§ 1 Validity, Form
1. All deliveries, services and offers of Ebbe & Food GmbH (hereinafter also referred to as "Seller") shall be made exclusively on the basis of these General Terms and Conditions of Sale and Delivery (hereinafter also referred to as "GTSD"). The GCS shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
2. The GCS shall be an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as "Buyer") for the goods, deliveries or services offered by the Seller. The GCS apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as "Goods"), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers.
3. Unless otherwise agreed, the GCS in the version valid at the time of the Buyer's order or, in any case, in the version last communicated to the Buyer in text form (e.g. letter, e-mail, fax) shall also apply as a framework agreement for similar future contracts without the Seller having to refer to them again in each individual case and without the Seller having to make the GCS available to the Buyer again in each case.
4. Terms and conditions of the Buyer or third parties shall not apply, even if the Seller does not separately object to their application in an individual case. Unless the Seller has expressly agreed to them in writing in the individual case. Even if the Seller refers to a letter containing or referring to the terms and conditions of the Buyer or a third party, this shall not constitute an agreement to the validity of those terms and conditions. §2 Offer, Conclusion of Contract, Prohibition of Assignment and Retention of Title to Contractual Documents
1. All offers of the Seller shall be subject to change and non-binding with regard to price, quantity, delivery period and delivery possibility, unless they are expressly marked as binding or contain a specific acceptance period.
2. The written commercial confirmation letter of the Seller (hereinafter also the "Confirmation Letter"), including these GCS, shall be solely authoritative for the legal relationship between the Seller and the Buyer. The confirmation shall be made exclusively in text form (e.g. letter, e-mail, fax). The Seller's Confirmation Letter shall fully reflect all agreements between the Contracting Parties regarding the Goods. Verbal promises of the seller before the conclusion of the respective contract are legally non-binding.
3. Rights from purchase and delivery contracts with the seller may not be assigned by the buyer, unless the seller agrees to such an assignment in writing or text form (e.g. letter, e-mail, fax) in advance.
4. Supplements and amendments to the agreements made must be made in writing or text form (e.g. letter, e-mail, fax) in order to be effective.
5. The seller reserves the right of ownership of all offers and cost estimates made by him as well as samples made available to the buyer. The Buyer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them without the express consent of the Seller. Upon the Seller's request, the Buyer shall return these items to the Seller in their entirety and destroy any copies made if they are no longer required by the Seller in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of usual data backup.
§ 3 Prices and payment
1. The prices shall apply to the scope of services and deliveries specified in the respective confirmation letter. Additional or special services will be charged separately. Prices are quoted in EURO EXW (warehouse) according to Incoterms® 2010 plus statutory value added tax, in the case of export deliveries customs duty as well as fees and other public charges at the time of delivery, unless otherwise agreed in writing. 2.
2. In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any
Costs of any transport insurance requested by the Buyer (see also § 5 para. 4 below). 3.
3. Invoices shall be checked by the Buyer without delay; invoice amounts shall be paid immediately and without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. Payment by check is excluded, unless it is agreed upon separately in the individual case.
4. Down payments and advance payments are to be made plus the legally applicable VAT. The Buyer shall be liable in the amount of the statutory value added tax in the event of non-invoicing of the same in the event of de facto domestic delivery within the meaning of the German Turnover Tax Act (UStG), in particular in the event of pick-up in the event of subsequent failure to provide the Seller with the required export/transfer certificates.
5. If the Buyer fails to make payment when due, the statutory provisions shall apply. The outstanding amounts shall bear interest from the due date at 9% p.a. above the respective base interest rate; this shall not affect the right to claim higher interest and further damages in the event of default.
6. Offsetting against counterclaims of the Buyer or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or have been finally determined by a court of law.
7. The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known to the Seller which are likely to substantially reduce the creditworthiness of the Buyer and as a result of which payment of the Seller's outstanding claims by the Buyer under the respective contractual relationship is jeopardized (e.g. by an application for the institution of insolvency proceedings). In such a case, the Seller shall also be entitled to withdraw from the contract within the scope of the statutory provisions (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), the Seller may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 4 Delivery and delivery time
1. Deliveries shall be made ex works (warehouse) in accordance with "EXW" as per Incoterms® 2010, which shall also be the place of performance for the delivery and any subsequent performance. At the Buyer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, the Seller shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself. 2.
