General Terms and Conditions of Delivery of Molkerei Gropper GmbH & Co. KG, Am Mühlberg 2, 86657 Bissingen
1. Our general terms and conditions of delivery are exclusive; we do not recognise any contrary conditions or conditions of the client deviating from our general terms and conditions of delivery, unless we have explicitly agreed to their validity. Our general conditions of sale apply also if we execute the delivery to the client without reserves while being aware of any contrary conditions or any conditions of the client deviating from our general terms and conditions of delivery.
2. All agreements, side agreements, changes and amendments require our written approval to be valid; this also applies to oral agreements made by our sales force.
3. Our general terms and conditions of delivery are only valid vis-à-vis companies within the meaning of § 24 AGBG.
II. Prices – payment terms
1. Delivery will be made free to the client on the basis of the price list respectively applicable on the date of delivery.
2. The invoice amounts are payable within 5 days from the invoice date. Any discounts, in particular cash discounts, require a specific written agreement.
3. If the client is in default of payment, we are entitled to charge default interests of 4 % per year above the respective base rate of the ECB. If we are capable of proving a higher default damage, we have the right to claim it. However, the client is entitled to prove us that we have suffered no or a significantly lower damage due to the payment default.
4. The acceptance of bills of exchange is explicitly excluded.
5. The claim of a right of retention or of setoff by the client is excluded unless his counterclaims are explicitly recognised by us, undisputed or confirmed as legally binding.
III. Delivery time
1. If we are in default of delivery for reasons imputable to us, the client is entitled to demand a lump-sum compensation for the delay at the amount of 3 % of the delivery value for every complete week of delay up to a maximum of 10 % of the delivery value. This does not apply if the delay was caused by intent or gross negligence or constitutes a substantial breach of duty.
2. If the client grants an appropriate grace period with a threat to refuse performance to us after a delay in performance by us, he is entitled, after a fruitless expiry of that grace period, to withdraw from the contract; the client can claim damages for non-performance at the amount of the foreseeable damage only if the delay was caused by intent, gross negligence or a substantial breach of duty, apart from that, the liability for damages is limited to 50 % of the damage incurred.
3. The limitations of liability according to para. 1 and 2 do not apply as far as a commercial fixed-date transaction has been agreed; the same shall apply if the client can claim that due to our default for which we are responsible, his interest in the fulfilment of the contract has expired.
4. Our fulfilment of our delivery obligation is subject to the punctual and correct fulfilment of the client’s obligations.
5. If the client falls into default of acceptance or if he breaches any other duties to cooperate, we are entitled to extend the damage incurred by us, including potential additional expenses. In that case, the risk of an accidental loss or an accidental degradation of the purchased item is transferred to the client at the moment in which he falls into default of acceptance.
IV. Force Majeure
1. In the event of force majeure and other unforeseeable exceptional circumstances beyond control, e.g. strike, lockout, operational disruptions, intervention by authorities, weather, etc., even if they are incurred by our suppliers, our delivery times are extended by an appropriate delay.
In these cases, potential claims for damages or rights of withdrawal of the client are excluded.
1. To a reasonable extent, we have the right to effect partial deliveries.
2. Excess or short deliveries within normal industry standards do not constitute an entitlement to refuse the whole delivery.
3. Shortages of any kind must be immediately reported to us in writing. Otherwise, the delivered quantity is deemed accepted. The delivery note signed by the client is decisive for the invoicing of the merchandise.
4. The unloading from the delivery vehicles must be assumed by the receiver. With the delivery, the risk of an accidental loss or an accidental degradation of the merchandise is transferred to the client.
VI. Warranty and notice of defects
1. The warranty rights of the clients are subject to the correct fulfilment of the client’s examination and notification duties according to §§ 377, 378 HLGB. Complaints must be noted on the delivery note at delivery and countersigned by the driver. Otherwise, the client cannot claim any recognisable defects. Defects not recognisable at the delivery of the merchandise can only be alleged until the expiry of the marked minimum storage life. The defects must be notified in writing.
2. As far as the purchased item has a defect imputable to us, we are entitled to perform, at our discretion, a removal of the defect or a replacement delivery.
