General Terms and Conditions of Purchase (as of: 1stMarch 2016)
1. Placing of orders
All orders for goods and services shall always be based on these Terms and Conditions of Purchase. We donot recognise conflicting terms and conditions, or any terms that are stipulated by the supplier and diverge from our Terms and Conditions of Purchase, unless we have expressly accepted them in writing. Our Terms and Conditions of Purchase shall also apply if we accepta delivery without reservation, despite being aware of the terms and conditions of the supplier that diverge from our Terms and Conditions. All oral agreements and deviating conditions of the supplier shall only be valid if they have been confirmed by us in writing. Our Terms and Conditions of Purchase shall only apply to business-to-business orders.
Agreed delivery dates are binding. If the supplier expects any delay, he shall immediately inform us inwriting, stating the reasons for the delay and indicating a new delivery date / date of performance. We shall be entitled to withdraw our order if we do not agree with the new delivery date and if the supplier refuses to deliver or execute the order within a reasonable grace period set by us. The fact that we may agree to a new delivery date suggested by the supplier or the supplier may accept a grace period set by us does not imply an extension of the contractually agreed date of delivery / performance. Any compensation claim for damages caused by the delay shall not be affected. We shall be entitled in full to statutory claims (compensation / withdrawal) if the supplier does not meet agreed dates of delivery / performance, in whole or in part. We reserve the right to withdraw from an apportioned contract or similar contract in relation to all partial deliveries / performances that are still outstanding and/or to claim compensation instead of performance, if the supplier falls behind with a partial delivery / performance and a grace period set by us for this partialdelivery has expired without shipment from the supplier.
Goods are shipped to the address indicated in our order, in accordance with the agreed delivery terms.The supplier undertakes to observe all relevant shipping and declaration regulations, as well as any export and import procedures. Any losses or damage resulting from the supplier’s non-compliance with these regulations shallbe borne by the supplier. The supplier bears all shipment risk until the goods are received by us. Each delivery must be made with a specified delivery note indicating our order number, the material, packaging type, package number, weight, batch number, etc.
We shall only pay for insurance if we have agreed to do so in writing in advance. Before delivery or before starting to carry out the work, the supplier is required to take out a public liability insurance policy, including product liability insurance, with sufficient coverage for personal injuries, property damage or financial losses, and to provide us with proof of this insurance on request.
5. Prices – terms of payment
The prices stipulated in our order are binding. Unless otherwise agreed, the agreed prices include packaging. Upon dispatch of the goods, invoices shall be sent directly to us by separate post and must show our order number. The invoices must also show whether the order is complete or which quantities / items still have to be delivered. Our order number must be quoted on the invoices. VAT (value-added tax) must be indicated separately. In particular, the type and volume of the shipment or performance must be clearly visible on the invoice. We shall be entitled to settle invoices late and subject to the deduction of the full discount if these invoices had been sent to us late or were incomplete upon receipt. Assignments are not permitted without our written consent. Section 354a HGB (German Commercial Code) shall not be affected.
The supplier guarantees to use flawless material incompliance with our requirements and to execute the order properly. The supplier shall assume liability for compliance with statutory regulations, in particularthe German Equipment and Product Safety Act, the trade associations’ accident prevention regulations as well as the latest versions of the DIN and VDE (Association for Electrical, Electronic & Information Technologies) regulations. The supplier shall furthermore guarantee that the delivery and usage of the delivery items will not violate any property rights of third parties. Otherwise, the supplier shall indemnify us against any claims by third parties. We shall be entitled to statutory warranty rights without limitations. The respective statutes of limitation shall apply. The supplier shall be fully liable for complying with the regulations applicable to execution of the order, especially those relating to EU market organisation, food law and ll other relevant regulations and official directives.
7. Obligation to give notice of defects
Notices of defects reaching the supplier within twoweeks of goods receipt or, in the case of hidden faults, within two weeks of their detection, shall always be deemed as ‘without delay’ within the meaning of section 377 HGB (German Commercial Code). Section 377 HGB shall not apply to the delivery of non-fungible goods.
8. Retention of title
The supplier’s right to retention of title shall be excluded.
9. Product liability
To the extent that the supplier is responsible for a product defect, he shall be obliged to indemnify us upon first demand against any claims for damages by third parties, if the cause lies within his sphere of controland organisation and he is responsible for this sphere.This does not affect any further legal claims.