2. Deadlines and dates for deliveries and services promised by the Seller shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed. Should there be any deviations in the periods and dates, the Seller undertakes to inform the Buyer thereof without delay. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport.
3. The Seller may - without prejudice to its rights arising from default on the part of the Buyer - demand from the Buyer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Buyer fails to meet its contractual obligations towards the Seller.
4. The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure (e.g. war, terrorism, riot, fire or other) or other events which were not foreseeable at the time the contract was concluded (e.g. disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the absence, incorrect or untimely delivery by suppliers), for which the seller is not responsible. If such events make it substantially more difficult or impossible for the Seller to provide the delivery or service and if the impediment is not only of temporary duration, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. If the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he shall be entitled to withdraw from the contract by means of an immediate written declaration to the Seller.
5. The Seller shall only be obliged to make partial deliveries if these have been expressly agreed and the partial delivery is usable for the Buyer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured, and the Buyer does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear these costs).
6. If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller, for whatever reason, the Seller's liability for damages shall be limited in accordance with § 8 of these GCS.
7. The Buyer undertakes to comply with the relevant national and international export regulations.
§ 5 Shipping, Packaging, Transfer of Risk, Acceptance
1. The method of shipment and the packaging of the goods shall be at the Seller's discretion, unless otherwise agreed in writing.
2. The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest when the goods are handed over to the Buyer or, in the case of a sale by delivery to a place other than the place of performance, when the goods are handed over to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the Seller has assumed other services (e.g. freight or shipping). If the shipment or the handover is delayed due to a circumstance the cause of which lies with the Buyer, the risk shall pass to the Buyer from the day on which the goods are ready for shipment and the Seller has notified the Buyer thereof, irrespective of the agreed delivery term.
3. If the Buyer is in default of acceptance, fails to cooperate or if delivery is delayed for other reasons for which the Buyer is responsible, the Seller shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, the Seller shall charge a lump sum compensation in the amount of 0.5% of the (net) value of the goods per calendar week (hereinafter the "Lump Sum"), starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for shipment. The proof of a higher damage and possible legal claims of the Seller (in particular compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be set off against further monetary claims. The Buyer shall be entitled to prove that the Seller has not suffered any damage at all or that the damage is significantly less than the lump sum.
4. The shipment shall be insured by the seller against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the buyer and at the buyer's expense.
§ 6 Goods not in conformity with the contract, obligations of the buyer
1. The quality of the goods shall be deemed to be exclusively the quality described in the Seller's specifications. This includes all product descriptions which are the subject of the individual contract or which have been made public by the Seller (in particular in catalogs or on its Internet homepage). If the quality has not been agreed upon, it is to be judged according to the legal regulation whether a defect exists or not (§ 434 Abs. 1 S. 2 und 3 BGB). The seller assumes no liability for public statements made by the producer or other third parties (e.g. advertising statements).
2. Possible technical application advice by the seller verbally, in writing or by means of tests shall be given to the best of his knowledge, but shall only be regarded as non-binding advice. This does not release the Buyer from its own tests to determine the suitability of the goods for the intended actual use. The use and processing of the goods are beyond the control of the Seller and are therefore the sole responsibility of the Buyer. 3.
3. The delivered goods shall be carefully inspected immediately after delivery to the Buyer or to the third party designated by the Buyer and obvious defects shall be notified in writing without delay, however, no later than after one day. With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful inspection, the delivered goods shall be deemed to have been approved by the Buyer if the Buyer accepts the goods. With regard to other defects, the goods shall be deemed to have been approved by the Buyer if the notice of defect is not received by the Seller without undue delay, at the latest within three working days after the point in time at which the defect became apparent; if the defect was already apparent to the Buyer at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defect. If a condition of the goods contrary to the contract becomes apparent, the Buyer may not remove the goods or have them removed from the place of inspection before the condition has been established by an expert opinion in accordance with the Rules of Procedure for Experts or otherwise in a binding manner; the place of inspection shall be the place where the Buyer had established the condition of the goods by inspection prior to the complaint, otherwise the place where the Buyer should have inspected the goods at the latest. If the Buyer fails to comply with this prohibition, the goods shall be deemed to have been approved.
4. If the buyer has resold the goods and moved them accordingly, the goods shall be deemed to have been approved, unless the condition contrary to the contract could not be detected during proper inspection. Hidden defects can only be claimed as long as the seller is able to carry out an inspection. Failure to give notice of defects in due time shall exclude any claims of the Buyer in case of defects. The Seller shall be entitled to demand a sample of the goods complained about free of charge. At the Seller's request, any rejected goods shall be returned to the Seller freight prepaid. In the event of a justified complaint, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the goods are located at a place other than the place of delivery by the Seller.
