1. Scope of Application of the Terms and Conditions
1.1 These General Terms and Conditions of Sale and Delivery apply to all business transactions and deliveries of Hafen-Mühlen-Werke GmbH (hereinafter referred to as “we” or “us”) to its customers (hereinafter referred to as the “Buyer”), insofar as they are entrepreneurs within the meaning of Section 14 (1) of the German Civil Code (BGB).
1.2 These General Terms and Conditions of Sale and Delivery apply exclusively. Conflicting or deviating general terms and conditions of the Buyer shall not apply unless we have expressly agreed to their validity in writing. These General Terms and Conditions of Sale and Delivery shall also apply if we carry out the delivery without reservation in full knowledge of conflicting or deviating terms and conditions of the Buyer. If the delivery of specific goods is made subject to individually negotiated conditions, these General Terms and Conditions of Sale and Delivery shall apply in addition, insofar as they do not conflict with the individually agreed conditions. These General Terms and Conditions of Sale and Delivery shall also apply to all future business transactions and deliveries between us and the Buyer.
2. Offers, Prices, Ancillary Agreements
2.1 Our offers are non-binding. A contract shall only become binding upon our written order confirmation or upon immediate delivery.
2.2 Our prices are net prices for goods and are ex warehouse Bremen (EXW warehouse Gnarrenburg — INCOTERMS® 2020), unless otherwise stated in the order confirmation; they do not include any costs arising from the possible return of packaging materials. Our price calculation is based on raw material prices and wages applicable at the time of conclusion of the contract. If increases in raw material prices and/or wages result in a change of more than 2% in our price calculation, we shall be entitled to withdraw from the contract.
2.3 Each conclusion of a contract and each delivery is subject to correct and timely self-supply by our suppliers, unless we are responsible for the failure or delay in supply. In the event of the risk of incorrect or delayed supply by our suppliers, we shall be entitled to enter into comparable hedging transactions. The goods procured by such hedging transactions shall replace the contractually owed goods insofar as they do not differ materially in terms of quantity, type, quality, weight, and price from the agreed goods. Absolute deviations of ±20% shall be deemed material deviations. The right of contestation pursuant to Section 318 BGB is excluded with regard to hedging purchases.
3. Payments, Creditworthiness
3.1 The agreed payment terms as set out in our order confirmation shall be decisive.
3.2 If the Buyer is in default of payment, we shall be entitled to charge default interest at a rate of eight (8) percentage points above the base interest rate of the European Central Bank. We reserve the right to assert further damages. The Buyer shall only be entitled to rights of set-off if its counterclaims have been legally established, are undisputed, or have been acknowledged by us. The Buyer shall not be entitled to any right of retention due to disputed counterclaims.
3.3 In the case of bank transfers, the customer number and invoice number must be stated. Any delays resulting from failure to do so shall be borne by the Buyer.
3.4 Checks shall only be accepted on account of performance and shall only discharge the claim after they have been cleared without reservation.
3.5 If, after conclusion of the contract but prior to provision or delivery of the goods, facts become known to us which, based on commercial judgment, give rise to justified doubts as to the Buyer’s creditworthiness, we shall be entitled to demand advance payment or security. Cash payment may be demanded in lieu of bills of exchange already accepted. Bills of exchange shall only be accepted on account of payment. Furthermore, we may declare all claims arising from the business relationship, including deferred claims, immediately due and payable. At our commercial discretion, we may also withdraw from the contract or perform outstanding deliveries or services only against advance payment or the provision of appropriate security. The same shall apply if we receive substantiated information regarding the Buyer’s financial deterioration.
4. Delivery, Transfer of Risk
4.1 Delivery and transfer of risk shall be governed by INCOTERMS® 2020 — EXW from our warehouse in Gnarrenburg, unless a different place is specified in the order confirmation. Upon transfer of risk, the Buyer shall assume all responsibilities under food law and regulatory law for the goods. We are entitled to make partial deliveries.
4.2 Delivery periods are non-binding unless we have expressly confirmed delivery dates as binding in writing in the order confirmation. If binding delivery periods are agreed in writing, they shall commence upon conclusion of the contract, but not before receipt of documents, approvals, and releases to be provided by the Buyer.
4.3 In the event of strikes, power outages, traffic congestion, flooding, fire, theft, fog, animal epidemics, blockades, official delivery bans, or official procurement bans on products for which we are not responsible, the delivery period shall be extended appropriately by the duration of the delay plus a reasonable additional organizational period.
4.4 If we are in default, the Buyer shall only be entitled to withdraw from the contract after having set us a reasonable grace period in writing, but at least four (4) weeks, with the notice that acceptance of the goods will be refused after expiry of such period. The declaration of withdrawal must be made in writing.
