1 General
1.1 All sales, deliveries and ancillary services of Pickenpack Seafoods GmbH (seller), including future sales, deliveries and ancillary services, are based exclusively on the following terms and conditions, which are accepted by the buyer by placing the order or, at the latest, by accepting the service without contradiction. The buyer's terms and conditions of purchase and other general terms and conditions of business are hereby expressly rejected. Such terms and conditions shall only become part of the contract if and to the extent that they have been accepted by the Seller in writing. This shall also apply if the Vendor does not expressly object to them again after receipt.
1.2 Subsequent additions to or amendments of the contract shall only be valid if confirmed in writing.
2 Offers, conclusions and prices
2.1 Declarations by employees must be in writing in order to be valid, unless they are legal representatives or authorised signatories. Employees in the field, in particular representatives or sales drivers, have neither authority to conclude nor authority to receive.
2.2 The Seller's prices are net prices ex warehouse Rheine/Wietzendorf free to the means of transport without loading including customary packaging.
2.3 If more than 3 months elapse between the conclusion of the contract and the delivery and if, in the period between the conclusion of the contract and the delivery, costs to be borne by the Vendor, e.g. transport costs (in particular in the case of delivery free or carriage paid to the place of receipt), insurance premiums, taxes, including value added tax, customs duties, fees or other government levies are increased or newly introduced, the Vendor shall be entitled to demand a corresponding increase in the purchase price.
2.4 The prices per packaging unit agreed between the Seller and the Buyer shall be decisive and binding for the calculation of the purchase price.
3 Delivery, obstacles and deadlines
3.1.1 In the event of a delay in delivery, the buyer shall not be entitled to assert claims for damages if the delay was caused or justified neither intentionally nor by gross negligence. In any case of slight negligence, the claim for damages shall be limited to the damage typically foreseeable as a consequence of the delay.
3.1.2 The Buyer shall only be entitled to rescind the contract or to claim damages in lieu of performance if he has granted the Seller a reasonable grace period after or upon the occurrence of the default and the Seller fails to deliver within the grace period for reasons for which the Seller is responsible.
3.2.1 In cases of force majeure and in the event of unforeseen hindrances of any kind, e.g. operational disruptions, lockouts, furthermore shortages of raw materials or energy, as a result of which delivery or dispatch is impeded or impeded, the Seller shall be released from the obligation to deliver the goods sold for the duration and to the extent of any impairments.
3.2.2 The sale is subject to correct and timely delivery of the contracted goods and/or the raw materials and additives required for production. In the case of long-term contracts, after a term of more than four months, in the event of significant changes in the raw materials markets, e.g. due to the introduction of new fishing quotas, decline in fishing yields, the Seller shall be entitled to an appropriate reduction in the delivery obligations in accordance with its own self-supply or procurement possibilities or, at its discretion, to a price adjustment.
3.3 A right of rescission to which the buyer or the seller is entitled relates in principle to the part of the contract not yet fulfilled, unless the partial performances already rendered are of no interest to the buyer.
3.4 If the buyer defaults on collection, acceptance, unloading or the fulfilment of comparable ancillary obligations after the seller has submitted an offer in accordance with the contract, the buyer shall be obliged to pay the purchase price in advance.
4 Payment and Settlement
4.1 Unless otherwise agreed in writing, the purchase price shall be due and payable without deduction to the business account upon invoicing. Partial deliveries may be invoiced by the Vendor and shall be due and payable in the same manner.
4.2 If, after the conclusion of the contract, it becomes apparent to the Vendor that its claim to counter-performance is at risk, in particular non-redemption of cheques, bill protests or negative information from a bank, credit insurer or credit reference agency, or if the Buyer defaults in whole or in part on the fulfilment of due claims of the Vendor, the Vendor shall be entitled to refuse performance. The right to refuse performance shall not apply if the counter-performance is effected or security is provided, including by way of a bank guarantee. The seller may set a reasonable deadline within which the buyer must provide security or pay the purchase price in advance. After unsuccessful expiry of the deadline, the seller may withdraw from the contract.
