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] These General Terms and Conditions of Delivery and Business apply exclusively to all our deliveries and services ("Contractual Subject Matter"). We do not recognize any conflicting or deviating terms and conditions of the customer; they will 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 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 underlying contract for the deliveries and services. They apply equally to sales contracts, contracts for work and materials, contracts for 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, expressly apply. Individual agreements regarding the rights and obligations of the contracting parties 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 also apply to contract extensions, amendments and side agreements, without the need for an express reference to them in each case.
[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, and specifications of weight and dimensions, are only approximate unless 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] 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 is decisive for the scope of delivery and service 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 legal regulations, provided that the changes are minor and reasonable for the customer. We will inform the customer of such changes as early as possible.
[6] Insofar as we have offered specific types, makes, shapes or colors, 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 execution depends on official permits, modifications may be made to obtain these permits. Any contract amendments after its conclusion can only be considered if the resulting additional costs are borne by the client and the client grants us sufficient time to do so. The client is obligated to ensure that the necessary official permits and approvals are obtained; they are responsible for obtaining these and bear the associated costs and fees. The client is obligated to support the activities required for the production and construction of the work. In particular, the client shall create all conditions within their sphere of operations that are necessary for the completion 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 (VAT) at the statutory rate applicable on the date of invoicing will be added to all prices. The same applies to fixed-price offers.
[2] We are entitled to adjust the agreed price for our services and deliveries accordingly if our production costs (in particular material and personnel costs) have increased in an unforeseeable and unavoidable manner between the conclusion of the contract and delivery or performance (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 due for payment 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 order confirmation, 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 will accrue interest at 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 €10,00 each. We reserve the right to claim further damages for default.
[6] If the buyer fails to pay the agreed price when due, we are entitled to default interest at a rate of 5% per annum (§§ 352, 353 HGB).
[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, thus eliminating the possibility of a chargeback by the bank. If we accept bills of exchange from the customer after a prior 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 are to be borne separately by the customer.
[8] The customer is only entitled to set-off and retention rights insofar as his counterclaims have been legally established, are undisputed or have been acknowledged by us.
[9] In the event of non-compliance with the payment terms 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 owed consideration, all outstanding 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. Delivery periods begin when all commercial and technical issues have been resolved and the customer has fulfilled all their obligations, such as providing 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 will 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 shipment 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 shipment, 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 storage costs.
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 are not responsible for delays in delivery or performance due to force majeure or events that significantly impede or prevent delivery – 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, delivery deadlines will be extended appropriately by the duration of the disruption/impediment plus a reasonable restart period. We will inform the customer immediately of the beginning and end of such impediments. In the aforementioned 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 the delay – to the exclusion of any further claims and rights, with the exception of the statutory right of withdrawal – up to 0,5% of the price of that part of the total delivery which cannot be used on time 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 the customer would have spent 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, damage, or destruction of the goods passes to the buyer as soon as the shipment is handed over to the carrier (first carrier) or leaves our premises for dispatch. The provisions of Section 447 of the German Civil Code (BGB) also apply if dispatch is carried out by our company's own means of transport or by our employees, or from a location other than the place of performance, and regardless of who bears the freight costs.
[2] If the shipment of the contractual item or parts thereof is delayed or does not occur due to circumstances beyond our control, the risk referred to in paragraph 1 shall pass to the buyer upon notification of the readiness for shipment of the contractual item.
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 obligated to take out insurance against damages of any kind. If we do take out insurance at our own discretion or at the express request of the customer, the customer must reimburse us for 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 report any defects in writing without delay, and no later than 8 days after receipt of the goods. The written notification of defects must reach us within the aforementioned period. Any notification received after this period will be considered late. If a latent defect, which could not be detected upon immediate inspection after receipt of the goods, is discovered later, the buyer is obligated to report the discovery of the defect immediately. If the buyer fails to report defects within the specified time frame, 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 deliveries or quantity discrepancies. Furthermore, in the event of a hidden short delivery, the buyer is obligated to pay the purchase price for the full contract quantity; in the case of an open short delivery, their price liability is reduced to the price of the delivered goods. In the case of over-delivery, the buyer is obligated, in the absence of timely notification of the discrepancy, to accept the delivery in its entirety and pay according to the contract price units.
§ 6 Retention of title
[1] The delivered goods 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 the other item, we 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 transfers 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 his 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 all 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 buyer is not entitled to dispose of the goods subject to retention of title in any other way. In particular, the buyer 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 buyer 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 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 such insurance himself at our request.
[6] If the buyer sells the goods subject to retention of title or incorporates them into real property, the buyer 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 grant a security mortgage with priority over our rights. If the buyer 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 any rights to the real property.
§ 7 Claims for defects
[1] The buyer 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 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 unenforceable after out-of-court efforts, 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 remedial actions that we deem necessary; otherwise, we shall be released from liability for any resulting consequences. If the remedial action fails after a reasonable period, the customer may, at his discretion, reduce the purchase price, withdraw from the contract, or claim damages. If only part of the goods delivery 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 for defects arising 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 of the contract is used machinery or used machine parts, delivery is made excluding any warranty.
[7] Claims and rights arising from a defect in the delivery can only be asserted by the customer within a period of one year. This does not apply to claims and rights of the customer 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 based on defects is one year.
[2] The limitation period for the customer's claims for defects begins upon delivery of the contractual item. If we have also commissioned the installation of the contractual item, the limitation period for claims for defects begins upon completion of the installation. The customer will be notified in writing of the completion of the installation.
§ 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 contract conclusion. 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 apply.
[2] If we perform the installation, the customer is 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 components, are also to 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 machines we manufacture and supply (e.g. grain drying plants, cooling units, pre-cleaners, etc.) including the initial cleaning or rinsing is 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 customer 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 German Copyright Act). The purchaser agrees 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. Sub-licensing 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 responsible for our registered office. However, we are entitled to bring an action against the customer at their general place of jurisdiction.
[3] The law of the Federal Republic of Germany.
§ 13 Miscellaneous
[1] All declarations that serve 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. For existing contracts, this only applies if the customer has been informed in writing of the most recent version, including their right to object, and has not objected.
[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.