General Terms and Conditions of Sale
1. Scope of application and form
1. Scope of application and form
1.1 These General Terms and Conditions of Sale (hereinafter: “Terms of Sale”) apply to all business relations of Dr. Theiss Naturwaren GmbH, Michelinstraße 10, 66424 Homburg, Tel.: +49 6841/709 – 0, Fax: +49 6841/709 – 265, Email: info@naturwaren-theiss.de (hereinafter: Dr. Theiss or we). They apply to all our business relations with our customers (hereinafter: “Purchasers”). The Terms of Sale only apply when the Purchaser is an entrepreneur (Section 14 of the German Civil Code [BGB]), a legal person under public law or a public-law special fund. We only recognise terms of the Purchaser that conflict with or differ from our Terms of Sale if we expressly agree to their application in writing.
1.2 Unless anything is agreed otherwise, the Terms of Sale in the version valid at the time the Purchaser places their purchase order, or in any event in the version last communicated to the Purchaser in electronic form as a framework agreement, also apply to similar future contracts, without our having to refer to them again in every individual case.
1.3 In any event, individual agreements made with the Purchaser on an individual case basis (including side agreements, additions and modifications) shall take precedence over these Terms of Sale. Subject to proof to the contrary, a contract or our confirmation, either in writing or in electronic form, shall be decisive for the content of such agreements.
1.4 Declarations and notifications by the Purchaser which are of legal relevance in respect pf the contract (e.g. the setting of deadlines, written notification of defects, assertion of rights under warranty) must be issued in writing. Writing within the meaning of these Terms of Sale comprises the written form and electronic form (e.g. letter, email, fax). Statutory provisions on form and further verifications remain unaffected, especially in the event of doubts as to the authority of the person making such declarations.
1.5 References to the application of statutory provisions are made for purposes of clarification only, therefore even without such clarification the statutory provisions apply unless in these Terms of Sale they are directly modified or expressly excluded.
2. Offer and conclusion of contract
2.1 Our offers are subject to change and non-binding. This also applies if we have lent the Purchaser catalogues, technical documentation (e.g. drawings, plans, evaluations, calculations, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve the right of ownership and copyright.
2.2 The Purchaser’s purchase order for the good counts as a binding offer to enter into a contract. Unless the purchase order states otherwise, we are entitled to accept this offer to enter into a contract within two (2) weeks of receipt.
2.3 Acceptance can be declared either in writing (e.g. by means of an order confirmation) or by the delivery of the goods to the Purchaser.
3. Documents provided
We retain the right of ownership and copyright to all documents lent to the Purchaser in connection with the order that is issued by the Purchaser – including in electronic form – such as calculations, drawings etc. These documents must not be made accessible to third parties unless we issue our express written consent to this to the Purchaser. Insofar as we do not accept the Purchaser’s offer within the period stated in Point 2, these documents must be sent back to us immediately.
4. Prices and payment terms
4.1 Unless anything is agreed to the contrary in writing, our prices are stated ex works in accordance with Incoterms in the current respective version, including original packaging, and are subject to VAT in the respective valid amount.
4.2 Insofar as no express fixed price was agreed, for deliveries which take place 3 months or more after the conclusion of contract we reserve the right to exercise our equitable discretion and undertake appropriate changes to our prices on account of increased costs of wages or materials.
The purchase price must be paid exclusively into the account stated overleaf. We only permit the deduction of discounts after we have separately granted them in writing.
4.3 Unless anything is agreed otherwise, the purchase price is due and payable within 30 days from the delivery and receipt of the invoice by our customer. However, even within the framework of an ongoing business relationship, we are entitled at any time to undertake a delivery in full or in part only in return for prepayment. We shall declare such a reservation at the latest with the order confirmation.
4.4 The Purchaser shall be in default on the expiry of the above payment period. During such default the purchase price shall attract interest at the respective statutory interest rate in force. We reserve the right to assert further damages caused by default. In respect of merchants our claim to the commercial default interest (Section 353 of the Commercial Code [HGB]) remains unaffected.
5. Set-off and rights of retention
The Purchaser is only entitled to rights of set-off or retention insofar as their claim has been established as having legal validity or is undisputed, and the counterclaim is based on the same legal relationship. The Purchaser’s legally mandatory reciprocal rights remain unaffected.
6. Delivery, transfer of risk, acceptance, default of acceptance
6.1 The commencement of the delivery period indicated by us assumes that the Purchaser has fulfilled all their obligations properly and in good time.
6.2 Delivery takes place ex warehouse, which is also the place of performance for the delivery and any supplementary performance. At the Purchaser‘s request and expense, the goods shall be sent to a different destination (sale involving the carriage of goods). Unless anything is agreed otherwise, we are entitled to determine the form of shipment ourselves (in particular the transport company, shipment route, packaging).
