General Terms and Conditions of Sale and Supply
of AGLUKON Spezialdünger GmbH & Co. KG
§ 1 Scope of Terms, Exclusion of Conflicting Terms and Conditions
(1) Our General Terms and Conditions of Sale and Delivery (hereinafter re-ferred to as “GTC”) shall apply to all our offers, deliveries and services. The following GTC shall only apply to entrepreneurs according to Section 14 German Civil Code, legal entities under public law or an asset under pub-lic law (hereinafter referred to as “Customer”).
(2) Our GTC shall apply exclusively. We shall not accept different GTC of the Customer unless they have been confirmed by us in writing.
(3) Our GTC shall also apply if we carry out the delivery to the Customer with-out reservation in the knowledge that the Customer's Terms and Conditions conflict with or deviate from our GTC.
(4) Within a permanent business relationship, our GTC shall also apply to all our future offers, deliveries and services relating to the Customer without requiring any further reference or agreement.
§ 2 Conclusion of Contract, Scope of Delivery, Prohibition of Assignment
(1) As a general rule, our offers are free of charge and non-binding, unless agreed upon otherwise in writing. Any deal or agreement requires our writ-ten acceptance of order or our delivery of the goods. The same shall apply to any amendments, changes or side agreements.
(2) Unless expressly agreed otherwise, the conclusion of the contract is sub-ject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent covering transaction is concluded with our supplier. The Custom-er will be informed immediately about the non-availability of the service. Any consideration already provided will be refunded.
(3) All information about our products, in particular pictures, performance crite-ria and any other data contained in our offers and brochures shall be re-garded as approximate average values. Tolerances in quantity, weight, number of pieces and dimensions customary in this line of business are ex-pressly reserved. We reserve the right to make technical changes.
(4) Our written acceptance of order or, in the event of lack of such acceptance of order, our offer shall be authoritative for the scope of delivery and the services to be rendered.
(5) We are entitled to make excess or short deliveries in terms of unit or weight of up to 5 % compared with the order volume, insofar as this is reasonable for the Customer.
(6) Partial deliveries are permissible if this is reasonable for the Customer.
(7) All documents and data, on which our offer is based, such as technical drawings, illustrations, descriptions, weights and sizes, shall only be bind-ing if expressly agreed upon in writing. We reserve the right to make minor changes and modifications to the extent such changes or modifications do not substantially impair the purpose of the contract and the delivery.
(8) All offer documents, plans, drawings, estimates, documents and data – in-cluding in electronic form - remain our property and may neither be retained nor modified nor copied or otherwise reproduced or made available to third parties by the Customer and shall, at our request and at our discretion, ei-ther be handed over to us immediately or deleted. Even if we leave these documents to the Customer, our intellectual property rights remain unaffect-ed hereby. The Customer is not entitled to utilize and transfer sample cop-ies, patterns and models.
(9) The Customer shall not be entitled to assign any claims against us without our prior written consent. The same shall apply to any of the Customer's claims against us in connection with the contractual relationship which have arisen by operation of law.
(10) We reserve the right to make changes to the object of purchase during the delivery period, provided that the object of purchase and its appearance are not fundamentally changed and the contractual purpose of the delivery is not restricted in a way that is unreasonable for the Customer. Within a tolerance of 10% of the total order quantity, production-related excess or short deliv-eries are permissible.
§ 3 Prices, Payments, Partial Payments
(1) Unless otherwise agreed upon, our prices shall apply for delivery "Ex Works" (EXW, Incoterms 2020) and are net prices. Freight, customs, sub-sidiary import charges, packing costs shall be paid additionally by the Cus-tomer, even if these are not explicitly indicated.
(2) The prices are without the statutory value added tax (hereinafter referred to as “VAT”) and VAT may be charged if and to the extent applicable at a time.
(3) Unless agreed upon otherwise in writing, we are entitled to unilaterally raise the prices and/or charges for freight in the event of substantial increases of salaries, prices of raw materials and supplies, energy costs, costs for freight and customs duties or other materials. The same shall apply to con-tracts for the performance of a continuing obligation.
