General Terms and Conditions
Scope of application, exclusion of other terms and conditions
(1) All our offers, deliveries and services are based on these Terms and Conditions (hereinafter called "GTCs"). The following provisions apply exclusively to entrepreneurs as defined in § 14 Commercial Code (BGB), legal persons under public law or special assets under public law (hereinafter called "Customer").
(2) Our GTCs shall apply exclusively. The applicability of other general terms and conditions is generally excluded, except where we have explicitly agreed to them in writing.
(3) Our GTCs also apply if we accept the Supplier's delivery without reservations even if we are aware of Customer terms and conditions varying from or contrary to our Terms and Conditions.
(4) In permanent business relationships, our GTCs also apply to future offers, deliveries and services to the Customer without repeated explicit reference
Contract conclusion, scope of delivery, prohibition of transfer, call order obligation
(1) Our offers are generally free of charge and subject to changes, except where agreed otherwise in writing. Conclusions and agreements only become binding following our written order confirmation or our delivery. The same applies to additions, changes or ancillary agreements.
(2) Unless explicitly agreed otherwise, the contract conclusion shall also be subject to the correct and timely delivery to us by the supplier. This only applies in case we are not responsible for a failure to deliver, particularly in case of a corresponding covering transaction with our supplier. The Customer shall be informed of the unavailability of a service immediately. Any already paid considerations shall be reimbursed.
(3) The scope of the delivery and service shall be determined based on our written order confirmation or, where this is not available, our offer.
(4) All information relating to our products, especially any illustrations, weights and taste descriptions in our offers and printed documents, are approximations of the given average values. We expressly reserve the right to the usual tolerances in terms of shape, colour, weights and measurements
(5) Documents and records on which our offer is based, such as illustrations, descriptions, weights and measurements, shall only be a component of the contractual agreement to the extent that this has been explicitly agreed in writing. We reserve the right to make changes and adjustments which do not significantly impact the purpose of the contract and the delivery.
(6) All order documents, templates, cost estimates, documents and records - including in electronic formats - shall remain our property and must not be kept or copied by the customer or otherwise duplicated or made accessible to third parties. Upon our request, they must be either handed over to us or deleted immediately at our option. All property rights to these documents in our favour shall remain in place, even if we relinquish these documents to the customer.
(7) We reserve the right to make changes to the products during the delivery period, to the extent that this does not involve any basic changes to the purchase object or its appearance and this does not restrict the contractual purpose of the delivery for the Customer in an unreasonable way.
(8) The transfer of any claims on the part of the Customer to us shall only be permissible with our explicit written approval. The same applies to the Customer's legal claims in the context of the contractual relationship.
(9) Where the Parties have concluded a consignment warehouse contract and this has not been specified otherwise, the Customer must recall the goods at the latest within 6 months of the goods being deposited.
Prices, payment, partial payment
(1) Unless agreed otherwise, our prices for deliveries shall apply "ex works", Incoterms 2010, and are net prices inclusive of the costs of packaging, however not including the applicable sales taxes, even if these are not shown separately, and not including the costs for freight, dispatch, insurance payments, customs duties, bank and transactions costs for payments and other costs that may arise.
(2) Our invoices are due for payment immediately without discounts.
(3) The Customer shall be in payment default at the latest 30 days after receipt of the invoice, unless other circumstances justifying the delay have been agreed (e.g. a payment reminder or a shorter payment period or a payment deadline by calendar date). The Customer shall pay default interest from the time that the default first occurs of 9 percent above the base interest rate. Moreover, in the event of a default, a default lump sum of € 40.00 will be charged. This shall not affect any other contractual or legal rights.
(4) In the event of a payment default, we shall be authorised to make deliveries dependent on the full payment of the overdue receivables.
(5) Unless agreed otherwise in writing, we are authorised to adapt our prices and/or freight rates, to the extent that our costs for wages and salaries, raw materials or operating materials, energy costs, freight costs and customs duties or other materials increase by more than an insubstantial amount. This right also applies to deliveries and services from a continuing obligation.
