General Terms of Sale and Delivery of Pickenpack Seafoods GmbH
(for contracts with merchants) valid effective 1 July 2016
1.1 The terms of sale and delivery set out below are valid exclusively for any and all sales, deliveries, collateral performances now and in future by the Pickenpack Seafoods GmbH (seller) and are accepted by the buyer by his order, latest by the receipt of the performance without a protest. Any terms of purchase and other general conditions differing here from are expressly and totally rejected and become part of the contract only if and insofar as accepted in writing by the seller. This shall apply even, if the seller has not once more contradicted after the receipt thereof or has performed the delivery without a reservation.
1.2. Any supplementations or amendments after the conclusion of the contract are valid only if made in writing.
2. Offers, closings and prices
2.1 All statements, offers or promises made on behalf by the employees of the seller are without obligation if not made in writing. This shall not apply if legal representatives or authorized officers are acting. Employees working outside the office, especially agents or drivers, have neither legal powers to conclude contracts nor to receive any statements with legal consequence.
2.2 The prices of the seller are calculated net ex warehouse (Rheine or Wietzendorf) free to the means of transport, loading excluded, however commercially usual packing included.
2.3. If there is a time period of more than 3 months between the conclusion of the contract and the delivery and if there is an increase or new introduction of any costs during this time period which is within the liability of the seller, e. g. new freight costs (especially for deliveries free or carriage-free at receiving place), insurance costs, taxes (including value-added tax), customs, import duties, levies or similar costs or fees fixed by the state’s authorities, the seller is entitled to claim an adequate increase of the sales price.
2.4. The invoicing of sales prices is being made in accordance with the binding prices per packaging unit agreed between seller and buyer.
3. Delivery, hindrances and time-limits, reservation of self delivery
3.1.1 If the seller is in default of the delivery, the buyer is not entitled to claim damages because of the delay, if the delay has not been caused by intent or gross negligence. In any case of normal negligence, the claims for damages are restricted to the typically occurring damages which have been foreseeable as a consequence of the delay.
3.1.2 The buyer is entitled to withdraw from the contract or to claim damages instead of fulfilment only if he has fixed an adequate period of time at the time or after the seller has got in delay, and if the seller does not perform within the additional time limit due to reasons within his responsibility.
3.2.1. In cases of force majeure and of unforeseeable hindrances, by which the delivery or dispatch of the merchandise is impeded or hindered, e.g. interruption of operations, lockout, lack or shortage of raw materials or energy, the seller is relieved of his obligation to deliver the sold merchandise during the time period in question and in accordance with the extent of such detriments.
3.2.2. If the seller does not or not in time receive the self delivery of the contracted merchandise or of the raw materials or any additives which are designated for the fulfilment or for the production in accordance with the contract, the seller is released from the duty to deliver the sold merchandise. If there is a period of more than four months in case of long term contracts between the conclusion of the contract and the time of delivery, and there is a substantial change of the raw material markets, e.g. by implementation of new fishing catch quotas or decrease in fishing quantities, the seller is entitled to an adequate shortage of his performance duties in accordance with his own self delivery /ability to procure the materials, or to an adjustment of the prices at his choice.
3.3. Any right of the seller or the buyer to withdraw from the contract in principle refers to the part of the contract which has not yet been fulfilled. This is not valid if the partial deliveries are without interest for the party concerned.
3.4. If the buyer gets in default with his duty to collect, to accept, to take over or to discharge the merchandise or with any similar collateral obligations, after the seller has made a corresponding contractual offer, the buyer is obliged to prepay the sales price.
4. Payment, settling of accounts, right to retention
4.1. Unless otherwise agreed in writing, the sales price is due upon receipt of the invoice and payable to seller’s business account without any deduction. The seller is entitled to invoice any part deliveries. These invoices are due and payable likewise.
4.2. If the seller, after conclusion of the contract, is informed about events which cast doubt on the credit-worthiness of the buyer, especially non payment of checks or protest of promissory notes, negative information by a bank, credit insurance or inquiry agency, or if the buyer is in default totally or partially, the seller is entitled to refuse the further performance. The right to refuse performance shall cease if payment has been made or security has been given, eventually by means of a bank guaranty. The seller is entitled to give the buyer an adequate period of grace for the prepayment of the sales price or the presentation of a bank guaranty. After the period of time has elapsed, the seller is entitled to withdraw from the contract.
4.3. The buyer is not entitled to any set off or any right to retention with regard to the seller’s claim for payment of the sales price or any other claims out of or in connection with the sales contract. This does not apply if the buyer’s counter claim is acknowledged, not contested or assessed by a definite and binding court decision.
