1. Application of the General Sales Terms (GST)
(1) These general sales terms (GST) apply to any business relationships with our customers. They specifically apply to contracts on the sale and/or the delivery of movable objects, no matter if we produce them ourselves or purchase them from deliverers or suppliers. However, they shall only apply if the customer is an entrepreneur in the meaning of § 14 German Civil Code, a legal entity under public law or a public-law special fund. We deliver only to resellers.
(2) Our GST shall apply exclusively. Any contrary, deviating or supplementary terms and conditions of the customer shall not become part of the contract except if we expressly consent to their application in writing. For example, it shall not constitute consent if we accept orders or render services without reservation, knowing of the terms and conditions of the customer, or directly or indirectly refer to any letters, etc., that contain his or any third-party's.
(3) Our GST shall apply to equivalent future offers and contracts (in particular on the sale and/or delivery of movable objects) as a master agreement (§ 305 para. 3 German Civil Code) as amended at the time of the customer's order as well without requiring any special notification of this.
2. Order; Conclusion of the Contract and Contents
(1) Our offers are subject to confirmation and non-committal, except if expressly marked as binding or containing any specific acceptance period.
(2) The order maybe placed via our website (www.alveus.eu), in writing or by phone. For quick processing of your orders, we ask you to submit orders to us by noon. The minimum order value for deliveries within the EU shall be EUR 100.00. The customer may receive delivery and shipping conditions for deliveries outside of the EU upon request. The order by the customer shall be deemed a legally binding offer to conclude a contract.
(3) If nothing different results from the order, we may accept it within 10 working days (Monday through Friday, except for any statutory holidays) from receipt. Our acceptance shall be declared by written declaration (e.g. by our order confirmation or our reporting of readiness for dispatch/collection). The contents of this declaration shall be relevant for the content of the contract. Legally relevant declarations and reports that the customer makes towards us after conclusion of the contract (e.g. setting of deadlines, reminders, complaints about defects, declarations of withdrawal or reduction) shall require written form to be valid.
(4) To maintain written form in the meaning of these GST, transmission by telefax or simple email shall be sufficient, the latter also without enclosing the scanned document. The above sentence shall apply both to our declarations towards the customer and vice versa.
(5) Our information on the object of the delivery or service (e.g. weights, ingredients, etc.) shall only be approximately relevant if usability for the contractually specified purpose does not require precise correspondence. There shall not be any guaranteed property features but descriptions or marks of the delivery or service. Commercially common deviations and deviations that are made due to legal provisions shall be permitted where they do not impair usability for the contractually intended purpose.
(6) Individual – also oral – contractual agreements shall always take precedence over these GST (§ 305b German Civil Code). Evidence of their content shall be rendered by written agreement or, if this does not exist, any written confirmation, subject to proof of the opposite.
(7) Except for guarantees contractually expressly agreed as such, there are no guarantees of any kind.
3. Delivery / Shipping; Packaging
(1) All of our deliveries are made ex works (EXW Incoterms (2010)) referring to the warehouse, from which we deliver from time to time, unless agreed differently.
(2) If agreed with the customer, we shall ship the goods, deviating from para. (1), to the destination indicated by him. All shipments are made at the expense and risk of the customer where nothing different results from these GST and where not agreed any differently.
