General Terms and Conditions (Domestic)
General Terms and Conditions of Delivery and Business of Goldsaat Agrartechnik GmbH & Co. KG for domestic transactions
[As of August 2011]
§ 1 Contract Content – Scope of Application
[1] Our general terms and conditions of delivery and business apply exclusively to
a) a natural or legal person or a legally capable partnership that, when concluding the contract, is acting in the exercise of its commercial or independent professional activity (entrepreneur within the meaning of Section 14 of the German Civil Code);
b) legal entities under public law and a special public-law fund.
[2] All our deliveries and services (“Subject Matter of the Contract”) are exclusively governed by these General Terms and Conditions of Delivery and Business. We do not recognize any conflicting or deviating terms and conditions of the Customer; they shall not become part of the contract unless we have expressly agreed to their inclusion in the contract in writing. Our General Terms and Conditions of Delivery and Business shall also apply if we carry out deliveries or services to the Customer without reservation, even with knowledge of conflicting or deviating terms and conditions of the Customer.
[3] These terms and conditions apply regardless of the legal nature of the contract underlying the deliveries and services. They apply equally to sales contracts, contracts for the supply of goods and services, contracts for work and services, and combined contracts.
Our general terms and conditions of delivery and business also apply to all future transactions with the customer, even if they are not expressly agreed upon again.
[4] In addition to these General Terms and Conditions of Delivery and Business, the technical conditions and specifications stipulated in the contract, as well as the documents provided to the customer, to which we expressly refer, shall expressly apply. Individual agreements regarding the rights and obligations of the contracting parties shall take precedence over these terms and conditions.
[5] Our currently valid assembly terms and conditions apply exclusively to the provision of assembly services.
[6] These General Terms and Conditions of Delivery and Business shall also apply to extensions, amendments and supplementary agreements without the need for any express reference to them.
[7] All agreements made between us and the customer for the execution of the contract require written form to be legally binding. Unilateral legal declarations concerning the contractual relationship, in particular notices of termination, require written form to be effective. Written form is satisfied by declaration via fax or email.
§ 2 Offer/Offer documents, conclusion of contract
[1] Our offer is generally non-binding and subject to change unless expressly stated otherwise. Documents included with our offer, such as illustrations, drawings, weight and dimension specifications, are only approximate unless they are expressly designated as binding in the order confirmation.
[2] We reserve all proprietary and copyright rights to illustrations, drawings, weight and dimension specifications, cost estimates, samples, and other documents. This also applies to written documents marked "confidential." They may only be made available to third parties with our express written consent. The documents must be returned to us upon request.
[3] The business secrets of the other party that have become known to the customer and to us may not be disclosed to third parties.
[4] Our written order confirmation shall be decisive for the scope of delivery and performance as well as for the determination of the agreed quality.
[5] We reserve the right to make changes to the delivered item due to design and manufacturing requirements, as well as due to legal regulations, provided that the changes are only minor and reasonable for the customer. We will inform the customer of such changes as early as possible.
[6] Insofar as we have offered certain types, makes, shapes or colours, we are entitled to deviate from these, provided that the deviations are to be regarded as equivalent and the deviation is reasonable for the customer.
[7] If contractual services are promised whose performance depends on official permits, changes may be made to obtain these permits. Any changes to the contract after its conclusion can only be considered if the resulting additional costs are borne by the customer and the customer grants us sufficient time to do so. The customer undertakes to ensure that the necessary official permits and acceptance are obtained; the customer undertakes to obtain them and bears the associated costs and fees. The customer is obligated to support the activities necessary for the production and construction of the work. In particular, the customer shall create all conditions within its sphere of operations that are necessary for the creation of the work.
§ 3 Prices and Payments
[1] Unless otherwise agreed, our prices are ex works, including loading at the factory, but excluding packaging, transport costs and unloading. Value added tax at the statutory rate applicable on the date of invoicing will be added to all prices. The same applies to lump-sum price offers.
