1. General Provisions
1.1 The following General Conditions of Sale and Delivery (hereinafter called "COD") shall apply to all commercial contracts with our customers (hereinafter called "Buyer"). We do not accept any deviating, conflicting or additional general terms and conditions provided by the Buyer, in particular not by silence or unconditional performance of the contract.
1.2 These COD shall apply only if the Buyer is an entrepreneur (Sec. 14 German Civil Code (BGB)), a governmental entity or forms a special governmental estate. The COD currently in force shall govern all future sales contracts between the Parties without us having to expressly refer to them each time. We will inform the Buyer without undue delay of any modifications to the COD.
1.3 Individually negotiated agreements (including side agreements, additional agreements and modifications) take precedence over these COD. The content of such agreements is determined by our written confirmation.
2. Contract Formation
2.1 All offers are made without obligation and subject to prior sale unless expressly agreed otherwise.
2.2 Purchase Orders are accepted by our issuing of an invoice or a written order confirmation. The Buyer is deemed to have agreed to our COD by accepting delivery of the goods.
3.1 Unless agreed otherwise, we shall provide for any import licence or import declaration necessary to import the goods into the European Union.
3.2 Our goods are natural products whose weight may change during transport due to external influences like humidity. The weight indicated by us upon conclusion of the contract shall be determined by the weight of the goods upon leaving the warehouse. In case of deviations of less than 5% in either direction that are caused during the subsequent transport, any claims by the Buyer under Clause 6. below shall be excluded.
4. Terms of Delivery and Default in Delivery
4.1 The delivery time will be individually agreed upon or indicated by us upon acceptance of the order, respectively. The indication of a delivery date is conditional on the Buyer's cooperation due under these COD (e.g. timely receipt of permits).
4.2 If we are unable to comply with a binding delivery time for reasons not attributable to us (unavailability of performance, "Nichtverfügbarkeit der Leistung"), we will inform the Buyer without undue delay and notify him of the expected new delivery date. If we remain unable to deliver within the new delivery time, we may cancel the contract in part or as a whole; in this case we will refund the Buyer without undue delay any consideration already paid. Performance shall deemed to be unavailable in the sense of sentence 1 of this sub-clause in particular if our supplier does not deliver the products in time and (i) we have entered into a supply contract covering the respective delivery ("kongruentes Deckungsgeschäft"), whereas neither we nor our supplier can be held responsible for the delay ("vertreten müssen") or (ii) we are not obliged to deliver the goods in the individual case.
4.3 If, after conclusion of the contract, it becomes apparent that the Buyer cannot sufficiently warrant for his solvency, thus putting our payment claim at risk (e.g. in case of a request for the opening of insolvency proceedings), we may refuse to deliver until the Buyer either has paid the purchase price or provided for security (Section 321 BGB, German Civil Code). If neither the payment nor the provision of security is effected within 12 days upon request, we may cancel the contract.
4.4 Unless stated otherwise in the following, we are in default with the delivery in accordance with the applicable statutory law. However, the Buyer shall always send a reminder. If we are in default, the Buyer may claim a lump sum compensation amounting to 0,5% of the net price of the goods not delivered per complete calendar week, howe- ver, max. 5% of the net price of the goods not delivered. We reserve the right to provide evidence that the Buyer did not suffer any damage at all or only a considerably lower damage.
4.5 In case of default, the Buyer shall, upon request, notify us within a reasonable time if he insists on the delivery or intends to cancel the contract. The Buyer may cancel the contract in case of default in delivery only in accordance with Clause 7.4 below.
5. Passage of Risk, Default of Acceptance
5.1 Delivery shall be ex warehouse which shall also be the place of performance. Unless agreed otherwise, we may determine the transport modifications (in particular the carrier, shipping method and packaging).
