Standard Terms of Delivery and Conditions of Payment
Without exception, the following terms and conditions of business shall apply to sales and deliveries by Dirk Abrahams GmbH (translator’s note: hereinafter referred to as the GmbH) including sales and deliveries resulting from future business transactions and even where no applicability of these terms and conditions was agreed on separately for a specific case. Should individual terms and/or conditions be found invalid, any and all other terms and conditions hereof shall remain unaffected. Contrary purchasing conditions by the buyer are null and void even if the seller does not specifically express disapproval of any such purchasing conditions.
2. Conclusion of contract
Offers shall remain open unless otherwise specifically agreed. For written confirmations of contract, the content of the confirmation letter shall be binding. Sales of smoked goods and fresh goods shall mainly be concluded over the telephone. In this case, oral agreements shall apply unless a sale is based upon a written contract.
The goods shall be packed according to trade practice at the buyer’s cost. Shipping shall occur at the buyer’s cost and risk irrespective of distance and type of transport even where the goods are transported by the GmbH itself. The buyer shall also assume any risk associated with deliveries for which freight was paid in advance. In the event of force majeure (e.g. public unrest, official measures, plant shutdowns, strikes and lockouts, etc.) and other circumstances for which the GmbH is not responsible and which the GmbH could not foresee, especially stops in supplies of raw materials through potential catch quotas or changes in customs provisions, the GmbH shall be entitled to rescind the contract. The buyer shall not be entitled to later deliveries of such undelivered goods. The buyer shall assume the risk associated with an incomplete or incorrect transmission of messages to the supplier.
Agreed delivery dates shall only be binding if the buyer meets his contractual obligations on time, particularly his payment obligations.
Complaints due to obviously defective goods or obviously varying quality of goods or due to the fact that goods delivered obviously diverge from what was ordered – for dealers, also due to non-obvious hidden defects and/or varying quality of goods or due to deliveries of goods other than those ordered – can only be asserted immediately or, at the latest, within 24 hours after the goods were received and/or the defect became obvious – for dealers, after the defect became known. If fresh fish and/or fresh goods were delivered, the buyer shall report possible defects within six hours of receipt since these foodstuffs are highly perishable. Deep-frozen goods shall be checked immediately upon receipt. Likewise, obvious defects shall be reported within six hours of receipt. If the goods are passed on for further processing, they shall be deemed as approved and accepted.
Moreover, the goods shall be deemed as accepted unless the GmbH receives a complaint over the telephone or in writing within the periods stated and unless this complaint is confirmed in writing without delay; if the goods are collected or otherwise taken over and possible defects are not reported during collection or takeover; a delayed takeover precludes any entitlement to complain; if the buyer does not store and handle the reported goods appropriately until instructions by the GmbH are received; if the buyer sends back or sends on the reported goods inappropriately without approval on behalf of the GmbH.
5. Conditions of payment
Payment shall be made by net cash immediately upon invoice receipt without any deductions. Possibly deductible rebates and discounts shall be agreed in writing beforehand. Where a cheque or bill of exchange is used for payment purposes, not receipt of this cheque or bill of exchange by the GmbH but its cashing in shall be deemed as payment. Deductions e.g. for pallets, returned goods, monetary compensation for complaints shall not apply without a valid credit note. Partial deliveries shall be deemed as individual transactions.
Delayed payments shall accrue default interest to the standard amount used by banks. Should circumstances become known which prompt the concern that the economic situation has substantially deteriorated after the goods were received or after the contract was concluded – e.g. if bills of exchange or cheques are not cashed in, payment is unusually late –, any and all debts from the business contact including those for which bills of exchange or cheques have been given shall be due with immediate effect. The buyer is entitled to only perform outstanding services against advance payment or on security.
6. Reservation of ownership, extended reservation of ownership
Until all debts arising from the business relationship with the buyer are paid in full, including future debts and debts from a current account balance including ancillary debts, the delivered goods shall remain under the GmbH’s ownership.
