I. Common conditions for purchase and sale of goods
§ 1 Scope
These General Conditions for the Sale of Goods apply to all contracts on purchase and sale of goods between Hertz&Selck GmbH & Co. KG (Hertz&Selck) and our clients. They also apply to all contracts to be concluded in the future, regardless of whether explicit inclusion is stated in the follow-up contract. Deviating or complementing conditions of purchase for the client shall only become part of the contract if Hertz&Selck consents to their validity explicitly and in written form.
§ 2 Content of the agreement
Individual understandings and legally relevant declarations of intent (i.e. deadlines, reminder, contract cancellation) shall be agreed on in writing.
Samples, product specifications, recipes and similar information sent by Hertz&Selck are subject to proprietary rights and copyrights. Such documents are to be used exclusively for the contractual service and returned after completion of the contract. The documents must be kept confidential from third parties, even after termination of the contract. The obligation to maintain secrecy shall not expire until and to the extent that the knowledge contained in the documents provided has become generally known or a written consent has been given. Upon request of Hertz&Selck, the client is obliged to conclude a separate non-disclosure agreement.
§ 3 Place of execution, jurisdiction, applicable law
The sole place of jurisdiction for all disputes arising between the client and Hertz&Selck from the contracts concluded is Hamburg. Hertz&Selck may also sue its client in its general place of jurisdiction or in a different legal jurisdiction.
The contractual relations between the parties are subject to German law. The application of the uniform UN-Purchase Law (United Nations Convention on Contracts for the International Sale of Goods – CISG) is excluded.
Place of execution is the head office of Hertz&Selck.
§ 4 Relation between the English translation and the German version
The English provisions are only a translation of the General Conditions. Only the German provisions shall be decisive. Should there be any discrepancies or problems of interpretation with this translation as compared to the German original version, the German original version of these General Conditions and the German understanding of law shall at all events and always prevail.
II. General conditions for purchase of goods
§ 5 Delivery
An order from Hertz&Selck is binding if it is not objected in writing within one week.
The Supplier is obliged to inform Hertz&Selck immediately if an agreed delivery time presumably cannot be met.
If the Supplier is in default, Hertz&Selck may, in addition to statutory claims, demand lump-sum compensation for damage caused by default amounting to 0.25 % of the net price per completed calendar day, but not more than a total of 5 % of the net price of the goods delivered late. Hertz&Selck reserves the right to prove that a higher damage has occurred, the supplier may provide counter evidence that no damage or a lower damage has occurred.
Hertz&Selck is not obliged to accept partial deliveries and partial services.
§ 6 Payment, further Processing
The price stated in the order is binding and includes statutory value-added tax, unless this is shown separately. The price shall include all services rendered by the supplier as well as all ancillary and transport costs.
The agreed price is due for payment within 30 calendar days of complete delivery and performance and receipt of a proper invoice. If Hertz&Selck pays within 14 calendar days, the remuneration shall be reduced by 3 % discount. A bank transfer is deemed to have been made in good time if the transfer order from Hertz&Selck is received by the account-holding bank of Hertz&Selck before expiry of the payment deadline. Hertz&Selck is not responsible for delays caused by the banks involved in the payment process.
Hertz&Selck shall not pay interest on maturity.
Hertz&Selck is entitled to retain due payments as long as claims against the supplier still exist. The supplier has a right of set-off or retention only on the basis of legally established or undisputed counterclaims.
The transfer of the goods to Hertz&Selck is unconditional and without regard to the payment of the price. A simple and/or extended retention of title by the supplier is excluded. However, if Hertz&Selck accepts an offer for transfer of ownership made by the seller as a result of the payment of the purchase price in an individual case, the seller's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. Hertz&Selck shall also be entitled to resell the goods in the ordinary course of business prior to payment of the remuneration. Insofar as Hertz&Selck further processes goods supplied, Hertz&Selck shall be deemed to be the manufacturer and shall acquire ownership of the product through further processing.
§ 7 Passing of risk, consignment, packaging
Without the prior consent of Hertz&Selck, the supplier is not entitled to have the performance owed by him performed by third parties.
The supplier shall bear the procurement risk for his services, unless otherwise agreed in individual cases.
The delivery takes place within Germany "free domicile" to the place indicated in the order. If the place of destination is not specified and nothing has been agreed otherwise, delivery shall be made to the registered office of Hertz&Selck in Hamburg (Tarpenring 23, 22419 Hamburg). The respective place of destination shall also be the place of performance for any subsequent performance.
The delivery must be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery and Hertz&Selck's order identification (date and number). If the delivery note is missing or incomplete, Hertz&Selck shall not be responsible for any delays in processing and payment resulting therefrom. Apart from the delivery note, Hertz&Selck shall send a corresponding dispatch note by e-mail or fax with the same contents.
The risk of accidental loss and the accidental deterioration of the goods shall pass to Hertz&Selck only upon handover of the goods at the place of fulfilment.
§ 8 Warranty
Notwithstanding § 442 Para. 1 S. 2 BGB, Hertz&Selck shall be entitled to warranty claims without limitation even if the defect remained unknown at the time of conclusion of the contract due to gross negligence.