5.2 If the Buyer is in default of acceptance, fails to perform an act of cooperation or intentionally or negligently causes a delay in delivery, we are entitled to claim compensation for the resulting damage including any additional expenses (e.g. storage costs). For this purpose, we may claim a lump sum compensation amounting to 0,5% of the net price of the goods not deliverable per complete calendar week, beginning with the agreed delivery date or – in the absence of such – with the announcement that the goods are ready for dispatch, however, max. 10% of the net price of the goods not deliverable in case of final non-acceptance of delivery.
We reserve the right to provide evidence of higher damages and make further statutory claims; however, the lump sum compensation paid in accordance with sub-clause 5.2 will be deducted from any further payment claims.
5.3 We may deliver and invoice partial deliveries if the same can reasonably be expected to be accepted by the Buyer.
6. Warranty Rights
6.1 As regards the Buyer's rights in case the delivered goods are defective, the applicable statutory law shall apply, unless stated otherwise in the following.
6.2 We warrant that the goods comply with the applicable European law, provided that we were informed that the goods are intended to be sold on the European market. In all other cases, the goods shall comply with the quality agreed between the parties.
6.3 If a defect does not or only immaterially impair the value of the goods and the fitness for their purpose, the Buyer's warranty rights shall be excluded.
6.4 The Buyer's statutory duty to examine and give notification of any defects set out in Section 377 HGB (German Commercial Code) applies. The Buyer has to notify us of any defects without undue delay and in writing. A notification will be deemed timely if the Buyer notifies us within two weeks after discovery, the timely dispatch of the notification being sufficient. Notwithstanding the above, the Buyer shall notify us of any apparent defects (including delivery of wrong items and delivery of wrong quantity) within two weeks after delivery, the timely dispatch of the notification being sufficient. If the Buyer fails to examine the goods or notify us of a defect in time, our liability for the relevant defect is excluded.
6.5 We shall be entitled to make any subsequent performance conditional on the full payment of the contract price. The Buyer may, however, retain a portion of the contract price appropriate in relation to the defect.
6.6 The Buyer shall give us the time and opportunity required to cure any defects. In particular, the Buyer shall, upon request, provide us with a sample of the defective goods for inspection purposes. In case of a replacement delivery the Buyer shall be obliged to return the defective delivery in accordance with the applicable statutory law.
6.7 We shall bear the costs necessary for inspection and subsequent performance only if the goods are defective. However, if the Buyer's warranty claim is not justified, we are entitled to claim compensation for the resulting costs.
6.8 The Buyer may claim damages or reimbursement of expenses only in accordance with Clause 8 below.
7.1 Unless otherwise provided for in these COD, our liability for the breach of any obligation shall be governed by the applicable statutory law.
7.2 We are liable to the Buyer only for damage caused by intent or gross negligence. In case of simple negligence, our liability is limited to
(a) damage claims due to harm done to a person's life, body or health,
(b) damage claims due to the breach of a material contractual duty ("wesentliche Vertragspflicht"), meaning a duty the discharge of which allows the proper performance of the contract in the first place and on the fulfil- ment of which the Buyer can regularly rely; in this case, however, our liability is limited to the foreseeable and typical damage.
7.3 The restrictions of liability named in sub-clause 7.2 shall not apply if we intentionally did not disclose a known defect of the goods or assumed a guarantee for their quality. The same applies to claims raised under the German Product Liability Act (Produkthaftungsgesetz).
7.4 In case of a breach of duty that does not constitute a defect, the Buyer may only cancel the contract in case of intent or negligence ("vertreten müssen"). In all other cases, statutory law applies.
7.5 As far as our liability is excluded or limited, this shall also apply to the personal liability of our employees, agents and other persons assigned by us to perform our obligations.
8. Retention of Title
8.1 Property in the goods shall not pass to Buyer until we have received full payment of the purchase price and any other payments due under the contract or an on-going business relationship with the Buyer.
8.2 The goods subject to retention of title may not be pledged nor assigned as security to third parties until all payments secured under sub-clause 1 are settled. The Buyer shall inform us without undue delay and in writing of any attachment by third parties to the goods and its extent.
