General Terms and Conditions of Sale and Delivery of FLAVEX Naturextrakte GmbH
1. Scope of application, general
1.1 These General Terms and Conditions of Sale and Delivery (hereinafter referred to as GTCSD) apply exclusively to companies in the meaning of § 14 BGB [German Civil Code], legal entities under public law or public separate estates.
1.2 Sale and delivery contracts shall be concluded with our customers exclusively subject to these GTCSD. Divergent or opposing terms and conditions of the customer, in particular its terms and conditions of purchase, are not accepted by our company, unless we have expressly agreed to such. Above all, silence on our part as regards any divergent terms and conditions of the customer is not deemed to be acceptance or approval, even in the case of future contracts. These GTCSD shall also apply if the terms and conditions of the customer provide for acceptance of the order as unconditional acceptance of the terms and conditions of the customer or if we deliver the goods having already been advised by the customer of the validity of its terms and condition, unless we have expressly waived the validity of these GTCSD.
1.3 These GTCSD also apply to future sale and delivery contracts concluded between our company and our customers.
1.4 Insofar as the matter of claims for compensation is raised hereinafter, this shall also equally refer to claims for reimbursement of expenses in the meaning of § 284 BGB [German Civil Code].
2. Conclusion of contracts
2.1 Our quotations are subject to change unless distinctly marked as binding or they contain explicitly binding promises or an agreement has otherwise been reached to make them binding. They are invitations to place an order. The prices quoted in brochures, catalogues, advertisements, and price lists or in any documents related to the quotations are not binding.
2.2 The customer shall be bound by its order as a contractual proposal 14 calendar days – in the case of electronic transmission 5 working days – after receipt of the order by our company, unless the customer may exceptionally also expect later acceptance by our company (§ 147 BGB [German Civil Code]). This also applies to repeat orders placed by the customer.
2.3 The contract shall – also in the course of day-to-day business – not come into force until the order placed by the customer is confirmed by an order confirmation. In the case of a delivery or service within the period of validity of the quotation, the contract shall become effective at the latest on delivery.
3. Dispatch, transfer of risk, partial delivery
3.1 We dispatch goods to destinations within the member states of the EU at our expense, unless otherwise agreed. Within this framework, we shall take out the appropriate insurance customary for the industry. Insofar as special packaging, express or special delivery has been agreed, the customer shall bear the additional costs. The customer shall specify the destination in its order.
3.2 We do not undertake dispatch or delivery to destinations outside the member states of the EU. Unless otherwise agreed, the delivery shall in this case be effected ex works.
3.3 The risk of damage, deterioration, destruction or loss of the goods in the cases provided for in clause 3.1 GTCSD shall pass on surrender to the transport agent to the customer. However, In the cases provided for in clause 3.2 GTCSD or, if dispatch is delayed due to a situation brought about by the customer, the risk shall pass to the customer on notification that the goods are ready for dispatch.
3.4 Partial deliveries are permissible insofar as they are deemed acceptable to the customer. They are deemed acceptable if (a) a partial delivery can be utilised by the customer within the framework of the contractually intended use, (b) delivery of the remaining goods and services is secured, and (c) the customer does not incur considerable additional expenses as a result of the partial delivery.
4. Delivery period, delivery date, delivery obstruction
4.1 Binding delivery dates shall be expressly agreed upon. In the case of non-binding or approximate (circa, about, etc.) delivery dates and periods we shall endeavour to the best of our ability to meet these terms.
4.2 Delivery periods commence on receipt by the customer of the order confirmation, however not before clarification of all the details of execution and are effected ex place of delivery. The delivery period is deemed to have been met if the goods have been dispatched on schedule from our works or warehouse. Delivery periods and dates are also deemed to have been met on notification that the goods are ready for dispatch if they cannot be dispatched on time through no fault of our company.
4.3 In the event that we are in default of delivery, the customer shall grant us a reasonable grace period. If the extension of time has expired to no effect, the customer is entitled to withdraw from the contract and to demand compensation in due consideration of clause 9 GTCSD.
4.4 If, due to unforeseeable reasons or reasons for which we are not responsible, we do not receive correctly or punctually or at all, for our contractual obligations, deliveries or services from our subsuppliers – despite proper and sufficient coverage prior to concluding the contract with the customer in accordance with the quantity and quality of our delivery and service contract with the customer (congruent coverage), or if a force majeure event occurs over a significant period of time, we shall immediately advise the customer thereof in text form or in writing. We are entitled to postpone delivery in such cases for the duration of the disruption. Equivalent to force majeure are strikes, lockouts, interventions by a public authority, energy or raw-material shortages, epidemics, pandemics, transport bottlenecks or interruptions through no fault, operational interruptions through no fault – e.g. as a result of fire, water or damage to machinery – and any other disruptions insofar as, from an objective standpoint, they were not caused by our company and were not foreseeable.
