LECICO GmbH – General Terms and Conditions of Sale and Purchase
31 May 2022
These General Sale Conditions and General Purchase Conditions are divided into two parts. Part A applies to all contracts in which LECICO GmbH with registered office in Hamburg acts as seller or supplier, while Part B applies to all contracts in which LECICO GmbH with registered office in Hamburg acts as buyer.
Part A: General Sale Conditions
1.1. Our deliveries shall only be made subject to the following Sales Conditions in this Part A. They are part of all sales contracts of LECICO GmbH, which we conclude with our customers (“Buyer”). They shall also apply to all our future deliveries or offers, even if they are not agreed again separately. Our Sales Conditions shall become an integral part of the contract upon acceptance of the delivery at the latest.
1.2. Contradictory, deviating or unilateral terms and conditions of the Buyer shall not be binding on us – even if we do not expressly object to them or provide or accept services without reservation – unless we have expressly agreed to them in writing in the individual case. As a matter of utmost precaution, we hereby object to the applicability of the Buyer’s general terms and conditions.
1.3. These Sales Conditions shall not apply to consumers.
2. Offers and prices
Our offers are made without obligation. In the event that the customer on his part submits an offer, the contract will not entered into until receipt of our order confirmation, no later than with receipt of our invoice or delivery at the customers if this takes place first.
3.1. Unless otherwise agreed, we shall deliver ex works distribution warehouse. Unless otherwise agreed between the parties, the risk shall pass to the Buyer at the latest when the delivery is handed over to the forwarding agent, carrier or other third party designated to carry out the shipment (whereby the start of the loading process shall be decisive).
3.2. The Buyer shall bear the shipping costs.
3.3. If shipment or handover is delayed due to a circumstance caused by the Buyer, the risk shall pass to the Buyer on the day on which the delivery item is ready for shipment and we have notified the Buyer about this.
3.4. If the Buyer is in default of acceptance, we shall be entitled to withdraw from the respective purchase contract and to claim damages after setting a grace period.
3.5. We may also demand security in an appropriate amount prior to delivery if, after conclusion of the contract, there are reasonable doubts as to the solvency or creditworthiness of the Buyer, agreed terms of payment or delivery are not complied with in material respects or material changes occur in the Buyer’s business relations.
3.6. If the Buyer refuses to provide security within a reasonable period of time set for him, we may withdraw from all contracts concluded with the buyer in whole or in part. We reserve the right to assert further claims.
3.7. If we are in default with our delivery, the Buyer has to grant us a reasonable period of grace for subsequent delivery. Before the expiry of this period, claims for delayed delivery shall be excluded.
3.8. Force majeure and operational disruptions or non-delivery by us or our suppliers which temporarily prevent us or our suppliers from delivering the object of purchase on the agreed date or within the agreed period through no fault of their own shall extend agreed delivery periods by the duration of the hindrance. If such hindrance leads to a delay in performance of more than four months, the Buyer may withdraw from the contract.
4. Complaints of defects and warranty
4.1. The Buyer shall inspect the goods immediately upon receipt. The inspection shall cover the entire delivery and all containers. Obvious defects must be reported in writing immediately, at the latest, however, within 14 days after receipt of the goods, hidden defects immediately after their discovery. At our request, the customer shall return the defective goods. Any further processing or use of the goods shall be stopped and the customer shall be given the opportunity to remedy and inspect the defect complained about. We shall not be liable for damage caused by processing goods with obvious defects or for defects caused by improper storage.
4.2. We shall also not be liable for advertising statements made by third parties, insofar as these statements are not attributable to us.
4.3. In the event of a defect in the purchased goods for which we are responsible, we shall be entitled either to remedy the defect or to make a replacement delivery. We shall only be liable for all disadvantages of the Buyer caused by defects under the conditions of clause 5.
5.1. Claims for damages by the Buyer, irrespective of the legal basement, as well as claims for reimbursement of futile expenses are excluded, unless the cause of the damage is based on a grossly negligent or intentional breach of duty or on an at least negligent breach of essential contractual obligations. In the latter case, our liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or which we should have foreseen by exercising due care.
5.2. The above limitation of liability shall not apply in the case of intentional or grossly negligent , for guaranteed characteristics, for injury to life, body or health or in the case of liability under the Product Liability Act.
