General Terms and Conditions of Business of Ulmer Nahrungsmittel GmbH
- These General Terms and Conditions of Business shall apply to the entire business dealings between us and the Customer. They shall particularly apply to all future business transactions even if no express reference is made to them.
- These General Terms and Conditions of Business shall definitively regulate the entire business relationship between the Customer and us. In particular, the general terms and conditions of business of the Customer as well as purchase terms and conditions shall not become a contractual component, regardless of whether they deviate from these General Terms and Conditions of Business or contain supplementary provisions.
- Our offers shall be non-binding. The scope as well as terms and conditions of the order will be specified on the invoice.
- Descriptions of our goods shall be considered to be only approximate. We reserve the right to make changes to the goods until delivery is made, whereby these changes may nonetheless not inappropriately restrict the Customer’s interests.
- From the Customer’s viewpoint, the criterion for the appropriateness shall be the effects on the value as well as the usability or saleability of the goods; on our side, the technical requirements, particularly requirements relating to production and food legislation.
- Obvious typing, printing and computational errors shall entitle us to withdraw from the contract. Claims to damages in compensation on the part of the Customer shall be excluded.
- Details regarding delivery periods/delivery deadlines shall be considered to be non-binding unless they were guaranteed with binding effect.
- If a binding delivery period has been agreed, it shall not apply until all details of the order have been clarified and the Customer has made an agreed advance payment. The delivery period can be fulfilled only if the Customer fulfils its contractual obligations. The delivery period shall be considered to have been fulfilled if the goods have been sent or their readiness for despatch has been communicated before the delivery period lapses. The aforementioned provisions shall apply mutatis mutandis if an agreed delivery period has been guaranteed.
- If we are hindered from making the delivery as the result of force majeure, the delivery period shall always be extended by the duration of the effects of the force majeure as well as a reasonable start-up period. Force majeure event shall be considered to equate to unforeseeable sets of circumstances for which we are not responsible and which make delivery unreasonably difficult or impossible for us. Examples of this would be delays in delivery from our designated sub-suppliers, labour disputes, government measures, shortages of raw materials or energy, significant disruptions to operations, e.g. as the result of destruction of the business in its entirety or in important divisions, failures of indispensable production equipment, major transport disruption, e.g. through roadblocks, labour disputes in the transport industry, energy shortages and travel bans. If these sets of circumstances persist for more than four months, we shall also have the right to withdraw from the contract. At the Customer’s request we must declare whether we are withdrawing from the contract or will make delivery within a reasonable period of time to be set by us. Claims to damages in compensation on the part of the Customer shall be excluded.
- If we are responsible for the failure to meet a reasonable delivery period, we shall only be considered to be in default if the Customer has granted us a reasonable period of grace in writing, which must be at least three weeks, and this period of grace has lapsed without result. The Customer may then withdraw from the contract. Claims to damages in compensation on the part of the Customer for simple negligence on our part shall be excluded.
- The Customer must pay the list price that is effective on the delivery date or the price that has been individually agreed when the order was issued. Changes in the list prices will be announced four weeks before they become effective.
- Our prices shall be considered to be free destination FRG. The Customer must also pay the statutory VAT respectively applicable. Our prices include packaging materials, which will not be taken back.
- For orders below a goods value of €500.00 according to the wholesale price list, we will collect a minimum quantity surcharge in the amount of the costs incurred.
- For deliveries made abroad, our prices shall be understood to be free German border. The Customer shall pay any customs duties and customs clearance duties. in other respects paras. (2) and (3) shall apply mutatis mutandis.
- Our invoices shall become payable strictly net 14 days after the invoicing date. We will assert our payment claims on the date on which the goods leave the factory and/or they have been made available to the Customer for pick-up.
- We will not accept payment methods other than cash, cheque and bank transfer. Payments must be made in such a manner that we incur no costs for them. We shall not be required to accept cheques as payment. Acceptance shall require separate prior agreement. Acceptance shall furthermore only be deemed conditional as well as subject to billing of the debt collection and discounting costs. If cheques are accepted as payment, the payment shall only be considered to have been made when the cheque has been redeemed. Despite any conflicting terms and conditions of the Buyer, we shall be entitled first to offset payments from the Buyer against its previous debts and interests or costs.
- When the payment claim matures, the Buyer shall be considered to have entered into default without notice. From this point in time we shall be entitled to charge interest at the interest rate charged by the commercial banks for open overdraft loans plus the statutory VAT.
- If we become aware of any circumstances which cast doubt on the creditworthiness of the Buyer, we shall be entitled to demand an advance payment or the provision of security within 24 hours and to call in any payments that have been deferred or are not yet due from other contracts. If the Buyer does not provide the advance payment or security, or does not provide it promptly, we shall be entitled to withdraw from the contract without setting a further deadline. The latter shall also apply in the event that a petition is filed to open bankruptcy proceedings, or such bankruptcy proceedings are actually opened, as well as in the case of insolvency.
