General Terms and Conditions of Sale and Delivery
Bohlsener Mühle GmbH & Co. KG
General Terms and Conditions of Sale and Delivery
- for business-to-business transactions only -
I. Scope of application, subject-matter of the agreement
1. Our terms and conditions of sale and delivery (TOS) apply to all contracts for the supply of movable goods according to the provisions agreed with the customer. The uniform conditions of the German grain trade industry (“Einheitsbedingungen im Deutschen Getreidehandel”), as amended, apply subordinately and in addition thereto.
2. Our TOS apply to the exclusion of all others; we do not accept any terms and conditions of the customer which conflict with or deviate from our TOS, except where we have expressly consented to their application in writing. Our TOS apply also where we have knowledge of terms and conditions of the customer conflicting with or deviating from these TOS and effect deliveries to the customer without reservation.
3. Our TOS apply exclusively in relation to business customers within the meaning of § 310 para. 1 of the German Civil Code (BGB).
4. Our TOS apply also to any future business transactions with the customer.
II. Offer, offer documents and conclusion of contract
1. The customer’s purchase order shall constitute a binding offer to contract which we may accept within a period of two weeks by sending an order confirmation or by making delivery of the goods. Any previous offers made by us are without obligation and subject to change without notice. The same applies also to any offers made by us and/or or via our sales agents.
2. We reserve all rights of ownership and copyright in any images, drawings, calculations and other documents. The same applies also to any written documents identified as “confidential”. The customer shall not disclose such documents to third parties without our prior express consent in writing.
III. Prices and payment terms
1. Unless otherwise stated in the order confirmation, our prices are quoted “ex works“ and exclusive of packaging; packaging shall be charged and invoiced separately at cost.
2. Our prices are quoted exclusive of statutory VAT; the amount of statutory VAT payable as at the invoice date will be shown separately on the invoice.
3. Where the price has increased at the time of performance of supplies or services due to a change of market prices or increase of costs for third-party supplies or services involved in such performance, the increased price shall apply. In case of a price increase by 20 % or more compared to the agreed price, the customer shall have the right to withdraw from the contract. Such right must be exercised without undue delay after notification of the increased price.
4. Unless otherwise agreed, the total remuneration shall be due for payment within ten days after receipt of delivery of the goods without deduction of cash discounts. The consequences of any default of payment shall be subject to statutory provisions.
5. Where the customer is in default of payment on more than 10 % of any total amount invoiced, we shall be entitled to make any further deliveries to the customer dependent upon the agreed remuneration being paid by the customer by advance payment or cash on delivery.
6. The customer shall be entitled to set off against our claims only if the customer’s counterclaim has either been confirmed by final court decision, or accepted by us, or is undisputed. Furthermore, the customer shall be entitled to exercise any right of retention only if and to the extent that such right is based on a counterclaim of the customer which arises from the same contractual relationship.
IV. Delivery period, delivery
1. In principle delivery dates or periods indicated by us shall not constitute fixed times for delivery. Delivery periods indicated by us shall not start to run before all technical matters have been entirely clarified.
2. In any cases of strike and force majeure as well as of any other delay occurring through no fault of ours, delivery periods indicated by us and/or agreed with the customer shall be extended appropriately, i.e. by such additional period as corresponds to the duration of the delay. The same applies also where the customer is under a duty to co-operate and fails to provide such co-operation to us.
3. In the event that any of our suppliers fail to supply us or fail to supply us correctly or in a timely manner, we shall be entitled to withdraw from the contract if – despite having entered into covering transactions equivalent in all respects – our suppliers still fail to supply us in a timely manner. In such case, we will promptly notify the customer of any such circumstances.
4. If acceptance by the customer is delayed or if the customer culpably fails to co-operate, we shall be entitled to claim damages for any loss incurred by us as a result thereof, including any additional expenditure.
5. If and to the extent that the prerequisites of section 4 are fulfilled, the risk of any accidental loss or accidental deterioration of the object of purchase shall pass to the customer at the time when the delay in acceptance or the default on any such obligation occurs on the part of the customer.
6. We shall be liable under statutory provisions where the relevant purchase contract constitutes a firm bargain within the meaning of § 286 para. 2 no. 4 of the Civil Code (BGB) or § 376 of the German Commercial Code (HGB). We shall also be liable under statutory provisions where as a consequence of any delay in delivery for which we are responsible the customer is entitled to claim that he has no interest in continuing with the further performance of the contract
7. We shall furthermore be liable under statutory provisions where any delay in delivery is caused by an intentional or grossly negligent breach of contract for which we are responsible; any fault by our legal representatives or agents shall be treated as our own fault. Where the delay in delivery is not caused by an intentional breach of contract for which we are responsible, our liability for damages shall be limited to foreseeable, typically occurring damage.
