General Sale and Delivery Conditions of MGL Molkereigesellschaft Lauingen mbH
Version of June 2020
1.1 For all contracts concluded by MGL Molkereigesellschaft Lauingen mbH (hereinafter referred to as „Seller“) with any legal or natural persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity (hereinafter referred to as „Buyer“), the following General Terms and Conditions of Sale and Delivery (hereinafter referred to as „GTC“) shall apply exclusively. Any deviating or supplementary terms and conditions of the Buyer or any contracting agent that the Seller does not expressly accept in writing shall not apply and shall not bind the Seller even if the Seller does not expressly object to them and carries out the delivery without reservation.
1.2 These General Terms and Conditions shall also apply to all future contracts with the Buyer, insofar as legal transactions of the same or a related type are involved.
1.3 The content of the contract results from the offer of the Seller or, if applicable, the Seller’s confirmation of sale including these General Terms and Conditions. Any oral collateral agreements as well as changes or additions to the contract require the written confirmation of the Seller.
2. Conclusion of contract
All offers of the Seller are subject to change. The Seller reserves the right of prior sale. A contract is only concluded with a written or electronic order confirmation by the Seller or by delivery of the goods.
3. Prices and terms of payment
3.1 Unless otherwise agreed, the prices shall apply under the „condition CIF – port“ or „CIP – named place“ according to Incoterms® 2020. Value added tax at the respective statutory rate is added to the prices. Prices are quoted in Euro, unless another currency has been expressly agreed.
3.2 If delivery is to be made later than four months after conclusion of the contract and if increased costs are incurred as a result of unforeseen official measures or because import and export duties or other levies, deposits and the like are increased for the raw materials of the goods or import and export duties applicable to the goods themselves, the price shall be increased by these expenses. The same shall apply accordingly in the case of additional production costs which are beyond the Buyer’s control, such as in particular increased energy costs and insurance premiums.
3.3 Unless otherwise agreed, invoices of the Seller are due for payment without undue delay upon receipt without deduction. Discount deductions are only permitted, if they have been expressly agreed in writing beforehand. If the Buyer does not pay the invoice amount within 7 days after receipt of the invoice or the agreed payment date, it will be in default even without a separate reminder. In case of default, the Seller is entitled to demand default interest at the statutory rate. The right to claim higher damages caused by delay remains reserved.
3.4 Representatives or employees of the Seller are not authorized to collect payments without special written authorization
3.5 Bills of exchange or cheques will not be accepted in lieu of performance, but only on account of performance. In the case of payments by bills of exchange and cheques, fulfilment shall only occur on the value date of the bank credit note. Payments shall be made to the Seller free of charges. Bank, discount and collection charges shall be borne by the Buyer, even if this has not been expressly agreed.
3.6 If the Buyer defaults on payment, the Seller may, after the unsuccessful expiry of a reasonable grace period granted to the Buyer, terminate the contract or withdraw from it, invoice all services which may have been rendered to date and make claims for damages, in particular for loss of profit, against the Buyer.
3.7 Irrespective of the agreed method of payment, the Seller may demand advance payment from the Buyer for the delivery if, after conclusion of the contract, a significant deterioration in the Buyer’s financial circumstances occurs or the Seller becomes aware of circumstances which give rise to justified doubts as to the Buyer’s solvency, unless payment is guaranteed in another way that secures the Seller (e.g. bank guarantee). If the Buyer does not make payment or if payment is not secured in any other way, the Seller is entitled to terminate or withdraw from the contract.
3.8 The Buyer is only entitled to offsetting if his counterclaims are legally established or undisputed. The Buyer is only entitled to exercise a right of retention if his counterclaim is based on the same contract.
4. Delivery times, delivery delays, force majeure, acceptance
4.1 Delivery dates or periods stated by the Seller are only binding if this has been agreed.
4.2 If delivery times are agreed upon bindingly, the delivery time begins with the day of the order confirmation. Compliance with the delivery time or delivery date shall in any case be subject to the condition that all commercial and technical questions between the Seller and the Buyer have been finally clarified and the Buyer has fulfilled all its obligations (e.g. provision of any necessary official certificates or permits or making a down payment). If this is not the case, the Seller is entitled to extend the delivery time by a reasonable period. This shall not apply if the Seller is responsible for the delay.
