Table of contents
1. scope of application
2. conclusion of contract
3. prices and terms of payment
4. terms of delivery and dispatch
5. force majeure
6. delay in performance at the request of the customer
7. reservation of title
8. liability for defects / warranty
9. liability
10. statute of limitations
11. retention, assignment
12. applicable law, place of jurisdiction, contract language
1) Scope of application
1.1 These General Terms and Conditions of HOT Hamburg Organic Trading GmbH (hereinafter referred to as the „seller“) shall apply to all contracts for the delivery of goods which an entrepreneur (hereinafter referred to as the „customer“) concludes with the seller using means of distance communication (e.g. telephone, e-mail) exclusively by means of individual communication. The inclusion of the customer’s own terms and conditions is hereby rejected, unless otherwise agreed.
1.2 These General Terms and Conditions shall apply exclusively even if the seller makes delivery to the customer without specific reservation in the knowledge that the customer’s terms and conditions are contrary to or deviate from these General Terms and Conditions.
1.3 For the purposes of these General Terms and Conditions, an entrepreneur is a natural or legal person or a partnership with legal capacity who, when entering into a legal transaction, is acting in the exercise of its commercial or independent professional activity.
2) Conclusion of contract
The customer may send a non-binding enquiry to the seller by telephone, e-mail or via an online contact form that may be available on the seller’s website. In response to the customer’s enquiry, the seller will send the customer by e-mail a binding offer for the sale of the goods previously selected by the customer from the seller’s product range. The customer may accept this offer by sending a declaration of acceptance to the seller by e-mail or by paying the purchase price offered by the seller within a reasonable period of acceptance specified by the seller in the offer, the day of receipt of the offer not being included in the calculation of the period. Acceptance by payment shall be determined by the date of receipt of payment by the seller. If the last day of the period for acceptance of the offer falls on a Saturday, Sunday or a public holiday at the customer’s place of business, it shall be replaced by the next working day. If the customer does not accept the seller’s offer within the aforementioned period, the seller shall no longer be bound by its offer and may freely dispose of the goods.
3) Prices and terms of payment
3.1 The prices quoted by the seller are net prices and do not include statutory VAT. Packaging and shipping costs, loading, insurance (in particular transport insurance), customs duties and taxes will be charged separately, if applicable.
3.2 The customer has several payment options at his disposal, which are indicated in the offer of the seller.
3.3 For deliveries to countries outside the European Union, additional costs may be incurred in individual cases for which the seller is not responsible and which shall be borne by the customer. These include, for example, costs for money transfers by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Such costs may also be incurred in connection with the transfer of funds if the delivery is not made to a country outside the European Union but the customer makes the payment from a country outside the European Union.
3.4 If advance payment by bank transfer has been agreed, the payment shall be due immediately after the conclusion of the contract, unless the parties have agreed on a later due date.
3.5 If the payment method „purchase on account“ is chosen, the purchase price is due after the goods have been delivered and invoiced. The seller reserves the right to offer the payment method purchase on account only up to a certain order volume and to refuse this payment method if the order volume exceeds the specified order volume. In this case, the seller will notify the customer of the payment restriction.
3.6 Payment shall be deemed to have been made when the equivalent amount has been credited to one of the seller’s accounts. In the event of late payment, the seller shall be entitled to charge interest on arrears at a rate of 10 percentage points above the applicable base rate. The seller’s other statutory rights in the event of the customer’s default in payment shall remain unaffected. In the case of overdue claims, incoming payments shall first be set off against any costs and interest and then against the oldest claim.
3.7 In the event of unforeseeable cost increases (e.g. currency fluctuations, unexpected price increases by suppliers, etc.), the seller shall be entitled to pass on the price increase to the customer. However, this shall only apply if the delivery is agreed to take place more than four months after the conclusion of the contract.
4) Delivery and dispatch conditions
4.1 Unless otherwise agreed, Goods will be delivered by carrier to the delivery address provided by the customer.
4.2 Goods delivered by a carrier will be delivered ‚free kerbside‘, i.e. to the public kerbside nearest to the delivery address, unless otherwise agreed.
