TERMS AND CONDITIONS OF SALE AND PACKAGINGValid: 01/2008
Our sales are governed exclusively by the standard business conditions for the trade in fruit and vegetables of the Bundesarbeitsgemeinschaft Gartenbau [Federal Association for Horticulture] (hereinafter the “AGBAG”) and the standard business conditions for the international wholesale trade in cut flowers and fresh greenery of the Verband des deutschen Blumen-,Groß- und Importhandels e. V. [Organisation of German Flower Wholesale and Import Trade], Düsseldorf, each in its currently valid version, in force from time to time, as well as the terms and conditions set forth below, which shall also apply to all future contracts. We shall not be bound by terms and conditions of the buyer, even if we do not give express notice of rejecting them. Any variations shall only apply if confirmed by us in writing.
1. PricesUnless agreed otherwise, our prices are quoted ex warehouse. Our prices are stated without value added tax, which will be charged additionally. Any increase in freight rates, fees or official levies occurring after the conclusion of the agreement are payable by the buyer.
2. DeliveryUnless agreed otherwise, sales are effected ex warehouse. The buyer has a duty to collect the goods without delay. All risks shall pass to the buyer on conclusion of a of a sales transaction. Any costs arising as a result of delay in collection shall be borne by the buyer. If purchased goods are not collected without delay we may, after fixing a deadline, otherwise dispose of the goods. The buyer will be held liable for costs and for any shortfall in sales revenue. If we deliver goods which are held in stock to the buyer, such delivery shall be for the account and risk of the buyer. Should the purchase relate to goods which we do not have in stock at the time of conclusion of sales transaction, we shall be free from all obligations if we ourselves are not supplied correctly and punctually. As agreed a delivery date for goods which are to be packaged for self-service sales is conditional upon the machines operating trouble-free. The transport aids are only provided by the seller to the buyer on loan and must be returned as soon as possible, whereby the return transport must be at the instigation and for the account of the buyer. If despite one written warning from the seller the buyer fails to meet his obligation to return, he commits himself to pay compensation for the value of the transport aid as stated in a separate invoice.
3. ComplaintsIt is the responsibility of the buyer to inspect the goods at the earliest possible opportunity at our warehouse or at the agreed place of delivery or offer. Complaints of any kind must be lodged immediately. The period for lodging complaints will not be extended in the case of delays in collection and acceptance. In addition, defects which may have occurred during transport must be reported to the carrier. We may demand that the validity of the complaint be substantiated by official certificates or expert opinion. The seller does not assume any liability for the completeness or correctness of goods bearing a best-before date and/or a list of ingredients. It is the responsibility of the buyer to ensure that the goods are stored in an appropriate and professional manner. The seller will not take back any goods before or after expiry of the best-before date. If responsibility for the defect lies with us, we will only reduce the purchase price. Any other or additional claims are excluded. The buyer of goods packaged ready for self-service has a duty, on taking receipt of the goods, to check the packaging, labelling and coding, of whatever kind, for completeness, correctness and compliance with statutory regulations and for correctness of the retail selling price affixed by us on the buyer’s instruction.
In the case of any error, we shall only be obligated to re-label or re-mark the goods; all further liability on our part is excluded. In the case of contract packaging work, which it is agreed shall be performed by the packaging facility without any special inspection of the goods, claims for compensation shall be limited to the amount invoiced for packaging work. In all other respects and for all other claims, §13 of the AGBAG shall apply.
4. PaymentOur invoices are payable net cash without any deduction on receipt of the goods. If payment is not made as agreed immediately after receipt of the goods, the seller has the right to charge interest at the customary bank rate. If cheques are accepted, they will only be deemed accepted on account of payment.
5. Reservation of titleAll deliveries are effected subject to our reservation of title until such time as all claims arising from the business relationship – including those arising in future – have been settled in full. The buyer nevertheless has the right to resell the goods in the ordinary course of his business. However, all accounts receivable from resale shall be deemed assigned to us. Upon our request the buyer is obligated to give notice of our right of subrogation and to provide us with all information required for asserting such claims. The aforesaid reservation of title shall also apply analogously to the transport aids provided to the buyer on loan according to Art. 2 of these Terms and Conditions. If the buyer is in breach of his obligation according to Art. 2 of these Terms and Conditions, the buyer may at her own discretion either claim her reserved title or proceed in accordance with Art. 2.
6. Intragroup assignment and offsetThe buyer hereby agrees that all claims against him to which the seller and his group enterprises are entitled, particularly the business establishments and enterprises named below, shall be deemed assigned within the group in such a manner that all the group enterprises shall be entitled as joint creditors to each claim. The seller and the group enterprises may offset their own claims against the claims of the buyer and his group enterprises. The seller has the right at any time to offset reciprocal claims, including those that have been assigned, even without issuing a corresponding set-off statement.
7. Brand and Presentation materialThe buyer may use advertising material for our brands only in direct connection with goods supplied by us. The packaging and presentation material of our branded goods may not be reused.
8. Legal venueThe legal venue shall in all cases be Duisburg. This also applies to lawsuits relating to documents or bills of exchange as well as measures aimed at the seizure of assets. In the event that the buyer has no general legal venue in the Federal Republic of Germany, the buyer is entitled, in respect of all claims arising under the contract, to apply to the court of arbitration of the Waren-Verein der Hamburger Börse e.V. [Association of goods of the Hamburg Exchange], whose ruling shall be binding on the parties without recourse to the courts of law.
9. Dried fruitOur sales of nuts and dried fruit are governed exclusively by the Conditions of Business of the Waren-Verein der Hamburger Börse e. V., whose court of arbitration and experts shall be responsible for final rulings on all disputes.
10. InvoicingInvoices are issued for and on behalf of the enterprise named in the address field.
11. Intra-Community trade / VAT ID No.Deliveries to EU states other than the Federal Republic of Germany are effected free of value added tax provided the buyer specifies his VAT identification number. Should he fail to do so, value added tax will be charged at the statutory rate.
12. Salvatory ClauseShould any omission be identified in this agreement, this shall have no effect on the validity of the agreement. The parties shall have a duty to fill the omission with a provision or provisions that correspond commercially to the overall intention of the agreement or do so as closely as possible and are legally admissible.
Should any of the provisions of this agreement be invalid, this shall have no effect on the validity of the other provisions.