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Wohlgemuth Süßwaren GmbH - Terms of Payment and Delivery

§ 1  General


(1)  All delivery transactions, agreements and quotations are based on the following conditions, even if the seller does not expressly refer to them in the future; they are deemed accepted through placement of order or acceptance of the delivery. If no separate confirmation of an order is given, the invoice is regarded as order confirmation. All transactions and contract formations only become binding for the seller if they have been confirmed by it in writing or if they have been executed through the delivery of the goods. Oral agreements are not valid.


(2)  Changes or additions to these conditions require the seller’s written confirmation in order to take effect. The “Terms of Delivery and Payment” also apply exclusively if the buyer has stated or states its own general terms of delivery which deviate from the conditions of the seller, or if these are printed on the buyer’s documents, e.g. on order forms. Counter confirmations of the Buyer with deviating conditions are hereby contradicted.



 § 2  Prices


(1)  All quotations are subject to confirmation. Unless otherwise agreed, the prices are carriage paid to the destination of the recipient including packaging, plus the statutory value added tax applying at the time.



 § 3  Delivery


(1)   Unless otherwise agreed, delivery shall be made after a written order placement by the buyer. Delivery possibility and limitation of the quantities to be delivered are expressly reserved. Compensation for damages due to delayed delivery is excluded unless a specific date of delivery has been agreed in writing. As far as a liability exists, it only applies in case of purpose and gross negligence. Compensation is only paid due to the direct damages due to delay; its amount is limited by the value of the delivery.


(2)   The compliance with delivery deadlines requires an uninterrupted operating process of the supplier and unrestricted dispatch and delivery possibilities. Force majeure events, especially fire and machinery breakdown, industrial actions, traffic disruptions and obstructions, damages to transportation, raw materials, auxiliary materials and operating materials or breakdowns of any kind at ones own site or sites in connection with the fulfilment, as well as obstructions caused by the administrative bodies complicating the delivery release the seller from its obligation to supply for the duration of the effects during which the buyer cannot claim damages or demand subsequent delivery. If the disruption lasts longer than 15 business days, both buyer and seller are entitled to withdraw from the contract.


(3)   Delivery is made to an agreed location (destination). In case of subsequent changes, the buyer shall bear all costs resulting from this.


(4)   With the delivery to the dispatch agent of the seller, but at the latest when leaving the factory or warehouse, all risks, including those resulting from transport damages, are passing to the buyer regardless whether the dispatch is made from the place of fulfilment and who bears the freight costs. The seller reserves the right to choose the transport and insurance company as well as the transport route. Transport insurances are only effected on request and at the expense of the buyer.


(5)   For the calculation, only the quantities, weights or amounts as well as qualities determined by the supplier / dispatch warehouse of the seller are decisive.


(6)   For export shipments, the Incoterms 2010 apply.


(7)   The seller is entitled to provide partial shipments. In general, over or under deliveries up to 10 % of the ordered quantities are allowed. Over or under deliveries of pre-suppliers which are allowed according to their Terms and Conditions, entitle the seller to over or under deliveries in the same amount.



 § 4  Acceptance


(1)   The buyer is obligated to accept the goods within the agreed term of delivery. For a spot supply, a delivery term of 10 business days is deemed agreed in case of doubt. If the buyer does not fulfil its acceptance obligation or if it does not fulfil it in time, the seller is entitled to store the due quantities at the expense and risk of the buyer without giving another term and to demand the payment of the purchase price or to demand compensation instead of the service after the unsuccessful expiration of an appropriate grace period and/or to withdraw from the contract. The liability for damages does not apply if the buyer is not responsible for the acceptance delay.



 § 5  Packaging


(1)   Disposable packaging may only be re-used in business connections after making the logo and company name as well as the product name unrecognisable.



§ 6  Reclamations


(1)   The buyer is obligated to inspect the goods immediately after arrival but in any case prior to processing, blending or resale. If the buyer does not carry out this inspection, the goods are deemed approved. Possible defects must be reported to the seller in writing immediately, however at the latest within 10 days after delivery of the goods; hidden defects must be reported in writing within 10 days after their detection, but at the latest within 6 weeks after the arrival of the goods. If the buyer does not report this, the goods are deemed accepted. The costs for the review e.g. for analyses are borne by the person who orders them.



