AGRO Holding GmbH
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AGRO Holding GmbH
Senfdamm 21
49152 Bad Essen


Phone: +49 5472 - 94 200
Fax:      +49 5472 - 15 77

info(at)agro-holding.eu

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Sales and Delivery Conditions

I. Conclusion of Contracts

 

  1. These Sales and Delivery Conditions shall govern any and all quotations, offers, contractual relations and deliveries between us and the "Buyer" as far as the latter is an entrepreneur/undertaking, a legal person under public law or a special fund under public law (öffentlich-rechtliches Sondervermögen).
  2. All quotations, offers, contracts, deliveries and performances are exclusively subject to the following terms and conditions. Differing conditions of the Buyer, which are not accepted explicitly in writing are not binding, even if we execute a contract without contradicting such conditions expressly.


II. Placing of an Order and Third Party Rights

  1. Our quotations are non-binding and subject to confirmation. The Buyer shall be bound to any order for five weeks. Conditions and agreements - in particular if and so far as they deviate from these Conditions - shall only be binding upon us in case we have issued a written confirmation.
  2. Our written notices shall be deemed to having been received by the Buyer after the normal transit time of the mail if they have been dispatched to the postal address, fax-number or Email-address of the Buyer known to us last and if we can deliver proof of that fact. This shall not apply to declarations of material importance, in particular declarations of termination, revocations or the granting of periods of grace.
  3. In the course of the business relation with the Buyer, we will store the resulting personal data as far as this is necessary for keeping up the business relation and for the consummation of the contracts.
  4. Cost estimates, designs, drawings and other documents remain in our property. Vis-à-vis the Buyer, the all-inclusive copyright including all rights to documents and information delivered according to the contractual relationship, even if these objects were developed by specification or co-operation of the Buyer, exclusively belong to us. These objects may only be passed on to a third party with our consent. The drawings appertaining to the quotations and other documents are to be returned immediately either on demand or in case that the contract is not concluded. If the copyright of a third party is infringed when goods are manufactured according to drawings, samples or other data provided by the Buyer, the latter shall hold us harmless from any and all claims. We are not obliged to verify the documents mentioned above, in particular with regard to existing industrial property rights of third parties.


III. Conditions of Payment

  1. All invoices are immediately payable without deductions at the date of issuance (maturity). As of the 30est day after maturity we shall charge default interest of 8 percentage points above the current basis interest of the European Central Bank.
  2. Discountable bills of exchanges payment orders and cheques and are accepted only according to special agreement and only on account of payment. Any and all expenses for discount and collection will be charged. Crediting for bills of exchange and cheques will be made only subject to collection and upon the day, on which we can dispose of the value.
  3. The right of the Buyer to choose, which of our claims shall be satisfied by his payments shall be waived in favour of the rules set out by law under § 366 para. 2 BGB (German Civil Code).
  4. In case the Buyer is in arrears with part payments, we have the right to accelerate the maturity of the entire outstanding amount with immediate effect.In case the Buyer is in default of payment obligations, we can terminate the contract and claim damages instead of the performance ("Schadenersatz statt der Leistung") after the fruitless expiry of an appropriate period of grace. In the event of non-performance of the contract by the Buyer, we shall be entitled to demand a lump sum of 25 % of the purchase price as compensation for damages, unless such lump sum exceeds the amount of the damage to be expected in the reasonable course of events. The Buyer shall be entitled to demonstrate however that a damage has not occurred or only occurred to a smaller extent.
  5. The Buyer can only set off his claims against our claims or invoke a right of retention in case his counterclaim is recognised by declaratory judgement or is undisputed, or when the right of retention results out of an contract which is subject to these Sales and Delivery Conditions. Unless provided for differently in sec. 354 a HGB (German Commercial Code), the Buyer is not entitled to transfer his claims to third parties.
  6. If after entering into a contract we recognise, that our claim for payment is endangered due to the insufficient capacity of performance of the Buyer, we have the right to refuse performance unless the Buyer issues a suitable security within an appropriate term upon our demand.
  7. Should the Buyer not adhere or not adhere in time to our demands, we have the right to terminate the contract and claim damages instead of the performance.
  8. In case of the Buyer's default of payment, which is the result of a major deterioration in the Buyer's financial position, we have the right to terminate the contract without granting a period of grace and claim damages instead of the performance.


