(1) These terms and conditions of sale shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
(2) These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if FISMER LECITHIN GmbH performs delivery despite our knowledge of differing or contrary terms.
(3) These terms and conditions of sale shall only apply vis á vis merchants, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).
2. Offer, Acceptance
Offers made by FISMER LECITHIN GmbH are without obligation. Insofar as the order constitutes an offer within the meaning of sec. 145 BGB FISMER LECITHIN GmbH is entitled to accept the offer within two weeks. The contract is not concluded until receipt of our order confirmation. This takes place no later than the receipt of our invoice or delivery at the customer.
3. Prices, Payment
(1) Prices are stated in EURO and ex works inclusive of costs for packaging, exclusive of the respective statutory VAT, except as otherwise expressly agreed upon. Checks or negotiable instruments will be accepted on account of performance but are not considered payment until after they have cleared.
(2) As long as amounts due including interest are not paid FISMER LECITHIN GmbH is not obligated to make any further deliveries arising from current contracts.
(3) Insofar as the costs for raw material, production or transportation increase or new public fees are imposed or public fees increase or if statutory provisions or administrative directives cause higher costs after the conclusion of contract, then a corresponding increase in the purchase price will be governed by FISMER LECITHIN GmbH by using equitable decretion according to sec. 315 para. 1 BGB (German Civil Code). The same is true for other circumstances which were not foreseeable by FISMER LECITHIN GmbH at the time the price was agreed and which change the calculations of FISMER LECITHIN GmbH so significantly that it is justified to raise the purchase price accordingly.
4. Delivery, Shipment, Passing of Risk
(1) The delivery shall be made ex works Hamburg or warehouse, unless otherwise agreed. The customer is responsible for the shipping costs and bears the transportation risks even if the goods are shipped freight paid (free of charge).
(2) The goods are measured, weighed or counted at the location selected by FISMER LECITHIN GmbH to determine the quantity of the goods corresponding to the price.
(3) Delivery is conditioned upon timely and proper performance of all duties of the customer. Defences based on non-performance of the contract are reserved.
(4) In case of default in acceptance or other breach of duties to cooperate by the customer FISMER LECITHIN GmbH is entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the customer at the time of such default or breach of duty to cooperate.
(5)The customer agrees to extend the delivery date by four weeks, if FISMER LECITHIN GmbH is late in delivery. Before this extension date no claims regarding late delivery can be made by the customer.
(6) Insofar as FISMER LECITHIN GmbH receives information which leads to the conclusion that the creditworthiness of the customer is negatively affected, FISMER LECITHIN GmbH has the right to change the delivery and payment conditions.
5. Offset, Retainer
The customer shall be entitled to offset only insofar as the customer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The customer is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
6. Retention of Title
(1) FISMER LECITHIN GmbH retains title to the goods until receipt of all payments in full. In case of breach of contract by the customer including, without limitation, default in payment, FISMER LECITHIN GmbH is entitled to take possession of the goods.
(2) The customer shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
(3) As long as the purchase price has not been completely paid, the customer shall immediately inform FISMER LECITHIN GmbH in writing if the goods become subject to rights of third persons or other encumbrances.
(4) The customer may resell goods subject to the above retention of title only in the course of his regular business. For this case, the customer hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to FISMER LECITHIN GmbH. Notwithstanding the right of FISMER LECITHIN GmbH to claim direct payment the customer shall be entitled to receive the payment on the assigned claims. To this end, FISMER LECITHIN GmbH agrees to not demand payment on the assigned claims to the extent the customer complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(5) FISMER LECITHIN GmbH must be considered as the producer of the finished goods as well as of goods in the treated and processed stages. If the treatment or processing is carried out with goods that belong to the customer or a third party, then FISMER LECITHIN GmbH become the co-owner of the resulting goods.
(6) FISMER LECITHIN GmbH is obligated to release such securities by free choice upon the customer’s request, if the above securities exceed the secured claim by more than 10%.
(1) Precondition for any warranty claim of the customer is the customer’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code). Therefore obvious defects must be reported in writing immediately, no later however than with 14 days after receipt of the goods. Hidden defects must be immediately reported after they are discovered. The defect goods shall be returned upon request of FISMER LECITHIN GmbH while all other processing or use of the goods must be suspended to give FISMER LECITHIN GmbH the opportunity to correct and examine the reported defect. FISMER LECITHIN GmbH is not liable for damages caused through processing goods with obvious defects. FISMER LECITHIN GmbH is only liable under the prerequisites of Subclause 8 (Liability) for all other disadvantages of the customer due to the defect.
(2) Warranty claims shall be time-barred after 12 months of the passage of risk.
(3) In case of non-conformity of the goods the customer is entitled to alternative performance in the form of remedy of the defect or delivery of conforming goods. If such alternative performance has failed, the customer is entitled to reduce the purchase price or to withdraw from the contract.
(1) In case of intent or gross negligence on our part or by our agents or assistants in performance FISMER LECITHIN GmbH is liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage.
(2) The liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
(3) Any liability not expressly provided for above shall be disclaimed.
9. Force majeure
(1) In case of a force majeure event (e.g. war, hostilities, rebellion, strikes if not caused by the fault of the employer, floods, earthquakes, tsunamis or other natural disasters, without exception) liability for delays or failures shall be excluded for both parties.
(2) Insofar as a force majeure event occurs the parties agree to meet within five business days as of the day on which one party informs the other of the event, in order to agree on how to perform the service and possibly review the timing thereof.
(3) If a force majeure event prevents FISMER LECITHIN GmbH from providing the service for a period longer than 120 days, the customer shall be entitled to immediately withdraw from the agreement by giving written notice.
§ 10 Applicable law, Jurisdiction
(1) This contract shall be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts for the International Sale of Goods and its conflict of laws provisions.
(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Hamburg, Germany.