General Terms and Conditions of Delivery and Payment

1. Scope
The following terms and conditions apply without exception to all sales and deliveries of Dirk Abrahams GmbH, including those from future business transactions, even if the validity of the conditions has not been separately agreed in individual cases. The invalidity of individual conditions does not affect the validity of the remaining conditions. Conflicting purchasing conditions of the buyer are void, even if the seller does not expressly object to these purchasing conditions.

2. Conclusion of contract
Offers are subject to change without notice, unless expressly agreed otherwise. In the case of written confirmation of the contract, the content of the confirmation letter is decisive. Sales of smoked goods and fresh goods are predominantly made by telephone. The verbal agreements apply, unless a written contract underlies a sale.

3. Delivery
The goods are packed in a commercially customary manner at the expense of the buyer. The dispatch takes place at the expense and risk of the buyer, regardless of the distance and the dispatch type, even if the goods are transported by the GmbH. In the case of freight-free delivery, the buyer also bears the risk. Force majeure (e.g. public unrest, official measures, plant closures, strike and lockout etc.) and other circumstances for which the GmbH is not responsible and unforeseeable, in particular due to the loss of raw material supplies due to possible catch quotas or customs changes, entitles the GmbH to withdraw from the contract. A subsequent delivery of the failure cannot be demanded. The buyer bears the risk of incomplete or incorrect transmission of messages to the supplier. Agreed delivery dates are only binding if the buyer also meets his contractual obligations, in particular his payment obligations, on time.

4. Notices of defects
Complaints due to obviously defective or obviously deviating quality of the goods or due to delivery of an obviously different product than the one ordered – in the case of merchants also due to non-obvious hidden defects or deviating quality of the goods or due to delivery of a different product than the one ordered – can only be made immediately, but at the latest within 24 hours after receipt of the goods or after the defect became obvious – in the case of merchants after the defect became known. If fresh fish or fresh products have been delivered, the buyer must report any defects within 6 hours of delivery, as these are highly perishable foods. Deep-frozen goods must be checked immediately after acceptance. Obvious defects must also be reported immediately within 6 hours of delivery. If the goods are subjected to further processing, this applies as approved and accepted. Furthermore, the goods are considered accepted if a notice of defect has not been received by the GmbH by telephone or in writing within the deadlines and this notice of defect is immediately confirmed in writing; if the goods are picked up or otherwise accepted without any defects being reported at the same time; late acceptance excludes the possibility of a complaint; if the buyer does not store and treat the rejected goods properly until a disposition of the GmbH arrives; if the buyer returns or forwards the rejected goods improperly without the consent of the GmbH.

5. Terms of payment
Payment must be made without any deduction immediately net cash after receipt of invoice. Any discount and cash discount deductions must be determined in writing in advance. In the case of payment by check or bill of exchange, not the receipt of the check or bill of exchange by the GmbH, but only its redemption is considered payment. Deductions, e.g. pallets, returns, monetary compensation for notices of defects may not be made without a credit note. Each partial delivery is considered an independent transaction. In the event of late payment, default interest must be paid at the usual bank rate. Should circumstances become known that give rise to concerns that the economic circumstances have deteriorated significantly after acceptance of the goods or after conclusion of the contract – e.g. in the event of non-payment of bills of exchange or checks, unusual exceeding of payment deadlines – all claims from the business relationship, including those for which bills of exchange or checks have been given, are due immediately. The seller is entitled to execute outstanding services only against advance payment or securities.

6. Retention of title, extended and expanded retention of title
The delivered goods remain the property of the GmbH until full payment of all claims to which it is entitled from the business relationship with the buyer, including future claims and those from a current account balance including ancillary claims.

7. Liability for defects
Any claims for damages due to the absence of warranted characteristics, including claims for compensation for consequential damages, are excluded if the seller has not given the assurance to avoid such consequential damages.

8. Liability
The GmbH is only liable for gross negligence (intent or gross negligence). Claims for damages due to consulting errors, due to breach of contractual secondary obligations, from impossibility of performance, from delay, from fault at the conclusion of the contract or from tort are excluded.

9. Place of performance
The business premises of the GmbH are the place of performance for both parties if the customer is a merchant and is a legal entity under public law or a special fund under public law or his place of residence is outside the Federal Republic of Germany. The law applicable at the place of performance is decisive for all legal relationships between the customer and the GmbH, even if the legal dispute is conducted abroad.

10. Changes
Collateral agreements, changes, additions or restrictions to these conditions are only valid if they have been confirmed by the GmbH. Verbal collateral agreements are ineffective. If individual provisions of this agreement are or become ineffective, the respective statutory regulation applies. The other provisions of this agreement or the contractual relationships continue to exist and retain their validity.

11. Place of jurisdiction
If the customer is a merchant and is a legal entity under public law or a special fund under public law, the GmbH can sue at the place of jurisdiction of the place of performance and can only be sued at this place of jurisdiction. The general place of jurisdiction of the GmbH is exclusively responsible for the dunning procedure. The place of jurisdiction is Varel. In the event of default by the buyer, he can demand the return of the goods, even if he does not make use of his right to withdraw from the contract. In the event of default or insolvency of the buyer, the latter already irrevocably authorizes the seller (GmbH) to take possession of the goods and to enter the buyer’s business premises for this purpose. If the goods are stored with third-party companies, the buyer already now assigns his claim under the law of obligations to the GmbH. Any processing or processing of the delivered goods is carried out by the buyer for the seller without any obligations arising for the latter. If the delivered goods are filled, mixed or connected with other objects that do not belong to him, the seller acquires co-ownership of the new item in the ratio of the value of his reserved goods to the value of the other goods. The buyer agrees with the seller that he will become the owner or co-owner of the latter in the event of use of other items in the ratio of the value of the reserved goods to the other goods on the new item, and will keep it free of charge with commercial care for the traffic. The buyer may only dispose of the reserved goods in the ordinary course of business and only as long as he is not in default or insolvent. He may neither pledge them nor assign them as security.

To secure the seller, the buyer already now assigns in advance all claims that he acquires from a resale of the reserved goods in full to the seller, regardless of whether the reserved goods are resold to one or more customers before or after processing or connections. If the sale takes place together with other goods not owned by the seller, be it processed, unprocessed, filled, mixed or connected, the claim from the resale applies in the amount of the value share of the reserved goods delivered by the buyer as assigned.

At the request of the seller, the buyer must provide information about who he has sold the reserved goods to and how high the claims from these resales are; the seller has the right to notify the buyer of the reserved goods of the assignment. If the value of the securities existing for the seller exceeds his claims by more than 20%, he is obliged to release them to that extent at the request of the buyer. The buyer is authorized to collect the assigned claim as long as he duly fulfills his obligations towards the seller. He must forward the amounts received to the seller immediately and keep them separately until forwarding. The seller has the right to collect assigned claims himself if the buyer does not duly fulfill his obligations.

In the event of insolvency, the buyer is obliged to allow the seller access to the business premises, inspection of the books and papers at any time, insofar as this is necessary for the investigation of the whereabouts of the delivered goods, the company, the warehouses for inspection, estimation and securing of the inventories. If the seller has to take over, separate or otherwise secure goods from the buyer to secure his property (his claim), then he is entitled to make deductions of up to 30% of the value of the goods on the goods in question.

Status: 01.08.2006