Terms and Conditions of Sale and Delivery of the Company Fruchtimport vanWylick GmbH
1. Scope of Application
1.1. These terms and conditions shall apply to all present and future business relations. Terms and conditions of the buyer that conflict with, or deviate from, these terms and conditions shall not be recognised. All agreements made between us and the buyer for the purpose of implementing this contract shall be laid down in writing.
1.2. Any trade in fruit and vegetables shall be governed by the COFREUROP terms and conditions as a supplement to the following terms and conditions, except where the COFREUROP terms and conditions are modified or supplemented by the following terms and conditions. In any event, the following terms and conditions shall take precedence. The COFREUROP terms and conditions can, of course, be requested from us.
2. Quotations, Conclusion of a Contract
Our quotation shall be subject to change without notice, except where otherwise ensues from the content of the quotation.
3. Prices, Payment Terms
3.1. The prices are ex warehouse or sales vehicle, and shall be payable net cash, without any deduction, upon receipt of the invoice. If payments are deferred or made later than agreed upon, interest at the rate of 8 % above the respective base interest rate shall be charged for this interim period, without special notice of default having to be given. The right to assert any further damage claim shall remain reserved.
3.2. Any deterioration in the buyer’s ability to pay, or any failure to comply with the agreed payment terms, shall entitle us to modify those terms.
3.3. The buyer shall be entitled to rights of set-off only if its counterclaims have been determined by a final and non-appealable court judgement, are undisputed or have been recognised by us. The buyer shall be authorised to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.
3.4. Cheques shall be accepted only on account of payment.
4. Delivery and Performance Period
4.1. All deliveries shall take place only ex warehouse. Shipment to the buyer shall take place only at the buyer’s risk and expense. Packaging and shipment shall be subject to our discretion, but without our being responsible.
4.2. Even in the case of periods or dates bindingly agreed upon, we shall not be held responsible for delays in delivery or performance that result from force majeure or from events that make delivery significantly more difficult or impossible, not just temporarily, owing to reasons not imputable to us.
4.3. We shall be entitled to render subdeliveries and/or subservices at any time, unless such subdelivery or subservice is of no interest to the buyer.
5. Passage of Risk
The risk shall pass to the buyer once the consignment has been handed over to the person carrying out transportation, or once the consignment has left the seller’s warehouse for the purpose of shipment. If shipment is delayed at the buyer’s request, the risk shall pass to the buyer upon notification of readiness for shipment.
6. Retention of Title
6.1. The goods delivered shall remain our property until all our present and future claims against the buyer under the business relationship, including all such claims arising from contracts concluded at the same time or at a later date, have been settled. This shall also apply, if some or all of the seller’s claims have been included in a running account, and the balance has been calculated and recognised.
6.2. The buyer shall be entitled to on-sell, in the ordinary course of business, the goods that are under retention of title. As collateral, the buyer hereby assigns to us all claims accruing to it against purchasers or third parties as a result of such on-selling. The seller hereby accepts this assignment. The buyer shall, even after this assignment, be authorised to collect these claims. The seller may demand that the buyer notifies it of the claims assigned and the debtors concerned, provides all information necessary for collecting these claims, hands over all relevant documents and gives the debtors notification of this assignment.
7.1. A prerequisite for defect-related claims of the buyer is that the buyer must have properly met its obligations to inspect the goods and give notification of defects in accordance with Section 377 HGB [German Commercial Code].
7.2. The buyer shall give us written notification of any defects forthwith after receipt of the goods. This shall also apply to breakage and missing quantities. Defects not discoverable within this period, even upon diligent examination, shall be reported to us forthwith after their discovery.
7.3. If supplementary performance fails, the buyer shall be entitled, at its option, to demand rescission of the contract or reduction of the price.
7.4. Only the direct buyer shall be entitled to claims against us on account of defects.
7.5. The limitation period for defect-related claims shall be 12 months, calculated from the time of passage of risk. The limitation period in the event of supplier recourse under Sections 478 and 479 BGB [German Civil Code] shall remain unaffected.
In cases where fault is relevant, our liability for damages, on whatever legal basis, in respect of property damage and further pecuniary loss resulting therefrom shall be limited to the sum of the value of the goods, even if duties material to the contract have been breached. This shall not apply to claims based on intentional misconduct, warranted features or mandatory liability under the Produkthaftungsgesetz [Product Liability Act], or to claims based on mortal injury, physical harm or health damage.
9. Place of Jurisdiction, Final Provisions
9.1. These terms and conditions of business and the entire legal relationship between us and the buyer shall be governed by the laws of the Federal Republic of Germany. The provisions of UN sales law shall not apply.
9.2. Insofar as the buyer is a merchant, a legal entity under public law or a special fund under public law, Düsseldorf shall be the exclusive place of jurisdiction for all disputes ensuing directly or indirectly from the contractual relationship.