GTC

General Terms and Conditions for the Delivery of New and Used Agricultural Machinery, Equipment and Consumer Goods (Terms of Delivery)

I. General information

The following terms of delivery apply to all contracts, deliveries and other services, including all consultancy services that are not the subject of a separate consultancy contract and unless they are amended or excluded with the express written consent of the seller. They apply both to contracts concluded with customers who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) or legal entities under public law or special funds under public law, and to contracts with consumers within the meaning of Section 13 BGB. Farmers who work as their main or secondary occupation and who earn income from their activity are not consumers within the meaning of the law, and the Buyer’s terms and conditions shall not become part of the contract even if the Seller does not object to them again and provides the contractually owed delivery/service without reservation. Agreements deviating from these terms and conditions should be included in the order confirmation.

II. Offer and scope of delivery

1. offers of the seller are always subject to change without notice, the documents belonging to the offer such as illustrations, drawings, weights and dimensions are only approximate unless they are expressly designated as binding. Changes are unreasonable and are no longer to be accepted by the buyer if they exceed the customary extent. Services and operating costs are stated as average values. The Seller reserves the right of ownership and copyright to cost estimates, drawings and other documents; they may not be made accessible to third parties.
2. unless another delivery period is expressly stipulated, the Buyer shall be bound to the order for a maximum of 6 weeks. The purchase contract is concluded when the seller has confirmed acceptance of the order for the specified object of purchase in writing within this period or the delivery has been carried out. However, the seller is obliged to inform the buyer immediately in writing of any rejection of the order.
3. all agreements made between the seller and the buyer must be set out in writing in the respective delivery contract. This also applies to collateral agreements, warranties and subsequent amendments to the contract.
4. we reserve the right to make changes to the design and shape of the delivery item, provided that the delivery item is not significantly changed and the changes are reasonable for the buyer.
5. information in the descriptions provided to the buyer regarding the scope of delivery, appearance, performance, dimensions, weights, consumption of operating materials and operating costs are part of the contract. They serve as a yardstick for determining whether the object of purchase is free of defects.

III. Price and payment

1. in the absence of a special agreement, the prices shall apply ex warehouse of the seller or, in the case of dispatch from the manufacturer’s works, ex works, excluding packaging. Prices are exclusive of value added tax. If delivery is to take place more than 4 months after conclusion of the contract, the Seller shall be entitled to demand negotiations on a new price in the event of price increases by its suppliers or unexpected increases in labour and transport costs. The Seller shall only be bound to the agreed price for the agreed delivery period – but for at least 4 months. The Seller may demand compensation from the Buyer for any additional expenses incurred by the Seller due to the Buyer’s default of acceptance.
2. payments for invoices with the assignment note are to be made with debt-discharging effect exclusively to VR Factoring GmbH, Hauptstraße 131 – 137, 65760 Eschborn, to which we have assigned our present and future claims arising from our business relationship. We have also transferred our reserved property to VR Factoring GmbH.
3. in the absence of a special agreement, payment shall be made upon delivery or provision and receipt of the invoice without any deduction within 12 days free to the seller’s paying agent. This shall not affect the rights of retention to which the Buyer is entitled under § 320 BGB. Promised discounts shall only apply in the event that the Buyer is not in arrears with the payment of earlier deliveries. 4. the seller shall only accept discountable and properly taxed bills of exchange on account of payment if agreed accordingly. Credit notes for bills of exchange and cheques shall be issued subject to receipt less expenses with value date of the day on which the seller can dispose of the equivalent value.
4. offsetting by the customer with counterclaims is excluded unless the counterclaims are disputed or have been recognised by declaratory judgement. The assertion of a right of retention by the customer is excluded unless it is based on the same contractual relationship or the counterclaims are undisputed or have been recognised by declaratory judgement
5. We are authorised to assign the claims arising from our business relationships. The contractual relationship shall be governed exclusively by German law, in particular the German Civil Code and the German Commercial Code. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
6. if the buyer is in arrears with any payment obligations towards us, all existing claims shall become due immediately.

