1. All goods and services are subject to our Terms and Conditions. Differing terms and conditions of the buyer shall also not be accepted by us even if we have not expressly objected to them. Deviations from our Terms and Conditions shall only be valid with our express written consent.
2. Our offers are not binding unless expressly agreed otherwise in writing. Samples or specimens sent by us are non-binding. Features also of samples or specimens are only assured if this is expressly accepted by us in writing. Supply contracts are effective only after our written confirmation (contract note). This also applies to orders that are given to our representatives.
3. Only our written order confirmation (contract note) is applicable for the nature and scope of our deliveries, even if they deviate from the order or previous written or verbal discussions. The content of the written order confirmation also applies exclusively with reference to the order.
4. The delivery times specified in the order confirmation (contract note) are only binding if they are expressly confirmed as binding in writing. Delivery deadlines shall be suspended during events of force majeure, operational breakdowns, or traffic disruptions, and especially in the case of partial manufacturing or delivery failures due to fire, floods, energy or raw materials shortage, strikes, lockouts, shipping disruptions, orders from national or European authorities, and other influences on production and shipping beyond our control. The same is true of operational breakdowns or traffic disruptions at the manufacturer plant. If an agreed delivery date that has been extended as the circumstances require in accordance with the preceding paragraph is exceeded by more than six weeks, the buyer is entitled to set us a reasonable grace period for delivery, which must be at least another six weeks. If delivery has not been made by the end of the grace period, the buyer has the right to terminate the contract. The termination must be declared immediately, at the latest within two weeks after the expiry of the set grace period. Claims for damages by the buyer due to late delivery or non-delivery, regardless of the contractual or non-contractual legal basis, are in any case excluded.
5. If no agreement on the acceptance of the goods is reached, the goods must be recalled in approximately equal monthly partial quantities. We are not obliged but shall be entitled to make subsequent deliveries of quantities that are not accepted or recalled in time. If the customer has undertaken to recall a certain quantity within a certain deadline, the customer shall remain obliged to accept and pay for quantities that are not recalled even after the deadline has expired. The goods that are not recalled or accepted shall be stored at the risk and expense of the buyer. We are entitled to withdraw from the contract or to claim damages for non-fulfilment after a grace period of two weeks to be set. If we claim damages for non-fulfilment, we are entitled to demand either the purchase price without proof of damage or compensation for the actual damages. If partial deliveries have been agreed, these rules apply with respect to the entire contract if the buyer defaults on the recall or acceptance of a partial delivery.
6. The final price is always based on the cheapest freight route. If the goods are transported by water, this is always subject to open and unhindered navigation. If, in the event of impeded shipping, the buyer demands delivery by rail or lorry, the resulting freight differences shall be at the expense of the buyer. Ice or low-water hammering or flood demurrage shall also be borne by the buyer. We may add any freight, customs, or tax increases that arise after the purchase has been concluded in full to the agreed prices. When the annual campaign begins, the old prices and conditions are invalid for campaign-related goods for the quantities not yet accepted, unless expressly agreed otherwise in writing. The purchase agreement remains otherwise effective. We will announce the new prices and conditions without undue delay. As far as we act as a commission agent for a foreign manufacturer, the buyer is in no way entitled to demand a price adjustment because of possible changes in currency parities.
7. The risk is in all cases transferred to the buyer when the goods are dispatched or when we communicate our readiness for dispatch. Payments must be made in cash and without any deductions upon receipt of invoice. If payment has not been made by the 15th day after the invoice date, we may charge interest for late payment without having to send a special reminder or set a deadline. We are also entitled to terminate the contract or claim damages for non-fulfilment at our discretion without issuing a reminder or setting a deadline. If partial deliveries within the period specified are not paid for, we can also withdraw from the entire contract or claim damages for non-fulfilment of the whole contract. At our discretion, we can take non-payment for a partial delivery as a reason to provide more partial deliveries only after payment in advance. The date of receipt of payment shall be the date on which the amount is available to us without charges. The buyer is not entitled to assert or offset a right of retention against our claims for payment.
