General terms of sale and delivery
of the company Merschbrock-Wiese Gewürz GmbH
1 General
(1) These delivery terms only apply to clients who are entrepreneurs as set out in sec. 310 par. 1 of the Bürgerliches Gesetzbuch (German Civil Code).
(2) Our supply of goods and services exclusively takes place based on the following General terms of sale and delivery, which also apply to all further supplies without additional reference. This is especially the case if outstanding orders are carried out at short notice without a separate order confirmation.
(3) Provisions deviating from the following or legal regulations - particularly the buyer’s terms of purchase - are only binding for us so far as it was confirmed by us in writing. The unconditional supply of goods, provision of services or acceptance of payments do not constitute an acceptance on our part of any deviating provisions.
2 Conclusion of contract
L 1) Upon receipt of the order, we are entitled to accept this in the space of two weeks. This acceptance can either be done in writing or by shipping the product to the customer. The order confirmation provided by us specifies the scope of the deliver alone. Later additions or modifications of the order require our express written confirmation in order to be valid.
L 2) If the product is ordered electronically, we will immediately confirm the receipt of the order with the customer.
L 3) We reserve the existing copyrights to documents, calculations, specifications etc. delivered by us. These documents and materials also remain our property unless this was accepted by us in written form.
L 4) Previous terms of delivery are rendered invalid by these General terms of sale and delivery.
L 5) Our offers are non-binding. Minor deviations or deviations due to technical advancements in the design and composition of our goods from our catalogue, brochure or internet data shall remain reserved.
(6) Partial deliveries are permitted. These are generally to be considered independent business transactions.
3 Delivery period
L 1) Delivery periods set by the customer or specified delivery dates are non-binding, so long as we did not expressly confirm the period or the date as binding.
L 2) Our delivery period starts with the dispatch of the order confirmation to the customer. However, the start of the delivery period indicated by us generally requires the clarification of all technical issues and of the details of the execution.
L 3) Furthermore, our delivery obligation is the result of the timely and proper fulfilment of the customer’s obligations (e.g. provision of any required documentation, authorisations, approvals by the customer etc.).
L 4) The delivery deadline is considered to have been met if the product was dispatched by the expiry date or if the readiness for dispatch was shown to the customer in written form.
L 5) If the non-compliance with the agreed delivery period is due to force majeure, e.g. war, natural forces etc. or events such as strike etc., the delivery period is extended accordingly.
L 6) If an agreed delivery period is exceeded due to reasons for which we bear responsibility, the customer must grant us an appropriate grace period for the delivery in written form. This grace period amounts to at least two weeks.
L 7) If the delivery has not taken place upon expiry of the grace period, and, for this reason, the customer wishes to exercise his right to withdraw from the contract or to demand compensation for damages instead of the delivery, he is obliged to show this first in an expressly written form after granting a further appropriate grace period upon a request of service.
L 8) The customer is obliged to clarify, at our request within an appropriate period, whether he shall withdraw from the contract due to the delay of the delivery and/or demand compensation for damages instead of the delivery or insist on the delivery.
L 9) If the customer is in default of acceptance, we are entitled to demand compensation for the damage suffered. Further claims shall remain reserved. If compensation is claimed for damages instead of the service acc. to sec. 281 of the Bürgerliches Gesetzbuch (German Civil Code), we are entitled, irrespective of the possibility of claiming greater damage, to claim 20% of the sales price as remuneration. The customer shall be at liberty to prove that actual damage was not caused or that it is significantly less than the stated flat rate.
4 Terms of payment
L 1) Price lists, catalogue and internet price quotations are non-binding. Fixed price agreements generally require a written agreement.
L 2) Our prices including packaging, dispatch plus additional incidental costs (e.g. customs duties) have no delivery charge; these are invoiced separately.
L 3) The legal VAT is not included in our prices; this is reported in the invoice separately at the statutory rate.
L 4) The deduction of the discount requires a special written agreement and is otherwise prohibited.
L 5) The purchase price is to be paid within 14 days of the invoice date net and free of all charges, as long as nothing else has been agreed in writing. Upon expiry of the respective period, the customer is in default of payment. The legal regulations regarding the consequences of default of payment apply. The same applies to separately invoiced partial deliveries.
(6) Should a delivery first take place over four months after our confirmation of the order, we are entitled to take the current prices of the goods as a basis.
(7) The customer is only entitled to set-off rights and rights of retention if his counterclaims have been established as legally binding, are undisputed or have been acknowledged by us and are based on the same contractual relationship.
L 8) Our representatives are only authorised to collect payment if they can present a respective written authorisation.
L 9) Bills of exchange are not accepted. Cheques are accepted in any event only on account of payment.
5 Transfer of risk
L 1) Unless the order confirmation states otherwise, the delivery is agreed without delivery charge. If a shipping of the delivery item has been agreed between us and the customer, we are entitled to determine the shipping method.
L 2) The risk of accidental destruction or deterioration of the product is transferred to the customer upon delivery, in the event of a sale by dispatch, upon the delivery of the goods to the forwarding company or to the person engaged with performing the shipment.
L 3) If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred will be borne by the customer.
