1. Area of application
Our delivery terms, services and offers are exclusively governed by these standard terms. They therefore apply to all business dealings, even if they have not been expressly agreed. We expressly object to any counter acknowledgements by the buyer with reference to his own standard terms or terms of purchase. They will not become part of the terms of the contract if we effect delivery in knowledge of the contradictory terms. If our terms have not reached the buyer with our offer or if they have been made available to the buyer on another occasion, they nevertheless apply if the buyer was aware of them or should have been aware of them from previous business dealings.
The contractual terms are exclusively governed by German law. The UN Sales Convention does not apply.
2. The offer and the scope of performance
a) The documents accompanying the offer, such as details concerning weight and dimensions, are only approximate as far as they have not expressly been designated as binding.
b) In principle the contract will only be deemed formed when the buyer's orders and any delayed or modified acceptances of offers have been confirmed in writing by the seller. If applicable, the seller's invoice replaces the acknowledgement of the order.
c) The written acknowledgement of the order, or the invoice, if applicable, determines the scope of performance.
d) We reserve the right to reject orders of less than € 300,00 or to charge a surcharge of € 100.00 for very small orders. The smallest packaging unit for standard articles is 5 kilograms.
e) In the case of orders where the value of the goods is less than € 300.00 per article we reserve the right to charge laboratory costs on a pro rata basis for any analysis that is desired or requested. The amount depends on the specific requirements.
The prices we have quoted are applicable "ex works" without prejudice to a written agreement to the contrary.
a) Without prejudice to a written agreement to the contrary, the terms of payment for all products are: payable immediately, net cash after receipt of the goods and the invoice. This also applies to part deliveries.
b) The buyer will be deemed to have defaulted when he receives a reminder after payment has become due or 30 days after payment has become due and an invoice has been received. If the buyer has defaulted on payment, the buyer must pay default interest amounting to 8% above the basic interest rate if the buyer fails to prove that there was no loss at all or that the loss was not as great.
c) Payments will not be considered to have been made until we have access to the amount in question. Cheques and bills of exchange will be accepted with reservations on account of performance. The buyer must bear any discounting and collection charges. If any cheques or bills of exchange are not honoured or if an application is made for the commencement of insolvency proceedings against the buyer, all the seller's claims will be due for payment immediately, even if an extension of the time allowed for payment has been granted. The buyer may only set off his own claims against such claims if they are undisputed or if they are final and absolute.
d) Incoming payments will be used to settle the oldest liabilities or the liabilities with the lowest security, as we may decide.
e) Part deliveries will be charged for immediately and are payable separately, irrespective of whether delivery has been completed. In the absence of a written agreement, down payments on the formation of contracts will be charged against the oldest part deliveries.
5. Time allowed for delivery
a) If the seller is not able to deliver within the period of time allowed for delivery, the buyer must grant a reasonable extended deadline, commencing on the date of the receipt of written notice from the buyer putting the seller in default or, if the time allowed for delivery is determined by calendar date, on the expiry of this date. If the seller does not deliver by the end of the extended deadline, the buyer has the right to rescind the contract.
b) The time allowed for delivery will be extended accordingly in the event of any disturbances in the seller's business operations which are not the fault of the seller, particularly strikes and lock-outs, and also cases of force majeure caused by an unforeseeable event which is not the fault of the seller. The buyer is only entitled to rescind the contract if the buyer sends a written reminder requesting delivery after the expiry of the time agreed for delivery and no delivery is made to the buyer by a reasonable extended deadline after the seller has received the buyer's reminder. If the time allowed for delivery is determined by a calendar date, the extended deadline to be set will begin on the expiry of this date.
c) If the seller should default on delivery and the buyer has set a reasonable extended deadline, without any delivery being made, the buyer may either rescind the contract or claim damages for a proven loss for each full week that the seller has been in default at a rate of 0.5 % in each case, but of no more than a total of 5 % of the purchase price of the late consignment. The buyer will not be entitled to assert any further claims in any cases of late delivery, even after the expiry of an extended deadline set for the seller.
6. Reservation of title
a) The goods will remain the property of the seller until all liabilities under this contractual relationship have been settled in full, including all claims under a current account relationship or the business relationship in the case of an ongoing business relationship.
If there is a current account relationship the reservation of title will remain in force even after an entry has been made into the current account or after the current account has been balanced.
b) If the goods that are subject to reservation of title are worked or processed or reformed, this working, processing or reforming will be done on our behalf, but without any guarantee. If the buyer processes the goods with other objects which do not belong to us we will be entitled to co-ownership of the new item in proportion to the value of our goods under reservation of title in relation to the other items processed at the time of processing. If the goods under reservation of title are mixed or blended with other items, we will acquire co-ownership in proportion to the value which the goods under reservation of title had at the time that the goods were mixed.
c) The buyer is only entitled to sell the goods under reservation of title in proper business dealings in exchange for payment or only in passing on the reservation of title. The buyer is not entitled to assign the goods under reservation of title or pledge them by way of a security.
d) The buyer undertakes to properly store the seller's property even if the goods that have been delivered are not directly meant for the buyer, but for third parties. The buyer must also expressly notify the recipient of the goods of this reservation of title.
e) The buyer hereby assigns his future claims from the sale of the goods under reservation of title to the seller and undertakes to provide the seller, on request, with all details concerning the claims which are necessary for the collection of the claims and to hand over the necessary documents. The costs incurred in collecting the claim to the purchase price which has been assigned must be borne by the buyer. The buyer is authorised to collect the assigned claims from the resale until further notice.
f) The seller must be immediately notified in writing of any change of location and intervention on the part of third parties, particularly of any attachments. In the case of an attachment the seller must be sent the record of the attachment.
g) If the buyer fails to observe the obligations set out under points a) to f), the seller has the right to rescind the contract and to reclaim the goods and to revoke the authorisation to collect claims. The buyer must surrender the goods. The assertion of the reservation of title does not mean that the seller must rescind the contract. The seller may collect the goods under reservation of title from the buyer's offices and may dispose of them after issuing a prior warning.