8. We reserve the ownership of the delivered goods until all our claims arising from business relations with the buyer, regardless of the legal basis, have been settled. The ownership shall only be transferred to the buyer once they have settled all their liabilities arising from our deliveries of goods. In current account transactions, the reserved ownership serves as security for our balance claim. As far as our ownership of the goods lapses due to processing, the buyer shall transfer the ownership of the new goods resulting from the processing to us straight away in proportion to the invoice value of the goods we delivered compared to the value of the new goods. The buyer shall keep the new goods for us with due diligence. The buyer is entitled to resell the goods supplied by us or the new goods resulting from processing or mixing revocably at any time as part of their ordinary course of business. Pledging or assignment as security is forbidden. The buyer must inform us immediately in the event of seizure or any other impairment of our rights. If the buyer sells the goods delivered by us - irrespective of their condition - they thereby assign any claims against their customer arising from the sale, along with all ancillary rights, to us until all our claims arising from delivery of goods have been settled. The customer is entitled and obliged to collect the claims assigned to us as long as we do not revoke this authorisation. The collection authority shall expire without express revocation if the buyer stops payment. At our request, the buyer must inform us to whom they have sold the items delivered by us and which claims arose from the sale, immediately and in writing. They must also release to us the documents necessary for the assertion of the claims assigned to us. We are entitled to inform the buyer's customer that the buyer has assigned the claims to us and to collect the claims. We undertake to transfer our due ownership of the goods and of claims assigned to us to the buyer at their request, if and insofar as their value exceeds the value of the total claims owed to us by 20%. If the buyer is in default of their payment obligation, or their financial circumstances worsen significantly, or if they violate other contractual obligations, the remaining debt will be payable immediately. In these cases we are entitled to demand that the goods be surrendered and to collect them from the buyer, while maintaining the purchase agreement (the buyer has no right of possession), notwithstanding our other rights.
9. We must receive notice of defects immediately in writing, no later than within ten days after the goods have been received, and, in the case of hidden defects, not later than within five days after the defect has been discovered. If these deadlines are not complied with, warranty claims can no longer be asserted. We provide a warranty for recognisable or hidden defects or the absence of assured properties within six months after the date of delivery only in the sense that we shall repair the goods or subsequently deliver defect-free goods free of charge at our discretion. Other claims by the buyer, especially claims for damages - on whatever legal grounds - are excluded. The buyer must grant us a reasonable time to repair or replace the goods. If we fail or refuse to remedy the defect or deliver new goods within this period, the buyer is entitled to withdraw, to the exclusion of all compensation claims. Any liability, regardless of the contractual or non-contractual legal basis, lapses if the delivered goods are modified, processed, mixed, blended, combined, or handled improperly. Our liability for usage advice and recipes, for whatever legal reason, is excluded. Even in cases of complaints, the purchase price must be paid in full first. Deductions, offsetting, and rights of retention are always excluded. We are not obligated to repair or replace goods if the buyer fails to meet their contractual obligations. In the case of notices of defects, we are entitled to require the involvement of sworn experts to be commissioned by us. The buyer will provide the experts with the defective goods as well as all related documents for viewing and inspection.
10. The buyer can only assign claims against us, regardless of the contractual or non-contractual legal basis, with our prior express written consent.
11. If individual provisions of these terms and conditions or of the delivery transaction are or become invalid, the validity of the remaining provisions shall not be affected. The contracting parties are obliged to agree on a new provision that comes closest to the purpose intended by the invalid provision.
12. The relationships between the buyer and us are subject to the law of the Federal Republic of Germany. The place of fulfilment for all contractual or non-contractual obligations resulting from the delivery transaction and the place of jurisdiction for all disputes in connection with the delivery transaction - including during dunning procedures and processes and involving documents, particularly bills of exchange and cheques - is exclusively Hamburg, unless another place fulfilment and jurisdiction is given due to mandatory legal provisions.
A. Schmidt Co. GmbH – Billstraße 174 – 20539 Hamburg