General Terms and Conditions of Josef Marschall GmbH
(1) Contracts with Josef Marschall GmbH shall be subject to the following order of priority
- the written terms
- our general terms and conditions
- the terms and conditions which may be attached to this contract and specified to the goods
- the specified form contracts referred to.
We reject conflicting general terms and conditions and individual terms and conditions, regardless of whether they are received by us prior to sending our GTC or subsequently. The validity of a general practice or a commercial custom by us is expressly rejected even if conditions of the contractual partner have been agreed several times or repeatedly.
3. special conditions in the latest version
1. uniform conditions in the German grain trade
1a. Additional Provisions to the Standard Terms and Conditions for the German Grain Trade for Transactions in German Malting Barley
2. uniform conditions in the German grain trade following the original import contract
3. uniform conditions in the German grain trade following the Vernof conditions
4. standard conditions in the German grain trade following the oil mill conditions of the respective mill.
5. contracts of GAFTA London
6. Hamburg fodder closing coupons
7. Paris contract notes
8. Copenhagen closing certificates
9th Rotterdam Conditions
10 German-Dutch treaties
11. contracts of FOSFA, London
12th German-Italian Contract
This contract alone is authoritative and binding as the basis of the transaction specified overleaf. Counter-confirmations of the contractual partner as well as brokers' closing statements are not decisive for this contract and the execution of the contract. Agreements and arrangements made at the time of conclusion of the contract shall only be valid for us if confirmed overleaf or subsequently confirmed by us. Counter-confirmations by the contractual partner are invalid.
(5 ) This contract is concluded under the condition of undiminished creditworthiness of the contractual partner. Unsatisfactory information, deterioration of the financial circumstances of the contractual partner and other circumstances which become known after conclusion of the contract and which, in our opinion, make the granting of credit no longer appropriate, entitle us to withdraw from the contract without setting a deadline or, at our discretion, to demand advance payment or the provision of security. The contractual partner is hereby obliged to inform us immediately if his financial or payment situation deteriorates in a way that endangers the purchase price claim. Should we incur damage in the event of a withdrawal from the contract, e.g. difference between daily and contract price, the contractual partner shall be fully liable to us for this damage. This legal consequence is excluded for contracts in which an advantage arises for us. In the event of a deterioration of the contracting party's assets as mentioned above, it shall be left to us alone to decide which existing contracts shall be fulfilled and for which contracts we shall make use of a possible withdrawal from the contract.
Payments shall be made by the contractual partner in such a way that we receive the full equivalent value for the delivered goods in loss-free cash. Cheques or bills of exchange shall only be accepted on account of performance. In the event of a reduction in the creditworthiness of the contractual partner, we may refuse to accept cheques / bills of exchange and demand immediate cash payment less discount for cheques / bills of exchange already received. The acceptance of a bill of exchange or cheque does not constitute a deferment of payment. In the event of overdue payment, interest on arrears shall be charged at the usual bank interest rate for credit facilities without the need for a special reminder. The contracting party is not entitled to withhold the purchase sum for offsetting or deductions of any kind. Incomplete payment is equivalent to non-fulfilment of payment and entitles us to proceed in accordance with paragraph 5. Any deferment agreements made shall not be deemed to have been agreed if the circumstances referred to in clause 5 occur.
The delivery of the goods is subject to retention of title in accordance with § 455 BGB (German Civil Code) with the following extensions:
A. The goods remain our exclusive property (goods subject to retention of title) until full payment (see 6 above) of all claims, including future claims (main and ancillary claims) arising from the business relationship. Retention or offsetting due to any counterclaims of the contractual partner are inadmissible and do not affect the retention of title.
B. As long as our title to the delivered goods exists, they shall be insured by the contractual partner against loss and depreciation, against fire, theft and transport risk as well as water damage. The contractual partner shall be fully liable to us for any kind of depreciation suffered by the delivered goods.
C. Acquisition of ownership of the reserved goods by the contractual partner in accordance with § 948 BGB (German Civil Code) through mixing or § 950 BGB (German Civil Code) through processing into a new item is excluded. Any processing/mixing by the contractual partner shall therefore be carried out for us. The processed goods shall continue to be subject to retention of title for our security in the amount of the value of the goods subject to retention of title. The same shall apply mutatis mutandis to the new item created by processing or mixing the reserved goods with other goods not belonging to us, with the proviso that we acquire co-ownership.
D. The contractual partner shall assign to us in advance all claims as they arise and with all securities and other rights which arise for him from the resale of the goods subject to retention of title or the goods in which we have co-ownership. The assignment of the claims shall only apply to the amount of the value of the reserved goods.
