Art. 1 General – Scope
1. The following General Terms & Conditions (hereinafter “T&Cs” or “General Terms & Conditions”) apply to business transactions between Lemonaid Beverages GmbH (hereinafter “Lemonaid”, “We” or “Us”) and its business customers (hereinafter “Buy-ers”).
2. These General Terms and Conditions apply exclusively and are accepted by the Buyer when they purchase our goods. No conflicting or different terms and conditions shall be recognised, unless we have explicitly agreed to their validity in writing. Our Terms and Conditions also apply if We make the delivery to the Buyer with knowledge of the Buyer’s conflicting and different Terms and Conditions. In case the customer refers to their own General Terms and Conditions, we explicitly reject their validity, if they devi-ate from these T&Cs to the detriment of Lemonaid Beverages GmbH. The T&Cs of Lem-onaid Beverages GmbH also apply even if Lemonaid makes the delivery without reser-vation with knowledge of the customer’s different terms and conditions.
3. The Buyer shall be made aware of changes to these T&Cs in writing. They shall be deemed to have been accepted if the Buyer does not raise any objection in writing. Lemonaid shall refer to this consequence as soon as it becomes aware of it. The Buyer must send the objection to Lemonaid within six weeks of becoming aware of the changes.
4. Our Terms and Conditions shall also apply to all future transactions with the Buyer that arise from the current business relationship.
Art. 2 Offer documentation
1. If the order represents an offer within the meaning of section 145 of the German Civil Code (BGB), we are entitled to accept this within a period of two weeks.
2. If it is an offer we have made, then it is non-binding, unless otherwise stated in our offer, and we have declared something to the contrary in writing.
3. We shall retain property rights and copyrights to images, drawings, calculations and other documents; they may not be made available to third parties. This applies particu-larly to our conditions and such written documents designated as “confidential”. The Buyer needs our explicitly approval in writing prior to disclosure to third parties.
Art. 3 Payment terms
1. Unless stipulated to the contrary in the order confirmation, our prices apply “ex works” Incoterms 2010) plus VAT at the statutory rate and security deposit.
2. Delivery shall be made at the daily rates/list prices or agreed purchase prices on the day of delivery valid that applies to the respective customer group.
3. Lemonaid reserves the right to change the prices for its products by giving 30 days’ no-tice. If the price increase is more than 5% of the agreed price, the customer has a right to terminate.
4. Our prices include the licensing costs for Germany’s nationwide recycling system. If these licensing costs are reduced once the contract is signed, the Buyer shall not be en-titled to any reduction in the agreed prices.
5. The prices are absolute net prices and particularly do not include any VAT, deposit, or any duties or other taxes.
6. If no payment terms are set out in our written order confirmation or elsewhere in writing, the purchase price shall become due net directly following receipt of the supplied goods and invoice. No discount may be deducted. If the Buyer should fall into arrears, we shall calculate default interest at a rate of 8 percentage points p.a. above the re-spective base rate of the Central European Bank. We reserve the right to claim further damages.
7. The Buyer may also issue Lemonaid Beverages GmbH with a SEPA direct debit man-date in addition to the payment in accordance with the aforesaid rules. The SEPA debit is generally taken two days following the invoice date. The pre-notification period is reduced to one day. It is responsibility of the Buyer to ensure that there are sufficient funds in the account. Any costs that arise as a result of the direct debit not being hon-oured or the direct debit being charged back shall be borne by the Buyer, provided we are not responsible for the direct debit not being honoured or the chargeback.
8. Lemonaid may ask for payment in advance for individual buyers and orders.
9. The Buyer shall only be entitled to offset, if their counterclaims are legally established, undisputed or recognised by us in writing. The Buyer may only exercise a right of reten-tion if the same conditions are met for the Buyer’s counterclaims and its counterclaim is also based on the same contractual relationship.
Art. 4 Delivery
1. Unless stipulated to the contrary in our order confirmation, an “ex works” delivery (Inco-terms 2010) is agreed.
2. The transportation risk shall be transferred as soon as the goods are loaded on the Buy-er’s vehicle. If Lemonaid arranges transport of the goods, transport risk shall pass to the Buyer, as soon as the goods reach the Buyer’s warehouse or point of sale. If Lemonaid is responsible for unloading the goods, transport risk shall pass to the Buyer, as soon as the goods have reached the respective storage area.
3. Any delays with deliveries because of force majeure or because of unforeseeable or circumstances, for which we are not responsible, such as strikes, lock-out, partial or complete shutdown of production facilities, delays with deliveries, transport disruptions, war, terror, difficulties with raw materials and energy procurement resulting from exces-sive seasonal demand or official orders shall not result in our being in default. This shall also be the case if these circumstances arise at our suppliers or subsuppliers. Any agreed delivery time shall be extended to take account of the period of disruption plus a reasonable lead time. If the disruption continues for more than three months, We and the Buyer shall be entitled to withdraw from the part of the contract yet to be fulfilled following the end of a reasonable period of grace. Any claims for compensation be-cause of a loss as a result of force majeure and because of unforeseeable and circum-stances for which we are not responsible are out of the question.