For Hertz&Selck, the commercial duty to examine and give notification of defects (§§ 377, 381 HGB) is limited to defects which become apparent during an incoming goods inspection under external inspection including the delivery documents, or which are recognizable during the quality inspection by random sampling. In all other respects it is decisive to what extent an investigation is feasible in the ordinary course of business taking into account the circumstances of the individual case. The obligation to give notice of defects discovered later remains unaffected. Irrespective of the obligation to examine, a complaint shall be deemed to have been made immediately and in good time if it is dispatched within ten working days of discovery and, in the case of obvious defects, from delivery. The dispatch of the complaint by Hertz&Selck shall be decisive.
If the supplier does not fulfill his obligation to subsequent performance at the discretion of Hertz&Selck by remedying the defect or by delivering a defect-free item within a reasonable period set by Hertz&Selck, Hertz&Selck may remedy the defect itself and demand reimbursement from the supplier of the necessary expenses or an appropriate advance payment. If subsequent performance by the supplier has failed or is unreasonable for Hertz&Selck, no deadline shall be set. If the same goods are repeatedly delivered with defects, Hertz&Selck shall be entitled to withdraw from the contract even if the scope of delivery has not been fulfilled, following a reminder in the event of another defective delivery.
§ 9 Supplier Regress
If a customer puts in a claim against Hertz&Selck due to defective delivery, the supplier must be informed and asked for a written statement explaining the facts of the case. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by Hertz&Selck shall be decisive in relation to the supplier.
Hertz&Selck's claims arising from supplier recourse (§§ 445a and 445b BGB) shall also apply if the defective goods have been further processed by Hertz&Selck or another entrepreneur.
§ 10 Manufacturer’s Liability
If the supplier is responsible for a product damage, he shall indemnify Hertz&Selck against all claims of third parties insofar as the cause lies within his sphere of control and organisation and he himself is liable externally.
Within the scope of its obligation to indemnify, the supplier shall reimburse expenses in accordance with §§ 683, 670 BGB (German Civil Code) which result from or in connection with the use of third parties, including recall actions carried out by Hertz&Selck. Hertz&Selck shall consult with the supplier as far as possible and reasonable about the content and scope of recall measures. Further legal claims remain unaffected.
The supplier shall take out and maintain product liability insurance with a lump sum cover of at least EUR 10 million per personal injury/property damage.
§ 11 Statute of Limitations
The limitation period for warranty claims shall be three years from the passing of risk. The three-year limitation period shall also apply accordingly to claims arising from defects in title, whereby the statutory limitation period for claims in rem for restitution by third parties (§ 438 para. 1 no. 1 German Civil Code) shall remain unaffected; claims arising from defects in title shall in no case become statute-barred as long as the third party can still assert the right against Hertz&Selck, in particular in the absence of a limitation period. The limitation periods of the sales law, including the above extension, shall apply to the extent permitted by law to all contractual claims for defects. Insofar as Hertz&Selck is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period shall apply unless the application of the limitation periods of the law on sales in individual cases leads to a longer limitation period.
§ 12 Compliance with ethical minimum standards
The Supplier shall not engage actively, passively or indirectly in any form of bribery or corruption, violation of human rights or discrimination against its employees, forced labour or child labour. In this context, the supplier undertakes not to hire any employees who are not at least 15 years of age. In countries covered by ILO Convention 138 under the exception for developing countries, the minimum age may be reduced to 14 years. Furthermore, the supplier is obliged to inform Hertz&Selck if there are indications that the aforementioned standards have not been complied with in the production chain of the goods. The supplier must take measures to obligate its own suppliers accordingly. A breach of the aforementioned obligations constitutes a serious breach of the business relationship and entitles Hertz&Selck to withdraw from the contract.
III. General conditions for the sale of goods
§ 13 Delivery date
Observance of the delivery date requires the prior fulfilment of all obligations of commercial and technical manner incumbent on the client (duty to co-operate). Delays on behalf of the client will postpone the delivery date accordingly. In the case of Force Majeure or operating failures occurring at Hertz&Selck and/or a supplier which impede Hertz&Selck without any fault on its part to deliver on the agreed date, the agreed delivery dates shall be extended accordingly.
In case that this leads to a delay in delivery of more than three months, Hertz&Selck and the client may both rescind from the contract by way of written declaration. Other rights of rescission shall remain unaffected.
Observance of the delivery date is subject to complete and timely supply to Hertz&Selck by its suppliers.
In case of delay, Hertz&Selck is liable in accordance with statutory regulations, provided that intention or gross negligence is held against the legal representative or one of the vicarious agents. In all other cases of delay of performance, the client’s claims for damages are, for the duration of delay, limited for each completed week to 0.5 %, yet at the maximum to 20 % of the agreed purchase price unless Hertz&Selck proves that the Customer has suffered no damage or substantially less damage. Liability beyond this is excluded for a delivery delay attributable to Hertz&Selck.
Provided that Hertz&Selck agrees upon the client’s request to completely or partly cancel the contract, 20 % of the purchase price of the respective order may be claimed as lump-sum compensation without any further substantiation. However, the client has the possibility to prove that Hertz&Selck did not suffer any or a much lower damage from the cancellation of the contract. Client cannot claim cancellation of the purchase contract.