5. Retention of title
5.1 The seller remains the owner of any and all goods delivered by him in connection with the sales contract (reserved property) until the buyer has fulfilled all debts arising from the business relation including those arising or becoming due in future. In cases of a current account, the reserved property serves as security for the claim of the seller for payment of the balance.
5.2.1 The buyer is obliged to store the reserved property separately from his other merchandise and to inform the seller upon request about the quantity and the place of storage of the reserved property, which still is in his possession or custody.
5.2.2. The seller is entitled to sell the goods under “reserved property” in the course of his ordinary business only and as long as he is not in delay with his payments. He is not entitled to pledge the reserved property or to give it as a security. In case of a seizure or any attachment by a third party, he has to inform the seller immediately. The buyer is obliged to reimburse the seller for any costs which might occur by any intervention.
5.2.3. If the reserved property will be handled, processed, produced, combined, mixed, filled or manufactured together with goods not belonging to the seller, the seller acquires the joint property to the new products, calculated in the relation to the invoice value of the reserved property to the invoice value (eventually market value) of the other used goods at the time of the combination, installation, mixture, handling, filling and/or processing. If the buyer by law acquires the sole property to the new goods (main goods), he herewith transfers to the seller the joint property to these goods with relation to the invoice value of the reserved property, and takes the goods into his custody for the seller.
5.3. The buyer herewith assigns (on account of performance only) to the seller his claims against his customers / buyers for payment of the sales prices arising from a resale of the reserved property including joint property. This also applies if the merchandise is sold to several customers. If the reserved property will be sold together with other goods not belonging to the seller against a total sales price, the assignment of the claim arising from the resale shall be valid as part assignment in the amount of the invoice value of the reserved property sold. In any case of resale of goods to which the seller has acquired joint property, the assignment of the claim shall be valid in the amount of the value of his share in the joint property. The assigned claim shall serve as a security of the seller to the same extent as the reserved property.
5.4. The buyer is entitled to cash the assigned claims as long as he has complied with any and all of his duties under the business relation and unless he is not in delay with the payment.
5.5. The buyer herewith transfers to the seller any and all of his future claims regarding the reserved property against his insurance companies, especially from an insurance against loss and damages, fire, theft and misappropriation.
5.6. If the buyer is in breach of contract or in default with his payments and the seller has given a reminder and set an adequate period of time for the payment or other fulfilment, the right of the buyer to possess the reserved property ceases. The seller is entitled to claim the immediate surrender of the reserved property. The taking back of the sold goods shall be considered as a withdrawal from the sales contract. If the seller sells the reserved property, the proceeds of sale shall be used on account of the obligations of the buyer. In such cases of withdrawal and taking back the seller shall be entitled to claim damages.
5.7. The seller herewith undertakes to release in his choice the security including reserved property upon request of the debtor, in so far as the realisable value exceeds the amount of the claims which shall be secured by more than 10 %.
6. Fulfilment, dispatch, risk
6.1. Unless a delivery “free delivered” to a specified place of destination is agreed, the place of fulfilment for any and all obligations of the seller shall be Riepe/Ihlow. The same is applicable for payment obligations of the buyer.
6.2. Unless otherwise agreed the risk of transport shall be borne by the buyers. This shall apply irrespective of whether the transport will start in Rheine / Wietzendorf or at any other place.
6.3. If the transport of the goods is affected by own means of transport of the seller, he shall be liable for intent and gross negligence of his employees only. In all other cases the seller shall be entitled to the full payment of the sales price.
7. Notice of non conformity, warranty, deviation of the goods
7.1.1 The buyer must examine the goods, or cause them to be examined, without any delay after the delivery, latest immediately after discharge from the means of transport. He has to give notice of any non-conformities, deficiencies, false or short deliveries without any delay in writing (also by fax or e-Mail) in a well specified way. If the goods are redirected, in transit or re-dispatched by the buyer, the examination has to be made at the first place of destination. The examination must include at least a check of the issues “outer appearance, purity, smell, taste, foreign substances.” If the buyer’s special knowledge is not sufficient, the necessary additional examination has to be made by an expert. If the goods are packed, an examination of a representative quantity of samples is required.
7.1.2 Whenever a non conformity can be revealed by a commercial examination as described under 7.1.1., the period of time for the notice of termination in cases of non conformity is max. 24 hours from the time when it could be found out, in case of other perishable goods 3 days after arrival of the goods at the place of destination and release thereof to the buyer. If deficiencies can not be established (hidden defects) by an examination as per 7.1.1., the period of time is max. 3 business days from the date of the ascertainment by the buyer.
