Terms of service

Allgemeine Geschäfts-, Liefer- und Zahlungsbedingungen

H&T Fine Foods Ltd.

 

• 1 General, Scope

(1) These General Terms and Conditions of Sale apply to all our business relationships with our customers (hereinafter: "Customer").

The terms of sale apply only if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law. Our offers are directed exclusively to commercial buyers.

(2) The terms of sale apply in particular to contracts for the sale and delivery of movable goods (hereinafter also: goods), regardless of whether the seller manufactures the goods themselves or purchases them from suppliers.

The terms and conditions of sale, in their respective versions, shall also apply as a framework agreement for future contracts concerning the sale and delivery of movable goods with the same customer, without us having to refer to them again each time.

(3) Our terms and conditions of sale apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity and provided that they do not contradict our terms and conditions.

This requirement for consent applies in every case, for example, even if we carry out the delivery to the customer unconditionally with knowledge of the customer's terms and conditions.

(4) Individual agreements made with the customer (including collateral agreements, additions, and amendments) shall in any case take precedence over the sales conditions. For the validity of such agreements, a contract in text form or our confirmation in text form is decisive.

Legally significant declarations and notifications that must be made by the customer to us after the conclusion of the contract (e.g., setting deadlines, reminders, declaration of withdrawal) require text form to be effective.

 

• 2 Conclusion of Contract

(1) Our offers are non-binding and without obligation. This also applies if we have provided the customer with catalogs, documentation (e.g., calculations, cost estimates, product and price lists), other product descriptions, or documents – including in electronic form.

(2) The customer's order of the goods is considered a binding offer to contract. Unless otherwise indicated in the order, we are entitled to accept this offer within 2 weeks of its receipt by us.

(3) Acceptance can be declared either in writing (e.g., by order confirmation, commercial confirmation letter, etc.) or by delivery of the goods to the customer.

(4) Under no circumstances does a customer acquire the right to use our company or product trademarks through contracts concluded with us regarding the supply of goods.

 

• 3 Delivery Time and Delivery Delay

(1) The delivery time is agreed upon individually or specified by us upon acceptance of the order.

Delivery dates or deadlines that have not been expressly agreed upon as binding are solely non-binding indications.

Unchanged by the assumption of warranty, the delivery time is always subject to unforeseen obstacles and force majeure, provided that these are not attributable to us. The customer must prove any fault on our part.

In the event of force majeure, namely external events that have no operational connection and cannot be averted even with the utmost reasonable care, which prevent us from fulfilling the contract, in particular, for example, epidemics, pandemics, illnesses, or quarantine, we are released from our obligation to fulfill the contract. The same applies if the impediment to performance is based on official orders and warnings. Alternatively, we may exercise a right of retention if contract fulfillment involves unreasonable efforts or demand that the contract be adjusted if adherence to it is only partially or temporarily unreasonable because the circumstances that formed the basis of the contract have changed significantly after the contract was concluded and the parties—if they had foreseen the change—would not have concluded the contract or would have done so with different content. Without prejudice to these provisions for cases of force majeure or performance impediments due to official orders or warnings, we are willing, after the removal of the impediments, to conclude a separate agreement for subsequent delivery within a reasonable period.

(2) If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of the service), we will inform the customer immediately and at the same time communicate the expected new delivery deadline.

If the service is not available even within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any counter-performance already provided by the customer will be refunded immediately. The customer may claim damages instead of performance in the event of a delivery delay only under the statutory conditions and subject to the requirements of § 8 being met.

In particular, the case of non-availability of the service in this sense includes the failure of our supplier to deliver on time, provided that we have concluded a congruent hedging transaction.

Our statutory rights of withdrawal and termination, as well as the statutory provisions regarding the handling of the contract in the event of exclusion of the obligation to perform, remain unaffected.

The customer's rights of withdrawal and termination pursuant to § 8 of these terms and conditions of sale shall remain unaffected.

(3) We reserve the right to make partial deliveries if this appears advantageous for a prompt processing and the partial delivery is not exceptionally unreasonable for the customer. Any additional costs arising from partial deliveries will not be charged to the customer.

(4) The commencement of our delivery delay is determined by statutory provisions. In any case, a reminder from the customer is required.

 

• 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Unless otherwise individually agreed in writing, delivery is made from stock, which is also the place of performance; we deliver in accordance with the INCOTERMS EXW.

At the customer's request and expense, the goods will be shipped to a different destination (shipment purchase).

Unless otherwise agreed, we are entitled to determine the method of shipment (in particular the carrier, shipping route, packaging) ourselves.

(2) The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest upon delivery.

In the case of a shipment purchase, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes to the buyer as soon as the goods are handed over to the carrier, the freight forwarder, or the person or institution otherwise designated to carry out the shipment.

As far as an acceptance is agreed upon, it is decisive for the transfer of risk.