7. Liability for defects
Any claims for damages due to missing warranted characteristics including claims for subsequent damages shall be precluded unless the seller has specifically warranted to undertake to avoid any such subsequent damage.
The GmbH shall only be liable for serious fault (damage caused intentionally or by gross negligence). Any claims for damages due to mistakes arising from consultations, infringement of accessory obligations under the contract, due to the impossibility to perform, due to delays, due to faults associated with contract conclusion or tort shall be precluded.
9. Place of performance
The business premises of the GmbH shall be the place of performance for both parties where the customer is a dealer and if he is a legal person under public law or a special fund under public law or if he resides outside the Federal Republic of Germany. The law applicable at the place of performance shall be binding for any legal relationship between the customer and the GmbH, even if the parties litigate abroad.
Supplements, alterations, amendments or restrictions to these terms and conditions shall only be valid if they are acknowledged by the GmbH. Oral supplements shall be null and void.
If individual provisions of this contract are or become invalid, the respective legal provision shall apply. Even in this case, any other provisions of this agreement and/or which pertain to the contractual relationship shall continue to apply and remain valid.
11. Place of jurisdiction
If the customer is a trader and if he is a legal person under public law or a special fund under public law, the GmbH may file lawsuits under the jurisdiction at the place of performance and can only be sued under this jurisdiction. Any summary proceedings for order to pay debts may exclusively be dealt with under the general jurisdiction of the GmbH. Its jurisdiction is Varel, Germany.
It shall be entitled to request the goods to be returned if the buyer is in default and rescind the contract even if it does not make use of this right. In the event of the buyer’s default or insolvency, the buyer authorises the seller (GmbH) now to seize the goods irrevocably and to enter the buyer’s premises for this purpose. If the goods are stored by third companies, the buyer now cedes his claim for return arising from tort to the GmbH. Where applicable, the buyer shall process the delivered goods on the seller’s behalf without any consequential obligations for the seller. If the delivered goods are filled, mixed or compounded with other products not belonging to him, the seller shall exercise co-ownership over the new product proportional to the value of the reserved goods and the value of the other goods. Also, the buyer agrees with the seller to the effect that he shall transfer ownership or co-ownership of other chattels proportional to the value of the reserved goods and the value of the new goods and shall stock them free of charge for further dealings with the diligence of a prudent businessman. The buyer may dispose of the reserved goods only in proper business dealings and may only dispose of them as long as he does not defer payment or become insolvent. He may not pledge them nor assign them as security for a debt.
In order to protect the seller, the buyer shall, as of now, assign any debts s due to him for selling on the reserved goods to the full amount of their full value to the seller in advance, irrespective of whether the reserved goods are sold on to one or more purchasers before or after processing or compounding. If they are sold together with other goods not belonging to the seller, be they processed, unprocessed, filled, mixed or compounded, the debts from the sale shall be deemed assigned to the amount of the value of the reserved goods delivered by the seller.
Upon the seller’s request, the buyer shall supply information concerning to whom he has sold the reserved goods and the amount of debts from such onward sale; the seller shall be entitled to report this transfer of title to the buyer of such reserved goods.
If the value of the collaterals that are in place for the seller exceeds his debts by more than 20%, he shall release them to the respective amount upon the buyer’s request. The buyer shall be authorised to collect the transferred debt under the provision that he fully meets his obligations towards the seller.
He shall remit the received sums to the seller without delay and keep them separately until remitting them. The seller shall have the right to collect the assigned debts himself if the buyer does not fully meet his obligations.
In case of insolvency, the buyer shall, at any time, grant the buyer access to his business premises, inspections of books and documents to the extent this is necessary to identify the whereabouts of the delivered goods, the company, the warehouses for inspecting, estimating and securing the goods on stock. If the seller has to take over, set aside or secure in any other manner goods from the buyer in order to protect his possessions (the debt owed to him), he shall be entitled to apply a markdown of up to 30% on the value of the goods concerned.
Valid from 01 Aug, 2006