General Terms and Conditions of ESG-Kräuter GmbH

ESG Kräuter GmbH

General terms and conditions

§ 1 Scope
(1) These Terms and Conditions of Sale shall apply exclusively and only to companies within the meaning of Section 310 (1) of the German Civil Code (BGB).

(2) We shall only recognize conflicting terms and conditions or terms and conditions of the Purchaser that deviate from these Terms and Conditions of Sale if we expressly agree to their validity in writing.

(3) These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser, insofar as they are legal transactions of a related nature.

§ 2 Offer and conclusion of contract
The tendering of a contract must be made in writing by e-mail or fax.

If a contract is tendered, it shall be deemed to have been concluded if it has been accepted in writing or in text form within 14 days. Transmission by fax is sufficient.

The period of 14 days shall only be deemed to have been observed if the declaration is received by the contracting party within this period.

§ 3 Documents provided
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, such as specifications, etc.. These documents may not be made accessible to third parties unless we give our express written consent to do so.

§ 4 Prices, payment and delivery
(1) Our prices are ex works including standard packaging and plus value added tax at the applicable rate. Costs of packaging will be invoiced separately if special sizes such as big bags and larger are involved. Orders in special sizes must be specified in the call-off. Standard packaging is currently considered to be two-ply paper bags with polyethylene inner bags. We reserve the right to change the standard packaging.

(2) Payment of the purchase price shall be made exclusively to the account specified on the invoice. The deduction of a cash discount is not permitted unless a special written agreement has been concluded for the individual case.

(3) Unless otherwise agreed, the purchase price shall be due within 30 days of the invoice date. Interest on arrears shall be charged at a rate of 8 percentage points p.a. above the respective base interest rate pursuant to Sections 247, 288 (2) of the German Civil Code (BGB). We reserve the right to claim higher damages for default.

(4) Prices shall be deemed to be fixed for the entire term of the contract. In case of extension of contracts or new contracts, ESG Kräuter GmbH shall not be bound to conditions previously granted.

(5) A possible delivery period begins at the earliest with the dispatch of the order confirmation, but not before the provision of any documents, approvals, releases to be procured by the purchaser and before receipt of an agreed down payment. The delivery period shall be deemed to have been complied with if readiness for dispatch has been notified or the delivery item has left the works by the time of its expiry. The same shall apply as soon as the goods have been handed over to the carrier.

§ 5 Offsetting and rights of retention
The Purchaser shall only have the right of set-off if its counterclaims have been legally established or are undisputed. The customer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 6 Transfer of risk in case of shipment
If the goods are shipped to the Purchaser at the Purchaser’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon dispatch to the Purchaser, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are shipped from the place of performance or who bears the freight costs.

§ 7 Retention of title
(1) We reserve title to the delivered goods until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to demand the return of the object of sale if the customer acts in breach of contract.

(2) As long as ownership has not yet passed to him, the customer shall be obliged to treat the object of sale with care. In particular, he shall be obliged to insure it adequately against theft, fire and water damage at his own expense. As long as ownership has not yet passed to the customer, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the purchaser shall be liable for the loss incurred by us.

(3) The purchaser shall be entitled to resell the reserved goods in the normal course of business. The Purchaser hereby assigns to us the claims of the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.

(4) The processing of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the purchaser’s expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. Insofar as the mixing is carried out in such a way that the customer transfers co-ownership to us on a pro rata basis and keeps the sole ownership or co-ownership thus created for us.

(5) We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.

§ 8 Warranty and notice of defects
(1) Warranty rights of the Purchaser require that the Purchaser has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to Sections 377 et seq. of the German Commercial Code (HGB). Should complaints arise despite the greatest attention, then, in accordance with § 377 HGB, obvious defects must be notified without delay, at the latest however within 14 days of receipt of the goods, and hidden defects must be notified without delay after their discovery, otherwise the goods shall be deemed to have been approved.

(2) Claims for defects shall become time-barred 12 months after delivery of the goods supplied by us to our customer. Our consent must be obtained prior to any return of the goods.

(3) If, despite all due care and attention, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. In the event of subsequent performance, § 1 (1) shall always be observed.

(4) If the subsequent performance fails or if further attempts at subsequent treatment are objectively unreasonable for the Purchaser, the Purchaser may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration. The Purchaser shall not be entitled to claim compensation for futile expenses.

(5) Claims for defects shall not exist in the event of insignificant deviation from the agreed quality (the reference quality shall be the sample used by us as a basis for the contract with the corresponding sample number). In this context, it must be taken into account that the goods are a natural product, which means that fluctuations in the quality are in the nature of things, since the quality of natural products can never be precisely predicted and determined. Furthermore, claims for defects do not exist for deviations that occur after the transfer of risk as a result of faulty or negligent handling, unsuitable operating materials, or due to special external influences that are not assumed under the contract. If improper modifications are made by the Purchaser or third parties, there shall also be no claims for defects for these and the resulting consequences.

(6) Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer’s place of business, unless the transfer is in accordance with their intended use.

(7) The Purchaser shall have a right of recourse against us only to the extent that the Purchaser has not entered into any agreements with its customer exceeding the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply mutatis mutandis to the scope of the Purchaser’s right of recourse against the Supplier. Further or other claims of the Purchaser against us and our vicarious agents on account of a defect than those regulated herein in § 9 shall be excluded – except in the cases of para. 9.

(8) In the event of fraudulent concealment of a defect or in the event of the assumption of a guarantee for the quality of the goods at the time of the transfer of risk within the meaning of § 444 of the German Civil Code (declaration by the Seller that the object of purchase has a certain quality at the time of the transfer of risk and that the Seller intends to be responsible for all consequences of its absence irrespective of fault), the rights of the Purchaser shall be governed exclusively by the statutory provisions. In this case, the claims shall not be limited by the General Terms and Conditions.

(9) Our liability shall otherwise be limited to the value of the goods delivered by us.

§ 9 Miscellaneous

This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and German international private law.

(1) The place of performance and exclusive place of jurisdiction for all disputes arising from this contract shall be our registered office. Any deviations from or additions to the contractual terms and conditions must be made in writing. This also applies to amendments to this written form clause. Verbal collateral agreements have not been made.

(2) Should individual provisions of this contract be or become invalid or contain a loophole, this shall not affect the remaining provisions. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap.

Asbach-Bäumenheim, March 25, 2009

ESG Kräuter GmbH

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