(1) All the deliveries of Franz Kampsen GmbH & Co. KG (hereinafter “Seller”) are made on the basis of the General Conditions of Sale below. Contrary or supplementary conditions of the Buyer shall not apply, unless the Seller expressly consented to their application in writing. Seller’s General Conditions of Sale shall also exclusively apply if the Seller effects delivery to the Buyer without reservation while being aware of contrary or supplementary conditions of the Buyer.
(2) The General Conditions of Sale shall exclusively apply vis-à-vis entrepreneurs within the meaning of Section 14 German Civil Code (BGB).
(3) The General Conditions of Sale shall apply to all current and future contracts between the Seller and the Buyer.
§2 Contract Conclusion
(1) If the Buyer submits a binding offer as a result of the order, the Buyer shall be bound to this offer for two weeks.
(2) If the Seller submits a binding offer to the Buyer, the Buyer may accept this offer within two weeks by placing his order. If the Seller does not receive an order within this time period, the Seller shall no longer be bound to his offer.
§3 Prices and Payment Terms
(1) Unless otherwise agreed, the prices shall apply “ex works”.
(2) The prices indicated by the Seller are net prices. VAT in the respective statutory amount will be stated separately on the invoice if it applies.
(3) Unless otherwise agreed, the purchase price shall be due net (without deduction) upon receipt of the invoice. In the event of a payment default, the statutory regulations shall apply.
(4) The Buyer shall only be entitled to offsetting and retention rights if its counter-claims have been determined by an unappealable court decision or are undisputed or have been accepted by the Seller. This restriction shall not apply to claims of the Buyer arising from total or partial non-performance or defective performance of the contract from which the claims of the Seller result.
§4 Delivery Period – Delivery
(1) Unless otherwise agreed, delivery shall be made “ex works”. If the Seller delivers the goods to another place of destination upon the Buyer’s request (sale to destination – Versendungskauf), the Seller is entitled to determine the type of shipment (in particular transport company, dispatch route) itself. Transport insurance will only be taken out upon the Buyer’s express request; the costs incurred in this regard shall be borne by the Buyer.
(2) The risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer at the latest upon hand-over of the goods. In the event of a sale to destination, the risk shall already be transferred when the goods are delivered to the forwarder, carrier or other person designated to execute the shipment. The statutory regulations on the transfer of risk in the event of an acceptance default shall remain unaffected.
(3) The Seller is entitled to make partial deliveries insofar as these are acceptable for the Buyer.
(4) If the Buyer is in acceptance default or breaches other obligations to cooperate, the Seller is entitled to request compensation for the damage incurred in this regard including potential additional expenditure, unless the Buyer is not responsible for its breach of duty. Further statutory claims remain unaffected.
(5) All force majeure events for which the Seller is not responsible and which impede the provision of Seller’s services (such as e.g. strike, lawful lockout, natural catastrophes, epidemics, acts of war etc.) release the Seller from the fulfilment of the contractual obligations assumed as long as these events persist. The Seller is obliged to immediately inform the Buyer on the occurrence of such an event and its probable duration. If such an event continues for more than three months, each of the parties is entitled to withdraw from the contract. A potential service in return which has already been provided shall be reimbursed without delay.
(6) If the Seller is in default as a result of slight negligence, Seller’s liability for the resulting default damage (damages in addition to performance) shall be limited to 5% of the purchase price for the goods delivered with delay. Liability for culpable injury to life, the body or health remains unaffected. § 8 shall apply for damages in lieu of performance in the case of default.
(1) If the Seller provides the goods to the Buyer in returnable packaging, the Seller is entitled to invoice repair costs for damaged returnable packaging returned to Seller or, in the event of returnable packaging beyond repair, the replacement value. Returnable packaging which is not returned will also be invoiced to the Buyer with the respective replacement price; the Seller will prove this price upon request.
(2) With regard to all other transport packaging and other packaging, the Buyer shall release the Seller in the internal relationship from Seller’s take-back obligation pursuant to the Packaging Ordinance (Verpackungsverordnung). The Seller instructs the Buyer and the Buyer hereby undertakes to take back this packaging on behalf of the Seller and to put such packaging to a use as provided for in the Packaging Ordinance. The assumption of this obligation is taken into account in the calculation of the respective purchase price for the benefit of the Buyer and compensated; the Buyer may not request separate remuneration in this regard.
§6 Weight Specifications
Weight specifications shall only apply approximately. The addition “approx.” or “roughly” entitles the Seller to deviations of up to 10% of the contractual quantity upwards or downwards.