§ 7 Goods not in conformity with the contract, rights of the buyer
1. If the goods are not in conformity with the contract at the time of transfer of risk to the Buyer or if a case exists in accordance with Clause 3 below, the Buyer may demand rescission of the purchase contract if the reduced value is more than 10% of the market price of the goods in conformity with the contract applicable on the relevant date. The non-conforming goods shall be returned to the Seller at this market price. § Section 346 (3) No. 3 BGB shall apply mutatis mutandis. In addition, the Buyer may demand compensation for any necessary use.
2. the buyer can require as Nacherfüllung after its choice the removal of the lack or the supply of a faultless thing in accordance with § 439 BGB. The Buyer may set the Seller a reasonable deadline for subsequent performance. If the deadline has expired, he may demand rescission of the purchase contract in accordance with item 1 above if the subsequent performance has not been effected in time.
3. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Purchaser may withdraw from the contract or reduce the purchase price accordingly.
4. The relevant date within the meaning of item 1 above shall be the date on which the Purchaser has notified the Seller that the goods have not failed in accordance with the contract. If an expert opinion is drawn up in accordance with the Rules of Procedure for Experts, the date on which the expert(s) drew up the expert opinion shall be decisive.
5. If a defect is due to the Seller's fault, the Buyer may claim damages under the conditions set out in § 8.
6. In the event of defects in delivered items or goods purchased from other manufacturers or suppliers which the Seller cannot remedy for factual reasons, the Seller shall, at its option, assert its warranty claims against the manufacturers and/or suppliers for the account of the Buyer or assign them to the Buyer. In the event of such defects, warranty claims against the Seller shall only exist under the other conditions and in accordance with these GCS if the legal enforcement of the aforementioned claims against the respective manufacturer and/or supplier was unsuccessful or is futile, for example due to insolvency. During the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Buyer against the Seller shall be suspended. 7.
7. The warranty period shall be one year from delivery of the goods. This period shall not apply to claims for damages by the Buyer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents or from § 478 of the German Civil Code (BGB), each of which shall become statute-barred in accordance with the statutory provisions. Likewise, the limitation of the statutory warranty periods shall not apply to claims of the Buyer under data protection law.
8. The warranty shall not apply if the Buyer modifies or further processes the goods or has them modified or further processed by third parties without the Seller's consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs of remedying the defect resulting from the modification.
§ 8 Liability for damages due to fault
1. The Seller's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort (hereinafter collectively referred to as the "Statutory Damages") shall be limited in accordance with the provisions of this § 8, insofar as the Seller is at fault in each case.
2. of this § 8 limited. Any statutory claims for damages exceeding the rights of the Buyer set forth in § 7 above shall be excluded, unless the Seller has fraudulently concealed the defect or has assumed a guarantee for the quality of the goods. The legal claims in the case of injury to life, limb, health or gross negligence or a consumer goods purchase of a consumer within the European Union or under the Product Liability Act remain unaffected. Also excluded from the limitation of liability are claims of the Buyer under data protection law.
3. The Seller shall also not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations.
4. Insofar as the Seller is liable for damages on the merits, such liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the goods shall also only be compensable insofar as such damage is typically to be expected when the goods are used as intended.
5. The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the Seller.
6. Insofar as the Seller provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of services owed by the Seller, this shall be provided free of charge and to the exclusion of any liability.
§ 9 Retention of title
1. The goods delivered by the Seller to the Buyer shall remain the property of the Seller until all secured claims have been paid in full. The goods as well as the goods covered by the retention of title taking their place in accordance with the following provisions shall hereinafter be referred to as "goods subject to retention of title".
2. The Buyer shall keep the Reserved Goods in safe custody for the Seller free of charge.
3. the buyer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the case of realization occurs in accordance with § 9 para. 7 below; pledging and transfer of ownership by way of security by the buyer shall not be permitted.
4. If the reserved goods are processed or mixed by the Buyer, it is agreed that the processing shall be carried out in the name and for the account of the Seller as manufacturer and that the Seller shall acquire direct ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on the part of the Seller, the Buyer hereby assigns its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to the Seller by way of security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Buyer shall, insofar as the main item belongs to it, transfer to the Seller pro rata co-ownership of the uniform item in the ratio specified in sentence 1.