(4) Depending on order progress, we are entitled to demand appropriate partial payments for already performed partial services.
(5) All payments are made in EURO exclusively to us. Any exchange rate risks shall be borne by the Customer.
(6) Unless agreed upon otherwise, our invoices are immediately due for pay-ment without any deduction.
(7) At the latest 30 days after the receipt of the invoice, the Customer shall be deemed in delay of payment unless circumstances exist (e.g. reminder or a shorter payment term or a payment term determinable by calendar) that cause the Customer to be deemed in delay earlier. When the Customer is in delay of payment, the Customer shall pay interest at a rate of annually 9 percentage points above the base interest rate. In case of delay of payment, we additionally reserve the right to charge a lump sum in the amount of € 40,00. Further contractual or statutory rights remain unaffected hereby.
(8) All payments received shall be used first to settle costs, than interest and finally against the oldest claim regardless to any conflicting determinations of the Customer.
(9) Cheques and/or drafts will only be accepted as means of payment after pre-vious agreement in writing. Any costs incurred by us resulting from such a payment shall be borne by the Customer.
(10) The Customer may only offset receivables due to us with counter claims, if such counter claims are undisputed or have been established by a court of law in an unappealable manner.
(11) If payment terms are not complied with or circumstances become known or visible which – according to our reasonable commercial discretion - give reason to doubt the credit worthiness of the Customer including facts which already existed at the time of the conclusion of the contract, but which were not known by us or which we didn't have to be aware of, we are entitled to refuse our performance and to demand advance payments or the provision of adequate securities for outstanding deliveries and to withdraw from the contract after a reasonable grace period to provide such securities have ex-pired; further statutory rights remain unaffected hereby. The Customer shall be liable for all damages incurred by us by the non-fulfilment of the contract.
(12) Upon delay of payment of our Customer, suspension of payment or the opening of an insolvency proceeding with respect to the Customer's assets, all our claims become immediately due for payment. This applies also in the event of agreed terms of credit or if the claim is not yet due for payment for some other reason. Furthermore, this shall apply irrespective of the term of a draft which we have accepted.
§ 4 Delivery Times
(1) The delivery period shall be the period agreed upon between the parties.
(2) The term of delivery agreed upon shall be considered as a term of delivery aimed at, unless agreed explicitly upon otherwise in writing.
(3) The term of delivery agreed upon shall begin at the earliest with the date of conclusion of contract, however, not before complete clarification of all commercial and technical questions. The beginning of the delivery period requires that the Customer provided all necessary documents and approv-als and made any advance payments that may have been agreed upon.
(4) The adherence of the delivery period is subject to the supplier receiving its own deliveries correctly and promptly.
(5) Delivery is made Ex Works, Incoterms 2020. The Customer shall collect the goods immediately after notification that the goods are ready for dispatch.
(6) The term of delivery “Ex Works”, Incoterms 2020, shall be deemed com-plied with if the item to be delivered has been selected and is ready for dis-patch within the agreed period and the Customer has been informed hereof. In the case of a sales shipment (“Versendungskauf”), the term of delivery shall be deemed complied with if the item that has to be delivered has been handed over to a person in charge of the transport prior to expiry of the de-livery period or if the item could not be handed over without our fault.
(7) Cases of force majeure, in particular, but not limited to, riot, strike, war, flood, lockout, fire, epidemics, epidemics, confiscation, boycott, legal or of-ficial orders and restrictions or incorrect or delayed delivery by our suppli-ers and other unforeseeable, unavoidable events coming from outside, which cannot be prevented even by extreme care and which affect us or our suppliers, and which unreasonably complicate or make impossible our de-livery and performance obligations, extend the delivery and performance ob-ligations for the duration of the existence of the cases or events with an ap-propriate restart time, if we cannot fulfil our delivery and performance obli-gation despite reasonable measures.
(8) The extension of the delivery and performance obligations in accordance with subsection (7) above shall also apply if these cases or events occur at a time when we are in default.