7. Variations in quality
Any variations in quality due to the nature of the goods, particularly variations in odour and taste, shall not entitle the buyer to make complaints or to raise any claims.
8. Transport, packaging, transfer of risk
a) In the absence of any agreement to the contrary, we will select the mode of transport and the carrier.
b) Our deliveries include non-recyclable packaging in accordance with our standard packaging at our choice. The buyer must bear the costs of disposing of any empty packaging.
c) The risk of having to pay the purchase price despite the loss of the goods or damage to the goods passes to the buyer on receipt of the goods. Even if the seller pays the transport costs the risk will pass to the buyer as soon as the goods have left the seller's shipping department.
d) We insure every consignment if the buyer does not voice any express wishes to the contrary. The insurance charge of 0.5 % of the net value of the goods may be charged to the buyer.
e) In the case of damage we must be immediately sent an official assessment of the damage (if applicable with a weighing note) together with the corresponding assignment of the claim. We reserve the right to deliver a replacement for the loss or to compensate the buyer for the damage incurred.
9. Delay in accepting the goods
a) If the buyer, after the expiry of a reasonable extended deadline, tacitly or expressly refuses to accept the goods, the seller may rescind the contract or claim damages due to non-performance.
b) The costs incurred by the delay in acceptance, particularly by storing and redelivering the goods, must be borne by the buyer.
c) The seller may also use the services of a forwarding agent to store the goods.
Complaints made by businesses may only be taken into account if we are notified of them in writing and in detail within 10 days of the receipt of the goods and before they are processed. If we accept the complaint, we reserve the right to deliver a replacement or to issue a credit note. All further claims are excluded and we will particularly not be liable for consequential damage as a result of these goods being processed.
11. Rescission of the contract
a) The seller is not obliged to deliver if its own supplier has ceased producing the goods which have been ordered or if there are cases of force majeure in as far as these circumstances do not occur until after the formation of the contract and the seller is not responsible for the failure to deliver and proves that it has made its best efforts to procure goods of equivalent value, but to no avail. The seller must immediately notify the buyer of the said circumstances.
b) The seller is entitled to rescind the contract if the buyer has provided inaccurate details concerning the facts establishing his creditworthiness or has ceased payments or if an application has been filed for insolvency or judicial composition proceedings to be commenced against him or if he has not complied with his payment liabilities from earlier deliveries by the seller although the buyer was in default, unless the buyer immediately pays for the goods in advance. The return of the goods is governed by the provisions in clause 12.
c) If there are any indications after the formation of the contract that the ability of the buyer to perform his obligations is jeopardised, such as late payment and the cessation of payments, his current assets being assigned by way of security, unfavourable information from a bank, credit institutes or credit insurers, the seller is entitled to refuse performance and, after setting a deadline for the provision of absolute guarantees, bank guarantees or up-front payments and this deadline expiring to no avail, to rescind the contract or to claim damages. It is not necessary to set a deadline if it is obvious that the buyer's ability to perform is jeopardised.
12. The return of the goods
a) If the seller rescinds the contract and takes back the goods that have been delivered, the seller shall have a claim to compensation for expenses, the granting of use and depreciation in value as follows:
aa) for expenses incurred in performing the contract, such as transport and assembly costs etc, the actual costs incurred
bb) for depreciation in value and the granting of the use of the delivered goods, a flat rate of 25 % of the invoice amount for the first four quarters.
a) For defects in the goods the seller initially offers to repair the defects or reproduce the goods, as it may decide.
b) If the seller seriously and finally refuses to perform, refuses to repair the defects and to subsequently perform due to disproportionate costs or if subsequent performance is unsuccessful or if the seller cannot reasonably be expected to perform, the buyer, instead of demanding performance, has a choice between a reduction in price or the rescission of the contract and damages within the framework of the limitation of liability.
However the buyer has no right of rescission in the case of only a slight breach of contract, particularly if the defects are only minor.
c) The buyer does not have a claim to reimbursement for hotel expenses, telephone expenses, compensation for unpaid vacation, further expenses of this nature or consequential loss.
d.) Claims under guarantee due to obvious defects will lapse if the buyer does not make a complaint when the goods are handed over.
e.) If the seller is not responsible for a defect, the buyer is not entitled to rescind the contract.
f.) The buyer's rights will become statute-barred one year after the acceptance of the work/item if the buyer is a business and the goods are of corresponding durability. The seller's goods are largely natural products which, by their very nature, are of limited durability.
14. Place of jurisdiction and place of performance
a) The place of jurisdiction for deliveries, services and payments and for all disputes between the parties is the buyer's place of residence.
b) If the buyer is a business that is entered in the commercial register, a legal entity under public law or a special fund under public law, Hamburg will be the only place of jurisdiction.
c) If the buyer does not have a general place of jurisdiction in Germany, moves his place of residence or usual place of abode to a place abroad after the formation of the contract or if his place of residence or usual place of abode is not known at the time when an action is brought, the place of performance and the place of jurisdiction shall be Hamburg.
15. Amendments to the contract / final provisions
Any additional agreements or agreements which differ from the provisions set out above must be made in writing. This also applies to any amendment to the clause requiring the written form. If individual terms should be invalid or void, this shall have no bearing on the remaining terms.