1. All orders, transactions and agreements have to be confirmed by the seller to become effective and shall be exclusively subject to the following conditions. The execution of the order by the seller within the ordinary period shall be treated as equivalent of a confirmation. Prices are subject to alteration without notice. The prices applicable shall be those valid on the day of delivery.
2. By placing an order or by accepting the goods, the seller´s prices and conditions of delivery will be acknowledged without reservation. Buyer´ s terms and conditions which might be at variance with the present terms and conditions shall not be binding on the seller, even if the order has been based on them and the seller has not expressly objected to them.
3. a) In case of ordering goods for redistribution in countries other than the place of business of the seller, at each order the buyer is obliged to inform the seller about all specific provisions and requirements valid in the country of destination of goods. If the buyer fails to do so, the seller is not liable for resultant damages.
b) The buyer is responsible for importation of the goods into the country of destination and their transportation to further premises. Any cost involved with the importation, any custom duties and any taxes levied on the goods in connection with their importation into the country of destination shall be borne by the buyer. Necessary import licenses and any other official documents or permits required by authorities for the importation shall be obtained by the buyer.
c) Any time and date of delivery indicated by the seller are only at a rough estimate. The seller shall endeavour a delivery in time but shall not be responsible for any claim due to delays. However, if the delivery date exceeds significantly the usual delivery time without any reasonable grounds, the buyer is entitled to claim damages.
4. Unless otherwise agreed in writing, all goods will be shipped at buyer´s risk. All shipments have to be weighed or counted upon receipt. Any complaints with regard to quality and quantity of goods are entitled only to the buyer and are not transferable. Complaints with regard to quality and quantity of goods will only be considered, if they are made in writing immediately upon receipt of the goods. The legibility and accuracy of the EAN code used by us has to be checked by the buyer before use. We assume no liability for damages caused by illegible or incorrect EAN codes. Extra charges for express delivery of the goods shall be borne by the buyer.
5. a) The buyer is not entitled to withhold any payments or to offset any counterclaims against seller´ s invoices.
b) If the invoiced amount or an agreed instalment or a bill is not paid in full when due, all invoiced amounts (including all bills made out) will immediately become due for payment. This shall apply as well to any residual amounts payable for the same or other orders and shipments which are not yet due. The same shall apply, if the buyer declares himself insolvent or a petition for the institution of composition proceedings or bankruptcy proceedings against the buyer´ s assets is being filed or a request for an extra-judicial deferral of debt repayment is being submitted.
c) If the buyer fails to pay on due date, we will be entitled to charge interest at the rate of interest charged by commercial banks for current account credits – but no less than 4 % above the EURIBOR for the time being – plus the statutory value-added tax for the time being. Such interest shall fall due immediately.
6. The goods shall become the property of the buyer only after he has settled all his obligations arising from the mutual business relations, including all additional debts receivable, and after the check or bill has been cashed. The buyer is only entitled to resell the goods in the ordinary and regular course of business. For security purposes the buyer shall assign in advance to the seller his claims against third persons regarding the purchase price for resold goods, and the seller accepts this assignment. The buyer is not entitled to pledge those goods or to transfer the ownership of them by way of security. Should such goods be subject to execution levied by a third person, the seller has to be informed immediately. If the total realizable value of the present securities exceeds the seller´ s secured claims by more than 20 %, the seller shall be obliged to release securities of his choice at the buyer´ s request.
7. a) After receipt the buyer shall immediately examine the goods. Any claim concerning the non-conformity of the agreed quality and quantity of the goods shall be made in writing within ten days after their receipt. Non-visible nonconformities can be claimed within ten days after their finding but not later than six months from the delivery date.
b) The seller will be liable for nonconformity of goods subject to the following conditions:
- the seller shall not be liable in respect of any defect in the goods arising from any design or specification supplied by the buyer;
- the seller shall not be liable if the total price for the goods has not been paid by the due date of payment;
- seller’s liability does not extend to parts / materials manufactured by or on behalf of the buyer unless such warranty is given by the manufacturer to the seller;
- seller’s liability is limited to the amount of foreseeable damages. Claims for lost profits, for claims by third parties or other indirect or consequential damages may not be required, unless the seller guaranteed a certain quality feature that intended to protect the buyer against such damage.
c) Any discharge from liability will be void if a defect results from a negligent or intentional breach of contract on the part of the seller. The same applies if the seller may be held responsible for the breach of any further essential contractual obligation. The aforementioned liability limitations and exclusions are also waived for claims that have arisen due to fraudulent behaviour of the seller, as well as liability for claims under the German Product Liability Act (Produkthaftungsgesetz) and damages resulting from injury to life, limb or health.
d) Seller’s liability does not cover defects in or damages to the products which are due to improper transport, improper storage by the buyer or for other reasons attributable to the buyer. To assure high product quality, our Additive Free Roll Your Own (RYO)-products during transportation and storage must not be exposed to excessive heat (> 25 degree Celsius). All Additive Free RYO-products are only durable for 6 months after delivery and must not be resold after this period.
e) Any claim by the buyer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall be notified to the seller within 6 months from the date of delivery.
f) If the liability of the seller is excluded or limited, this also applies to employees, representatives and agents of the seller.
8. Events of force majeure such as war (declared or undeclared), riots, sanctions, embargoes, strikes, lock-outs, fire and breakdowns of any kind, faults of seller’s suppliers, acts of God and the like as well as any other events or circumstances outside seller’s reasonable control shall relieve the seller from his obligation to supply and the time for performance shall be extended by a period equivalent to the duration of any such event or circumstance. Claims for damages for delayed deliveries or non-delivery shall be excluded.
9. The seller is entitled to process and store data concerning the buyer arising from the mutual business relations subject to the provisions of the „Bundesdatenschutzgesetz" (Federal Data Protection Act). The buyer hereby gives his consent to the storage, transmission, modification, and erasure of these data subject to the provisions of the „Bundesdatenschutzgesetz" (Federal Data Protection Act). These data will only be used for the proper performance of the seller´ s obligations arising from the mutual business and contractual relations.
10. All information provided and generated while carrying out business transactions will be used by the Parties only for the purpose of the related business transaction. Such information must not be used outside the context of this business transaction and must not be disclosed to any third party unless there is a legal obligation to do so.
11. a) For these Terms and Conditions of Sale, Delivery and Payment as well as for all legal relations between the seller and the buyer, the laws of the Federal Republic of Germany apply. The provisions of the CISG do not apply.
b) The place of performance shall be Lübeck. The competent court for all disputes regarding fully qualified merchants, irrespective of the amount in dispute, shall be the Local Court of Hamburg, Germany. With regard to all other customers this shall be the competent court for default actions.
c) Should one or several provisions of these Terms and Conditions of Sale, Delivery and Payment be or become inadmissible or invalid, the validity of the remaining provisions hereof shall remain unaffected thereby.