7.1.3 In case of the delivery of deep frozen goods, the buyer has to prove that the goods claimed defected have been stored at a temperature of at least –18 degrees Celsius and that he has procured for the maintenance of the temperature of –18 degrees Celsius during the re-dispatch or additional transport. If the buyer refers to non conformities which can be attributed to a violation of these duties, it shall be assumed that any non conformities or damages are caused thereby.
7.1.4 At the time of the notice of deficiency, the buyer must give the seller an opportunity to immediately control the non conformity of the merchandise and inform him about the place where the goods can be examined, and grant him access to the goods. If these duties are not complied with or if the goods are touched, handled, processed, produced, mixed or manufactured, re-dispatched or in any way changed or modified, the complete burden of proof that the goods have been in a non conforming condition at the time of the delivery already is with the buyer.
7.2. The buyer shall loose the right to rely on a lack of conformity of the goods in cases of a violation of his duties according 7.1.1. to 7.1.4., and in cases of a notice of termination which is not in accordance with the time limits and forms under 7.1.1 and 7.1.2. If any non-conformities could not be ascertained by a careful commercial examination, which can include an inspection by an expert, any time limits start from the time of the ascertainment only.
7.3.1 In case of a non-conformity of the delivered goods regarding quantity or quality, the buyer must give the seller an opportunity to effect at his choice and at his own costs a substitute delivery or otherwise to remedy the defects before he can exercise his legal rights. In the cases prescribed for by law, the seller is entitled to refuse such substitute performance. The legal rights in accordance with liability law on material defects including claims for damages can be exercised by the buyer only after he has given the seller an adequate period of grace.
7.3.2. If the substitute performance by means of a substitute delivery or subsequent improvement not effected by the seller within adequate time or fails at the second trial, the buyer is entitled to legal rights in accordance with liability law. Claims for damages are excluded if the seller proves, that he is neither at fault for the non conforming delivery nor for the failing or default of the substitute performance. Liability due to omission of warranted / guaranteed properties or due to fraudulent non-disclosure of a defect is strictly limited to legal regulations.
8. Taking delivery in case of merchandise with buyer’s own brands
Unless otherwise agreed in writing, the buyer undertakes to accept the delivery of the agreed quantities as a fundamental duty, in case of revolved orders to accept and take delivery of the quantities of packaging materials and ready manufactured goods which the seller usually has to keep in stock in order to deliver currently. The buyer is obliged to pay damages for any quantities of packing materials produced with the buyers brand or trademark, which he definitely does not take.
9. General limitation of liability and prescription
9.1.1. Claims for damages out of and in connection with the sales contract can be made in accordance with the legal provisions regarding basis and amount, if
a) they are based on breach of contract by intent or due to gross negligence on the side of seller’s legal representatives or his servants /agents,
b) the seller is responsible for a violation of a fundamental contractual obligation by fault,
c) the seller has given a special guarantee or fraudulently promised or concealed the nature or quality of the goods sold,
d) the claims can be founded on the law regarding product liability.
9.1.2. If the seller is liable in other cases but those provided for under 9.1.1., their liability is depending on fault and is restricted to the damages which he – in consideration of the circumstances which have been known or should have been known – could foresee as a consequence of the violation of the contract and which are typically arising.
9.2. Any and all claims based on defects and claims for damages out of or in connection with the sales contract concluded or to be concluded, for whatever reasons, are time barred within one year from the delivery to the buyer. This does not apply to claims for damages based on a culpable violation of life, body, health or freedom of man and in the cases mentioned under 9.1.1. a, c, d.
9.3. Liability for damages for injury of life, bodily injury or damage to the health based on a breach of duty by intent or due to gross negligence by a legal representative or a servant / agent are restricted in terms of reason and amount – differing from the provisions under no. 9.1.1 a) – 9.2 – exclusively to legal regulations.
10. Place of Jurisdiction, applicable law
All disputes out of and in connection with this contract, including its validity, rescission or termination, shall be judged by the law courts in Aurich. The seller shall be entitled to claim against the buyer also at the buyer’s general place of jurisdiction. German law shall apply. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
11. Data Protection, § 26 Federal Data Protection Law
Personal data of our customers will be saved and used in our electronic data-processing system, as far as necessary for the order processing.
12. Severability clause
Should any of the above clauses of these General Terms of Sale and Delivery be void or become void in the future, this does not affect legal validity of other clauses.