4.3 Compliance with the delivery period or delivery date is subject to correct and timely delivery to the Seller by his own suppliers. This shall only apply if the Seller, taking into account the usual delivery times, has commissioned the supply of his own supplies with sufficient lead time. The Seller shall inform the Buyer as soon as possible of any impending delays.
4.4. A delivery shall also be deemed to be free of defects in the event that the quantity delivered exceeds or falls short of the delivery quantity, if the deviation does not exceed 5%. The purchase price is determined by the actual delivery quantity.
4.5 The Seller shall be exempt from adhering to contractual delivery times and/or dates as long as and to the extent that circumstances occur in Germany or abroad which make it considerably more difficult or impossible to render performance. This shall be the case if the Seller is prevented from processing or delivering or if the processing or delivery is made unreasonably difficult due to force majeure, i.e. circumstances which were not foreseeable at the time of conclusion of the contract and which are not attributable to the Seller or his legal representatives or employees. Events of force majeure shall be deemed to include in particular:
– Mobilization, warlike events, riots, civil war, blockades, labor disputes, demonstrations, factory occupations, sabotage and go-slows;
– aggravating natural events such as ice, high/low water, hurricanes, cyclones, earthquakes, tidal waves;
– Obstructions, delays, restrictions and suspensions of loading or transport;
– Impediments caused by explosions, fire, total or partial destruction of production facilities and machinery;
– „Energy crisis“, fuel, auxiliary material or energy shortage;
– Labor shortages due to diseases or epidemics;
– the Seller’s own supply of raw materials, auxiliary materials and/or packaging material not effected in accordance with the contract;
– sovereign measures, in particular official orders in Germany or abroad.
In case of force majeure, the Seller is initially entitled to postpone the delivery time / delivery date for the expected duration of the impediment. The Buyer must be informed without undue delay, whereby notification by e-mail is sufficient. Once the impediment has ended, the Seller is obliged to deliver after a reasonable period of time and must inform the Buyer of the new delivery date as soon as possible. If the total duration of the impediment is more than 3 months, either party may withdraw from the contract or terminate it. In this case, the Seller is obliged to refund any payments already received without undue delay. The right of withdrawal or termination shall not apply if the Buyer can reasonably be expected to continue with the contract. In the case of contracts covering several deliveries, the above-mentioned right of withdrawal shall only apply to those deliveries which according to contract were to be executed in the period of impediment.
4.6 If the Buyer is in default of acceptance or culpably violates other obligations to cooperate, the Seller is entitled to demand compensation for the damage incurred, including any additional expenses. The Seller is also entitled to assert further legal claims.
5. Shipping, transfer of risk, partial deliveries
5.1 Unless otherwise agreed, the dispatch of the goods, including the transfer of risk and transport risk, shall be effected according to „CIF – named port“ or „CIP – named place“ in accordance with Incoterms® 2020.
5.2 Partial deliveries are permitted as far as they are reasonable for the Buyer.
5.3 If dispatch or acceptance is delayed or does not take place as a result of circumstances for which the Seller is not responsible, the risk shall pass to the Buyer on the day of notification that the goods are ready for dispatch or collection. The Seller undertakes to take out insurances at the request of the Buyer and at the Buyer’s expense.
6. Duty of inspection and notification of defects
6.1 Before accepting the goods, the Buyer must check that the goods are complete and the transport packaging is undamaged. Any complaints must be documented and reported to the Seller without undue delay, usually within 3 days. If notification is not made without undue delay, the delivery shall be deemed to be in accordance with the contract with regard to its completeness and packaging.
6.2 The Buyer is also obliged to examine the goods without undue delay, usually within 3 working days after receipt, to ensure that they are free of defects. It must notify the Seller of obvious defects in the delivery without undue delay, at the latest within 3 days of receipt of the delivery, and of hidden defects at the latest within 3 days of their discovery. If it does not notify the Seller without undue delay, the delivery shall be deemed to be in accordance with the contract.
