Sales and delivery conditions of EUROPLANT Pflanzenzucht GmbH
1. The following general sales and delivery conditions apply for all offers, deliveries and services and connected transactions of EUROPLANT Pflanzenzucht GmbH(hereinafter "Seller") to companies in the sense of § 14 German Civil Code, persons of public law and public-law special funds (hereinafter "Purchaser"). They shall apply for the entire duration of the business relationship.
2.1 Purchasing contracts on early potatoes/table potatoes in Germany shall be – where not agreed on differently in the following or in the purchasing contract – be subject to the Deutsche Kartoffelgeschäftsbedingungen / Berliner Vereinbarungen as amended at the time the contract is entered into, in connection with the respective applicable trade category ordinance.
2.2 Purchasing contracts on seed potatoes in Germany shall be – where not agreed on differently in the purchasing contract – subject to the Deutsche Kartoffelgeschäftsbed-ingungen / Berliner Vereinbarungen as amended at the time the contract is entered into, the provisions of the seed marketing act and the respective valid seed potato ordinance subsequent to the Orig.-breeder, sales and delivery conditions.
2.3 Import/export of early potatoes/table potatoes and seed potatoes shall be – where not agreed on differently below or in the purchasing contract – subject to the "RUCIP"-terms and conditions, including the inspection and arbitration rules for the European potato trade as amended at the time the contract is entered into.
2.4 On the Purchaser's request, the Seller shall submit to him the Deutsche Kartof-felgeschäftsbedingungen / Berliner Vereinbarungen and the "RUCIP-terms and condi-tions", including inspection and arbitration rules.
3.1 Deviating, contrary or supplementary general terms and conditions of the purchaser are not accepted by the Seller unless such conditions were expressly agreed on by the Seller. This requirement to agreement shall apply in any case, e.g. also where the Seller performs the delivery knowing the general terms and conditions of the purchaser.
3.2 Changes or amendments to these conditions and any oral side agreements of any manner shall only be effective with written confirmation by the Seller. This shall also apply for waiver of this requirement of written form. Any individual agreements made with the Purchaser from case to case shall take precedence over these sales and delivery conditions. A written contract or written confirmation by the Seller shall be decisive for the content of such agreements.
3.3 The content of confirmation letters shall be deemed agreed when the recipient does not object in writing without delay. This shall not apply for recognition of the purchaser's general terms and conditions that were submitted with such letter.
4.1 Purchasing contracts shall only be entered into by written confirmation by Seller or by delivery of the goods designated in the purchasing contract.
4.2 Place of performance for payments shall be the Seller's registered seat. Agents or representatives of Seller shall not have any right to collect invoiced amounts unless this was expressly agreed in writing.
5.1 The purchasing price shall be payable at once after receipt of the goods, without deductions, unless agreed on differently in writing. Objective or credit sale shall only be possible where this was mutually agreed in writing before the goods were issued.
5.2 The Seller shall only be obliged to accept bills of exchange in case of express written agreement.
5.3 Set-off by the Purchaser against claims of the seller shall only be possible in case of undisputed or legally validly determined counterclaims and defect warranty calls from the respective contractual relationship. Execution of any right of retention by the Pur-chaser shall be excluded unless the claim is due to the same contractual relationship.
5.4 The Seller shall have the right to claim interest for amounts due pursuant to § 353 HBG, amounting to 8 percentage points above the respective base interest rate p.a. in case of default of the purchaser regarding compliance with claims, the Seller shall have the right to charge default interest amounting to 10 percentage points above the respective base interest rate p.a.. The Seller shall have the right to claim higher interest for other legal reason and to assert further damages.
5.5 Apart from this, the statutory rights of the Seller in case of delay of the purchaser shall not be affected.
6. The Seller shall have the right to render partial performances unless this is unreasonable for the Purchaser from case to case. This shall in particular not be the case where (i) the partial delivery can be used by the Purchaser in the scope of the contractual purpose, (ii) the delivery of the remaining ordered goods is ensured and (iii) the Purchaser does not incur any considerable added effort or additional costs from this or the Seller agrees to assume such costs.
7.1 The agreed characteristics in the sense of § 434 para. 1 p. 1 German Civil Code shall only be as agreed as characteristics in writing in the purchasing contract. Public state-ments, advertising or marketing of the Seller or its servants shall not be any offered characteristics of the goods in the sense of § 434 para. 1 sentence 3 German Civil Code.
7.2 Claims from defects of the Purchaser shall require that he has met his obligation to examine and complain according to §§ 377, 381 HGB and in particular the primary ob-ligations of the Deutsche Kartoffelgeschäftsbedingungen or "RUCIP" terms and condi-tions. Assertion of damages (including damages instead of performance) shall only be permissible in the scope of numbers 7.3 – 7.7.
7.3 Where the entrepreneur complains about defects in consumables in time pursuant to 7.2, he shall only have a right to reduce the purchasing price. Timely complaint about defects shall authorise the entrepreneur to subsequent performance initially in case of other goods than consumables; where subsequent performance cannot be procured within an appropriate period of time or is impossible due to the goods' characteristics, the entrepreneur may only either choose rescission of the contract or reduce the purchasing price. The provisions of § 478 German Civil Code are not affected.