5.3. Claims shall become time-barred one year after delivery of the goods, unless longer periods are prescribed by law. This period shall not apply to claims for damages of the Buyer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty on our part or on the part of our vicarious agents, which shall in each case be time-barred in accordance with the statutory provisions.
6.1. Our prices are quoted exclusive of packaging and value added tax at the applicable rate.
6.2. If, after conclusion of the contract, public charges are increased or newly introduced, or if transport, raw material or production costs increase due to statutory provisions or official orders, a corresponding increase in the purchase price shall be negotiated. The same shall apply if other circumstances, which were not foreseeable for us at the time of the price agreement, change our calculation so significantly that a corresponding increase in the purchase price appears justified.
7.1. The invoice shall be issued by the day of delivery or provision of the goods and, unless otherwise agreed, shall be payable immediately upon receipt. Deductions of any kind (e.g. for postage, cash discount, transfer and insurance fees) are not permitted unless expressly agreed otherwise. If the payment deadline is exceeded, we reserve the right to charge interest on arrears after issuing a reminder at a rate of 9% p.a. above the respective base interest rate + 40 €. The assertion of higher interest and further damages in the event of default shall remain unaffected.
7.2. We shall not be obliged to make any further deliveries under the current contract prior to full payment of due invoice amounts including interest on arrears. Payment shall be made in the currency stated on the invoice without regard to currency fluctuations. Payments shall always be used to settle the oldest debt items due plus any default interest accrued thereon. Offsetting or withholding of due invoice amounts is only possible with undisputed counterclaims or with counterclaims that have been legally established.
7.3. Checks or bills of exchange shall only be accepted on account of performance and shall not be deemed payment until they have been honored. Discount, collection and other charges shall be borne by the Buyer. In principle, bills of exchange may not have a longer term than three months.
7.4. If we subsequently become aware of anything disadvantageous regarding the circumstances of the Buyer or one of his co-obligated parties which indicates a reduction in creditworthiness, we shall be entitled to demand the provision of security in an appropriate amount even before delivery has taken place. If the customer refuses to provide security within a reasonable period of time set by us, we may withdraw from all contracts concluded with the customer in whole or in part. We reserve the right to assert further claims.
8. Reservation of Title
8.1. The object of purchase shall remain our property until settlement of the claims to which we are entitled on the basis of the purchase contract.
8.2. If the Buyer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or independent professional activity when concluding the contract, the retention of title shall also apply to all other our claims against the Buyer arising from the ongoing business relationship.
8.3. At the Buyer’s request, we shall be obliged to waive the retention of title if the Buyer has satisfied all claims in connection with the object of purchase and adequate security exists for the remaining claims arising from the ongoing business relationship.
8.4. The Buyer may sell the goods in the ordinary course of business. In this case, the Buyer hereby assigns to us the claim arising from the resale to third parties in the amount of our outstanding claim, without the need for a special document to this effect. The Buyer undertakes to inform his customer of the assignment at any time upon our request. The proceeds shall be collected in trust for us, shall be kept separately in a tangible form and shall be transferred to us immediately after the due date. The Buyer shall notify us of any pledging or assignment of these goods as security in favor of third parties.
8.5. The Buyer shall be entitled to handle, mix and process the goods in the ordinary course of business prior to full payment. The treatment and processing of the delivered goods shall be carried out by the Buyer on our behalf without any liabilities arising for us. We are to be regarded as the manufacturer in every state of treatment and processing and also with regard to the finished goods. If the treatment and processing is carried out together with goods belonging to the Buyer or a third party, we shall acquire co-ownership of the resulting item. The Buyer undertakes to keep the goods in safe custody for us. The Buyer shall be entitled to resell and deliver the newly manufactured item if this is customary in his ordinary course of business. With regard to the claims acquired from the sale, the provisions of the preceding paragraph shall apply accordingly. We undertake to release the securities to which we are entitled in accordance with the above provisions at our discretion to the extent that their value exceeds the claims to be secured by 20%, taking into account the value added by the Buyer.
9. Validity under the Law, Place of Performance and Jurisdiction
9.1. The law of the Federal Republic of Germany shall apply, even if the Buyer is domiciled abroad. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply Email. If there are any deviations between the German and the English version of this Sales Condition, the German version shall prevail.
9.2. If individual provisions of these Sale Conditions or of the contract are or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a provision which comes as close as possible to the economic purpose of the invalid or unenforceable provision.