If the supplier’s employees or agents carry out work on our premises, the supplier must ensure that they comply with the relevant safety and accident prevention regulations and that they observe our plant regulations. The supplier shall advise his employees or agents of these regulations on an ongoing basis. If the supplier does not rectify any violation of these regulations within atwo-week period following a written warning, or if these regulations are seriously violated repeatedly, we shall be entitled to terminate the contract immediately for exceptional reasons. The supplier shall bear all damages resulting from non-compliance with these regulations.
11. Deterioration of financial circumstances
If, after concluding the contract, it becomes apparent that our entitlement to counterperformance is at risk due to the supplier’s lack of performance (e.g. suspension of payment, opening of insolvency proceedings), weshall have the right, at our option and with any other rights reserved, to withdraw from the contract without setting a grace period, or to cancel the contract for exceptional reasons, or to refuse payment until the supplier renders counterperformance or provides security thereof.
12. Drafts, drawings, models
All the information obtained during the business relationship with us (in particular drafts, drawings or models) that we have provided to the supplier or which has been made by the supplier to our specification may not be used for any other purpose or disclosed to third parties. At our request, all such information shall be returned to us.
13. Offsetting, retention
The supplier is only entitled to any statutory right of offsetting in relation to undisputed, final and binding claims or those that are ready for a decision. The supplier is only entitled to any statutory right of retentionor right to refuse performance in relation to undisputed, final and binding claims, or those that are ready for a decision, that originate from the same contractual relationship with us.
14. Place of performance, place of jurisdiction, applicable law
The place of performance for the goods or services is the place that we specify as the place of delivery. Place of payment for our payment obligations is Ahrensburg. Place of jurisdiction for both parties shall be Ahrensburg or, at our discretion, at the supplier’s registered office. The contractual relationship shall be governedexclusively by German law, excluding international private law andthe UN Convention on Contracts for the International Sale of Goods (CISG).
General Terms and Conditions of Sale, Delivery and Payment
General Terms and Conditions of Sale, Delivery and Payment of Hela Gewürzwerk Hermann Laue GmbH (as of: 1st March 2016)
1.1 Sales and deliveries by Hela Gewürzwerk Hermann Laue GmbH (hereinafter "Hela") are effected exclusively on the basis of the following terms and conditions of sale, delivery and payment (hereinafter "contract terms"). They shall also apply to all future businesses with the customer, even though they may not expressly be agreed upon again.
1.2 Deviating or supplementary business terms and conditions of the customer shall not apply, even if Hela, being aware of the customer’s business terms and conditions, does not expressly contradict them.
2.1 Sales contracts on the delivery of goods become effective only after Hela's written confirmation of order. Any changes of these agreements and any side agreements shall be made in writing.
2.2 Deliveries of goods are made ex-works Hela (Incoterms 2010, ICC). The risk concerning the goods shall pass to the customer with the handover of the goods to the transport company or (if the customer collects the goods himself) to the customer himself. If the handover of the goods is delayed for reasons that the customer is responsible for, then the risk shall pass to the customer on the day he is notified of the goods' readiness for handover respectively for dispatch.
2.3 If the value of the goods amounts to less than EUR 40.00, Hela will charge a pro rata fee in the amount of EUR 3.75 for transport and postage.
2.4 The delivery dates stated by Hela are no fixed dates, unless expressly agreed otherwise.
2.5 Hela may render partial deliveries for legitimate cause provided this is reasonable for the customer. Each partial delivery leads to a corresponding partial fulfillment of the contract.
2.6 If Hela is in default with the delivery, the customer shall not be entitled to rescind from the contract until a reasonable grace period set by the customer has expired unsuccessfully. A reasonable grace period in general amounts to at least two weeks.
2.7 The customer is obliged to accept goods which are in contractual condition. Should the customer delay acceptance or infringe other duties to cooperate, then Hela is entitled to retain the goods at the risk and the expense of the customer. Hela remains free to assert additional rights.
3.1 The prices for all goods are determined according to Hela's price and conditions list valid at the time of contract conclusion, as far as the delivery is executed within four months after contract conclusion. If deliveries are executed later than four months after contract conclusion or within the scope of any continuing obligations, the price is determined by Hela’s price list valid at the time of the delivery. Irrespective of the two preceding sentences, the contractual parties remain free to agree upon a certain fixed price.