6.3 The risk of the accidental loss and accidental deterioration of the goods shall pass to the Purchaser at the latest with the handover. However, in the case of a sale involving the carriage of goods, the risk of the accidental loss and accidental deterioration of the goods and the risk of delay shall be transferred with the delivery of the goods to the shipper, freight company or other person or establishment designated to execute the shipment. Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects the statutory provisions on contracts for work and services shall apply mutatis mutandi to an agreed acceptance. The handover and/or acceptance shall also be deemed to have taken place if the Purchaser is in default of acceptance.
6.4 If the Purchaser is in default of acceptance or is in culpable breach of other duties of cooperation, we are entitled to request compensation for the damages we have incurred in this respect, including any additional costs. We reserve the right to further claims.
7. Retention of title
7.1 We retain the ownership of the sold goods until all our present and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
7.2 In the event of the Purchaser acting contrary to contract, especially non-payment of the purchase price that is payable, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to request the surrender of the goods on the basis of the retention of title. The request for surrender of the goods shall not simultaneously imply a declaration of withdrawal; rather we are entitled only to request the surrender of the goods, while reserving the right of withdrawal. If the Purchaser does not pay the purchase price that is payable, we may only assert these rights if we have previously unsuccessfully set an appropriate deadline for the Purchaser’s payment, or if in accordance with the statutory provisions it is unnecessary to set such a deadline.
7.3 Before the secured claims have been paid for in full, the goods subject to retention of title may neither be pledged to third parties, nor assigned as security. The Purchaser must inform us immediately in writing if an application is submitted for the opening of insolvency proceedings over the goods belonging to us, or if they are accessed by third parties (e.g. pledges).
7.4 The Purchaser is entitled to resell the goods subject to retention of title in the normal course of business. The Purchaser hereby assigns to us the claims against the buyer from the resale of the goods subject to retention of title, in the amount of the final invoice amount agreed with us (including VAT). We hereby accept such assignment. The Purchaser’s duties stated in Point 7.3 also apply with regard to the assigned claims. This assignation applies irrespective of whether the purchase item has been resold without or after reprocessing. The Purchaser remains empowered to collect the claim even after such assignment. Our authority to collect the claim ourselves remains unaffected by this. However we shall not collect the claim as long as the Purchaser complies with their payment obligations from the proceeds they have collected, is not in default of payment, and in particular no application for the opening of insolvency proceedings has been submitted and payments have not been suspended.
7.5 The treatment and processing or remodelling of the purchase item by the Purchaser always takes place in our name and on our behalf. In this case the Purchaser’s contingent interest in the purchase item shall continue to apply to the remodelled item. If the purchase item is processed together with other articles that do not belong to us, we shall acquire the joint ownership of the new article in proportion to the objective value of our purchase item compared to the other processed articles at the time of processing. The same applies in the event of articles being amalgamated. If the amalgamation takes place in such a way that the Purchaser’s article is to be regarded as the main article, it shall be deemed to have been agreed that the Purchaser shall transfer to us the proportionate joint ownership, and shall keep safe for us the sole or joint ownership that has come about in this way. To secure our claims against the Purchaser, the Purchaser also hereby assigns to us such claims as arise against a third party if the goods that are subject to retention of title are connected to a plot of land; we hereby accept such assignation. In all other respects, the product that has been created is subject to the same conditions as the goods supplied under retention of title.
7.6 We undertake at the Purchaser’s request to release the securities to which we are entitled, provided that their value exceeds the claims to be secured by more than 20%.
8. Warranty, notification of defects, and recourse/recourse against the manufacturer
8.1 The Purchaser‘s rights in the event of material defects and defects of title (including incorrect or short deliveries, unprofessional assembly/installation and or faulty instructions) are governed by the statutory provisions, unless anything is determined otherwise below. The statutory special provisions on the reimbursement of expenses when the newly manufactured goods are supplied to a consumer apply unaffected in all cases (recourse against the manufacturer pursuant to Sections 478, 445a, 445b or Sections 445c, 327 Abs. 5, 327u BGB) unless equivalent compensation has been agreed, e.g. within the framework of a quality assurance agreement.
8.2 The basis of our liability for defects is primarily the agreement made as to the quality and the assumed use of the goods (including accessories and instructions). An agreement on quality in this sense means all product descriptions and manufacturer’s information which are the subject matter of the individual contract, or which we had been made publicly known at the time of conclusion of contract (in particular in catalogues or on our website). Insofar as the quality was not agreed, the statutory provisions shall be applied to assess whether or not there is a defect (Section 434 Para. 3 BGB). Public statements by the manufacturer or on its behalf, especially in advertising or on the label of the goods, shall take precedence over statements by other third parties.
8.3 We are strictly not liable for defects of which the Purchaser is aware on conclusion of contract, or grossly negligently is not aware of (Section 442 BGB). The Purchaser’s rights under warranty assume that the Purchaser has complied with their owed obligations of inspection and written notification of defects in accordance with Section 377 HGB. If a defect becomes apparent on delivery, during inspection or at any later date, we must be informed of this immediately in writing. In any event obvious defects must be reported in writing within seven (7) working days of delivery, and defects that were not recognisable during the inspection within the same period from the time at which they are discovered. If the Purchaser omits the proper inspection and/or notification of defects, our liability for the defects that have not been reported, or have not been reported in good time or properly, shall be excluded in accordance with the statutory provisions.