9.3. The exclusive place of jurisdiction for all disputes and place of performance is Hamburg.
Part B: General Purchase Conditions
1. Applicable terms and conditions; scope of application
1.1. Our Purchase Conditions set forth below in this Part B shall apply in addition to all transactions between LECICO GmbH, with its registered office in Hamburg, and the Supplier, unless expressly agreed otherwise in writing in individual cases. They shall also apply to all future transactions with the Supplier without any express agreement to the contrary.
1.2. Our Purchase Conditions shall also apply if we accept the Supplier’s delivery without reservation in the knowledge that the Supplier’s terms and conditions conflict with or deviate from our Purchase Conditions. By accepting the order, the Supplier acknowledges our Purchase Conditions. Contradictory terms and conditions of the Supplier shall only apply if they have been expressly confirmed by us in writing. As a matter of precaution, we hereby object to the applicability of the Supplier’s general terms and conditions.
1.3. Individual agreements made with the Supplier in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these Purchase Conditions in each case. A written contract or our written confirmation shall be authoritative for the content of such agreements.
1.4. Our Purchase Conditions shall not apply to consumers.
1.5. Insofar as these Purchase Conditions provide for written form, this shall also be complied with by electronic data transmission.
2.1. Our written order shall be decisive for the scope of the Supplier’s performance obligations. It shall contain a complete description of the goods to be delivered as well as the price and the binding delivery date.
2.2. We shall be bound by our written orders for seven (7) days from the date of the order. Order confirmations which we receive after this period or which deviate from the order shall be deemed to be a new offer which requires our written acceptance. The Supplier must expressly point out any deviations from the order in the order confirmation.
2.3. The Supplier’s order confirmations must be in writing.
2.4. In the case of successive delivery contracts, delivery call-offs from us shall become binding if the Supplier has not objected in writing within five (5) working days of receipt at the latest.
3. Prices; terms of payment
3.1. The prices stated in the order are binding. The prices are net prices (plus VAT). Unless otherwise agreed in writing, the prices shall include all transport and shipping costs, including packaging costs. Any stamp duties, discounts or other expenses incurred shall be borne by the Supplier. The transport or shipment shall be at the risk of the Supplier, unless we carry out the transport ourselves.
3.2. Unless otherwise agreed in writing, we shall pay the purchase price within 30 days of delivery and receipt of invoice. The Supplier shall be obliged to state the respective order parts as well as our purchase contract or order number on all invoices. If this is not done, we shall not be responsible for any delays in payment resulting therefrom.
3.3. The Supplier shall not be entitled to assign claims against us to third parties unless they originate from deliveries with extended reservation of title or we expressly agree to the assignment in writing. This prohibition shall not apply if the Supplier proves that the Supplier has a protectable interest in the assignment of the claim which outweighs our protectable interest in adhering to the prohibition.
3.4. We shall be entitled to rights of set-off and retention to the extent provided by law or by contract.
4. Terms of delivery; delay in delivery
4.1. The Supplier shall only be entitled to make partial deliveries and/or render partial services with our express written consent.
4.2. The delivery date stated in the order shall be binding; if delivery periods are stated, they shall start to run from the date of the order. If the Supplier realizes that he will not be able to meet the delivery date, he shall notify us thereof in writing without delay, without prejudice to the agreed delivery periods and dates.
4.3. The Supplier shall be obliged to indicate on all shipping documents and delivery bills the respective order parts as well as our purchase contract or order number. If the Supplier fails to do so, we shall not be responsible for any delays resulting therefrom.
4.4. The place of performance for all deliveries shall be the place agreed in each case or specified in the order for the delivery of the goods.
4.5. In the event of delay on the part of the Supplier, we shall be entitled to the statutory claims. In addition, we shall be entitled to claim compensation for each full week of delay in the amount of 1% of the net invoice amount, but not more than 5% of the net invoice amount. The parties shall be permitted to prove higher or lower damages.
4.6. In the event of force majeure, such as war, transport or operational disruptions, industrial disputes, unforeseeable foreign exchange hindrances or other obstacles beyond our control, we shall be entitled to demand performance at a later date without this giving rise to any claims for damages on the part of the Supplier. If the impediment to performance is not only temporary or if the impediment due to force majeure lasts longer than 2 months, the parties shall be entitled to withdraw from the contract without the Supplier incurring any claims for damages.
