List & Beisler GmbH General Terms and Conditions of Business
1. Parties to the Contract
(1) The contractual partner is List & Beisler GmbH, Pickhuben 6, 20457 Hamburg (hereinafter: seller). These General Terms and Conditions (terms) apply to all contracts between List & Beisler GmbH and its contractual partners (hereinafter: buyer). Furthermore, the current version of the European Standard Contract for Coffee (E.S.C.C.), which may be reviewed at www.ecf-coffee.org, applies
(2) In the event that these terms conflict with provisions of the sales contract concluded with the buyer and/or the terms of the E.S.C.C., the following order of precedence applies: 1. Provisions of the sales contract based on E.S.C.C., 2. Provisions of these terms.
(3) We hereby object to any conflicting terms and conditions of business and delivery of the buyer. These only become a component of the contract with the seller's express consent.
2. Contract conclusion
(1) By placing an order, the buyer submits a binding offer to the seller to enter into a sales contract to supply raw coffer of the type and quantity specified in the order. The purchase order can be submitted through the seller's web shop, by telephone, in text form or in writing. Orders placed through the webshop enable the buyer to modify and change the order until it is submitted. The seller acknowledges having received the buyer's order by email. The seller will issue a sales confirmation and will send it to the buyer by post or in text form (e.g. by email to the email address specified by the buyer). The sales confirmation is the binding contrat between the parties.
(2) Certified organic coffee is subjected to chemical analysis by the seller on receipt. If this shows that the coffee has lost its organic status, the seller is entitled to withdraw from the sales contract.
3. Retention of title, extended retention of title and assignment of security
(1) The goods delivered by the seller remain the property of the seller until the full purchase price and all receivables associated with the business relationship have been paid.
(2) According to the following provisions, the buyer is entitled to mix, process, roast and sell the goods subject to retention of title within the scope of ordinary business activities.
(3) The buyer stores the goods subject to retention of title for the seller. The buyer must insure them against damage, theft and destruction. The buyer hereby assigns all rights to indemnity to which they are entitled against the insurance companies or other obligated parties arising from the type of damage specified in (1) to the seller in the amount of the seller's receivables. The seller hereby accepts this assignment.
(4) If the goods subject to retention of title are sold within the scope of ordinary business transactions, the buyer hereby assigns their claims from the resale to the seller, who hereby accepts this assignment. The buyer is entitled to seize the assigned receivables. The seller will not seize the receivables so long as the buyer meets their current payment obligations to the seller. The seller is entitled to seize the assigned receivables themselves if the buyer is in arrears of payment to the seller by more than two weeks, the buyer becomes insolvent or insolvency proceedings are opened against the assets of the buyer.
(5) If the buyer is more than two weeks in arrears with payment, stops paying and/or insolvency proceedings are filed against its assets, the buyer is prohibited from reselling and/or processing the goods subject to retention of title. The same applies if the buyer resells to customers which have excluded or restricted the assignment of their claims for payments by contract, thus preventing advance assignment as per t 3 (4) above.
(6) The seller is further entitled to withdraw the authorisation to the buyer collecting assigned receivables if the buyer is more than two weeks in arrears of payment, stops paying and/or insolvency proceedings are filed against the buyer's assets. If the direct debit authorisation becomes void, the buyer is obligated to notify its customers. The buyer further authorises the seller to notify the buyer's customers of this assignment and collect the receivables themselves.
(7) If the value of the securities held by the seller exceeds its claims against the buyer by more than 20%, the seller shall release securities.
(8) By processing the goods subject to retention of title, the buyer's remainder in the purchased goods continues in the altered goods. In this case, the seller is considered the manufacturer pursuant to § 950(1) German Civil Code (BGB). When processing and/or mixing the goods subject to retention of title with objects, in which the seller has no title, the seller gains a co-ownership share in the new object in the amount of the invoice total (§§ 947, 948 German Civil Code).