3.2 All prices by Hela are quoted exclusive of value-added tax. They apply ex works Hela (Incoterms 2010, ICC), excluding packaging. Unless otherwise agreed, costs for transportation, insurance, customs and other charges related thereto shall be borne by the customer.
3.3 In the event that taxes or public dues of any type be increased or newly introduced or should transport, raw material or production costs be increased according to legal regulations or official orders after the contract was concluded with the customer, Hela is entitled to undertake a corresponding increase on the agreed price.
3.4 In the event that after the conclusion of the contract Hela has legitimate reason to assume that the customer will not be able to fulfill his duties (e.g. if payments are suspended), Hela is at its own choice entitled (i) to rescind from the contract without setting a time limit or to terminate the contract without previous notice or (ii) to deliver the goods only against prepayment or security.
4. Terms of payment, set-offs and retention
4.1 Every invoice becomes due for payment without any deduction immediately upon receipt of invoice.
4.2 If the customer is in default with payment, Hela is entitled to demand interest from the due date according to statutory provisions. The right to claim further damages shall remain unaffected.
4.3 Cheques and bills are only accepted by explicit agreement and only on account of performance and free of any costs or charges for Hela.
4.4 The customer is only entitled to offset amounts, if the counterclaims have been legally established, accepted by Hela or are undisputed. The customer is only entitled to exercise a right of retention, if his counterclaim is based on the same contract relationship.
5. Obligation to inspect, warranty, liability and damage
5.1 Claims for defects of the customer only exist, if the customer has duly inspected the goods after delivery and reported without delay and in writing any apparent defects to Hela. If a defect that was not apparent on inspection shows later, the defect shall be reported to Hela immediately after it has been detected. If the customer abstains from reporting a defect to Hela, the respective goods shall be deemed as accepted.
5.2 In the event that the customer does not accept the goods without good reason or rescinds from the contractual agreement without cause of cancellation, Hela is entitled to demand as compensation a lump sum in the amount of 20 % of the agreed purchase price. The customer is entitled to prove that no damage emerged or that it has not emerged in the claimed amount. Hela remains free to provide evidence of a higher damage.
5.3 If nothing to the contrary emerges under these Standard Terms and Conditions of Sale, Delivery and Payment, Hela shall be liable according to the relevant statutory regulations in the event of a breach of any contractual and non-contractual duties.
5.4 In cases of simple negligence Hela is only liable:
5.4.1 For damages to body, health or life;
5.4.2 For damages resulting from the breach of an essential contractual obligation (which means an obligation on proper fulfillment of which constitutes a condition sine qua non and on the fulfillment of which the customer regularly relies and may rely); in this case Hela’s liability is, however, limited to foreseeable, typically occurring damages and in the amount limited to the sum insured by Hela's business liability insurance relevant for the damage.
5.5 Hela is not liable for indirect damages, in particular not for loss of profits.
5.6 The limitation period for claims arising out of defects in quality and quantity ("Sachmängel") and defects in title ("Rechtsmängel") shall be 1 year from delivery of the goods. This does not apply for buildings and goods which are used in the construction of a building in accordance with their usual application and which have caused the defectiveness of the building.
5.7 The aforementioned limitation periods also apply to the consumer’s contractual and extra-contractual claims for damages based on a defect in the goods, except if the statutory limitation period (§§ 195, 199 German Civil Code) results in a shorter limitation period.
5.8 The limitations of liability stated above do not apply in cases of intentional behaviour or of gross negligence.
The same shall apply for claims of the customer according to the Product Liability Act (Produkthaftungsgesetz). The special legal provisions in the case of ultimate delivery of the goods by the customer to an end-consumer (regress according to §§ 478, 479 German Civil Code) shall remain unaffected in all cases.
6. Force majeure
6.1 Hela is not liable for impossibility of delivery or for delays in delivery in so far as these have been caused by force majeure or other events unforeseeable at the time of conclusion of the contract that Hela is not responsible for. Unforeseeable events in the meaning of the preceding sentence are in particular operating disruptions of all kinds, difficulties in procuring materials, transport delays, strikes, lawful lockouts, labour shortage, energy shortage, difficulties in procuring the necessary permits from the authorities and measures taken by the authorities or non-delivery or incorrect or late delivery by pre-suppliers.