(6) If the payment terms are not observed or circumstances become known or are identified, which we, based on our dutiful discretion as entrepreneurs, consider to give rise to doubt regarding the Customer's creditworthiness, including facts which already existed at the time that the contract was concluded but which were not known to us nor had to have been known to us, we shall be authorised in such cases, further legal rights notwithstanding, to cease any further work on ongoing orders or stop deliveries and demand payment in advance for any outstanding deliveries or demand the provision of securities approved by us as well as, after an appropriate period of grace for providing such securities has expired unsuccessfully, to - other legal rights notwithstanding - withdraw from the contract. The Customer is obligated to compensate us for any damage resulting from the non-performance of the contract.
(7) In case of payment default by our Customer, suspension of payment or an application for insolvency proceedings to be initiated over the Customer's assets, all our receivables shall fall due immediately. This also applies if payment targets have been agreed or to the extent that the receivables are not yet due for other reasons. Moreover, this shall also apply regardless of the term of bills of exchange which we have accepted.
(8) The Customer's counterclaims may only be set off to the extent that the counterclaims are undisputed or have been legally confirmed.
(9) We shall only accept cheques and bills of exchange as means of payment if we have previously agreed to such means of payment in writing in advance. Any costs incurred by us from such payment shall be borne by the Customer.
(10) All payments must be made exclusively to us in EUROs. Any exchange rate risks shall be borne by the Customer.
(1) The delivery time shall be based on the agreements between the Parties.
(2) The agreed delivery period is the aimed for delivery period, except where explicitly agreed otherwise in writing.
(3) The agreed delivery period shall start at the earliest when the contract is concluded and assumes that all commercial and other relevant questions have been resolved. The start of the delivery period assumes that the customer has made all the necessary documents and approvals available and has made any agreed payments in advance.
(4) Meeting the delivery deadline is subject to the correct and timely supplier delivery.
(5) Delivery shall be "ex works", Incoterms 2010. The Customer is obligated to collect the goods immediately after being notified that they are ready for dispatch.
(6) The delivery period for delivery "ex works", Incoterms 2010, has been observed if the purchase item has been parcelled out and is ready for dispatch within the agreed period and the Customer has been informed of this. In case of a sale by dispatch, the delivery period has been observed if the purchase item was handed over to the haulier within the agreed period or was ready to be handed over and could not be handed over for reasons outside our control.
(7) The delivery period shall be extended to an appropriate extent, if Acts of God occur or in the event of unforeseeable, extraordinary incidents relating to us or our suppliers. Unforeseeable events in this sense are, in particular, riots, strikes, lock-outs, fire, seizure, boycott, legal or official decrees and restrictions or inappropriate or delayed deliveries by our suppliers, to the extent that we are not responsible for these events and they do not relate to our performance obligations. If the delivery period is extended to an appropriate period due to such circumstances, the Customer is authorised to withdraw from the contract after this longer delivery period has ended. If the Customer is interested in partial deliveries, the Customer may also withdraw from parts of the contract. To the extent that partial deliveries and/or partial services have already been provided, the Customer may only withdraw from the whole contract, if it can provide proof that it is not interested in a partial delivery and/or service from us. This shall not affect any further legal or contractual withdrawal rights.
(8) Deliveries before the end of the delivery period and partial deliveries are permissible to the extent that they are reasonable for the Customer.
(9) Excess deliveries or incomplete deliveries are permissible up to 5%, to the extent that this is reasonable for the Customer.
(10) If the Customer is in default of acceptance, or if it is otherwise responsible for a delay in the dispatch, we may store the products at the Customer's risk and expense and charge them as delivered ex works. After a period of grace for accepting the products has been set and has expired without success, we may withdraw from the contract and demand compensation in lieu of service. This shall not affect any other rights. It shall not be necessary to set a grace period if the Customer seriously and finally refuses acceptance or if it is apparent that it will also be unable to pay the purchase price or accept the delivery within the grace period. The amount of 20% of the order value will be charged for the damage. The damage will be set off with the previous downpayment. It is up to the Parties to provide evidence that the actual damage was higher or lower.
