General, scope of application
1. The following General Terms and Conditions of Sale shall apply to all contracts for the delivery of commodities by Wichmann Entenspezialitäten GmbH (hereinafter also called “Vendor”) to its contracting partners which are enterprises (hereinafter also called “Purchase” or “Customer”).
2. Our terms and conditions of sale shall apply accordingly, Customer declaring its agreement with them upon placement of order, also for future transactions, even if no express reference is made to them, but they have been sent to Customer in an order confirmed by us. If the order is placed in deviation from our terms and conditions of sale, only our terms and conditions of sale shall apply, even if we do not contradict. Deviations shall therefore only apply if they have been expressly acknowledged by us in writing.
3. For the scope of the deliveries, the mutual, concordant declarations shall be decisive.
4. All agreements made between ourselves and Customer for the purpose of performance of the present contract have been recorded in writing in the present contract.
5. The term “claims to damages” in the present terms shall also cover claims to reimbursement of vain expenditure.
6. Our terms and conditions of sale shall only apply towards businesses within the meaning of § 310 sub-section 1 German Civil Code.
Conclusion of contract, quotation documents
1. Vendor’s quotations shall be subject to change without notices as regards price, quantity, delivery period and possibility of delivery. Until confirmation or performance of the transaction by Vendor, Purchaser shall be bound to its order. If an order is to be qualified as a quotation pursuant to § 145 German Civil Code, we can accept it within two weeks.
2. We reserve ownership and copyrights to Illustrations, diagrams, calculations and other documents. This shall also apply to written documents marked as “confidential”. Before forwarding them to thir parties. Customer shall require our express written approval.
Prices, payment terms, assignment
1. To the extent that nothing to the contrary results from the order confirmation, our prices shall apply “Ex works” exclusive of packaging, which shall be charged separately. If delivery freight paid is agreed, increase in the freight rates following conclusion of the contract shall be charged to Purchaser. If the price of a commodity is influenced by a change in duty laws or import and customs provisions after conclusion of the contract. Vendor shall be entitled to a subsequent change of the price to the scope of the influencing.
2. Statutory Value Added Tax shall not be included in our prices; it shall be stated separately on the invoice at the statutory amount on the date of invoicing.
3. Deduction of discount shall require separate written agreement.
4. To the extent that nothing to the contrary results from the order confirmation, the purchase price shall be due for payment net (without deduction) immediately. The statutory rules with regard to the consequences of default in payment shall apply. Payment shall only be deemed effected when Vendor can dispose of the amount. Bills and cheques shall only be accepted in the event of express agreement and then only on account of performance and subject to honouring. Costs of payment by cheque or bills shall be charged to Purchaser.
5. From the start of arrears, default interest to the amount of 8 percentage points above the basic rate of interest of the European Central Bank shall be charged. The right to claim further damages from arrears shall not be ruled out. If Purchaser falls into arrears with settlement of a claim, Vendor shall be entitled to reject all further deliveries without specific announcement until Purchaser has settled the claim or makes advance payment with a view to the further deliveries. If Purchaser is in arrears towards us with any obligations to payment, all existing claims against Purchaser shall become due for payment immediately.
6. Incoming payments shall firstly settle costs, then interest and lastly the principal claim, in the event of a plurality of claims, the oldest one in each case.
7. Offset rights shall only accrue to Customer if its counterclaims are legally effective, undisputed or have been acknowledged by us. In addition, it shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
8. We shall be entitled to assign the claims from our business relationships.
1. An agreed delivery period shall commence with receipt of the order confirmation, albeit not before receipt of documents to be procured by Purchaser and not before receipt of all and any agreed down-payment. Delivery shall be on the agreed date, however only to the extent that is a question of deliveries from an Inland location to an inland location. Exceeding the date by up to 5 working days shall be accepted by Purchaser. If delivery is from and/or to a foreign country, Purchaser shall be accept exceeding of up to 14 days. Compliance with our delivery obligation shall further presuppose punctual and proper compliance with Customer’s obligations. The right to the defence of non-performance of the contract shall remain reserved.
2. Purchase of commodities, the delivery of which takes a long period of time, shall be instalments of approximately equal size. If Customer fails to purchase the commodities or to call them within agreed or suitable periods, we shall be entitled , following the fruitless expiry of a suitable period set by us, to charge Customer for the commodities and to send them to it without request or to store them for its account at our choice. Vendor’s further-reaching rights shall be unaffected.
3. If Customer falls into arrears of acceptance or culpably infringes other duties to cooperation, we shall be entitled to demand reimbursement of the damage suffered by us to this extent, including all and any additional expenditure. Further-reaching claims of rights shall remain reserved.
4. If the prerequisite of sub-section 3 have been fulfilled, risk of chance destruction or chance deterioration of the object of purchase shall pass to Customer at the time which it fell into arrears of acceptance or debtor’s arrears.
5. We shall be liable according to the statutory provisions to the extent that the underlying purchase contract is a fixed transaction within the meaning of § 286 sub-section 2 no. 4 German Commercial Code. We shall also be liable according to the statutory provisions to the extent that Customer is entitled to claim that its interest in further performance of the contract no longer exists as a result of arrears in delivery for which we are answerable.