- Even if claims based on defects or counterclaims are asserted, the Buyer shall only be entitled to offset, the retention of payment or a reduction in the purchase price if the counterclaims have been legally upheld or are undisputed. This shall also apply to rights of retention on the part of the Buyer owing to counterclaims from the same contractual relationship.
- We shall also be entitled to make partial deliveries. We may issue partial invoices for partial deliveries. The payment periods shall run separately for each partial invoice.
- Our field employees have no authority to collect debts.
- Shipping shall be at the Customer’s risk. This shall also apply if we assume the shipping costs. We shall be entitled, but not required, to take out transport insurance. The costs for transport insurance shall be assumed by the Customer. The risk shall pass to the Customer as soon as the delivery has left our factory, even if partial deliveries are made or we have assumed responsibility for the rendering of other services such as, for example, the supplying of advertising materials or shelf maintenance. If shipment is delayed owing to reasons for which we are not responsible, or owing to the Customer’s conduct, the risk shall pass to the Customer upon the sending of our notification of readiness for despatch to the Customer.
- Unless otherwise instructed by the Customer, we will select the transport method, the transport route and the transport insurance without being responsible for selecting the fastest or cheapest option.
- In the case of damage to or loss of the goods in transit, the Customer must request that the carrier promptly provides a statement of facts.
- In the case of delivery on euro pool pallets, the Customer shall be bound, if delivering goods by way of exchange, to provide the same number of undamaged empty pallets which correspond in size, design and usability to those pallets on which the goods were delivered. If the swapped pallets are not returned, or not completely returned, we shall be entitled to charge the Customer for the replacement costs.
- Claims for damages in compensation owing to the deficient packaging of goods, non-adherence to packaging instructions or non-adherence to transport instructions which constitute simple negligence on our part shall be excluded.
- If the employees of the carrier that we deploy provide assistance to the Customer during the unloading work, we shall not be liable for simple negligence.
- If the Customer does not promptly take delivery of goods which have been notified as ready for despatch or which have been delivered, we shall be entitled to either set a reasonable period of grace for the Customer and, after it lapses, to dispose of the goods elsewhere and to make delivery to the Customer within a reasonable extended period or to immediately invoice it for the goods and to store the goods at its expense and risk. This shall be without prejudice to our rights, subject to the requirements of § 326 of the German Civil Code (setting a period of grace with the threat of refusal), to withdraw from the contract or to demand damages in compensation owing to non-performance. If we demand damages in compensation owing to non-performance, we may demand 20% of the agreed price as compensation without being required to demonstrate this unless it can be demonstrated that substantially lower damage has actually been suffered. This shall be without prejudice to our right to assert that greater damage has actually been suffered.
- Para. 1 shall apply mutatis mutandis if the Customer has not promptly requested a call-off delivery in accordance with § 3 para. 5. In this case, we shall also have the right to ship the goods after the period of grace lapses.
- The goods shall remain our property until the Customer has settled all payment claims which we hold against it. This shall also apply to sales on a drop shipment basis which we implement in the name and for the account of the wholesaler.
- The Customer may process the goods to which we reserve ownership rights in the course of its ordinary business operations unless it enters into payment default or has discontinued its payments. In the case of processing, it is hereby agreed that we shall be entitled to a co-ownership share in the new goods created through the processing corresponding to the proportional value of the value of the goods subject to reservation of ownership to the value of the other processed goods. The Customer shall store the new goods created through the processing for us. The aforementioned provisions shall apply mutatis mutandis if the Customer mixes, blends or combines the goods to which we reserve ownership rights with other goods.
- The Customer may sell the goods to which we reserve ownership rights or in which we are entitled to co-ownership rights (reserved goods) in the course of ordinary business unless it enters into payment default or has discontinued its payments. It may not pledge the goods or assign them by way of security. Selling them abroad is permitted only with our prior written consent. If the Customer sells the reserved goods, it hereby assigns to us, until the settlement of all our payment claims, its rights from the sale which it holds against its customers together with all ancillary rights, security and reservations of ownership. We may demand that the Customer notify its customers of the assignment and provide us with all information and documents which are required for the collection of these payment claims. However, the Customer may not collect the payment claims assigned to us for as long as it is in payment default or has discontinued its payments. If the Customer’s payment claims arising from the resale of the reserved goods are received in a current account, the Customer hereby assigns to us its payment claim from the respective and/or recognised balance in the amount in which payment claims from the resale of the reserved goods are contained. If we are entitled to only co-ownership of the goods sold, the aforementioned assignment shall apply only in the amount of the value of our co-ownership. If the reserved goods are sold with other goods for a total price, the aforementioned assignment shall apply only in the amount of the invoiced value of the reserved goods and/or in the amount of the value of our co-ownership share. If the Customer receives a cheque or bill of exchange for the sale of the reserved goods, it hereby assigns to us the cheque or bill of exchange until all of our payment claims have been settled. It shall undertake to carefully safeguard the cheque or bill of exchange for us. In all other respects the provisions in the above paragraph shall apply mutatis mutandis.