Transfer of risk, dispatch, packaging
(1) Unless agreed otherwise in writing, the delivery items will be transferred to the Customer from our factory.
(2) The risk of incidental loss or incidental deterioration of the delivery items shall therefore pass to the Customer from the time of the notification that the delivery items are ready for dispatch and have been singled out. This also applies if we have accepted additional services such as loading, transport and unloading. If the dispatch of the items is delayed for reasons for which the Customer is responsible, the risk of incidental loss shall pass to the Customer at the time of the notification that the delivery is provided.
(3) If sale by dispatch has been agreed, the risk of incidental deterioration or incidental loss shall pass to the buyer at the latest when the delivery items are dispatched or when they are transferred to the transport agent ex works or from the dispatch location. If the dispatch is delayed due to the Customer's behaviour, the risk shall pass to the Customer at the time of the notification that the delivery items are ready for dispatch. §5 para. (2) Sentence 3 applies accordingly.
(4) To the extent that we perform the transport for the Customer, the type of packaging and dispatch of the items shall be our responsibility, unless agreed otherwise in writing.
(5) It is the Customer's responsibility to take out transport insurance.
(6) Where it has been agreed that we shall bear the risk of incidental loss or incidental deterioration of the delivery items, the Customer is obligated to check the dispatched goods for external transport damage immediately upon receipt of the goods, in the presence of the haulier. The Customer is obligated to report any externally visible loss or damage of the delivery item to the haulier at the latest upon delivery, clearly indicating the loss or damage, and to inform us of this in writing without delay. Any externally visible loss or damage must be reported to us in writing within 5 calendar days. The provisions of § 438 of the Commercial Code (HGB) and the complaint obligations pursuant to § 7 shall apply in addition.
Retention of ownership
(1) We reserve ownership in all items delivered by us until full payment of all outstanding receivables from the business relationship with the Customer, including receivables from cheques and bills of exchange. In case of payment with cheques and bills of exchange, we reserve ownership in the delivered items until the recourse right has ended.
(2) The Customer agrees to label the contractual object subject to a retention of ownership in an externally visible way with "in the ownership of Pfalzgraf Konditorei GmbH" at any time at our request or in the event of an application for insolvency.
(3) The Customer is obligated to treat the item subject to retention of ownership with care; in particular, it is obliged to sufficiently insure it at its reinstatement value against fire, water and theft damage at its own expense.
(4) If the Customer processes the items subject to a retention of ownership, this shall be done for us as the manufacturer within the meaning of § 950 BGB. If the goods delivered by us is processed or irretrievably mixed with other items, we shall acquire co-ownership of the new items in the proportion of the invoice value of the goods to the other items used. The Customer may process the delivery items further in the context of ordinary business processes, to the extent that the mentioned security interests are protected.
(5) The Customer may sell on the delivery items in the context of ordinary business processes, to the extent that our retention of ownership to the items remains protected pursuant to the following paragraph. The Customer is prohibited from any assignments, assignments of security, pledging measures etc.
(6) In the event of a further sale of the delivery items, the Customer hereby transfers all receivables to us which could arise in relation to third parties through a sale. We hereby accept this transfer. To the extent that we are merely the co-owners of the sold goods, the transfer shall only apply up to the amount of our receivables in relation to the Customer.
(7) We hereby revocably authorise the Customer to collect the receivable transferred to us in its own name and on our account. This authorisation may only be revoked if the Customer fails to properly meet its obligations under this contract, particularly its payment obligations, if it becomes insolvent or illiquid, if an application to launch insolvency proceedings is submitted or if such an application is rejected due to a lack of assets. In the event that the authorisation to collect our receivables is revoked, the Customer must inform the debtor of the transfer of the receivable to us. We are also free to disclose the longer retention of ownership to the third party.
