Terms and Conditions of Sale and Delivery of Kirchner, Fischer & Co.
1 Scope of these terms and conditions
a) The deliveries, services and offers of the seller are directed exclusively to entrepreneurs within the meaning of § 14 BGB and are made exclusively on the basis of these terms and conditions of sale and delivery. They apply to all contracts concluded between the parties and extend to offers, advice and other contractual services.
b) Deviations from these Terms and Conditions of Sale and Delivery shall only be effective if the Seller confirms them in writing. The buyer’s general terms and conditions are invalid and are hereby rejected. The Seller’s Terms and Conditions of Sale and Delivery shall also apply if the Seller accepts the Buyer’s performance without reservation in the knowledge of terms and conditions that conflict with or deviate from these Terms and Conditions of Sale and Delivery. Neither failure to object nor payment or acceptance of the goods shall constitute acceptance of third-party terms and conditions.
c) If there is a framework agreement between the Buyer and the Seller, these Terms and Conditions of Sale and Delivery shall apply both to the framework agreement and to the individual purchase contracts.
d) By submitting his order, the buyer bindingly declares that he is an entrepreneur within the meaning of § 14 BGB. Orders from consumers within the meaning of § 13 BGB are not accepted and executed.
2 Conclusion of contract, contract amendments and written form
a) All offers made by the seller are subject to change and non-binding until the contract is concluded and are subject to prior sale, unless expressly agreed otherwise.
b) The contract is concluded when the seller confirms or executes the buyer’s order in writing within 2 weeks of its receipt. Unless otherwise confirmed in writing by the seller, his invoice shall be deemed to be confirmation of the order, unless the delivery itself has already been carried out.
c) In the case of written orders, the seller shall be guided by the item number and not by the description. If the Buyer is a merchant, only the Seller’s written confirmation shall be authoritative for the content of orders and agreements, unless the Buyer immediately objects in writing. This applies in particular to verbal or telephone orders and agreements. A notification to the seller is in any case no longer immediate if it is not received by the seller within two days after the buyer has received the seller’s written confirmation.
d) Any changes or additions to the contract, with the exception of a change to the terms and conditions of sale and delivery for the future after notification to the buyer in accordance with Clause. 1, require the written confirmation of the seller to be effective. This also applies to deviations from contractual written form requirements.
3. delivery and delivery times
a) Unless otherwise expressly agreed in writing between the parties, the goods shall be shipped EXW (ex works, Incoterms 2010) from the Elmshorn warehouse.
b) Correct and timely self-delivery is reserved if the buyer is a merchant.
c) In the absence of special instructions from the Buyer, the Seller shall choose the transport route at its best discretion without liability for the cheapest and/or safest shipment.
d) All agreements and promises of delivery dates or deadlines must be made in writing to be effective. The prerequisite for compliance with the agreed delivery times is the timely fulfillment of the contractual obligations assumed by the buyer, in particular the performance of the agreed payment and, if applicable, the provision of agreed securities.
e) In the event of a delay in delivery, the Buyer shall only be entitled to assert claims for damages if a reasonable grace period for delivery set by the Buyer in writing after the occurrence of the delay has expired without result and the delay in delivery is the fault of the Seller.
f) Goods notified as ready for dispatch must be called off immediately when the delivery date is reached. If shipment is delayed due to circumstances for which the buyer is responsible, the buyer shall be in default from the date of notification of readiness for shipment.
4. force majeure
In cases of “force majeure”, i.e. unforeseen difficulties due to natural shortages of raw materials, operational restrictions and shutdowns as well as unforeseeable production disruptions at the Seller or its suppliers, flooding, storms and severe weather, governmental and official orders and/or controls, total or partial obstruction in the growth of the harvest, and other events for which the Seller is not responsible, the Seller shall be entitled to postpone the announced or agreed delivery date accordingly. The seller is obliged to inform the buyer immediately of such circumstances as soon as the seller becomes aware of them. If a delay in the provision of services due to “force majeure” is unreasonable for one party, this party shall be entitled to withdraw from the contract.
5. transport insurance, toll and diesel surcharges
The buyer is free to take out additional transport insurance. In this case, the seller will charge an additional 1% of the net purchase price of all items as insurance costs. If no transport insurance is requested, the seller delivers exclusively at the buyer’s risk (there is no right of complaint in the event of transport damage). Current toll charges are shown separately by the seller.
6. first deliveries
Initial deliveries are only made against cash on delivery or prepayment.
