General Terms and Conditions of Schirmer Kaffee GmbH (as of: 07/2020)
§ 1 General information – Scope of application
(1) Our conditions of sale shall apply exclusively; we shall not acknowledge contrary conditions or conditions of the customer deviating from our conditions of sale, unless we have expressly agreed to their validity in writing. Our conditions of sale shall apply even if we unconditionally execute the delivery to the customer while being aware of contrary conditions or conditions of the customer deviating from our conditions of sale.
(2) All agreements made between us a nd the customer for the purpose of execution of this contract have been laid down in writing in this contract.
(3) Our conditions of sale shall apply only vis à vis companies pursuant to § 14 BGB [German Civil Code] and legal entities under public law and spec ial funds under public law within the meaning of § 310 para. 1 BGB.
§ 2 Offer – Offer documents
(1) If the order qualifies as an offer pursuant to § 145 BGB, we can accept it within two weeks.
(2) We shall reserve all property rights and copyrights to ill ustrations, drawings, calculations and other documents. This shall also apply for written documents that have been marked as “confidential”. Before disclosing these to third parties, the customer must obtain our express written consent.
§ 3 Prices – Payment terms
(1) Unless otherwise stated in the order confirmation, our prices shall apply in EURO “ex works”, excluding packaging, at the rates applicable on the date of shipment; packaging shall be charged separately.
(2) The statutory VAT shall not be included in our prices; it shall be mentioned separately in the invoice in the statutory amount on the date of invoice.
(4) Unless otherwise stated in the order confirmation, the purchase price shall be due for payment net (without deduction) within 7 days from the date of invoice. The legal regulations regarding the consequences of late payment shall apply.
(5) The customer shall be entitled to set off only if its counter claims are legally established, undisputed or acknowledged by us. In addition, it shall be authorised to exercise a right of retention insofar as its counter claim is based on the same contractual relationship.
(6) If we pay in advance (e.g. in case of an agreement of direct debit or the purchase against invoice), we shall, if necessary, obtain a credit report from Creditreform Dortmund Scharf KG, Phoenixseestraße 4, 44263 Dortmund in order to protect our legitimate interests. For this purpose, we shall send the personal data that is necessary for a credit check to this credit agency and shall use the information obtained for a balanced decision about the establishment, execution or termination of the contractual relationship. Your interests worth being protected shall be taken into account according to the statutory regulations.
§ 4 Delivery period
(1) The delivery period specified by us shall begin once all technical issues have been clarified.
(2) Compliance with our delivery obligation shall also require timely and proper fulfilment of thecustomer's obligation. The objection of non fulf ilment of the contract shall remain reserved.
(3) If the customer is in default of acceptance or if it culpably violates other obligations to coo p- erate, we shall be entitled to demand compensation for any damage we have incurred, including any extra expenses. Further claims or rights shall remain reserved.
(4) If the conditions mentioned in para. (3) apply, the risk of accidental loss or accidental deterioration of the purchased object shall be transferred to the customer at the time when it defaults with the acceptance or payment.
(5) We shall be liable according to the legal regulations, as far as the underlying purchase agreement is a transaction to be settled on a fixed date within the meaning of § 286 para. 2 no. 4 BGB or § 376 HGB [German Commercial Code]. We shall also be liable according to the legal regulations if a delay in delivery, for which we are responsible, results in the customer's right to assert that its interest in the continued fulfilment of the contract has ceased.
(6) We shall also be liable according to the legal regulations if the delay in delivery was due to our breach of contract by intent or gross negligence; culpable action by our representatives or vicarious agents shall be attributable to us. If the delay in delivery is based on our breach of contract by gross negligence, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) We shall also be liable according to the legal regulations if our delay in delivery was due to our culpable violation of an essential contractual obligation; in this case, our liability for damages shall however be limited to the foreseeable, typically occurring damage.
(8) Further legal claims and rights of the customer shall remain reserved.
