General Terms and Conditions of ESG-Kräuter GmbH
ESG Kräuter GmbH
§ Section 1 Scope of application
(1) These terms of sale apply exclusively and only to companies within the meaning of § 310 paragraph 1 BGB.
(2) We shall only recognise any terms and conditions of the customer which conflict with or 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 customer, insofar as these are legal transactions of a related kind.
§ 2 Offer and conclusion of contract
The tender of a contract must be made in writing by e-mail or fax.
When 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 observed if the declaration is received by the contracting party within this period.
§ 3 Documents handed over
We reserve the right of ownership and copyright to all documents, such as specifications etc., provided to the purchaser in connection with the placing of the order. These documents may not be made accessible to third parties unless we give the customer our express written consent.
§ 4 Prices, payment and delivery
(1) Our prices are valid ex works including standard packaging and plus value added tax at the current rate. Packaging costs shall 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 two-layer 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 discount is not permitted unless a special written agreement has been concluded for the individual case.
(3) Unless otherwise agreed, the purchase price is 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 in accordance with §§ 247, 288 paragraph 2 BGB. We reserve the right to assert a higher damage caused by default.
(4) Prices are deemed to be fixed for the entire term of the contract. In the case of extension of contracts or new contracts, ESG Kräuter GmbH is not bound to conditions which were 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, permits, releases to be procured by the purchaser and not before receipt of an agreed down payment. The delivery period shall be deemed to have been met if, by the time it expires, readiness for dispatch has been notified or the delivery item has left the factory. The same applies as soon as the goods have been handed over to the forwarding agent.
§ 5 Offsetting and rights of retention
The customer is only entitled to offsetting if his counterclaims have been legally established or are undisputed. The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Transfer of risk on dispatch
If the goods are shipped to the customer at the latter’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.
§ 7 Retention of title
(1) We reserve the right of ownership of the delivered item until all claims arising from the delivery contract have been paid in full. This also applies 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 the ownership has not yet been transferred to him, the customer is obliged to treat the object of sale with care. In particular, he is obliged to insure it adequately at his own expense against theft, fire and water damage. As long as ownership has not yet been transferred, the purchaser 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 a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
(3) The purchaser is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us the claims of the purchaser from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply regardless of whether the purchased item has been resold without or after processing. The customer remains entitled to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his payment obligations from the proceeds received, 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 handling and processing of the object of sale by the customer is always carried out in our name and on our behalf. In this case, the expectant right of the purchaser to the object of purchase shall continue in the transformed object. If the purchased item is processed with other objects not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed objects at the time of processing. The same applies in the event of mixing. Insofar as the mixing is carried out in such a way that the customer transfers proportional co-ownership to us and keeps the resulting sole ownership or co-ownership for us.
(5) We undertake to release the securities to which we are entitled at the request of the purchaser if their value exceeds the claims to be secured by more than 20%.
§ 8 Warranty and notification of defects
(1) Warranty rights of the purchaser require that he has properly fulfilled his obligations to inspect and notify defects in accordance with §§ 377 HGB ff. If complaints should arise despite the greatest attention, obvious defects must be reported immediately, at the latest within 14 days after receipt of the goods, hidden defects immediately after their discovery, in accordance with § 377 HGB, otherwise the goods shall be deemed approved.
(2) Claims for defects shall become statute-barred 12 months after delivery of the goods delivered by us to our customer. Our consent must be obtained before any return of the goods.
(3) If, despite all due care and attention, the delivered goods show a defect that was already present at the time of the transfer of risk, we shall, subject to timely notification of defects, either repair the goods or deliver replacement goods at our discretion. We must always be given the opportunity to remedy the defect within a reasonable period of time. In the case of subsequent performance, § 1 (1) must always be observed.
(4) If the subsequent performance fails or if further attempts at subsequent treatment are objectively unreasonable for the customer, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration. The customer cannot demand compensation for futile expenditure.
(5) Claims for defects shall not exist in the event of insignificant deviation from the agreed quality (the sample on which the contract is based and the corresponding sample number shall be regarded as the reference quality). It must be taken into account here that the goods are natural products, which means that fluctuations in the quality are inherent in the nature of the goods, since the quality of natural products can never be precisely predetermined and determined. Furthermore, claims for defects do not exist for deviations which occur after the transfer of risk as a result of incorrect or negligent handling, unsuitable operating materials or due to special external influences which are not provided for under the contract. If the customer or third parties make improper modifications, no claims for defects shall exist for these and the resulting consequences.
(6) Claims of the purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if the expenses increase because the goods delivered by us have subsequently been taken to a place other than the purchaser’s branch office, unless the transfer corresponds to their intended use.
(7) Recourse claims of the purchaser against us shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the legally binding claims for defects. Furthermore, paragraph 6 shall apply accordingly to the scope of the customer’s right of recourse against the supplier. Further or other claims of the customer against us and our vicarious agents due to a defect than those regulated here in § 9 are excluded – in the cases of paragraph 9 excluded.
(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 BGB (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 liable for all consequences of its absence regardless of fault), the rights of the purchaser shall be governed exclusively by the statutory provisions. In this case the claims are not limited by the general terms and conditions.
(9) Our liability is otherwise limited to the value of the goods delivered by us.
§ 9 Miscellaneous
This contract and the entire legal relations between the parties are subject to the law 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) Place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office. Deviations or additions to the contractual terms and conditions from the General Terms and Conditions must be made in writing. This also applies to changes to this written form clause. Oral subsidiary agreements have not been made.
(2) Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. 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, 25 March 2009
ESG Kräuter GmbH
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