1. Validity

• Sales and deliveries by Hela Gewürzwerk Hermann Laue GmbH (hereinafter referred to as ‘Hela’) are exclusively carried out on the basis of the following General Terms and Conditions of Sale, Delivery and Payment (hereinafter referred to as ‘Terms and Conditions’). They also apply to all future business transactions with the Buyer, even if no separate reference is made to them.
• Terms and conditions of the Buyer deviating from, conflicting with or supplementing these Terms and Conditions are excluded. The applicability of any deviating, conflicting or supplementary terms and conditions of the Buyer is excluded, even if Hela does not explicitly object to them despite being aware of them.
• These Terms and Conditions of Sale shall only apply to entrepreneurs (§ 14 BGB (German Civil Code)), legal entities under public law or special funds under public law within the meaning of § 310 para. 1 BGB.

2. Conclusion of Contract; Delivery

• The offers of Hela are subject to change and non-binding unless they are expressly designated as binding by Hela in individual cases.
• Orders of the Buyer shall be deemed to be a binding offer of contract. Unless otherwise stated in the purchase order or the order, Hela shall be entitled to accept this contractual offer within 10 days of receipt by means of an order confirmation or execution of the order.
• Purchase contracts for the delivery of goods are only concluded with Hela’s written order confirmation. Changes and ancillary agreements to the contract, including these Terms and Conditions, must be made in writing.
• The goods shall be delivered ex works Hela (Incoterms 2020, ICC). The risk in the goods shall pass to the Buyer when the goods are handed over to the carrier or (in the event that the Buyer collects the goods itself) to the Buyer. In the event that the handover of the goods is delayed for reasons for which the Buyer is responsible, the risk shall pass to the Buyer on the day on which the Buyer is informed that the goods are ready for dispatch or handover.
• If the value of the goods is less than EUR 40.00, Hela will charge a proportionate freight and postage fee of EUR 3.75.
• Unless expressly agreed otherwise, the delivery dates provided by Hela are not considered fixed delivery dates.
• Hela is entitled to partial delivery for justified reasons, insofar as this is reasonable for the Buyer. Each partial delivery leads to partial fulfillment of the delivery obligation.
• In the event that Hela is in default with the delivery, the Buyer is only entitled to withdraw from the contract after notifying Hela of an appropriate period for delivery. A notice period of at least two weeks shall be considered appropriate.
• The Buyer is obliged to accept goods that are in accordance with the contract. In the event of default in acceptance or other culpable breach of duties to cooperate on the part of the Buyer, Hela is authorized to withhold the goods at the risk and expense of the Buyer. Hela reserves the right to assert further claims.

3. Prices

• The prices for all objects of purchase shall be determined in accordance with Hela’s price and conditions list valid at the time of conclusion of the contract, provided that delivery is made within four months of conclusion of the contract. If the deliveries are made later than four months after conclusion of the contract or if they are based on continuing obligations, the price shall be determined according to Hela’s price list valid at the time of delivery. Regardless of the two preceding sentences, the contracting parties are free to agree on a specific fixed price.
• All prices from Hela are exclusive of the applicable statutory value added tax. They apply ex works Hela (Incoterms 2020, ICC) without packaging. Unless otherwise agreed, the Buyer shall bear the costs of transport, insurance, customs and other costs associated with the delivery.
• In the event that, after the contract with the Buyer has been concluded, taxes or public duties of any kind are newly introduced or increased, or if the costs for transport, raw materials or production increase due to statutory provisions or official orders, Hela is authorized to add the corresponding cost increase to the agreed price.
• Hela’s right to demand a price adjustment shall remain unaffected if circumstances that have become the basis of the contract have changed significantly and the parties would not have concluded the contract or would have concluded it with different content if they had foreseen the change and Hela cannot reasonably be expected to adhere to the unchanged contract. This may include, in particular, the determination of a gas shortage, an energy shortage, a significant increase in logistics costs or similar events.
• In the event that, after the conclusion of the contract, Hela has reasonable grounds to assume that the Buyer is not in a position to fulfill its obligations (e.g. if the Buyer fails to make due payments), Hela shall be authorized to deliver goods only against advance payment or appropriate security.

4. Terms of payment, set-off and retention

• Payments by the Buyer shall be made without deductions after invoicing and delivery.
• If the payment term is exceeded, Hela is entitled to charge maturity interest at the statutory rate. The assertion of further damages remains unaffected.
• In the event of default in payment, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. Hela reserves the right to assert further damages caused by delay.
• Cheques and bills of exchange shall only be accepted by special agreement and for Hela free of charge and as a conditional payment.
• Offsetting with counterclaims of the Buyer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established. The Buyer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.