(8) The Customer's right to dispose of the goods subject to a retention of ownership, to process them or to collect the transferred receivables, shall cease without an explicit revocation, if insolvency proceedings regarding the Customer's assets are launched or if they are rejected due to a lack of assets, if payments cease, if an application to launch insolvency proceedings is submitted by the Customer or a third party or in case of an inability to pay or overindebtedness. In such cases and in the cases of § 6 (7), we shall have the right to withdraw from the contract after an appropriate notice period, with the result that we may take back the goods subject to a retention of ownership. The Customer is obligated to hand over the goods subject to a retention of title. We shall set off any proceeds from a disposal of the goods subject to a retention of title - less the costs of the sale - with the Customer's obligations.
(9) In the event that the authorisation to collect our receivables is revoked, the Customer is obligated to disclose to us immediately in writing the names of the third parties against whom receivables apply from the transferred right as well as the amounts of said receivables.
(10) If the securities transferred to us exceed the secured receivables by more than 20%, we are obligated to release securities of our choosing in an appropriate amount at the Customer's request.
(11) The Customer must notify us immediately in writing if third parties gain access to the goods subject to the retention of title, the transferred receivables or other documents and records. All legal defence costs relating to our retained goods, including in relation to third parties, shall be borne by the Customer.
Duty to make complaints and to investigate
(1) The Customer is obligated to check the goods at its own expense immediately following delivery at the agreed destination or, in case of a collection, upon handover,
a) to determine the number of items, weight and packaging and
b) to, at a minimum, carry out representative quality control based on samples, for this purpose to open the packaging and check the goods themselves based on their appearance, smell and taste and, for frozen goods, at a minimum, to defrost samples for this purpose.
(2) For goods in their original packaging, the printed net weight and the number of items specified on the packaging shall be material. A loss due to freezing of up to 2% shall not constitute a material defect.
(3) In accordance with §§ 377, 378 HGB, any identified defects, incorrect quantities or incorrect deliveries must be reported to us in writing without delay, however at the latest within 24 hours of delivery, and in any case before they are combined, mixed, processed or installed; otherwise, the delivery item is deemed to have been approved, except where we or our legal representatives or agents are guilty of malicious intent. Hidden defects must be reported to us immediately in writing, however at the latest 24 hours after they are discovered. §§ 377, 378 HGB shall also apply.
(4) The Customer is obligated to keep the goods subject to a complaint ready for inspection by us or by experts commissioned by us at the investigation location. If the complaints relate to frozen goods, the Customer shall be obligated to store the frozen goods in accordance with the applicable legal requirements. We are entitled to demand evidence that the cold chain has not been disrupted.
(5) If the Customer discovers a defect which limits or excludes the marketability of the goods under food law, it must not process the goods further or hand them over / sell them to third parties.
(1) We shall be liable for any material or legal damage of the delivery item in accordance with the provisions below which already exist at the time that risk is transferred. The legal provisions also apply.
(2) Only the immediate buyer shall be entitled to warranty claims against us and these claims cannot be transferred without our approval.
(3) Certain properties shall generally only be deemed to have been warranted if we explicitly agreed to this in writing. A guarantee shall only be deemed to have been accepted by us if we have described a property as "guaranteed" in writing.
(4) The limitation period of the Customer's defect claims shall be one year, subject to the following provisions of this para. (4), starting from the start of the statutory limitation period. If we maliciously concealed a defect, the legal deadlines for such compensation claims shall apply. The legal deadlines shall also apply to the limitation period for any compensation claims by the Customer due to defects where we are guilty of intent or gross negligence, or if the compensation claim is based on a loss of life, bodily harm or damage to health. This shall not affect the provisions of §§ 438 para. 1 No. 2 and 634a para. 1 No. 2 BGB.
(5) In substance, our warranty for material and legal defects shall be limited to supplementary performance. In the context of our obligation to provide supplementary performance, we are authorised to choose at our option whether to provide a repair or a replacement delivery. If we fail to meet this obligation within an appropriate period or if a repair fails in spite of repeated attempts, the Customer is authorised to reduce the purchase price or to withdraw from the contract. The contract cannot be reversed if only an insignificant defect applies. Moreover, to the extent that we have provided defect-free partial deliveries, a reversal of the contract is only permissible, if it can be shown that the Customer's interest in the performed partial deliveries no longer applies. Claims, particularly claims for compensation or damages, shall only apply in the context of the provisions of § 9 below.