- If the value of the reserved goods together with the other security provided to us exceeds our payment claims against the Customer by more than 20%, we shall be bound to release the security to that extend if the Customer so demands.
- The Customer must immediately notify us if the reserved goods or other goods or payment claims to which we hold rights are seized by third parties or an impairment of our rights must otherwise be feared. The required documents must be enclosed with the notification. The Customer must reimburse us for any costs which we incur owing to such events.
- For as long as our ownership rights to the supplied goods are effective, they must be insured by the Buyer against loss and reduction in value, fire, burglary, theft and transport risks as well as mains water damage. The Customer hereby assigns to us in advance the claim against the insurer arising from a damaging event as security for its claims up to the amount of the claim from sale.
- The Customer shall be bound to inspect the goods which we have supplied promptly after handover and, if a defect is discovered, to promptly notify us of this defect. The Customer shall also be bound to inspect the supplied goods immediately after handover for completeness (type and quantity) and to confirm receipt thereof on our delivery note. These provisions shall apply even if the Customer is not already required to make inspection or notify defects in accordance with § 377, 378 of the German Commercial Code.
- (The Customer shall also undertake to subject the supplied goods to a receiving inspection if the goods are to be subject to further processing.
- In the event that the goods are discovered to have defects, the Customer may only demand a replacement delivery. On request, the Customer shall be bound to send the goods back to us at our expense. Any replaced goods shall become our property.
- However, the Customer will nonetheless be entitled to demand rescission of the contract or a reduction in the contractual price if
– the replacement delivery is impossible,
– our replacement delivery is not successful within a reasonable period of time,
– we refuse to perform the replacement delivery or
– we culpably delay the replacement delivery.
- Claims by the Customer for damages in compensation for simple negligence on our part, even for damage which arises as the result of a late replacement delivery, shall be excluded. The exclusion of the claim for damages in compensation shall not apply if the goods lack a warranted characteristic.
- Any liability for consequential losses, i.e. for damage to other legal rights of the Customer such as, for example, lost profits, etc., shall be excluded unless we must also be liable for consequential losses owing to a defect in a warranted characteristic of the goods.
- We shall not be liable for defects in the goods which have been caused through improper handling or storage under inappropriate conditions – particularly under excessive humidity and excessively high or excessively low temperatures.
Claims to damages in compensation on the part of the Customer, regardless of the legal grounds, particularly owing to tortious acts, manufacturer’s liability, incorrect advice or a failure to advise, a positive breach of obligation, culpability when concluding the contract and impossibility of performance shall constitute simple negligence on our part and shall be excluded. This liability provision shall not apply to liability regardless of fault, particularly not for the absence of warranted characteristics and for product defects in accordance with the German Product Liability Act.
- Deviations from these Terms and Conditions of Sale must be made in writing.
- The place of performance for the performances of both contract partners shall be 89079 Ulm, Germany.
- The contractual relationship and the related legal disputes shall be governed solely by the law of the Federal Republic of Germany, ousting the United Nations Convention on Contracts for the International Sale of Goods.
- The venue for all disputes arising between us and the Customer, including proceedings with regards to bills of exchange, cheques or deeds, shall be 89079 Ulm, Germany, if the Customer is a registered merchant, a legal entity under public law or a special federal asset or has no general venue in the Federal Republic of Germany. We shall also be entitled to take legal action in the venue which is competent for the Customer’s registered office.
- In the event that individual provisions of these Terms and Conditions should be or become ineffective in whole or in part, or a loophole should be discovered in these Terms and Conditions, this shall be without prejudice to the effectiveness of the remaining provisions. The ineffective provisions shall be replaced by that effective provision which most closely corresponds to the sense and purpose of the ineffective provision. In the case of a loophole, a provision shall be agreed which corresponds to what would have been agreed based on the sense and purpose of these Terms and Conditions if the matter had been taken into consideration from the outset. This shall also apply if the ineffectiveness of a provision is based on a measure of performance or time that has been standardised in these Terms and Conditions; in such cases, a legally-permissible measure of performance or time which most closely corresponds to that intended shall replace the agreed one.
§ 13 Consumer Dispute Resolution Act (§§ 36, 37 VSBG)
We are not willing to participate in dispute resolution proceedings before a consumer dispute resolution board in accordance with § 2 of the German Consumer Dispute Resolution Act.
Version: August 2018