(3) If it is agreed that we send the goods to the customer, we shall have the right to determine the type of shipment (in particular the transport company and shipping path) and the packaging according to our diligent discretion. The risk shall pass to the customer at handover of the goods to the forwarder, carrier or other transporter in case of shipping. This shall also apply if partial deliveries are made or if we have taken over any other services as well (e.g. shipping or transport). Apart from this, para. (1) and the provisions on the place of performance (§ 16) shall not be affected. (4) Our packaging unit for tea shall be 1 kg. Smaller amounts are generally not deliverable, except for tea types for which we communicate deviating packaging units to the customer. From an order of 25 kg per type onwards, the tea will be packed in bags. Prices for the packaging on acceptances as of 50 kg per type or special mixtures will be available on request. (5) The following shall apply if we agree on dispatch of the goods by us with you: initial orders are sent free of charge. Orders within Germany and Austria with a goods value starting at EUR 200.00, and orders within the EU with a goods value starting at EUR 700.00 shall be sent free domicile. Deliveries to islands include deviating island surcharges (on request). Below a goods value of EUR 200.00 within Germany and Austria, a shopping costs flat-rate of EUR 9.90 shall be charged. A surcharge for small amounts of EUR 15.00 is charged additionally for orders below a goods value of EUR 100.00. For orders below a goods value of EUR 700.00 within the EU (but outside of Germany and Austria), EUR 0.90 per kg shall be charged (cans on request), but at least EUR 12.90 per order. Orders below a goods value of EUR 200.00 for deliveries within the EU (but outside of Germany and Austria) will receive a surcharge of EUR 15.00. Delivery and shipping conditions for deliveries outside of the EU will be provided upon request. (6) We shall only insure goods upon express agreement with the customer and thereafter only at his expense against theft, breakage, transport, fire or water damage or other insured risks, and only at the customer's expense. (7) If the customer enters default of acceptance, does not take any required contributing action or if our service is delayed for any other reasons than due to the customer's fault, we shall have the right to charge compensation for the resulting damage, including our additional expenses (e.g. special storage costs).
4. Delivery Periods; Partial Deliveries
(1) Any delivery times/dates promised by us for deliveries and services (delivery deadlines) shall only apply approximately, except if a fixed delivery term is expressly approved or agreed.
(2) A delivery period for delivery of goods is complied with when the customer has received our notice of readiness for collection or – if shipping is agreed on – we have handed over the goods to the carrier or if we could have done so if the carrier does not appear or does not appear in time.
(3) If it becomes evident to us that a delivery deadline cannot be complied with, we shall inform the customer of this without delay and shall inform him – if already evident – of a new expected delivery period.
(4) We shall not be liable for impossibility or delay where this is due to force majeure or any other events not foreseeable at the time of conclusion of the contract that we are not at fault for (e.g. operating interferences of any kind, fire, natural disaster, weather, flooding, war, riot, terrorism, transport delays, strikes, legal lock-out, lack of workers, energy or raw materials, delays when issuing any necessary authority permits, authority/governmental measures). Such an event shall also include if we do not receive a delivery or do not receive it in time, if we are not at fault for this and had entered into a corresponding coverage transaction with the respective upstream supplier at the time of conclusion of the contract with the customer. This shall also apply if we conclude the coverage transaction without delay after the transaction with the customer. In case of such events, the delivery deadlines shall automatically extend by the period of the event, plus an appropriate start-up time. We shall further have the right to withdraw from the contract if such an event makes rendering of the service essentially more difficult or impossible to us and is not only temporary. If the acceptance of the service is no longer reasonable for the customer due to the delay that occurs as a consequence of this event, he may also withdraw from the contract by written declaration without delay; it can be assumed that acceptance is unreasonable if the expected new delivery deadline (para. (3)) is more than 30 calendar days after the originally intended delivery date or is not foreseeable.
(5) Delivery terms shall extend automatically at an appropriate scope if the customer does not meet his contractual obligations or other contribution requirements or obligations.
(6) We shall have the right to render partial services if
a) a partial service is usable for the customer in the scope of the contractual intended purpose,
b) rendering of the remaining services is ensured, and
c) the customer does not incur any essential additional effort from the partial service.
(7) Our statutory rights, specifically regarding any exclusion of our obligation to perform (e.g. because the performance and/or subsequent performance is impossible or unreasonable) and due to default of acceptance or performance of the customer, shall not be affected.
(8) If we enter into default of delivery or a service, or if it becomes impossible to us for any reason, our liability shall be limited to damages according to the proviso of § 12 below.
5. Prices, Payment Conditions; Set-Off and Retention Rights; Customer's Inability to Perform
(1) All prices shall be ex works (EXW Incoterms (2010), see § 3(1)). Plus statutory VAT unless agreed differently. Any insurance, transport and packaging costs (see § 3(6)) and any other taxes and duties shall be added unless agreed differently.
(2) Initial orders are processed only against advance payment.
