General Terms and Conditions of Delivery and Sale of Fresh Nuts GmbH

§ 1 General – Scope

1. Our terms and conditions of delivery apply exclusively. We do not recognize any conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing.

2. All agreements made between us and the customer for the execution of this contract must be set down in writing in this contract. Amendments and supplements to the contract must be in writing. Other agreements, in particular warranties, modifications, and collateral agreements, are only effective if we expressly agree to them in writing.

3. Our terms and conditions of delivery apply exclusively to business transactions with companies as defined in Section 14 of the German Civil Code (BGB), legal entities under public law, or special funds under public law.

4. Our terms and conditions of delivery also apply to all future transactions with the customer arising from an ongoing business relationship. The customer acknowledges these terms and conditions of delivery upon placing an order, but at the latest upon acceptance of the first delivery, and they apply for the entire duration of the business relationship.

§ 2 Offer – Offer documents

1. All offers, especially those in catalogs, sales documents, or on the internet, are non-binding, including with regard to pricing. Our information and descriptions in catalogs, sales documents, or on the internet are non-binding with regard to the description of the nature and properties of goods.

2. We reserve all proprietary and copyright rights to illustrations, drawings, calculations, and other documents, particularly those marked “confidential.” Disclosure to third parties requires our express written consent.

3. The contract is only concluded upon our written order confirmation. If an order confirmation is not sent, the contract is concluded in any case upon delivery of the goods, including the contents of our invoice.

§ 3 Prices – Terms of Payment

1. Unless otherwise stated in the order confirmation, our prices are ex works.

2. All prices are exclusive of statutory value-added tax (VAT). Discounts are not permitted.

3. Unless a payment term is agreed upon in our written order confirmation or otherwise in writing, the purchase price is due immediately upon receipt of the delivered goods and the invoice, net (free of charges). If the buyer defaults on payment, we will charge default interest at a rate of 9 percentage points per annum above the respective ECB base rate. We reserve the right to claim further damages.

4. The customer is only entitled to set-off rights if their counterclaims have been legally established, are undisputed, or have been acknowledged by us. The customer may only exercise a right of retention if the same conditions apply to their counterclaims and, furthermore, if their counterclaim is based on the same contractual relationship. Section 6, Paragraph 5 of these terms and conditions remains unaffected.

5. In the event of default in payment or if there is justified concern about a significant deterioration of the customer’s financial situation or insolvency, we may suspend delivery or, at our discretion, demand immediate prepayment of all outstanding claims, including those not yet due, or provide appropriate security. If the customer fails to comply with the demand for prepayment or security within a reasonable period set by us, we are entitled to withdraw from all contracts and claim damages.

§ 4 Delivery time

1. Any delivery periods and dates we specify are approximate only, unless the periods are expressly designated as binding in the contract.

2. Adherence to the delivery period is subject to correct and timely delivery to us by our suppliers, unless the incorrect or delayed delivery to us is our fault. Should our suppliers, despite having concluded timely supply contracts with due diligence, ultimately fail to deliver to us, either in whole or in part, through no fault of our own, we are entitled to withdraw from the contract with the customer to that extent. Our liability, if any, is governed by clause §7…

3. Delivery periods only begin after all details of the order have been fully clarified. Adherence to delivery periods is contingent upon the customer fulfilling their contractual obligations, in particular making the agreed-upon down payment and providing any necessary documents in a timely manner.

4. Delivery delays due to force majeure or unforeseen circumstances beyond our control, such as operational disruptions, strikes, lockouts, official orders, transport disruptions, crop failures, war, terrorism, and energy procurement difficulties, do not constitute a breach of contract. An agreed-upon delivery period will be extended by the duration of the impediment plus a reasonable start-up period. If the impediment to performance lasts longer than three months, both parties have the right to withdraw from the contract in whole or in part. Claims for damages are excluded in this case.

5. Partial deliveries are permitted to a reasonable extent.

§ 5 Transfer of Risk

1. Unless otherwise stated in our order confirmation, delivery is agreed to be “ex works”.

2. At the express request of the customer, we will insure the shipment with transport insurance; the customer shall bear the associated costs.

§ 6 Claims for defects

1. Warranty claims by the buyer are contingent upon the buyer having properly fulfilled their obligations to inspect and report defects in accordance with Section 377 of the German Commercial Code (HGB). If the buyer discovers a defect, they may not dispose of the goods, i.e., they may neither be divided, resold, nor further processed.

2. Specifications, such as dimensions, weight, and other technical data, are to be understood solely as descriptions of the goods and do not constitute a warranty.

3. In the event of delivery of defective goods, we may, at our discretion, remedy the defect (repair) or deliver a replacement item (replacement). In the case of repair, we may, at our discretion, require that the defective product be sent to us for modification or replacement, followed by its return at our expense, or that the customer make the defective product available for us to carry out the modification or replacement at their location. We will bear the expenses necessary for repair (in particular, transport, travel, labor, and material costs). This does not apply to increased expenses incurred because the goods were moved to a location other than the customer’s residence or place of business after delivery, unless such relocation was in accordance with the intended use of the goods.

If the replacement or repair ultimately fails, the customer may demand a price reduction or withdraw from the contract. There is no right to subsequent delivery, rectification, withdrawal and/or compensation if the value or suitability of the delivered goods is only insignificantly reduced.

