General terms and conditions of sale and delivery of Conditorei Coppenrath & Wiese KG
1. Scope of application
These general terms and conditions of sale and delivery (GT&C) apply exclusively and to all transactions conducted between Coppenrath and Wiese and the buyer. These GT&C only apply if the buyer is a business, as defined in article 14 of the German Civil Code (BGB), a public legal entity, or an organisation incorporated under public law. Alternative, conflicting or complementary general terms and conditions emanating from the buyer shall not be valid, even if, despite being aware of such opposing terms and conditions, we supply the buyer without reservation.
2. Delivery, transfer of risk, delay in acceptance
Delivery is carried out from our warehouse, which is also the place of performance. Merchandise (despatched goods) may be sent carriage free to an alternative destination at the buyer’s request. Failing agreement to the contrary, we shall be entitled, at our discretion, to determine the manner of despatch (with particular reference but not limited to the carrier, transit route and packing). The risk of accidental deterioration of or damage to the goods supplied shall be transferred to the buyer at the moment of delivery. In the case of purchased despatched goods, however, the risk of accidental deterioration of or damage to the merchandise supplied shall be transferred at the moment in which the goods are handed over to the haulage contractor, the carrier or whichever person, party or agency is responsible for transport. This transfer of risk shall likewise apply if receipt of the delivery on the part of the buyer is delayed.
It is agreed that the purchase price shall be the price in force on the date of delivery. The version of our price list that is in force on the day concerned shall apply in this respect.
Payment for shipment(s) shall be settled in accordance with the negotiated terms and conditions. If settlement is delayed by more than fourteen calendar days, interest on delayed payment may become payable at a rate of eight percentage points above the corresponding base rate. The right to seek further compensation for loss and damage shall be reserved.
5. Complaints and claims for defects on the part of the buyer
(1) The buyer is to subject all shipments to thorough inspection upon receipt, and shall immediately report in writing any defects or short deliveries that might be found. If this is not done, the entire shipment shall be deemed to be accepted. If defects not found in the course of initial inspection should subsequently be detected, the buyer shall notify us accordingly without delay. The buyer must, when submitting a defect claim, include a full and detailed description of the defect giving rise to the claim, and indicate the manner and conditions in which the item or items concerned have been stored.
(2) We undertake, when dealing with a justified claim, to take into account the interests of the buyer and, at our discretion, to repair or replace the item or items concerned. This shall not affect our right, in the circumstances legally permitted, to refuse such rectification. We shall be entitled to carry out rectification of defects subject to payment, on the part of the buyer, of the purchase-price due. The buyer shall, however, be entitled to retain, in accordance with the nature of the defect concerned, a proportional part of the corresponding purchase price. If rectification fails, or if a deadline established by the buyer for rectification expires without result, or is not required by the corresponding legislation, the buyer may withdraw from the contract of sale or demand a reduction in the purchase price. The presence of a minor fault shall, however, not give rise to any right to withdraw. Claims on the part of the buyer for loss and damage and/or for expenses incurred exist only to the extent defined in section 7, and are otherwise excluded.
(3) If only part of the shipment is defective, the buyer shall only be entitled, provided this is feasible, to withdraw from the corresponding part of the contract of sale.
6. Retention of title, storage, insurance
(1) We shall retain title to all items delivered until the corresponding purchase price has been paid in full and until all claims and liabilities in our favour due or subsequently arising from the contractual relationship, including costs and interest, have likewise been settled in full.
(2) This shall also apply if individual or overall claims arising from current deliveries to the buyer are invoiced on an ongoing basis and the balance has been recognised by being deducted from the account.
(3) The buyer may, provided there are no delays in payment, dispose of the supplied goods in the normal course of business. The right to assign, pledge or otherwise transfer the goods to any third parties, or to use them as security, is hereby excluded.
(4) When reselling, the calculations covering the billing of our goods are to be carried out separately. The resulting claims against third parties are to be assigned to us, in their entirety and in advance, as security for our outstanding claims arising from the shipment as a whole. We hereby accept this assignment. The buyer has the right to collect the assigned receivables, provided it correctly fulfils its payment obligations to us.