(9) If the delivery and service obligations are extended to a reasonable period of time due to such cases or events in accordance with subsection (7) above, each of the two parties shall be entitled to withdraw from the contract after expiry of these extended delivery and service obligations. If the Cus-tomer is interested in partial deliveries, the Customer may also withdraw from the contract in part. If we have already provided partial deliveries and/or partial services, the Customer may only withdraw from the entire contract if the Customer can prove that it has no interest in partial delivery and/or service on our part. Further legal or contractual rights to withdraw from the contract remain unaffected.
(10) If we should be in delay of delivery and after a reasonable grace period de-fined by the Customer has expired unsuccessfully, the Customer shall be entitled to withdraw from the entire contract or, if the Customer is interested in partial performance of the contract, withdraw from such part of the con-tract that is yet unfulfilled. Further claims of any kind - in particular claims for damages based on bad performance or damage caused by delay - are excluded, unless they have been explicitly granted in § 8 below.
(11) We are entitled to deliver before the expiry of the delivery date and to deliv-er in partial deliveries, insofar as this is reasonable for the Customer.
(12) If the Customer is in default of acceptance of the goods or can otherwise be held responsible for a delay in dispatch, we may store the products at the customer's risk and expense and invoice them as delivered Ex Works. We are entitled to charge at least 1.5 % of the value of the goods per month as a storage fee. We expressly reserve the right to assert claims for damages in excess thereof. After the grace period for accepting the delivery set by us has expired, we may withdraw from the contract and demand compensa-tion for damages in lieu of performance. Further rights shall remain unaf-fected. The setting of a grace period is not required if the Customer seri-ously and finally declines acceptance or it is obvious that the Customer is not able to pay the purchase price or to accept the delivery within grace pe-riod. The amount of damages is deemed to be an amount of 20 % of the or-der value. The amount of damage shall be set off against any advance payment made. The parties are free to demonstrate that the actual damage actually incurred was higher or lower than this amount.
§ 5 Passing of Risk, Dispatch, Packaging, Damages in Transit
(1) Unless agreed upon otherwise in writing, the goods shall be delivered “Ex Works”, Incoterms 2020.
(2) Therefore, the risk of accidental loss or accidental deterioration shall pass to the Customer as soon as the Customer is notified of the readiness for dispatch and the delivery item is set aside. This shall also apply if we have provided additional services such as loading, transport or unloading. If the performance is delayed due to reasons caused by the Customer, the risk of accidental loss pass with the notification of provision of the delivery.
(3) If a sales shipment (“Versendungskauf”) is agreed upon, the risk of acci-dental deterioration or accidental loss shall pass to the Customer with the dispatch of the delivery item or the handover to a transport person ex works or place of dispatch at the latest. If the delivery is delayed due to reasons caused by the Customer, the risk shall already pass with the notification of readiness for dispatch. § 5 subsection (2) sentence 3 shall apply according-ly.
(4) If we undertake to transport the deliverables for the Customer, we are enti-tled to choose the manner of packaging and dispatch of the items upon our sole discretion, unless agreed otherwise upon in writing.
(5) Unless otherwise agreed, the Customer is responsible for the conclusion of transport insurance.
(6) If it is agreed upon that we bear the risk of accidental loss or accidental de-terioration, the Customer shall check the dispatched goods immediately up-on arrival of the goods and in presence of the transport person for external transport damages. The Customer shall inform the transport person about externally visible losses or damages of the delivery item upon delivery at the latest under sufficiently clear labelling of the losses or the damages and inform us immediately about this in writing. The Customer shall inform us in writing about losses or damages, which are not visible externally, within 5 calendar days. In addition, the terms of § 438 of the German Commercial Code and the duty to examine and notify according to § 7 subsection (3) shall apply.
§ 6 Retention of Title
(1) We retain the title to all goods delivered by us until complete fulfilment of all claims resulting from the business connection with the Customer including claims resulting from cheques and drafts. If payment is agreed upon with the Customer on the basis of cheque-draft-procedure, the retention of title shall last until the danger of recourse has ceased to exist.