5. Inspection obligation, warranty, liability, and damages

• Claims for defects on the part of the Buyer shall only exist if the Buyer inspects the goods immediately after delivery in the ordinary course of business and immediately notifies Hela in writing of any obvious defects, generally within 3 working days. If a defect is discovered later that was not recognizable during the inspection, Hela must be notified in writing immediately, usually within 3 working days, after the defect is discovered. If the Buyer fails to notify Hela of a defect, the goods shall be deemed to have been accepted. This shall not apply in the event of fraudulent intent on the part of Hela or if the Buyer can prove that even a proper inspection would not have led to the discovery of the defect.
• The basis of the warranty for defects is, if available, solely and conclusively the agreement made regarding the quality of the goods. All product descriptions and manufacturer specifications that are the subject of the individual contract or were publicly disclosed by Hela at the time of contract conclusion shall be considered as agreements regarding the quality of the goods. If the quality has not been agreed upon, it shall be determined in accordance with the statutory provisions whether a defect exists or not (§ 434 para. 2 nos. 2 and 3 as well as para. 3 BGB). Hela shall not be liable for public statements made by third parties (e.g. advertising statements).
• In the event that the Buyer culpably fails to accept the goods without justified reason or withdraws from the contractual agreement without valid grounds for withdrawal, Hela is entitled to demand a lump sum compensation of 20% of the agreed purchase price as damages. The Buyer shall be entitled to prove that no damage was incurred or that the amount of damage was lower. Hela reserves the right to provide evidence of higher damages.
• Hela shall be liable for damages within the scope of fault-based liability for the breach of contractual and non-contractual obligations in accordance with the statutory provisions unless liability is excluded or limited in accordance with these Terms and Conditions.
• In the event of simple negligence, Hela shall only be liable:
  • For injury to body, health or life;
  • For the breach of an essential contractual obligation (cardinal duties); in this case, Hela’s liability shall be limited to the foreseeable, typically occurring damage and in terms of amount, to the insurance coverage sum of Hela’s business liability insurance relevant to the claim.
• Hela is not liable for indirect damages, particularly not for loss of profit.
• The limitation period for material defects and defects of title is 1 year from delivery of the goods. This does not apply in cases of § 438 para. 1 No. 2 BGB.
• The above limitation provisions shall also apply to contractual and non-contractual claims of the Buyer arising from a defect in the goods, unless the statutory provisions (§§ 195, 199 BGB) provide for a shorter limitation period.
• The above limitations of liability shall not apply in the event of willful intent or gross negligence. The same applies to claims under the Product Liability Act (Produkthaftungsgesetz). The statutory provisions on recourse in the event of delivery by the Buyer to end consumers (§§ 478, 445a, 445b, 479 para. 3 BGB) remain unaffected.

6. Force majeure

• Hela shall not be liable for the impossibility of delivery or for delayed delivery if this was caused by an event of force majeure or other events unforeseeable at the time of conclusion of the contract for which Hela is not responsible. Unforeseeable events within the meaning of the preceding sentence are in particular war, epidemics, pandemics or natural disasters, labor disruptions and interruptions, difficulties in the procurement of raw materials, delays in transport, strikes, lockouts, shortage of labor, energy shortages (in particular due to a gas shortage), difficulties in obtaining official permits and official measures, or non-delivery or incorrect delivery by upstream suppliers.
• In the event that the impediment is only temporary, the delivery date shall be postponed for the duration of the impediment plus an appropriate restart period. If such a delay is justifiably unreasonable to the Buyer, the Buyer is entitled to withdraw from the contract by promptly notifying Hela in writing. If the impediment makes delivery or performance impossible or significantly more difficult and is not merely temporary, Hela is entitled to demand an adjustment of the contract (including a price adjustment) or to withdraw from the contract in whole or in part. In the event of withdrawal, Hela is obligated to refund any payments already received from the Buyer. Hela is also entitled to reduce the agreed delivery quantities to an appropriate extent until the event is resolved.
• Hela is obligated to promptly inform the Buyer of any impediments that lead to delays or impossibility of performance, as well as the anticipated duration of the delay.

