• 1 Gene­ral
    (1) The fol­lo­wing con­di­ti­ons are agreed for all offers, deli­veries, ser­vices and rela­ted legal tran­sac­tions of Berg­mann GmbH:
    (2) If the con­tract is not con­cluded in wri­ting, the deli­very note is dee­med to be the order con­fir­ma­ti­on. It is decisi­ve for the deter­mi­na­ti­on of the sub­ject mat­ter of the contract.
    (3) If purcha­se con­tracts are con­cluded oral­ly or by tele­pho­ne sub­ject to writ­ten con­fir­ma­ti­on, the con­tent of the con­fir­ma­ti­on let­ter shall be decisi­ve unless the reci­pi­ent objects wit­hout delay. All pri­ce quo­ta­ti­ons are exclu­si­ve of the value added tax appli­ca­ble on the day of delivery.
    (4) If the cus­to­mer is a regis­tered trader, our gene­ral terms and con­di­ti­ons shall app­ly exclu­si­ve­ly, unless the par­ties have agreed otherwise.In the case of fer­ti­li­sers and pesti­ci­des as well as fuels and mine­ral oils, the fac­to­ry terms and conditions.In the case of field seeds, sowing seeds and seed grain, the respec­tively valid terms and con­di­ti­ons of sale and deli­very for reco­g­nis­ed agri­cul­tu­ral seeds.
    (5) Con­tra­dic­to­ry or devia­ting terms and con­di­ti­ons of (sales) buy­ers, sup­pli­ers or con­trac­tu­al part­ners shall only be valid if and inso­far as they are declared to be the basis of the con­tract and/or are con­firm­ed in writing.
  • 2 Deli­very
    (1) Berg­mann GMBH is entit­led to make par­ti­al deli­veries reasonable for the cus­to­mer in case of deli­very dif­fi­cul­ties. If deli­very on call has been agreed, the buy­er has to grant a reasonable peri­od of time for delivery.
    (2) Berg­mann GMBH is entit­led to chan­ge the mixed fodder/fertiliser wit­hout noti­fy­ing the buy­er. Howe­ver, the value-deter­mi­ning ingre­di­ents must be adhe­red to. If a cer­tain per­cen­ta­ge com­po­si­ti­on has been express­ly assu­red, the sel­ler may only chan­ge the com­po­si­ti­on with the pri­or con­sent of the buyer.
    (3) Quan­ti­ties in orders and in deli­very con­tracts shall always be dee­med to be appro­xi­ma­te quan­ti­ties in the case of loo­se goods, unless other­wi­se agreed. Excess or short deli­veries of up to 5 % of the con­tract quan­ti­ties do not entit­le to com­plaints about the contract.
    (4) If the buy­er is in default with the call or the accep­tance, Berg­mann GMBH can, irre­spec­ti­ve of its other legal rights, after pri­or expli­cit announce­ment also store the goods at its own pre­mi­ses or at the pre­mi­ses of a third par­ty at the buyer’s expen­se and risk or, after set­ting a peri­od of grace, rea­li­se the goods in a way it con­siders sui­ta­ble at the buyer’s expense.
  • 3 Pri­ces
    (1) The deli­veries and ser­vices of Berg­mann GMBH are effec­ted, as far as no pri­ces have been agreed, at the mar­ket pri­ce plus the respec­tively valid value added tax. (2) If decisi­ve fac­tors chan­ge within four months after the con­clu­si­on of the con­tract, for exam­p­le increa­ses in trans­port cos­ts, chan­ges in tariffs, ice, high or low water surchar­ges, taxes, public char­ges and duties, the agreed purcha­se pri­ce can be adjus­ted accor­din­gly with proof.
  • 4 Noti­fi­ca­ti­on of defects
    (1) Defects which are easi­ly reco­g­nisable during a dutiful and pro­per inspec­tion and exami­na­ti­on must be noti­fied to Berg­mann GMBH by telex within an exclu­si­on peri­od of two days after deli­very, unless shorter peri­ods are appli­ca­ble. Other­wi­se the buy­er is not entit­led to claims for defects of any kind.
    (2) Exami­na­ti­on results con­cer­ning the intrin­sic value of rejec­ted goods will only be accept­ed by Berg­mann GMBH if the respec­ti­ve exami­na­ti­on is car­ri­ed out by an accre­di­ted exami­na­ti­on and rese­arch insti­tu­te (e.g. LUFA) from a sam­ple which was taken accor­ding to the regu­la­ti­ons of the offi­ci­al sam­pling regulation.
    (3) If a com­plaint is jus­ti­fied, Berg­mann GmbH can deli­ver defect-free goods as a substitute.
    (4) If the repla­ce­ment deli­very is jus­ti­fia­bly objec­ted to, the buy­er has the right to a reduc­tion or can­cel­la­ti­on of the contract.
