General Terms and Conditions of Delivery and Payment of Josef Schwan GmbH
1. Scope of application
These Terms and Conditions of Delivery and Payment shall apply exclusively to legal transactions with entrepreneurs. Our General Terms and Conditions of Delivery and Payment shall apply exclusively. They shall also apply to all future business relationships, even if they are not expressly agreed upon again in each individual case. The customer’s deviating terms and conditions shall have no validity and are hereby rejected.
2. Offers, order confirmation, price basis
2.1 Our offers are non-binding and subject to change.
2.2 Unless we have accepted your order by delivering the goods, we reserve the right to confirm orders placed with us in writing or by email. Where we have confirmed an order, the content of the contract shall be determined solely by our order confirmation.
Any modifications, amendments or side agreements shall be subject to our confirmation in writing or by email to be effective.
2.3 Price basis
In the absence of any confirmation to the contrary, our prices valid at the time of concluding the contract will be charged, subject to value-added tax at the applicable statutory rate. If more than 4 months elapse between conclusion of the contract and delivery, we may apply the net list prices valid at the time of delivery, subject to value-added tax at the applicable statutory rate. The prices stated in our price lists shall be deemed locally accepted and reasonable.
3. Scope of delivery, partial deliveries, right to substitute
3.1 The scope of delivery shall be determined by either our unchanged offer or our order confirmation. Partial delivery and performance are permissible insofar as they are reasonable for you.
3.2 In the event that a product is no longer available, we will provide a substitute product of equivalent quality and value. Please indicate in your order if you do not agree with this.
4. Term of payment, cash discounts
4.1 In the absence of any agreement to the contrary, our invoices shall be due and payable in full immediately after delivery.
4.2 If the delivery is delayed for reasons within your control, the invoice will be issued upon notification of our readiness for shipment, but no earlier than the originally agreed delivery date.
4.3 Cash discounts shall no longer be applicable if any due invoices are outstanding at the time the discounted invoice amount is received. If you are in arrears with the payment of any of our invoices, all other outstanding invoices shall become due and payable immediately. The same applies to payment by instalments. If you are in arrears with the payment of an instalment, all other outstanding instalments shall be come due and payable immediately.
5. Right of setoff, right of retention, prohibition of assignment, cheque payment, collection of payment
5.1 You are only entitled to claim rights of setoff or retention if your counterclaims are legally established, uncontested or recognised by us. However, you can only assert these rights if your counterclaim is based on the same contractual relationship.
5.2 You are not entitled to assign to third parties claims of any kind arising from our business relationship.
5.3 Cheques will only be accepted on account of performance.
5.4 Concerning SEPA Direct Debit Mandate / SEPA Direct Debit B2B Mandate: To facilitate payment transactions and accelerate order processing, the usual 14-day period for notification before collecting a due payment can be shortened to one day before debiting.
6. Prohibition of assignment
You are not entitled to assign to third parties claims of any kind arising from our business relationship.
7. Shipping costs
Upon request, we will ship the goods insured at your risk and expense.
8. Allocation of redemption payments
If you fail to allocate redemption payments, we shall be entitled to do so; Section 366 BGB [German Civil Code] is hereby forfeited.
9. Transfer of risk
Unless the risk has already passed to you, it shall be transferred to you at the latest as follows:
9.1 Transfer of risk on collection, loading, handover
The risk shall be transferred to you either at the time of collection, loading or handover of the goods to the forwarder or carrier, no matter if we ship the goods, you collect them or we or you commission third parties to do so and no matter if the shipment is made carriage paid, carriage forward or for a flat-rate fee, even if partial deliveries are made.
9.2 Transfer of risk on default in acceptance
In the event of any delays in the aforementioned circumstances caused by you or if you fail to accept the goods for other reasons, the risk shall be transferred to you upon notification of our readiness for shipment.
You grant us the following securities until all our present or future claims against you, no matter on what legal grounds, have been satisfied:
10.1 Reservation of title
All goods supplied by us shall remain our property until all claims arising from the business relationship have been paid and settled in full. This shall also apply to contested and/or conditional claims. You are entitled to process and sell the goods in the normal course of business as long as you are not in arrears with any payment.
10.2 Extended reservation of title
You hereby fully assign to us as security all claims relating to the goods that arise from the resale or on any other legal grounds. We hereby accept the assignment. Insofar as we include our claims in a current account relationship with you, the advance assignment shall also extend to the corresponding balance claim.
10.3 Debt collection authorisation, revocation of collection authorisation, no assignment to third parties, notification in the event of third-party interventions
10.3.1 We hereby grant you a revocable authorisation to collect the assigned claims for our account in your own name. This debt collection authorisation may only be revoked if you are in arrears with your payment obligations or if we become aware of protested cheques or bills of exchange, cessation of payment or negative information about you.
10.3.2 You are not entitled to assign the claims to third parties. You are entitled to collect these claims as long as you meet your payment obligations. You shall notify us without delay of any seizures or other interventions by third parties which affect our property or rights.