6.2 In the event of impediments that are of temporary duration, the deadlines for delivery shall be extended by the period of the impediment plus a reasonable start-up period. If as a result of the delay the customer cannot reasonably be expected to accept the delivery, he may withdraw from the contract by means of an immediate written notification to Hela. As far as such events make the delivery substantially difficult or impossible for Hela and the obstruction is not only of temporary duration, Hela is entitled to withdraw from the contract. In case of a withdrawal from the contract, Hela undertakes to pay back already received payments from the customer.
6.3 Hela shall immediately inform the customer of such impairments leading to delays or impossibility of performance and of the expected extent of the delay.
7. Reservation of title
7.1 The delivered goods shall remain the property of Hela (reserved goods) until full payment thereof.
7.2 The customer is only allowed to resell the reserved goods in the regular course of business. The customer has no right to pledge the reserved goods, to assign them by way of security or to or make other disposals of the reserved goods, which can affect Hela's ownership. The customer assigns with immediate effect his receivable arising from the resale of the goods to Hela; Hela accepts this assignment hereby. If the customer resells the reserved goods together with other goods, the assignment of the receivable only applies in the amount of the portion which corresponds to the price agreed between Hela and the customer plus a collateral security margin of 10 % of the price. The customer is revocably entitled to collect the receivable assigned to Hela for Helas account in the customers own name. Hela may revoke this authorization and the right to resell the reserved goods, if the customer is in default of material obligations (as for example with purchase price payments) to Hela.
7.3 The customer shall at any time provide Hela with any desired information on the reserved goods or on claims that have been assigned to Hela in this regard. The customer has to inform Hela immediately of the access and claims of third parties to reserved goods, accompanied by the necessary documents. The customer shall at the same time point out Hela's existing retention of title to the third party. The customer shall bear the costs of averting such seizures and claims.
7.4 The customer is obliged to treat the reserved goods with the due care of a prudent businessman for the duration of the retention of title. The customer is obliged to provide adequate insurance for the reserved goods and to provide Hela on its request with the appropriate evidence of insurance cover and to assign claims under the insurance policy to Hela.
7.5 In the event that the customer combines, mixes or processes the reserved goods, this combining, mixing or processing is deemed to be made on behalf of Hela as manufacturer and on its order, without liabilities resulting for Hela from this. Hela is entitled to ownership of the new goods that originate from the combining, mixing or processing. If reserved goods are combined, mixed or processed with other goods that are not owned by Hela, then Hela shall be entitled to a co-ownership of the new goods in the ratio of the value of the reserved goods to the value of the new goods at the time of their processing. The purchase price that the customer is charged by Hela shall be deemed the value of the reserved goods. In the event that the customer nevertheless acquires (co-)ownership of the new goods, he already now assigns the (co-)ownership to Hela for the acquisition date. In the event that Hela is only a (co-)owner of the reserved goods, the assignment made herewith shall at least be effected in respect of the portion of the receivables from the resale that is equal to the value of the respective initially reserved goods.
7.6 Should the realizable value of the securities exceed the aggregate of Hela's claims to be secured by more than 10 %, the customer shall be entitled to demand a release to such extent.
7.7 Should the customer be in default of material obligations, such as payment, Hela may, notwithstanding other rights, after granting an appropriate grace period take back the reserved goods and dispose of them in some other way in order to satisfy receivables due from the customer. In this case, the customer shall grant Hela immediate access to the reserved goods and shall hand them over. Hela has the right to charge a reasonable amount for the realization costs, which may be offset against the proceeds of sale. If Hela takes back the reserved goods, this will represent a conclusive rescission of the contract. If Hela seizes the reserved goods, this will also represent a conclusive rescission of the contract
8. Exemption from product liability
Should the customer resell the goods delivered either in an unchanged condition or following processing or combination, mixing or blending with other goods, the customer internally exempts Hela from any product liability claims of third parties, provided that the customer is responsible for the defect causing the liability.
9. General provisions
9.1 The exclusive competent court of justice for all disputes arising out of this contract relationship is Ahrensburg.
This applies also, if the customer has no general place of jurisdiction in the Federal Republic of Germany or has transferred his usual place of residence abroad after contract conclusion. Hela, however, has the right to file suits against the customer in any other statutory place of jurisdiction.
9.2 The laws of the Federal Republic of Germany shall apply with the exception of the UN Convention on Contracts for the international Sale of Goods (CISG).
9.3 Should individual provisions of these terms and conditions be invalid, the validity of the remaining provisions remains unaffected.