General Terms and Conditions of Sale – EW Nutrition GmbH:
1.1 Our Terms and Conditions of Sale and Delivery apply exclusively; Terms and Conditions of Sale and Delivery; we shall not acknowledge any opposing or deviating conditions of the orderer, unless we have agreed to the validity thereof in writing. Our Terms and Conditions of Sale and Delivery shall also apply when upon knowledge of contrary Terms and Conditions of Sale and Delivery or conditions deviating from ours of the orderer, perform the delivery unconditionally.
1.2 All agreements concluded between ourselves and the orderer for the purpose of the performance of a delivery agreement, are to be imperatively recorded in this contract.
1.3 Our Terms and Conditions of Sale and Delivery shall also apply to all future transactions with the orderer.
2.1 If the order qualifies as an offer under the terms of § 155 BGB (German Civil Code), we can accept this within two weeks.
2.2 Our offers are subject to change and non-binding. All contracts are realised upon receipt of our written order confirmation or with the performance of delivery at the latest. The written order confirmation is decisive for the scope of delivery. Additional agreements and amendments implicitly require our written confirmation.
3.1 Prices apply ex works, unless an extra agreement is made, excluding all duties subject to public law. Prices are subject to statutory VAT and other mandatory charges.
3.2 Unless any other written agreement is concluded, payments are to be made cash without deductions or charges to our payment office. In the event that the orderer delays payment, we have the right to charge default interest at 5% above the basic interest rate p.a. If we are in a position to prove greater damage caused by delay, we are entitled to assert these. The orderer has however the right to prove that we have suffered no or a lesser damage through the delay in payment.
3.3 The orderer is only entitled to offset payments if its counterclaim has been legally determined, is undisputed or acknowledged on our part. The orderer may only exercise a right of retention insofar as the counter-claim is based on the same contractual relationship and also legally determined undisputed or acknowledged on our part.
4.1 The term of delivery does not commence prior to the issue of documents, permits, and approvals by the orderer and receipt of the agreed prepayment. For items delivered on demand; we must receive the release order at least 7 days prior to the required delivery date.
4.2 The delivery term is deemed complied with, when the delivery has left our works by expiry or the readiness for dispatch has been issued. The delivery term is reasonably extended by measures in the scope of industrial action, in particular strikes and lock-outs and on the occurrence of unforeseen disturbances, outside our control, insofar as such hindrances have a proven significant influence on the delivery. This shall also apply, when such circumstances occur to under-deliveries. The aforementioned circumstances are then beyond our control, should they occur during an already existing delay. We shall inform the ordered as soon as possible at the beginning and end in significant cases.
4.3 In the event that the orderer sets us an appropriate period of grace while threatening to otherwise exercise the right of refusal, he is entitled subsequent to the unsuccessful expiry of this period of grace, to withdraw from the contract. The orderer is only entitled to claim for damages on grounds of non-fulfilment to the amount of the foreseeable damage, where the delay arises on grounds of malice or gross negligence. Otherwise, total liability for damages is limited to a maximum 5 % of the value of the part of the full delivery which cannot be used promptly or as according to contract due to the delay.
4.4 If delivery is delayed on request of the orderer, the costs for storage calculated from the day following the date of notification of the readiness for shipment shall be charged to the orderer. We have the right, following the setting and unsuccessful expiry of an appropriate deadline to otherwise dispose of the delivery object and to supply the orderer with an appropriately extended delivery term. We are also entitled to charge for any losses we incur including any additional expenses. In this event, the risk of accidental damage or theft of the delivery object transfers to the orderer at the moment this is in default of acceptance. 4.5 Fulfilment of the orderer ‘s contractual duties are subject to adherence to the delivery date.
4.6 If we are released from delivery in the event of a force majeure under the terms of the aforementioned provision and delivery is performed nevertheless following disappearance of the obstruction, we are entitled to charge any additional costs for replacement acquisition of raw materials and/or deviate from the composite and the guaranteed value, insofar as the obstruction causes this to be necessary and the interests of the orderer are only insignificantly affected.
4.7 Samples and models only serve the non-binding demonstration and orientation purposes. They illustrate the approximate character and type of goods. All analysis data, also insofar minimum and maximum values are given, apply as approximate values. Goods originating abroad exclusively apply under the descriptions and conditions usual in international commerce. We cannot exclude variations in weight of up to 5 % more or less. The ascertained weight at the place of shipment is decisive.
