These general terms and conditions of sale and delivery (“General Terms of Delivery”) shall take effect on January 1, 2018 for all deliveries by Hälssen & Lyon GmbH if the Buyer is an entrepreneur (Section 14 BGB [German Civil Code], a legal entity under public law or a special fund under public law.
Hälssen & Lyon GmbH shall be hereinafter referred to as “Seller”. Seller’s customers shall hereinafter be referred to as “Buyer”.
1. GENERAL PROVISIONS
1.1 By placing an order with the Seller, the Buyer accepts these General Terms of Delivery.
1.2 We do not accept general terms and conditions of the Buyer which deviate from, are in conflict with or in addition to these Terms of Delivery, also not by silence or unconditional performance of the agreement.
1.3 Individually negotiated agreements with the Buyer (including subsidiary agreements, additional agreements and modifications) shall take precedence over these General Terms of Delivery. Subject to evidence to the contrary, the content of such agreements shall be determined by a written agreement or our written confirmation.
1.4 Legally relevant statements and notices on the part of the Buyer with regard to the agreement (e.g. deadlines, notices of defect, statement of withdrawal or reduction) shall be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax).
1.5 The General Terms of Delivery in the version in force at the time shall also govern all future agreements with the same Buyer regarding the sale of our goods without us having to expressly refer to them in each individual case. We shall inform the Buyer of any modifications to our General Terms of Delivery without undue delay.
2. ORDERING PROCESS AND CONCLUSION OF THE AGREEMENT
2.1 All offers shall be non-binding and subject to prior sale unless expressly agreed to otherwise.
2.2 Purchase agreements regarding Seller’s products shall not take effect upon the Seller's acceptance of the Buyer's order.
2.3 We accept orders by written order confirmation, by delivery of the goods or, in case of advance payment, by issuing an invoice. An electronic confirmation of receipt of the order does not constitute acceptance. By accepting deliveries, the Buyer agrees to our General Terms of Delivery.
3. DELIVERY, TRANSFER OF RISK
3.1 Unless agreed otherwise, the delivery shall be made to the Buyer FCA INCOTERMS 2010 at the warehouse designated by us in the respective order confirmation.
3.2 Unless agreed otherwise, we shall obtain the import license or import declaration necessary to import raw goods into the territory of the European Union.
3.3 Our goods are natural products whose weight may change during transport due to external environmental conditions such as humidity. The weight information calculated by us upon conclusion of the agreement shall be based on the weight of the goods determined in the warehouse. Claims by the Buyer according to Clause 6 because of a subsequent deviation shall be excluded if the deviation is no more than 5% in either direction.
4. DELIVERY DATE, DELAYED PERFORMANCE
4.1 The delivery date shall be agreed individually or indicated by us upon acceptance of the order. The indication of delivery dates shall be conditional on Buyer's cooperation due under the agreement (e.g. timely receipt of permits).
4.2 If we are not able to meet binding delivery dates for reasons for which we are not responsible (unavailability of performance), we shall notify the Buyer without delay and simultaneously advise the Buyer of the anticipated new delivery date. If we remain unable to deliver within the new delivery period, we shall have the right to withdraw from the agreement in full or in part; we shall refund without delay any consideration paid by the Buyer. Performance shall be deemed unavailable in particular if our supplier cannot deliver the products to us in time, if we have entered into a congruent hedging transaction and neither we nor our supplier is at fault, or if we are not obliged to procure the goods in a given case.
4.3 If, after conclusion of the agreement, it becomes apparent that the Buyer cannot sufficiently warrant his solvency thereby putting the payment claim at risk (e.g. by requesting the opening of insolvency proceedings), we shall be entitled to refuse delivery until the Buyer has rendered payment or provided security therefore (Section 321 BGB). If the payment or security is not rendered within 12 working days following a corresponding request, we shall have the right to withdraw from the agreement.
4.4 We are deemed in default of delivery in accordance with legal regulations. A reminder by the Buyer is required in any event. If we are in default of delivery, the Buyer may require liquidated damages for the delay amounting to 0.5% of the net price (delivery value) per completed calendar week the delivery is in default, however, not to exceed a total of 5% of the delivery value of the goods delivered late. We reserve the right to provide evidence that the Buyer sustained no or substantially less damage than the aforementioned flat rate.
4.5 The Buyer shall be obliged at our request to state within a reasonable period of time whether he intends to withdraw from the agreement on account of the delayed delivery or insist on the delivery. In all other respect, Clause 8.4 shall apply to Buyer’s withdrawal due to delayed performance.