(9) In the event of force majeure and other unforeseeable, exceptional and non culpable circumstances e.g. in case of material procurement difficulties, operational disturbances, strike, lockout, lack of means of transport, official measures, energy supply difficulties, epidemics, pandemics, etc. even if they occur with our sub suppliers the delivery period shall extend to a reasonable extent, if we are prevented from timely fulfilment of our obligation. If the delivery is impossible due to the circumstances mentioned, we shall be released from the obligation to deliver. The same shall apply in case of unreasonableness. We can refer to the aforementioned circumstances only if we notify the buyer immediately.
§ 5 Transfer of risk – Packaging costs
(1) Unless otherwise stated in the order confirmation, the agreed form of delivery shall be “ex works”.
(2) Special agreements shall apply for the return of packaging.
(3) If requested by the customer, we shall take out a transportation insurance for the delivery; the costs incurred shall be borne by the customer.
(4) If the goods are sent to the buyer upon its request, the risk of accidental loss and accidental deterioration of the goods shall be passed on to the buyer with the hand over of the goods to our shipping agent.
(5) Unless otherwise agreed upon, we shall determine the packaging and shipping method in this case.
(6) Within the borders of the Federal Republic of Germany, the delivery shall take place freight and packaging paid to the ramp or station. The delivery shall generally be made on pallets; at the time of delivery of the goods, the recipient must exchange the same number of undamaged empty pallets, which must, in terms of size, design and usability, match the pallets used for delivering the goods. If exchange pallets are not provided or are provided incompletely or in a damaged condition, we shall be entitled to charge the recipient the replacement costs at the respective price invoiced to us.
(7) The INCOTERMS 2020 shall apply additionally.
§ 6 Liability for defects
(1) The customer’s warranty claims shall require the customer to have fulfilled its obligation to inspect and give a notice of defects pursuant to § 377 HGB properly; in case of apparent defects however, at the latest within 8 working days.
(2) If there is a defect in the purchased object, we shall be entitled, as per our choice, for supplementary performance in the form of defect rectification or delivery of a new defect free product. In case of defect rectification or replacement delivery, we shall be obligated to bear all expenses incurred for the purpose of the supplementary performance, especially transport, travel, labour and material costs, unless they increase due to the fact that the purchased object has been moved to a place other than the place of fulfilment.
(3) If the supplementary performance fails, the customer shall be entitled, as per its choice, to demand withdrawal or reduction.
(4) We shall be liable according to the legal regulations if the customer asserts claims for damages on the grounds of intent or gross negligence, including the intent or gross negligence of our representatives or vicarious agents. Unless we are charged with intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable according to the legal regulations if we culpably violate an essential contractual obligation; even in this case, the liability for damages shall however be limited to the foreseeable, typically occurring damage.
(6) For the rest, if the customer is entitled to reimbursement of damages instead of performance due to a negligent violation of an obligation, our liability shall be limited to reimbursement of the foreseeable, typically occurring damage.
(7) Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
(8) Unless otherwise regulated above, any liability shall be excluded.
(9) The limitation period for claims for defects shall be 12 months, calculated from the transfer of risk.
(10) Type and extent of the defects as well as the number of the delivery note or invoice must be specified. The rejected goods must be made available for inspection and, until then, they must be stored in a manner that is appropriate for the product and must be handled properly. Differences regarding the number or types of sales units belonging to a delivery can be acknowledged only if they are determined immediately upon receipt of the goods and are noted on the receipt acknowledgement. Complaints due to damage or less weight of railway or postal shipments must be determined by the buyer with the assistance of a railway or postal official or employee immediately upon receipt of the goods and the documents regarding the damage must be submitted to us. In case of justified and timely notice of defects, we shall rectify the defects by way of supplementary performance. We shall be entitled according to the legal regulations to refuse supplementary performance. In the event of refusal of supplementary performance or its failure or its unreasonableness for the buyer, the buyer shall be entitled for withdrawal or reduction according to the regulations of the following paragraph. We can refuse supplementary performance as long as the customer does not meet its payment obligations to us to an extent that corresponds to the defect free part of the services. In case of supplementary performance, we shall be obligated to bear all expenses incurred for the purpose of the supplementary performance, especially transport, travel, labour and material costs, unless they increase due to the fact that the purchased object has been moved to a place other than the place of fulfilment.