6 Liability for defects
L 1) All complaints, particularly those regarding defect claims, must be submitted to us in writing without delay, but no later than 10 days from the delivery of goods (in the case of latent defects, no later than 10 days from the date of their discovery). If the customer fails to notify us of complaints and defects in due time or in the agreed written form, our delivery or service shall be deemed to be free of defects in respect of such complaints that were not lodged in a timely manner or in the proper form, and/or defects that were not notified in a timely manner or in the proper form.
L 2) If the customer accepts our supplies or services despite knowledge of a defect, he shall be entitled to the rights deriving from such defect only if he has expressly reserved his rights with regard to this defect in writing.
L 3) In case of further processing of the product, the customer must check the suitability of the product himself.
L 4) Standard commercial tolerances regarding dimensions, weight, quantities, quality etc. do not result in a defect.
L 5) If there is a defect in the purchased object, which also includes an incomplete delivery or an incorrect delivery, we will first guarantee a repair or replacement delivery at our own discretion. If we choose to remedy the defects, we are obliged to bear all the necessary expenses, especially transport, work and material costs. This does not apply for the case where the ordered product was transferred to a location other than the place of delivery and this therefore increases the costs. For a repair or replacement delivery, the customer must grant us the opportunity within an appropriate period.
L 6) Should the rectification on our part not prove successful, the customer can withdraw from the purchase contract or demand a reduction. If there is only a minor lack of conformity, however, the customer is not entitled to withdraw. This is especially the case for only minor quality deviations.
L 7) If the customer receives defective documentation on the delivery of goods, we are only obliged to deliver defect-free documentation.
L 8) The goods we deliver are mainly perishable. The customer must ask us about the shelf life or the individual goods. The shelf life stated by us or by the manufacturer or supplier of the source products only applies in case of proper storage. For defects which can be traced back to the perishable nature of the goods, any warranty claims shall become statute-barred in accordance with the shelf life of the products. For all other defects, the warranty period is one year from the transfer of risk subject to the provisions set out in sec. 475, para. 2 of the Bürgerliches Gesetzbuch (German Civil Code).
L 9) An assignment of the warranty claims is only possible with our prior written consent.
L 10) The customer shall receive no guarantees in the legal sense from us. Manufacturer’s guarantees remain unaffected.
7 Liability
L 1) Our obligation to replace damages of any kind which are not based on deliberate or grossly negligent misconduct by our legal representatives or our auxiliary persons is excluded. This does not apply if the unfulfilled obligation is of crucial significance for the achievement of the contract purpose (cardinal obligation). Our liability is - where permitted - limited to the value of the product. Moreover, the replacement of pure financial damages, i.e. of loss of production, production reduction or loss of profit is limited by the principles of good faith, such as in the case of a disproportionate discrepancy between the amount of the delivery price and the amount of loss.
L 2) Our obligation to replace damages of any kind resulting from grossly negligent misconduct is limited to five times the invoice value, but to the coverage of the business liability insurance at the maximum, as long as this is legally permitted. In case of a mildly negligent breach of cardinal obligations, our liability is limited to compensation for typical contractual and foreseeable damages and amounts to a maximum of double the invoice value of the affected product.
L 3) The liability exclusion or liability limitation do not apply insofar as we have mandatory liability in case of injury to life, body or health or for damages to privately used items in accordance with the product liability law or for other reasons. It further does not apply in the absence of qualities which are expressly warranted, if the purpose of the warranty was to protect the buyer from damages not caused to the delivery item itself.
L 4) As long as the customer is entitled to claims for damages according to the above-mentioned regulations, these shall become statute-barred with the expiry of the limitation period valid for defect claims according to point 6 (8). The limitation period in case of delivery recourse according to secs. 478, 479 of the Bürgerliches Gesetzbuch (German Civil Code) remains unaffected.
8 Retention of title
L 1) We retain the title to the purchased item until the complete fulfilment of all claims derived from contracts concluded with the customer along with additional claims.
L 2) The customer is obliged to always look after the delivered product and insure it against damage by fire, water and theft at his own cost.
L 3) We are entitled to revoke the purchased item should the customer be in default of payment. However, this does not constitute a withdrawal from the contract. If we have taken back the purchased item, we are entitled to make use of it. The proceeds obtained from this shall be credited against the customer's obligations.
L 4) In case of seizures of the delivered product, we must be informed by the customer about it immediately.
L 5) The customer is entitled to resell the purchased item in the ordinary course of business; however, the customer hereby assigns to us in advance any claim to the amount of the invoice total (including VAT) that arises from reselling the item. We hereby accept this assignment.
We reserve the right to collect the claim ourselves. However, we will only make use of it if the customer does not comply with his/her payment obligations and falls in default of payment. The same applies if an application has been filed for the initiation of insolvency proceedings on the assets of the customer.
9 Other
(1) Additional agreements have not been made. Changes to this agreement are to be made in writing, which also applies to the change of this clause on the written form.
(2) We are entitled to store personal details and to use these within our business operations.
10 Place of jurisdiction, place of fulfilment
L 1) Our place of jurisdiction is our registered office.
L 2) The law of the Federal Republic of Germany shall apply; the terms of the UN Sales Convention shall not apply. This is also the case if the customer is foreign or has his registered office abroad.
L 3) Unless the order confirmation states otherwise, our place of jurisdiction is our place of fulfilment.
11 Severability clause
Should individual provisions of the contract with the customer including these general terms and conditions be or become wholly or partially invalid, the validity of the remining provisions shall not be affected.