5. DELAYED ACCEPTANCE
5.1 If Buyer’s acceptance is delayed, if Buyer fails to perform an act of cooperation or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall have the right to claim compensation for the resulting damages including any additional expenses (e.g. storage costs). For this purpose, we shall charge a flat-rate compensation in the amount of 0.5% of the net price (delivery value) for each completed calendar week the acceptance is in default, starting with the delivery date or, in the absence of a delivery date, starting with the notification that the goods are ready for dispatch, but no more than 10% of the delivery value in case of final non-acceptance.
5.2 The provision of evidence of higher damages and our legal claims shall remain unaffected; however, the flat rate shall be charged against additional claims for damages. The Buyer reserves the right to provide evidence that we sustained no or substantially less damage.
5.3 We may make and invoice partial deliveries, if the Buyer can be reasonably expected to accept such partial deliveries.
6. CLAIMS FOR DEFECTS OF THE BUYER
6.1 Buyer’s rights in case of defects in quality and title are covered by statutory provisions, unless specified otherwise below.
6.2 We warrant that our goods comply with applicable European regulations provided that we were notified that the goods are intended for the European market. In all other cases, the goods shall have the specifications agreed between the Parties.
6.3 With regard to material defects, the Buyer shall have the duty to examine and give notice of defects as required by law (Section 377 HGB [German Commercial Code]). If a defect is discovered during examination or at a later date, we shall be notified thereof without undue delay and in writing. In any case, written notification of obvious defects shall be given within two (2) working days from delivery, and of defects not recognizable during examination within the same time period from discovery. If the Buyer fails to perform the proper examination and/or notification of defect, our liability for the unreported defect shall be excluded.
6.4 We shall have the right to make the subsequent remedial performance ("Nacherfüllung") owed conditional on the Buyer paying the purchase price due. However, the Buyer shall have the right to retain a portion of the purchase price which is reasonable in proportion to the defect.
6.5 The Buyer shall give us the time and opportunity required for the subsequent remedial performance ("Nacherfüllung") owed; in particular to provide a sample of the faulty goods for inspection purposes, if requested by us. In case of a replacement delivery, the Buyer has to return the defective goods to us in accordance with legal requirements.
6.6 To the extent the notification of defect refers to non-compliance with the applicable legal requirements for tea as a natural product, in particular with regard to pesticide levels and microbiological requirements, the definitive existence of a defect is solely determined by the analysis of a representative sample. The analysis has to be performed by an accredited laboratory which is a member of the working group “Qualitätssicherung des Deutschen Teeverbandes e.V.” [Quality Assurance of the German Tee Association]. The analysis shall be based
(a) on the requirements/methods which are specified in the “Code of Practice” in its valid version at the time which was prepared by Deutscher Teeverband e.V. in collaboration with the European Tea Association (E.T.C.), and
(b) the guidelines of the Tea & Herbal Infusions Europe in their valid version at the time.
6.7 We shall bear the cost necessary for testing and subsequent remedial performance. If a request by the Buyer for correction of a defect turns out to be unjustified, we may require the Buyer to reimburse the cost incurred unless the absence of defect was not recognizable by the Buyer.
6.8 The Buyer may claim damages or reimbursement of futile expenses only in accordance with Clause 8; they are otherwise excluded.
7. EXCLUSION OF WARRANTY RIGHTS
Warranty claims by the Buyer shall be excluded for material defects which do not or only insignificantly impair the value and suitability of the goods for the use discernible by us.
8. OTHER LIABILITY
8.1 Unless specified otherwise in these General Terms of Delivery including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with applicable legal regulations.
8.2 We shall be liable for damages – regardless of the legal basis – in the event of intent or gross negligence. In cases of ordinary negligence, we shall only be liable
(a) for damages resulting from injury to life, body or health,
(b) for damages from a breach of a material contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the agreement and on the fulfilment of which the contractual partner regularly relies and can rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
8.3 The limitations of liability arising from 8.2 shall not apply if we have fraudulently concealed a defect or assumed a guarantee specifying the quality of goods. The same applies to claims of the Buyer under the Product Liability Act.
8.4 The Buyer may withdraw from or terminate the agreement because of a breach of duty which does not constitute a defect only if we are responsible for the breach of duty. In all other cases, the statutory requirements and legal consequences shall apply.
8.5 Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our staff, employees, associates, agents and agents in performance.
8.6 The parties shall not be liable for any damage due to circumstances which are not the fault of either party, over which neither party has any control and which cannot be prevented or remedied even with the utmost care to be expected, such as war, pandemics, epidemics, state-imposed restrictions, acts of terrorism or natural disasters ('force majeure'). If such an unforeseen event occurs, the affected party shall notify the other party. The parties shall then agree in good faith on how to proceed and shall take any mutually agreed measures that may be necessary.
