Hälssen & Lyon Tea Catalogue - Catalog - Page 56
G E N E R A L T E R M S A N D CO N D I T I O N S O F S A L E A N D D E L I V E R Y
V E R S I O N A S O F J U LY 2 02 2
These general terms and conditions of sale and delivery (“General Terms of Delivery”) shall take effect on July 22, 2022 for all deliveries by Hälssen & Lyon GmbH if the
Buyer is an entrepreneur (Section 14 BGB [German Civil Code], a legal entity under public law or a special fund under public law.
Hälssen & Lyon GmbH shall be hereinafter referred to as “Seller”. Seller’s customers shall hereinafter be referred to as “Buyer”.
1. GENERAL PROVISIONS
1.1 By placing an order with the Seller, the Buyer accepts these General Terms
of Delivery.
1.2 We do not accept general terms and conditions of the Buyer which deviate
from, are in conflict with or in addition to these Terms of Delivery, also not
by silence or unconditional performance of the agreement.
1.3 Individually negotiated agreements with the Buyer (including subsidiary
agreements, additional agreements and modifications) shall take precedence over these General Terms of Delivery. Subject to evidence to the
contrary, the content of such agreements shall be determined by a written
agreement or our written confirmation.
1.4 Legally relevant statements and notices on the part of the Buyer with
regard to the agreement (e.g. deadlines, notices of defect, statement of
withdrawal or reduction) shall be made in writing, i.e. in written or text
form (e.g. letter, e-mail, fax).
1.5 The General Terms of Delivery in the version in force at the time shall also
govern all future agreements with the same Buyer regarding the sale of our
goods without us having to expressly refer to them in each individual case.
We shall inform the Buyer of any modifications to our General Terms of
Delivery without undue delay.
2. ORDERING PROCESS AND CONCLUSION OF THE AGREEMENT
2.1 All offers shall be non-binding and subject to prior sale unless expressly
agreed to otherwise.
2.2 Purchase agreements regarding Seller’s products shall not take effect upon
the Seller’s acceptance of the Buyer’s order.
2.3 We accept orders by written order confirmation, by delivery of the goods
or, in case of advance payment, by issuing an invoice. An electronic confirmation of receipt of the order does not constitute acceptance. By accepting
deliveries, the Buyer agrees to our General Terms of Delivery.
3. DELIVERY, TRANSFER OF RISK
3.1 Unless agreed otherwise, the delivery shall be made to the Buyer FCA INCOTERMS 2010 at the warehouse designated by us in the respective order
confirmation.
3.2 Unless agreed otherwise, we shall obtain the import license or import declaration necessary to import raw goods into the territory of the European
Union.
3.3 Our goods are natural products whose weight may change during transport due to external environmental conditions such as humidity. The
weight information calculated by us upon conclusion of the agreement
shall be based on the weight of the goods determined in the warehouse.
Claims by the Buyer according to Clause 6 because of a subsequent deviation shall be excluded if the deviation is no more than 5% in either direction.
4. DELIVERY DATE, DELAYED PERFORMANCE
4.1 The delivery date shall be agreed individually or indicated by us upon acceptance of the order. The indication of delivery dates shall be conditional
on Buyer’s cooperation due under the agreement (e.g. timely receipt of
permits).
4.2 If we are not able to meet binding delivery dates for reasons for which we
are not responsible (unavailability of performance), we shall notify the
Buyer without delay and simultaneously advise the Buyer of the anticipated new delivery date. If we remain unable to deliver within the new
delivery period, we shall have the right to withdraw from the agreement
in full or in part; we shall refund without delay any consideration paid by
the Buyer. Performance shall be deemed unavailable in particular if our
supplier cannot deliver the products to us in time, if we have entered into a
congruent hedging transaction and neither we nor our supplier is at fault,
or if we are not obliged to procure the goods in a given case.
4.3 If, after conclusion of the agreement, it becomes apparent that the Buyer
cannot sufficiently warrant his solvency thereby putting the payment
claim at risk (e.g. by requesting the opening of insolvency proceedings), we
shall be entitled to refuse delivery until the Buyer has rendered payment or
provided security therefore (Section 321 BGB). If the payment or security
is not rendered within 12 working days following a corresponding request,
we shall have the right to withdraw from the agreement.