6. We shall further be liable according to the statutory provisions to the extent that the arrears in delivery are based on infringement of the contract by malice aforethought or gross negligence for which we are answerable; culpability of our representatives or vicarious agents shall be ascribed us. To the extent that the arrears in delivery are based on infringement of the contract by malice aforethought or gross negligence for which we are answerable, our liability for damages shall be limited to the foreseeable damages typically incurred.
7. We shall also be liable according to the statutory provisions to the extent that the arrears in delivery for which we are answerable are based on a culpable breach of a cardinal duty (§ 6 sub-section 5 sentence 2); in such a case, the liability for damages shall be limited to the foreseeable damages typically incurred.
8. Apart from this, we shall be liable in the event of arrears in delivery for each completed week of arrears within the framework of a liquidated reimbursement for arrears to the amount of 0,5 % of the delivery value, albeit no more than 5 % of the delivery value.
9. Further statutory claims and rights of Customer shall remain unaffected.
Passage of risk, packaging costs
1. To the extent that nothing to the contrary results from the order confirmation, delivery “ex works” has been agreed.
2. Outer packaging and all other packagings shall not be taken back by us; an exception shall be formed by pallets, which are not included in the purchase price. Customer shall be obliged to ensure proper disposal of the packaging at its own expense.
3. If expressly requested by customer, we shall cover the delivery by a transport insurance; the costs incurred in this context shall be borne by Customer.
4. In the event of transport damage, Customer shall ensure claims to damage against third parties. Punctual involvement of agents of the freight forwarder for establishment of the damage shall be absolutely necessary.
Liability for defects
1. Claims to liability of customer shall presuppose that the latter has property complied with its obligations to examination and notification owed pursuant to § 377 German Commercial Code. Customer shall be obliged to examine incoming commodities for defect without delay – i. e. within 48 hours of delivery at the latest or 6 hours after opening of the vacuum or other packaging (the earlier incident being decisive). Recognisable defects shall be notified to us without delay, i. e. by phone no later than within 24 hours of discovery and also in writing/by telecopy on the same day. Culpable breach of one of these subsidiary obligations shall lead to an obligation to damages of Customer. A breach of the obligation to examination and notification shall additionally lead to the commodities being regarded as accepted (§ 377 German Commercial Code). Normal weight loss during the transport shall not be deemed a defect the outgoing weight shall also be decisive for invoicing.
2. To the extent that a defect of the object of purchase exists. Customer shall, at our choice, have a claim to afterworking or replacement delivery.
3. If subsequent performance fails, Customer shall, at its choice, be entitled to demand withdrawal or reduction of price. However, withdrawal shall be ruled out if the significance of the defect is slight. If a return of the commodities for the purpose of the notification of defect shows that it was unjustified, we shall be entitled to charge the costs of dispatch and packaging as well as a suitable remuneration for the examination of the goods. Said suitable remuneration shall be no less than € 25,00, but no more than 20 % of the value of the commodities.
4. We shall be liable according to the statutory provisions to the extent that Customer claims damages based on malice aforethought or gross negligence, including malice aforethought or gross negligence of our representatives or vicarious agents. To the extent that no deliberate breach of contract is ascribed to us, the liability for damages shall be limited to the foreseeable damages typically incurred.
5. We shall be liable according to the statutory provisions to the extent that we culpably breach a cardinal contractual duty; but in this case too, the liability for damages shall be limited to the foreseeable damages typically incurred. Cardinal contractual duties shall be those which protect precisely those legal positions of Customer essential for the contract which the contract has to grant it according to its contents and purpose; further, this shall mean the duties, the performance of which makes the proper implementation of the contract possible to start with and compliance with which is something which Customer regularly trusts and may trust in.
6. Liability on account of culpable injury to life, limb or health shall remain unaffected, as shall mandatory liability according to the Produce Liability Act.
7. To the extent not regulated above, liability shall be ruled out.
8. The period for barring claims to liability by limitation shall be 12 months, starting from the passage of risk.
9. Recourse of Customer against us pursuant to § 478 sub-section 1 in combination with437, 478 sub-section 2 German Civil Code shall be ruled out. Compensation for all and any recourse of Customer has been taken into account in the pricing. Contracting Parties shall regard this settlement by the lump-sum amount as being ad equate.
1. Further-reaching liability for damages than provide for in § 6 shall be ruled out, without regard for the legal nature of the claim being made. This shall in particularly apply for claims to damages from culpa in contrahendo, on account of other breaches of duty or for claims from tort for indemnification of property damage pursuant to § 823 German Civil Code.
2. The limitation pursuant to sub-section (1) shall also apply to the extent that Customer demands reimbursement of vain expenditure in lieu of a claim to reimbursement of damage in lieu of performance.
3. To the extent that liability for damages against us has been ruled out or limited, this shall also apply with a view to the personal liability for damages of our salaried employees, wage-paid employees, workers, representatives and vicarious agents.
4. The regular period for limitation of claims pursuant to § 7 shall be 1 year. The statutory provisions shall apply to the start, inhibition, restart and maximum periods.