E. The contractual partner shall only be entitled to mix/process the reserved goods and to resell them as a reseller in the ordinary course of business as long as the prerequisites stated in clause 5 are met. If a deterioration of the financial circumstances and payment conditions of the contractual partner occurs which endangers the purchase price claim, this authorisation shall automatically expire. Furthermore, the right to resell the goods subject to retention of title is only granted under the condition that the contracting party, through contractual
agreement with his subsequent purchaser secures our rights to the assigned claim, namely by excluding the retention of the purchase sum as well as offsetting and deductions of any kind. The contracting party shall not be entitled to dispose of the reserved goods in any other way, in particular to pledge them or assign them as security to others. Bills of exchange or cheques received by him for the goods subject to retention of title shall only be acquired by him as a representative for us with the proviso that the latter shall become the direct owner of the bill of exchange or cheque and the contractual partner shall only hold it as a custodian for us.
F. The contractual partner is authorised to collect the claims from the resale despite the assignment. We shall not make use of our collection authority as long as the contracting party duly meets its payment obligations. If the conditions set out in clause 5 no longer exist, the contractual partner shall refrain from collection and from any action on the assigned claims, with the exception of security measures in favour of us to which the contractual partner is expressly obliged. The contractual partner is furthermore obliged, at our request, to inform us of the debtors of the assigned claims with a list of the quantities of goods delivered to them, to notify the debtors of the assignment and to submit a list of the quantities still in stock with the buyer.
G. The retention of title in accordance with the above provisions shall also remain in force if individual claims are included by us on its current account and the balance has been drawn and recognised.
H. The contractual partner is obliged to inform us immediately if third parties access or wish to access a claim assigned in accordance with clause d).
I. We are entitled to take back the goods subject to retention of title at the contracting party's expense without this constituting a withdrawal from the contract if the contracting party fails to comply with the agreed terms of payment, fails to pay reminded interest on arrears and the like or pledges inventories, accounts receivable etc. to others or provides them as security.
J. We are entitled to set off claims against any counterclaims, including claims that are not yet due but have already arisen, as well as claims that will only arise in the future, to the exclusion of any conflicting general terms and conditions of the other party.
If the contractual partner is in arrears with delivery/acceptance of the goods or with payments, we shall be entitled, without setting a deadline,to refuse further deliveries, also from independent contracts, and to demand compensation for non-performance. Furthermore, we are entitled to make further deliveries from this or another contract dependent on advance payment and/or the provision of security; this does not give the contractual partner any right to withdraw from the contract. The same shall also apply if the purchase price claim appears to be at risk for other reasons. If the contractual partner suspends his payments or if the opening of judicial composition or bankruptcy proceedings has been applied for or if the opening of judicial bankruptcy proceedings has been rejected for lack of assets or if there are other circumstances which are to be considered the same, we shall be entitled to withdraw from all contracts which have not been completely settled and fulfilled without setting a deadline and to claim damages for non-fulfilment, see also clause 5. In the event of a withdrawal from the contract by us, the contractual partner shall be obliged to return the delivered goods at our expense in accordance with our instructions and to reimburse us for expenses incurred by us for freight and other expenses.
(9 ) Should freight, customs duties, taxes or similar public charges be increased or introduced after conclusion of the transaction - also retroactively - this additional burden shall be borne exclusively by the contracting party. This applies in particular to increases in free freight rates in inland shipping, truck and rail freight as well as to levies which are decreed after conclusion of the transaction or only become generally known after conclusion.
(10 ) For all transactions cif or fob inland waterway place, the price is understood to be based on normal water freight as well as open and/or unimpeded shipping. Additional costs incurred by us as a result of these circumstances (KWZ, HWZ, ice demurrage, increase in freight rates due to shortage of shipping space and the like) shall be borne exclusively by the contracting party. This shall also apply in full to contracts in so-called broken freight traffic, i.e. purchases/sales franco or ex port, in which the pre- or outward freight rates are increased due to the above-mentioned circumstances. In the case of contracts fob or cif, all charges or costs incurred at the port of performance (shore dues, etc.) shall be borne in full by the contracting party. In the case of exemption from a forwarder's warehouse, all costs arising from the contracting party's failure to take delivery in due time shall be borne in full by the contracting party. If normal shipping conditions do not exist within the performance period of this contract, this shall be deemed to be an impediment to performance for us. We shall be entitled to extend the performance period until these conditions return to normal or to withdraw from the contract in return for compensation for the loss incurred by us as a result (difference between contract price and daily price, etc.). We alone are entitled to this right and it cannot be asserted by the contractual partner.
11. advance and/or a-account payments shall be made by us subject to final settlement in terms of quantity and quality.
The place of performance for payment under this contract and the place of jurisdiction shall be the registered office of Josef Marschall GmbH.
Should individual terms and conditions be or become invalid, they shall be replaced by the statutory provisions. The validity of the remaining conditions of this contract shall remain unaffected by the invalidity of individual clauses.