(2)   Warranty claims are excluded if the buyer changes the goods, or if it handled, processed, blended, mixed or resold them improperly. They are also excluded after the expiration of one year from delivery of the goods or from dispatch according to § 3 section 4 of these terms of delivery and payment.



(3)   In case of a justified and proper notice of defects, the buyer is entitled to demand replacement delivery or, if this is only possible with disproportional costs (§ 439 III BGB), to reduce the purchase price or to withdraw from the contract. Precondition is that the goods are in the same condition as during delivery. A defect which only applies to an insignificant part of the owed delivery generally excludes a withdrawal. Apart from that, the buyer has the right to request compensation for defects of the goods according to the legal requirements as long as they are not based on slight negligence. This exclusion of liability does not apply if damages from injuries to life, body and health are apprehended hereof and if the seller is responsible for the violation of duty; as well as in case of a violation of an integral contractual obligation. The liability of the seller is limited to such damages insofar as they could have been foreseeable in kind and scope by it upon contract formation. Apart from that, claims from the buyer for a compensation of the direct damages, regardless of the legal ground, including possible claims for compensation due to pre-contractual obligations or from unauthorised actions, are excluded. A violation of duty by the seller is equal to the violation of a legal representative or agent.



(4)   If the buyer has specified an appropriate term for supplementary performance to the seller according to §§ 281, 323 German Civil Code and if this term has expired without achieving a success, it has to notify the seller within two weeks after the receipt of a corresponding notice in writing whether it claims compensation instead of the mitigation or whether it will withdraw from the contract. If it fails to notify the seller in due time, the rights from §§ 281, 323 German Civil Code shall be excluded.


(5)   In each case, the notice of defects includes the verifiably faulty good without affecting the acceptance obligation of the buyer with regards to the other quantities.


(6)   Possible recourse claims of the buyer according to § 478 German Civil Code remain unaffected. As far as the seller is obligated to compensation according to the legal requirements within the scope of such recourse, this obligation for compensation is limited according to § 6 section 3 of these Terms of Delivery and Payment.


(7)   Faulty goods may only be sent back with the express consent of the seller and only to the address specified by it.



 § 7  Information, product specifications


(1)   Information on processing and possible applications as well as technical consultations and other data, also in terms of patents, are carried out to the best of knowledge; however, they are non-binding and excluding any liability of the seller. They do not release the buyer from inspecting the products regarding the suitability for the intended application purposes.


(2)   Samples from the seller are deemed non-binding type or approval samples; data from analyses may only be regarded as approximate.


(3)   Product specifications requested by the buyer do not contain a guarantee of quality or durability in the sense of § 443 German Civil Code.



 § 8  Payment


(1)   Unless otherwise agreed, invoices shall be paid due net within 10 days after the delivery date specified therein. The invoice date is irrelevant. No right of a payment deferral can be drawn from a delayed receipt of the invoice.

(2)   Representatives of the seller are only entitled to receive payments in case of a written collecting power.


(3)   Receipt of payment is deemed the day at which the seller can use the invoice amount free of expenses. Cheques are not deemed cash payment and are always only taken on account of payment. The seller is not obligated to accept bills of exchange.
If they are accepted, this is only done on account of payment. Discount and bill of exchange charges as well as costs are borne by the buyer and must be paid immediately. If bill submission is agreed, the bill must be in the possession of the seller within 8 days; the term must not be longer than 90 days from the invoice date.


(4)   If the payment after delivery is not made in due time, corresponding to the conditions above, the seller is entitled to demand a maturity interest for the time period before the start of delay amounting 2 % above the respective base rate but minimum 5 %. Apart from that, default interests at the statutory rate are charged. The enforcement of a damaged caused by delay beyond this is reserved.


