General Terms and Conditions

General Terms and Conditions of Trade and Delivery
of Eurosweet GmbH

Download General Terms & Conditions
1. Area of Application 
1.1 Our following General Terms and Conditions of Trade and Delivery (hereinafter referred to as General Terms) apply to all our offers, contracts, deliveries and services in business transactions with merchants. 
1.2 Our General Terms and Conditions of Sale shall be deemed to have been accepted at the latest upon acceptance of our goods or services. 
1.3 In the context of an ongoing business relationship, our General Terms shall also become part of the contract, unless it has been specifically agreed otherwise in writing. 
1.4 The validity of other business terms and conditions, in particular general purchase terms and conditions of the buyer, shall not be binding for Eurosweet. All contrary purchase and business terms presented by the buyer shall be rejected herewith.

2. Offers and Conclusion of Contract
2.1 Our offers to buyers are subject to change and are non-binding. They shall be deemed to be an invitation to the buyer to agree to the contract. Prior sale is reserved. 
2.2 Orders or orders of the buyer will only be accepted by written confirmation or immediate provision of services after receipt of the order. In the latter case, our delivery note or invoice shall be deemed to be an order confirmation. 
2.3 Our offers as well as the acceptance or confirmation of orders or orders of the buyer are subject to timely and sufficient self-delivery. In the event of late or insufficient self-delivery, we are released from our delivery obligation – to the exclusion of recourse or claims for damages by the buyer – if we are not responsible for the lack of or delayed self-supply by our subcontractor. 
2.4 Insofar as our employees make verbal declarations that go beyond or deviate from the written content of concluded contracts, each instance will require our written confirmation in order to be effective. 

3. Delivery Dates and Delivery
3.1 The delivery dates and deadlines stated by us are non-binding and can be changed unless we have expressly designated them as binding in writing. They are subject to timely and sufficient self-supply, unless we are responsible for their non-compliance. 
3.2 If the buyer is required to change the object of purchase or the delivery modalities before the delivery is carried out, a binding delivery period shall be interrupted and shall commence anew at the time of agreement on the changed service or delivery modalities or may otherwise be determined by us at our reasonable discretion. 
3.3 We are entitled at any time to partial deliveries and partial services as well as to premature provision of services. 
3.4 We are not responsible for delays in delivery or performance due to force majeure as well as due to events that make delivery significantly more difficult or impossible for us and are not caused by us, even in the case of bindingly agreed delivery periods. This includes, in particular, operational disruptions, accidents, epidemics, extraordinary loss of labor, subsequent shortages of materials, import or export restrictions, import bans due to embargo decisions, shortage of raw materials or energy, traffic disruptions, unforeseeable machine failures, strikes, lockouts, mobilization, war, natural events, official or legal orders or disruptions to traffic routes, even if they are caused by our suppliers or their subcontractors. In the aforementioned cases, binding delivery periods and dates shall be extended by the duration of the hindrance and its subsequent effect.
3.5 If a delay in delivery or performance in accordance with Section 3.5 lasts longer than two months, both the buyer and the Seller may withdraw from the contract. In this case, the assertion of claims for damages is mutually excluded. Payments already made will be refunded by us. 
3.6 With regard to delays in delivery and performance, we shall only be liable for our own fault and our employees and vicarious agents, but not for that of our subcontractors. However, at the request of our buyer, we are obliged to assign any claims to which we are entitled against our subcontractor to the buyer. 

4. Transfer of Risk
4.1 Unless otherwise agreed in writing, the risk shall pass to the buyer upon handover of our goods to a forwarder or carrier – even in the case of agreed carriage paid delivery. This also applies if the delivery is made with our vehicles, or if the forwarder or carrier is commissioned by us or the delivery is made by the permanent establishment of a third party (so-called "drop shipment"). 
4.2 If the delivery is delayed at the instigation or fault of the buyer, the goods shall be stored at the buyer's expense and risk from the time of notification of readiness for dispatch. Likewise, the risk shall pass to the buyer at the time when he is in default of acceptance or debtor. Additional costs or damages incurred by the Seller as a result of a default of acceptance by the Buyer shall be reimbursed by the Buyer. 
4.3 Unloading must be carried out immediately and properly by the buyer. Waiting times will be charged to the buyer. 
4.4 Insurance shall only be provided at the request and expense of the buyer and shall require an express, written agreement. 