4.5 If we are not in a position to deliver the goods for reasons cited in clause 4.4 GTCSD within 4 months of expiry of a delivery period initially proposed or a delivery date initially proposed, the customer and our company are entitled – insofar as the delivery is affected by the delay – to withdraw in whole or in part from the contract. We shall immediately return any payment already made by the customer in this respect. The foregoing right of withdrawal is also applicable if we are not in a position to deliver the goods for reasons cited in clause 4.4 GTCSD within 3 months of expiry of an agreed delivery period or of a delivery date initially proposed.
4.6 Insofar as the object of the contract is the manufacture of non-fungible movables, and the customer – as provided by law – terminates the contract, we are entitled to the agreed remuneration; however, we shall deduct the amount which we shall save as a result of the termination of the contract or which we earn or wilfully fail to earn by otherwise using our labour force. In this case, we are entitled to demand 60% of the remuneration without further proof. However, we are free to prove that we are entitled to a higher amount. The customer is, in turn, permitted to prove that we are entitled to a lower remuneration.
5. Procurement risk/warranty
5.1 Any provision of warranties or assumption of the procurement risk by our company shall be expressly agreed upon and specified as such.
5.2 The assumption of a procurement risk or provision of a procurement warranty shall not lie exclusively in our obligation to deliver an item defined solely by class.
6. Prices and payments
6.1 All prices – insofar as this is required by law – are subject to the statutory rate of value added tax at the time of delivery.
6.2 Unless otherwise agreed, all payments are due within 30 days of the invoice date; insofar as there is no existing business relationship with the customer (first order), we shall only deliver the goods subject to payment in advance.
6.3 Payment methods other than cash payment or bank transfer require a separate agreement between our company and the customer. Insofar as a cheque or bill of exchange is issued on the basis of express agreement thereto, they shall be accepted solely as a conditional payment.
6.4 In the case of a bank transfer the payment date is deemed to be the date of receipt of the money by our company or of the credit to our account or to the account of the payment agency specified by our company.
6.5 If the customer is in default of payment, the statutory amount of default interest shall be charged. The right to claim for compensation as a result of default remains reserved.
6.6 The right held by the customer to offset exists solely in respect of uncontested counterclaims that are not contested, are legally established, or arise from the same debt obligation.
6.7 The customer may only exercise its right of retention insofar as its claims are not contested or are legally established. Furthermore, it may only exercise its right of retention insofar as the counterclaim asserted by the customer is based on the same contractual relationship.
6.8 If we become aware of circumstances that objectively cast doubt on the creditworthiness of the customer, and the customer is in default of payment to our company of a considerable amount, all our outstanding accounts shall immediately become due for payment. We shall only undertake further deliveries in this case if the customer offers to pay concurrently on delivery.
7. Retention of title
7.1 We reserve the retention of title to all goods delivered by our company (hereinafter referred to as reserved goods) until all our accounts receivable arising from the delivery contract and also those in connection with the respective delivery have been settled. This also applies to a balance in our favour if individual or all accounts receivable are included in an open account (current account), and the balance is drawn. If the customer is a merchant, retention of title ceases when the merchant has fulfilled all obligations arising from the business relationship. Payments shall invariably be offset against the oldest debt.
7.2 The customer shall insure the reserved goods appropriately against fire, theft and mains water damage, and provide us with proof thereof upon request. Claims against the insurer arising from one of the claims for compensation affecting the reserved goods shall hereby be assigned to our company to the amount of the value of the reserved goods. We hereby accept the assignment.
7.3 The customer is entitled to resell the reserved goods in the ordinary course of business. It is not permitted to utilise the goods in any other way, in particular by pledging or granting equitable liens. If the reserved goods are resold and the third-party purchaser does not immediately pay for such, the customer may only resell the reserved goods subject to retention of title. The right to resell the goods shall automatically be extinguished if the customer suspends payment or is in default of payment to our company.
7.4 The customer hereby assigns to our company all accounts receivable including securities and ancillary rights arising from or in connection with the resale of the reserved goods to its customers or third parties. In the case of a resale of reserved goods together with other products, the amount owed by the respective debtors of the delivery price agreed between our company and the customer is deemed to have been assigned unless it is possible to determine from the invoice the amounts apportioned to the individual goods. We hereby accept this assignment.
7.5 The customer remains entitled to collect receivables assigned to us until such time that our company permissibly decides to revoke such entitlement. However, we undertake to revoke the right of collection solely in the case of a legitimate interest. Such a legitimate interest exists, for example, if the customer does not duly fulfil its payment obligations or is in default of payment. It undertakes, at the request of our company, to provide us with all the information and documentation required to collect the assigned receivables and, insofar as we do not do this ourselves, to advise its customers without delay of the assignment to us.
