- 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.