[2] We are entitled to adjust the agreed price for our services and deliveries accordingly if, between the conclusion of the contract and delivery or performance, our production costs (in particular material and personnel costs) have increased in an unforeseeable and unavoidable manner (cost increases due to collective bargaining agreements or changes in material prices). This does not apply if a fixed price has been agreed for the duration of the contract.
[3] Our invoices are payable without deduction within eight days of the invoice date.
If a discount agreement has been made in a specific case, the customer is entitled to deduct the discount from the invoice amount if the agreed discount period is observed.
[4] Unless otherwise agreed, one third of the total price is due upon confirmation of the order, another third upon notification of readiness for delivery, and the remainder is due upon commissioning, but no later than 30 days after delivery.
[5] If the customer defaults on a payment, the outstanding amount shall accrue interest at a rate of 8% above the applicable base interest rate pursuant to Section 247 of the German Civil Code (BGB), unless we can demonstrably claim higher damages. Reminder letters will be charged at EUR 10,00 each. We reserve the right to claim further damages for default.
[6] If the purchaser does not pay the agreed price when due, we are entitled to default interest at a rate of 5% per annum (Sections 352, 353 of the German Commercial Code).
[7] If we receive checks from the customer, these are accepted subject to final clearance. Payment is only considered complete once the check has been definitively credited to our account and thus cannot be reversed by the bank. If we accept bills of exchange from the customer after a prior special written agreement, this is also done subject to payment. Our claim is only extinguished upon final payment of the bill of exchange and final crediting of the equivalent value of our claim to our account. All collection and discount charges must be borne separately by the customer.
[8] The customer shall only be entitled to set-off and retention rights insofar as his counterclaims have been legally established, are undisputed or have been acknowledged by us.
[9] If the payment terms are not met, or if circumstances come to our attention after conclusion of the contract that call into question the customer's creditworthiness according to banking standards, such as an application for the opening of insolvency proceedings or a cessation of payments, or circumstances that significantly impair the customer's creditworthiness and jeopardize our claim to the consideration owed, all claims will become due immediately after a reminder has been issued. In this case, we are entitled to execute any outstanding deliveries and services only against advance payment or provision of security, or, after the expiry of a reasonable grace period, to withdraw from the contract and claim damages. Proof of the circumstances relevant to creditworthiness is deemed to have been provided by information from a reputable credit agency or bank.
§ 4 Delivery deadlines, delays in performance
[1] Delivery dates and deadlines are only binding upon express written confirmation. The delivery periods begin when all commercial and technical issues have been clarified and the buyer has fulfilled all obligations incumbent upon him, such as procuring necessary documents, technical specifications, official permits or certificates, approvals, etc., and has made the down payment. If this is not the case, the delivery period shall be extended accordingly.
[2] Adherence to the delivery deadline is subject to correct and timely delivery to us by our suppliers. We will inform the customer of any impending delays as soon as possible.
The delivery period is considered met if, by its expiry, the delivery item has left the factory or has been notified that it is ready for shipment.
[3] If dispatch or acceptance of the delivery or service is delayed for reasons attributable to the customer, the customer will be charged for the costs incurred as a result of the delay. During the period of the customer's default of acceptance, calculated from the date of notification of the goods' readiness for dispatch, we may charge a flat fee of 0,5% of the net value of the stored goods for each week or part thereof to cover the costs of storage, warehousing, etc.
If the buyer fails to accept the goods within 14 days of notification of readiness for shipment, we may set the buyer a reasonable deadline for acceptance, stating that we will withdraw from the contract if the buyer fails to perform the necessary acceptance action by the end of the set deadline. If we withdraw from the contract, we are entitled to demand 15% of the net order value from the buyer as liquidated damages without proof of actual losses incurred. The buyer retains the right to prove that we incurred no loss or depreciation as a result of their default in acceptance, or that the loss or depreciation was significantly lower than the aforementioned liquidated damages.