§7 Material Defects
(1) The assertion of claims by the Buyer for defects of the goods requires that Buyer has duly and immediately met its duties to examine and give notice of defects pursuant to Section 377 German Commercial Code. The Buyer is obliged to examine the goods immediately after delivery by taking representative random samples for external quality, smell and taste. In the event of frozen goods, the Buyer must defrost an adequate number of samples for examination purposes. Notices of defects must be given in writing including a substantiated indication of the defect. Upon request, the Buyer must provide defective goods at the place of examination for inspection by the Seller.
(2) In the case of a defect for which a defects notice was given in time, the Buyer shall be entitled to the statutory guarantee rights subject to the following terms:
a) The Seller shall have the right to choose between subsequent delivery and subsequent improvement.
b) Damage claims shall only exist under the preconditions of § 8.
c) The guarantee period is 12 months as of delivery. By derogation therefrom, the statutory guarantee period of 2 years shall apply in the event of a culpable injury to life, the body or health or in the event of wilful or grossly negligent breach of duty. The statute of limitation in the event of supplier recourse pursuant to Sections 478, 479 German Civil Code shall remain unaffected.
(1) Buyer’s claims for damages are excluded unless the damage was wilfully caused or caused with gross negligence by the Seller or its legal representatives or performing agents or is based on the breach of an essential contractual duty. Essential contractual duties to this effect are such obligations which must be fulfilled so as to enable the proper execution of the contract at all, and the adherence to which the Buyer may regularly rely on. Insofar as the Seller is liable pursuant to the aforementioned provision, the liability is limited to the foreseeable typical damage, unless the Seller is charged with wilful intent.
(2) Liability for a culpable injury to life, the body or health, liability in the event that a quality guarantee was given or that a defect was maliciously concealed as well as the mandatory liability under the product liability law remain unaffected.
(3) The aforementioned liability limitations shall respectively apply if the Buyer asserts a claim for replacement of useless expenses in lieu of a claim for damages.
(4) Moreover, the liability regulation under § 4 (6) shall apply for default damage.
§9 Retention of Title
(1) The Seller reserves the title to the purchased item until all payments from the business relationship with the Buyer have been received. If there is a current account agreement between the Buyer and the Seller, the retention of title shall also refer to the respective accepted balance.
(2) In the event of attachments or other third party interference, the Buyer must inform the Seller immediately in writing. If the third party is not in a position to refund to the Seller the necessary costs for the judicial and extra-judicial defence against the interference, the Buyer shall be liable vis-à-vis the Seller for the loss incurred by the Seller.
(3) The Buyer is entitled to resell the purchased item in the normal course of business; however, the Buyer already now assigns to the Seller all claims against Buyer’s customers or third parties in the amount of the final invoice amount (including VAT) of Seller’s claim arising from the resale, regardless of whether the purchased item was resold without processing or after processing. The Buyer remains entitled to collect this receivable also after the assignment. Seller’s own right to collect the claim shall remain unaffected in this regard. However, the Seller undertakes not to collect the claim as long as the Buyer meets its payment obligations. If the Buyer no longer meets its contractual obligations, the Seller may request that the Buyer discloses to Seller the assigned claims and their respective debtors, provides all information required for collection, hands over the related documents and informs the debtors of the assignment.
(4) Buyer’s processing of the purchased item will always be done on behalf of the Seller. If the purchased item is processed with other goods which are not the property of the Seller, the Seller shall acquire co-ownership to the new item at the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed goods at the time of processing. Besides that, the same shall apply for the item resulting from processing as for the purchased item delivered under the reservation of title.
(5) If the purchased item is inseparably mixed with other goods not belonging to the Seller, the Seller shall acquire co-ownership to the new item at the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed goods at the time of mixing. If the mixing is done in such a way that the item of the Buyer must be regarded as the main item, it is considered agreed that the Buyer shall proportionately transfer to the Seller pro rata co-ownership.
(6) If the retention of title or the assignment is not effective pursuant to the law applicable in the area of which the goods are located, the guarantee which corresponds to the retention of title or the assignment of the goods in this area shall be considered agreed. If Buyer’s participation is required for the occurrence, Buyer is obliged upon Seller’s request to take all reasonable measures at Buyer’s costs which are required to establish and maintain such rights.
(7) The Seller undertakes to release securities to which Seller is entitled upon Buyer’s request insofar as the realisable value of Seller’s securities exceeds the claims to be secured by more than 10%; the Seller may choose which securities shall be released.
§10 Place of Jurisdiction; Applicable Law
(1) Hf the Buyer is a merchant within the meaning of the German Commercial Code, the exclusive place of jurisdiction for all disputes arising from and in connection with this contract shall be the seat of the Seller. However, the Seller is also entitled to sue the Buyer at Buyer’s general place of jurisdiction.
(2) This contract shall be governed by the laws of the Federal Republic of Germany; the application of the Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
Effective: November 2015