If the client is in default of acceptance, if he fails to cooperate or if the delivery of the goods is delayed for other reasons for which the client is responsible, Hertz&Selck shall be entitled to demand compensation for the resulting damage including additional expenses such as storage costs. A lumpsum compensation of 0.5 % of the agreed purchase price per calendar week, but not more than 10 %, shall accrue for this, starting with the delivery period or notification that the goods are ready for dispatch. The proof of a higher damage and further legal claims for damages shall remain unaffected. The customer reserves the right to prove that Hertz&Selck has incurred no damage at all or only considerably less damage than the aforementioned lump sum. Hertz&Selck is entitled to make partial deliveries and render partial services at any time, insofar as this is reasonable for the customer.
§ 14 Payment
The agreed sale price is payable immediately upon receipt of the invoice by the client, net and without any deduction, unless any other term of payment has been granted. Discounts are inadmissible.
The client is only entitled to offsetting or claiming of any rights of retention if his counterclaims have become res judicata, have been acknowledged by Hertz&Selck or are indisputable. The client may only claim right of retention if his counterclaim is based on the same contractual relationship.
§ 15 Passing of risk, consignment, packaging
Unless agreed otherwise in the individual case, consignment is effected ex works (EXW).
§ 16 Warranty and Notification of Defects
The warranty is governed by the statutory provisions. Contractual performance descriptions do not constitute a guarantee of quality and/or shelf life.
Obvious defects must be reported in writing within five working days of delivery and defects not recognizable during inspection within the same period of time from discovery. If the client fails to properly inspect the goods and/or give notice of defects, Hertz&Selck's liability for defects shall be excluded.
Hertz&Selck is entitled to make the subsequent performance owed dependent on the client paying the purchase price due. The client shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
If it turns out that the client has unjustly notified a defect, Hertz&Selck shall be entitled to demand reimbursement of the costs incurred as a result of the unjustified request to remedy the defect, such as inspection and transport costs.
§ 17 Conditional sale with reservation of ownership in favour of the seller until payment of the purchase price
Until all claims, including all current account balance claims, which are due to Hertz&Selck by the client now or in the future have been fulfilled, the delivered goods (goods subject to retention of title) shall remain the property of Hertz&Selck.
In case of default, Hertz&Selck is entitled, upon fruitless expiry of an appropriate deadline, to take back the goods subject to retention of title and to sell the goods on the free market. After deducting an appropriate amount for sale costs, the proceeds of the sale shall be offset with the receivables due by the client.
In the context of business operations, the client may properly sell, mix and/or process the goods subject to retention of title (Sections 948, 950 German Civil Code). The client shall al-ready now make an assignment by way of security to Hertz&Selck of the receivables arising from the resale or on any other legal grounds (e.g. insurance, tort) with regards to the goods subject to retention of title, to a maximum of 120 % of the receivables. The client is entitled to collect the assigned receivables on its own behalf until revocation in written by Hertz&Selck, which is admissible in case of default. Hertz&Selck agrees not to collect the claim as long as the client meets his payment obligations, there is no defect in his ability to pay and Hertz&Selck does not assert the retention of title. However, Hertz&Selck may demand that the customer informs Hertz&Selck of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case Hertz&Selck shall also be entitled to revoke the customer's authority to further sell and process the goods subject to retention of title.
If the goods subject to retention of title are processed with other items that do not belong to Hertz&Selck, Hertz&Selck obtains co-ownership in the new items, pro-rata to the value of the goods subject to retention of title (final invoice amount including VAT) in relation to the processed things at the point in time of processing. If, as a consequence of the blend, the client’s item is to be regarded as the main item the client herewith assigns pro-rata co-ownership in the item to Hertz&Selck. The thus created sole or joint property shall be kept in safe custody by the client for Hertz&Selck.
§ 18 Liability and Statute of Limitation
Hertz&Selck shall be liable in case of intent or gross negligence of a legal representative, employee or vicarious agent in accordance with statutory provisions. Apart from that, Hertz&Selck shall be liable only for injury of life, body or health or due to a culpable breach of substantial contractual duties. However, the claim for compensation for the breach of substantial contractual duties is limited to the damage that is typical and predictable for the contract. Liability for damages to other legal goods of the client caused by the delivery item is excluded. This does not apply in the case of intent or gross negligence or injury to life, body or health. The provision of the above stated paragraph is extended to all compensations, no matter for which legal reason, in particular due to flaws, breach of duties under the contractual obligation or tort. It applies also to the claim for compensation of futile expenses. Liability in case of default is regulated in a final manner in § 13. Liability according to the Product Liability Act remains unaffected. A change of burden of proof to the detriment of the client is not linked to the above stated provisions. The limitation period for client claims is one year from delivery of the goods. This also applies to contractual and non-contractual claims for damages based on a defect in the goods. Excluded from this are claims due to injury to life, body, health and claims based on gross negligence on the part of Hertz&Selck as well as claims under the Product Liability Act.
Effective: January 2019