the goods during transport, the buyer shall have the transportation company validly establish the condition of the goods in accordance with legal stipulations and assert any damage compensation claims against the transportation company.
Before offering the goods to the final consumer, the buyer shall label the delivered goods in accordance with legal requirements.
9. Performance and jurisdiction
Place of performance and place of jurisdiction for deliveries and payments (including cheque and draft complaints) as well as all disputes arising under purchase contracts between us and the buyer is our company location Stuttgart. But we are also entitled to file suit against the buyer at its residence and/or place of business.
The relationships between the contractual parties are subject exclusively to the applicable law of the Federal Republic of Germany. Application of the uniform law on international purchase of movable goods as well as the law on creation of international purchase contracts for movable goods is excluded.