Force majeure and similar preventions of performance
In the event of force majeure, e. g. animal epidemics, impositions of import or export bans, war, revolution, political upheaval, stoppage or prevention of shipping etc. and also in the event of a strike in our company or a lack of raw material, we shall be entitled to postpone delivery until the expiry of a suitable period after removal of the obstacle or to withdraw from the contract partly or totally without Customer being able to make claims to damages against us for this reason. If the delivery can be proven not to be of any more interest for Customer in the event of postponement of the delivery date, the latter shall be entitled to withdrawal. We shall be obliged to notify Customer immediately if delivery cannot or not completely be made for the aforementioned reasons.
Retention of title
1. We shall reserve title to the object of purchase until receipt of all payments from delivery contract. In conduct of Customer in breach of contract, in particular arrears in payment, we shall be entitled to take the object of purchase back. Taking the object of purchase back shall represent withdrawal from the contract. After taking the object of purchase back, we shall be entitled to offset the revenue from utilisation against Customer’s liabilities – less suitable costs of the utilisation.
2. Customer shall be obliged to treat the object of purchase gently, in particular being obliged to insure it adequately as its own expense at the new value against fire, water and theft damage. Insofar as maintenance and inspection work is necessary. Customer must do it at its own expense in good time.
3. In the event of seizures or other interventions of third parties, Customer shall inform us in writing without delay so that we can initiate proceedings pursuant to § 771 Code of Civil Proceedings. If the third party is not in the position to reimburse us for the judicial and extra-judicial costs of proceedings pursuant to § 771 Code of Civil Proceedings, Customer shall be liable for the losses suffered by us.
4. Customer shall be entitled to sell the object of purchase in the ordinary course of business; however, it here and now assigns all claims accruing to it against its customers or third parties from the resale, regardless of whether the object of purchase has been sold without or following processing, to us the amount of the final invoice amount (including VAT) of our claim; Customer shall remain entitled to collect said claim even after assignment. Our power to collect the claim ourselves shall remain unaffected. However, we engage not to collect the claim as long as Customer complies with its payment obligation from the revenue received, does not fall into arrears of payment and in particular no application for opening of settlement or insolvency proceedings has been made and it has not ceased payments. But if this is the case, we can demand that Customer notifies us of the claims assigned and their debtors, gives us all the information necessary for collection and notifies the debtors (third parties) of the assignment. Pledging, assignment by way of security or cession by way of security with a view to the conditional commodities shall not be permitted for Customer.
5. Processing or re-shaping of the object of purchase by Customer shall always be on our behalf without obligations for us arising herefrom. If the object of purchase is processed with other objects not belonging to us, we shall acquire co-title to the new object in the ratio of the value of the object of purchase (final invoice amount including VAT) to the other objects processed at the time of processing. The same shall apply to the object originating by processing as to the object of purchase under reservation of title.
6. If the object of purchase is inseparably blended with other objects, we shall acquire co-title to the new object in the ration of the value of the object of purchase (final invoice amount including VAT) to the other object processed at the time of blending. If blending is done in such a way that Customers’ object is to be regarded as the main object, it shall be deemed agreed that Customer transfers co-title to us pro rata. Customer shall keep the sole or co-title originating in this way on our behalf.
7. Customer shall also assign the claims for the securing of its claims accruing to it against a third party as a result of the blending of the object of purchase with a real property to us.
8. We engage to release the securities accruing to us by request of Customer to the extent that the realisable value of our securities exceeds the claim to be secured by more than 10 % the selection of the securities to be released shall be a matter for us.
9. If Customer’s involvement is necessary for effectivity of the retention of title, e. g. for registration necessary according to the law of the purchaser’s country. Customer shall take such actions.
10. If the objective prerequisites for the duty to make an insolvency application have been fulfilled by Customer, the latter shall refrain from any disposal of the conditional commodities, whatever the nature, without a corresponding request being necessary. Customer shall be obliged to report the stock of conditional commodities to us without delay. In such a case, we shall further be entitled to demand hand-over of the conditional commodities. If the conditional commodities have been processed, machined, blended, mixed or connected with other objects, we shall be entitled to demand hand-over to a trustee; Customer shall be obliged to notify all co-owners of the conditional commodities with their corporate name or name, as the case may be, address and share of co-title. The same shall apply accordingly to claims assigned to Vendor according to the above sub-sections. In addition, Customer shall notify us without specific request of the names and addresses of all debtors and provide us with copies of the documents proving the claims against them.
Place of jurisdiction, place of performance, miscellaneous
1. To the extent that Customer is a businessman, our headquarters or Mainz shall be place of jurisdiction at our choice; we shall however also be entitled to sue Customer at the court competent for its place of residence.
2. The law of Federal Republic of Germany shall apply; application of UN purchase law has been ruled out. As a supplement to the provisions of the present contract, Incoterms, as amended, shall be applicable.
3. To the extent that nothing to the contrary results from the order confirmation, our headquarters shall be place of performance.
4. The ineffectivity of individual provisions of these general terms and conditions of business shall not affect the validity of the remaining provisions.