Also, the statutory provisions of contract for work and services law apply accordingly to an agreed acceptance. The handover or acceptance is considered equivalent if the customer is in default of acceptance.

(3) Goods on call must be accepted by the customer within four weeks of the conclusion of the contract, unless expressly agreed otherwise. If the customer does not call off the goods within the deadline, they will be in default of acceptance after the expiry of a further written grace period of 2 weeks.

(4) If the customer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons attributable to the customer, we are entitled to claim compensation for the resulting damages, including additional expenses (e.g., storage costs).

 

• 5 Prices and Payment Terms

(1) Unless otherwise agreed in writing in individual cases, our prices valid at the time of contract conclusion shall apply, ex warehouse, plus statutory VAT.

(2) If, after the conclusion of the contract, there are cost increases that we are not responsible for and could not have anticipated in our calculations, we are entitled to adjust the prices accordingly.

(3) In the case of a shipment purchase, the customer bears the transport costs from the warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes, and other public charges are borne by the customer. We do not accept the return of transport and all other packaging in accordance with the Packaging Ordinance; they become the property of the customer, except for pallets.

(4) The purchase price is due and payable within 10 days net from the date of invoice and delivery or acceptance of the goods.

If the above payment deadline expires, the customer is in default. During the default period, the purchase price shall bear interest at the applicable statutory default interest rate, but at least at a rate of eleven percentage points above the respective base interest rate.

We reserve the right to assert further claims for damages due to delay. Our claim to commercial default interest remains unaffected in dealings with merchants.

(5) The customer is entitled to rights of set-off or retention only to the extent that their claim has been legally established, acknowledged by us in text form, or is undisputed.

In the event of defects in the delivery, Section 7 Paragraph 6 remains unaffected.

(6) If it becomes apparent after the conclusion of the contract that our claim to the purchase price is at risk due to the customer's lack of performance capability (e.g., through an application for the opening of insolvency proceedings), we are entitled, in accordance with legal provisions, to refuse performance and – if applicable, after setting a deadline – to withdraw from the contract.

In contracts for the manufacture of non-fungible goods (custom-made items), we may declare withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.

 

• 6 Retention of Title

(1) Ownership of the sold goods shall remain with us until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

(2) The goods subject to retention of title may neither be pledged to third parties nor transferred as security before full payment of the secured claims.

The customer must notify us in writing without delay if and to the extent that third parties access the goods belonging to us.

(3) The customer must handle the reserved goods with care and insure them at their own expense against fire, water, and theft damage for their replacement value.

(4) In the event of a breach of contract by the customer, in particular non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with legal provisions and to demand the return of the goods based on the retention of title and the withdrawal.

If the customer does not pay the due purchase price, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if such a deadline is unnecessary according to legal regulations.

(5) The customer is authorized to resell or process the goods subject to retention of title in the ordinary course of business.

In this case, the following provisions shall apply additionally.

(a) The retention of title extends to the products resulting from the processing, mixing, or combining of our goods up to their full value, whereby we are considered the manufacturer. If, in the case of processing, mixing, or combining with goods of third parties, their ownership rights remain, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods.

In addition, the same applies to the resulting product as to the goods delivered under retention of title.

(b) The claims arising from the resale of the goods or products against third parties are hereby assigned by the customer to us in full or to the extent of our possible co-ownership share according to the above paragraph as security. We accept the assignment.

The obligations of the customer mentioned in paragraph 2 also apply with regard to the assigned claims.

(c) The customer remains authorized alongside us to collect the claim. We undertake not to collect the claim as long as the customer meets their payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed, and no other impairment of their ability to perform exists.

However, if this is the case, we can require the customer to disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment.

(d) If the realizable value of the collateral exceeds our claims by more than 10%, we will release collateral of our choice upon the customer's request.

 

• 7 Customer Claims for Defects

(1) The customer's rights in the case of material and legal defects (including incorrect and short delivery) are governed by statutory provisions, unless otherwise specified below. In particular, § 377 of the German Commercial Code (HGB) applies.

Unchanged remain the statutory special provisions for the final delivery of goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB).

The customer must immediately check the delivered goods for completeness and freedom from defects as part of a proper incoming goods inspection. Shortages, incorrect deliveries, and externally visible damaged goods must be reported immediately and specifically noted on the receipt. In the absence of a receipt, we must be informed immediately in text form. Otherwise, the goods are considered approved, unless it is a defect that was not recognizable to the customer during the incoming goods inspection despite a reasonable examination.

If such a non-obvious defect becomes apparent at a later time, the customer must immediately specify and report it upon discovery. Otherwise, the defect is considered approved.

Under the condition of a proper complaint, we are entitled to take back the defective goods at our discretion and replace them with goods conforming to the contract or to subsequently perform the delivery of the goods – provided this is possible and reasonable for the customer.

If, despite a justified and timely complaint, we are not willing or able to remedy the defect or provide a replacement delivery within a reasonable period, the customer is entitled, at their discretion, to withdraw from the contract or to demand a reasonable reduction of the purchase price (reduction).