(5)   In case of a delay in payment, all open accounts, even the ones not yet due or deferred, are payable immediately. In this case, the seller is entitled to make the further supply dependent on the advance payment of the purchase price or securities.


(6)   If doubts regarding the solvency or creditworthiness of the buyer arise after contract formation, the seller, at its own discretion, is entitled to demand cash payment or safety bonds for due and undue claims from all existing contracts before delivery, and to refuse fulfilment until receiving the advance payment or security bond, or at its option, to demand immediate surrender of the delivered goods and to collect them from the buyer.


(7)   The offsetting with counterclaims or the enforcement of a right of retention is excluded unless they are undisputed or have been determined without further legal recourse.


(8)   The enforcement of other rights remains unaffected.



 § 9  Reservation of ownership


(1)   All deliveries are carried out under the reservation of ownership according to § 449 German Civil Code with the following extensions:


(2)   The delivered goods remain the property of the seller until the buyer has paid all claims, even the claims from the business connection accruing in the future, especially a possible open account balance. The buyer is obligated to insure the goods against any insurable damage (especially fire, water, storm, theft, liability etc.). It will assign its claim from the insurance agreements to the seller who will accept this assignment in advance.


(3)   An acquisition of ownership of the goods subject to retention of title by the buyer according to § 950 German Civil Code in case of processing or manipulation of the goods subject to retention of title into a new product is excluded. A possible processing is carried out by the buyer for the seller without claims arising from this for the latter. In case of processing with other goods not belonging to the seller, the seller acquires joint ownership of the new product in the proportion of the value of the goods delivered by it and the other goods at the time of processing. The new product is deemed a good subject to retention in the sense of these conditions.


(4)   The claims of the buyer from the resale of the goods subject to retention are already assigned to the seller, regardless whether the goods subject to retention are resold without or after processing or whether they are being resold to one or more sub-purchasers. The seller accepts this assignment. The assigned claim serves the protection of the conditional seller only in the amount of the value of the respective sold goods subject to retention. In case the goods subject to retention are sold by the buyer together with other goods not belonging to the seller, be it without or after processing, the assignment of the purchase price claim only applies in the amount of the value of the goods subject to retention which, together with the other goods, is a part of this purchase agreement concluded with the sub-purchaser of the buyer, or of the object of purchase.


(5)   The buyer is only entitled and authorised to the resale of the goods subject to retention under the provision that the purchase price claim is assigned to the seller according to subparagraph 4. The buyer is not entitled to other dispositions of the goods subject to retention including pledging and chattel mortgage as well as other dispositions of the claims assigned or to be assigned to the seller according to subparagraph 4, including their assignment, assignment for security and pledging. The buyer must notify the seller immediately and in writing about any impairments as well as compulsory enforcement measures of third parties in respect of the goods subject to retention or the claims assigned in advance, and it must hand over documents required for an intervention.


(6)   Under reserve of revocation, the seller authorises the buyer to collect the claims from the resale. The seller will not use its right of collection as long as the buyer properly complies with its liabilities to pay. On request, the buyer must tell the seller the debtors for the assigned claims und it must notify them about the assignment. The seller is authorised to notify the debtors about the assignment on behalf of the buyer.


(7)   If the value of the securities conceded to the seller exceeds its claims by more than 20 %, the seller, on request of the buyer, is insofar obligated to reassign and release the assigned claims of its choice. With the full payment of all of the seller’s claims from the business connection, the assigned claims are transferred to the buyer in addition to the seller’s ownership of the goods subject to retention.



 § 10  Place of fulfilment and Place of jurisdiction



Place of fulfilment is the place of loading. Place of fulfilment for the payment, also for bills of exchange and cheques, as well as place of jurisdiction is solely Bernburg. The contractual relationship is subject to the laws of the Federal Republic of Germany. The provisions of the CISG do not apply.



 § 11  Partial effectiveness


Should individual provisions of these Terms of Delivery and Payment be illegal or invalid, the validity of the remaining provisions shall not be affected. In such a case, the invalid provision shall be interpreted or complemented in such a way that the intended economic purpose of the invalid provision is achieved.


State:   August 2011