§ 7 Overall liability
(1) Any further liability for damage s beyond the provisions of § 6 shall be excluded regardless of the legal nature of the asserted claim. This shall apply especially to claims for damages resulting from culpa in contrahendo, breach of other obligations or tortious claims for compensation of property damage pursuant to § 823 BGB.
(2) The limitation according to para. (1) shall also apply if the customer demands compensation for useless expenses instead of a claim for reimbursement of damages, instead of performance.
(3) As far as our liability for damages has been excluded or limited, the same shall also apply with regard to the personal liability for damages of our staff, representatives and vicarious agents.
§ 8 Security of the retention of title
(1) We shall reserve the ownership of the purchased object until the receipt of all payments from the delivery contract. In the event of non conforming behaviour of the customer, especially in the event of default of payment, we shall be entitled to take the purchased object back. The recall of the purchased object by us shall not constitute a withdrawal from the contract. Upon recall of the purchased object, we shall be entitled to make use of it; the proceeds from the utilisation must be credited against the customer’s liabilities less reasonable costs of utilisation.
(2) The customer must handle the purchased object with care; in particular, it must adequately insure the object at own costs at reinstatement value against fire, water and theft damage.
(3) In the event of seizures or other third party interventions, the customer must immediately inform us in writing so that we can take legal action pursuant to § 771 ZPO [Code of Civil Procedure]. Unless the third party is able to reimburse our judicial and extra judicial costs of an action pursuant to § 771 ZPO, the buyer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the purchased object in the course of regular business; however, it shall already assign to us all claims against its customer or third parties from such a resale in the amount of our total invoice sum (including VAT). This shall apply regardless of whether the purchased object has been processed before the resale. The customer shall be entitled to collect such a claim even after the assignment. Our authority to collect the claim by ourselves shall remain unaffected by this. We however undertake not to collect the claim as long as the customer meets its payment obligations from the revenue obtained, does not default with the payment and especially, as long as no application has been filed for the opening of composition or insolvency proceedings or cessation of payments has occurred. If this is the case, however, we may demand that the customer informs us about the assigned claims and their debtors, provides us with all the information required for collection and hands over the relevant documents and informs the debtors (third parties) about the assignment.
(5) The processing or restructuring of the purchased object by the customer shall al ways be done on our behalf. If the purchased object is processed with other objects not belonging to us, we shall acquire co ownership of the new object in proportion of the value of the purchased object (total invoice sum, including VAT) to the value of the other processed objects at the time of the processing. For the rest, the provisions regarding our purchased object delivered with retention of title shall also apply for the object created by processing.
(6) If the purchased object is inseparably mixed with other objects not belonging to us, we shall acquire co ownership of the new object in proportion of the value of the purchased object (total invoice sum, including VAT) to the value of the other objects mixed with it at the time of the mixing. If the mixing takes place in such a manner that the customer's object is to be considered as the main object, it shall be deemed agreed that the customer shall transfer proportionate co ownership to us. The customer shall keep the thus arising sole ownership or co ownership on our behalf. (We undertake to release the securities assigned to us upon demand of the customer insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %; we shall be entitled to select the securities to be released.
(7) Our products may only be offered or sold in the respective original packaging.
(9) Repackaging of our brand products shall not be permitted. Moreover, the buyer must excl u- sively offer our brand products in our display boxes.
§ 9 Legal domicile – Place of fulfilment
(1) If the customer is a merchant, the legal domicile shall be our company headquarters; we shall however be entitled to bring an action against the customer at its business court.
(2) The law of the Federal Republic of Germany shall be applicable; as far as the UN CISG applies, a fault shall always be required for the development and existence of an obligation to pay compensation with respect to the asserted defect.
(3) Unless otherwise stated in the order confirm ation, the place of fulfilment shall be our company headquarters.