Generel Agency Conditions
General Agency Conditions of Schroeder & Hamann GmbH & Co. KG
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1. Scope of Application
The following general agency conditions apply to all contracts entered into between us and our business partners. They shall also apply to any future business relationships, even if they are not expressly agreed on again. We are not bound by deviating conditions of the respective business partner that were not expressly recognised by us, even if we do not expressly object to them. The following conditions apply, even if we perform the business partner's orders without objection in spite of knowing of contrary or deviating conditions of the business partner. Agreements deviating from these conditions and side agreements shall require written form to be valid.
2. Trading Broker
(1) We are solely active as a trading broker in the sense of § 93 para. 1 German Commercial Code in the area of tea trading, specifically dealing with commercially mediating agreements or contracts for the purchase or sale of merchandise, mostly tea, for other persons without being continually charged with this. We have the right to act as agents for other business partners. The business partner has the right to charge other agents.
(2) We are neither a seller nor a buyer of goods and do not become a contracting party when successfully mediating a purchasing contract; we specifically are not liable for any defects of material or title in the goods sold. This shall also apply if we invoice the purchasing price to the purchaser in our own name. This is generally done on behalf and for the account of the respective supplier. This does not constitute entrance into the contractual relationship between the seller and purchaser.
(3) We are not subject to any performance obligations nor any responsibility in the case of violation of the agreements/contracts mediated by us in case of non-performance, malperformance, lack of marketability of goods, etc. These solely apply to the respective supplier. Any analysis costs with the result of "marketability" of the goods shall always be assumed by the purchaser. Analysis costs for goods with the result "not marketable" will generally only be assumed by the supplier if he has agreed to this rule when entering into the transaction.
Where we are integrated into the reverse processing of contracts or contact, processing of claims, reductions, etc. with the consent of the business partners, we shall solely act as mediating office on behalf of the respective business partner and not in our own name. This shall also apply for the receipt of goods and payments.
(4) All offers made by us about the conclusion of agreements or contracts shall be solely made in the name of the respective business partner, no matter whether he is the seller or purchaser, and not in our own name. They shall generally be subject to confirmation. Information in quotations, ads and price lists about prices and services as well as similar things are considered references and shall also be non-binding. Such information shall be binding if the mediated contract expressly refers to them. All prices indicated by us are generally CFR or CPT Hamburg, except where indicated differently by the seller or by us in the seller's name. Insurance shall always and without exception be fully covered by the respective purchaser.
(5) Where we sign any specifications, data sheets, form sheets, etc., according to the provisions of the relevant certification, we do this solely in the name and at the responsibility of our business partners (suppliers), on their instructions and according to their information. We as a broker do not assume any warranty for their completeness or accuracy. Signature takes place to the best of our knowledge and belief. We generally strive to request all data from our business partners (suppliers) and to submit them correctly where the business partner (supplier) is unable to provide these documents on his own. Where neither we nor our business partner (supplier) have any validated data and/or information could only be procured by inappropriate additional effort, we shall solely sign "according to our knowledge" without assuming any guarantee for the accuracy of this information or even making any promise regarding the properties of these goods.
3. Commission Fees
(1) The agency commission fee shall be earned upon conclusion of a purchasing contract for goods if we have at least contributed to conclusion of the contract and if the purchasing contract is entered into no later than six months after the end of the agency order. The causative effect of our mediation shall also apply if not the potential purchaser mediated by us but a legal entity or natural person belonging to his economic and/or personal scope of influence enters into the purchasing contract.
(2) The contracting parties are obliged to inform us in writing or by email of the conclusion of a purchasing contract without delay unless we are included in the conclusion of the purchasing contract and the contracting parties receive written confirmation of the agreement/contract from us.
(3) The claim to the commission fee shall be retained if the contract that was entered into is reversed or declared invalid due to contestation or other legal reasons for reasons that are not due to our fault. This shall also apply for dissolution due to conditions precedent or dissolving conditions.