4.3 The seller is entitled to make partial deliveries if this is reasonable for the customer. In the case of permissible partial deliveries, the seller shall also be entitled to issue partial invoices.
4.4 The seller reserves the right to withdraw from the contract in the event of incorrect or improper self-delivery. This shall only apply if the seller is not responsible for the non-delivery and the seller has entered into a specific covering transaction with the supplier with due diligence. The seller shall use all reasonable endeavours to procure the goods. In the event of non-availability or only partial availability of the goods, the customer will be informed immediately and the consideration will be refunded without delay.
4.5 The risk of accidental loss and accidental deterioration of the goods sold shall pass to the customer as soon as the seller has delivered the goods to the carrier, freight forwarder or other person or organisation designated to carry out the shipment. This shall also apply if the seller bears the costs of transport. Transport insurance will only be taken out at the specific request and expense of the customer.
4.6 If dispatch of the goods to the customer is delayed for reasons for which the customer is responsible, the risk shall pass to the customer upon notification that the goods are ready for dispatch. Any storage costs incurred after the transfer of risk shall be borne by the Customer.
5) Force majeure
In the event of force majeure affecting the performance of the contract, the seller shall be entitled to postpone the delivery for the duration of the hindrance and, in the event of longer delays, to withdraw from the contract in whole or in part, without any claims against the seller being able to be derived from this. Force majeure shall mean any event which the seller could not have foreseen or which, even if foreseeable, is beyond the seller’s control and the effect of which on the performance of the contract cannot be prevented by reasonable efforts on the part of the seller. This does not affect the customer’s statutory rights.
6) Delay in performance at the customer’s request
If dispatch or delivery of the goods is delayed at the customer’s request by more than one month after notification that the goods are ready for dispatch, the customer may be charged a storage fee of 0.5% of the purchase price for each month commenced, up to a maximum of 5% of the purchase price. The parties are free to prove higher or lower damages.
7) Retention of title
7.1 The seller retains title to the goods delivered until the purchase price has been paid in full. In addition, the seller retains title to the delivered goods until all its claims arising from the business relationship with the customer have been fulfilled.
7.2 If the delivered goods are processed, the seller is deemed to be the manufacturer and acquires ownership of the newly created goods. If the processing is carried out together with other materials, the seller shall acquire ownership in proportion to the invoice value of its goods to that of the other materials. If the seller’s goods are combined or mixed with an item belonging to the customer and if the latter is to be regarded as the main item, the seller shall acquire co-ownership of the item in the ratio of the invoice value of the seller’s goods to the invoice value or, in the absence of such, to the market value of the main item. In such cases the customer shall be deemed to be the custodian.
7.3 If the goods are subject to retention of title or legal reservation of title, the customer may neither pledge the goods nor assign them by way of security. The customer may only resell the goods as a reseller in the ordinary course of business on condition that the customer has effectively assigned its claims against its customers in connection with the resale to the seller and the customer transfers ownership to its customer subject to payment. By entering into the contract, the customer assigns to the seller, by way of security, its claims against its customers in connection with such resale, and the seller shall accept such assignment at the same time.
7.4 The customer must notify the seller immediately of any access to the goods owned or co-owned by the seller or to the assigned claims. He shall immediately transfer to the seller the amounts assigned to the seller and collected by the seller to the extent that the seller’s claim is due.
7.5 If the value of the seller’s security rights exceeds the amount of the secured claims by more than 10%, the seller shall release a corresponding proportion of the security rights at the customer’s request.
8) Liability for defects / warranty
If there is a defect in the goods, the statutory provisions on liability for defects shall apply. Deviating from this, the following shall apply
8.1 An insignificant defect does not give rise to a claim for defects and does not entitle the customer to refuse acceptance of the goods. If a part of the goods has a not insignificant defect, this does not entitle the customer to complain about the entire delivery. Anything to the contrary shall only apply if the partial delivery is of no interest to the customer. In addition, payments by the customer may only be withheld to an extent that is in reasonable proportion to the material defect. If the goods are delivered free of charge, the seller shall only be liable for defects in so far as he is guilty of intent or gross negligence.