7.4 The Seller shall only be liable for damages for any legal reason, in particular due to violation of obligations and tort, in case of wilful intent and gross negligence of the Seller, its statutory representatives or servants, unless the claims are due to culpable violation of life, body or health, malice or violation of any essential contractual obligation, i.e. an obligation that is indispensable for reaching the objective of the contract. The Seller shall also be liable to pay damages where it has assumed any war-ranty or is liable under the product liability act.
7.5 The Seller shall not be liable for any public statements of third parties on the characteristics of the goods, in particular advertisements or marking.
7.6 Liability for damages in case of negligent violation of obligations and culpable violation of essential contractual obligations is limited to the foreseeable, typical damage. Liability for culpable violation of life, body or health and liability under the product liability act shall not be affected by this limitation.
7.7 The period of prescription for claims from defects and consequential damage from defects shall be 1 year from passing of the risk. Any other claims shall expire 1 year af-ter the time determined in § 199 para. 1 German Civil Code. Claims shall, however, ex-pire no later than 5 years after creation of the claim. This shall in particular apply for claims from tort or unjustified enrichment. The reduction of the expiration period shall not apply in case of liability for intent and culpable violation of life, body and health.
8.1 Any and all goods delivered by the Seller to the Purchaser shall remain the property of the Seller until complete payment of all claims from the business relationship with the Purchaser (goods subject to retention of title).
8.2 Any processing or finishing of the goods subject to retention of title shall not cause the Purchaser to procure title, because he performs these for the Seller, without any obligations arising from this for the Seller. In processing, combination, mixing or blending of the goods subject to retention of title with any other goods that are not the Seller's property, the Seller shall be due the resulting joint property share in the new object at the ratio of the value of the goods subject to retention of title to the remaining processed goods at the time of processing, combination, mixing or blending. If such (joint) property is not procured for the Seller, and in particular if the Purchaser procures sole title in the new object, the parties agree that the Purchaser grants Seller joint property in the new object at the ratio of the value of the processed, combined, mixed or blended goods subject to retention of title and keeps it free of charge for the Seller. The Purchaser also assigns to the Seller as collateral the claims arising against a third party resulting from combination of the goods subject to retention of title with any property. Joint property in the object resulting from processing shall be subject to the same provisions as the goods delivered under reservation (goods subject to retention of title).
8.3 The Purchaser may sell the goods subject to retention of title only in the scope of proper business. Any claims of the purchaser from further sale of the goods subject to retention of title are assigned to Seller as collateral for all claims the Seller has from the business transaction at the time the contract is entered into. The Purchaser shall have the right to collect these receivables until revocation by the Seller for its own account. The authorisation of the Seller to collect the receivables directly, shall not be affected by this. However, the Seller commits to not collecting the receivables directly while the Purchaser meets his payment and other obligations properly.
8.4 The Seller reserves revocation of the right to further sale of the goods subject to reten-tion of title and the authorisation to collect the receivables assigned to the Seller if the Purchaser enters default of payment, files an application for opening of insolvency proceedings or if there is any other defect of ability to perform. In case of revocation, the Seller may demand that the Purchaser indicates the assigned claims and their debtors, makes any information required for collection, hands over the associated documents and informs the third debtors of the assignment. On the Seller's request, the Purchaser shall issue publicly certified documents on the assignment at his expense.
8.5 If the goods subject to retention of title are seized or otherwise impaired by third parties, the Purchaser shall inform the Seller in writing without delay. Where the third party is unable to reimburse the Seller for the court and extra-judicial costs of a claim pursuant to § 771 ZPO, the Purchaser shall be liable for the loss incurred by the Seller.
8.6 The Purchaser shall treat the goods subject to retention of title with care and insure them appropriately at his cost. In so far, claims from the insurance contract are assigned to the Seller in advance, up to the complete payment of all claims from the business transaction. Purchaser shall inform the Seller without delay in case of damage.
8.7 Seller commits to releasing the collateral due to it on the Purchaser's request where the realisable value of the collateral exceeds the claims to be secured by more than 10 %; Selection of the collateral to be released shall be due to the Seller.
8.8 Where the Purchaser enters default of payment or permits any grace period set by the Seller to lapse, the Seller shall have the right to take back the goods; taking back of the goods shall also be rescission of the contract.
8.9 The Seller shall also have the right to rescission of the purchasing contract without notice where the Purchaser is unable to pay its debts as they fall due or if insolvency proceedings have been opened. Damages claims of the purchaser in this respect shall be excluded.
9. The contractual area shall be Germany. Any export of the object of the purchase without previous express written permission is generally not permissible unless provided for differently by separate contractual agreement between the Seller and Purchaser or mandatory statutory provisions.
10.1 The law of the Federal Republic of Germany shall apply under exclusion of the provi-sions of conflict of laws; application of the UN Convention on the International Sale of Goods (CISG) shall be excluded.
10.2 Regarding the arbitration agreements of the Deutsche Kartoffelgeschäftsbedingungen and "RUCIP" terms and conditions, the Seller has the right of choice to also appeal to the proper courts; place of jurisdiction shall be the court relevant for the Seller's regis-tered seat. This shall not apply where the Purchaser is not a merchant unless there is no place of jurisdiction in Germany. The Seller shall have the right to also raise a claim against the Purchaser at its general place of jurisdiction.