(3) Our invoices shall be payable without any deduction within the respective granted payment targets. The payment period shall be complied with based on the day of receipt of the payment in our bank account. We reserve making our performance dependent on step-by-step payments without giving any reasons.
(4) In case of default of payment, dunning fees of EUR 10.00 each shall be charged from the 2nd payment reminder onwards. The legal consequences of default of payment shall be subject to the statutory provisions.
(5) The customer shall only have the right to set off where his counter-claim is either
a) undisputed or
b) finally determined or
c) in a mutual relationship (Synallagma) to our claim against which the customer sets off.
(6) The customer shall have the right to assert a retention right only where his counter-claim is either
a) undisputed or
b) finally determined or
c) based on the same contractual relationship as our claim for which the customer asserts the retention right.
(7) We shall have the right to refuse our performance outstanding within a contractual relationship if it becomes evident after conclusion of the contract (e.g. by application for insolvency proceedings) that our payment claim from the respective contractual relationship is endangered by the customer's inability to perform. Our right to refuse performance shall not apply if the payment is made or collateral is provided for it. We shall have the right to determine an appropriate period for the customer within which he may, at his discretion, either make his payment or provide collateral for it step by step against our performance. After the period has expired unsuccessfully, we may withdraw from the contract.
6. Marketing of the Goods, Labels / Type Stickers / Sales Materials
(1) The customer shall be solely responsible for the proper marketing of the goods according to the applicable food law, medicines law or other provisions (in particular for legal advertisement and descriptions of the goods). We shall not have any obligation to advise and inform the customer in this respect.
(2) Labels of any kind must be expressly ordered as well. The ordered and delivered labels must be inspected for mistakes without delay after receipt. We assume no liability for brand protection and food marking regarding the label / type stickers ordered by you. If organic teas from alveus GmbH are opened and repacked by tea shops without organic certification, no labels with organic marking must be passed on or provided to any end customers.
(3) Where we have packed and/or labelled any products on the order and/or according to the specifications of the purchaser, or where the purchaser labels them directly, he shall be deemed the sole marketer on further sale and shall be subject to the relevant provisions. If any claims are raised against us by any third parties nevertheless, the purchaser shall indemnify us against any liability at the admissible scope.
(4) The description and ingredients for our teas may change in the course of a year for various reasons. Reasons may include that individual ingredients are no longer available and we replace them by equivalent ones. New labelling obligations may also require short-term changes to the tea descriptions. In such cases, the information from our annual catalogue will no longer be up to date. Before ordering any labels or other sales materials, the current information should always be requested.
7. Special Blends
Individual tea blends, e.g. special productions or items removed from catalogues that are no longer valid, productions are available starting at 8 kg per type, as long as all raw materials are available here. The prices shall not be discount-capable and may be adjusted based on the situation of the raw material prices. Any ingredient lists shall correspond to the current status, which may deviate from the ingredient lists in the catalogues that are no longer valid. The ingredient lists may change due to new marking provisions or market situations. The ingredients listed in our catalogue serve as information and do not release you from independent review in the scope of your own diligence obligations for suitability for your intended procedures and purposes and the risk of violation of any third-party property rights.
8. Copyright and Property Rights; Confidentiality
(1) We reserve all title, copyright and property rights in any documents, materials and other objects provided to the customer by us (e.g. offers, catalogues, price lists, cost estimates, product descriptions and specifications, manuals, patterns, models and other physical and/or electronic documents, information and objects).
(2) The customer must not make the above objects available or disclose them to any third parties without our advance written consent, neither as such nor with their contents, use them, reproduce them or change them. He shall only use them for the contractual purposes and return them to us completely at our request, and shall destroy any present (also electronic) copies (or delete them), provided that they are no longer needed by him in the proper course of business and according to the statutory retention obligations. He shall confirm completeness of the return and destruction/deletion to us at our request or present which of the above documents, materials or objects he thinks he still needs for which reasons.
9. Reservation of Title
(1) The reservation of title agreed here serves to secure our claims against the customer from the respective contractual relationship and any other claims that exist against the customer from deliveries and services at the time of the respective conclusion of the contract, including balance claims from current accounts (together the "secured claims").
