General Terms and Conditions (GTC)
1. Applicability of the General Terms and Conditions
Our General Terms and Conditions apply exclusively to all contracts concluded by us, even if our buyer or other contractual partner (hereinafter referred to as the ‘customer’) has objected to them or referred to other terms and conditions. We are only bound by any deviating terms and conditions of the customer if we have expressly agreed to them in writing. At the latest upon acceptance of our first delivery, the Customer shall be deemed to have accepted our General Terms and Conditions, even if they referred to their own General Terms and Conditions at the time the contract was concluded and we did not object to them.
These provisions do not apply to consumers within the meaning of Section 13 of the German Civil Code (BGB).
2. Conclusion of the contract, prices
Our quotations are subject to change, particularly with regard to details of quantity, packaging, prices and delivery times. A contract is only concluded upon receipt of a written order confirmation or upon delivery. A confirmation by fax or email, even without a signature, is sufficient. Any collateral agreements, amendments or additions to the contract are only valid if we have confirmed them in writing.
In the case of a purchase based on approval of a sample or analysis results, the contract is concluded on the condition that the purchaser approves the sample sent. The time limit for this is one week in the case of a purchase based on approval of a sample, and four weeks following delivery of the sample in the case of a purchase based on approval of analysis results; and commences on the day following the handover of the sample. If the purchaser does not respond within the aforementioned time limits, their silence shall be deemed to constitute approval. The costs associated with the examination shall in all cases be borne by the purchaser.
Our prices are ex works Waibstadt – unless otherwise agreed – exclusive of value-added tax, freight and insurance costs, as well as any desired analyses. For the sale of goods, standard commercial packaging is included. If no specific price is given, the prices valid at the time of receipt of the respective order confirmation shall apply.
3. Terms of payment
Unless otherwise expressly agreed, payments must generally be made net cash no later than 14 days after the invoice date or receipt of the goods. Cash discounts may be deducted provided this has been agreed in writing. Bank transfers must be made free of charges to us.
The customer shall only be entitled to set-off or retention rights if their counter-claims have been legally established, are undisputed or have been acknowledged by us. This shall not apply to the customer’s counter-claims in the event of defects in the delivery. We are free to issue invoices for our services either by post or electronically via email.
If the customer defaults or their financial circumstances deteriorate significantly, we may declare all outstanding claims immediately due and payable and require security in respect thereof.
We are further entitled to fulfil outstanding deliveries only against prepayment or provision of security if, after the conclusion of the contract, we become aware of circumstances which are likely to substantially impair the customer's creditworthiness and thereby jeopardise the payment of our outstanding claims against the customer.
4. Delivery times and delivery weights
Unless we have expressly confirmed them as fixed, agreed delivery times and delivery weights are to be understood as approximate only. We may exceed delivery times by up to 2 weeks and deviate from the delivery weight by up to 5%, with a corresponding upward or downward adjustment to the purchase price.
All offers and contracts are subject to correct, complete and timely supply from our own suppliers.
4.1 Force Majeure, Delivery Dates, Partial Delivery and Withdrawal in Case of Obstacles to Performance
If we are prevented from performing our obligations due to events of force majeure or obstacles to performance for which we are not responsible, and which are of a non-temporary nature lasting for more than 14 calendar days, we shall inform the customer in good time. In such a case, we shall be entitled to postpone performance for the duration of the hindrance or to withdraw from the contract in whole or in part in respect of the part not yet fulfilled. The following shall be deemed to constitute force majeure: pandemics, epidemics, natural disasters, strikes, lockouts, intervention by public authorities, shortages of energy and raw materials, transport bottlenecks through no fault of our own, operational disruptions through no fault of our own, and all other impediments not culpably caused by us.
If the duration of the delivery delay due to force majeure or another performance impediment for which we are not responsible is unavoidable, or if our self-supply fails for such reasons and alternative cover cannot be obtained under reasonable conditions for us, we may withdraw from the contract. If we only receive partial self-supply for such reasons, or if a cover purchase is only partially possible for us, we may also withdraw from the contract only partially, unless the buyer has no interest in partial performance.
We also have the right to withdraw from the contract in the event of an official or statutory prohibition on the delivery of the goods, provided that this measure only became known after the contract had been concluded.
The default in delivery by us shall be determined by the statutory provisions. However, a reminder from the customer is required in any case.
In the event that we are unable to provide our services on time due to a direct or indirect impact of the COVID-19 pandemic, and it is no longer possible to perform the contract in accordance with its terms, we shall be entitled either to withdraw from the contract or to postpone the performance date without incurring any liability. The buyer is not entitled to terminate the contract on the grounds of a delay caused directly or indirectly by the COVID-19 pandemic.
