general standard terms and conditions - tarte flambee

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General Terms of Delivery and Payment of the Co. Flammkuchen Profi in business dealings with other companies >

I. Scope
1. The following sale conditions are valid for all contracts concluded between the buyer and us about the delivery of goods. They shall apply also for all future business relations, even when they are not expressly agreed upon once again. Divergent conditions of the buyer, which we do not expressly acknowledge, are not binding for us, even when we do not expressly object to them. The following sale conditions are even valid, if we carry out, unconditionally, the order of the buyer, knowing the controversy or divergent conditions of the buyer.
2. All agreements are set down in writing in the contracts, which are concluded between the buyer and us for the execution of the purchase contracts.

II. Offer and Conclusion
1. An order of a buyer which can be qualified as offer for the conclusion of a purchase contract, can be accepted within two weeks by sending an order confirmation or by delivering the ordered product within the same period.
2. Our offers are without engagement and not binding, unless we have declared them expressly as binding.
3. We reserve all rights of property, copyright as well as other protected rights for all images, calculations, drawings, as well as other documentation. The buyer can only hand these over to third parties with our prior approval in writing, independent of their classification as confidential or not.

III. Payment Conditions
1. Our prices are valid ex works without packaging, if not otherwise agreed to in the order confirmation. The legal VAT is not included in our prices. This tax we will invoice additionally in the legal amount on the invoicing date. If the order of the buyer is placed before 8.00 a.m. on the day of delivery, (excluding dough bases, which can only be sent by post charged to the buyer) the delivery within a radius of 50 km around Offenbach with an invoiced value of goods of more than 50.00 € will be free of charge. Furthermore the current price lists of the vendor are applicable.
2. A discount is only acceptable with a special agreement in writing between us and the buyer. The purchase price is due net immediately (without deduction) with the receipt of the invoice by the buyer, as far as there is no other date of required payment stated in the order confirmation. A payment only is considered as carried out, when we can confirm receipt of the corresponding amount. In the case of cheque payments the payment is only considered as carried out, when the cheque is cashed.
3. If the buyer delays with a payment, the legal regulations will govern.
4. The buyer is only entitled to offset, even if customer’s complaints or compensation claims are pleaded, if the counterclaims are legally confirmed, are accepted by us or are indisputable. The buyer is only authorized to exercise a right of retention, if his counterclaim is based on the same contractual relationship.

IV. Delivery date and Time of performance
1. Delivery dates or time limits, which have not been expressly agreed upon, are only not binding particulars. The delivery period indicated by us only starts, if the technical issues are resolved. The buyer also has to comply duly with all his obligations and in the time frame.
2. If the purchase contract is based on a firm deal in the sense of $ 286 par. 2 nr. 4 BGB (German Civil Code) or of § 376 HGB (German Commercial Code), we are liable according to the legal provisions. The same applies, if the buyer is entitled as a result of a delivery delay caused by us, to invoke the ceasing of his interest to carry out the contract. In this case the liability for damages is restricted to the predictable, typically occurring damage, provided that the default of delivery is not due to a contractual violation caused by us through intention, being assignable to us a fault of our representatives or assistants. We also are liable to the buyer in the case of delivery delay according to the legal provisions, if it is due to a violation of the contract through intentional or gross negligence caused by us, being assignable to us a fault of our representatives or assistants. Our liability is restricted to the predictable, typically occurring damage, if the delivery delay is not due to a contractual violation caused by us through intention.
3. If the default of delivery caused by us is due to a culpable violation of a contractual obligation, the performance of which actually enables the due execution of the contract and on the compliance of which the buyer regularly relies and may rely, being assignable to us a fault of our representatives or assistants, we are liable according to the legal provisions, provided that in this case the liability for damages is restricted to the predictable, typically occurring damage.
4. Otherwise in the case of a delivery delay caused by us the buyer may claim a general indemnification in the amount of 3 % of the delivery value but not more than 15 % maximum of the delivery value for each completed week.
5. A further liability for a delivery delay caused by us is excluded. The further legal claims and rights of the buyer, to which he is entitled apart from the claims for damages, remain unaffected.
6. We are always entitled to part deliveries and performance in successive instalments, whenever this is deemed to be reasonable for the buyer.
7. If the buyer is in default of acceptance, we are entitled to claim for compensation of the resulting damage and possible extra costs. The same applies, if the buyer culpably violates his duties to cooperate. With the occurrence of the default of acceptance or debtor’s delay the risk of accidental deterioration and accidental destruction pass over to the buyer.