    (5) In the case of goods other than con­su­ma­ble goods, noti­ces of defects shall only entit­le the buy­er to demand rec­ti­fi­ca­ti­on or repla­ce­ment deli­very. As far as such can­not be achie­ved within a reasonable time, the buy­er has the right to choo­se bet­ween a reduc­tion or a red­hi­bi­to­ry action. (6) Berg­mann GMBH shall only be lia­ble for intent and gross negli­gence; this shall also app­ly to any lia­bi­li­ty for its vica­rious agents and/or legal representatives.
  • 5 Pack­a­ging and dispatch
    (1) The goods shall be packed in a cus­to­ma­ry man­ner at the buyer’s expen­se. The buy­er shall ensu­re imme­dia­te unloa­ding upon deli­very. Deli­ver­ed pal­lets and ren­tal con­tai­ners must be retur­ned in a usable con­di­ti­on, car­ria­ge paid and emp­ty of resi­dues, within one month or their value must be reim­bur­sed. Other pack­a­ging must be sent to a dis­po­sal com­pa­ny, the address of which the agri­cul­tu­ral tra­ding com­pa­ny will pro­vi­de on request.
    (2) In case of car­ria­ge paid deli­very, the ship­ment is at the risk of the buy­er. At the request of the buy­er, Berg­mann GmbH shall take out trans­port insu­rance to the ext­ent reques­ted by the buy­er at the buyer’s expense.
    (3) Los­ses or dama­ges on the rail­way trans­port have to be clai­med by the reci­pi­ent at the rail­way and have to be cer­ti­fied by the rail­way office befo­re taking over the con­sign­ment so that the cla­im for com­pen­sa­ti­on against the rail­way does not expi­re. Dama­ge during rail trans­port does not entit­le Berg­mann GMBH to refu­se acceptance.
  • 6 Pay­ment, cur­rent account and set-off
    (1) Unless other­wi­se agreed, pay­ment shall be made wit­hout any deduc­tion imme­dia­te­ly upon receipt of the invoice. In the case of deli­very on tar­get, the term of pay­ment shall be cal­cu­la­ted from the date of delivery.
    (2) In case of pay­ment by che­que not the receipt of the che­que at Berg­mann GMBH but only its irre­vo­ca­ble encash­ment is con­side­red as payment.
    (3) All mutu­al claims ari­sing from the busi­ness rela­ti­onship are pla­ced in a cur­rent account, for which the pro­vi­si­ons of §§ 355 ff. HGB shall app­ly. The claims resul­ting from the cur­rent account rela­ti­onship shall bear inte­rest at the usu­al bank rate. The account state­ments of Berg­mann GMBH are to be regard­ed as state­ments of account. The balan­ce shall be dee­med to be accept­ed if no objec­tions are rai­sed within one month of receipt of the state­ment of account. Claims ari­sing from the under­ly­ing tran­sac­tion remain unaffected.
    (4) The buy­er may only off­set such coun­ter­claims which are not dis­pu­ted by Berg­mann GMBH or which have been legal­ly established.
  • 7 Refu­sal to pay and default in payment
    (1) In the case of deli­very on tar­get, the purcha­se pri­ce shall beco­me due imme­dia­te­ly if jus­ti­fied doubts about the buyer’s abili­ty to pay beco­me known. The same legal con­se­quence occurs if the buy­er is in default with an amount excee­ding one inst­al­ment in case of agreed inst­al­ment pay­ments or with the pay­ment of ano­ther due claim.
    (2) In case of final refu­sal to pay the purcha­se pri­ce Berg­mann GMBH can refu­se fur­ther deli­veries and ser­vices even wit­hout set­ting a peri­od of grace and wit­hout thre­at of refu­sal and demand com­pen­sa­ti­on for all dama­ges, such as cos­ts and pri­ce differences.

§ 8 Impe­di­ments to performance
(1) If, after the con­clu­si­on of a con­tract, its ful­film­ent is pre­ven­ted by the out­break of war, the impo­si­ti­on of blo­cka­des, the ent­ry into force of export or import bans or mea­su­res of dome­stic and for­eign aut­ho­ri­ties which are to be regard­ed as equi­va­lent to the­se, or by hosti­le orders, epi­de­mics or other cases of force majeu­re, Berg­mann GmbH has the right to decla­re the con­tract affec­ted by this as can­cel­led in its enti­re­ty or for its unful­fil­led part. Berg­mann GMBH has to make a writ­ten decla­ra­ti­on in this respect imme­dia­te­ly after the event in ques­ti­on has beco­me known, at the latest, howe­ver, at the begin­ning of the respec­ti­ve peri­od of fulfilment.