(2) The goods delivered by us to the customer shall remain our property until complete payment of all secured claims. The goods or the objects replacing them according to the following provisions that are also covered by the reservation of title are called the "reserved goods" below.
(3) If the customer intends to transport the reserved goods to any location outside of Germany, he shall be obligated to meet any statutory prerequisites that apply there for the creation and maintenance of our reserved title at his expense and to inform us without delay after the above intention is formed.
(4) The customer shall keep the reserved goods for us free of charge.
(5) Upon third-party access to the reserved goods (e.g. attempted seizing) and/or if an application is filed for insolvency proceedings, the customer must indicate our property without delay and clearly and inform us without delay so that we can pursue our rights. If the third party cannot reimburse us for the court or out-of-court costs resulting for us in this context, the customer shall be liable to us for this.
(6) The customer shall have the right to use, process, convert, combine, mix and/or sell the reserved goods in the proper course of his business, provided that he has not entered default of payment towards us. He must not pledge the reserved goods or provide them as collateral.
(7) Any processing or conversion of the reserved goods by the customer (§ 950 German Civil Code) shall always take place for us as manufacturer in our name and for our account. We shall acquire direct title in the newly created object or – if processing or conversion uses materials from several owners – shared title (fractional title) in it at the ratio of the value of the reserved goods (gross invoiced value) to the value of the other processed/converted material at the time of processing/conversion. If such title or shared title is not acquired by us for any reason, the customer hereby assigns his future title or shared title in the newly created object as collateral to us at the ratio described above. We hereby accept this assignment.
(8) If the reserved goods are combined with any objects that do not belong to us in the meaning of § 947 German Civil Code or mixed or blended with them in the meaning of § 948 German Civil Code, we shall acquire direct shared title in the newly created object at the ratio of the value of the reserved goods (gross invoiced value) to the value of the other combined, mixed or blended objects at the time of the combination, mixing or blending. If the reserved goods are to be viewed as the main object, we shall acquire direct sole title (§ 947 para. 2 German Civil Code). If any other object is to be viewed as the main object, the customer hereby transfers prorated shared title in the consistent object to us at the ratio described in sentence 1 of this paragraph if the main object belongs to him. We hereby accept this transfer. Apart from this, para. (7), second-to-last and last sentences shall apply accordingly. The customer shall keep our sole or shared title created according to the above provisions for us free of charge.
(9) The customer hereby assigns any compensation claims he has against his purchasers from further sale of reserved goods and his claims regarding the reserved goods that result against his purchasers or third parties for any other legal reason (in particular any claims from tort and for insurance payments), including any balance claims from current accounts, to us as collateral – if we hold shared title in the reserved goods proratedly according to our title share. We hereby accept this assignment.
(10) We hereby revocably authorise the customer to collect the claims assigned to us in his name and for his account. Our right to collect the claims directly shall not be affected by this. However, we shall not collect them ourselves and we shall not revoke the collection authorisation while the customer properly meets his payment obligations towards us (in particular while he does not enter default of payment), while no application for opening of insolvency proceedings has been filed regarding the customer's assets and no inability to perform (in the meaning of § 321 para. 1 sentence 1 German Civil Code) of the customer is present. If one of the above cases occurs, we may revoke the authorisation from sentence 1 of this paragraph, demand that the customer name the assigned claims to us, including the respective debtor, inform the latter of the assignment (which we may also do ourselves, at our choice) and provide us with any documents and information required and helpful for collecting the claim.
(11) The restrictions in para. (6) shall be applied accordingly to the claims assigned to us.
(12) If the customer demands this, we shall release reserved goods and the objects and claims replacing them as far as their estimated value exceeds the amount of the secured claims by more than 50%. The choice of objects to be released shall be ours.
(13) If we withdraw from the contract due to non-contractual conduct of the customer – in particular due to his default of payment – according to the statutory provisions (utilisation), we shall have the right to demand return of the reserved goods from the customer. Our demand for return at the latest shall also include our declaration of withdrawal; the same shall apply if we seize any reserved goods. The transport costs arising for return shall be assumed by the customer. We may dispose of any reserved goods taken back by us. The revenue from utilisation shall be set off against the amounts that the customer owes us after deduction of an appropriate amount for the costs of utilisation.