(2) The Customer shall, at any time upon our request and in the event of an in-solvency application, clearly mark the goods subject to retention of title as “property of AGLUKON Spezialdünger GmbH & Co. KG”.
(3) The Customer shall handle the goods subject to retention of title with care; in particular, the Customer shall adequately insure these goods at replace-ment value against damages caused by fire, water and theft. If and to the extent maintenance and inspection services are required, these services shall be effected by the Customer in a timely manner.
(4) Any processing of the delivered goods by the Customer will be done for us as producer according to § 950 German Civil Code. If the delivered item is processed or inseparably connected with other items not belonging to us, we acquire joint ownership of the new goods. The share of the joint owner-ship corresponds to the relation of the invoice value of the delivered item to the invoice values of the other used items. The Customer is authorized to process the delivered item in the ordinary course of business, provided that the aforementioned security interests are preserved.
(5) The Customer is entitled to sell the delivered items in the ordinary course of business provided that the extended retention of title in accordance with subsection (6) is ensured. Any other acts of disposal, in particular transfer, transfer by way of security, pledge or the like, shall not be permitted.
(6) The Customer hereby assigns to us all claims resulting from the resale of the delivered goods to third parties. We hereby accept this assignment. If the good subject to retention of title is jointly owned by us, such assignment shall only relate to the amount of our claims against the Customer.
(7) The Customer is authorized to collect the assigned claims for the account of us in its own name in the ordinary course of business and only revocably. Any revocation may only occur, if the Customer has not correctly fulfilled its duties, in particular its payment duties, if it is insolvent or unable to pay, if it has applied for the opening of an insolvency proceeding or the opening of such proceeding has been refused due to lack of sufficient assets. If the permission to collect has been revoked, the Customer shall notify the debtor of the assignment. Furthermore, we are entitled to disclose the extended re-tention of title to the Customer's client.
(8) The Customer's authorization to dispose of, to process or to collect the as-signed claims shall terminate without express revocation in the event an in-solvency proceeding is opened or the opening is refused due to lack of suf-ficient assets, cessation of payments, a filing for insolvency concerning the Customer's assets by the Customer or a third party or in the event of estab-lishment of inability to pay or over-indebtedness. In these events as well as in the events of subsection 7, we are entitled to withdraw from the contract and to request the return of the good subject to retention of title after re-minder and fruitless expiry of an appropriate additional respite. The Cus-tomer is obliged to release such goods. The proceeds resulting from the collection of the goods subject to retention of title minus the collection costs shall be deducted from the obligations vis-à-vis us.
(9) In the event the Customer's authorization to collect the assigned claims is revoked, the Customer shall immediately disclose to us in writing the name of the assigned claim's debtor and the amount of the claims.
(10) In the event that the securities assigned to us exceed the value of our claims by more than 20 %, we shall at the Customer’s request, release se-curities to an appropriate amount at our own discretion.
(11) The Customer shall immediately inform us in writing about third parties' ac-cess to the goods subject to retention of title, the assigned claims or any other documents and data. Any costs incurred by a legal defense of the goods subject to retention of title including costs vis-à-vis third parties, shall be borne by the Customer.
§ 7 Warranty
(1) Insofar as the contractual relationship between us and the Customer is a purchase or work contract, we shall be liable for defects in material and workmanship and defects of title (“Sach- und Rechtsmängel”) existing at the time of the passing of risk according to the following provisions. In addition, the statutory provisions shall apply.
(2) Any warranty rights are available to the original purchaser only and may not be assigned to a third party without our consent.
(3) Certain characteristics are only considered as warranted if expressly con-firmed in writing. A guarantee shall only be deemed issued if a characteris-tic is expressly denominated as "guaranteed" in writing. Within the scope of the applicability of § 377 HGB the Customer shall immediately give notice in writing of any kind of obvious material defects, deviations in quantity and false deliveries, at the latest within 14 days after delivery, in any case be-fore connection, mixture, processing or installation; otherwise, the goods are considered to be approved despite these defects, unless we, our legal agents or our vicarious agents have acted with fraudulent intent. The Cus-tomer shall immediately give notice in writing of any hidden material de-fects, at the latest within 14 days after their discovery. In addition, Section 377 German Commercial Code shall apply. § 5 subsection (6) shall remain unaffected hereby.