7. Retention of title

• Until all present and future claims arising from the purchase contract and the current business relationship (secured claims) have been fulfilled, the delivered goods remain the property of Hela (goods subject to retention of title).
• The Buyer is only permitted to resell goods subject to retention of title in the ordinary course of business. The Buyer is not entitled to pledge, assign as security, or otherwise dispose of the goods subject to retention of title in a manner that jeopardizes Hela’s ownership. The Buyer hereby assigns to Hela any claims arising from the resale of the goods; Hela hereby accepts this assignment. If the Buyer resells the goods subject to retention of title together with other goods, the assignment of the claim shall only be considered agreed upon to the extent of the amount corresponding to the price agreed between Hela and the Buyer plus a security margin of 10% of this price. The Buyer shall be initially authorized to collect the claims assigned to Hela in a fiduciary capacity on behalf of Hela in its own name. Hela may revoke the authorization to resell the goods subject to retention of title if there are indications that the Buyer is unable to meet its payment obligation. The Buyer’s authorization to collect receivables shall end automatically, without the need for revocation, if the Buyer is threatened with insolvency, if he fails to meet his payment obligations arising from the business relationship on the due date, if an application has been made to open insolvency proceedings against the Buyer’s assets or if the opening of such proceedings has been rejected for lack of assets.
• The Buyer shall provide Hela with all requested information about the goods subject to retention of title or claims assigned to Hela in accordance with this agreement at any time. The Buyer must immediately inform Hela of any third-party access to or claims on the goods subject to retention of title, providing the necessary documents. The Buyer shall also inform the third party of Hela’s retention of title. The Buyer shall bear the costs of defending against such third-party access and claims.
• The Buyer is obliged to keep the goods subject to retention of title for the duration of the retention of title with the diligence of a prudent businessman. The Buyer is obligated to insure the goods subject to retention of title adequately against fire, water and theft damage at replacement value at its own expense and upon request by Hela, to provide the corresponding insurance proof to Hela, as well as to assign the claims from the insurance contract to Hela.
• The processing or transformation of the goods subject to retention of title by the Buyer shall be deemed to have been carried out on behalf of and for Hela as the manufacturer, without creating any obligations for Hela. Hela shall retain ownership of the new items resulting from the processing or transformation. In the event of combining, mixing, or processing with other goods not owned by Hela, Hela shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title relative to the new item at the time of combining, mixing, or processing. The value of the goods subject to retention of title is deemed to be the purchase price invoiced to the Buyer by Hela. Should the Buyer acquire (co-)ownership of the new item, he hereby transfers his (co-)ownership to Hela at the time of acquisition. If the resold goods subject to retention of title are only co-owned by Hela, the assignment carried out here shall at least cover the part of the claim from the resale that corresponds to the value of the original goods subject to retention of title.
• If the realizable value of the securities exceeds the secured claims by more than 10%, Hela shall release securities of its choice at the Buyer’s request.
• If the Buyer is in default with significant obligations, such as payment, to Hela, Hela may, without prejudice to other rights, reclaim the goods subject to retention after notifying the Buyer of an appropriate deadline and may otherwise dispose of them to satisfy due claims against the Buyer. In such a case, the Buyer shall immediately grant Hela or Hela’s representatives access to the goods subject to retention of title and surrender them. Hela is entitled to charge an appropriate amount for the costs of realization, which can be offset against the proceeds from the sale. The repossession of the goods subject to retention of title by Hela constitutes an implicit withdrawal from the contract. If Hela seizes the goods subject to retention of title, this also constitutes an implicit withdrawal from the contract.
• The Buyer undertakes to immediately notify Hela of any enforcement measures (or similar measures) taken by third parties against the goods subject to retention of title and/or the assigned claims from the resale, and to provide all related documents (especially the enforcement protocol). In addition, the Buyer must provide Hela with an affidavit stating that the goods subject to enforcement are the goods subject to retention of title from Hela. The costs of Hela’s measures to avert the enforcement shall be borne by the Buyer, unless a third party is obligated to bear the costs.

8. Release from product liability

If the Buyer sells the delivery items unchanged or after processing, combining, mixing or blending with other goods, he shall indemnify Hela internally against product liability claims of third parties insofar as he is responsible for the defect giving rise to the liability.

9. General provisions

• The exclusive place of jurisdiction for all disputes arising from the contractual relationship is Ahrensburg. This also applies if the Buyer does not have a general place of jurisdiction in the Federal Republic of Germany or relocates his habitual residence abroad after the conclusion of the contract. However, Hela is entitled to sue the Buyer at any other legal place of jurisdiction.
• The law of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
• If any individual provisions of these Terms and Conditions are invalid, the validity of the remaining provisions shall not be affected.