5. Quantity and nature of the goods, obligation to cooperate, packaging, delivery
Unless otherwise agreed, delivery is ex works D-74915 Waibstadt, which is also the place of fulfilment for delivery and any subsequent performance. At the customer's request and expense, the goods will be dispatched to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the method of dispatch ourselves (in particular, the transport company, shipping route, packaging).
We reserve the right to deliver a quantity up to 5% more or less than the quantity ordered if the change in delivery quantity is due to technical (e.g. loss of the intermediate product that is difficult to predict) or economic (e.g. the supplier’s container size).
The customer must check that the goods we supply are suitable for their intended use and must notify us in writing of any concerns and/or necessary specifications.
If a customer requires a specific licence, authorisation, permit or similar in respect of the quality of the goods for import into the country of destination, the goods need only comply with these requirements if this has been expressly agreed. The customer is responsible for obtaining the relevant authorisation, approval, permit or similar.
6. Option right
If we have granted the customer an option and the fulfillment of our delivery obligation threatens to become impossible due to a crop failure or poor harvest by our suppliers or due to force majeure, we may revoke the option in whole or in part. The revocation must be issued by us in writing without delay.
7. Collection, acceptance in the case of an agreed partial delivery
If, in the case of delivery on call, the customer does not call off the goods within the agreed period, or, if no period has been agreed, within 6 months of the conclusion of the contract, we may set the customer a further period for collection and, upon the expiry of that period without result, at our discretion either dispatch the goods without further notice and charge the customer for them, or withdraw from the contract or claim damages for non-performance.
In the case of contracts involving multiple deliveries over a contractually agreed period, in particular for deliveries on call, each partial delivery shall be deemed a separate transaction. A defective or late partial delivery shall not affect the part of the contract that has not yet been performed.
8. Condition of the goods, sale by sample
The agreed condition of the goods shall be determined by the contractual agreements. However, unless otherwise expressly agreed in writing, these do not constitute assurances of characteristics or a guarantee.
In the case of a sale based on a sample, the characteristics of the sample shall not be deemed to be warranted or guaranteed, unless expressly agreed otherwise. The sample is provided solely as an illustrative example to demonstrate the characteristics and nature of the goods.
In the case of a sale based on a favourable analysis result, the quality of the sample shall be deemed to have been agreed unless the customer lodges a written complaint within four weeks of the date on which the sample was received by the customer, stating that it does not comply with the specifications.
9. Warranty
The customer can only assert rights in the event of defects in the delivered item if they inspect the goods immediately after delivery and notify the defect in writing no later than five working days after delivery. For hidden defects, the period begins upon discovery of the defect. We undertake to deliver the item free of material defects. For natural products, biologically based variations in shape, colour, and structure, as well as in active ingredient content, do not constitute a defect, provided that specifically agreed parameters are not missed or the quality deviation exceeds the usual extent.
If the goods are defective and the customer has reported the defect in good time, the customer may initially demand supplementary performance in accordance with the statutory provisions. If we do not comply with the request for supplementary performance within a reasonable grace period, if supplementary performance is impossible or unreasonable, or if we refuse it, the customer is entitled under the statutory conditions to reduce the purchase price or to withdraw from the contract and to claim damages under the statutory conditions.
Where we are obliged to bear the costs necessary for rectification – in particular transport, travel, labour and material costs – this shall not apply to the extent that such costs are increased because the goods supplied have been moved to a third location following delivery to the customer.
Where the customer is entitled to compensation for damages instead of performance, our liability is limited to compensation for foreseeable, typically occurring damages.
If the customer is entitled to a claim arising from a right of recourse against the supplier in accordance with statutory provisions, they are only entitled to a credit note for the corresponding amount.
9.1 Limitation period
The limitation period for claims arising from defects is twelve months from the date on which risk passes to the buyer. The statutory provision regarding the suspension of the limitation period in the event of a claim for recourse against the supplier remains unaffected.
Any other claims by the customer shall become time-barred within twelve months, unless we are liable on the grounds of wilful misconduct. In place of the time limits set out above, the statutory limitation periods shall apply,
a. insofar as we are liable for damages arising from injury to life, limb, and health, which are based on a negligent breach of duty by us or an intentional or grossly negligent breach of duty by our legal representatives or vicarious agents, or
b. to the extent we are liable for other damages resulting from a negligent breach of duty by us, or from an intentional or grossly negligent breach of duty by our legal representatives or vicarious agents, or
c. the damage was caused by a defect which we fraudulently concealed.