4. The Buyer shall only be entitled to compensation, if the delay is deliberate or due to gross negligence or a negligent breach of an essential contractual obligation. In all cases where we are negligent, our obligation to provide compensation shall be re-stricted to foreseeable losses, typical for the contract.
5. Meeting our obligation to deliver is dependent upon the Buyer promptly and duly meeting its obligations. If the Buyer is in default with acceptance or they breach other obligations to cooper-ate, we are entitled to demand any losses that we may incur including any additional expenditure from the Buyer. In this case, the risk of a potential demise or accidental degradation of the item of purchase shall pass to the Buyer from the point they are in default with acceptance.
6. We are entitled to make part deliveries, provided no noticeable interests of the Buyer stand in the way.
7. If the Buyer collects goods or other commodities itself, they are obliged to load these safely onto suitable vehicles, even if they are assisted by staff from Lemonaid Beverag-es GmbH and from affiliated or appointed companies. The Buyer shall indemnify these companies and their staff for all losses and third-party claims in this respect
Art. 5 Warranty rights
1. Once delivered, the Buyer must inspect for any defects in terms of quantities (full and empty containers), visual appearance, types and varieties including any residual terms up to the delivered goods’ expiration date we have guaranteed. Lemonaid is to be notified in writing of any complaint in this regard. Otherwise, the goods shall be deemed to have been accepted without objection.
2. Other complaints are to be notified in writing and specified within ten working days of receiving the goods. (Concealed) defects that are not immediately identifiable are to be notified within ten working days in writing.
3. There are no claims for defects, if there are only insignificant deviations from the agreed and usual quality, or the impairment of serviceability is only minor.
4. If the purchased item has a defect for which we are responsible, we are entitled to choose whether to rectify the defect or supply a substitute.
5. Claims for compensation for defective goods or consequential loss, which are based on defective goods, is excluded. We are not responsible for the defect. Claims for compensation due to defects in the supplied goods is excluded, if we are unable to complete supplementary performance for reasons for which we are not responsible. Claims for compensation for a breach of durability guarantee provided by us or a third party (section 443(2) BGB) that is incumbent upon us is excluded if we are not responsible for the breach.
6. Any claims for compensation by the Buyer, regardless of the legal grounds, in particu-lar due to a breach of obligation arising from or associated with the contractual rela-tionship, due to culpability or when the contract is signed or due to tortious liability are excluded. The aforementioned shall not apply to claims in accordance with sections 1, 4 of the Product Liability Law, for own deliberate or grossly negligent breaches of obligation and intentional or grossly negligent breaches of obligation by legal representatives, for breaches of life or bodily injury or damage to health also by the legal representatives, due to acceptance of a guarantee of quality or durability, or in the event of a breach of essential obligations. In case of negligence on our part, our liability shall be limited to foreseeable losses that are typical of the contract. Under no circumstances will we accept claims above and beyond our statutory liability. Liability from an acceptance of procurement risk shall only apply if we have explicitly accepted the procurement risk on the basis of a written agreement. This regulation does not entail any changes to the burden of proof.
7. If our liability is excluded or restricted, this shall also apply to personal liability of our staff, employees, co-workers and representatives.
8. The limitation of claims for compensation are based on section 5 item 12, unless this in-volves claims from the Product Liability Law.
9. If the Buyer unjustly complains for reasons for which we are not responsible that there is a defect for which we are reasonable, we are entitled to charge the Buyer for any rea-sonable expenditure we incur in establishing and/or rectifying the defect.
10. We may charge the Buyer for the additional costs necessary for the purpose of supple-mentary performance, in particular, transport, travelling, labour and material costs, if expenditure is increased by bringing the supplied goods to an address other than the delivery address.
11. Any recourse claims by the Buyer that involve the purchase of second-hand goods (section 478 BGB), which go above and beyond the Buyer’s statutory claims because of an agreement between the Buyer and their buyers are excluded. The Buyer must in-form us promptly about the claims for defects of its buyers promptly to enable us to choose whether to meet the Buyer’s claims in place of the Buyer.
12. Claims for defects shall expire within 12 months, from the date of statutory limitation, un-less this involves a breach of life and limb, or the defect has not been caused by us de-liberately or gross negligently, or we have not maliciously concealed the presence of a defect. The statutory deadlines for the right of recourse pursuant to section 478 BGB, as well as statutory limitation periods longer than 2 years (for example, for defects to build-ings and items used for buildings, section 438(1) no. 2 BGB remain unaffected. These limitation periods shall also apply to consequential losses.
13. In the case of a breach of third-party protected rights, we can choose either to acquire a right of use sufficient for the agreed or required use and transfer it to the Buyer, or modify the supplied goods, such that the protected right is not breached, or exchange the supplied goods, provided the agreed and the required use of the supplied goods is not compromised as a result.