4.3 The Buyer shall not be entitled to set off or assert a right of retention against claims of the Seller for payment of the purchase price or other claims arising from or in connection with this contract, unless the claim is undisputed or has been finally adjudicated.
5 Retention of title
5.1 The delivered goods shall remain the property of the Seller (reserved goods) until the Buyer has fulfilled all claims arising from the business relationship, including claims arising in the future or claims falling due. In the case of a current account, the reserved property shall be deemed to be security for the Seller's balance claim.
5.2.1 The Buyer undertakes to store the goods subject to retention of title separately from his other goods and to inform the Seller at the latter's request of the extent and storage location of the goods subject to retention of title still in his possession.
5.2.2 The Buyer may only sell the reserved goods in the ordinary course of business and as long as he is not in default. He is prohibited from pledging or assigning the reserved goods as security. The seller must be informed immediately of any seizure or other access by third parties to the goods subject to retention of title. The Buyer shall reimburse the Seller for any necessary intervention costs.
5.2.3 In the event that the reserved goods are combined, mixed, processed or treated with other goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value, or alternatively the market value, of the other goods used at the time of processing or mixing. If the Buyer acquires sole ownership of the new item, he hereby assigns to the Seller the co-ownership share in proportion to the invoice value of the processed reserved goods.
5.3 The Buyer hereby assigns his claims from the resale of the reserved goods to the Seller, even if the goods are sold to several buyers. If goods subject to retention of title are sold by the buyer together with other goods not supplied by the seller, the assignment of the claim from the resale only applies to the amount of the price mentioned in the Pickenpack Seafoods GmbH sales invoice for the respective goods subject to retention of title sold. In the event of the resale of goods in which the seller has acquired co-ownership, the assignment of the claim shall apply first in the amount of the value of the co-ownership share. The assigned claims shall serve as security to the same extent as the reserved goods.
5.4 The buyer may collect the assigned claims himself until revoked, as long as he meets his payment obligations properly and on time.
5.5 All claims of the Buyer against its insurer, in particular the insurer for fire and burglary, are hereby assigned to the Seller with regard to the reserved goods.
5.6 The Buyer's right to possess the goods subject to retention of title shall expire if he has not fulfilled his obligations under this or any other contract despite a reminder and the setting of a deadline. In this case, the Seller may demand the return of the reserved goods. The demand for return shall at the same time constitute withdrawal from the purchase contract. Insofar as the Seller realises the reserved goods, the proceeds shall be set off against the Buyer's liabilities. The Seller shall remain entitled to assert claims for damages in all cases of rescission and repossession.
5.7 The Vendor undertakes to release, at its discretion, the securities to which it is entitled at the request of the debtor, insofar as their realisable value exceeds the total claims to be secured by more than 10%.
6 Fulfilment, dispatch, transfer of risk
6.1 The place of performance for all obligations of the Seller shall be Riepe/Ihlow, unless delivery "free" to a specific place of delivery has been agreed. This shall also apply to the Buyer's obligation to pay.
6.2 The transport risk for the delivery shall be borne by the Buyer. This applies both when shipping from Rheine / Wietzendorf and when shipping from any other place.
7. notice of defects and liability for material defects
7.1.1 The buyer shall inspect the goods upon delivery immediately after acceptance, at the latest immediately after unloading from the means of transport, and shall immediately give notice of any defects/shortages in writing (also by fax or e-mail). If the goods are forwarded by the buyer, the inspection must nevertheless take place at the first destination. Proper inspection shall include at least an examination of "external appearance, purity, odour, taste, foreign matter", if necessary with the involvement of an expert if the buyer's own expertise is not sufficient. In the case of packaged goods, an inspection by taking representative samples is required.
7.1.2 The notification is in any case late if, in the case of deep-frozen goods, it is sent later than 24 hours after the time of the possibility of detection in the case of defects detectable by the examination described above, or later than 3 days after the arrival of the goods at the place of destination in the case of other perishable goods, or later than 3 days after discovery in the case of hidden defects (not detectable by examination according to 7.1.1).