4.7. The Supplier shall only be entitled to set-off or retention if its counterclaims are undisputed or have been finally determined by a court of law.
5. Reservation of title
An extended and expanded retention of title by the Supplier – in particular the retention of title to the delivered goods until full payment of all claims from the entire business relationship – is excluded. In particular, no processing within the meaning of Section 950 BGB (German Civil Code) shall take place for the Supplier.
6. Quality assurance
The delivered goods must comply with the respective applicable domestic and foreign statutory provisions, the regulations and guidelines of authorities, professional associations and trade associations, the latest state of the art as well as the properties and quality requirements specified in the order. The supplier is obligated to inform us in writing of any restrictions on use and declaration obligations for the delivered goods.
7. Warranty; inspection for defects
7.1. The Supplier warrants that the delivered goods are true to sample and/or comply with the contractual agreements. If no specific quality criteria have been agreed, the goods must at least be of merchantable quality. Quality and quantity specifications as well as other specifications contained in the order shall be strictly adhered to.
7.2. The Supplier further warrants that the delivered goods are free of defects in all respects, in particular with regard to composition, design and labelling, and that they are marketable without restriction in Germany and/or in the country of destination resulting from the order, and that their distribution neither violates applicable legal provisions nor interferes with third party rights, in particular industrial property rights or distribution agreements.
7.3. We shall be entitled to the statutory claims for defects without restriction; this shall also apply without restriction in the case of secondary breaches of duty.
7.4. Claims for defects shall become time-barred three years after delivery of the goods.
7.5. Insofar as an immediate inspection of the delivered goods is feasible in the ordinary course of business, we shall inspect the goods immediately after delivery in accordance with the contract at the agreed place of delivery. Defects which are recognizable within the scope of the required inspection shall be notified within two weeks after completion of the inspection. Defects which were not recognizable during the inspection shall be notified within two weeks after their discovery. The notification of defects may be made in writing or orally.
7.6. The Supplier agrees that the inspection of the goods shall only be carried out by representative random sampling, provided that this is in accordance with the circumstances of a proper course of business and the type and scope of the delivery. If the result of the random samples reveals a defect with regard to the quality or quantity of the goods, we shall be entitled to assert our warranty rights with regard to the entire delivery.
7.7. The Supplier may not invoke a breach of the obligation to give notice of defects on our part if the defectiveness of the goods is due to circumstances of which the Supplier is aware or of which he could only have been unaware as a result of gross negligence.
7.8. In the event of a warranty claim, the Supplier shall be obliged to bear all expenses necessary for the purpose of rectifying the defect or delivering a replacement. The Supplier shall also bear such costs as are incurred or increased by the fact that the item has been taken to a place other than the place of delivery and has been further processed or filled there.
8. Products with date stamp
In the case of products whose labelling shows or must show shelf-life-related date information (best-before date, use-by date, etc.), the remaining shelf life, i.e. the time available to us for marketing the products, calculated from the day following receipt of the goods, must be at least 80% of the total shelf life (span between production and the date indicated). Deliveries of goods that do not meet this requirement are considered defective.
9. Recall, Warning and Other Product Safety Measures
9.1. If the Supplier is obliged under safety regulations to inform the competent authorities of indications that the goods pose a risk to the health or safety of persons and/or property or that the goods do not comply with the other requirements for proper marketing, it shall inform us thereof in writing without undue delay.
9.2. If a warning, a recall or any other measure ordered by the authorities in accordance with the provisions of product safety law is issued for the goods or if the Supplier, a pre-supplier or the manufacturer takes such a measure, the Supplier shall be liable to us for the damage caused thereby, including the costs incurred for taking back the goods, insofar as the Supplier is responsible for the reason for the measure.
9.3. If we intend to issue a warning, a recall or any other measure required by product safety regulations, we shall give the Supplier the opportunity to comment in advance, insofar as this appears possible and reasonable, in particular with regard to the urgency of the measure. The Supplier shall be liable to us for the damage caused by the measure, including the costs necessary for the implementation of the measure, insofar as the Supplier is responsible for the reason for the measure. If, due to actual circumstances, the Supplier is not able to implement the measure, the Supplier shall be entitled to claim compensation from us.
