§ 1 – Scope of application
The following terms are standing for all, including future, deliveries, services and offers of Foodcons GmbH & Co. KG (hereafter: Fa. Foodcons) and the respective client. Terms which are different from the following terms will not be accepted, even when Fa. Foodcons makes and/or executes a contract without reservation. Differences from these terms are valid only in case of an agreement in writing and only for the special contract to which the agreement has been made.
§ 2 – Offers and conclusion of a contract
1. Every offer of Fa. Foodcons ist not binding and without engagement. Fa. Foodcons is bounded by an offer for 60 days reckoned from the creation date.
2. With his order the client declares his consent with this terms. A contract between Fa. Foodcons an the client will not come into effect until Fa. Foodcons gives a written confirmation of the order. Decisive for content of a contract is the written confirmation by Fa. Foodcons. Additions, changes or side agreements of/to a contract are valid only in written form.
3. Fa. Foodcons reserves the right to correct errors in offers, confirmation of orders an invoices (especially write or calculation errors).
§ 3 – Prices
1. Every price offered is ex works. It does not include the costs of packaging, loading, transport, transport insurance etc., unless the costs are stated as part of the price.
2. In case of a cross-border delivery the client has to assume all costs of the border crossing (especially the cost for import and export autorization, customs and other duties). If Fa. Foodcons makes an advance payment of these costs, the client has to reimburse her expenses.
§ 4 -Terms of payment
1. All invoices are due immediately after invoicing. Fa. Foodcons charges in case of spare parts supply and of rendering services as long as they are not part of a sale of a machine 100% of contract value 14 days after delivery of the goods or the services and in cases of sale of machines 40% of contract value at the time of the confirmation of the order and the other 60% of contract value before the dispatch of goods.
2. Payments are to be made using bank transfer or by deposit in the account of Fa. Foodcons. Fa Foodcons has the right to reject cheques or bills of exchange. If Fa. Foodcons accepts cheques or bills of exchange this will be only in lieu of performance. All costs in connection with the delivery of cheques or bills of exchange are to be paid by the client.
3. Delay of payments happens 30 calender days after issuance and receipt of invoice. During delay of payments the claim carries the currently applicable legal default rate. The exercise of a higher interest rate or of a damage caused by the delay remains reserved.
4. Fa. Foodcons has the right to charge a processing fee of 5,00 EUR for every reminder and 15,00 EUR for every subsequent debit.
5. If Fa. Foodcons has more than one claims against the same client, payments of the client will first be charged against the oldest claim. Claims of the same age will be discharged partially with the same rate.
6. If the client has to pay interests and costs additionally to the main claim and the payment is not sufficient to pay off the overall claim, the payment will be allocated first to the costs, then to the interests and then to the main claim.
§ 5 – Offset by the client
The client can perform offset only with an undisputed or legally confirmed claim of the client.
§ 6 – Delivery
1. The delivery time in the written confirmation of an order by Fa. Foodcons is decisive. In case of the delivery of spare parts the delivery time will be calculated from the date of order confirmation. In case of machine sales the delivery time begins with the arrival of the advance according to § 4 section 1 of these terms. All delivery times are subject to the reservation of a timely self-delivery.
2. In case of interruption of operations of Fa. Foodcons or one of her suppliers especially by strikes, lockouts, insufficient number of employees, official regulations, lack of shipping options, short supply of raw materials etc. and force majeure the delivery time is extended by the duration of the obstruction.
3. The delivery time is met when the goods have left the factory of Fa. Foodcons before the end of the delivery time or when Fa. Foodcons has informed the client about the readiness of dispatch.
§ 7 – Dispatch, Transfer of risk
Unless costs of of packaging, loading, transport, transport insurance are not stated as part of the price according to § 3 section 1 of these terms, Fa. Foodcons has the right to invoice these costs separately. Dispatch will be at the risk of Fa. Foodcons. The risk transfers to the client as soon as the goods are unloaded from the transport vehicle at the client.
§ 8 – Reservation of ownership
1. Fa. Foodcons reserves the reservation of ownership of the goods until the complete payment of the price and every other open claims against the client.
2. The client has no right to sell, pledge or assign the goods to security before the transfer of ownership to the client.
3. In case of attachments or other accesses of third persons and in the case of insolvency of the client the client is obliged to inform Fa. Foodcons immediately and to provide her with all informations necessary to exercise the reservation of ownership, especially name and adress of the third person, type, date, file number of the action and executing institution. The client is obliged to point the third person or the insolvency administrator to the reservation of ownership of Fa. Foodcons. Additionally the client has to reimburse all costs in connection with the exercise of the reservation of ownership, especially lawyer´s and legal expenses, to Fa. Foodcons.
§ 9 – Duty of examination and reprimand
1. The client is obliged to examine the goods immediately after receiving. Outwardly recognizable defects are to be reported to Fa. Foodcons within 14 days after receiving the goods. Defects that appear after having put the goods in use are to be reported to Fa. Foodcons within 14 days after their first appearance.
2. Every report of a defect has to be made in writing with a description of the defect or the defects as exact as possible. The report of a defect has to be delivered to Fa. Foodcons within the above mentioned time. If the client omits the report of a defect, he loses his warranty claims.
§ 10 – Warranty claims
1. Fa. Foodcons guarantees for a period of 12 months counting from the end of delivery time or for 2.000 running hours that the goods are free from designs faults, material defects and assembly errors. The first expired period is decisive. Wear parts are excluded from the guarantee.
2. Towards a client as consumer Fa. Foodcons warrants according to the current version of the law additionally to the guarantee according to section 1. Towards a client who is not a consumer Fa. Foodcons warrants additionally to the guarantee according to section 1 according to the following terms.
3. Subsequent performance takes place at Fa. Foodcons´s choice through the removal of the defect or through subsequent delivery of a new faultless good. The claims of the client against Fa. Foodcons in toto or in relation to individual parts are limited to subsequent performance, but the client has at his choice the right to reduce the price or withdraw from the contract should the subsequent performance become a failure unless the item of the warranty claim is a building service.
4. All warranty claims but the guarantee according to section 1 become time-barred 12 months after delivery unless the law requires obligatory a longer period.
§ 11 – Liability
1. Fa. Foodcons is unlimited liable for damages through violation of life, body and health, assumption of condition guarantee, fraudulent concealment of a defect, in cases under the ProdHaftG and in cases of intent or gross negligence of one of her legal representatives or one of her auxiliary persons.
2. In cases of ordinary negligence Fa. Foodcons is liable only for damages through a violation of an essential contractual obligation or if Fa. Foodcons has occupied a qualified position of trust towards the client or if Fa. Foodcons is obliged by law or commercial practice to take out insurance for a special kind of damage or if this exclusion of liability puts an inappropriate disadvantage to the client. If the client is no consumer the liability is limited to the amount of damage which is typical for the typ of contract between the client and Fa. Foodcons.
§ 12 – Applicable law, place of performance, place of jurisdiction
1. The law of the Federal Republic of Germany applies to all legal relations between the client and Fa. Foodcons under exclusion of UN sales law.
2. Place of performance for payments and delivery is the location of Fa. Foodcons.
3. If the client is a merchant, a legal entity under public law or special fund under public law the location of Fa. Foodcons will be the only place of jurisdiction for all disputes that arise from the business relationship.
§ 13 – Severability clause
Should individual provisions of these terms be or become inoperative, this will not affect the remaining terms.
§ 14 – Language
These terms exist in the german and in the english language. In case of dispute the german version is decisive for the interpretation of these terms.