V. Passage of risk– Shipping/Packaging
1. Loading and shipping are carried out uninsured at the risk of the buyer. We will make an effort to consider the wishes and interests of the buyer with regard to shipping and route ; the resulting extra costs – even in the case of agreed free transport – are charged to the buyer.
2. We do not take back transport and all other packaging materials according to the directives of the Packaging Regulations; pallets are excluded. The buyer is responsible at his own costs for the waste disposal management of the packaging.
3. If the shipping at the wish or by default of the buyer is delayed, we will store the goods at the costs and the risk to the buyer. In this case the status of the readiness for shipment is identical to the shipment itself.
4. At the wish and costs of the buyer we will insure the delivery with a transportation insurance.

VI. Warranty/Liability
1. Claims for customer’s complaints of the buyer are only acknowledged, if the buyer has duly lodged with his obligations of investigation and complaint according to § 377 HGB (German Commercial Code).
2. In the case of justified customer’s complaints we are, excluding the rights of the buyer to cancel the contract or to reduce the purchase price (abatement), obliged to retrospective compliance, provided that we are entitled by legal regulation to deny the retrospective compliance. The buyer has to grant to us a reasonable time limit for the retrospective compliance. The retrospective compliance, according to the choice of the buyer, can be fulfilled by correction of the faults (rework) or by delivery of new goods. In the case of correction of the faults we will bear the necessary expenses, as far as they will not increase as a result of the contractual object being situated in another place other than the place of fulfilment. If the retrospective compliance has failed, the buyer has the choice to claim the reduction of the purchase price (abatement) or declare the cancellation of the contract. The rectification of faults is deemed to have failed after the second unsuccessful attempt, provided that as a result of the contractual object further rectification attempts are fair and reasonable for the buyer. Claims for damages for faults according to the following conditions the buyer can only demand, if the retrospective compliance has failed. The right of the buyer to further claims for damages according to the following conditions remain unaffected.
3. The warranty claims of the buyer are time-limited for one year after delivery of the goods to the buyer, provided that we kept malicious silence with regard to a defect; in this case the legal regulation will govern. Our duties according to par. VI point 4 and par. VI point 5 hereby remain unaffected.
4. According to legal provisions we are obliged to take back the new goods or correspondently to reduce the purchase price (abatement) also without the otherwise necessary fixing of a time limit, if the customer of the buyer as consumer of the sold new mobile items (purchase of consumer goods) could demand the return of the goods to the buyer because of faults of these goods or demand the reduction (abatement) of the purchase price or if the buyer is confronted with a hereby resulting claim of indemnification. We are furthermore obliged to indemnify expenses of the buyer, especially transport, route, working and material costs, which have arisen for him in the relationship with the end consumer within the frame of the retrospective compliance as a result of a passage of risks from us to the buyer with regard to a fault of the goods. This claim is excluded, if the buyer did not duly comply with his obligations of investigation and complaint according to the § 377 HGB (German Commercial Code).
5. The obligation according to par. VI point 4 is excluded, as far as a fault due to advertising announcements or other contractual agreements are concerned, which are not originated by us, or if the buyer granted a special warranty to the end consumer. The obligation is excluded as well, if the buyer himself according to legal regulations was not obliged to the execution of warranty claims coming from the end consumer or he did not act on this complaint with regard to claims demanded of him. This also applies, if the buyer has assumed warranties with the end consumer, which go beyond legal provisions.
6. We are liable, independent of the preceding or following limitations of liability according to legal provisions, for injuries to body and health, which are due to a violation of duties by intentional or gross negligence caused by us, our legal representatives or our assistants, as well as for damages, which include liability according to the Product Liability Law. For all damages, which are not mentioned above and are due to contractual violation by intentional and gross negligence, as well as fraud by us, our legal representatives or our assistants, we are liable according to legal provisions. In this case, however, the claim for damages is restricted to the predictable, typically occurring damage, as far as we, our legal representatives or our assistants did not act intentionally. As far as we have granted a warranty of quality and/or shelf life with respect to the goods or parts hereof, we are also liable within the frame of this warranty. For damages which are due to the lack of guaranteed quality or shelf life, but do not affect directly the goods, however we are only liable, if the risk of such a damage is evidently assumed by the warranty of quality and shelf life.
7. We are also liable for damages, which are caused by simple negligent violation of such contractual obligations, the compliance of which actually enables the due execution of the contract and on which the buyer can and may regularly rely. However we are only liable, as far as the damages are linked with the contract in a typical way and are foreseeable.
8. A further liability is excluded regardless of the legal nature of the assertion of the claim; this especially applies also for delictual claims or claims for the substitution of fruitless expenses instead of the performance; hereby our liability according to par. IV point 2 to par. IV point 5 of these General Terms is not affected. As far as our liability is excluded or restricted, this applies also for the personal liability of our employees, workers, co-operators, representatives and assistants.
9. Claims for damages of the buyer as a result of faults are time-limited to one year from the delivery of the goods. If we, our legal representatives or our assistants are responsible for damages for injuries of body and health, or if we, our legal representatives acted through intention or gross negligence, or if our common assistants acted intentionally, the claims for damages of the buyer are subject to the legal limitation periods.

