General terms and conditions of Bernhard Rothfos GmbH

I. General conditions, contractual basis
All sales and deliveries are carried out under the conditions of the European Standard Contract for Coffee (E.S.C.C.) valid at the time of contract conclusion in the applicable version (available at http://www.ecf-coffee.org/). The parties agree that German law shall be applied.

In addition, the following general terms and conditions of Bernhard Rothfos GmbH are implemented for every sale and delivery and will already be stipulated for every future contract with the buyer. They precede every differing condition of the buyer and supersede the conditions of the European Standard Contract for Coffee (E.S.C.C.) in case of conflict. Conflicting terms and conditions as well as order confirmations of the buyer are contradicted and will only be mandatory if Bernhard Rothfos GmbH has expressly confirmed them in writing.

 

II. Payment

Payments have to be made as stated in the contract and can only be made without any discount to Bernhard Rothfos GmbH. If the date of payment is exceeded the buyer will be in default, even without a reminder. Bernhard Rothfos GmbH is then authorized to collect default interest in accordance with the applicable statutory provisions, of the amount of 9 percentage points higher than prime rate (§288 II BGB – German Civil Code). Bernhard Rothfos GmbH reserves the right to demand higher interest deriving from any other cause in law (§288 III BGB).

The buyer is not entitled to retain the purchase price nor offset with claims, except if the claims are undisputed or recognized by final judgment.

In case of default or if there are reasonable doubts about the buyer´s solvency or credit-worthiness Bernhard Rothfos GmbH has the right to withdraw from all contracts with outstanding delivery as far as the contracts are based on the same legal relationship, especially a current business relationship, and/or to demand immediate payment of all claims or provision of securities. If so, Bernhard Rothfos GmbH is not obliged to fulfil any further contract obligations of the buyer.

 

III. Electronic Invoicing

The buyer agrees to receive invoices by electronic means to the e-mail address notified by him.

 

IV. Extended reservation of title in goods

The delivered goods remain proprietary of Bernhard Rothfos GmbH until full payment of all claims, including future receivables, subsidiary claims and claims for damages is received.

The buyer is permitted to blend, edit, roast and sell the goods under reservation of ownership only in the ordinary course of business subject to the following conditions:

1. The buyer assigns the claims out of the resale to Bernhard Rothfos GmbH, who hereby accepts the assignment.Bernhard Rothfos GmbH shall not collect the claim as long as the buyer complies with its payment obligation resulting from the business relationship. The buyer´s authority to collect the claim itself ends, if the buyer is in default with payment for 14 days, becomes insolvent or insolvency proceedings have been instituted.
   Bernhard Rothfos GmbH is entitled to revoke the authority to collect at any time if it´s security interest is endangered or objective reasons justify it.In the case of termination of the authority to collect the buyer is obliged to inform its customers about the assignment and empowers Bernhard Rothfos GmbH to inform the customers about the assignment and to collect the claim itself.
   If the value of securities of Bernhard Rothfos GmbH exceeds the claims against the contractual partner by more than 20%, Bernhard Rothfos GmbH, upon request of the buyer or any third party prejudiced, shall release securities at its sole discretion.
2. By processing goods under reservation of title the buyers content right will continue in the new goods and Bernhard Rothfos GmbH will be seen as producer in accordance with §950 I BGB. In the event of processing and/or blending the goods under reservation of title with other objects not belonging to Bernhard Rothfos, it acquires a co-ownership share equivalent to the invoice value in the new goods (§§947,948 BGB).
3. The permission to blend, edit, roast and sell the goods under reservation of title in the ordinary course of business ends, if the buyer is in default with payment for 14 days, suspends payment or insolvency proceedings have been instituted against it, also if the buyer sells the goods to customers who exclude or limit the assignment of claims against them and therefore reject the assignment in advance. Bernhard Rothfos GmbH is entitled to revoke the contract at any time if its security interest is endangered or objective reasons justify it.
4. As soon as the buyer is in default with payment it is obligated, upon request of Bernhard Rothfos GmbH, to send a list with the remaining goods under reservation of title and claims against third party debtors including copy of invoice and to return the reserved goods immediately.
5. Pledging or transferring the goods under reservation of title or assigned claims by way of security is inadmissible.
6. The buyer has to immediately inform Bernhard Rothfos GmbH about seizure of the security collateral with indication of attachment order and transfer of garnished claims of pledgee. In case of seizure of a third party to the reservation of title/ the assigned claims the buyer has to bear all costs for repealing the seizure particularly in third party proceedings, as well as those costs necessary for replacement of the security collateral.
7. If Bernhard Rothfos GmbH takes back the goods due to its retention of title, the contract shall only be rescinded if Bernhard Rothfos GmbH expressly declares so in writing.Bernhard Rothfos GmbH is authorized to utilize the reclaimed goods in direct sale to the open market after dutiful discretion and to offset the proceeds of utilization against the outstanding claims. The realization of claims assigned in advance of the resale of the security collateral is realized by collection of debts. They can only be realized after a prior warning within an appropriate period of at least one week. The costs have to be borne by the buyer.
8. The buyer stores the goods under reservation for Bernhard Rothfos GmbH and has to insure them adequately against fire, water and theft as well as other damages. The buyer herewith assigns the claims for compensation resulting from the damages mentioned in clause 2 against the insurance companies, or others liable for compensation, in full amount to Bernhard Rothfos GmbH, who hereby accepts the assignment.

 

V. Compensation for damages in default of acceptance

Is the buyer in default of acceptance, omits to act in cooperation or causes the delivery to be delayed for any other reason imputable by it, Bernhard Rothfos GmbH is entitled to demand claims for compensation resulting from the delay, especially additional expenditure for i.e. warehousing cost pursuant to §304 BGB.

If payment terms have been granted, Bernhard Rothfos GmbH is also entitled to charge the customer the increased interest costs if the goods are not accepted in accordance with the contract or not accepted on time.

The customer is at liberty to prove a lower interest loss.

 

VI. Increased Logistics Costs

In the event of force majeure, which leads to increased logistics costs (freight, storage charges, handling costs), Bernhard Rothfos GmbH reserves the right to charge these additional costs to the customer.

 

VII. Arbitration agreement, severability clause

1. In case of quality disputes, the provision for the “Hamburg private Arbitration in the Coffee Import Trade” shall be applied. For principal arbitration the Court of Arbitration of the German Coffee Association at Hamburg Chamber of Commerce is the agreed jurisdiction.
2. If any provision of the general terms and conditions is or becomes ineffective or unenforceable the validity of the remaining ones shall not be affected. The ineffective or unenforceable provision shall be replaced by a valid provision that comes closest to the economic interest and intent of the contractual parties and which they had agreed on if they had been aware of the ineffectiveness/invalidity.

 

VIII. Subject to amendments

Bernhard Rothfos GmbH is entitled to update, amend or improve the general terms and conditions.