9. STATUTE OF LIMITATIONS
9.1 The statute of limitations for Buyer’s claims for material defects and defects in title shall be one year from the transfer of risk. Claims for damages because of injury to life, body or health and damage caused through gross negligence or intentionally by the Seller do not fall under this statute of limitation. Insofar, the legal statutes of limitation shall apply.
9.2 The statute of limitation periods under the Product Liability Act shall remain unaffected in any case.
10. PRODUCT RECALL
10.1 In case the Seller decides to recall products (e.g. because of quality defects or as precautionary measures), the Seller has the right to refuse delivery of the affected goods, even if the Seller had already accepted Buyer’s order for these goods. Any payment the Buyer may have made already for the purchase price shall be reimbursed.
10.2 The Buyer shall cooperate with the Seller regarding a product recall. In particular if requested by the Seller, the Buyer shall be obligated to remove the affected recalled goods from the shelves in his markets, to inform end customers known to the Buyer as specified by the Seller and to return all products of the recalled type in his possession to the Seller.
10.3 The Seller shall pick up the goods from the Buyer and reimburse the Buyer the purchase price already paid for these goods, taking warranty and liability regulations into consideration, further claims for damages on the part of the Buyer shall remain unaffected.
10.4 For the sake of clarification, it shall be noted that the Buyer is obligated to indicate defects promptly (Sub-Clause 6.3); the Seller shall subsequently initiate a product recall, if necessary. If products are sold under Seller’s tradename, the Seller shall have the sole right to decide on a product recall. If products are sold under Buyer’s trademark, the Buyer shall decide on a product recall, in consultation with the Seller if possible.
11. RETENTION OF TITLE
11.1 The goods shall remain the property of the Seller until full payment has been made of all present and future claims due under the purchase agreement and an ongoing business relationship,
11.2 The goods subject to retention of title may not be pledged to third parties nor transferred as security until the secured claims are paid in full. The Buyer shall notify us promptly and in writing if and to what extent there are seizures by third parties of goods that belong to us.
11.3 If the Buyer acts contrary to the terms of this agreement including, without limitation, failure to pay the purchase price due, we shall have the right to withdraw from the agreement and demand return of the goods after the unsuccessful expiration of a reasonable deadline for performance set for the Buyer; the legal regulations concerning the dispensability of setting a deadline shall remain unaffected.
11.4 The Buyer shall store the goods subject to retention of title for us and insure them against fire, theft, water and other hazards at his own expense. The Buyer hereby assigns his claims for compensation to which he is entitled from damages of the type outlined against insurance companies or other parties liable for damages in the amount of our claim. We shall accept this assignment.
12.1 Our prices valid on the date of the agreement is concluded shall apply ex stock and subject to the addition of the statutory value-added tax applicable upon delivery.
12.2 Any customs duties, fees, taxes and other public charges shall be paid by the Buyer.
12.3 The price does not include the disposal or taking back of empty containers and any packaging material.
13.1 The purchase price shall be payable within 14 days of invoicing and delivery of the goods. If the Buyer fails to meet this deadline, he shall be in default.
13.2 The Buyer shall only be entitled to offset or withhold amounts insofar as his claim has been confirmed by a final judgment or is undisputed. The Buyer may assert his right of retention only if his counterclaim is based on the same contractual relationship.
14.1 The Buyer shall keep in strict confidence all information disclosed to the Buyer by the Seller prior or during the contractual relationship verbally or in writing, in the form of documents, recipes, etc., through an explanation of production processes or in any other way directly or indirectly for the purpose of fulfilling the agreement or for other reasons, refrain from disclosing such information to third parties and from exploiting it.
14.2 Press releases and other publications regarding the cooperation of the Parties require the prior written consent of the Seller.
14.3 The aforementioned obligations shall remain in effect even after termination of the business relationship.
14.4 The Buyer shall be liable to the Seller for any damage caused by the unauthorized disclosure to third parties. In this respect, the Buyer shall also be liable for the actions of his employees and for his own actions. Self-employed persons contracted by the Buyer as part of the fulfillment owed by the Buyer shall also be considered employees.
15. JURISDICTION AND APPLICABLE LAW
15.1 The exclusive – and international – place of jurisdiction for all disputes arising from the contractual relationships which are based on these General Terms of Delivery shall be Hamburg. We are, however, also entitled to commence legal action at Buyer's general place of jurisdiction.
15.2 Only German law shall apply excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).