5. Prices and Terms of Payment
5.1 Unless otherwise agreed in writing, our prices are to be understood as net remuneration ex works or warehouse, plus freight, packaging and the applicable statutory value added tax (VAT). 
5.2 The agreed purchase price is due without deduction upon delivery of our goods, unless otherwise agreed in writing. 
5.3 If the buyer is a merchant, we are entitled to cost increases after conclusion of the contract, which we are not responsible for, in particular increases in raw material, labor or transport costs as well as customs duties, taxes or other charges or price increases of our suppliers in relation to deliveries not yet executed to a corresponding price increase – to be proven at the request of the buyer – if the delivery is successful at least four weeks after conclusion of the contract or a supply contract has been concluded with the buyer for a period of more than three months. 
5.4 Insofar as we become aware of circumstances after conclusion of the contract that allow us to conclude that our payment claim is endangered due to the buyer's lack of ability to pay or call into question the creditworthiness of the buyer, we are entitled to make our services dependent either on an advance payment or the provision of securities. If the buyer does not comply with a corresponding request with a reasonable deadline, we are entitled to withdraw from the contract and to assert claims for damages. 
5.5 If the buyer is in arrears with payments due, default interest as we have to pay for loans used, by at least 5% - if the buyer is a merchant, at least 8% - above the base interest rate according to § 247 I BGB, unless the buyer proves a lower damage. We reserve the right to prove higher damages. 
5.6 Offsetting with counterclaims by the buyer is only permitted with undisputed or legally established claims. If the buyer is a merchant, the rights of retention according to §§ 369 HGB, 273 BGB are excluded. 

6. Securities
6.1 Delivered products remain the sole property of Eurosweet for as long as the total price is not fully paid. 
6.2 In the case of goods which the buyer purchases within the framework of an ongoing business relationship or based on a delivery contract on call or with a term of more than two months, we reserve title until all our claims against the buyer – including future claims – arising from the business relationship or the concluded contracts have been settled. 
6.3 The inclusion of claims in a current account or the drawing of the balance and their recognition do not cancel the retention of title. 
6.4 As long as our reserved goods have not been paid for in full, the buyer undertakes as our trustee to treat our reserved goods with care, to store them separately from his property as well as from the property of third parties, to secure them against damage, loss or theft and to mark them as our reserved property. 
6.5 In the event of default of payment by the buyer, we are obliged to take back the reserved goods after a reminder and the buyer is obliged to surrender them. The buyer is obliged to grant us or our agents unhindered access without delay so that we can dispose of our reserved goods and take them back into our possession. The return of our reserved goods does not constitute a withdrawal from the contract. 
6.6 If our reserved goods are processed into a new movable item, the processing by the buyer shall be carried out for us as the manufacturer - without us being obliged to do so - and we shall become the reserved owner of the new item. 
6.7 In the event of processing of our reserved goods together with other goods not belonging to us, we shall acquire co-ownership of the new item in accordance with the ratio of the value of our reserved goods to the other goods at the time of processing and the processing value. If our reserved goods are combined, mixed or mixed with other goods not belonging to us in accordance with §§ 947, 948 BGB, we shall become co-owners of the reserved goods in accordance with the statutory provisions. If the buyer acquires sole ownership by combining, mixing or blending, the buyer hereby transfers co-ownership to us according to the ratio of the value of our reserved goods to the other goods at the time of combination, mixing or blending. In these cases, the buyer must store the items in our reserved property or co-ownership free of charge. 
6.8 If our reserved goods are sold alone or together with goods not belonging to us, the buyer hereby assigns, i.e., at the time of conclusion of the contract, the claims arising from the resale in the amount of the value of our reserved goods with all ancillary rights and precedence over the rest. This assignment is hereby accepted by us. 
6.9 The value of our reserved goods is our invoice amount, which, however, remains out of account if and to the extent that it conflicts with the rights of third parties. If the resold reserved goods are in our co-ownership, the assignment of the claim extends to the amount corresponding to our share value in the co-ownership. 
6.10 The buyer is entitled and authorized to resell or use our reserved goods at any time only in the normal, ordinary course of business and only under the condition that the claims in accordance with sections 6.8.-6.9 are actually passed to us. The buyer is only entitled to other dispositions of our reserved goods, in particular pledging or transfer by way of security, with our prior written consent. 
6.11 Subject to revocation at any time, we authorize the buyer to collect the claims assigned to us as security in accordance with sections 6.8.-6.9. 
6.12 We will not make use of the rights of revocation to which we are entitled or our right to collect claims as long as the buyer duly fulfils his payment obligations – also vis-à-vis third parties. With cessation of payment and/or application for the opening of insolvency proceedings – even if this is filed by a creditor – the right of the buyer to resell or use our reserved goods as well as the authorization to collect the claims assigned to us automatically expires, i.e., without the need for a declaration of revocation by us. The same applies in the event of a cheque or bill of exchange protest on the part of the buyer. 
6.13 At our request, the buyer must name the third-party debtors of the claims assigned to us, inform us of the amount and legal basis as well as the invoice date of the due claims assigned to us and notify the third-party debtors of the assignment. In addition, § 402 BGB applies. Irrespective of this, we are authorized to notify the third-party debtor of the assignment ourselves. 
6.14 The buyer must inform us immediately of any enforcement measures in our reserved goods or in the claims assigned to us, with simultaneous transmission of the documents necessary for an objection or an enforcement action. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs of a third-party opposition action within the sense of § 771 ZPO, the buyer shall be liable for any costs, damages or failures incurred by us. 
6.15 At our request, the buyer is obliged to insure our reserved goods at his own expense at replacement value, i.e., at invoice value, against theft, fire and water damage and to assign the claim against the insurance to us. 
6.16 Insofar as the realizable value of the securities available to us exceeds the claims to be secured by more than 10%, we undertake to release a corresponding part of our security rights at our discretion at the request of the buyer. 

