General Terms and Conditions of The Family Butchers Germany GmbH
Section 1 General
Our General Terms and Conditions of Sale apply exclusively. We shall not recognise the Buyer's conditions to the contrary or conditions that vary from our General Terms and Conditions of Sale unless we had expressly agreed in writing to the validity of such conditions. Our General Terms and Conditions of Sale also apply if we unconditionally deliver goods to the Buyer although we are aware of the Buyer’s conditions to the contrary. All agreements entered into by us and the Buyer for the purpose of executing this contract are to be set out in writing in this contract. Our General Terms and Conditions of Sale only apply to dealings with entrepreneurs within the meaning of Section 310(1) BGB (German Civil Code). Our General Terms and Conditions of Sale also apply to all future business transactions entered into with the Buyer.
Section 2 Reservation of performance
In cases of force majeure and other unforeseeable, extraordinary circumstances for which we are not responsible (e.g. natural disasters, effects of war, strikes or lock-outs, official interventions or disruptions in the manufacture, delivery or supply of raw materials and energy), we shall be entitled to reasonably extend the delivery periods or withdraw from the contract in full or in part. In these cases, claims for damages are excluded unless we are responsible for the delay or hindrance due to intent or fraudulent intent. Honouring and complying with our delivery obligations are conditional on us receiving correct and timely deliveries. In the event of shortages and failures of raw materials intended for our products, we shall be entitled to reduce the agreed delivery quantities in the proportion of the actual raw material deliveries to the planned raw material quantities.
Section 3 Passing of risk / packaging costs
Delivery “ex works” is agreed in the absence of anything to the contrary resulting from the order confirmation. The Buyer is to return to us, at its own expense, transport and all other packaging in accordance with the German Packaging Ordinance in the event that it is to be returned. In the event that the packaging is not returned, the Buyer undertakes to ensure the packaging is disposed of at its own cost. Pallets are excluded from these regulations, and are to be returned to us at the Buyer’s expense. Where requested by the Buyer, we shall take out transport insurance for deliveries. Insofar as costs are incurred in that respect, these shall be borne by the Buyer.
Section 4 Prices / due date / assignment of claims
Our prices are to be understood per kilogramme in weight or item, weighed at our place of business. All payments are to be made in euros and exclusively transferred to us. Payments to representatives shall only release our Buyer if express authority to collect has been presented to them. The statutory VAT is not included in our prices. It shall be stated separately in the invoice at the statutory amount on the day of invoicing. The prices that apply on the day of entering into a contract shall apply in principle. We reserve the right to invoice the prices valid on the day of delivery if price increases have occurred in the meantime, in particular due to higher market quotations for livestock and meat. The invoice amount is immediately payable in full following receipt of the goods, at the latest 10 days after the invoice has been dispatched (invoice date). The Buyer shall be deemed in default of payment if payment has not been made by then. If the Buyer defaults in payment, we shall be entitled to charge interest on arrears for the year at a rate of 8 percentage points above the base interest rate in accordance with the statutory provisions. This shall not exclude asserting a claim for greater damage caused by default or other claims. The Buyer shall only be granted the right to set off if its counter-claims are res judicata, undisputed or have been acknowledged by us. The Buyer is not entitled to a right of retention based on disputed counterclaims. We are entitled to assign our claims against the Buyer. In the case of a current account relationship, we are also entitled to assign the balance arising at the end of the current account period. Prohibitions of assignment on the part of the Buyer shall have no effect.
Section 5 Asset deterioration
If facts become known after entering into the contract which, according to commercial judgement, indicate that honouring our claim for payment is jeopardised due to a lack of ability to pay on the part of the Buyer, in particular due to a deterioration in the Buyer’s financial circumstances, in the event of default in payment, cessation of payments or the institution of insolvency proceedings, we shall be entitled to declare all claims against the Buyer due and payable and refuse our performance until our claims for payment have been honoured or security has been provided in that respect. All discounts and the like that may be envisaged shall then be deemed to have lapsed. The Buyer shall pay the invoiced gross prices. If counter-performance is not effected or security not provided within a reasonable period set by us, we shall be entitled to withdraw from the contract and claim damages. This shall not affect statutory provisions about dispensing with setting a grace period or our further claims and rights.
Section 6 Treatment instructions
Our printed treatment instructions and the instructions noted in our documents (e.g. specifications) are to be complied with. In the case of samples being taken by the official food supervisory authorities, two correspondingly marked counter-samples are to be sent to us.
Section 7 Guarantee
All warranty rights are conditional on strict adherence to the treatment instructions in Section 6. Our guarantee with regard to shelf life can be found in our product specifications. Short weights shall only be compensated if a certificate from a railway operation, post office or forwarding agent is provided. The Buyer's warranty rights are conditional on the fact the Buyer has properly honoured its obligations to inspect and provide notification of defects in accordance with Section 377, HGB (German Commercial Code). Insofar as the object of sale is faulty for which we are responsible, we shall be entitled to choose between rectifying a defect or providing a replacement delivery. We undertake to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs insofar as these are not increased by the fact that the object of sale was taken to a place other than the place of the Buyer’s commercial establishment and this does not correspond to the contractually stipulated purpose. If we are not prepared or not in a position to rectify the defect/provide a replacement delivery, in particular if this is delayed beyond a reasonable period of time for reasons for which we are responsible, or if rectifying the defect/providing a replacement delivery fails in any other way, the Buyer shall be entitled, at its discretion, to withdraw from the contract or demand a corresponding reduction of the purchase price. If the option of withdrawing from the contract is chosen, the Buyer shall not be entitled to any additional claim for damages based on the defect. If only part of the entire goods delivery is faulty, the Buyer may only withdraw from the entire contract if the Buyer has no interest in the remaining part of the delivery. If the option of compensation for damages is chosen, the Buyer shall retain the goods if this is reasonable for the Buyer. Compensation for damages shall be limited to the difference between the purchase price and the value of the faulty goods unless we have fraudulently caused the breach of contract. The guarantee period is 12 months calculated from the passing of risk. This shall not apply if a longer period is prescribed by law for the entrepreneur’s right of recourse (Section 479, BGB).