(3) In the case of riots, strikes or strike mea­su­res or work lock­outs and simi­lar events in the coun­try of ori­gin, on the trans­port rou­te or at the place of delivery/shipment/service, fur­ther­mo­re in the case of ice obs­truc­tion or simi­lar, unfo­re­seeable, non-cul­pa­ble and serious cases, the deli­very peri­od shall be exten­ded by the dura­ti­on of the obs­truc­tion. Howe­ver, if such an unfo­re­seeable, non-cul­pa­ble and serious hin­drance exceeds the dura­ti­on of one calen­dar month, Berg­mann GMBH is entit­led to with­draw from the con­tract, unless the buy­er requests an exten­si­on of the deli­very peri­od for the dura­ti­on of ano­ther calen­dar month. After the expiry of this peri­od as well, the con­tract is dee­med to be can­cel­led even wit­hout mutu­al compensation.
(4) The sel­ler shall imme­dia­te­ly inform the buy­er by telex of the exis­tence of an impe­di­ment to per­for­mance accor­ding to para. 1 or para. 3. If a par­ty invo­kes an impe­di­ment to per­for­mance, it must pro­vi­de evi­dence of this wit­hout delay at the request of the other party.

§ 9 Reten­ti­on of title
(1) The goods or docu­ments remain the pro­per­ty of Berg­mann GMBH until all claims of Berg­mann GMBH against the buy­er ari­sing from the busi­ness rela­ti­onship, inclu­ding future claims, have been paid in full. In case of cur­rent account the reten­ti­on of title is con­side­red as secu­ri­ty for the respec­ti­ve balan­ce claim.
(2) The tre­at­ment or pro­ces­sing of the goods remai­ning in the pro­per­ty of Berg­mann GMBH is car­ri­ed out for it as manu­fac­tu­rer and on its behalf wit­hout any lia­bi­li­ties ari­sing from it. Berg­mann GMBH is entit­led to the owner­ship of the new object crea­ted by pro­ces­sing or working, regard­less of the time and degree of pro­ces­sing or working. In case of pro­ces­sing with other goods not belon­ging to the buy­er, Berg­mann GMBH is entit­led to the co-owner­ship of the new object in pro­por­ti­on of the value of the goods sub­ject to reten­ti­on of title to the other pro­ces­sed goods at the time of pro­ces­sing. In case the buy­er acqui­res the (co-)ownership of the goods sub­ject to reten­ti­on of title of Berg­mann GMBH by pro­ces­sing or tre­at­ment not­wi­th­stan­ding the abo­ve regu­la­ti­on, he trans­fers the (co-)ownership of the goods for the time of his acqui­si­ti­on to Berg­mann GMBH with the con­clu­si­on of the con­tract and keeps the goods for Berg­mann GMBH. The buy­er her­eby assigns to Berg­mann GMBH any claims for resti­tu­ti­on against third par­ties. The goods are con­side­red as goods sub­ject to reten­ti­on of title in the sen­se of the­se provisions.
(3) In case the goods deli­ver­ed by Berg­mann GMBH are mixed or com­bi­ned with other goods, the buy­er here­wi­th assigns to Berg­mann GMBH his rights of owner­ship or co-owner­ship of the mixed stock or the new goods and then keeps them for Berg­mann GMBH. Any claims for resti­tu­ti­on against third par­ties are her­eby assi­gned to Berg­mann GMBH.
(4) The buy­er is aut­ho­ri­sed to resell the goods that are (co-)owned by Berg­mann GMBH in the ordi­na­ry cour­se of busi­ness against cash pay­ment or under reser­va­ti­on of title. The pled­ging or trans­fer of owner­ship by way of secu­ri­ty is pro­hi­bi­ted. All claims to which the buy­er is entit­led from the resa­le, regard­less of whe­ther this takes place befo­re or after pro­ces­sing, mixing, etc., inclu­ding all ancil­la­ry rights as well as any claims for com­pen­sa­ti­on against a cre­dit insu­rance, are assi­gned by the buy­er to Berg­mann GmbH upon con­clu­si­on of the con­tract. In the case that the goods are only co-owned by Berg­mann GMBH or are sold by the buy­er tog­e­ther with other goods not belon­ging to Berg­mann GMBH – no mat­ter in which con­di­ti­on – for a total pri­ce, the assign­ment of the cla­im, which has alre­a­dy been exe­cu­ted here­wi­th, is only effec­ted to the amount Berg­mann GMBH has char­ged the buy­er for the respec­ti­ve part of the goods.