(9) If the buyer is in default of payment, the buyer shall on request provide the seller with a list of the seller's remaining goods subject to retention of title and the receivables from garnishees based on the resale of goods subject to retention of title within the scope of ordinary business including invoice copies.
(10) If the buyer is in default of payment, the seller may withdraw from the contract instead of charging default interest after setting a deadline to no avail. In this case, the buyer is obligated to return the remaining goods in their possession promptly subject to retention of title to the seller or a third party designated by the seller. In this case, the buyer is prohibited from the sale, pledging or transfer by way of security of the goods subject to retention of title or the assigned receivables.
(11) The buyer shall promptly notify the seller of the attachment of the goods subject to retention of title by providing the attachment order and transfer of garnished claim of the pledgee. In the event of third party seizure of the goods subject to retention of title or assigned receivables, the buyer shall compensate the seller for all damages incurred in connection with discharging the seizure, particularly by means of third party proceedings and the replacement of the security collateral.
4. Billing and payment terms
(1) The seller issues an invoice to the buyer, which may be sent to the buyer by post or in text form (e.g. via email). Payments are due net cash on delivery of goods unless otherwise agreed between the contracting parties.
(2) If the buyer falls into arrears and the sales contract is a mutual commercial transaction, the seller is entitled to charge default interest in the amount of 9 percentage points above the respective base lending rate (§ 353 German Commercial Code). In all other cases, the outstanding amount shall be subject to default interest in the amount of 9 percentage points above the base interest rate. The seller reserves the right to charge a higher interest rate on any other legal ground (§ 288 III German Civil Code).
(3) The buyer is not entitled to withhold or offset the purchase price unless the claim has been established has the force of law or is undisputed. This does not apply to the buyer's counter-claims against the seller arising from the same contractual relationship.
(4) If the seller has legitimate doubts as to the buyer's solvency or credit status, the seller is entitled to withdraw from the sales contract at its discretion. In place of withdrawing from the contract, the seller is entitled to make further fulfilment of its obligations under the sales contract with the buyer dependent on the settlement of all receivables outstanding at the time the legitimate doubts in the buyer's solvency or credit status arose or the provision of appropriate security.
5. Buyer's default of acceptance
(1) If the buyer defaults in acceptance, fails to cooperate or delivery is late because of other circumstances within the control of the buyer, the buyer is obligated to compensate the seller for related damages in the amount of the storage fees, financial costs, insurance costs and other costs in the flat amount of 1.5% per month. All further claims are reserved. The buyer has the right to demonstrate that the seller incurred no damage or less damage than claimed.
(2) If the buyer defaults in acceptance, the risk of accidental loss or accidental deterioration of the goods is transferred to the buyer as of the time of the buyer's default of acceptance.
6. Arbitration agreement
(1) Any quality arbitrage shall be subject to the rules on the "Hamburger Privat-Arbitrage im Kaffee-Einfuhrhandel" (Hamburg Private Arbitration for Coffee Importation).
(2) With the exception of payment claims and claims arising from arrears of payment and default of acceptance, all disputes arising between the seller and the buyer shall be referred to the competence of the Arbitration Board of the Deutsche Kaffeeverband e.V. at the Hamburg Chamber of Commerce under exclusion of the ordinary Courts.
7. Final provisions
(1) If the seller and buyer are merchants within the meaning of § 38 German Civil Process Order, the Court of jurisdiction for all disputes arising from the contractual relationship between the seller and buyer, except for arbitration matters pursuant to Point 6, including tort claims, shall be Hamburg.
(2) German law applies under the exclusion of German international private law and the CISG.
(3) In the event individual provisions of these General Terms and Conditions are or become invalid or infeasible, this does not affect the validity of the remaining provisions of the contract. The invalid or infeasible provision shall, by way of a construction mutatis mutandis of the contract, be replaced by an effective provision closest in law to the business purposes of the invalid or infeasible provision, which the parties would have agreed, had they been aware of the invalidity or infeasibility.
Version: April 2021