General terms and conditions

General terms and conditions of Hülshorst Feinkost GmbH

1. Conditions of delivery and payment

• The following conditions of delivery and payment are a general part of every contract purchaser/ customer are signing with our company.
• The present terms and conditions shall apply in their latest version to all follow-up business even though they are not explicitly mentioned or agreed.
• Oral side-agreements are generally invalid.
• Variations of these general terms and conditions especially purchasers/customers terms of purchases are not binding us even though we do not explicitly disagree. Their validation needs our explicit written confirmation. Customer terms are only binding us if they are explicitly confirmed in writing.

2. Conclusion of contract

• Our offers are – particularly regarding volume, price a delivery date – without obligation.
• Purchase orders are only binding us as they are confirmed in writing or fulfilled by delivery of the goods. This shall also apply for purchase orders from deputies or salesman.
• In general only prices which are agreed in the order confirmation shall apply.

3. Prices, weights

• Our prices are net prices plus applicable VAT.
• In cases of deliveries to a purchaser / customer located in the EU the purchaser / customer has to confirm, that the goods have reached the EU- destination. The confirmation must be given until the 10th of the month which follows the month of delivery. If we don`t get a conformation or if the confirmation does not fulfil the regulation of the German VAT law we are entitled to charge the VAT to the purchaser/ customer.
• In case of additional fees due to changes in legal conditions in the period from confirmation of contract to delivery date – especially tolls – we are entitled to raise the prices.
• The calculation of the purchase prices is based on the weights at the time of loading. Weights are checked by an expertised weigher before they are loaded; Customer complaints have to be done in accordance to point 4 of these terms.

4. Delivery time

• Agreed delivery times are always approximate and not binding, unless we have confirmed the date in written to be a fix delivery date and the purchaser/ customer has declared upfront that the delivery of the goods can only be done on a fixed date. The compliance of the delivery date is subject to correct and timely self-delivery.
• As long as the purchaser/ customer has an obligation from a former common business relationship our delivery duty is inactive.
• The purchaser/ customer has the right to terminate the contract without a termination period if the delivery is impossible for us before the transfer of risk has been taken place. The purchaser has furthermore the right to terminate the contract if a purchase order can only be fulfilled partially and the purchaser / customer has a legitimate interest to reject a partially delivery. If that is not the case the purchaser / costumer is obliged to pay for the partial delivery.
• If the delivery becomes impossible due to act of nature beyond control or because of unforeseen events we are not responsible for, we are released from our obligation as long the event will last. Such events are particularly business disruptions in the course of pandemics, strikes, lockouts, official directives, subsequently abolition of export or import possibilities and our self- delivery exception.

5. Inspection and complaints

• Before processing the goods the purchaser / customer has the obligation to
  1. Check the goods regarding quantity, weights and defect packing and to note his complaints on the delivery note or waybill.
  2. To perform a representative quality control (sample testing).
• The purchaser / customer has the obligation to check the invoice, especially the price and weights.
• In case of complaints the following deadlines are valid:
  1. Complaints of obvious quality defects have to be notified until the end of the next working day following the day of delivery respectively take-over.
  2. Complaints of hidden quality defects, which are not discovered by the quality check in accordance to (1) have to be notified at latest 10 working-days after the day of delivery or take-over and within 10 days since notice of the defect.
  3. Quantity complaints have to be notified immediately, at latest at the end of the next working day following the delivery day.
  4. Price complaints have to be notified at latest 5 working days after delivery respectively take-over.
• Complaints are only accepted in written words and within the aforementioned periods.
• Goods which are not complaint in the right form and on-time are applied to be accordingly delivered.

6. Guarantee, limitation of liability

• For damages, which do not apply to the delivered goods, we are only liable in case of premeditation, gross negligence of owners / executive staff, culpable violation of life, body, psyche, health, in case of defects which we have maliciously concealed as well as for defects of delivered goods as far as we are liable by the Product Liability Act for personal injury or product damage at private used subjects.
• In case of negligence of main contract obligations we are also liable for gross negligence of other employees and in case of slight negligence, in the last case unlimited regarding typical contractual, reasonable predictable defects. Further claims are excluded.
• Complaints, which are announced just-in time will be checked by our quality- control department and if applicable by an external expert. If complaints are justifiable, the purchaser / customer has the right to complain supplementary performance within an acceptable period. The choice of rectification of a defect or delivery of goods free from defects is up to us. Only if the remediation of the defect or the compensatory delivery has failed or becomes unreasonable, and the defect is not immaterial, the purchaser / customer has the right to resign from the contract in the range of the legal regulations or take reduction.
• For the condition of the goods the agreed product specification are valid. Public opinions, no matter from which side are not valid regarding the characteristics of the purchased goods.
• The specification of the expiration date of the goods is done in accordance to legal regulations and is neither a guarantee nor an agreement on the legal and factual nature.
• Every processing of the delivered goods performed by the purchaser / customer is a refining procedure and not covered by § 439 par. 3 BGB. §§ 445a, 478 BGB remain unaffected.