7. Rights of the buyer regarding defects of the delivered product
7.1 If the buyer is a merchant, the assertion of warranty rights presupposes that the buyer has duly fulfilled the inspection and complaint obligations owed in accordance with § 377 of the German Commercial Code (HGB). 
7.2 Any transport damage must be reported to us immediately by the buyer. In the case of delivery by rail, with vehicles of commercial local or long-distance freight transport or by other modes of transport, the buyer must complete the necessary formalities vis-à-vis the carrier.
7.3 If, despite all the care taken by us, the goods delivered by us have a defect that already existed at the time of the transfer of risk, we will repair the goods or deliver replacement goods at our discretion - provided that the goods are noticed in due time and properly. We must always be given the opportunity to remedy the defect within a reasonable period of time. 
7.4 If our supplementary performance fails, the buyer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration. Our consent must be obtained before any return of the goods. 
7.5 If the buyer asserts defects with regard to the goods delivered by us, he may not dispose of them, i.e., they may not be resold or processed until an agreement has been reached on the settlement of the complaint or a preservation of evidence procedure has been carried out. 
7.6 The buyer is obliged to provide us with our goods or parts thereof for the purpose of checking a complaint. If this does not happen for reasons for which the buyer is responsible, the warranty does not apply. 
7.7 Recourse claims of the buyer against us only exist if and to the extent that the buyer has not made any agreements with his customers or customers that go beyond the legally mandatory claims for defects.
7.8 If the buyer is a merchant, warranty claims shall become statute-barred twelve months after delivery of the goods delivered by us to the buyer. 

8. Limitation of Liability Clause
8.1 If the buyer is a merchant, we shall only be liable in accordance with the statutory provisions for claims for damages by the buyer that are based on intent or gross negligence on the part of us or our vicarious agents or that involve a culpable breach of essential contractual obligations. Essential contractual obligations are those whose fulfillment made the execution of the contract possible in the first place and on the observance of which the buyer may regularly rely. A change in the burden of proof to the detriment of the buyer is not associated with this regulation. 
8.2 Liability for culpable injury to life, limb or health remains unaffected – as does liability under the Product Liability Act. 
8.3 Any further claims for damages – regardless of the legal grounds – are excluded. This also applies if the buyer demands reimbursement of futile expenses instead of a claim for damages. 

9. Final Provisions 
9.1 The legal relations between us and the buyer are governed exclusively by the law of the Federal Republic of Germany, excluding Private International Law and the United Nations Convention on Contracts for the International Sale of Goods (CISG). 
9.2 Changes or additions to concluded contracts or these General Terms must be complied with in writing in order to be effective. 
9.3 Should any provision of these General Terms be or become invalid, this shall not affect the validity of the remainder. In this case, it is agreed to agree on an effective provision instead of the ineffective clause, which comes closest to the meaning and purpose as well as the economic objective of the ineffective clause. This also applies if these General Terms have an irregular gap and a supplementary interpretation of the contract should be required. 
9.4 If the buyer is a merchant, a legal entity under public law or a special fund under public law, the place of performance and exclusive place of jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) shall be our register ed office in Bottrop, Germany. However, we are also entitled to sue the buyer at his registered office. 
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