14. The Buyer must check the confirmation of balances, balances of empty containers and other statements to ensure that they are accurate and complete. We should be notified in writing about any complaints relating to these confirmations of balances, balances of empty containers and other statements within ten working days following receipt; the confirmation of balances, balances of empty containers and other statements shall be deemed as accepted after the end of these working days.
Art. 6 Reservation of title, Scope
1. We reserve title to the supplied goods until all payments arising from the business rela-tionship with the Buyer have been made in full. We are entitled to take back and use the supplied goods in the event of conduct by the Buyer that is contrary to the agree-ment, in particular, default in payment.
2. The Buyer is obliged to handle the supplied goods with care and insure them sufficient-ly.
3. The Buyer is entitled to sell on the supplied goods in the normal course of business. They herewith assign to us all receivables in the amount of the invoice amount (including VAT), which shall accrue to them from the onward sale against their purchasers or third parties, and regardless of whether the supplied goods have been sold on without or following processing. We accept this assignment. The Buyer shall retain the right to col-lect these debts even after the assignment. We are, however, entitled to collect the re-ceivables ourselves, if the Buyer fails to meet their payment obligation from the collect-ed proceeds, gets into arrears, or an application is made or has been made to open insolvency proceedings, or payment is suspended. In these cases, we require that the Buyer discloses their assigned receivables and their debtors, supplies all details neces-sary for the collections, hands over the associated documents and notifies the debtors (third parties) about the assignment.
4. The Buyer may not pledge nor give the goods as security to third parties. If such an event occurs despite this, the Buyer has to notify us straight away in writing. The Buyer is liable to us for any court and out-of-court costs of any legal action that may be re-quired pursuant to section 771 (1) Code of Civil Procedure (ZPO) (third-party action).
5. We are also entitled to a right of lien to the receivables to the value of the final invoice sum (including VAT) of our receivables, which the Buyer accrues against its buyers or third parties from the onward sale, and regardless of whether the supplied object has been sold on with or without processing. We can demand that the Buyer discloses the pledged receivables and their debtors, supplies all details necessary for the collection, hands over the associated documents and notifies the debtors (third parties) about the pledge.
6. The Buyer may not modify, process or transform the goods. If the supplied goods are processed or transformed, however, this shall always be carried out for us. If the sup-plied goods are processed together with other items not belonging to us, we shall ac-quire co-ownership of the new item in proportion to the value of the supplied goods to other processed items at the time of processing. The same applies to the item created as a result of processing as for the goods supplied with reservation of title. This same applies if the goods are separably commingled with items that do not belong to us. If commingling takes place in a way that the Buyer’s property is to be seen as the main item, we shall acquire proportional joint ownership.
7. If the supplied goods are located outside Germany, the aforesaid conditions shall ap-ply, provided this is permitted according the jurisdiction in which the supplied item is located. If this law does not allow title to be reserved, but does allow us to reserve oth-er rights to the supplied goods, we are able to exercise all rights of this type. The Buyer is obliged to cooperate with our measures, which we will take to protect our right of ownership or to the right to the supplied goods in its place.
Art. 7 Empty containers
1. The empty containers intended for reuse (in particular, drinks containers, multi-use bot-tles and pallets) shall only be conceded to the Buyer for the intended use and are to be returned to us or to third parties nominated by us as quickly as possible following the supply of the goods in full containers. As far as possible and legally permitted, it shall remain the inalienable right of Lemonaid Beverages GmbH. We are entitled to charge a deposit at the usual amount.
2. Any additional labelling of the drinks containers or bottles shall require our explicit con-sent.
3. Any use of the empty containers that runs counter to the intended use, in particular, misuse or pledging is not permitted and shall give us the right to claim compensation.
4. The same type and quality of empty containers and pallets are to be returned to us in perfect condition. A corresponding credit shall be raised for the deposit for any empty containers that are properly returned to us. We are only obliged to accept back crates and pallets with the bottles and crates that intended and supplied for this purpose.
Art. 8 Place of jurisdiction
Place of jurisdiction for all disputes with the Buyer is Hamburg. However, we are also entitled to bring a case against the Buyer at the court where their registered office is located.
Art. 9 Applicable law, data protection, severability clause
1. These General Terms and Conditions and the legal relationship between the parties are subject to German law to the exclusion of the UN Convention on the Sale of Goods (UNCITRAL/CISG) and should be interpreted in accordance with the laws of Germany. They are completed in German and in English. The German version shall have priority in the event of any deviations between the German and the English version.
2. We hereby notify the Buyer in accordance with section 4a(1) clause 2 Federal Data Pro-tection Act [BDSG] and section 4 (1) Tele-Services Data Protection Law (TDDSG) and the Buyer consents to our inputting, storing, processing and being able to use all their data for anonymized and/or pseudonymized own marketing to third parties and inso-far may pass this on to affiliated third parties and to third parties appointed for contract fulfilment. The Buyer’s aforesaid consent also includes forwarding of data to sector-specific credit agencies as part of payment processing. Consent may be revoked at any time.
3. Should individual provisions of a contract or these General Business Terms be ineffec-tive, this shall not affect the effectiveness of the other provisions.