(5) We undertake to release, at the buyer‘s request, the securities provided to us, insofar as the liquid value of our securities exceeds the secured debt by more than 10%, whereby we shall be at liberty to determine which securities should be released.
(6) If the buyer falls into arrears with payment, it shall immediately provide us with information on its debtors and details of each of the assigned claims concerned. We shall be entitled to contact third-party debtors regarding assignment, and to request that payment be made directly to us.
(7) We shall be entitled, in the event of contractual infringement on the part of the buyer, with particular reference but not limited to failure to settle the due purchase price, to exercise our legal right to withdraw from the agreement and demand the return of the goods concerned on the grounds of retention of title. A demand for assignment shall not imply or be equated with a declaration of withdrawal from the agreement, and we shall furthermore be entitled to demand the return of the goods while reserving the right to withdraw. If the buyer fails to settle the purchase price due, we shall only be entitled to exercise our rights after first granting the buyer, without result, a reasonable time in which to make payment, or if such a grace period is established in law.
(8) The buyer undertakes to insure the goods properly, store them safely and handle them with care. Deep-frozen items must be stored at a temperature of no more than -18 °C.
7. Limitation of liability
(1) Unless otherwise established in these GT&C and/or in the terms set out below, the existing terms and conditions shall cover our liability and warranty commitments regarding our goods and obligations, to the exclusion of all other warranty and damage claims of any kind, regardless of the legal nature of the claim concerned, with particular reference but not limited to infringement of contractual obligations, unauthorised actions and claims concerning foregone profits or other negative effects on the buyer’s assets.
(2) This shall not apply in the case of a guarantee commitment or procurement risk subject to liability under the product-liability law governed by article 439, section 2 of the German Civil Code (BGB) and for which liability exists for loss and damage arising from negligent loss of life, personal injury, harm to health or major contractual infringement.
(3) In the event of negligent infringement of major contractual obligations (defined as an obligation on whose fulfilment the correct fulfilment of the agreement as a whole depends absolutely and upon which the party to the agreement depends on a regular basis), we shall only be liable – with the exception of gross negligence causing loss of life, personal injury or harm to health – for loss or damage reasonably considered typical and/or foreseeable for an agreement of this type. This shall not affect the burden of proof on the buyer to supply evidence of such loss or damage. This shall also apply, insofar as our liability is excluded, to personal liability on the part of our employees, legal representatives and vicarious agents.
8. Statute of limitations
(1) In contrast to article 438, section 1, subsection 3 of the German Civil Code (BGB), claims arising from material and legal defects shall expire one year after delivery.
(2) This shall not affect the special legal provisions concerning third-party in rem claims (article 438, section 1, subsection 1 of the German Civil Code/BGB), misrepresentation (article 438, section 3, BGB) or supplier’s claims arising from delivery to the end-user (article 479, BGB).
(3) The above statutes of limitations under commercial law shall also apply to contractual and non-contractual claims for loss or damage on the part of the buyer arising from a defect in the goods, unless application of the standard statutory statute of limitations (articles 195 and 199, BGB) leads, in individual cases, to the observance of a shorter period. The statute of limitations under German product-liability law (Produkthaftungsgesetz) shall in any case remain unaffected. Buyer claims for loss and damage shall be subject in all other respects to the statutory statutes of limitations described in section 7.
9. Applicable law and jurisdiction, partial invalidity
These GT&C and the commercial relationship between Coppenrath and Wiese and the buyer shall be subject to the laws of the Federal Republic of Germany, to the absolute exclusion of all international legal and/or contractual provisions, with particular reference but not limited to the UN Convention on Contracts for the International Sale of Goods (CISG). The requirements and effects of retention of title defined in section 6 shall, however, be subject to the laws in force at the place of use, if and insofar as the laws of Germany are inapplicable or unenforceable in the corresponding jurisdiction. If the buyer is a business under the terms of the German Commercial Code (HGB), or a public legal entity or an organisation incorporated under public law, exclusive jurisdiction (including international jurisdiction) for all and any disputes that might arise from or in conjunction with the contractual relationship shall correspond to the courts and tribunals of the German city of Osnabrück. We shall, however, also be entitled to bring claims against the buyer at its registered place of business. The possible invalidity of individual terms and conditions or parts thereof shall have no effect on the legality of the remaining terms and conditions.