9.4. If, due to actual or alleged health hazards, public warnings are issued, in particular in the media, against purchasing or using the goods or products with the same ingredients, we shall be entitled to cancel orders not yet delivered and to return goods already delivered against reimbursement of the purchase price. The right of cancellation and return exists within one month after the first publication of the warning. In particular, the Supplier shall also be liable for any damage incurred by us as a result of the warning and/or the cancellation, including all consequential costs, insofar as the Supplier is responsible for the cause of the warning. Further claims on our part due to the defectiveness of the goods remain unaffected by this.
9.5. Clause 9.4 shall apply mutatis mutandis to warnings for products which are comparable with the goods or which have comparable ingredients.
With regard to the goods delivered by it, the Supplier shall guarantee continuous and complete traceability in accordance with the respective applicable legal provisions (in particular Regulation EC No. 178/2002, as well as future regulations). In addition to the goods themselves, the traceability also includes their ingredients (ingredients/raw materials, additives/auxiliary materials), the time of manufacture/production, the packaging materials and the course of the manufacturing process. In case of need (official complaint, customer complaint, etc.), the Supplier undertakes to provide us with the requested information regarding the goods upon request.
11. Certificates of origin
Upon our request, the Supplier shall be obliged to provide us without delay and free of charge with the written documents and declarations (declarations of origin, etc.) which are necessary or expedient for any export of the goods to countries within and/or outside Europe.
12. Liability; Indemnification
12.1. The Supplier shall be liable in accordance with the statutory provisions unless otherwise agreed in these Purchase Conditions.
12.2. The Supplier shall indemnify us upon first request against all claims of third parties which they assert against us due to breaches of duty by the Supplier, in particular due to material defects or defects of title, if and to the extent that the Supplier is obliged to compensate us in the internal relationship. In this respect, the Supplier shall also reimburse us for all necessary expenses incurred by us as a result of or in connection with the claims asserted by the third party.
12.3. The Supplier warrants that the products delivered by him do not infringe any third party industrial property rights in countries of the European Union or other countries in which he manufactures the products or has them manufactured. He is obliged to indemnify us against all claims made by third parties against us due to the infringement of industrial property rights and to reimburse us for all necessary expenses in connection with this claim. This claim shall exist irrespective of any fault on the part of the Supplier.
12.4. f claims are asserted against us on the basis of manufacturer’s liability due to a defect in the item delivered by the Supplier, the Supplier shall indemnify us against the manufacturer’s liability resulting from the defect upon first request to the extent that the cause lies within the Supplier’s sphere of control and organization and the Supplier itself is liable in relation to third parties. The Supplier is obliged to maintain sufficient product liability insurance; if we are entitled to further claims for damages, these shall remain unaffected.
12.5. Within the scope of his liability for damages within the meaning of Clause 12.4, the Supplier shall also be obliged to reimburse any expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) or pursuant to Sections 830, 840, 426 of the German Civil Code (BGB) arising from or in connection with a recall action carried out by us. We shall inform the Supplier about the content and scope of the recall measures to be carried out – as far as possible and reasonable – and give him the opportunity to comment. Our other statutory claims shall remain unaffected.
The Supplier undertakes to treat as business secrets all technical and commercial information of which he becomes aware through the business relationship with us. The obligation to maintain confidentiality applies to all documents, drawings, templates, samples, models, tools, specifications and other information which the Supplier receives from us. They shall remain our sole property and may not be exploited or disclosed to third parties without our consent. Upon termination of the contract, they shall, at our discretion, be completely destroyed and deleted or returned to us. A right of retention in this respect is excluded. The Supplier shall also impose the corresponding obligations on his employees and subcontractors. The obligation of secrecy and the prohibition of utilization shall not apply to such information which was already public or known to the Supplier at the time of conclusion of the contract or which later became public without a breach of contract by the Supplier having been the cause thereof.
14. Applicable Law; Place of Jurisdiction
14.1. The relations between us and the Supplier shall be governed by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. If there are any deviations between the German and the English version of this Purchase Condition, the German version shall prevail.
14.2. The place of jurisdiction for all disputes in connection with the delivery transaction shall be, at our option, Hamburg or the Supplier’s place of business, and for actions brought by the Supplier exclusively Hamburg. Statutory provisions on exclusive jurisdiction shall remain unaffected.
14.3. If individual provisions of these Purchase Conditions or of the contract are or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a provision which comes as close as possible to the economic purpose of the invalid or unenforceable provision.