General Terms and Conditions of Hanseatische Zuckerraffinerie GmbH & Co. KG
§ 1 General Stipulations - Scope of Application
(1) These General Terms and Conditions of Sale and Delivery (hereinafter referred to as: GTC) apply to all our business relations with our customers. These GTC shall only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. These GTC also apply in cross-border transactions.
(2) Our GTC shall apply exclusively. We do not acknowledge any conflicting, supplementary or deviating terms and conditions of the customer unless we have expressly agreed to their applicability in writing. Our GTC shall even apply if we, notwithstanding our knowledge of terms and conditions of the customer conflicting or deviating from our GTC, carry out the delivery to the customer without reservation or if the customer (again) refers to his General Terms and Conditions in commercial letters of confirmation.
(3) These GTC shall apply in particular to contracts for the sale, manufacturing and/or delivery of movable goods ("goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 611, 631, 650 BGB). Unless agreed upon otherwise, these GTC shall also apply as a framework agreement to similar future contracts without us having to refer to them again in each individual case, in the version valid at the time of the customer's order or, in any case, in the version last communicated to him in text form.
(4) Individual agreements made with the customer in specific cases (including ancillary agreements, supplementations and amendments) shall in any case take precedence over these GTC. Subject to proof of the contrary, a written contract or our written confirmation shall be decisive for the determination of the content of such agreements.
(5) Legally relevant declarations and notifications of the customer towards us after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) require text form for effectiveness. Statutory form requirements and further evidence, in particular in case of doubts regarding the authorization of the declaring individual, shall remain unaffected.
6) Remarks regarding the validity of statutory provisions only serve clarifying purposes. Therefore, the statutory provisions shall apply even without such a clarification unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of Contract
(1) Our offers are without obligation and subject to confirmation.
(2) The placement of an order of the goods by the customer constitutes a binding offer of contract. Unless stated otherwise in the order, we are entitled to accept this contractual offer within 2 weeks upon receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
§ 3 Information, Samples
(1) All information about the suitability for processing and usage of our products as well as technical advice and other information, also in terms of patent law, - are provided to the best of our knowledge, yet without obligation, excluding any liability, whereby § 9 remains unaffected. Such information or advise does not exempt the customer from testing the products, also with regard to their suitability for the intended purposes.
(2) Our samples shall only represent non-binding type or presentation samples; information on analysis data shall be considered approximate data.
§ 4 Prices
(1) Our prices are "ex works" and include the costs of packaging. In the case of sales shipment, the customer therefore bears the costs of transport ex works and the costs of any transport insurance requested by the customer. Any applicable customs duties, fees, taxes and other public charges shall be borne by the customer.
(2) The statutory value added tax is not included in our prices; it is recorded separately on the invoice at the rate applicable on the day of invoicing.
(3) The deduction of an early payment discount requires a separate written agreement.
§ 5 Delivery
(1) We ship our deliveries upon request of the customer, which requires text form.
(2) Compliance with our delivery obligation requires the timely and proper fulfilment of the customer's obligations.
(3) Information on delivery dates is not binding but will be adhered to subject to our delivery capacities. The customer is not entitled to reject reasonable partial performance in relation to the total performance. If we are unable to meet delivery dates for reasons outside our scope of responsibility (non-availability of the contractual performance), we will inform the customer immediately and at the same time inform him about the expected new delivery date. If the contractually owed performance is still not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we shall reimburse any consideration already provided by the customer without delay. Such non-availability of the contractual performance shall be deemed as provided, in particular, in case of the non-timely self-supply by our supplier, provided that we have concluded a congruent covering transaction for the supply, neither we nor our supplier are at fault or in the case that we are not obliged to procure in the individual case. Severe events, such as, in particular, force majeure, labor disputes, riots, war or terrorist conflicts, epidemics or pandemics, which have unforeseeable consequences for the performance of services, release the contracting parties from their performance obligations for the duration of the disturbance and to the extent of their effect, even if they are in default. An automatic termination of the contract shall not be triggered by such events. The contracting parties are obliged to inform each other of such disturbances and to modify their obligations accordingly in good faith.
(4) For export deliveries the Incoterms shall apply in their respective current version.