§ 8 Overall liability
These General Terms and Conditions of Sale conclusively provide for our liability and guarantee for the purchased goods and our obligations and exclude other guarantee claims and claims for damages of any kind and without regard to the legal nature of the asserted claim, in particular for breach of duty arising from a contractual obligation, for damage that does not apply to the delivery item itself, or from tort, as well as for compensation for the loss of expected profits or for the Buyer’s other financial losses unless the cause of damage is based on circumstances for which we are responsible due to intent or gross negligence. In the event of a breach of key contractual obligations, we shall also be liable for minor negligence. However, in this case our liability shall be limited to compensation for foreseeable, typically occurring damage. This and any limitation of liability in these General Terms and Conditions of Sale shall not apply to provided guarantees, damage resulting from loss of life, physical injury or detrimental effects on health or claims in accordance with the German Product Liability Act. This is not associated with a change in the burden of proof to the detriment of the Buyer. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our white collar workers, representatives and vicarious agents.
Section 9 Reservation of title
The goods shall remain our property (reserved goods) until payment in full of all claims and ancillary claims arising from the business relationship, irrespective of the legal basis, and until bills of exchange and cheques issued for this purpose have been honoured (this also applies to the so-called “cheque/bill of exchange procedure”). In the case of a current account, the goods subject to reservation of title shall serve as security for our balance claim. The reserved goods shall be stored separately from the other goods, marked at our request and insured against fire and theft. In the event of culpable breach of key contractual obligations by the Buyer, in particular in the event of default in payment, we shall be entitled to withdraw from the contract or demand surrender of the goods based on the reservation of title. The demand for surrender and return of goods by us does not constitute a statement of withdrawal. Moreover, we are entitled to merely demand surrender of the goods and reserve the right to withdraw. We shall then also be entitled to take stock of the goods and/or make arrangements for stocktaking and gain access to the Buyer’s premises for this purpose and for the purpose of taking back the goods. The Buyer shall reimburse us for the cost of collecting and taking back the goods. The processing or refashioning of the reserved goods by the Buyer shall, at all times, be performed on our behalf. If the reserved goods are processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the proportion of the value of the reserved goods (final invoice amount including VAT) to that of the other processed items at the time of processing. In other respects, the same shall apply to the new item created by processing as to the reserved goods. If the reserved goods are inseparably linked to or mixed with other items that we do not own, we shall acquire the co-ownership of the new item in the proportion of the value of the reserved goods (invoice amount, including VAT) to that of the other mixed items at the time of mixing. If the reserved goods are combined or mixed in such a way that the Buyer’s item is to be regarded as the principal item, we agree with the Buyer at this point in time that the Buyer shall transfer co-ownership of this item to us on a pro rata basis. We accept this transfer. The Buyer shall hold in safe custody for us the sole ownership or co-ownership of an item created in this manner. The Buyer is entitled to resell the reserved goods during the course or ordinary business activities. If the Buyer resells the reserved goods - irrespective of their condition – the Buyer hereby assigns to us the claims arising from the sale, including all ancillary rights. We accept this assignment. The assignment serves as security in the sum of the value of the sold reserved goods. Seizure and transfer of the reserved goods by way of security are not permitted. We are to be notified without delay of seizure or similar infringement by third parties. The Buyer continues to be entitled to collect the assigned claims. This does not affect our authority to collect the claims. We undertake not collect a claim as long as the Buyer honours its payment obligations, does not default in payment, an application for the institution of insolvency proceedings has not been filed or payment has not been discontinued. However, if this is the case, we shall be entitled to demand that the Buyer disclose to us the assigned claims and the debtors on such claims, provide all the necessary information, surrender the related documents and notify the debtors (third parties) of the assignment. In this case, we are entitled to revoke the Buyer’s resale authorisation and collection authorisation with regard to the assigned claims. If the realisable value of the securities provided exceeds our claims by more than 10% in total, we undertake to release and retransfer the securities to which we are entitled at the Buyer’s request. Selecting the securities to be released shall be incumbent upon us. In the event that we repossess reserved goods - without prejudice to the Buyer’s payment obligations - we shall be entitled, but do not undertake, to realise them via private sale for the account of the Buyer or take them over at the value for us of the returned goods. In the event of realisation, we shall only be liable for intent and gross negligence. The costs we incur by asserting our reservation of title shall be borne by the Buyer.
Section 10 Miscellaneous
If goods descriptions other than those in the federal state of our place of business were determined by regulations of the German federal states, these are to be considered by the Buyer before forwarding to third parties.
Section 11 Place of jurisdiction / place of performance / data storage
Our place of business is deemed the place of jurisdiction. However, we are also entitled to bring legal action against the Buyer at the competent court for the Buyer’s place of residence. The court with jurisdiction for our registered office is deemed the place of performance in the absence of details to the contrary in the order confirmation. Solely German law is applicable. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980 (German Federal Law Gazette II 1989, p. 586) for the Federal Republic of Germany (German Federal Law Gazette. II 1990 p. 1477) is excluded. By placing the order, we are entitled to process the data about the Buyer received with regard to the business relationship or in conjunction with it, irrespective of whether they originate from the Buyer or from a third party, within the meaning of the German Federal Data Protection Act and the German Teleservices Data Protection Act (TDDSG).