7.1.3 In the case of frozen products, the buyer must prove that he has stored the defective goods at a temperature of at least -18 degrees Celsius or has ensured that deep-freezing of at least -18 degrees Celsius is maintained during return or onward shipment. Insofar as defects are notified which may be based on a breach of such obligations, it shall be presumed that the defect/damage was caused thereby.
7.1.4 With the notice of defect, the buyer must give the seller the opportunity to immediately convince himself of the defect, inform him of the place where the goods are located and provide access to the goods. If the goods are further processed, forwarded or modified, the buyer shall bear the full burden of proof that the goods were already in a defective condition at the time of delivery.
7.2 If the buyer fails to fulfil the obligations set out in No. 7.1.1 to 7.1.4 in due form or without delay, the goods shall be deemed to have been approved. In the case of defects which cannot be detected by careful commercial examination, which may also include the involvement of experts, all time limits shall run only from the time of detection.
7.3.1 In the event of quantity and quality defects, the Seller shall be granted the opportunity for subsequent performance by means of a free replacement delivery or rectification of defects at its discretion before the Buyer is entitled to the statutory rights. In the cases provided for by law, the Seller shall be entitled to refuse subsequent performance. The Buyer shall only be entitled to the statutory material defect liability rights, including claims for damages, if the Seller has been granted a reasonable period of time for this purpose.
7.3.2 If subsequent performance by means of a new delivery or rectification of defects does not take place within a reasonable period of time or if it fails even at a second attempt, the Buyer shall be entitled to the statutory material defect liability rights. The claim for damages shall be excluded insofar as the Seller proves that it is not at fault for the defective delivery or that it is not responsible for the failure of the subsequent performance. Liability for the absence of warranted or guaranteed characteristics or for fraudulent concealment of a defect shall be governed exclusively by the statutory provisions.
8. obligation to take delivery of the purchaser's own brands
Unless otherwise expressly agreed in writing, the Purchaser undertakes to accept the agreed order quantities, and in the case of revolving orders, to accept the usual stocks of orders, empty packaging and finished goods. Appropriate compensation shall be paid for any customer-branded packaging that has not been accepted.
9 General Limitation of Liability and Statute of Limitations
9.1.1 Claims for damages arising out of and in connection with the purchase contract shall be governed by the statutory provisions with regard to reason and amount if
a) they are based on an intentional or grossly negligent breach of contract by the legal representative of the Vendor or its vicarious agents,
b) the Seller can be accused of a breach of essential contractual obligations,
c) the Seller has assumed a special guarantee or a fraudulent warranty of quality or fraudulent concealment exists or
d) the claims are derived from the Product Liability Act.
9.1.2 Insofar as the Vendor is liable in cases other than in accordance with 9.1.1, its liability shall depend on fault and shall be limited to the damage which it could have foreseen as a consequence of the breach of contract, taking into account the circumstances of which it was aware or should have been aware.
9.2 Claims for liability for material defects and claims for damages arising from or in connection with the contracts concluded or to be concluded, irrespective of the reason, shall become statute-barred at the latest one year after delivery of the item to the buyer. This shall not apply to claims for damages based on injury to life, body and health or under the conditions of No. 9.1.1 a) c) and d).
9.3 Liability for damages resulting from injury to life, body or health due to negligent or intentional breach of duty by a legal representative or vicarious agent shall be governed exclusively by the statutory provisions in terms of reason and amount, contrary to the above provisions under Nos: 9.1.1a) - 9.2.
10 Place of Jurisdiction and Applicable Law
The place of jurisdiction for all disputes arising from or in connection with this contract, also insofar as they concern the validity, cancellation or termination of the contract, shall be Aurich. The Seller is at liberty to bring an action against the Buyer at his general place of jurisdiction. German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
11 Data protection, § 26 Federal Data Protection Act
Personal data of our customers are stored and processed in our EDP system as far as this is necessary for processing.
12. severability clause
Should individual provisions of these General Terms and Conditions of Sale and Delivery be or become invalid in the future, this shall not affect the validity of the remaining provisions.
Status: 01.07.2016