§ 6 Transfer of Risk; Insurance; Packaging
(1) Delivery is effected "ex works", which is also the place of performance for the delivery and any potential subsequent performance.
(2) For the delivery in loaned packaging, any special conditions stated in our contract declaration (order confirmation, delivery, etc.) shall prevail.
(3) The customer is not entitled to use our loaned packaging, especially our loaned containers, for his own purposes.
(4) Disposable packaging may only be reused in business transactions after the company logo and name and the description of the goods have been made illegible.
§ 7 Acceptance
(1) Unless agreed upon otherwise and subject to our ability to deliver within 10 days after receipt of the customer’s order by us, the customer is obliged to accept the ordered goods or reasonable partial deliveries. In doing so he shall observe our delivery times, which are also available on the Internet at https://www.hellmi.eu/index.php/de/agb. In the case of apportioned contracts, the goods shall be accepted in approximately equal monthly instalments. If the customer fails to fulfil his obligation to accept the goods “ex works” in an individual case, such failure does not constitute an obligation on our part to make a shipment.
(2) If the customer is in default of acceptance or culpably breaches other cooperation obligations, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims shall remain reserved.
(3) In the case of delivery of loose goods, the customer must ensure that his filling pipes, fittings and take over containers are in flawless condition before acceptance and must specify the exact quantity to be filled. Damage caused, for example, by inaccurate filling quantity specifications, technical defects, contaminated filling equipment or incorrect operation of the customer's filling, take over or storage equipment shall only be compensated in case of our liability pursuant to § 9.
§ 8 Liability for Defects
(1) Warranty claims of the customer due to defects require that the customer has properly fulfilled his obligations to inspect and provide notification of defects in accordance with § 377 HGB (German Commercial Code), which also apply accordingly to contracts for works. In the case of delivery of loose goods in container vehicles, a sample must be taken at the latest during unloading, and before the attachment of the customer's take over connector. All goods intended for installation or other further processing must be inspected instantaneously before processing. Our liability for the defect which was not notified or not notified in time or not notified properly is excluded, if the customer fails to conduct proper inspection and/or to properly notify of defects.
(2) In the case of apportioned contracts, the legal consequences of a notification of defects shall only apply to the delivery specifically objected to, without affecting the obligation to accept the remaining goods.
(3) The statutory provisions shall apply to the customer's rights in the event of quality defects and defects of title, unless otherwise provided below. The special statutory regulations in the case of final delivery of the goods to a consumer remain unaffected.
(4) Subject to § 9, claims for supplier recourse pursuant to §§ 445a, 445b BGB shall be excluded, if the defective goods have been further processed by the customer or another entrepreneur, e.g. by installation in another product.
(5) If the delivered goods are defective, we are entitled to initially choose whether we provide subsequent performance by rectifying the defect (rectification of defects) or by delivering a defect- free item (replacement delivery), unless the respective type of subsequent performance is impossible or disproportionate.
(6) We are entitled to make the subsequent performance subject to payment of the renumeration due by the customer. However, the customer is entitled to retain a reasonable part of the remuneration in relation to the defect. In case of doubt, the amount required for rectifying the defect shall be deemed reasonable.
(7) The customer shall grant us the time and opportunity required for the subsequent performance owed, in particular hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: dismantling and installation costs), if a defect is actually present. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request for the removal of the defect (in particular testing and transport costs), unless the nonexistence of a defect was not recognizable to the customer.
§ 9 Liability
(1) Unless otherwise stated in these GTC, we shall be liable for any breach of contractual and non- contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages - regardless of legal grounds - within the scope of fault-based liability in the case of intent and gross negligence. In the case of ordinary negligence, we shall be liable, subject to a milder scale of liability according to statutory provisions (e.g. for care in our own affairs), only a) for damages arising from injury to life, body or health, b) for damages arising from the not insignificant breach of an essential contractual obligation (obligation, the fulfilment thereof is fundamentally required for the proper execution of the contract and on the observance of which the consumer regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically incurred damage.
(3) The limitations of liability resulting from No. 2 shall also apply in the event of breaches of duty by and in favor of persons whose fault will be attributed to our scope of responsibility according to statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods as well as for claims of the customer under the ProdHaftG (Product Liability Act).