If, despite all the care applied, the delivered goods exhibit a defect that already existed at the time of the transfer of risk, then provided that such defect has been reported within the stated deadline, we shall choose between rectification or supplying replacement goods. In the case of replacement, at our request the Purchaser must return the defective item to us in accordance with the statutory provisions; however the Purchaser has no entitlement to restitution. We must always be given the opportunity of supplementary performance within an appropriate period. Recourse claims remain unaffected by the above provision without restriction. If in the individual case the form of supplementary performance that we have selected is not reasonable for the Purchaser, they can decline it. Our right to refuse supplementary performance under the statutory requirements remains unaffected.
8.4 We are entitled to make the owed supplementary performance dependent upon the Purchaser paying the purchase price that is payable. However, the Purchaser is entitled to withhold a portion of the purchase price that is proportionate to the defect.
8.5 No claims on account of defects shall exist in the event of insignificant deviation from the agreed quality, of insignificant effect on usability, of natural wear or tear, or in the event of damage occurring after the transfer of risk that results from incorrect or negligent handling and/or particular external influences that have not been assumed in accordance with the contract. Insofar as the product packaging calls for particular storage conditions, the Purchaser must comply with these. If modifications are undertaken inappropriately by the Purchaser, their vicarious agents or third parties after the transfer of risk to the Purchaser, no claims due to defects shall also exist for these and the resulting consequences.
8.6 We shall bear or reimburse the expenses necessary for the inspection and supplementary performance, especially the transport, travel, labour and materials costs, and if applicable dismantling and assembly costs, in accordance with the statutory provisions and with these Terms of Sale if a defect actually exists. Otherwise we can ask the Purchaser to reimburse us for the costs incurred from the unjustified request for the rectification of defects if the Purchaser knew, or negligently did not know, that there was actually no defect. Claims by the Purchaser on account of the expenses necessary for the purpose of supplementary performance, especially the transport, travel, labour and materials costs, are excluded insofar as such expenses are increased because the goods supplied by us have subsequently been taken to a location other than the Purchaser’s establishment, unless they were taken there corresponding to their intended use.
8.7 Recourse claims against us by the Purchaser shall exist only insofar as the Purchaser has not made any agreements with their buyer which extend beyond the claims due to defects that are mandatory by law. Point 8.6 applies mutatis mutandi to the extent of the Purchaser’s recourse claim against the supplier.
9. Liability
9.1 Unless anything is stated otherwise in these Terms of Sale including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual or non-contractual duties.
9.2 We shall be liable for compensation on whatever legal grounds within the framework of liability for faults in the event of intent and gross negligence. In the event of simple negligence, we shall be liable subject to the statutory limitations of liability (e.g. exercising care in our own matters; insignificant breach of duty) only for damages arising out of death, injury to body or health, and for damages arising from the breach of a material contractual duty (an obligation which makes the fulfilment of the proper execution of the contract possible in the first place, and upon compliance with which the party to the contract regularly relies and may rely); however in this case our liability is limited to the reimbursement of the foreseeable, typically occurring damage.
9.3 The limitations of liability arising from 9.2 also apply in respect of third parties, and in the case of breaches of duty by persons (including to their benefit) for whose fault we are responsible in accordance with the statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a warranty of the quality of the goods was assumed, or for claims by the Purchaser in accordance with the Product Liability Act [Produkthaftungsgesetz].
9.4 The Purchaser can only withdraw from or terminate the contract on account of a breach of duty that does not consist of a defect if we are responsible for such breach of duty. A free right of termination by the Purchaser (in particular pursuant to Sections 650, 648 BGB) is excluded. In all other respects the statutory requirements and legal consequences apply.
10. Limitation period
10.1 In a departure from Section 438 Para. 1 (3) BGB the general limitation period for claims due to material defects and defects of title is one year from delivery. If an acceptance is agreed, the limitation period shall commence with the acceptance.
10.2 The above limitation periods under the law on the sale of goods also apply to contractual and non-contractual compensation claims by the Purchaser based on a defect in the goods, unless in the individual case the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period. Claims by the Purchaser for damages arising out of death, injury to body or health, and claims in accordance with the Product Liability Act, shall expire exclusively in accordance with the statutory limitation periods.
11. Miscellaneous
11.1 The entire legal relations between the parties are subject to the law of the Federal Republic of Germany, with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the provisions on the conflict of laws that refer to foreign law.
11.2 The place of performance and exclusive place of jurisdiction for all disputes is our registered office, in Homburg, insofar as the Purchaser is a merchant within the meaning of the Commercial Code [Handelsgesetzbuch], a legal person under public law or a public-law special fund, or an entrepreneur within the meaning of Section 14 BGB. However we are also entitled in all cases to take legal action at the place of performance of the obligation to supply in accordance with these Terms of Sale or with an overriding individual agreement, or at the Purchaser’s general place of jurisdiction. Overriding statutory provisions, in particular on exclusive competences, remain unaffected.