4.4 We are deemed in default of delivery in accordance with legal regulations.
A reminder by the Buyer is required in any event. If we are in default of delivery, the Buyer may require liquidated damages for the delay amounting
to 0.5% of the net price (delivery value) per completed calendar week the
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delivery is in default, however, not to exceed a total of 5% of the delivery
value of the goods delivered late. We reserve the right to provide evidence
that the Buyer sustained no or substantially less damage than the aforementioned flat rate.
4.5 The Buyer shall be obliged at our request to state within a reasonable
period of time whether he intends to withdraw from the agreement on
account of the delayed delivery or insist on the delivery. In all other respect,
Clause 8.4 shall apply to Buyer’s withdrawal due to delayed performance.
5. DELAYED ACCEPTANCE
5.1 If Buyer’s acceptance is delayed, if Buyer fails to perform an act of cooperation or if our delivery is delayed for other reasons for which the Buyer is
responsible, we shall have the right to claim compensation for the resulting
damages including any additional expenses (e.g. storage costs). For this
purpose, we shall charge a flat-rate compensation in the amount of 0.5%
of the net price (delivery value) for each completed calendar week the acceptance is in default, starting with the delivery date or, in the absence of
a delivery date, starting with the notification that the goods are ready for
dispatch, but no more than 10% of the delivery value in case of final nonacceptance.
5.2 The provision of evidence of higher damages and our legal claims shall remain unaffected; however, the flat rate shall be charged against additional
claims for damages. The Buyer reserves the right to provide evidence that
we sustained no or substantially less damage.
5.3 We may make and invoice partial deliveries, if the Buyer can be reasonably
expected to accept such partial deliveries.
6. CLAIMS FOR DEFECTS OF THE BUYER
6.1 Buyer’s rights in case of defects in quality and title are covered by statutory
provisions, unless specified otherwise below.
6.2 We warrant that our goods comply with applicable European regulations provided that we were notified that the goods are intended for the
European market. In all other cases, the goods shall have the specifications
agreed between the Parties.
6.3 With regard to material defects, the Buyer shall have the duty to examine
and give notice of defects as required by law (Section 377 HGB [German
Commercial Code]). If a defect is discovered during examination or at a
later date, we shall be notified thereof without undue delay and in writing.
In any case, written notification of obvious defects shall be given within
two (2) working days from delivery, and of defects not recognizable during
examination within the same time period from discovery. If the Buyer
fails to perform the proper examination and/or notification of defect, our
liability for the unreported defect shall be excluded.
6.4 We shall have the right to make the subsequent remedial performance
(“Nacherfüllung”) owed conditional on the Buyer paying the purchase
price due. However, the Buyer shall have the right to retain a portion of the
purchase price which is reasonable in proportion to the defect.
6.5 The Buyer shall give us the time and opportunity required for the subsequent remedial performance (“Nacherfüllung”) owed; in particular to
provide a sample of the faulty goods for inspection purposes, if requested
by us. In case of a replacement delivery, the Buyer has to return the defective goods to us in accordance with legal requirements.
6.6 To the extent the notification of defect refers to non-compliance with the
applicable legal requirements for tea as a natural product, in particular
with regard to pesticide levels and microbiological requirements, the
definitive existence of a defect is solely determined by the analysis of a
representative sample. The analysis has to be performed by an accredited
laboratory which is a member of the working group “Qualitätssicherung
des Deutschen Teeverbandes e.V.” [Quality Assurance of the German Tee
Association]. The analysis shall be based
(a) on the requirements/methods which are specified in the “Code of
Practice” in its valid version at the time which was prepared by Deutscher
Teeverband e.V. in collaboration with the European Tea Association (E.T.C.),
and
(b) the guidelines of the Tea & Herbal Infusions Europe in their valid version
at the time.
6.7 We shall bear the cost necessary for testing and subsequent remedial
performance. If a request by the Buyer for correction of a defect turns out
to be unjustified, we may require the Buyer to reimburse the cost incurred
unless the absence of defect was not recognizable by the Buyer.
6.8 The Buyer may claim damages or reimbursement of futile expenses only in
accordance with Clause 8; they are otherwise excluded.