4.8 Bills of exchange and cheques will only be accepted on account of performance; any costs incurred shall be assumed by the orderer and are payable on the transfer of the bill of exchange or cheque.
4.9 In the event of legitimate doubts as to the orderer’s ability to pay and in particular payment
arrears, we may, subject to further claims, revoke granted payment dates and declare our demands including any notes receivable immediately payable. We may also demand payment in advance or the issuing of securities on further deliveries. Agreed open accounts may be dissolved with immediate effect. In this event, the orderer no longer owes the account balance, but payment for individual deliveries.
4.10 Otherwise, risk is transferred to the orderer on the dispatch of the delivery at the latest and also when partial deliveries are made or we have assumed other services e.g. shipping costs or delivery. If so requested by the orderer, shipments will be insured against theft, breakage, transport, fire and water damage as well as other insurable risks.
4.11 The delivery object is, also when insignificant defects are exhibited, to be accepted by the orderer without prejudicing additional rights.
4.12 Partial deliveries are permitted. Additional shipping costs for requested or necessary alternative forms of delivery are at the orderer’s expense.
5.1 The orderer’s warranty rights require that this has correctly fulfilled the statutory obligations of examination and reporting of defects. Deliveries are to be examined within two hours of receipt. Any defects are to be reported within 24 hours. In the event of hidden defects, this begins on their discovery.
5.2 We do not assume liability that the delivery is suitable for the purpose intended by the orderer. In the event of a defect being reported, at least 5 kg are to be taken as a sample and provided for our examination. In the event of a return delivery being impossible, the provision of an expert report of a publicly appointed and sworn appraiser concerning the grounds, scope and quantity of the defect is required. Acknowledged complaints will be paid in kind or cash, at our discretion, up to the amount of the returned quantity. For significantly third-party products, our liability is limited to the assignment of the liability claim to which we are entitled vis-à-vis the supplier of the third-party product. In the event of official inspections of goods which we have supplied, we are to be given the opportunity of cross-checking in all cases, through immediate notification and the provision of original samples for cross-checking.
5.3 The warranty period also applies to claims for the replacement of consequential harm caused by defect, insofar as no claims are asserted for action in short.
5.4 We shall not assume warranty for damage caused by unsuitable or improper use, incorrect or negligent handling of unsuitable operating fluid, chemical, electrochemical or electrical influence on the delivery object, insofar as it does not arise for grounds for which we are responsible.
5.5 In the event of a replacement delivery, we shall assume the costs of the replacement delivery including delivery, insofar as complaints are legitimate. Otherwise the orderer shall assume these costs.
5.6 Further claims on the part of the orderer, in particular a claim to compensation for damage not caused to the delivery object itself are hereby excluded. We shall particularly not assume liability for loss of profit or other financial loss incurred by the orderer. The aforementioned warranty disclaimer shall not apply insofar as the cause of damage arises on grounds of malice or gross negligence. It shall also not apply when the orderer asserts non-fulfilment on the grounds of a lack of a warranted characteristic. In the event that we negligently breach a duty significant to this contract, our obligation to provide compensation for damage to property or persons is limited to the cover amount of our product liability insurance.
5.7 Insofar as our liability is excluded or restricted in the aforementioned, this shall also apply to personal liability of our employees, workers, representatives and agents.
5.8 Insofar as we are not the manufacturers of the delivered item, claims against us, without prejudice of the aforementioned provisions, shall only be asserted to the extent to which the manufacturer is liable to us.
5.9 The aforementioned provisions shall apply correspondingly, when on grounds for which we are responsible, the delivery item cannot be used for its contractual purpose by the orderer due to neglected or incorrect performance of proposals and advising and other additional duties, particularly instruction for the use of the item prior or subsequent to conclusion of contract.
5.10 We assume unrestricted liability for damage arising through death, bodily injury or endangerment to health, on the grounds of a negligent breach of duty on our part or a malicious or negligent breach of duty on the part of our legal representatives or agents.
6.1 The orderer may withdraw from the contract when we are conclusively unable to provide the service in its entirety prior to the passing of risk. The orderer may also withdraw from the contract when on the ordering of items of the same type, the performance of part of the delivery is not possible on the grounds of quantity and he has a legitimate ground to reject a partial delivery. If this is not the case the orderer can reduce the counter-performance correspondingly.
