§ 1 General – Scope of Application
1. Our terms of sale apply exclusively; conflicting terms and conditions or terms of the purchaser that deviate from these are not recognised, unless we have expressly agreed to their validity in writing. Our terms of sale also apply if we unconditionally implement delivery to the purchaser in the knowledge of conflicting terms and conditions or terms that deviate from these.
2. All agreements that have been made between us and the purchaser for the purpose of execution of this contract are made in writing in this contract.
3. Our terms of sale only apply with regard to firms or companies as provided for in § 310 Para. 1 BGB
§ 2 Offer and Documents
1. If the order is to be regarded as an offer pursuant to § 145 BGB, then we can accept it within two weeks. We reserve copyright and right of title to illustrations, drawings, calculations and other documents. This applies equally to such written documents as are marked “confidential”. Before passing them on to a third party, the purchaser requires our express permission in writing.
§ 3 Prices and Terms of Payment
1. Provided there is no indication to the contrary in the order confirmation, our prices apply “ex-works”, exclusive of packing and packaging. The latter will be billed separately.
2. The legal rate of value added tax is not included in our prices. It will be shown as a separate item on the invoice calculated at the legal rate on the day invoicing takes place.
3. Discounts require agreement in writing.
4. Provided there is no indication to the contrary in the order confirmation, payment shall be made net upon delivery of machines, and on accessories and replacement parts payment shall be made net immediately, in full. With regard to replacement parts we reserve the right to supply cash on delivery. As a rule, invoices for repairs are to be paid net immediately and in full. Bills of exchange to cover bank and discount charges will only be accepted conditionally and without obligation. If we receive such bill or bills from the purchaser, and should the financial position of one or the other pledgor(s) deteriorate significantly after the contract has been concluded, then we are entitled to demand payment in cash, and in certain cases also security against foreclosure of the bill of exchange, in spite of having accepted said bill of exchange. In the event of delay in payment arising from prolongation of the term of payment, and in the case of calendar terms without a reminder being issued, but otherwise according to the legal provisions, minimum interest of 8% above the base rate shall be applied. The rate of interest shall be set higher if we can furnish proof of a burden with a higher interest. Means of payment in foreign currency shall be credited at the relevant exchange rate or as the bank determines.
5. Any set-off by the purchaser is only admissible if his counter claims are undisputed or recognised by final judgement. He is moreover entitled to exercise right of retention
inasmuch as his counter claim shall be based on equal contractual relationship.
§ 4 Delivery Period
1. The start of the delivery period indicated by us presupposes that all technical issues have been settled.
2. In addition, our meeting our delivery obligations presupposes also that the purchaser properly meets his obligations. We reserve the right to make exception for an unexecuted contract.
3. Should the purchaser delay in accepting goods or be otherwise culpably in breach of other obligations to cooperate, then we are entitled to demand reparation for any damages resulting, inclusive of any additional costs we have had to bear. We reserve the right to make further claims.
4. If the circumstances of Paragraph 3 obtain, the peril of possible loss or possible deterioration of the item is transferred to the purchaser at the moment the latter is guilty of delay in acceptance or payment.
5. We are legally liable if the underlying contract of purchase is a firm deal as provided for by § 286 Para. 2 Nr. 4 BGB or by § 376 HGB. We are also legally liable if, as a result of a delivery delay on our part, the purchaser is entitled to claim that he has no interest in continuing execution of the contract.
6. In addition we are legally liable if the delay in delivery is due to a premeditated or grossly negligent breach of contract on our part. Any breach on the part of our representatives or vicarious agents is to be attributed to us. If the delay in delivery is not due to premeditated breach of contract on our part, then our liability for damages is limited to such as might be foreseen and as would typically occur.
7. We are also legally liable if a delay in delivery on our part is due to a culpable breach of a material contractual duty. In such a case however the liability for damages is
limited to such as might be foreseen and as would typically occur.
8. Otherwise, in the event of delay in delivery, we are liable for a flat-rate compensation for delay of 3% of the delivery value for each completed week , but no more than 50% of the delivery value in toto.
9. Further legal claims and rights of the purchaser are reserved.
§ 5 Shipment and Transfer of Peril
1. Provided there is no indication to the contrary in the order confirmation, delivery is agreed “ex-works”. Peril of loss and of possible deterioration is transferred to the purchaser on handover to the shipper or carrier. The purchaser is also responsible for shipment costs.
2. In line with the law on packaging, shipment packaging and all other packaging will not be taken back, the exception to this being pallets. The purchaser is obliged to take responsibility for disposal of packaging at his own cost.
3. All goods delivered by us are insured for shipment. The premium is to be borne by the purchaser.
§ 6 Liability for Faults or Defects
1. Claims regarding faults or defects on the part of the purchaser presuppose that he has properly met his duties to examine and notify as provided for in § 377 HGB.
2. If the goods is defective, then the purchaser is entitled to remedy in the form of rectification of the defect or delivery of a new non-defective item, as he so chooses. In the event of fault rectification we are obliged to bear all expenses relating to the repair, specifically shipment, route, labour, and material costs, provided these are not increased by the goods having been taken to a place other than the place of execution.
3. If attempts to remedy the matter should fail, then the purchaser is entitled to demand withdrawal or a reduction, as he so chooses.
4. We are legally liable inasmuch as the purchaser can demonstrate claims for damages based on premeditation or gross negligence on our part, including premeditation or gross negligence on the part of our representatives or vicarious agents. If no premeditated breach of contract can be proven against us, our liability for damages is limited to such as might be foreseen and would typically occur.