(5) Until revo­ca­ti­on the buy­er is aut­ho­ri­sed to coll­ect the claims Berg­mann GMBH is entit­led to which he has acqui­red by the assign­ment. With revo­ca­ti­on this right – also in case of insol­ven­cy – is trans­fer­red to Berg­mann GMBH. Fur­ther­mo­re, the buy­er has to grant Berg­mann GMBH access to the goods at any time as well as to iden­ti­fy the goods as Berg­mann GMBH’s pro­per­ty upon Berg­mann GMBH’s request and to pro­vi­de Berg­mann GMBH with all reques­ted infor­ma­ti­on. In case of default of pay­ment the buy­er has to inform his sub­se­quent buy­er about the trans­fer of claims on demand of Berg­mann GMBH.
(6) In case of access of third par­ties to the goods owned or co-owned by Berg­mann GMBH or to the claims assi­gned to him, the buy­er has to pro­tect his rights and to inform Berg­mann GMBH imme­dia­te­ly in wri­ting about such access.
(7) As long as Berg­mann GMBH has owner­ship of the deli­ver­ed goods, the buy­er has to insu­re them suf­fi­ci­ent­ly against the usu­al risks. The sel­ler her­eby assigns the claims ari­sing from a case of dama­ge, in par­ti­cu­lar against the insu­rance com­pa­ny, to Berg­mann GMBH to secu­re its claims up to the amount of its claim.
§ 10 Liens
It is poin­ted out to the buy­er that Berg­mann GMBH is entit­led to a sta­tu­to­ry fruit lien on the fruits acc­ruing in the har­ve­st, also on the fruits not yet remo­ved from the pro­per­ty, accor­ding to the law for secu­ring the sup­p­ly of fer­ti­li­sers and seeds of 19.01.1949 due to all claims ari­sing from the deli­very of fer­ti­li­sers and reco­g­nis­ed seeds or appro­ved com­mer­cial seeds. The buy­er shall con­trac­tual­ly grant the sel­ler of plant pro­tec­tion pro­ducts a lien on the fruits, as far as pos­si­ble to the ext­ent of the sta­tu­to­ry fruit lien.
§ 11 Secu­ri­ty decla­ra­ti­on for Aut­ho­ri­sed Eco­no­mic Ope­ra­tors AEO
You decla­re as a busi­ness part­ner of Berg­mann GmbH that:
(1) goods pro­du­ced, stored, trans­por­ted for Berg­mann GMBH, deli­ver­ed to Berg­mann GMBH or its cus­to­mers or taken over by Berg­mann GMBH or its sup­pli­ers, are pro­du­ced, stored, pro­ces­sed and loa­ded at secu­re pre­mi­ses and at secu­re hand­ling loca­ti­ons and are pro­tec­ted against unaut­ho­ri­sed access during pro­duc­tion, sto­rage, pro­ces­sing, loa­ding and transportation.
(2) the per­son­nel employ­ed for the pro­duc­tion, sto­rage, working or pro­ces­sing, loa­ding, trans­port and taking over of such goods are reliable.
(3) per­sons acting on behalf of the busi­ness part­ners of Berg­mann GMBH have been infor­med by the busi­ness part­ners of Berg­mann GMBH that they also have to take mea­su­res to secu­re the abo­ve men­tio­ned sup­p­ly chain.
§ 12 Place of per­for­mance and jurisdiction
The place of juris­dic­tion is the court respon­si­ble for the regis­tered office of Berg­mann GMBH.
§ 13 Arbi­tra­ti­on Court
(1) All dis­pu­tes ari­sing from the initia­ti­on and con­clu­si­on of tran­sac­tions of Berg­mann GMBH with regis­tered trad­ers can be sett­led by the arbi­tra­ti­on court of a Ger­man com­mo­di­ty exch­an­ge ins­tead of the ordi­na­ry courts of law at the dis­cre­ti­on of Berg­mann GMBH. In case of dis­pu­tes about juris­dic­tion, the court of arbi­tra­ti­on shall be deter­mi­ned accor­ding to the Uni­form Con­di­ti­ons in the Ger­man Grain Trade.
(2)In the case of con­tracts bet­ween agri­cul­tu­ral cus­to­mers and Berg­mann GmbH, the place of juris­dic­tion shall be deter­mi­ned in accordance with § 11. The par­ties are at liber­ty to con­clude an arbi­tra­ti­on agree­ment in a sepa­ra­te docu­ment in accordance with § 1027 ZPO.
§ 14 Inef­fec­ti­ve­ness of a provision
If any pro­vi­si­on is or pro­ves to be inva­lid, the inva­lid pro­vi­si­on shall be repla­ced by a pro­vi­si­on which comes as clo­se as pos­si­ble to the inten­ti­on of the par­ties expres­sed in the inva­lid pro­vi­si­on. The inva­li­di­ty of a pro­vi­si­on shall not affect the legal vali­di­ty of the remai­ning pro­vi­si­ons of the Terms of Deli­very and Payment.