5. In the event of resale of the reserved goods, the Buyer hereby assigns to the Seller by way of security the claim against the purchaser arising therefrom - in the event of co-ownership of the Seller in the reserved goods, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorizes the Buyer to collect the claims assigned to the Seller in its own name. The Seller may revoke this collection authorization only in the event of realization. 6.
6. If third parties seize the reserved goods, in particular by way of attachment, the Buyer shall immediately inform them of the Seller's ownership and notify the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable to the Seller for such costs. 7.
7. The Seller shall release the goods subject to retention of title and the items or claims replacing them at the Buyer's request if their value exceeds the amount of the secured claims by more than 10%. The choice of the items to be released thereafter shall lie with the Seller. 8.
8. If the Seller withdraws from the contract in the event of a breach of contract by the Buyer - in particular default of payment - the Seller shall be entitled to demand the return of the reserved goods.
§ 10 Final provisions
1. The Terms and Conditions of the Waren-Verein der Hamburger Börse e.V., Hamburg, as amended from time to time (hereinafter also referred to as the "GTCS") shall apply to these GTCS and the contractual relations between the Seller and the Buyer to the exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). In the event of any discrepancies or contradictions between these GCS and the GCS, the GCS shall prevail over the provisions of the GCS.
2. Amendments and supplements to these GCS must be made in writing in order to be effective; this shall also apply to the waiver of the written form requirement itself. Transmission by telecommunication, in particular by telefax or by e-mail, shall be sufficient to comply with the written form requirement, provided that a copy of the signed declaration is sent.
3. If the Buyer is a merchant or a legal entity under public law or a special fund under public law, legal disputes - also of an international nature - shall be decided primarily by the arbitration court of the Waren-Verein der Hamburger Börse e.V., Hamburg ("Waren-Verein Arbitration"). The Arbitration Rules of the Waren-Verein der Hamburger Börse e.V., Hamburg (hereinafter also referred to as "Arbitration Rules") shall apply in their respective valid version. For such disputes which are reserved to an ordinary court, Hamburg shall be the exclusive place of jurisdiction. 4.
4. The Seller is obliged to provide the Buyer with a current version of the WVB and/or the SchiedsGO free of charge upon the Buyer's request.
5. The Seller reserves the right, at its option, to bring the dispute before a court of law. The exclusive place of jurisdiction agreed for this case shall be Hamburg.
6. For actions against the Seller, the Buyer must first give the Seller the opportunity to exercise its right of choice in accordance with item 5 above. At the Buyer's request, the Seller shall exercise its right of choice in advance. If the Seller does not exercise his right of choice or does not do so within 7 (seven) days after receipt of the Buyer's request by written declaration (letter, fax or e-mail), the dispute shall be settled by the Arbitration Court in accordance with Clause 1, sentence 1 in conjunction with Clause 3 above. The dispute shall be decided by the Arbitration Court of the Waren-Verein der Hamburger Börse e.V. (Hamburg Stock Exchange Commodity Association). 7.
7. Customary clauses for deliveries of goods shall be interpreted in accordance with Incoterms® 2010.
8. The headings of the individual paragraphs of these GCS are for convenience only and shall not be taken into account in the interpretation of these GCS or the respective contract.
9. Legally relevant declarations and notifications of the Buyer with regard to the respective contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proofs, in particular in case of doubts about the legitimacy of the declaring party, shall remain unaffected.
10. Should individual provisions of these GTC be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remaining provisions of the GTC. The invalid or unenforceable provision shall be replaced by the Terms and Conditions of the Waren-Verein der Hamburger Börse e.V., Hamburg. Upon request, a copy of the relevant provisions shall be handed over to the Purchaser. The purchaser expressly agrees to their validity. If these provisions cannot replace the invalid or unenforceable provisions either, the valid and enforceable statutory provision whose effect comes closest to the economic objective pursued by the ALV with the invalid or unenforceable provision shall take effect. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete. 11.
11. the buyer agrees that the seller collects, stores and processes customer data from the respective contractual relationship in accordance with Art. 6 para. 1 of the EU Data Protection Regulation for the purpose of establishing and implementing the underlying contractual relationship in accordance with the statutory provisions. The seller reserves the right to transfer the customer data to third parties (e.g. forwarding agents or insurance companies) as far as necessary for the fulfillment of the contract and as far as legally permissible.
Hamburg, July 1, 2021