[4] We shall not be liable for delays in delivery or performance due to force majeure or events that significantly impede or render delivery impossible – including, but not limited to, strikes, lockouts, official orders, and raw material shortages – even if delivery dates and deadlines have been contractually agreed upon. In such cases, the delivery periods shall be extended appropriately by the duration of the disruption/impediment plus a reasonable start-up period. We will inform the customer immediately of the beginning and end of such impediments. In such cases, we reserve the right to withdraw from the contract in whole or in part with respect to the unfulfilled portion.
[5] In the event of a delay in delivery for which we are responsible, the customer may claim demonstrable damages for delay – to the exclusion of any further claims and rights, with the exception of the statutory right of withdrawal – for each full week of delay up to 0,5% of the price of that part of the total delivery which cannot be used in a timely manner or in accordance with the contract as a result of the delay, but not exceeding a total of 5% of the contract price. This limitation of liability does not apply if the delay is due to intentional or grossly negligent conduct on our part or on the part of one of our vicarious agents. If the customer asserts claims for damages in lieu of performance under the conditions of Sections 281 and 325 of the German Civil Code (BGB), our liability is limited to the difference between the contract price and the amount expended by the customer on a cover transaction, taking into account their duty to mitigate damages. The same applies if our obligation becomes impossible to fulfill. These limitations of liability do not apply if the delay or impossibility is caused by gross negligence or willful misconduct on the part of us or one of our agents.
§ 5 Transfer of Risk, Shipping and Insurance
[1] In the case of deliveries, the risk of accidental loss or damage to the goods passes to the buyer as soon as the shipment is handed over to the person carrying out the transport (first carrier) or leaves our factory for dispatch. The provisions of Section 447 of the German Civil Code (BGB) also apply if dispatch is carried out by means of transport or by our company's employees or from a place other than the place of performance, and irrespective of who bears the freight costs.
[2] If the dispatch of the object of the contract or parts thereof is delayed or does not take place as a result of circumstances beyond our control, the risk referred to in paragraph 1 shall pass to the buyer upon notification of the object of the contract being ready for dispatch.
If the purchaser defaults on acceptance or breaches other obligations to cooperate, the risk referred to in paragraph 1 passes to the purchaser at the time when the purchaser defaults on acceptance.
[3] Shipping is at the buyer's expense and risk. Unless we receive written instructions from the buyer, we are entitled to determine the appropriate means and route of transport at our discretion. Packaging costs will be charged at cost. We will take back reusable packaging and transport materials (e.g., Euro pallets) provided they are not damaged or unusable. Otherwise, unless otherwise agreed, we do not accept the return of packaging.
[4] We are not obliged to take out insurance against damages of any kind. If we take out insurance at our own reasonable discretion or at the express request of the customer, the customer shall reimburse the amounts advanced for this purpose.
[5] Partial deliveries and partial services are permitted.
[6] The buyer is obligated to inspect the delivered goods immediately and to notify us in writing of any defects without delay, and at the latest within 8 days of receipt of the goods. The written notification of defects must reach us within the aforementioned period. Any notification received later will be considered late. If a latent defect, which could not be detected upon immediate inspection after receipt of the goods by the buyer, becomes apparent later, the buyer is obligated to notify us of the discovery of the defect without delay. If the buyer fails to notify us of defects within the notification period, the goods will be deemed accepted, with the consequence that the buyer can no longer derive any rights from the alleged defects.
[7] The above provision also applies in the case of incorrect delivery or quantity discrepancies. Furthermore, in the case of a hidden short delivery, the purchaser is obliged to pay the purchase price for the full contract quantity; in the case of an open short delivery, his price liability is reduced to the price of the delivered goods. In the case of over-delivery, the purchaser is obliged, in the absence of timely notification, to accept the delivery in its entirety and to pay according to the contract price units.