10. Liability
We are liable for simple negligence in the event of injury to life, body or health, as well as for duties whose performance has made the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies and may rely (essential contractual obligations).
Furthermore, we shall only be liable for wilful misconduct and gross negligence.
In the event of a breach of essential contractual obligations due to slight negligence, we shall only be liable for foreseeable damage typical of the contract and not for remote consequential damage.
Liability for culpable injury to life, limb or health remains unaffected. This also applies to strict liability under the Product Liability Act.
Any further claims by the customer are excluded.
11. Rights of withdrawal
We reserve the right to withdraw from the contract if we are prevented from making the delivery or providing the service as a result of an official order or a statutory or political import or export ban, provided that the relevant measure was announced after the contract was concluded.
12. Retention of title
The goods supplied by us remain our property until the purchase price has been paid in full.
If the customer has paid the purchase price for the goods delivered but has not yet settled all outstanding liabilities arising from the business relationship with us in full, we further reserve title to the goods delivered until all liabilities have been settled in full. This also applies where our individual claims are incorporated into a current account.
Any processing or transformation of the delivered goods by the customer shall always be carried out on our behalf. If the delivered goods are processed together with other materials not belonging to us, we shall acquire co-ownership of the new goods in the ratio of the invoice value of the goods delivered by us to that of the other processed materials at the time of processing.
If our delivered goods are connected or mixed with a customer's item in such a way that the customer's item is to be regarded as the principal thing, it is agreed that the customer transfers co-ownership of the principal thing to us, in proportion to the invoice value of the goods delivered by us to the invoice value (or, in the absence of an invoice value, the market value) of the principal thing.
At the same time, it is agreed that the customer shall, at its own expense, store and insure for us in a secure, proper and careful manner the goods subject to retention of title and security, as well as the sole or joint ownership described above, in each case clearly labelled.
The customer is entitled to resell the goods in which we hold (joint) ownership in the ordinary course of business, provided that they fulfil their obligations arising from the business relationship with us in a timely manner. The customer assigns to us, as of the date of conclusion of the contract, all claims arising from the sale of goods in respect of which we have retained title; where we have acquired co-ownership as a result of processing, combination or mixing, the assignment shall be in proportion to the value of the goods delivered by us subject to retention of title in relation to the value of the goods sold by the customer.
Goods subject to retention of title may not be pledged to third parties or transferred as security before full payment of the secured claims. In the event of seizure or other interference by third parties with our reserved ownership, the customer must notify us immediately so that we can protect our rights. If the third party is unable to reimburse us for the judicial or extrajudicial costs of legal action, the customer shall be liable for the loss incurred by us.
At our request, the customer must provide all necessary information regarding the stock of goods owned by us and the claims assigned to us. Likewise, at our request, the customer must mark the goods in which we hold (joint) ownership as such and must inform its customers of the assignment.
In the event of late payment by the customer, the customer is no longer entitled to resell or process the goods subject to our retention of title. The customer must return these to us immediately, provide full details of any security and hand over the relevant documents. The costs of safeguarding our rights shall be borne by the customer. The revocation of the authorisation to sell or process the goods does not in itself constitute a withdrawal from the contract. Our right to withdraw from the contract and to claim damages for non-performance remains unaffected.
If the value of the security to which we are entitled exceeds the total value of the claims to be secured by more than 20%, we shall be obliged, upon the customer’s written request, to release security of our choosing to the corresponding value in favour of the customer.
If the retention of title, as set out in the provisions described here, is not valid under the law of the country in which our products are located, the next most effective legal safeguard corresponding to the retention of title in that country shall be deemed to have been agreed. Where necessary, the customer shall take all measures required to obtain and maintain such a right.
13. Confidentiality, Data Protection
The customer is obliged to keep all documents and information received strictly confidential. This information may only be disclosed to third parties with our prior written consent.
The confidentiality obligation continues for a period of five years following the termination of the contract.
Data processing is carried out in accordance with the relevant legislation.
14. Form
Unless expressly provided otherwise in these General Terms and Conditions, our quotations or order confirmations, all declarations made in the course of the business relationship with the customer must be in writing (Section 126 of the German Civil Code (BGB)).
15. Place of performance and jurisdiction
The place of performance and the place of jurisdiction for all mutual obligations is Waibstadt. However, we are entitled, at our discretion, to bring legal proceedings at the customer’s registered office.
16. Application of the law
In all cases – including international transactions – the law of the Federal Republic of Germany shall apply exclusively. The provisions of private international law and the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG) shall not apply.
17. Partial invalidity of the General Terms and Conditions
Should any provision of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that comes as close as possible, within the limits of what is legally permissible, to the economic purpose intended by the invalid provision.
As of December 2022