(4) The Customer shall give us the opportunity to jointly assess the notified complaints and to be present at any extraction of material samples.
(5) The limitation period for the Customer’s claims for defects shall be one year, subject to the following provisions of this paragraph (5), calculated from the beginning of the statutory limitation period. Should we have fraudu-lently concealed a defect, the statutory periods shall apply for any claims for damages. The statutory periods shall also apply to the limitation period for any claims for damages by the Customer due to defects if we are charged with intent or gross negligence, or if the claim for damages is based on inju-ry to life, body or health.
(6) Our warranty for defects of quality and defects of title shall be limited to supplementary performance. Within the scope of our supplementary perfor-mance obligation, we are entitled, at our discretion, either to remedy the de-fect (subsequent improvement) or to deliver faultless material (replace-ment). If our supplementary performance is delayed beyond a commensu-rate period of time, or if the supplementary performance is unsuccessful de-spite repeated efforts, the Customer is entitled to reduce the purchase price or to withdraw from the contract. A withdrawal from the contract is excluded if the defect is only of minor nature. Furthermore, in the event of faultless partial deliveries, the Customer may only withdraw from the entire contract if it can evidence that it has no interest in the partial performance. Further claims, in particular claims for reimbursement of expenses and claims for damages, are excluded unless provided for otherwise in § 8. We shall take title to the replaced parts or, as the case may be, they remain our property and they shall be returned to us upon our request.
(7) The Customer shall return the defective good to us for subsequent im-provement or replacement at its own risk, unless a reshipment is not possi-ble because of the kind of delivery. We shall bear the transport, travel, labor and material costs incurred for the purpose of subsequent performance, but only from the place to which the purchased goods were delivered as intend-ed and at most only up to the amount of the value of the delivery item in de-fect-free condition.
(8) The Customer has to give us the necessary time and opportunity for subse-quent improvement or replacement. Only in the event of urgent cases of risk to the plant safety, the protection against unreasonably high damages or delay with the removal of defects, the Customer shall be entitled to cure the defect by itself or by a third party after prior notice and to demand from us restitution of the necessary costs.
(9) However, no warranty claims shall exist if the Customer changes the deliv-ery item or has it changed by third parties without this being necessary due to default on our part with regard to a duty incumbent on us and the fruitless expiry of a grace period set by the Customer or for other substantial rea-sons in order to enable use of the delivery item in accordance with the con-tract. This shall not apply if the Customer proves that the defects in ques-tion were not caused by the changes made to the delivery item by him or the third party.
(10) Claims for recourse according to Sections 478, 479 German Civil Code or according to Sections 445a, 445b German Civil Code are excluded, unless the claim by the Customer was legitimate and only to the statutory extent, except for gestures of goodwill which were not coordinated with us and re-quire the observation of own duties of the person entitled to recourse, in particular the observation of the requirement to make a complaint in respect of a defect immediately on receipt of goods.
(11) In the event of legitimate notices of defects, payments by the Customer may only be withheld in an adequate proportion to the material defects oc-curred. In the event of an unjustified notice of defects, we are entitled to demand from the Customer reimbursement of the expenses resulting there-from.
(12) Claims based on defects are excluded in the event of minor deviations from the agreed or usual characteristics or utility, e.g. minor differences in color, dimension and/or quality or performance features of the products.
(13) The recognition of a material defect requires always the written form.
(14) There shall be no warranty obligation if the intended use of the delivery item by the Customer deviates from the common use, unless agreed upon in writing.
(15) In the following cases, there are no warranty claims: Unsuitable or improper use, faulty negligent handling, chemical, biological and comparable influ-ences that do not correspond to the intended, average standard influences.