(14) We shall have the right to enter the customer's storage directly or through authorized persons to determine the goods subject to reservation of title.
(1) The customer's rights for defects of material and title (also including wrong and underdeliveries) shall be subject to the statutory provisions where nothing deviating or supplementary is stipulated in these GST.
(2) The warranty period shall be 1 year from delivery. This period shall apply to damages claims of the customer from violation of life, body or health or from wilful or grossly negligent violation of obligations of the seller or his servant, which shall expire according to the respective statutory provisions.
(3) We shall not be subject to any warranty obligations if the customer has changed the goods or had them changed without our consent and improvement has become impossible or unreasonably more difficult. In any case, the customer shall bear the additional costs for improvement resulting from the change.
(4) Biological or harvest-related deviations of the goods regarding the form, colour and structure and processing-related deviations shall not constitute a defect unless such features are expressly promised as properties or the quality deviation exceeds the common scope. Quantity deviations of up to 5 % as common in the industry shall be permitted.
(5) Unless expressly differently agreed, our products and services shall only comply with the legal requirements applicable in Germany.
(6) Transport damage must be confirmed by the transport company at once on receipt.
(7) The customer has the obligation to inspect any delivered goods without delay after delivery to him or the third party designated by him and to report any defects without delay. This is subject to §§ 377, 381 German Commercial Code and supplementarily the provisions in this paragraph. The report shall require written form in the meaning of a fax or email in order to speed up the procedure. To be without delay, the report must be sent no later than within three (3) working days after delivery (§ 377 para. 1 German Commercial Code) or – in case of a defect that was not evident during the examination (§ 377 para. 2 and 3 German Commercial Code) – at the latest within three (3) working days after discovery of the defect. Examination of the goods after delivery must not be limited to outward appearance and the delivery documents, but must include an appropriate quality and function examination at least taking random samples. If the customer does not properly examine and/or report this, our warranty period and other liability for the respective defect shall be excluded. None of our statements, actions or omissions shall be seen as a waiver of the prerequisites and legal consequences of §§ 377, 381 German Commercial Code and this paragraph.
(8) After determination of a defect, the customer shall have the diligence obligation to initially not process the respective batch any further and to not market it.
(9) Upon our request, goods subject to complaint shall initially be returned to us without delay at the customer's expense. In case of a justified complaint, i.e. in case of a defect, we shall reimburse the customer for the costs of the most cost-efficient shipping method; this shall not apply if the costs increase because the goods are located in a place other than the one of intended use. Para. (10) below shall not be affected.
(10) The customer shall give us the time and opportunity required to review complaints and other objections and for subsequent performance. This shall also include providing us with the goods subject to complaint for inspection purposes.
(11) The expenses required for inspection and subsequent performance, in particular any transport, travelling, working and material costs, shall be assumed by us if there actually is any defect. If a complaint of the customer turns out to be unjustified, we may demand reimbursement for the costs incurred by us from the complaint.
(12) If the delivered object is defective, we shall have the right and obligation to render subsequent performance by way of remediation of the defect (improvement) or delivery of a defect-free object (replacement delivery), at our choice, to be declared within an appropriate period of time. In case of replacement delivery, the customer shall return the object to be replaced to us according to the statutory provisions. This shall apply accordingly to any replaced spare parts in case of improvement.
(13) We shall have the right to take subsequent performance measures dependent on the customer paying any due purchasing price. The customer shall, however, have the right to retain a part of the payment appropriate at a ratio to the (alleged) defect during the subsequent performance measure.
(14) If subsequent performance is impossible or has failed or any grace period to be set for subsequent performance by the customer has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may, at his choice, withdraw from the purchasing contract or reduce the purchasing price. There shall, however, not be any retention rights in case of inessential defects.
(15) The customer shall only have a right to withdraw or terminate due to violation of obligations that are not due to a defect of the goods if we are at fault for the violation of obligations; Apart from this, the statutory provisions shall apply to this. A free termination right of the customer, in particular pursuant to §§ 651, 649 German Civil Code, shall be excluded.