(2) The basis of our liability for defects is primarily the agreement made regarding the condition of the goods. Product descriptions designated as such, which were provided to the customer before their order or incorporated into the contract in the same way as these terms and conditions of sale, are considered agreements regarding the condition of the goods.

Over- or under-deliveries up to 10% are considered contractually compliant.

(3) If the condition has not been agreed upon, it must be assessed according to the legal provisions whether a defect exists or not (§ 434 para. 1 sentences 2 and 3 BGB). However, we do not assume any liability for public statements made by third parties (e.g., advertising claims).

(4) The customer's claims for defects require that they have fulfilled their statutory duties of inspection and notification of defects (§§ 377, 381 HGB).

If a defect is discovered during the inspection or later, we must be notified of this in writing immediately after receipt of the goods. If the customer fails to carry out the proper inspection or to notify us of the defect within the deadline, our liability for the defect not reported is excluded.

(5) If the delivered item is defective, we can initially choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery).

Our right to refuse the chosen type of supplementary performance under the statutory conditions remains unaffected.

(6) We are entitled to make the owed subsequent performance dependent on the customer paying the due purchase price.

The customer is, however, entitled to withhold a portion of the purchase price that is reasonable in relation to the defect.

(7) The customer must give us the time and opportunity required for the owed subsequent performance, in particular to hand over the complained goods for inspection purposes. In the case of replacement delivery, the customer must return the defective item to us in accordance with legal regulations.

(8) We will bear the expenses necessary for inspection and subsequent performance, in particular transport, travel, labor, and material costs, if a defect actually exists. However, if the customer's request for defect rectification proves to be unjustified, we may demand reimbursement from the customer for the costs incurred as a result.

(9) If the subsequent performance has failed or a reasonable deadline set by the customer for the subsequent performance has expired without success or is dispensable according to legal regulations, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of a minor defect, there is no right of withdrawal.

(10) Customer claims for damages or reimbursement of futile expenses exist only in accordance with § 8 and are otherwise excluded.

(11) For commercial goods, deviating from the above provisions in paragraphs 1-10, claims for defects must be asserted by the customer exclusively against our suppliers. We assign the claims to which we are entitled in this respect to the customer in our own name for the purpose of enforcement by the customer.

 

• 8 Other Liability

(1) Unless otherwise stipulated in these terms and conditions of sale, including the following provisions, we are liable for any breach of contractual and non-contractual obligations in accordance with the applicable statutory provisions.

(2) We are liable for damages – regardless of the legal grounds – in cases of intent and gross negligence.

In cases of simple negligence, we are only liable

(a) for damages resulting from injury to life, body, or health, (b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contracting party regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 do not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims by the customer under the Product Liability Act.

(4) Due to a breach of duty that does not constitute a defect, the customer may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination for the customer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

 

• 9 Limitation Period

(1) Contrary to § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. This period also applies to partial deliveries. If acceptance has been agreed upon, the limitation period begins with acceptance.

(2) The above limitation periods under sales law also apply to contractual and non-contractual claims for damages by the customer based on a defect in the goods, unless the application of the regular statutory limitation periods (§§ 195, 199 BGB) would result in a shorter limitation period in the individual case.

The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, for claims for damages by the customer pursuant to § 8, only the statutory limitation periods apply.

(3) The limitation provisions under the above sections 1 and 2 do not apply in the cases of Section 438 (1) numbers 1 and 2 of the German Civil Code (BGB) and do not apply in cases of injury to life, body, or health of a person. They also do not apply to claims where intent or gross negligence on our part, our representatives, or our vicarious agents is present.

 

• 10 Miscellaneous

As long as the law does not explicitly require written form for validity, the text form is prescribed for the effectiveness of declarations of intent by the party. Oral collateral agreements are invalid. § 305 b BGB is excluded.

Should one or more clauses of these terms be invalid, the validity of the remaining clauses shall remain unaffected. The parties undertake to agree on another valid clause in place of the invalid clause, which, taking into account the mutual commercial interests, comes as close as possible to the content of the invalid clause.

• 11 Choice of Law and Jurisdiction

(1) These terms of sale and all legal relationships between us and the customer are governed by the laws of the Federal Republic of Germany, excluding all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods.

However, the prerequisites and effects of the retention of title according to § 6 are subject to the law of the respective storage location of the item, insofar as the choice of law in favor of German law is inadmissible or ineffective under that law.

(2) If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business in Gütersloh.

We are, however, also entitled to file a lawsuit at the customer's general place of jurisdiction.

• 12 Youth Protection Act
  
  

The wines we offer are intended exclusively for persons who have reached the legal minimum age.We therefore only deliver to adults who are fully legally competent natural persons and require appropriate age verification. The data required for the order, such as name, address, etc., must be provided completely and truthfully.

 

Terms & Conditions H&T as of 08.2022