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4. Reservation of Title of the Seller in Agreements Mediated by Us
(1) Until completion of all claims, including any balance claims from current accounts, that are due to the seller against the purchaser now or in future from the business mediated by us, title in the delivered goods (goods subject to retention of title) shall remain with the seller. In case of violation of the contract by the purchaser, e.g. default of payment, the seller and we shall have the right to take back the goods subject to retention of title in the seller's name upon setting of an appropriate grace period. If we or the seller take back the goods subject to retention of title, this shall constitute rescission of the contract by the seller. If we seize the goods subject to retention of title, this shall constitute rescission of the contract by the seller. In this respect, we shall have the right to utilise the goods subject to retention of title in the seller's name upon taking them back. After deduction of an appropriate amount of the utilisation costs, the utilisation revenue shall be set off against the amounts owed by the purchaser to the seller and to us.
(2) The purchaser shall have the right to sell and/or use the goods subject to retention of title properly in his course of business unless he has entered default of payment. Pledging ortransfer as collateral shall not be admissible. The purchaser hereby assigns the claims resulting from the further sale or any other legal reason (insurance, tort) regarding the goods subject to retention of title (including any balance claims from current accounts) to the seller in full as collateral, and the seller accepts the assignment. The purchaser is granted the revocable authorisation by the seller to collect the claims due to him for his account and in his own name. The collection authorisation can be revoked at any time if the purchaser does not properly meet his payment obligations. The purchaser shall not have the right to assign this claim, even for the purpose of collection of claims by way of factoring, except if the factor is at the same time obliged to pay compensation at the amount of the claims directly to the seller while he still has claims against the purchaser.
(3) Processing or conversion of the goods subject to retention of title by the purchaser shall in any case take place for the seller. If the goods subject to retention of title are processed with any other objects that do not belong to the seller, the seller shall acquire joint title in the new object at the ratio of the value of the goods subject to retention of title (final amount of the invoice including VAT) to the other processed objects at the time of processing. The new objects created by processing shall be subject to the same rules as the goods subject to retention of title. In case of inseparable mixture of the goods subject to retention of title with other objects that do not belong to the seller, the seller shall acquire joint title in the new object at the ratio of the value of the goods subject to retention of title (final amount of the invoice including VAT) to the other objects mixed at the time of mixture. If the object of the purchaser is to be considered the main object as a consequence of mixing, the purchaser and seller agree that the purchaser transfer prorated joint title in this object to the seller; the seller hereby accepts the transfer. The purchaser shall keep the sole or joint title of the seller that was created like this for the seller.
(4) In case of access by third parties to the goods subject to retention of title, specifically in case of attachment, the purchaser shall refer to the title of the seller and inform him or us without delay so that the title of the seller can be asserted. Where the third party is unable to reimburse the seller or for the court or out-of-court costs arising in this context, the purchaser shall be liable for this.
(5) The seller shall be obliged to release the collateral due to him where the value that can be achieved from the collateral exceeds the claims to be secured by more than 10 %, with the seller having the right to choose which collateral to release.
5. Other Liability
(1) Where the general agency conditions including the following provisions do not specify anything differently, we shall be liable according to the relevant statutory provisions in case of violation of any contractual and out-of-contract obligations due to us as trading broker.
(2) We shall only be liable for damages – no matter the legal reason – in case of wilful intent and gross negligence. In case of simple negligence, we shall only be liable for
(a) damage from violation of life, body or health,
(b) damage from violation of an essential contractual obligation (obligation the performance of which is a mandatory prerequisite for proper performance of the contract and compliance with which the contracting partner regularly trusts in and has a right to trust in); in this case, however, our liability shall be limited to reimbursement of the foreseeable typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall not apply where we have acted maliciously or concealed facts subject to disclosure obligations or where we have assumed a guarantee for the properties of the goods mediated by us.
6. Choice of Law and Place of Jurisdiction
(1) These general agency conditions and all legal relationships between us and the business partners shall be subject to the law of the Federal Republic of Germany.
(2) If the business partner is a merchant in the sense of the commercial code, legal entity of public law or a public-law special fund, the sole – also international – place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship shall be Hamburg. However, we shall also have the right to raise a claim before the general place of jurisdiction of the business partner.
These conditions are a translation of the original German version. In case of discrepancies or dispute, the German version shall apply.
Effective 1st June 2014