§ 6 Retention of title
[1] The delivered goods shall remain our property as reserved goods until full payment of the purchase price and settlement of all claims arising from the business relationship and any claims that may arise in connection with the delivered item.
[2] If the goods subject to retention of title are processed by the customer into a new movable item or combined with another item in such a way that they become an essential component of another item, we shall acquire co-ownership of the other item in proportion to the value of the goods subject to retention of title relative to the other item at the time of processing or combination. If the customer acquires sole ownership through combination, mixing, or commingling, the customer shall transfer co-ownership to us in proportion to the value of the goods subject to retention of title relative to the other item at the time of combination, mixing, or commingling.
[3] If the goods subject to retention of title are resold by the customer in the ordinary course of business, the customer hereby assigns to us all claims against its customers or third parties arising from the resale of the processed and unprocessed goods subject to retention of title, up to the value of the goods subject to retention of title, including all ancillary rights, until our claims have been fully satisfied.
The customer remains authorized to collect these receivables even after assignment. We will not exercise our right to collect the receivables ourselves as long as the customer fulfills their payment obligations to us. If this is not the case, we may demand that the customer disclose the assigned receivables and their debtors to us, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment.
[4] The customer is not entitled to dispose of the goods subject to retention of title in any other way. In particular, the customer is not entitled to pledge the goods subject to retention of title or to transfer them as security. This is only permitted with our prior consent. In the event of a credit sale of the goods subject to retention of title, the customer must safeguard our rights.
The customer is obliged to inform us immediately of any kind of access by third parties to the goods subject to retention of title or to the assigned claims, and to provide us with the information and documents necessary for legal action.
[5] We are entitled to insure the goods subject to reservation of title against theft, breakage, fire, water and other damage at the buyer's expense, unless the buyer has demonstrably taken out the insurance himself at our request.
[6] If the customer sells the goods subject to retention of title or incorporates them into real property, he hereby assigns to us, in advance, all claims arising therefrom up to the value of the goods subject to retention of title, together with all rights, including the right to the granting of a security mortgage with priority over our rights. If the customer is the owner of the real property, the advance assignment covers, to the same extent, the claims arising from the sale of the real property and rights to the real property.
§ 7 Claims for defects
[1] The purchaser can only assert rights relating to defects if and to the extent that he has complied with his obligations to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB) within the prescribed time limit.
[2] If the delivery is defective, we are entitled, at our discretion, to remedy the defect by repair or by delivering a replacement. In the case of repair, we will bear the costs necessary for the purpose of remedying the defect, provided they are reasonable. Replaced parts become our property.
[3] For significant third-party products, our liability is initially limited to the assignment of our liability claims against the supplier of the third-party product. If the claims assigned in this way against our supplier/third party are not enforceable after out-of-court proceedings, we shall be liable in accordance with these terms and conditions.
[4] The customer shall grant us the time and opportunity necessary to carry out all subsequent performance measures that we deem necessary; otherwise, we shall be released from liability for the resulting consequences. If subsequent performance fails after a reasonable period, the customer may, at his option, reduce the purchase price, withdraw from the contract, or claim damages. If only part of the goods delivered is defective, the customer may only withdraw from the entire contract if he has no interest in the remaining part of the delivery.
[5] We provide no warranty for defects resulting from measures or designs expressly requested by the customer or from materials or products supplied by the customer, where we have expressed concerns to the customer. In particular, we assume no liability for unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, improper maintenance, faulty or negligent handling, use of unsuitable operating materials, or other influences beyond our control. We are also not liable for defects or damages caused by improper modifications or repairs carried out by the customer or third parties.
[6] If the subject matter of the contract is used machinery or used machine parts, delivery is made excluding any warranty.
[7] The purchaser may assert claims and rights due to a defect in the delivery only within a period of one year. This does not apply to claims and rights of the purchaser for which the law mandatorily prescribes longer periods pursuant to Section 438 Paragraph 1 No. 2 of the German Civil Code (BGB) for buildings and property (building materials), pursuant to Section 479 Paragraph 1 of the German Civil Code (BGB) for recourse claims, and pursuant to Section 634a Paragraph 1 No. 2 of the German Civil Code (BGB) for buildings and related planning and monitoring services.