6.2 If a default under the terms of the aforementioned delivery conditions exists and the orderer grants us an appropriate period of grace, with the express declaration that following the expiry of this period of grace, he shall exercise the right to reject the delivery and the deadline is not complied with, the orderer is entitled to withdraw from the contract.
6.3 If the frustration should arise during the acceptance delay or through the fault of the orderer, this remains obligated to provide counter-performance.
6.4 The orderer also has a right to withdraw should we allow on grounds for which we are responsible, the unsuccessful expiry of a reasonable subsequent delivery term we have been set on a replacement delivery on the grounds of a defect for which we are responsible under the terms of the conditions of delivery. The orderer‘s right to withdraw also exists in other cases in which a replacement delivery fails on our part.
6.5 All further claims on the part of the orderer are hereby excluded, in particularly compensation for damage in any form, and particularly for damage which does not occur to the delivery item itself. This exclusion of liability is restricted in the same form as described in the aforementioned under Clause 5.
7.1 Any returnable containers entrusted to the orderer (e.g. containers, packing drums, barrels, boxing, pallets etc.) remain exclusively our property. The orderer shall return these to us following use for the purpose for which they are provided immediately and in a clean and undamaged condition. Otherwise we are entitled to charge the orderer for any cleaning or replacement costs.
7.2 The delivery item remains our property until all payments deriving from the present and future business relationship has been settled in full. In the event that the orderer should act in breach of contract, in particular delayed payment, we are entitled to reclaim the delivered item.
Our reclamation of the delivery item, does not represent a withdrawal from the contract unless we have expressly stated so in writing. In the seizure of the delivery item always represents a withdrawal from the contract on our part. We are entitled to sell the delivery item following the reclamation thereof. The proceeds from the sale, with the deduction of a reasonable selling fee, shall be offset against the orderer ‘s obligations.
7.3 The orderer has an obligation to treat the delivery item with care. The orderer is in particular obligated to adequately insure this to the value of the new price, at its own cost against fire, water and theft damage, insofar as it is not intended for immediate use.
7.4 The orderer shall inform us in writing and without delay in the event of seizure by a third party or similar encroachment. In the event that the third party is not in a position to refund us the court and litigation costs to defend our right of title, the orderer shall be liable for any incurred loss.
7.5 The orderer is entitled to resell the delivery item in the usual course of business, however it hereby assigns all claims to the amount of the total invoice sum including statutory VAT to us, which it gains through the resale from the purchaser or third party and independent of whether the delivery item is resold with or without further processing. The orderer is also empowered to collect this demand also following assignment. This does not prejudice our power to collect the demand ourselves. However, we bind ourselves not to collect this demand, insofar as the orderer fulfils its payment obligations towards us, is not in default of payment in and in particular no insolvency proceedings or composition proceedings have been filed or stoppage of payment. If this is the case, we can demand that the orderer informs us of the assigned claims and the debtor, all information necessary for collection, provides the accompanying documentation and inform the debtor (third party) of the assignment of debt.
7.6 The processing of the delivery object by the orderer is always performed on our behalf.
If the delivery item is combined with other objects which are not our property, we purchase joint ownership of the new object in proportion to the value of the delivery item to the other mixed items with which it has been combined at the time it is combined. Otherwise the same shall apply to the new object created from the combination as to the conditionally delivered item. The orderer safeguards the new object for us.
7.7 We undertake to release securities to which we are entitled upon the orderer‘s request insofar as the value of our securities exceeds the demands to be secured by more than 20%. The selection of the securities for release is at our discretion. The reference value is the corresponding purchase price.
8 An invoice or a bank statement applies as acknowledged, unless revoked in writing within one week. Our receipt determines the adherence of this deadline.
9.1 If the orderer is a registered merchant, our domicile is the legal venue. However, we also have the right to bring an action at its legal venue.
9.2 Insofar as the written agreement does not provide otherwise, our domicile is the place of performance. The business relationship and the entire legal relationship with us are exclusively subject to the law of the German Federal Republic with the exclusion of international law.
9.3 In the event that a provision of these Terms and Conditions should be or become invalid or inapplicable in the scope of other agreements, the remaining provisions or agreements shall hereby remain unaffected. All earlier versions of the Terms and Conditions of Delivery and Payment are no longer applicable.