7 Price, costs and minimum order value
a) The price is EXW (ex works, Incoterms 2010) from the Seller’s registered office or directly from the distribution warehouse in Elmshorn or the registered office of the upstream supplier and plus any applicable value added tax, unless otherwise agreed in writing in individual cases. The price does not include postage costs, tolls, diesel surcharges and other charges and fees imposed by public or private third parties. The same applies to freight costs, unless expressly agreed otherwise. Insurance costs are not included in the quoted price, see para. 5.
b) In Germany, the minimum order value is € 150. Up to € 250,- order value we show the current freight costs. From a net order value of € 250,- the seller delivers ex warehouse Elmshorn carriage paid. The minimum order value for foreign countries is € 500. The seller may change the aforementioned minimum quantity surcharges and flat rates, including increasing them, if his own costs for processing minimum quantities or his own costs for freight and packaging increase. However, this does not apply retroactively to supply contracts that have already been concluded. Unless otherwise agreed, the seller shall adhere to the prices quoted by him for 30 days from the date of quotation. Any price increases resulting from official measures after conclusion of the contract, caused by taxes, customs duties, freight charges, exchange rates or other levies or increases of any kind whatsoever, shall always be borne by the buyer.
c) In the case of sales on call, the Seller shall be bound to the confirmed price for a period of three months from the order confirmation date. If the goods are called off after this period has expired, the Seller shall be entitled to charge the prices applicable at the time of the call-off.
8. return of packaging
a) Insofar as the Seller is obliged under the Packaging Ordinance to take back the transport, service or sales packaging free of charge, the place of return shall be the Seller’s place of business.
b) Packaging can only be returned during the seller’s business hours. Larger quantities must be announced in advance. The returned packaging must be clean and free of foreign matter. Otherwise, the seller shall be entitled to compensation for the additional costs incurred during disposal.
9. reservation of title
a) The Seller retains title to the delivered products until all claims arising from the business relationship with the Buyer have been paid in full.
b) The processing or treatment of the reserved goods by the Buyer shall always be carried out on behalf of the Seller, without the Seller incurring any obligations as a result. The seller shall be entitled to ownership of the new items in their respective state of treatment or processing. If the seller’s reserved goods are processed, treated, mixed, blended or combined with other products not belonging to him, he shall be entitled to co-ownership of the new item in the ratio of the invoice price of the reserved goods to the invoice price of the other products.
c) The Buyer may sell the goods subject to retention of title which are the sole or joint property of the Seller in the normal course of business; the Buyer is not permitted to pledge them, transfer them by way of security or assign them by way of security. The Buyer hereby assigns to the Seller in advance all claims to which it is entitled from the resale of the reserved goods or the products resulting from processing, treatment, mixing, blending or combination. This also applies if the products are sold together with other products not belonging to the seller at a total price. If a third party has acquired ownership or co-ownership rights to the products as a result of processing, treatment, blending, mixing or combination, the Buyer hereby assigns to the Seller in advance any claims accruing to it against the third party. Assignments within the meaning of this paragraph shall only ever be made up to the amount of the invoice price of the reserved goods. The buyer is authorized to collect the assigned claims until revocation, which is permissible at any time.
The Seller hereby accepts the assignments of the Buyer provided for in this clause.
d) The seller undertakes to release the securities to which he is entitled in accordance with the above provisions at his discretion at the request of the buyer to the extent that their value exceeds the claims to be secured by more than 10%.
e) If the buyer’s cooperation is required for the retention of title to be effective, for example in the case of registrations required under the law of the buyer’s country, the buyer must carry out such actions.
f) If the Buyer is in arrears with a payment, the Seller may prohibit him from disposing of the reserved goods in full or, at his discretion, in part, e.g. only the sale or further processing, etc.
g) If the Buyer has the objective prerequisites for the obligation to file for insolvency, the Buyer shall refrain from any disposal of the goods subject to retention of title, irrespective of their nature, without the need for a corresponding request. The buyer is obliged to notify the seller immediately of the stock of goods subject to retention of title. In this case, the seller is also entitled to withdraw from the contract and demand the return of the reserved goods. If the goods subject to retention of title have been processed, treated, blended, mixed or combined with other products, the Seller shall be entitled to demand that they be handed over to a trustee; the Buyer shall be obliged to notify all co-owners of the goods subject to retention of title with their company name or name, address and co-ownership share. The same shall apply mutatis mutandis to claims assigned to the Seller in accordance with the above paragraphs; in addition, the Buyer shall, without being requested to do so, forward to the Seller copies of the names and addresses of all debtors and the documents evidencing the claims against them.