VII. Reservation of Ownership
1. We reserve the right of ownership for the delivered goods (conditional commodity) until all accounts receivable are satisfied, including all balances of account from current accounts, to which we are entitled from the buyer now and in the future. If the buyer does not act conforming to the contract, e.g. delay in payment, we have the right, despite a prior reasonable setting of a time limit, to take back the conditional commodity. If we take back the conditional commodity, this means a cancellation of the contract. The attachment of the conditional commodity also leads to a cancellation of the contract. We are entitled to the utilization of the conditional commodity after return. The revenue from the utilization will be compensated with the accounts receivable of the buyer – less appropriate utilization costs.
2. The buyer must treat the conditional commodity with care and insure it sufficiently, to cover its original value, at his own costs against damages from fire, water and theft. Maintenance and inspection works, if become necessary, must be carried out in time by the buyer at his own costs.
3. The buyer is entitled to sell and/or to use the conditional commodity duly in business dealings, as far as he is not in delay in payment. Pledging or assignment as security are not allowed. The resulting accounts receivable from the resale or other legal foundation (insurance, not allowed action) with regard to the conditional commodity (including all balances of account from current accounts) will be immediately and fully assigned to us for security reasons; we hereby accept the assignment. We authorize the buyer with revocation, to collect the assigned accounts receivable for his invoice in his own name. The collection authorization is revocable at all times, if the buyer does not properly meet his payment obligations. Also the buyer is not entitled to the assignment of these accounts receivable for the purpose of collection via factoring, provided that simultaneously the obligation of the factor is founded, to cause the counter performance in the amount of accounts receivables directly to us, as long as there still exist accounts receivable from us against the buyer.
4. A processing or transforming of the conditional commodity by the buyer in any case is carried out for us. As far as the conditional commodity is processed with other items which do not belong to us, we own the co-property of the new goods in relation to the worth of the conditional commodity (final invoice, inclusive VAT) to the other processed items at the time of processing. For the new item resulting from the processing the same applies as for the conditional commodity. In the case of inseparable mixing of the conditional commodity with other items, which do not belong to us, we own the co-property of the new goods in relation to the worth of the conditional commodity (final invoice, inclusive VAT) to the other mixed items at the time of processing. If the item of the buyer as result of the mixing can be considered as main item, the buyer and we agree, that the buyer assigns to us proportionally co-property of this item; we hereby accept the assignment. Our sole-property or co-property of the item is held in safe custody by the buyer for us.
5. In the case of legal actions by third parties to the conditional commodity, especially attachments, the buyer will refer to our property and will inform us immediately, so that we can enforce our property rights. As far as the third party is not able to reimburse us for the costs of judicial or out-of-court settlements in this connection, the buyer will be liable.
6. We are obliged to release the securities belonging to us, as far as the realizable value of our securities exceed the accounts receivable of more than 10 %, the choice of the securities to be released being incumbent on us.

VIII. Hiring of Ovens
1. Special ovens for frozen products will be lent to new gastronomic customers for a period of 4 weeks maximum, counted from the day of hand-over, to festival organizers for the period of the festival. At the end of the time limit, the organizer or customer is obliged to give back the oven at his own costs.
2. The utilization of the ovens has to be carried out with the due care and diligence of a prudent businessman. The customer has the right, instead of giving back an oven, to purchase it at the prior agreed price or list price, plus VAT. If he executes this option, the purchase price is due immediately. In the case of delayed return or lack of payment within the agreed time limit, a royalty or damage caused by delayed performance in the amount of 10.25 € per calendar day has to be paid.
3. Hired or lent ovens from the vendor are to be used for the exclusive baking of the vendor’s products. In the case of other use, i.e. the baking of other products, an oven rent of 51.20 € per hire day and per oven and an additional cleaning fee of 25.60 € per oven is payable. All above mentioned amounts are net amounts plus legal VAT.
4. Hired articles which are lost or not returned will be invoiced at the list price, without prior notice, 8 days after the agreed return date.