IV. Delivery times and delay

1. delivery periods and dates are only binding if they have been expressly designated as such by the seller. The delivery period begins with the conclusion of the contract, but not before the provision of any documents, authorisations, approvals to be procured by the buyer and not before receipt of an agreed down payment.
2. We reserve the right to correct and timely self-delivery.
3. the delivery period shall be extended appropriately in the event of measures within the framework of lawful industrial disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles which are beyond the control of the seller or his vicarious agents, insofar as such obstacles demonstrably affect the delivery of the item sold.
4. he same applies if the seller is not supplied on time. The seller is entitled to withdraw from the contract if the manufacturer does not supply him. However, this shall not apply if the seller is responsible for the non-delivery (e.g. default of payment).
5. compliance with the delivery period presupposes the fulfilment of the buyer’s contractual obligations.
6. if the buyer suffers damage due to a delay, the seller shall be liable in accordance with the statutory provisions.
7. the Seller shall not be liable for deliveries delayed or omitted (impossibility) due to the fault of his sub-supplier – with the exception of fault in selection or supervision. Sentence 1 shall not apply if the relationship between the Seller and the Buyer is governed by the law on contracts for work and labour. In any case, the Seller shall be obliged to indemnify the Buyer if the latter is unable to fully enforce the claims assigned to it against the supplier.
8. in addition to the statutory period of § 286 para. 3 BGB and the reminder, the seller may also, in deviation from the period according to number III.2, put the buyer in default by another term of payment that can be determined according to the calendar within the meaning of § 286 para. 2 BGB.

V. Transfer of risk and transport

1. 1. in the absence of a special agreement, the route and means of dispatch shall be at the discretion of the seller. The goods shall be insured at the request and expense of the Buyer.
2. 2. if the buyer is an entrepreneur within the meaning of § 14 BGB, a legal entity under public law or a special fund under public law, the risk shall pass to the buyer in the case of sale by dispatch when the goods are handed over to the forwarding agent or carrier, but at the latest when they leave the warehouse or, in the case of direct dispatch ex works, when they leave the factory. This shall also apply if partial deliveries are made or if the seller has assumed further deliveries.
3. 3. if dispatch is delayed due to circumstances for which the buyer is responsible, the risk shall pass to the buyer from the day of the offer of handover. However, the seller is obliged to arrange the insurance requested by the buyer at the buyer’s request and expense.
4. 4. delivered items, even if they have minor defects, are to be accepted by the buyer without prejudice to the rights under Section VII (Notice of defects and liability for defects).
5. 5. partial deliveries are permissible insofar as this is reasonable for the buyer.

VI. Retention of title

1. he seller reserves the right of ownership until all claims arising from the business agreement with the buyer have been paid in full.
2. the buyer is obliged to treat the object of purchase with care, to secure it against interference by third parties and – if this is agreed in writing, if an extended payment term has been granted or if it is a financing purchase – to insure it immediately against fire, theft and water damage at replacement value and to provide evidence of this upon request; otherwise the seller is entitled to insure it himself at the buyer’s expense. The buyer undertakes to assign any claims for compensation to the seller.
3. the buyer may not pledge the object of purchase or assign it as security without the seller’s consent. The buyer is obliged to inform the seller immediately in writing in the event of seizure or other interventions by third parties so that the seller can file a suit in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is not in a position to reimburse the Seller for the court and out-of-court costs of an action pursuant to Section 771 ZPO, the Buyer shall be obliged to compensate the Seller for the costs.
4. The following applies to deliveries of goods:
   The delivered goods shall remain our property until full payment of all outstanding claims to which we are entitled against the customer. The customer is authorised to resell the goods in the ordinary course of business as long as he is not in default of payment. However, the customer may not pledge the reserved goods or assign them by way of security. The customer hereby assigns to us by way of security the customer’s claims for payment against his customers arising from the resale of the goods subject to retention of title as well as those claims of the customer in respect of the goods subject to retention of title which arise for any other legal reason (including against third parties).
   Any processing or remodelling of the reserved goods by the customer shall always be carried out on our behalf. If the reserved goods are processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (invoice amounts incl. VAT) to the other combined or mixed items at the time of combination or mixing.
   If the customer’s item is to be regarded as the main item, the customer shall transfer co-ownership of this item to us on a pro rata basis. We accept the transfer.
   The customer shall hold the resulting sole ownership or co-ownership of an item for us.
5. if a vehicle registration document has been issued for the object of purchase, the seller shall have the sole right to possession of the vehicle registration document for the duration of the retention of title.
6. in the event of breach of contract by the buyer, in particular default of payment, the seller shall be entitled to take back the goods after a reminder and declaration of cancellation and the buyer shall be obliged to surrender them.
7. the buyer shall bear all costs of taking back and realising the object of purchase. The realisation costs amount to 10% of the realisation proceeds including VAT without proof. They are to be set higher or lower if the seller proves higher costs or the buyer proves lower costs. The proceeds shall be credited to the buyer after deduction of the costs and other claims of the seller in connection with the purchase contract.
8. cancellation of the contract is not required to assert the rights arising from retention of title, unless the customer is a consumer.