(16) Claims for damages shall only apply according to the proviso of § 12 below.
11. Storage; Best-Before Date
Proper storage of teas is mandatory in order to ensure the quality and minimum durability of the teas. Storage shall only be proper when the customer stores the tea in its original outer packaging, cool and dry without exposure to light.
12. Liability for Damages
(1) We shall be liable according to the statutory provisions upon violation of contractual and out-of-contract obligations, provided that these GST (including this § 12) do not state anything different.
(2) We shall be liable – no matter the legal reason – without limitation for damages in case of damage due to wilful or grossly negligent violation of obligations by us or one of our statutory representatives or servants.
(3) In case of simply or slightly negligent violation of obligations by us or one of our statutory representatives or servants, we shall only be liable (subject to a milder liability standard according to the statutory provisions)
a) or any damage due to violation of life, body or health (but without limitation),
b) for damage from violation of essential contractual obligations. Essential contractual obligations shall be such obligations the performance of which is required for proper execution of the contract and the compliance with which the customer regularly trusts in and may trust in. In this case, however, our liability shall be limited in amount to the damage typical for the contract and foreseeable at conclusion of the contract.
(4) The limitation of liability pursuant to para. (3) shall not apply if we maliciously conceal any defect, or if we have assumed a guarantee for properties of the goods subject to damages or a procurement risk. Any mandatory statutory liability, specifically from the product liability act, shall not be affected either.
(5) Where our liability is excluded or limited according to the above provisions, this shall also apply to the personal liability of our committees, legal representatives, employees, workers and servants.
The period of expiration for any – also out-of-contract – claims for defects of material and title shall be, deviating from § 438 para. 1 no. 3 German Civil Code, one (1) year after delivery. This shall, however, not apply in case of wilful or grossly negligent violation of obligations (12 para. 2 of these GST), damage from violation of life, body or health (12 para. 3 lit. a), maliciously concealed defects and claims from the product liability act (12 para. 4 sentence 1 or sentence 2 of these GST); in these cases, the statutory expiration periods shall apply exclusively.
14. Special Withdrawal Rights on Cessation of Payments, etc.
In the following rights, we shall have a special right to withdraw from the contract: (a) If the customer ceases to pay his creditors; (b) he applies for opening of insolvency proceedings regarding his assets; (c) this is admissibly applied for by us or another creditor; (d) preliminary insolvency proceedings are opened; (e) they are finally opened; or (f) the application is refused due to lack of assets.
15. Hinweispflicht bei produktsicherheitsrechtlichen Maßnahmen
If any measures under product-safety law in connection with our products are performed on or against the customer (e.g. authority measures of market supervision, such as ordering return or recall) or of the customer intends such measures on his own (e.g. reports to market supervision authorities), he shall inform us in writing without delay.
16. Place of Performance
The place of performance for our deliveries shall be the warehouse from which we deliver.
17. Choice of Law and Jurisdiction
(1) The business relationship between us and the customer shall be subject solely to the law of the Federal Republic of Germany. UN sales law (CISG) shall not apply.
(2) If the customer is a merchant in the meaning of the Commercial Code, an entrepreneur in the meaning of § 14 German Civil Code, a legal entity under public law or a public-law special fund or has no general place of jurisdiction in the Federal Republic of Germany, the exclusive – also international – place of jurisdiction for any disputes from or in connection with the contractual relationships between us and the customer shall be our headquarters in Hamburg.
(3) Notwithstanding para. (2), we shall have the right in any case to also raise a claim against the customer at his general place of jurisdiction or the place of performance (§ 16). Mandatory statutory provisions in particular on exclusive places of jurisdiction shall not be affected.
If any provisions of these GST are or become wholly or partially invalid, this shall not affect the validity of the remaining provisions. Where any provisions have not become part of the contract or have become invalid, the content of the contract shall be according to the statutory provisions (§ 306 para. 2 German Civil Code), provided that these exist. Only apart from this and only as far as no supplementary contract interpretation is predominant or possible, the parties shall agree on an effective provision to replace the void or invalid provision with such effective provision that comes as close as possible to it economically.