6.3 At the latest before further processing of the goods, the Buyer shall clarify by means of examinations suitable in scope and methodology (usually laboratory tests) whether the delivered goods are suitable for the purposes intended by it. If further processing is carried out by the Buyer without the goods having first been found to be free of defects by means of a suitable examination, the goods shall be deemed to be in conformity with the contract, notwithstanding the provision in Clauses 6.1 and 6.2.
6.4 Clauses 6.1. to 6.3. shall not apply in the event of fraudulent intent on the part of the Seller or if the Buyer can prove that even a proper examination in the sense of clauses 6.1. to 6.3. would not have led to the discovery of the defect.
6.5 Complaints and objections made to third parties, e.g. commercial agents or transporters, do not constitute a notification of defects to the Seller in due form and time.
6.6 The Buyer must give the Seller the opportunity to examine the complaint, in particular to make damaged delivery items and their packaging available for inspection.
7. Quality of the goods, claims for defects
7.1 The quality of the goods to be delivered shall be based solely on the contractual agreements and the expressly regulated goods specifications. Furthermore, the goods comply with the legal provisions applicable in the European Union with regard to their marketability. The Seller does not guarantee or warrant the marketability of the goods outside the European Union.
7.2 Unless agreed otherwise, the Seller does not guarantee the quality of the goods delivered by him. Specifications or analyses enclosed with the goods shall likewise not constitute a guarantee of quality by the Seller.
7.3 Claims for defects shall only exist in the event of significant deviation from the agreed quality or only in the event of not inconsiderable impairment of usability.
7.4 If the complaint about the goods is justified and made in good time, the Seller shall take back the goods and replace them with goods in conformity with the contract. The Buyer shall grant the Seller a reasonable grace period for this purpose, which shall also take into account the time usually required for transport from the Seller to the Buyer. If a replacement delivery is not possible or if it does not take place or fails within the reasonable period determined by the Buyer for other reasons for which the Seller is responsible, the Buyer may, at his option, withdraw from the contract for the defective delivery or reduce the purchase price.
7.5 Of the direct costs arising from the replacement delivery, the Seller shall bear – insofar as the complaint proves to be justified – the costs of the replacement part including shipping. Any costs incurred by the Buyer shall be borne by the Buyer itself.
7.6 The Seller is not liable for damage to the goods caused by unsuitable, improper or non-contractual use or by faulty or negligent treatment, unless such damage is due to the fault of the Seller.
7.7 Liability for indirect damages and/or consequential damages caused by defective goods, in particular loss of profit, is excluded.
8. General limitation of liability, limitation period for claims
8.1 The Seller shall be liable for damages if the damage is due to intent or gross negligence on the part of the Seller, his representatives or vicarious agents. Liability for simple negligence is excluded, provided that there is no culpable breach of an essential contractual obligation (cardinal obligation), no injury to life, body or health of a human being exists, no mandatory liability based on the provisions of the Product Liability Act exists, the Seller has not fraudulently concealed a legal or material defect or has not assumed a guarantee for the quality of the delivery item. Claims for damages of the Buyer due to the negligent violation of essential contractual obligations are limited to typical, foreseeable damages.
8.2 Contractual and non-contractual claims of the Buyer arising from material defects and defects of title shall become statute-barred after a period of one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance. Claims for damages of the Buyer in case of intent and gross negligence of the Seller, for damages resulting from injury to life, body or health as well as according to the Product Liability Act shall, however, be subject to the statutory limitation periods.
9. Retention of title
9.1 The Seller retains title to the goods until full payment of the purchase price and of all claims arising from the business relationship between the Seller and the Buyer (Reserved Goods).
9.2 If the realizable value of the securities existing for the Seller exceeds his claims by more than 10%, the Seller will release securities of his choice to this extent at the Buyer’s request.
9.3 The Buyer must store the Reserved Goods properly and free of charge and insure them sufficiently at his own expense. It must provide the Seller with proof of insurance upon request.
9.4 If Reserved Goods are processed into a new movable item, the processing is carried out for the Seller without the Seller being obligated as a result. His reservation of title then also extends to this new item. If the goods are processed together with goods not supplied by the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the value of the Reserved Goods to the goods not supplied by the Seller at the time of processing.