(4) The customer may only withdraw from or terminate the contract, due to a breach of duty which does not consist in a defect, if we are responsible for the breach of duty. An unrestricted right of termination by the customer (in particular according to §§ 648 or 620 ff. BGB) is excluded.
(1) Notwithstanding §§ 438 subs. 1 no. 3, 634a subs. 1 no. 1 and 3 BGB (German Civil Code), the general limitation period for claims for quality defects is one year from delivery. If acceptance has been agreed or is provided for by law, the limitation period shall commence upon acceptance. Special statutory regulations on the statute of limitations (in particular § 438 subs. 1 no. 1, subs. 3, 634a subs. 3 BGB) remain unaffected.
(2) The above limitation periods shall also apply to contractual and non-contractual claims for damages of the customer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages of the customer according to § 9 no. 2 as well as according to the ProdHaftG (Product Liability Act), shall be subject to the statutory limitation periods, exclusively.
§ 11 Payment; Offsetting; Retention
(1) The remuneration is due immediately and payable within 14 days at the latest from the date of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation. As regards the occurrence and consequences of default with payment, the statutory regulations shall apply.
(2) If, after conclusion of the contract, justified doubts regarding the customer's ability to pay arise (e.g. due to the filing of insolvency proceedings), we are entitled to refuse our performance until the customer either pays the remuneration or provides appropriate security and only if these performances are not subject to avoidance. We may demand the return of goods already delivered and collect them from the customer. After unsuccessful expiry of a reasonable period of time set by us for payment or provision of a security, we shall be entitled to withdraw from the contract.
(3) If the customer discontinues his payments or if an application is made for the initiation of insolvency proceedings on his assets, all our outstanding claims against the customer arising from the business relationship shall become due immediately. At the same time, all discounts and other benefits shall forfeit.
(4) The customer shall only be entitled to rights of retention or set-off if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship. In the event of defects of the delivery, the customer's counterclaims shall remain unaffected.
§ 12 Retention of Title
(1) We reserve title of ownership of the delivered goods until satisfaction of all accounts receivable from the business relationship with the customer or until settlement of all outstanding current account balances. In the case of a current account relationship, the reservation refers to the acknowledged balance. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to demand the return of the goods on the basis of the reservation of title. If we take back the goods, this shall constitute a withdrawal from the contract, provided that the legal requirements are met. After taking back the goods, we shall be entitled to sell them; the proceeds of such sale shall be set off against the customer's liabilities – subject to a deduction of reasonable costs of sale.
(2) The customer is obliged to treat the goods with care and to store them protected against spoilage; in particular, he is obliged to insure them adequately at his own expense against fire, water and theft damage at replacement value. The customer assigns to us in advance his claims arising from the insurance contracts and relating to the reserved goods; we accept the assignment. If maintenance and inspection work is necessary, the customer must exercise such work in good time at his own expense.
(3) The goods subject to retention of title may not be pledged to third parties or assigned by way of security before the secured claims have been satisfied in full. In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not capable to reimburse us for the court and/or out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer is entitled to resell and/or process the goods in the ordinary course of business. The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If, in the event of processing, integrating or connecting with goods of third parties, the third party’s right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, integrated or connected goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title. The customer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product, in total or in the amount of our possible co-ownership share in accordance with the preceding subsection. We accept the assignment. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. We undertake, however, not to collect the claim as long as the customer meets his payment obligations from the proceeds received, does not default on payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for their collection, hands over the relevant documents and informs his debtors (third parties) of the assignment. If the notification is not made immediately, we are entitled to notify the debtors of the assignment. In such cases, the customer must refrain from collecting the debt.
(5) The customer shall keep the sole or co- ownership thereby created in safe custody for us.
§ 13 Place of Jurisdiction, Applicable Law, Miscellaneous
(1) The laws of the Federal Republic of Germany shall apply to these GTC and the contractual relationship between us and the customer, excluding German International Private Law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the customer is a merchant as defined in the HGB (German Commercial Code), a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office. The same applies if the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). In all cases, however, we are also entitled to file an action at the place of performance or success of the delivery obligation in accordance with these GTC or a prior individual agreement or at the customer's general place of jurisdiction. Prevailing statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
(3) The English version of these Terms and Conditions has been prepared for information purposes only. In the event of contradictions, only the German version shall apply.
Status: March 2020