10. product properties
a) The Seller shall deliver the products in a quality which, according to the Seller’s sorting guidelines, corresponds to that of a first choice. This product can be subject to standard commercial requirements in terms of cleanliness and surface beauty.
b) Due to different materials and manufacturing processes, color differences can often occur in a series depending on the lighting conditions. Production-related deviations in dimensions, contents, weights, colors and surface finishes that are within the customary commercial tolerance are not defects. For printing reasons, there may be color deviations between the brochure/catalog illustrations and the product.
c) Acidic and/or corrosive cleaning agents can cause damage if used improperly.
d) The seller reserves the right to make minor changes to the design, color and shape.
e) Goods in grade II or minimum grade do not comply with the seller’s grading guidelines and do not meet the usual design and quality requirements.
f) Typical signs of wear (e.g. metal abrasion or abrasion caused by abrasive agents) or deteriorating surface properties are unavoidable according to the state of the art and do not constitute a defect.
11 Defects and warranty
a) The Buyer must inspect the goods immediately after delivery at his own expense and notify the Seller in writing of any recognizable defects as well as incorrect deliveries or shortages without delay, at the latest after a preclusive period of seven days. Hidden defects must be reported to the seller in writing immediately after discovery. Otherwise the goods shall be deemed approved.
b) A customary excess or short delivery does not constitute a defect. Deviations of up to 5% are considered customary in the trade.
c) The warranty period is 1 year from delivery. The limitation periods in the event of a delivery recourse according to §§ 478, 479 BGB remain unaffected by this provision. Claims for damages based on defects and claims for reimbursement of expenses due to gross negligence, intent or the breach of material contractual obligations (see provisions under Section 13 “Liability”) are not limited by this. Claims for damages due to injury to life, limb or health or under product liability law are also not affected by this.
d) The declarations with which the buyer asserts any warranty rights (requests for subsequent performance, declarations of withdrawal, requests for a reduction in the purchase price and/or compensation) must be made in writing in order to be effective.
12. liability
a) Claims for damages of any kind against the seller and its legal representatives and vicarious agents are excluded, unless there is intent or gross negligence or a breach of a material contractual obligation. An essential contractual obligation in this sense means any obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the buyer may regularly rely.
b) Unless there is intent, liability is limited to the typically foreseeable damage.
c) The above limitations and exclusions of liability do not apply to liability under product liability law or in cases of injury to life, limb or health.
d) Claims for reimbursement of expenses by the client in accordance with § 284 BGB are waived insofar as a claim for compensation for damages instead of performance is excluded in accordance with the above provisions.
13. payment
a) Unless another payment term is expressly agreed in the contract, payment must be made no later than 10 days after the invoice date. After expiry of this period, the buyer shall be in default. The default interest is 9% points above the prime rate. The seller reserves the right to prove and claim higher damages caused by delay. Dunning and collection costs as well as any other costs shall be borne by the buyer.
b) The Buyer shall only be entitled to rights of set-off and retention if and insofar as his counterclaims are either in a reciprocal relationship (§ 320 BGB) to those asserted by the Seller or are legally established, undisputed or recognized by the Seller. In addition, the buyer is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
c) If it becomes apparent after conclusion of the contract that the Seller’s claim for payment is jeopardized by the Buyer’s inability to pay, all outstanding claims shall become due immediately; this shall not restrict the Buyer’s objections and defenses that do not consist of the fact that a later payment date has been agreed.
d) In the event that the seller is obliged to perform in advance, he may refuse the performance incumbent upon him if it becomes apparent after conclusion of the contract that his claim to consideration is jeopardized by the buyer’s inability to perform. The right to refuse performance does not apply if the consideration is paid or security is provided for it. The seller may set a reasonable period of time within which the buyer must, at his discretion, provide the counter-performance concurrently with the service or provide security. If the deadline expires without result, the seller may withdraw from the contract.
14 Place of performance, place of jurisdiction, applicable law
a) The place of performance for all disputes arising from the business relationship is Elmshorn. If the buyer is a merchant, a legal entity under public law or a special fund under public law, Hamburg is agreed as an additional place of jurisdiction for all disputes arising from this contract. Alternatively, the plaintiff is entitled to appeal to the Arbitration Court of the Hamburg Chamber of Commerce. If this happens, the court of arbitration shall have exclusive jurisdiction. The place of arbitration is Hamburg, the language of the proceedings is German.
b) The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
15. data protection
The Seller shall be entitled to process and store the data about the Buyer received in connection with the business relationship – even if such data originates from third parties – within the meaning of the German Federal Data Protection Act (BDSG) and to have such data processed and stored by third parties commissioned by the Seller.