7.6 Any processing or transformation of the reserved goods is undertaken vis-à-vis our company as manufacturer in the meaning of § 950 BGB [German Civil Code], however without any obligation on our part. If the reserved goods are processed or inextricably combined with other products which do not belong to our company, we shall acquire joint ownership of the new product on a pro rata basis of the invoice amount of our goods in relation to the invoice amounts of the other processed or combined products. If our goods are combined with other movable objects to make a new separate product, which is considered to be an essential product, the customer shall hereby assign to our company the pro rata ownership thereof. The customer shall hold ownership or joint ownership in safe keeping for our company free of charge. The joint ownership rights arising therefrom are deemed to be reserved goods. At any time at the request of our company, the customer undertakes to provide us with the information necessary to monitor our ownership and joint ownership rights.
7.7 The customer shall advise us without delay of any attachment by third parties of the reserved goods or accounts receivable assigned to our company. It undertakes immediately to place at our disposal the documents required to assert our rights. The customer shall reimburse the cost of extrajudicial and judicial measures to be taken in order to protect our rights.
7.8 If the value of the existing securities for our company according to the foregoing provisions exceeds the secured receivables by over 10%, we undertake at the request of the customer to release such securities at our discretion.
8. Defects and warranty
8.1 Guaranteed are only those properties that are expressly specified in our order confirmation as such (guaranteed properties).
8.2 The customer shall examine, without undue delay, the goods for defects, transport damage and damage to the packaging.
8.3 The customer shall immediately lodge with us any complaint regarding identifiable material defects, however no later than 8 days after collection in the case of delivery ex works, otherwise after acceptance of delivery, and hidden defects immediately on detection, the latter at the latest within the warranty limitation period. If the complaint is not made within the term permitted, any claim asserted by the customer arising from a violation of duty due to material defects shall be excluded.
8.4 Insofar as we consign the goods to the customer, the customer shall inform the transport agent making the delivery of any packaging and transport damage and notify us thereof in writing.
8.5 Insofar as claims against us arise on the part of the customer due to defective goods, we shall, at our equitable discretion, remedy the defects free of charge or deliver defect-free goods free of charge (hereinafter jointly referred to as subsequent rectification). The customer shall grant us a reasonable amount of time and opportunity for us to undertake the subsequent rectification considered necessary on an equitable basis. Our right to refuse subsequent rectification subject to the legal prerequisites remains unaffected.
8.6 If the measures taken for subsequent rectification fail, the customer is entitled, at its discretion, – irrespective of any claims for compensation – to rescind the contract or reduce the purchase price.
8.7 The rights of the customer in the case of a material defect expire by limitation within 12 months of the transfer of risk. The statutory limitation periods apply in the event of intent or gross negligence, fraudulent concealment of the defect, personal injury or defects in the meaning of § 438 Subsection 1 No. 1 and 2 or § 634 Subsection 1 No. 2 BGB [German Civil Code] and also in the event of warranties (§ 444 BGB) and claims arising from tortious acts or claims asserted in accordance with the German Product Liability Act. The statutory limitation period shall also apply in the case of a claim to recourse in accordance with § 478 BGB.
9.1 Unless otherwise specified below, liability on our part – irrespective of the legal grounds – is excluded.
9.2 The exclusion of liability in accordance with clause 9.1 GTCSD does not apply in the case of intent and gross negligence. Nor does it apply to defects that were fraudulently concealed or the absence thereof was guaranteed, to acts of culpable negligence causing death or personal injury or to a violation of a material contractual obligation.
9.3 Insofar as we are liable for a negligent violation of a material contractual obligation, the liability on our part is limited to a typically foreseeable loss.
9.4 In any event, claims asserted in accordance with the German Product Liability Act remain unaffected.
9.5 Insofar as liability on our part is excluded or limited in accordance with the foregoing provisions (clauses 9.1 – 9.4 GTCSD), this also applies to liability on the part of our executive bodies, legal representatives, workers, employees and vicarious agents.
9.6 We do not accept liquidated damages unless provided by law.
10. Governing law, place of jurisdiction, place of performance
10.1 The place of performance for the contractual obligations of both contracting parties is the registered place of business of our company.
10.2 The exclusive place of jurisdiction for any disputes – insofar as the customer is a merchant in the meaning of the German Commercial Code – is the registered place of business of our company. However, we are also entitled to bring an action against the customer at its general place of jurisdiction.
10.3 All legal relations between the customer and our company shall be governed exclusively by the law of the Federal Republic of Germany with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11. Severability clause
If any provision of these GTCSD is or becomes in whole or in part invalid or impracticable, this shall not affect the validity of the remaining provisions.