8.3 In case the Buyer breaches his obligations under the contract, in particular if he is in default, we may cancel the contract and demand return of the goods after having set a reasonable deadline for the Buyer to perform his obligations; however, the statutory provisions concerning the dispensability of setting a deadline shall remain unaffected.
8.4 The Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of his business, in accordance with the following provisions:
(a) In case the goods subject to retention of title are processed, combined or mixed with other goods, retention of title shall apply to the newly created goods, whereas we shall be deemed to be the manufacturer of these goods. In case property rights of third parties have not lapsed in the course of processing, combining or mixing the goods, we shall have a co-ownership share corresponding to the invoice value of the goods originally delivered by us. With regard to the newly created goods, the provisions of this clause 7. shall apply correspondingly.
(b) The Buyer hereby assigns to us as security any payment claims resulting from the resale of the delivered goods or the newly created goods subject to retention of title in full or in part corresponding to our co-ownership share in accordance with the sub-clause (a). We accept such assignment. The duties of the Buyer under clau- se 8.2. shall also apply to the assigned claims.
(c) The Buyer shall remain authorized to collect the claims beside ourselves. We shall not collect the claims as long as the Buyer meets his payment obligations, is not in default, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his performance. If such is the case, however, we may request that the Buyer provides us with a list of all goods still subject to retention of title, including those that have been processed, discloses the assigned claims and their debtors, provides all details required for the collection, hands over all related documents and notifies the debtors of the assignment.
(d) If the realizable value of our securities exceeds our claims by more than 10 %, we shall release securities of our choice upon request of the Buyer.
(e) We are entitled to withdraw the Buyer's right to process and/or sell the goods subject to retention of title wit- hin the ordinary course of his business in case of default or the application for the opening of insolvency proceedings is filed.
(f) Retention of title shall remain effective even if some of our claims are included in a current account the balan- ce of which has been established and acknowledged.
8.5 The Buyer shall store the goods subject to retention of title and insure them against fire and water damage, theft as well other risks of damage at his own expense. The Buyer hereby assigns to us the respective claims for compensation against insurance companies or other parties liable for any damages in the amount of our claims. We accept such assignment.
9.1 Unless agreed otherwise, our prices valid on the date of the conclusion of the contract shall apply. These prices are ex work and plus VAT applicable upon delivery.
9.2 The Buyer shall bear the costs of any customs duties, taxes, fees or other public charges.
9.3 Disposal or taking back of empties and any kind of packaging material is not included in the price.
10. Payment Terms
10.1 Unless agreed otherwise, payments shall be due 14 days after receipt of an invoice and delivery of the goods. If the Buyer fails to meet this deadline, he shall be in default in accordance with the applicable statutory law.
10.2 If payment by bill of exchange has been agreed, all expenses including any collection charges and other costs like bill stamps ("Wechselstempel") shall be on the Buyer's account. Cheques and/or bills of exchange will be accepted only as conditional payment and shall not be considered payment until after receipt of the equivalent sum.
10.3 The Buyer shall have the right of set off or retention only in relation to counter claims which are undisputed or have been confirmed by a final court judgment.
11. Limitation Period
11.1 Notwithstanding Section 438 para. 1 No. 3 BGB (German Civil Code), warranty claims shall be time-barred after 1 year of the passage of risk.
11.2 The limitation period named in sub-clause 1 shall apply accordingly to any contractual or non-contractual dama- ge claims based on a defect of the goods unless in the individual case the application of the limitation periods provided by law result in a longer limitation period. In all other cases of damage claims covered by clause 7. the statutory limitation period shall apply.
12. Jurisdiction and Applicable Law
12.1 The exclusive – and international- place of jurisdiction for all disputes arising out of the contractual relationship between the Parties shall be Hamburg, Germany. We are, however, entitled to commence legal proceedings at the business seat of the Buyer.
12.2 These COD and all legal relations between the Parties shall be governed by the laws of the Federal Republic of Ger- many excluding the UN Convention on Contracts for the International Sale of Goods (CISG).