VII. Notice of defects and liability for defects

1. he seller must inspect the goods received immediately upon arrival for quantity, quality and warranted characteristics. Obvious defects must be reported immediately. If the contract is a commercial transaction for both parties, § 377 HGB shall apply with the proviso that recognisable defects must be reported to the seller in writing within 14 days.
2. all those parts shall be repaired or replaced free of charge, at the discretion of the seller, which prove to be unusable or significantly impaired in their usability as a result of a circumstance occurring after the transfer of risk – in particular due to faulty design, poor materials or poor workmanship. In the case of a consumer transaction, the right to choose lies with the buyer, unless the seller is burdened with costs by the type of subsequent fulfilment chosen by the buyer which would not have arisen with a different choice, provided that this remains without disadvantage for the buyer. Replaced parts shall become the property of the Seller. If the entire purchased item is replaced by way of subsequent fulfilment, the seller shall have a claim against the buyer for unlimited compensation for use for the item taken back. The compensation for use shall be based on the average rental costs for the item that would have been incurred during the period of use.
3. the buyer’s right to assert claims arising from defects shall in all cases expire 12 months from the time of transfer of risk, in the case of a consumer transaction 24 months. In the case of used goods, consumer claims for defects shall become time-barred 12 months after the transfer of risk. In all other cases, the buyer shall only be entitled to claims for defects if this has been expressly agreed with the buyer in writing.
4. no warranty is assumed for damage caused by the following reasons: unsuitable or improper use, faulty assembly or commissioning by the buyer or third parties, neglected maintenance work if this is usual and/or recommended by the manufacturer, normal wear and tear – in particular of wearing parts -, faulty or negligent handling, unsuitable operating materials, replacement materials, defective construction work, unsuitable building ground, chemical, electronic or electrical influences, unless they are attributable to a fault on the part of the seller.
5. in the event of rectification of defects, the buyer must set the seller a reasonable deadline for the necessary work. Only in urgent cases where operational safety is jeopardised and to prevent disproportionately large damage, in which case the Seller must be notified immediately, or if the Seller is in default with the rectification of the defect, shall the Buyer have the right to have the defect rectified by a third party and to demand reimbursement of the necessary costs from the Seller.
6. the limitation period for claims for defects for replacement parts and repairs is 12 months. The period for liability for defects in the delivery item shall be extended by the duration of the interruption of use caused by the repair work.
7. any modifications or repair work carried out improperly by the Buyer or third parties without the Seller’s prior authorisation shall invalidate any liability for the resulting consequences.
8. if a subsequent improvement or replacement delivery to be fulfilled by the seller fails despite several attempts, the buyer may withdraw from the contract (withdrawal) or demand a corresponding reduction in the remuneration (reduction). Taking into account the burden on the Buyer and the complexity of the defect, the Seller shall generally be given two opportunities for subsequent fulfilment within a reasonable period of time.
9. section VIII applies to claims for damages.

VIII. Limitation of liability for damages

1. the seller’s liability shall be governed by the statutory provisions. However, this is excluded – irrespective of the legal grounds – insofar as there is a non-material breach of duty which was neither intentional nor grossly negligent. This does not apply if damage to life, body or health has occurred or if liability insurance cover exists in favour of the seller. In this case, the seller assigns his claim against the insurance company to the buyer.
2. the claims to be asserted by the buyer against the seller shall lapse in accordance with the statutory provisions. However, if the Buyer is an entrepreneur within the meaning of § 14 BGB, a legal entity under public law or a special fund under public law, a preclusion period of 6 months shall apply if the Seller has rejected a claim by the Buyer in writing as unfounded.

IX. Place of fulfilment, place of jurisdiction, applicable law

The place of jurisdiction is, at our discretion, the registered office of the company or Frankfurt am Main

X. Partial ineffectiveness

Bei Unwirksamkeit einzelner Teile bleibt die Geltung der übrigen Bestimmungen erhalten. An Stelle der unwirksamen Klausel soll eine Regelung treten, die dem angestrebten Zweck der ursprünglichen Bestimmung rechtlich und wirtschaftlich am nächsten kommt.