IX. Packaging according to Packaging Regulations
Combination packaging Packing unit: 10 pieces/Carton for wholesale, gastronomic and wine festival customers For food retailer: individually packed/15 pieces in large cartons

X. Final provisions, Place of fulfilment and jurisdiction, Governing law
1. If individual provisions of these General Terms of Delivery and Payment are invalid or void or become invalid or void, the validity of other provisions will hereby not be affected. Place of fulfilment and jurisdiction for deliveries and payments (including actions on a dishonoured bill and cheque), as well as all disputes arising between us and the buyer from the concluded purchase contracts between us and him is our registered office. However we are also entitled to proceed against the buyer at his habitual residence and/or domicile of company.
2. The relationship between the contractual parties is governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

General Terms of Delivery and Payment of the Co. Flammkuchen Profi in business dealings with costumers >

I. Scope
1. The following conditions of sale and delivery apply to the concluded contract about the delivery of goods between the Company Flammkuchen Profi, hereinafter the vendor, and the buyer.
2. All agreements concluded between the vendor and the buyer in connection with the purchase contracts, are set down in writing in the purchase contract, these conditions and the confirmation of order by the buyer.

II. Offer and Conclusion
1. The offers of the vendor are without engagement and not binding, provided that the vendor expressly classified them in writing as binding.
2. Images, drawings as well as other documents, which belong to the non-binding offers of the vendor, remain in the ownership of the vendor and are only relatively definitive, as far as they have not been expressly denominated by him as binding.

III. Prices/Conditions of Payment
1. The prices of the vendor are without shipping costs, as far as not otherwise agreed with the buyer. If the order of the buyer is placed before 8.00 a.m. on the day of delivery, (excluding dough bases, which can only be sent by post charged to the buyer) the delivery within a radius of 50 km around Offenbach with an invoiced value of goods of more than 50.00 € will be free of charge. The packing costs are included in the price. Furthermore the current price lists of the vendor are applicable.
2. If not otherwise agreed in writing with the buyer, the purchase price is due and payable without reduction within 14 days after receipt of the invoice by the buyer.
3. If the buyer delays with a payment, the vendor is entitled from the due date to claim interests in the amount of 5% above the current base interest rate of the Central Bank (EZB). The evidence of a higher damage is reserved by the vendor.
4. The buyer is only entitled to offset, even if customer’s complaints or compensation claims are pleaded, if the counterclaims are legally confirmed, are accepted by the vendor or are indisputable. The buyer is only authorized to exercise a right of retention, if his counterclaim is based on the same purchase contract.

IV. Delivery date and Time of performance
1. Delivery dates or time limits, which have not been expressly agreed upon, are exclusively not binding particulars.
2. If the vendor culpably cannot meet an expressly agreed upon time limit or delays for other reasons, he has to grant a reasonable grace period to the buyer, which starts with the receipt of defaulting in writing by the buyer or, in the case of calendar-determined time limit, with the beginning of the delay. After the unsuccessful expiration of this grace period, the buyer is entitled to cancel the contract.
3. The vendor is responsible according to the legal provisions, subject to the following limitations, if the contract is a firm deal or the buyer is entitled through the delivery delay caused by the vendor, to invoke the ceasing of his interest to execute the contract.
4. The vendor is liable to the buyer in the case of default of delivery according to legal provisions, if the delay is due to a violation of duties caused by the vendor through intentional or gross negligence. The fault of the vendor should be assignable to his representatives or assistants. If the default of delivery is not due to a violation of contract through intentional or gross negligence by the vendor, the liability of the vendor is restricted to the predictable, typically occurring damage.
5. If the default of delivery caused by the vendor is due to a culpable violation of a contractual obligation, the performance of which actually enables the due execution of the contract and on the compliance of which the buyer regularly relies and may rely, the vendor is liable according to the legal provisions. In this case the liability for damages is restricted to the predictable, typically occurring damage, provided that the default of delivery is due to a contractual violation caused by the vendor through intentional or gross negligence.
6. The vendor is always entitled to part deliveries and performance in successive instalments, whenever this is deemed to be reasonable for the buyer.