4.5 The Buyer is obliged to accept the ordered goods. If the Buyer is in default of this obligation, we shall be entitled to set a reasonable grace period in writing with the notice that performance of the contract will be refused after expiry of such period. In this case, we may, at our discretion, withdraw from the contract or claim damages for non-performance.
5. Quality Information, Inspection and Notification Obligations
5.1 Our information regarding the usability or quality of the goods is non-binding unless expressly agreed in writing with our order confirmation.
5.2 The goods may exhibit customary deviations in quality, weight, purity, and strength without constituting a defect. The weight determined at dispatch shall be decisive for determining the delivery weight. Weight changes caused by transportation or temperature fluctuations do not constitute a defect.
5.3 Immediately upon receipt of the goods, the Buyer shall, by suitable measures, ensure that the delivered goods are in proper condition within the meaning of Section 377 of the German Commercial Code (HGB) with regard to quantity, completeness, quality, weight, minimum shelf life, freedom from defects, and other characteristics.
5.4 Transport damage must be recorded in writing immediately upon receipt, documented photographically if possible, and reported to us without delay.
5.5 If a defect becomes apparent, the Buyer must notify us thereof without delay, but no later than within five (5) working days after transfer of risk. The notice of defects must be made in writing, at least by fax. The same applies to deviations in items and quantities as well as to hidden defects occurring within the warranty period; in the latter case, the notice of defects must be made within five (5) working days after becoming aware of the defect. Complaints after processing or onward shipment are excluded. If the goods are complained about, they must remain in the shipping containers so that the Seller can clearly verify the justification of the complaint.
5.6 The assertion of a notice of defects does not release the Buyer from the obligation to accept and pay for the goods in accordance with the contract.
6. Warranty
6.1 Warranty rights of the Buyer require that the Buyer has duly complied with its inspection and notification obligations pursuant to Sections 5.3, 5.4, and 5.5 without delay.
6.2 If our warranty obligation applies, the Buyer shall only be entitled to a reduction in price. A right of rescission is excluded. If only part of the delivered goods is defective, the right to reduction shall be limited to that part. The reduction may not be asserted by way of set-off. Claims for damages within the scope of the Buyer’s warranty rights are excluded in all cases.
7. Exclusion of Liability
7.1 Claims for damages by the Buyer against us, our vicarious agents, or third parties commissioned by us are excluded unless they are based on intent or gross negligence.
7.2 The above exclusion of liability shall not apply to claims of the Buyer arising from product liability or other liability provisions that cannot be waived by individual agreement. Furthermore, the limitation of liability shall not apply in cases of culpable breach of obligations for which we have given guarantees within the meaning of Sections 444, 639 BGB, in cases of bodily injury or damage to health attributable to us, or in the event of loss of life of the Buyer, its vicarious agents, or other third parties.
8. Retention of Title
8.1 All goods delivered by us shall remain our property until all present and future claims arising from the ongoing business relationship with the Buyer have been settled in full. In the event of payment by check, retention of title shall apply until the check has been cleared without reservation.
8.2 The Buyer is entitled to resell and process the goods delivered to it in the ordinary course of business, provided that it is not in default of payment to us. Any other disposition, such as transfer by way of security, sale by way of security, or pledging, is not permitted prior to full payment. The Buyer must notify us immediately of any third-party access to goods delivered under retention of title.
8.3 In the event of default of payment by the Buyer, we shall be entitled to repossess the goods subject to retention of title or, if applicable, to demand assignment of the Buyer’s claims for surrender against third parties. Repossession shall be effected at the proceeds obtained, but at most at the agreed sales price. Further claims for damages, in particular for lost profits, remain reserved.
9. Set-Off, Right of Retention, Prohibition of Assignment
Counterclaims shall only entitle the Buyer to set-off if they are undisputed, acknowledged by us, or have been legally established. The Buyer shall only have a right of retention with respect to claims arising from the same contractual relationship and only if such claims are undisputed, acknowledged by us, or legally established. The assignment of the Buyer’s rights requires our express consent.
10. Choice of Law, Place of Jurisdiction, Miscellaneous
10.1 All current and future business relationships between the Buyer and us shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the Hague Convention on the Formation of Contracts. If the Buyer is a merchant within the meaning of the HGB, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes shall be our registered office. However, we shall also be entitled to bring action against the Buyer at its general place of jurisdiction.
10.2 Should any provision of these terms and conditions be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes closest to the intended economic purpose.
10.3 Amendments and supplements to the contractual agreement as well as to these General Terms and Conditions of Sale and Delivery must be made in writing to be effective. The same applies to any deviation from the written form requirement.