8. We shall also be liable under statutory provisions where any delay in delivery for which we are responsible is caused by a culpable breach of an essential contractual obligation (cf. section VIII 2.); in such case, our liability for damages shall, however, be limited to foreseeable, typically occurring damage.
9. Unless stated otherwise, we shall be liable in any case of delay in delivery to pay compensation for the delay by way of liquidated damages in the amount of 0.5 % of the value of the delivery for each full week of the delay, however not exceeding a maximum amount of 5 % of the value of the delivery.
10. Any further claims and rights of the customer under statutory provisions shall remain unaffected.
V. Passing of risk
1. Unless otherwise stated in the order confirmation or in the foregoing provisions, delivery shall be “ex works“ (Incoterms 2010: EXW – ex works). Where desired by the customer, we will obtain transport insurance for the delivery; any costs incurred for such insurance shall be borne by the customer.
2. Where “carriage free” delivery is agreed pursuant to the foregoing provisions, the risk of any accidental loss or deterioration shall pass to the customer upon arrival. The risk of any damage caused in the process of unloading goods shall lie with the customer. It shall be incumbent upon the customer to provide for any staff and equipment necessary for the unloading of goods.
3. If third parties act on our behalf as forwarders or carriers, our liability after hand-over to such third party shall be limited to the assignment of any of our claims against such carrier or forwarder to the customer.
VI. Transport packaging
We shall take back transport packaging supplied by us if any such material is returned to us as clean bundles. Any shipment costs involved with the return of such materials shall be borne by the customer.
VII. Liability for defects
1. The customer’s warranty claims shall be subject to the proviso that the customer has duly complied with his statutory obligations of immediate examination and notification of defects (§ 377 of the Commercial Code (HGB)).
2. Where goods are found to be defective, we shall be entitled to effect subsequent performance, at our option, by remedying defects or by delivering a replacement which is free of defects.
3. If subsequent performance fails, the customer shall be entitled, at his option, to withdraw from the contract or to claim a reduction of the price. Any claims for damages based on defects shall be subject to section VIII. Any further claims of the customer based on defects shall in principle be excluded.
4. Any claims based on defects shall be subject to a limitation period of one year starting from the delivery of the goods. The statutory limitation periods shall apply in case of harm to life, body or health and in the event of any intentional or grossly negligent breach of duty by us, or of any fraudulent concealment of defects or where a guarantee as to quality has been assumed.
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5. The limitation period in the case of recourse against the supplier under §§ 478, 479 of the Civil Code (BGB) shall remain unaffected; such limitation period
is a maximum of five years starting from the delivery of the defective goods.
6. Unless stated otherwise, claims for damages based on defects shall be subject to section VIII.
7. If the customer’s place of business is outside Germany, the customer shall, in the event of delivery of goods which are not in conformity with the contract,
only be entitled to withdraw from the contract or to claim replacement delivery if claims for damages against us are excluded or if the customer cannot
reasonably be expected to use the goods which are not in conformity with the contract and claim for any remaining damage. In any such case, we shall
initially be entitled to remedy defects. If the attempt to remedy defects fails and/or causes any unacceptable delay, the customer shall be entitled, at his
option, to declare the contract cancelled or to claim replacement delivery. The customer shall have the same rights if defects cannot be remedied without
causing unacceptable inconvenience or if reimbursement of any potential expenses incurred by the customer is uncertain.
VIII. Other claims, liability
1. We shall be liable for damages and reimbursement of wasted expenditure (§ 284 of the Civil Code (BGB)) on the ground of breach of contractual duties
and non-contractual duties (e.g. tort) only
? in case of intentional fault or gross negligence,
? in case of culpable harm caused to life, body or health,
? in case of fraudulent concealment of defects or where a guarantee as to quality has been assumed, or
? under the German Product Liability Act (Produkthaftungsgesetz) for personal injury or damage caused to privately used objects.
2. Furthermore, we shall be liable for slight negligence in case of breach of essential contractual obligations, i.e. contractual obligations the fulfilment of
which is fundamental to the proper execution of the contract and regularly and justifiably relied upon by the customer. In such case, our liability shall,
however, be limited to reasonably foreseeable damage typically to be expected for this type of contract.