V. Warranty/Liability
1. In the case of justified customer’s complaints the vendor is, excluding the rights of the buyer to cancel the contract or to reduce the purchase price, obliged to retrospective compliance, provided that the vendor is entitled by legal regulation to deny the retrospective compliance. The buyer has to grant to the vendor a reasonable time limit for the retrospective compliance.
2. The retrospective compliance, according to the choice of the buyer, can be fulfilled by correction of the faults or by delivery of new goods. During the retrospective compliance the reduction of the purchase price or the cancellation of the contract by the buyer are excluded. The rectification of faults is deemed to have failed after the second unsuccessful attempt. If the retrospective compliance has failed, the buyer has the choice to claim the reduction of the purchase price (abatement) or declare the cancellation of the contract.
3. The buyer can only claim damages according to the following conditions for the damage, if the retrospective compliance has failed. The right of the buyer to claim further damages according to the following conditions remains reserved.
4. The vendor is liable, independent of the following limitations of liability according to legal provisions, for injuries to body and health, which are due to a violation of duties by intention or gross negligence caused by him, his legal representatives or his assistants, as well as for damages, which include liability according to the Product Liability Law, as well as for all damages, which are due to contractual violation by intentional and gross negligence and fraud by him, his legal representatives or assistants. As far as the vendor has granted a warranty of quality and/or shelf life with respect to the goods, he is also liable within the frame of this warranty. For damages which are due to the lack of guaranteed quality or shelf life, but do not affect directly the goods, however the vendor is only liable, if the risk of such a damage is evidently assumed by the warranty of quality and shelf life.
5. The vendor is also liable for damages, which are caused by simple negligent violation of such contractual obligations, the compliance of which actually enables the due execution of the contract and on which the buyer can and may regularly rely. The same applies, if the buyer is entitled to claims for damages instead of the performance. However the vendor is only liable, as far as the damages are linked with the contract in a typical way and are foreseeable.
6. A further liability of the vendor is excluded regardless of the legal nature of the assertion of the claim; this especially applies also for delictual claims or claims for the substitution of fruitless expenses instead of the performance; hereby the liability of the vendor according to par. 4, point 3 to 5 of these General Terms of Payment and Delivery is not affected. As far as the liability of the vendor is excluded or restricted, this applies also for the personal liability of his employees, workers, co-operators, representatives and assistants.

VI. Reservation of Ownership
The vendor reserves the right of ownership of the goods until the receipt of all payments deriving from the purchase contract. The buyer has to inform the vendor immediately in writing about the legal actions of third parties, particularly about levies upon property, as well as about other infringement of his property. The buyer has to indemnify the vendor for all damages and costs, which will arise from the violation of this obligation and from the necessary intervention measures against the legal actions of third parties. If the buyer does not act conforming to the contract, particularly if the buyer does not meet the payments despite corresponding demands for payment from the vendor, the vendor can cancel the contract after a prior reasonable setting of a deadline and demand the handing-over of the goods still in his ownership. The repossession of the goods by the vendor means a cancellation of the contract. The arising shipping costs will be borne by the buyer. Attachment of the goods always results in the cancellation of the contract. After the receipt of the goods the vendor is entitled to their further utilization. The revenue from the utilization will be compensated with the accounts payable – less appropriate utilization costs.

VIII. Hiring of ovens
Special ovens for frozen products will be lent to new gastronomic customers for a period of 4 weeks maximum, counted from the day of hand-over, to festival organizers for the period of the festival. At the end of the time limit, the organizer or customer is obliged to give back the oven at his own costs. The utilization of the ovens has to be carried out with the due care and diligence of a prudent businessman. The customer has the right, instead of giving back an oven, to purchase it at the prior agreed price or list price, plus VAT. If he executes this option, the purchase price is due immediately. In the case of delayed return or lack of payment within the agreed time limit, a royalty or damage caused by delayed performance in the amount of 10.25 € per calendar day has to be paid. Hired or lent ovens from the vendor are to be used for the exclusive baking of the vendor’s products. In the case of other use, i.e. the baking of other products, an oven rent of 51.20 € per hire day and per oven and an additional cleaning fee of 25.60 € per oven is payable. All above mentioned amounts are net amounts plus legal VAT. Hired articles which are lost or not returned will be invoiced at the list price, without prior notice, 8 days after the agreed return date.

IX. Final Provisions, Governing Law
The relationship between the contractual parties is governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. If individual provisions of these General Terms of Delivery and Payment are invalid or void or become invalid or void, the validity of other provisions will hereby not be affected.

For more information about the GSTC etc., please contact Ms. Elke Knoll or Ms. Stefanie Kwandt >>>

phone 0049 (0) 6348.95.963-0 * fax 0049 (0) 6348.95.963-22 * email info@flammkuchen-profi.com