4. Payments by the customer in the event of complaints regarding defects may only be withheld to an extent that is reasonable in relation to the defects that have occurred.

5. Recourse claims by the customer in the case of consumer goods purchases (§ 478 German Civil Code) that exceed the statutory rights of the customers based on an agreement between the customer and its customers are excluded. The customer must inform us of its customers’ claims for defects in a timely manner so that we are able, at our discretion, to fulfill these claims instead of the customer.

6. All claims of the customer against us arising from or in connection with the delivery, in particular warranty claims, shall become statute-barred one year after delivery of the goods. This also applies to claims arising from breaches of duty that do not relate to a material or legal defect. The statutory limitation periods apply to claims based on intentional or fraudulent conduct, as well as to claims under the Product Liability Act.

§ 7 Compensation for damages

1. Claims for damages and reimbursement of expenses due to defects in the delivered goods are excluded to the extent that we are unable to remedy the defect for reasons beyond our control. Claims for damages for defects and consequential damages resulting from the delivery of defective goods are excluded unless we are at fault for the defect.

2. Claims for damages for a breach of a warranty of durability (§ 443 para. 2 of the German Civil Code) issued by us or a third party, for which we are liable, are excluded unless we are at fault for the breach.
3. Otherwise, claims for damages and reimbursement of expenses (hereinafter referred to as “claims for damages”) by the customer are excluded, regardless of the legal basis, in particular for breach of obligations arising from and in connection with the contractual relationship, from fault before or at the time of conclusion of the contract and from tort.
4. The foregoing does not apply to claims under the Product Liability Act, to our own intentional or grossly negligent breaches of duty and intentional or grossly negligent breaches of duty by legal representatives or vicarious agents, to injuries to life or body, including those caused by legal representatives or vicarious agents, to the assumption of a guarantee for the existence of a certain quality (guarantee of quality) and a guarantee of durability, or to the negligent breach of essential obligations that are indispensable for achieving the purpose of the contract. In the case of our negligence, our liability is limited to foreseeable and typical contractual damages. In no event shall our liability exceed the statutory claims.

We are only liable for assuming a procurement risk if we have expressly assumed this risk by means of a written agreement. This provision does not entail any changes to the burden of proof.

Section 8 Retention of Title

1. We retain title to the delivered goods until receipt of all payments due from the business relationship with the customer. In the event of a breach of contract by the customer, in particular in the case of default of payment, as well as in the event of impending cessation of payments, insolvency, or negative information indicating a significant deterioration of the customer’s financial situation, we are entitled to repossess the delivered goods. After repossession, we are authorized to sell the delivered goods, and the proceeds of the sale will be credited against the customer’s liabilities less reasonable costs of sale. We reserve the right to assert claims for damages. The provisions of the German Insolvency Code (InsO) regarding the realization of assets remain unaffected.

2. The customer is obliged to treat the delivered item with care, in particular he is obliged to insure it at his own expense against fire, water and theft damage for its full replacement value.
3. In the event of attachments or other interventions by third parties, the customer must notify us immediately in writing. The customer is liable to us for the legal and extrajudicial costs of any necessary action pursuant to Section 771 of the German Code of Civil Procedure (third-party objection). The customer may only pledge or assign goods subject to retention of title as security with our express consent. If our security rights are impaired by third parties, in particular in the event of seizure or attachment of goods subject to retention of title and/or receivables assigned to us, the customer must notify us immediately, sending us all available documents (such as attachment orders, etc.), and inform the third parties of our security rights. The customer is obligated to reimburse us for the costs incurred in taking necessary defensive measures due to the impairment of our security rights.
4. The buyer is entitled to resell the delivered goods in the ordinary course of business; however, the buyer hereby assigns to us all claims in the amount of the final invoice total (including VAT) that arise from the resale against its customers or third parties, regardless of whether the delivered goods were resold as is or after processing. The buyer remains authorized to collect these claims even after the assignment. However, we are entitled to collect the claims ourselves if the buyer fails to meet its payment obligations from the proceeds received, defaults on payment, has filed for or been subject to insolvency proceedings, or has suspended payments. In these cases, we may demand that the buyer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. However, collection of the claims by us is not possible if the German Insolvency Code (Insolvency Code) prohibits it.
5. We and the customer agree that we will additionally acquire a lien on the claims in the amount of the final invoice total (including VAT) of our claims that accrue to the customer from the resale against his customer or third parties pursuant to clause 4, irrespective of whether the delivered item has been resold before or after processing.
6. Any processing or transformation of the delivered goods by the customer is always carried out on our behalf. If the delivered goods are processed together with other goods not belonging to us, we acquire co-ownership of the new item in proportion to the value of the delivered goods relative to the other processed goods at the time of processing. The same provisions apply to the item created through processing as to the goods delivered under reservation of title.

§ 9 Place of jurisdiction – Place of performance

1. If the customer is a merchant, the exclusive place of jurisdiction is Hamburg. However, we are also entitled to bring legal action against the customer at the court of their place of residence.

2. Unless otherwise stated in the order confirmation, the place of performance is Hamburg.

§ 10 Applicable Law, Severability Clause

1. The legal relationship between the parties is governed exclusively by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

2. Should any provision of this contract or these General Terms and Conditions be invalid, the validity of the remaining provisions shall not be affected.