5. We are legally liable if we have culpably breached a material contractual duty. In such a case, however, the liability for damages is limited to such as might be foreseen and as would typically occur.
6. If the purchaser has a claim to indemnity for damages in place of the service, our liability is also limited as in Paragraph 3 to damages as might be foreseen and as would typically occur.
7. Liability for culpable injury to life, limb or health remains unaffected. This is also the case for strict liability pursuant to the Law on Product Liability.
8. Unless provision has previously been made otherwise, liability is excluded.
9. The statutory period of limitation on claims regarding faults or defects is twelve months (reckoned from transfer of peril).
§ 7 Joint and Several Liability
1. No further liability for damages than that provided for in § 6 shall be countenanced, irrespective of the legal character of the claim made. This applies specifically in the case of claims for damages due to infringement of pre-contractual obligations, or other breach of duty, or tortious claims for indemnity of damages pursuant to § 823 BGB.
2. Inasmuch as liability for damages applying to us is excluded or limited, this also applies with regard to the personal damage liability of our clerks, employees, staff, representatives and vicarious agents.
§ 8 Modifications in Design and Form for Horticultural Machines and Implements
We reserve the right to make modifications in design and form during the delivery period, specifically where these deviate from illustrations, descriptions etc, provided that the item of purchase is not significantly changed, no deterioration or reduction in value results and the modifications are reasonable for the purchaser.
§ 9 Retention of Title
1. We reserve retention of title to the item of purchase until all payments in accordance with the delivery contract have been received. If the purchaser acts contrary to the provisions of the contract, particularly in regard to overdue payment, we are entitled to take pack the item of purchase. Our taking back the item of purchase does not mean withdrawal from the contract, unless we have expressly declared intention to withdraw in writing. Pawning of the item of purchase by us is tantamount to withdrawal from contract. After taking back the item of purchase, we are entitled to dispose of it, and the proceeds from this disposal are to be credited against the liabilities of the purchaser after deduction of appropriate disposal costs.
2. The purchaser is obliged to treat the item of purchase with care. In particular he is obliged to insure it at his own expense against damage arising from fire, water and theft at new replacement value. If maintenance and inspection work is needed, then the purchaser must carry these out at the proper time an at his own expense.
3. In the event of pawning or other interventions of third parties, the purchaser must inform us in writing immediately, so that we may take legal action pursuant to § 771 ZPO. If the third party is not in a position to reimburse us the judicial and extrajudicial costs of such action pursuant to § 771 ZPO, the purchaser shall be liable for the shortfall we have suffered.
4. Every purchaser is entitled to sell on the item of purchase as part of the normal course of business, but he shall surrender to us already now at the outset all his receivables to the amount of the final invoice (inclusive of value added tax) of our receivables, his receivables being those that accrue to him from selling on the item to his customers or third parties, and indeed independently of whether the item of purchase has been sold on without or after being further worked. The purchaser shall however still be empowered to make collection of these receivables even after assignation. Our authority to make collection of the receivables ourselves remains unaffected by the above. We do however engage not to make collection of the receivables as long as the purchaser meets his payment obligations from receipts collected, does not fall into arrears, and in particular no application to institute bankruptcy, compilation or insolvency proceedings has been filed nor has there been default in payment. Should this however be the case, then we can demand that the purchaser via us makes known the receivables assigned and his debtors, gives all details necessary for their collection, submits all documents pertaining to the matter and informs the debtors (third parties) of the assignment.
5. Any work on or modification of the item of purchase by the purchaser is always undertaken by us. If the item of sale is worked along with other items that do not belong to us, then we acquire a part in the title of the new item in relation to the ratio of the value of the item of purchase (final invoice amount inclusive of value added tax) to the other items worked at the time of working. The same applies moreover to the item that has arisen from the reworking as for the item of purchase delivered conditionally.
6. If the item of sale is mixed inseparably with other items that do not belong to us, then we acquire a part in the title of the new item in relation to the ratio of the value of the item of purchase (final invoice amount inclusive of value added tax) to the other items mixed at the time of their becoming mixed. Should the mixing occur in such a way that items of the purchaser are to be seen as the main item, then it is agreed that the purchaser should transfer to us the part in title that is proportionate to us. The purchaser shall hold the single or joint ownership so arising safe in keeping for us.
7. The purchaser shall also assign to us, for security of our receivables, the receivables accruing to him from third parties arising from linkage of the item of purchase with land.
8. We undertake, if so requested by the purchaser, to release the securities we are entitled to, if their realisable value shall exceed the sum of the receivables to be secured by more than 10%. The choice in securities to be released is ours.
§ 10 Collection
Representatives are only entitled to make collections on presentation of power of attorney.
§ 11 Place of Execution and Court of Jurisdiction – Business Liability
1. If the purchaser is a trader, then our place of business shall be the place of jurisdiction. We are however entitled to pursue action against the purchaser at the court of jurisdiction of his domicile.
2. The Law of the German Federal Republic shall apply. Application of the United Nations International Trade Law is excluded.
3. Provided there is no indication to the contrary in the order confirmation, place of execution shall be our place of business.
4. Should individual provisions of these terms and conditions be invalid, then the validity of the remaining provisions as of the contract itself shall not thereby be affected. Should a provision be invalid in part or in whole, then the parties shall immediately endeavour to achieve the commercial success sought by means of the invalid provision in another fashion that is legally permissible.