Furthermore, no warranty claims shall exist if the Customer modifies the delivery item himself or has it modified by third parties. This shall not apply if the Cus-tomer proves that the defects in question were not caused by the modifications made by it or the third party.
§ 8 Liability
(1) Our liability for damages, out of which legal reasons whatsoever, is limited to
a) our acts of intent or gross negligence including acts of our legal agents and vicarious agents
b) culpable injury of life, body, health
c) culpable material breach of contract
d) if we have intentionally misrepresented the defect by silence or if we have guaranteed the absence of defects
e) to the extent we are liable for personal and material damages with re-spect to privately used items under the German Product Liability Act.
Further claims for damages are excluded.
(2) A contractual obligation shall be material if its fulfilment is a precondition for the proper performance of the contract and on the observance of which the contractual partner generally relies and may rely.
(3) In the event of a slightly negligent breach of essential contractual obliga-tions (excluding intent and gross negligence), however, our liability shall be limited to the reasonably foreseeable damage typical of the contract.
(4) The foreseeable loss typical for this kind of contract shall generally be the amount of the contract value of the particular performance.
§ 9 Intellectual Property Rights and Defects of Title
(1) Unless agreed upon otherwise, we shall only deliver products in the Federal Republic of Germany that are not infringing any intellectual property rights and copyrights of third parties (hereinafter altogether referred to as “Intel-lectual Property Rights”). If a third party asserts any justified claims against the Customer based on the infringement of Intellectual Property Rights, concerning any correctly used deliveries by us, we shall be liable to the Customer subject to the following provisions:
(2) We will at our option and at our expense either obtain a right of use for the corresponding deliveries, change them in such a way that the Intellectual Property Right are not infringed or will exchange them. If none of the above measures is feasible at reasonable conditions, the Customer shall have the statutory rights to withdraw from the contract or to reduce the contract price.
(3) Our obligation to pay damages is governed by § 8.
(4) The aforementioned obligations shall only apply, if the Customer has imme-diately informed us about any such third party claims in writing, did not acknowledge an infringement and has reserved all defensive measures and settlement negotiations to us. If the Customer ceases to use the delivery due to reasons of damage reduction or due to other reasons, the Customer shall inform the third party that the suspension of use does not represent any acknowledgement of an infringement of Intellectual Property Rights.
(5) Any claims of the Customer are excluded if and to the extent the Customer is responsible for the infringement of the Intellectual Property Rights.
(6) Furthermore, any claims of the Customer are excluded insofar as the in-fringement of Intellectual Property Rights is caused by special requirements of the Customer, through any use which was not foreseeable or due to the fact that the delivery is changed by the Customer or used together with products which were not delivered by us.
(7) In case of other defects in title, the provisions of § 7 shall apply accordingly.
(8) Further or other claims of the Customer against us other than those set out in § 9 and in § 7 are excluded.
§ 10 Place of Performance, Place of Jurisdiction, Applicable Law
(1) For all claims arising out of the business relationship between the Customer and us, the place of performance shall be the registered office of our com-pany.
(2) The exclusive place of jurisdiction for all claims resulting from the business relationship including claims from cheques and drafts shall be the place of performance if the Customer is a businessman, a legal entity under public law or an asset under public law. We are also authorized, however, to sue our Customer at its general place of jurisdiction.
(3) All disputes arising from contracts to which these GTC apply and all dis-putes arising from business relationship between us and the Customer shall exclusively be governed by German law excluding the rules of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and international private law.
§ 11 Final Clauses
Should one or another provision of these GTC be or become fully or partly in-valid, the validity of the remaining provisions shall remain unaffected hereby.
AGLUKON Spezialduenger GmbH & Co. KG
Heerdter Landstrasse 199
VAT.-ID-No.: DE 812526567
Please make payments, quoting your customer number and invoice number, to the following accounts:
Kreissparkasse Tübingen, IBAN: DE66 6415 0020 0004 6304 14, BIC: SOLA-DES1TUB
Deutsche Bank AG, Düsseldorf, IBAN: DE89 3007 0010 0680 507100, BIC: DEUTDEDDXXX
Status: August 28, 2020