(6) The Customer shall send us the defective goods for repair or a replacement delivery at its own risk, except where the return delivery is not possible based on the type of delivery. We shall bear any transport costs incurred for the purpose of supplementary performance, however only from the location to which the purchased goods were delivered in accordance with the provisions and only up to the amount of the purchase price.
(7) The Customer must grant us the time and the opportunity required for the repair or replacement delivery. The Customer shall only have the right to repair the defect itself or to arrange for third parties to repair it and to demand the necessary costs from us as compensation in urgent cases where operating safety is at risk, to defend against disproportionately higher damage or if we are in default regarding the removal of the defect.
(8) Recourse rights pursuant to §§ 478, 479 BGB shall only apply to the extent that the consumer's claim was justified and only to the extent of the law, however not for goodwill arrangements agreed with us. Such rights shall also require that the person authorised to recourse observes all of its own obligations, particularly the obligation to make complaints.
(9) Further processing of any goods delivered by us shall always be treated as a waiver of the defect report, to the extent that the defect was identifiable.
(10) In case of justified defect reports, the Customer may only withhold payments in an amount that reasonably corresponds to the material defects. If the defect report was not justified, we are authorised to demand compensation from the Customer for the costs incurred by us in this context.
(11) Defect claims shall not apply in case of only minor deviations from the agreed or usual quality or usability, e.g. insignificant deviations in terms of colours, measurements and/or quality or the products' performance features.
(12) Material defects must always be acknowledged in writing.
(13) Our warranty does not cover the suitability of the delivery item for the Customer's intended purpose where this deviates from the usual purpose, unless this has been agreed in writing.
(1) We shall only be liable for damage, irrespective of the legal reason,
a) to the extent that we, our legal representatives or our agents are guilty of intent or gross negligence
b) in the event of culpable loss of life, bodily harm or damage to health
c) in the event of a culpable violation of material contractual obligations
d) in the event of defects which we maliciously concealed or whose absence we guaranteed
e) to the extent that liability applies according to the Product Liability Act for personal injury or material damage to privately used items.
(2) We shall not be liable for any further claims for damages.
(3) Contractual obligations are material if their performance makes the proper performance of the contract possible in the first place and on the performance of which the contract partner does and can regularly rely.
(4) However, in the event of a culpable violation of material contractual obligations, we shall only be liable up to the reasonably foreseeable damage which would be typical for this type of contract.
(5) Typical, foreseeable damage must be deemed to be the amount of the contract value of the relevant service.
Call orders, consignment warehouse goods
(1) In the context of call orders, the Customer is obligated to call up the agreed volume from us at the latest by the end of the contract, unless agreed otherwise, however in good time before the best before date. We shall be entitled to performance and/or compensation claims based on a culpable violation of this call obligation.
(2) For consignment warehouse goods, the Customer is obligated to remove them from the consignment warehouse within 3 months of them being deposited. We shall be entitled to performance and/or compensation claims based on a culpable violation of this removal obligation, including to right to an appropriate price adjustment and the assertion of additional costs including storage costs.
Place of performance, jurisdiction, choice of law
(1) The place of performance for all claims from this business relationship between us and the customer shall be Pfalzgrafenweiler, Germany
(2) The exclusive jurisdiction for all claims from this business relationship, including claims relating to cheques and bills of exchange, shall be Freudenstadt, to the extent that the Customer is an entrepreneur, a legal person under public law or special assets under public law. However, we are authorised to assert claims against the customer at its general jurisdiction.
(3) Exclusively the law of the Federal Republic of Germany shall apply to any and all disputes relating to contracts subject to these GTCs and any and all disputes from the business relationship between us and the Customer. The application of UNCISG and the international conflict of law provisions shall be excluded.
If individual provisions of these GTCs are invalid in whole or in part, this shall not affect the validity of the remaining provisions.
Version: 10 October 2016
Pfalzgraf Konditorei GmbH - Zeißstrasse 6 - DE 72285 Pfalzgrafenweiler
Tel: +49 7445 / 85 10-0
Fax: +49 7445 / 85 10-27