10.4 Proof of acquirers
Upon our request, you are obliged to provide us proof of your individual claims against third parties acquired pursuant to Clause 10.2, to inform the subsequent acquirers of the assignment and to instruct them to make payments exclusively to us. We shall be entitled at any time to notify the subsequent acquirers of the assignment and to collect the claims ourselves..
10.5 No collection authorisation in the event of insolvency
This collection authorisation shall be deemed revoked if an application is filed for the institution of insolvency proceedings against your assets or for the disclosure of your financial status.
10.6 Release of securities
You are entitled to demand the partial or complete release of securities if their realisable value exceeds the claims to be secured by 20%.
10.7 Authorisation to collect goods
10.7.1 To secure our property rights, in particular in the event of default in payment, you grant us or any third party commissioned by us the right to enter your property or premises at any time in order to collect the products, equipment, machinery and goods in our property. The same applies if our products, equipment, machinery and goods need to be collected from your customers.
10.7.2 To prevent unnecessary costs, you hereby agree and expressly consent to this procedure.
10.7.3 You are obliged to reimburse us for any additional expenses and costs we incur in connection with the enforcement of our claims for recovery or collection of our material..
Your rights under warranty are subject to the prerequisite that you have duly met your obligations to examine the goods and give notice of any defects, as stipulated in Section 377 HGB [German Commercial Code]. Notwithstanding Clause 11.4.2, we shall be liable for defects of the goods as follows, excluding any further claims:
11.1 Obligation to give notice of apparent and visible defects
You are obliged to examine the goods and their packaging immediately upon delivery or collection and to give notice in writing of any apparent and visible defects, short deliveries and incorrect deliveries; otherwise, any enforcement of warranty claims shall be excluded. Submitting the notice in time is sufficient to comply with the deadline.
11.2 Obligation to give notice of latent defects
Latent defects shall be deemed approved if they have not been reported to us in writing immediately after discovery. Submitting the notice in time is sufficient to comply with the deadline.
11.3 Burden of proof for notices of defects, reimbursement of expenses
You shall bear the full burden of proof for all requirements for making a claim. If a notice of defect is submitted wrongly, you shall reimburse all expenses incurred by us.
11.4 Subsequent performance, delay in subsequent performance
In the event of defects, you have the following rights:
11.4.1 In the event of justified notices of defects, you may claim, at your discretion, subsequent performance in the form of faultless substitute or refund of the purchase price. In the event of minor defects, the remedies of withdrawal from the contract and refusal of acceptance or receipt shall be excluded.
11.4.2 You are entitled to withdraw from the contract if we are unable to meet your claim for subsequent performance by delivering faultless substitute within four weeks. You are not entitled to any further claims beyond this, nor to compensation for any damage or loss caused by default.
11.5 Legal consequences of grossly negligent or wilful breach of obligations. You are only entitled to further claims if you are able to prove that we have committed grossly negligent or wilful breach of obligations. In the event of slight negligence, claims for compensation for breach of material contractual obligations shall be limited to foreseeable, typically occurring damage. We shall not be liable for slightly negligent breach of immaterial contractual obligations.
11.6 Limitation period
Unless we can be held liable for fraud, any claims for material defects which are not based on a purchase of consumer goods shall expire one year after transfer of risk at the latest; the point in time at which the risk is transferred may be the time of collection, delivery, acceptance, handover, notification of readiness for shipment, notification of completion or the point in time at which you actually put the goods into service or start to use them.
11.7 Limitation of liability and limitation period
The aforementioned limitations of liability and limitation period shall not apply to claims arising from product liability as well as from injury to life, limb or health. This shall be without prejudice to the statutory limitations of liability.
11.8 Rights of recourse pursuant to Section 478 BGB [German Civil Code]
You as the purchaser only have rights of recourse against us as the supplier pursuant to Section 478 BGB insofar as you have not made any agreements with your customer which go beyond the statutory warranty claims.
The limitation period in the event of delivery recourse pursuant to Sections 478, 479 BGB shall remain unaffected. If you act as the last distributing dealer vis-á-vis the consumer, the period of limitation shall expire no later than two months after the point in time at which you satisfied the consumer’s claims.
If you do not act as the last distributing dealer vis-á-vis the consumer, a preclusion period of 18 months shall apply to all claims that are not subject to the limitation period applicable to claims based on material defects. It commences as soon as knowledge of the damage and the party causing the damage is obtained.
11.9 Information provided in sales documents and on the website
Product descriptions in our sales documents and on our website do not contain any warranted characteristics. Our order confirmation shall be solely binding.
Your claims are subject to the prerequisite that the machinery and equipment supplied by us are used by qualified and trained personnel in accordance with the instructions provided and that any prescribed or necessary maintenance work and test intervals are complied with. You already meet these requirements by enabling us to monitor and maintain the equipment for you as scheduled in a maintenance contract.