3. If the customer’s place of business is outside Germany, the following provisions apply: We shall be liable to the customer for damages under statutory
provisions where a breach of contract for which we are responsible is caused through our intentional fault or gross negligence; any fault by our legal
representatives or agents shall be treated as our own fault. We shall also be liable under statutory provisions for any breach of an essential contractual
obligation by us. Unless stated otherwise, our liability shall be excluded.
4. The foregoing provisions apply equally to our agents and other persons employed by us and/or acting under our instructions.
5. The foregoing provisions shall not involve any modification of the burden of proof to the detriment of the customer.
6. Any liability for default shall be conclusively regulated by the provisions of section IV.
IX. Retention of title
1. All our deliveries are made exclusively subject to retention of title (goods delivered subject to retention of title). The title shall not pass to the customer
until satisfaction by the customer of all trade debts (including ancillary debts) due to us. In case of current accounts, the retention of title shall be deemed
to secure the balance owing to us; that shall apply even where payments are made on any specifically identified debts.
2. Any further treatment or processing of goods delivered by us and still owned by us shall be deemed to be made for and on behalf of us as the
manufacturer under § 950 of the Civil Code (BGB) without any liabilities arising therefrom on our part. Where goods delivered by us are mixed or
combined with other goods, the customer shall transfer to us the (joint) ownership in any product derived therefrom in such proportion as corresponds to
the invoice value of the goods delivered by us subject to retention of title in relation to that of any other goods involved in such mixing or combination.
3. The customer shall be entitled to resell any purchased goods in the ordinary course of business; however, the customer assigns to us now all claims
arising from such resale against any of his downstream customers or other third parties in the total amount invoiced (including VAT) of our claim; that
shall apply regardless of whether the goods delivered subject to retention of title have been resold without or after further processing. The customer shall
remain authorised to collect such debts even after such assignment. That shall not affect our own right to collect such debts ourselves. However, we
agree to refrain from any collection of such debts for as long as the customer continues to fulfil his payment obligations from the proceeds received, is not
in default of payment and, in particular, no petition to commence insolvency proceedings is filed and no cessation of payment occurs. In the event,
however, that one of the aforementioned circumstances occurs, we may require the customer to notify us of all assigned claims and their debtors, to
provide any information necessary for purposes of collection, to deliver any documents relating thereto as well as to notify all third-party debtors of the
assignment of those claims. We shall also be entitled to notify the customer’s debtors of the assignment and to request them to make payment to us.
4. The customer shall be under the obligation to promptly notify us of any seizure, even where only imminent, or other encroachment of our ownership rights
by any third party, in particular, of any existing blanket assignment or factoring agreements, and to confirm our ownership rights in writing both to third
parties and to ourselves. In the event that a seizure has occurred, a copy of the written bailiff’s return is to be sent to us.
5. In the event that the customer is in default of payment, we shall be entitled to claim that any goods delivered by us subject to retention of title be delivered
to us and to take immediate possession thereof ourselves or by any agent acting on our behalf, regardless of the whereabouts of such goods. The
customer shall be under the obligation to deliver such goods to us and to provide to us any information and documents necessary for purposes of
enforcement of our rights. Where we claim delivery of such goods, that shall not be regarded as a withdrawal from the contract. The same applies where
goods are returned to us or where we take possession of such goods.
6. As collateral security for all our claims arising now or in future from the business relationship, the customer assigns to us now all claims (including for
current account balances), including ancillary rights, arising for the customer from any resale and/or other use (e.g. mixing, processing) of goods
delivered by us subject to retention of title.
7. Where such resale or other use of goods delivered by us subject to retention of title – regardless of the state or condition thereof – occurs along with the
resale or other use of goods which are subject to third-party rights and/or in the context of any provision of services by third parties, the advance
assignment shall be limited to the amount invoiced in our invoices.
8. Where the realisable value of collateral securities created in our favour according to the foregoing provisions exceeds the value of our claims by more
than 10 %, we shall release, upon the customer’s request, superfluous securities of our own choosing.
X. Place of performance; applicable law; place of jurisdiction
1. The place of performance and the place of payment shall be Bohlsen/Germany.
2. The applicable law shall be the law of the Federal Republic of Germany.
3. Any disputes arising from the contractual relationship shall be subject to the jurisdiction of the courts of our place of business; we shall, however, be
entitled also to bring legal action against the customer in the courts of the customer’s place of business.
Last revised: 01.11. 2011