§ 1 Scope of applicability 1.1 The following General Terms and Conditions (hereinafter referred to as “GTC”) apply to contracts concluded between Bruno Nebelung GmbH (hereinafter referred to as “Nebelung”) and the customer for the purchase of goods (hereinafter referred to as “contracts”), insofar as the customer is an entrepreneur within the meaning of Section14 BGB. They also apply – until the inclusion of updated GTC – for all future business relationships, even if they are not expressly agreed again. Deviating conditions of the customer which Nebelung does not expressly acknowledge in writing are non-binding, even if Nebelung does not expressly object to them. 1.2 The following GTC also apply if Nebelung accepts the customer’s order in the knowledge of conflicting or deviating terms and conditions of the customer. 1.3 Insofar as Nebelung and the customer have effectively concluded deviating individual agreements in relation to a contract which contradict the following provisions, these shall take precedence over the GTC. § 2 Offer / Prices / Security 2.1 All prices are net without VAT. The customer must pay the VAT in the respective statutory amount. The agreed prices apply ex works of Nebelung. 2.2 Up to a net order value of €100.00, the customer will be charged costs amounting to €10.00 plus VAT in total for P&P and minimum quantity charges. For net order values of over €100.00, Nebelung shall bear any P&P costs. Other costs (e.g. transport and packaging costs exceeding the normal charges, public charges, taxes, customs duties, costs for special certification and proof of import, etc.) shall be borne in every case by the customer, regardless of the net order value. 2.3 Nebelung is entitled to carry out or perform outstanding deliveries only against advance payment or provision of security if, after conclusion of the contract, Nebelung becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the customer and through which the payment of Nebelung's outstanding claims arising from the respective contractual relationship is endangered. § 3 Delivery 3.1 The commencement of and compliance with agreed delivery obligations shall depend on the full performance of any cooperation obligations of the customer prior to delivery and compliance with any payment agreements to be fulfilled before delivery. If these prerequisites are not met, the delivery periods shall be delayed accordingly, unless Nebelung is solely responsible for the delay. 3.2 Compliance with delivery periods is subject to Nebelung itself being supplied in a correct and timely manner. Nebelung shall inform the customer as soon as possible of any pending delays. 3.3 Nebelung shall not be liable for specific or lump-sum damages due to impossibility of delivery or delays in delivery, insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official approvals, official measures, non-delivery, incorrect or late delivery by suppliers, failed harvesting and/or processing of the harvested products) for which Nebelung is not responsible. Nebelung shall inform the customer as soon as possible of any pending delays. If delivery is partially possible, Nebelung is entitled and obligated to make the delivery to the extent possible within the agreed delivery periods. 3.4 If and to the extent that events within the meaning of 3.2 and 3.3 make Nebelung’s delivery or service considerably more difficult or impossible and the hindrance is not only of temporary duration, Nebelung shall be entitled to withdraw from the contract, provided that Nebelung informs the customer immediately about the unavailability of the service. Performance by the customer shall be reimbursed immediately in this respect. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or performance as a result of the delay for which it is not responsible, it may immediately withdraw from the contract in writing vis-à-vis Nebelung. In all other respects, the customer’s right to withdrawal due to delay in delivery shall only exist if Nebelung is responsible for the delay. Claims for damages due to delay are otherwise subject to the restrictions of § 8. 3.5 Partial deliveries and corresponding partial invoices are permissible, unless these are unreasonable for the customer. 3.6 Excess or short quantities are permissible to the extent customary in the industry (up to 2% of the ordered quantity), unless the excess or short delivery is unreasonable for the customer. 3.7 If the owed goods are a stock debt, Nebelung is only obligated to delivery from the existing stock. If the existing stock is insufficient, Nebelung shall indicate this without delay. Nebelung is entitled to withdraw from the contract in this respect. § 4 Dispatch / Transfer of risk / Delivery periods / Inspection and notification obligations 4.1 Delivery is ex works; dispatch and transport is at the customer’s risk. The risk transfers to the customer as soon as the consignment has been handed over to the person carrying out the transportation, also when partial deliveries are to be made. Insofar as acceptance is required, this shall be decisive for the transfer of risk. The customer may not refuse required acceptance in the event of the presence of insignificant defects. 4.2 If dispatch of the delivery is delayed or acceptance does not occur for reasons which lie within the customer's area of risk, the risk of accidental deterioration and accidental loss passes to the customer upon notification of the dispatch or readiness for acceptance. Storage costs after transfer of risk shall be borne by the customer. Further claims remain unaffected. 4.3 If shipment has been agreed, delivery periods and delivery dates refer to the time of provision for handover to the freight forwarder, carrier or other third party commissioned with the transport. 4.4 Nebelung is entitled to exceed agreed delivery dates by up to 14 days if the delivery is to take place later than six weeks after conclusion of the contract. 4.5 Immediately after delivery, the customer must check that the goods have been delivered in accordance with the contract and in the contractually agreed quantity. Visible errors or defects must be reported by the customer to Nebelung, at least in text form, within 3 working days – in the case of plants within 24 hours – after delivery, stating the delivery note number. The customer must notify Nebelung of non-visible defects within 3 working days – in the case of plants within 24 hours – after discovery, at least in text form and stating the delivery note number. In the case of plants, notices of defects must also be accompanied by informative image material. § 5 Payment / Invoicing / Assignment /Counter-rights 5.1 Payments (agreed prices incl. any taxes and/or other costs) must be made within 30 calendar days of the invoice date. The receipt of the money into the Nebelung’s bank account (crediting) is decisive for the timeliness of the payment. Payments are to be made into the account specified in the invoice. Invoices may be sent at Nebelung’s discretion by post or email. Unless otherwise agreed in individual cases, Nebelung does not grant any reductions or discounts (no early payment discounts, for example). 5.2 Nebelung is entitled to charge default interest at the statutory rate from the first day of the delay in payment, without prejudice to the possibility of higher, actual damage. 5.3 The assignment to third parties of claims against Nebelung is excluded. Section 354 a HGB remains unaffected. 5.4 The retention of payments due to counter-claims by the customer is permitted only if these result from the same contract under which Nebelung seeks payment. Offsetting with counter-claims by the customer is only permitted if these counter-claims are undisputed or have been legally established § 6 Retention of title 6.1 All delivered goods remain the property of Nebelung (hereinafter referred to as “reserved goods”) until such time as all claims arising from the legal relationship underlying the delivery have been settled. Nebelung’s title also extends to the products that the customer produces through cultivation, processing, blending or mixing the reserved goods. If reserved goods are processed or inseparably mixed with other objects, Nebelung acquires co-ownership. The extent of the co-ownership results from the ratio of the invoice value of the reserved goods to the invoice value of the items with which the reserved goods have been inseparably mixed or processed. 6.2 The customer is entitled to resell, process or mix or combine the reserved goods with other items only in the context of proper business operations and as long as it is not in default. Any other disposal of the reserved goods is prohibited. Seizures made by third parties or other access to the reserved goods must be reported to Nebelung without delay, at least in text form. All costs incurred by Nebelung in connection with the assertion of rights to the reserved goods shall be reimbursed by the customer, insofar as they cannot be asserted and enforced by Nebelung against the third party. If the customer grants its own customers a deferral for payment, it must reserve title of the reserved goods vis-à-vis this customer GENERAL TERMS AND CONDITIONS OF BUSINESS SERVICE69
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