§ 8 Limitation
[1] The limitation period for claims relating to defects is one year.
[2] The limitation period for claims relating to defects by the customer begins upon delivery of the contractual item. If we have also commissioned the installation of the contractual item, the limitation period for claims relating to defects begins upon completion of the installation. The completion of the installation will be communicated to the customer in writing.
§ 9 Liability
[1] We are only liable for damages caused by us, one of our legal representatives, or one of our agents through gross negligence or intent, unless a material contractual obligation has been breached. The foregoing limitation of liability applies to both contractual and non-contractual claims. This does not affect liability under the Product Liability Act or liability for slight negligence resulting in injury to life, body, and/or health.
[2] Except in cases of intent and/or gross negligence or breach of a fundamental contractual obligation, liability is limited to the amount of damages typically foreseeable at the time of conclusion of the contract. Liability for slight negligence resulting in injury to life, body and/or health remains unaffected. The amount of liability is limited to the compensation paid by our insurance. The insurance policy provides for the following maximum compensation per claim:
for personal injury and/or property damage up to €5.000.000,00
per individual up to a maximum of €1.500.000,00
The maximum annual amount is agreed to be twice the amounts mentioned.
[3] Liability for lost profits and business interruption/failure is excluded.
§ 10 Assembly and commissioning
[1] If assembly by us is also agreed for the delivered item, our special assembly conditions shall apply.
[2] If the installation is carried out by us, the customer shall be responsible for the electrical installation work as well as the laying of water supply and drainage lines, gas and oil lines. Any necessary masonry, concrete, demolition and plastering work as well as the edging of all delivered parts shall also be carried out by the customer, unless otherwise agreed in the contract.
[3] The customer is obliged to accept the assembly carried out by us as soon as we have notified him of its completion and any contractually stipulated testing of the assembled delivery item has taken place.
[4] The commissioning of the grain processing machinery we manufacture and supply (e.g. grain drying plants, cooling units, pre-cleaners, etc.) including the initial cleaning or rinsing will be carried out using the goods (grain, corn, rice, etc.) provided to us by the customer at his expense.
§ 11 Software Use
[1] If software is included in the delivery, the purchaser is granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the designated delivery item. Use of the software on more than one system is prohibited.
[2] The purchaser may only reproduce, modify, translate, or reverse engineer the software to the extent permitted by law (Sections 69a et seq. of the Copyright Act). The purchaser undertakes not to remove or alter any manufacturer information – in particular copyright notices – without our prior express consent.
[3] All ownership, copyright and other rights to the software, updates and documentation, including copies, remain with us or the software supplier. The granting of sublicenses is not permitted.
§ 12 Place of Performance, Place of Jurisdiction, Applicable Law
[1] The place of performance for deliveries and payments is our company headquarters.
[2] The place of jurisdiction, also for actions relating to checks and bills of exchange, is the court having jurisdiction over our registered office. However, we are entitled to bring an action against the customer at the customer's general place of jurisdiction.
[3] The law of the Federal Republic of Germany shall apply.
§ 13 Miscellaneous
[1] All declarations intended to establish, protect or exercise rights must be in writing.
[2] The Customer is not entitled to transfer his contractual rights to third parties without our prior written consent.
[3] For the purpose of our internal data processing, we collect and store personal and company-related data.
[4] In the event of changes to these General Terms and Conditions of Delivery and Business, the most recent version shall apply. In the context of ongoing contracts, this only applies if the customer has been informed in writing of the most recent version, including information about their right to object, and does not object.
[5] Should individual provisions of these General Terms and Conditions of Delivery and Business be wholly or partially contrary to mandatory law or be void or ineffective for other reasons, the validity of the remaining provisions shall remain unaffected.