General Terms and Conditions
of Heinrich Manten Qualitätsfleisch vom Niederrhein GmbH & Co. KG
I. Scope of Application
1. These General Terms and Conditions shall apply to all current and future legal transactions between us and the buyer, even if reference is not made hereto for every transaction.
2. Any general terms and conditions of the buyer which deviate from or are inconsistent with or supplement these General Terms and Conditions shall not become a part of the contract, even if we have knowledge thereof, unless we expressly agree to their applicability in writing.
II. Formation of Contract and Extent of the Duty to Delivery
1. Our offers are non-binding.
2. The written confirmation of order, our invoice or the delivery note shall determine the nature and scope of delivery.
3. Side agreements shall be effective only if confirmed in writing by us.
4. If the goods are transported by the seller or his forwarding agent, the seller or the forwarding agent shall be obliged to deliver only up to the receiving station, provided lorries have free access up to a height of 400 cm, and not free house.
5. If our delivery is entirely or partly made outside the agreed deadlines, and also not within a reasonable additional period fixed by the buyer, for reasons that
we are responsible for, the buyer shall have the right to cancel the order, provided he announced in writing when fixing the additional period that he would refuse to accept delivery after the expiry of the deadline.
1. We shall have the right to cancel the purchase contract in the event of any interference that we are not responsible for, especially through force majeure, which includes strikes in suppler firms. The buyer cannot assert any damage claims in this case. We can also not be held responsible for delays in delivery caused by the same influences; the buyer shall therefore also not be entitled to cancel the purchase contract.
2. Equalization levies shall be paid by the buyer.
3. The risk of destruction or deterioration of the goods delivered by us shall pass over to the buyer upon delivery. In the case of a sale to destination according to buyer’s instructions, the risk shall pass over to the buyer when the thing is handed over to the forwarder, the carrier or the other person or entity chosen for shipment.
4. If the buyer is in default of acceptance, this shall be treated as delivery.
5. If dispatch is delayed at the buyer’s request or in consequence of circumstances which the buyer is responsible for, the risk shall pass over to the buyer on the day on which he is informed of readiness to make shipment. In this case, payment for the goods shall be due immediately and the buyer must bear the storage costs caused thereby for us.
IV. Liability for Defects
1. The goods delivered must be inspected immediately after receipt. Notices of defects or of weight differences must be given without undue delay in writing and in addition in advance by telephone or by fax. In the event of a complaint or of refusal to accept the goods, we have the right to inspect the goods at the storage place.
2. In the case of a justified complaint made in time, we have the right at our option to either make substitute delivery or to allow the reduction of the purchase price. If substitute delivery is not effected within a reasonable period after the notice of defects, or if it fails, the buyer can reverse the contract (cancellation) or demand that the purchase price be reduced (reduction). This shall apply only if he fixed a reasonable additional period in writing.
3. The buyer shall bear the full burden of proof for the fulfilment of all conditions of claim, especially for the defect itself, the time of the discovery of the defect, and the timeliness of the notice of defect.
4. If the buyer refuses to accept the goods, he shall remain obliged to pay the purchase price, without prejudice to any further damage claims of Manten.
5. The warranty period is one year from delivery of the goods.
V. Terms of Payment
1. The buyer is obliged to pay the invoice amount immediately after receipt of the goods, unless otherwise agreed. The buyer shall be in default of payment upon receipt of a reminder or upon the expiry of an agreed time period.
2. During the time of default, the buyer must pay interest on the amount owed at a rate of 8% per year above the base interest rate of Deutsche Bundesbank. We reserve the right to prove higher default damages and to demand payment accordingly. The buyer has the right to prove that we did not suffer any loss or only a far smaller loss.
3. The buyer can set off only undisputed claims or claims awarded by final and non-appealable judgement from our claims; the same shall apply to the buyer’s right of retention.