8.2 There shall be no claims based on defect in the event of quality deterioration due to improper handling or storage, excessive use, unsuitable equipment or due to special external influences which are not provided for in the contract. If the customer or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the resulting consequences, unless the customer can prove that the defect complained of was not caused by these modifications or repair work.
8.3 For new goods, the limitation period for claims for defects is one year from delivery of the goods.
8.4 The above limitations of liability and shortening of the limitation period do not apply to
– to goods which, in accordance with their normal use and have caused its defectiveness,
– to claims for damages and reimbursement of expenses by the customer,
– if the seller has fraudulently concealed the defect, and
– for the right of recourse under § 445a BGB.
8.5 In the event of subsequent performance, the seller shall have the right to choose between repair or replacement.
8.6 If a replacement delivery is made within the framework of liability for defects, the limitation period shall not start again.
8.7 If the remedy is a replacement delivery, the customer is obliged to return the goods first delivered to the seller within 30 days. The return package must contain the reason for the return, the customer’s name and the number assigned for the purchase of the defective goods, which will enable the seller to identify the returned goods. If and to the extent that it is not possible to identify the returned goods for reasons for which the customer is responsible, the seller shall not be obliged to accept the returned goods and refund the purchase price. The customer shall bear the costs of the return shipment.
8.8 If the seller delivers a defect-free item for the purpose of subsequent performance, the seller may claim compensation for use from the customer in accordance with § 346 para. 1 BGB. Other legal claims remain unaffected.
8.9 If the customer is a merchant within the meaning of § 1 of the German Commercial Code (HGB), it shall be subject to the commercial duty to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB). If the customer fails to comply with the notification obligations set out therein, the goods shall be deemed to have been approved.
9) Liability
The seller shall be liable to the customer for all contractual, non-contractual and statutory claims, including tortious claims, for damages and reimbursement of expenses as follows:
9.1 The seller shall be liable without limitation on any legal grounds whatsoever
– in the event of wilful intent or gross negligence,
– in the event of wilful or negligent injury to life, limb or health,
– on the basis of a guarantee promise, unless otherwise stipulated,
– due to mandatory liability such as under the Product Liability Act.
9.2 If the seller negligently breaches an essential contractual obligation, the liability shall be limited to the foreseeable damage typical for the contract, unless the liability is unlimited according to the above clause. Material contractual obligations are obligations which the contract imposes on the seller according to its content in order to achieve the purpose of the contract, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely.
9.3 Any further liability of the seller is excluded.
9.4 The above liability provisions shall also apply to the seller’s liability for its vicarious agents and legal representatives.
10) Statute of limitations
Claims of the customer against the seller – with the exception of the claims regulated under the item „liability for defects / warranty“ – shall become statute-barred one year after the customer has become aware of the facts giving rise to the claim, but no later than three years after performance of the service, unless unlimited liability applies in accordance with the above clause.
11) Retention, assignment
11.1 Rights of retention and rights to refuse performance on the part of the customer are excluded, unless the seller does not dispute the underlying counterclaims or they have been legally established.
11.2 The assignment by the customer of claims arising from the contract concluded with the customer, in particular the assignment of any claims for defects by the customer, is excluded.
12) Applicable law, place of jurisdiction, contract language
12.1 The laws of the Federal Republic of Germany shall apply to all legal relationships between the parties to the exclusion of the laws on the international sale of goods.
12.2 If the customer is a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the registered office of the seller. If the customer’s registered office is outside the territory of the Federal Republic of Germany, the seller’s registered office shall be the exclusive place of jurisdiction for all disputes arising from this contract if the contract or claims arising from the contract can be attributed to the customer’s professional or commercial activity. In the above cases, however, the seller shall in any event be entitled to bring an action before the court at the customer’s place of business.
12.3 The language of the contract shall be German or English.