7. Payment

• Our purchase price is generally meant to be „net cash“ and due without any reduction within 21 days from the date of invoice as long as no other terms of payments are agreed in written. Cash discount deduction will be granted only based on contractual agreements.
• In cases of exceeded time-limits a penalty of at least 8% interest above the basic interest rate will be charged under reserve of enforcement.
• If the invoice comprises a release of covenant, payments in discharge of its obligation have to be done only to our factoring-partner. The documented release comprises also the reservation of ownership.
• If the purchase price will not be balanced just-in-time the claim will be part of our weekly dunning run. In case the claim will not be balanced after the second appeal we will immediately stop all deliveries.
• If there is no further business process on purchasers / customers side, especially in cases of executions, or if there are defaults of payment or an insolvency resolution we are entitled to pull in all claims from the business relationship immediately. The same applies in cases of a doubtful credit rating. In this case we are furthermore entitled to claim for prepayments or deposits for outstanding deliveries or services or termination of the contract.
• Purchaser / customer has the right of compensation, retaining or reduction only if his claims are locally, legally authorized, undisputed or explicitly acknowledged by us.

8. Place of fulfilment and title retention

• Place of fulfilment of all deliveries and services is Harsewinkel.
• All claims resulting from the business relationship with the purchaser / customer stay in our ownership until the purchase price has been finally paid.
• The purchaser / customer has the right to dispose the goods in a proper course of business as long as he meets his obligations of the business relationship just in time. The title retention covers all goods resulting from processing, mixture or combination of our goods, whereupon we are meant to be the manufacturer in this context. If the ownership of third party-goods in cases of processing, mixture or combination remains to the third party we will earn partially ownership of the manufactured goods proportionally to the invoice value of the manufactured goods. The purchaser / customer will be seen as a depositary.
• Claims against third parties resulting from resales will be directly surrendered in total by the purchaser / customer respectively partially according to the co-ownership. The purchaser / customer will be entitled to collect the claims for our account while suspending the payments to us.
• Pledging or transfer by way of security of conditional goods are forbidden. The purchaser / customer is obliged to inform us about pledging or other impairments of rights by third parties immediately. In case of payment delay or financial down-rating of the purchaser / customer we are entitled to request the conditioned goods immediately. Time-phased claims will then be due immediately. Only undisputed or legally binded claims entitle the purchaser / customer to set-off or hold back.

9. Empties

• As far as there are no other agreements the purchaser / customer is obliged to return empties (palettes, boxes, etc.) similarly of type, number and value as he has received it with our delivery.
• Empties are to be returned clean according to the applicable hygiene regulations.
• If the purchaser / customer is unable to return empties at the time of delivery he is obliged to balance the empties account immediately on his own account (obligation). If empties accounts are kept between both companies account balances will be submitted by us and must be checked by the purchaser / customer immediately. Balance differences must be notified in written within one week. Otherwise the submitted balance are valid.
• In case of a delayed return of empties by the purchaser / customer we are entitled to charge the financial loss to the purchaser / customer, to refuse the returned empties after an adequate grace period and claim for a money compensation.

10. Image copyrights and their usage

Images dedicated by us or which are already owned by the purchaser / customer shall only be used for the advertisement of our products. We are solely dedicating the right of use of the images. This right of use can be repealed at any time.

11. Place of jurisdiction and applicable law

• In case the purchaser / customer is a tradesman, place of jurisdiction is Gütersloh.
• In case the claim has been assigned to our factoring-partner on the date the suit is filed, the place of jurisdiction is Frankfurt.
• The contractual relationship are subject to German law.

12. Severability clause

If a regulation of these general terms is or becomes ineffective, the validity of the rest of the terms stay valid. The ineffective regulation will be replaced by applicable legal regulations.