3. If we cannot or are not ready to remove the defect/deliver the replacement, if we refuse to do that or if this is delayed beyond reasonable delays for reasons imputable to us or if the removal of the defect/the replacement delivery fails in other ways, the client is entitled, at his option, to demand a withdrawal from the contract (change) or a corresponding diminution of the purchase price (reduction).
4. As far as nothing else is provided by para. 5 and para. 6 below, any additional claims of the client – irrespective of their legal grounds - are excluded. Therefore, we are not liable for damages that have not occurred to the object of delivery itself. In particular, we are not liable for any loss of profits or other property damages of the client.
5. The disclaimer above does not apply as far as the cause of the damage is based on intent or gross negligence. Besides, it does not apply if the client claims damages for non-fulfilment due to the absence of a warranted quality according to §§ 463,480 para. 2 BGB (German Civil Code).
6. As far as we are in breach of an essential contractual duty or a “cardinal duty” by our fault, liability is limited to the contract-typical damage; apart from that, it is excluded according to para. 3.
7. The client must provide merchandise subject to complaints or samples thereof to us in sufficient quantities for the purpose of quality checks, otherwise, the client cannot claim any warranty from our side.
VII. Total liability
1. Any additional liability for damages in excess of that provided for in VI. para. 3, is excluded – irrespective of the legal nature of the claim.
2. The provision according to para. 1 does not apply to claims according to §§ 1.4 of the Product Liability Act. As far as the limitation of liability according to VI. para. 5 for claims from producer liability according to § 823 BGB does not apply, our liability is limited to the replacement delivery of the insurance. As far as the latter does not occur, we are obliged to assume liability up to the sum insured.
3. The provision according to para. 1 also applies in cases of non-initial ability or accountable impossibility to perform.
4. As far as our liability is excluded or limited, this also applies to the personal liability of our personnel, employees, collaborators, representatives and agents.
VIII. Reservation of title
1. We reserve the title of the purchased item until all payments from the delivery contract have been received. In case of a breach of contract of the client, in particular in case of a default on payment, we are entitled to take back the purchased item, if we take back the purchased item, this does not constitute a withdrawal from the contract, unless we have declared that explicitly in writing.
2. The client is entitled to resell the merchandise subject to reservation in the normal course of business; however, he already transfers all claims against his customers or third parties to us already now at the amount of the agreed final invoice value (including VAT) which he has obtained from the resale, no matter if the delivered object has been resold without or after further processing. In case of seizures or other interventions of third parties, the client must immediately inform us in writing.
3. The client is authorised to collect the transferred receivable himself. This does not affect our right to collect the receivable ourselves. However, we undertake not to collect the receivable as long as the client fulfils his payment obligations from the received revenues, is not in default and in particular as far as no application for insolvency or composition proceedings have been filed and there is no suspension of payments. If this is the case, however, we can require that the client notifies us of the transferred receivables and of their debtors, provides all information required for the collection and the related documents and informs the debtor (third party) of the assignation.
4. The processing or conversion of the purchased item by the client shall always be effected for us. The expectant right of the client to the purchased item continues to apply to the converted item. If the purchased item is processed with other objects not belonging to us, we acquire the co-ownership of the new item in proportion of the value of our purchased item to the other processed objects at the time of processing. Apart from that, the same applies to the item originated by the processing as to the item delivered under reservation.
5. If the delivered object is irreversibly mixed with other objects not belonging to us, we acquire the co-ownership of the new item in proportion of the value of the delivered object to the other mixed items at the time of mixing. If the mixture is realised in such a way that the item of the client must be considered as the main component, it is agreed that the client assigns the proportional co-ownership to us. The client preserves the sole ownership or the co-ownership for us.
6. We agree to release the collateral we are entitled to on request of the client as far as the realisable value of our collateral exceeds the receivables to be secured by more than 15 %. It is up to us to select the collateral to be released.
IX. Place of jurisdiction – place of performance
1. If the client is a general merchant, our place of business is the place of jurisdiction.
2. If nothing else results from the order confirmation, our place of business is the place of performance.
As of: 01.11.2011