VI. Credit-Worthiness, Cancellation of the Contract, Right of Retention
1. Our acceptance of orders is based on the assumption that the buyer is credit-worthy. If we have reason to doubt the buyer’s credit-worthiness, we can entirely or partly cancel the contract, with or without fixing a deadline, or demand advance payment.
2. In the event of insufficient credit-worthiness, we can deprive the buyer of the right to dispose of the goods, and demand that they be surrendered, without any right of retention for the buyer. All costs shall be borne by the buyer. We have the right to sell goods taken back by way of an auction or by private sale, and to set off the proceeds. Further rights shall remain unaffected thereby.
VII. Retention of Title
We reserve title to the goods delivered by us until full payment of the purchase price and for all other receivables arising from an ongoing business relationship has been made, including interest and costs. The goods shall remain our property until all receivables have been settled.
1. Any processing and use of the goods, their mixing or combination with other things or conversion by the buyer shall always be effected in our name and on our behalf. If goods are used or combined or converted with things not belonging to us, we shall acquire co-ownership of the new thing in the proportion between the value of the goods delivered by us and the other things having been processed. The same shall apply if the goods are mixed with other things not belonging to us. The buyer must safekeep the thing for us, exercising the degree of care usual in our branch of business.
2. The buyer has the right to resell the goods in the ordinary course of business. He hereby already assigns to us all receivables in the amount of the invoice which he obtains against a third party due to the resale. This shall apply on a pro rata basis also if the resale takes place together with other goods not delivered by us. We accept the assignment. After the assignment, the buyer shall have the right to collect payment. We reserve the right to collect payment ourselves as soon as the entrepreneur fails to properly discharge his payment obligations to us and is in default of payment. In this case the buyer is obliged at our request to inform the third party of the assignment to us. We shall have the right at any time to disclose the assignment to the third party. The cash proceeds obtained through the resale shall become our property directly and are to be passed on to us immediately. Until they are delivered to us, the proceeds must be kept separately from the buyer’s other assets. Any violation of this shall cause the buyer to be fully liable for damages.
3. Any pledging of the goods and any transfer of title by way of security shall be prohibited. Should our rights be impaired by a third party, the buyer must inform us promptly thereof and take the measures which are necessary to avert any risk for us.
4. If the realizable value of the things which serve as security and were delivered subject to retention of title exceeds our total claim by more than 10%, we shall at the buyer’s request be obliged to retransfer the receivables accordingly.
5. The buyer shall be obliged to promptly inform us of any change of address if deliveries remain to be made or we still have receivables.
1. Our liability shall be excluded in the case of any slightly negligent violation of non-essential contractual duties. Our liability for intentional or grossly negligent breaches of contract or for the customer's product liability claims shall remain unaffected thereby. Furthermore, the limitations of liability shall not apply in the event of personal injury attributable to us or in the event of the customer’s death. In this case Clause IV 5 shall be inapplicable.
2. The liability for consequential harm caused by a defect is excluded in respect of hardly foreseeable damage or damage not typical for this kind of contract.
3. If the buyer chooses to cancel the contract because of a defect after failure to remedy, he shall not additionally have any damage claim because of the defect. If the Buyer chooses to demand damages after remedial action fails, the goods shall remain with the customer, provided he can reasonably be expected to accept this. Damages shall then be limited to the difference between the purchase price and the value of the defective thing. This shall not apply if we maliciously caused the breach of contract.
IX. Jurisdiction, Governing Law
1. If the buyer is a fully qualified merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction shall be Geldern. The same applies if the buyer has no general place of jurisdiction within Germany, moves his domicile after the conclusion of the contract, or his usual residence is unknown at the time of the commencement of an action.
2. German law excluding the UN sales law shall govern all deliveries.
Should any parts of the above General Terms and Conditions be ineffective, the validity of the remaining provisions shall not be affected thereby. If one or several provisions of these General Terms and Conditions are ineffective or if the parties failed to consider one or several points when entering into the contract, these General Terms and Conditions shall be amended in a manner which reflects the presumable intentions of the parties.