11.11 Instructions for use
Any faulty instructions for use shall be deemed a minor, insignificant breach of obligations only. In this case, you are only entitled to receive faultless operating instructions if the proper use of the machinery or equipment would otherwise not be possible.
Returns are only permissible with our prior written consent.
13. Binding delivery deadlines and dates
Our delivery deadlines and dates shall only be binding if we have confirmed them as binding in writing. Any fixed deadlines or dates stipulated by you are hereby rejected.
13.1 Statement of delivery deadlines, delivery dates, scope of delivery
Our written order conformation shall be solely binding for delivery deadlines, delivery dates and the scope of the delivery. Any delivery deadlines or delivery dates stated by us shall otherwise be non-binding and shall represent the anticipated date of dispatch or collection of the goods from our headquarters in Heilbronn.
13.2 Compliance with delivery deadlines and dates
A delivery deadline or delivery date that has been confirmed in writing shall be deemed complied with if
- we have notified you of the availability, completion or readiness for shipment of the goods by the delivery date or by the end of the delivery deadline,
- the goods have left our headquarters in Heilbronn or been handed over to the forwarder, carrier or any other party appointed to carry out the shipment in such as way that the delivery can be expected in time under normal circumstances.
13.3 Prerequisite for compliance with delivery deadlines and dates
Compliance with any deadline or date shall be subject to the cumulative prerequisite that you provide all documents and any necessary approvals in time, that you make the agreed payments in time and in full and that you are not in arrears with any payments. If you fail to do so, the deadlines or dates shall be extended in accordance with the delay caused by you.
13.4 Extension of deadlines in the event of force majeure
If we are unable to comply with any deadlines or dates on account of force majeure events, e.g. unfavourable weather conditions, strike or lockout, the contractual deadlines or dates shall be extended adequately.
13.5 Default in delivery
We shall be deemed in default of delivery if you have set us a reasonable grace period no earlier than 2 weeks after the non-binding delivery date or non-binding delivery deadline, and this period has elapsed without any result. Any resulting liability shall be limited to wilful or grossly negligent breaches of contract.
14. Right of withdrawal in the event of protested cheques or bills of exchange, cessation of payment, negative information, lump-sum compensation
14.1 We shall be entitled to withdraw from the contract if we become aware of any protested cheques or bills of exchange, cessation of payment or negative information about you.
14.2 If we withdraw from the contract for one of the above reasons, we shall be entitled to lump-sum compensation amounting to 20% of the net contract value. You are entitled to prove that we have not incurred any loss or that the loss incurred was less than this amount. You are not entitled to assert any further claims.
15. Options in the event of technical or raw material procurement difficulties beyond our control
In the event of unforeseeable technical or raw material procurement difficulties beyond our control, we shall be entitled to withdraw from the contract. In this case, there shall be no other unilateral or mutual claims.
16. Technical progress
We shall be entitled to make modifications in line with technical progress at any time.
17. Place of performance
The place of performance shall be our registered office in Heilbronn.
18. Sole place of jurisdiction
If the Parties are fully qualified merchants, legal persons under public law or public-law entities with special public funds, the sole place of jurisdiction, including actions pertaining to cheques and bills of exchange, shall be Heilbronn. The same applies if the Purchaser does not have a general place of jurisdiction within Germany, or if he has relocated his place of residence or usual abode out of Germany after conclusion of the contract, or if his place of residence or usual abode is now known at the time the action is filed.
19. Exclusion of CISG
The law of the Federal Republic of Germany shall apply exclusively and/or shall take precedence. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
20. Data privacy, data security
20.1 We record your personal data exclusively for the purpose for which it has been provided to us. Your personal data will only be used within Josef Schwan GmbH, Hermann Fuchs OHG or Schwan RegioFood GmbH in compliance with the relevant data privacy regulations.
Any personal data entered on our website, such as your name, address or contact details like telephone or fax number or email address, is provided exclusively on a voluntary basis. Where possible, you can use the contents and services offered on our website without providing personal data.
20.2 You agree and authorise us to process, store and evaluate the data obtained in connection with the business relationship within Josef Schwan GmbH, Hermann Fuchs OHG or Schwan RegioFood GmbH in compliance with the relevant data privacy regulations.
Your personal data will not be made available or sold to third parties.
20.3 Revocation of consent
You can revoke your consent to the use, processing and/or transfer of your data for marketing purposes of Josef Schwan GmbH, Hermann Fuchs OHG or Schwan RegioFood GmbH at any time by sending a short written notice to:
Josef Schwan GmbH
Telefon: +49 (0) 71 31 - 9 13 04-0
Telefax: +49 (0) 71 31 - 92 00 50
or by email to
with effect for the future.
Your data will be used for marketing purposes of Josef Schwan GmbH, Hermann Fuchs OHG or Schwan RegioFood GmbH in compliance with the data privacy regulations.
20.4 Right to obtain information
You have the right to receive information about the personal data stored by us in relation to your person at any time.
As of: 26/10/2013