9.5 If Reserved Goods are combined, mixed or blended with goods not supplied by the Seller in accordance with Articles 947, 948 German Civil Code, the Seller becomes co-owner in accordance with the statutory provisions. If the Buyer acquires sole ownership by combining, mixing or blending, it hereby assigns co-ownership to the Seller in proportion to the value of the Reserved Goods to the other goods at the time of combining, mixing or blending.
9.6 The item being owned or co-owned by the Seller according to clauses 9.4 and 9.5 shall also be regarded as Reserved Goods.
9.7 The Buyer is entitled to resell or use the Reserved Goods within the scope of his usual, proper course of business. However, this only applies with the proviso that the claims assigned in advance in accordance with clause 9.9 actually pass to the Seller. The Buyer is not entitled to dispose of the Reserved Goods in any other way, in particular not to pledge them or assign them as security.
9.8 If the Buyer defaults on payment to the Seller, it is only entitled to resell the Reserved Goods if it discloses the assignment to his customer and instructs him to make payment to the Seller. If the Seller only has co-ownership of the Reserved Goods, the Buyer must only instruct his customer to pay directly to the Seller the portion of the purchase price which corresponds to the invoice value of the Reserved Goods delivered by the Seller.
9.9 The Buyer hereby assigns in advance all claims from resale of the Reserved Goods to the Seller. The Seller accepts this assignment. If the Seller only has co-ownership of the Reserved Goods, the above agreed assignment in advance shall only apply to the amount of the invoice value of the Reserved Goods delivered by the Seller.
9.10 The Buyer remains entitled to collect the assigned claims for the time being. The authority of the Seller to collect the claims himself remains unaffected. The Seller undertakes not to collect the claims as long as and to the extent that the Buyer fulfills his payment obligations arising from the joint business relationship, is not in default of payment and in particular has not filed an application for the opening of insolvency proceedings or the initiation has not been rejected due to a lack of assets. The Buyer’s authority to collect the claim shall end automatically, upon occurrence of one of the events according to the preceding sentence. Upon request, the Buyer shall name the debtors of the assigned claims to the Seller, stating their contact details, and notify them of the assignment to the Seller. The Seller is also authorized to notify the debtors of the assignment himself.
9.11 If the Buyer is in default of payment, the Seller is entitled – even without withdrawing from the contract – to demand the return of the goods. In this case the Seller is obliged to return the goods without undue delay. In addition, the Buyer hereby irrevocably permits the Seller, or a third party commissioned by the Seller, to collect the goods without undue delay and to enter his business and storage premises unhindered for this purpose. The assertion of the reservation of title and the seizure of the Reserved Goods by the Seller shall not be deemed to be a withdrawal from the contract. After taking back the goods, the Seller is entitled to dispose of them by private contract. Any costs incurred for the return or taking back of the goods as well as the sale by private contract shall be borne by the Buyer. The proceeds of the sale shall be set off against the liability of the Buyer less reasonable costs of taking back and selling the goods.
9.12 The Buyer is obliged to inform the Seller without undue delay in writing about enforcement measures (or measures corresponding to this in other jurisdictions) of third parties in the Reserved Goods or in the assigned claims, handing over all necessary documents, in particular a copy of the enforcement protocol. At the same time, the Buyer shall send the Seller an affidavit in which the Buyer declares that the goods subject to the enforcement measure are goods delivered by the Seller and are subject to the Seller’s reservation of title. The costs of the Seller’s intervention against the enforcement measure shall be borne by the Buyer, unless they are reimbursed by the third party.
10. Applicable law, place of jurisdiction, partial effectiveness
10.1 The law of the Federal Republic of Germany shall apply exclusively under exclusion of referral norms and the provisions of the UN Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG).
10.2 Exclusive place of jurisdiction is Dillingen an der Donau, Germany.
10.3 Should individual provisions of these terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions. Should a partial clause be ineffective, the effectiveness of the remaining clause remains unaffected if it can be separated from the partial clause in terms of content, is otherwise understandable in itself and results in a remaining reasonable provision in the overall structure of the contract.