IV. Retention of Title

  1. We retain the title in the delivered goods until complete satisfaction of any and all claims arising from the business relation with the Buyer, including future claims arising from contracts entered into with the Buyer simultaneously or in the future. This retention of title shall remain in existence even if some of our claims are added to a running account with regard to which the balance is struck and accepted by us. The Buyer has the right to dispose of the goods in the ordinary course of business, as long as he fulfils his obligations arising out of his business relation with us in due time. However, he may neither pledge the goods the title in which has been retained nor transfer them by way of security. He is obliged to guarantee our rights in case the goods, which are subject to the retention of title, are resold on credit.
  2. If the Buyer is in default of payment, we have the right to demand the provisional return of the goods which are subject to the retention of title at the expense of the Buyer, without having to terminate the contract and without fixing a period of grace.
  3. The Buyer always undertakes an eventual handling or processing of the goods in which the title has been retained for us and on our behalf. If these goods are processed or inseparably mixed with other objects in which we have no title, we acquire the title in the new object in the proportion the invoiced value of the goods the title to which has been retained bears to the invoiced value of the other goods used at the time of the combination. If our goods are joined, combined or mixed with other moveable assets to make one single article in a way that they cannot be separated, and if the other part is considered as the main part, the Buyer has the obligation to proportionally transfer the co-ownership to us, insofar as the new article and main part belongs to the Buyer.
  4. The Buyer holds the title of ownership or co-ownership for us. Apart from that, the rules with regard to the goods to which the title has been retained apply also to the goods deriving from the manufacturing, joining or mixing processes.
  5. The Buyer hereby assigns to us for our security all current and future claims and rights arising from the sale of goods with regard to which we hold any property rights. We herewith accept this assignment. With regard to the collection of these claims, the Buyer is considered as our trustee with the explicit obligation to transfer to us any and all proceeds, minus his profit. The Buyer has the right to collect the assigned claims only as long as he complies with his contractual payment obligation vis-à-vis us.
  6. In case of payment arrears, the Buyer shall immediately nominate those purchasers to whom he has sold the goods to which the title has been retained, unless they have already been entirely paid for. The Buyer is to inform us immediately of any and all threatening or already materialized seizures, in particular actions of execution of a third party with regard to the goods to which the title has been retained or with regard to the claims assigned to us or with regard to other securities of us and is to hand over any and all documents necessary for an intervention. This applies also to impairments of other kinds. The costs for the aforesaid are borne by the Buyer.
  7. We assume the obligation upon the Buyer's request to release the securities if and insofar the realisable value of the securities available exceeds the aggregate of the secured debts due by more than 10 % or exceeds their nominal value by more than 50 %; the choice of the securities to be released remains with us.
  8. In case the Buyer has foreseen the shipment of the delivered goods abroad, he is obligated to immediately give notice of this intention to us in writing and, upon our request, to provide a security to us having the closest possible resemblance with and similar effects as the aforementioned retention of title under the laws of the country of destination of the goods.


V. Delivery

  1. Binding delivery dates or terms of delivery have to be agreed upon in writing, provided that the binding character is expressly extended to these dates and terms. The terms of delivery shall begin when the contract is entered into. Decisive for the punctual delivery shall be the time when the goods have been handed over to the carrier or loaded into one of our vehicles or - in such cases, in which the dispatch or the delivery of the goods is delayed due to circumstances within the responsibility of the Buyer - the time of readiness for transport. In case of later changes in the contract due to an initiative of the Buyer which have an influence on the delivery time, the term of delivery is prolonged to an appropriate extent.
  2. We shall not be liable for disturbances in our business operations, especially the absence of managerial personnel due to illness, as well as for strikes, lockouts, lack of workers and employees - also on the part of our furnishers and manufacturing companies - for the lack of dispatching possibilities and difficulties in the acquisition of raw material, for cases of force majeure or for cases of non-delivery by our own furnishers due to any circumstances beyond reasonable control. In such a case, the possible terms of delivery shall be extended according to the duration of the impairment of performance caused by the respective circumstances. The existence of such circumstances and obstacles for which we are not liable is to be proven by us. If the above-named obstacles occur in the course of the Buyer's business operation, which he has to prove, the Buyer shall not be in default of acceptance with regard to his purchasing obligation until the obstacle ceases to exist. We and the Buyer alike are obliged to inform the other party of the beginning and the envisaged and actual end of such obstacles as described above without delay and in writing.
  3. Any and all reminders and notices regarding the setting of periods by the Buyer require written form in order to be valid. Periods of grace have to run for at least fourteen working days. If the fruitless expiry of a time period set by the Buyer shall enable him to withdraw from the contract or to terminate the contract in any other way, the Buyer has to threaten to us in written form these consequences of a fruitless expiry of the set time period simultaneously with the setting of the period. Our extended liability pursuant to Sec. 287 German Civil Code (BGB) shall be excluded.


VI. Dispatch and Passing of Risk, Obligation of Inspection and Notification

  1. If and insofar as no contrary agreement is reached, dispatch is effected ex-works, without our obligation for choosing the cheapest way of forwarding. The goods will be dispatched unpacked or packed against charge and shall not be protected against rust. Goods declared ready for dispatch must be called immediately, otherwise or in case of the dispatch being impossible or delayed for reasons for which the Buyer is responsible, we shall have the right to store the goods at the cost of the Buyer in our own discretion and to charge for these goods as if they had been delivered ex-works.
  2. The risk in the goods passes to the Buyer in the moment the goods are handed over to the carrier or loaded into one of our vehicles. In case the dispatch is delayed upon demand of the Buyer or in case the collection of the goods through the Buyer is delayed by him, the passing of the risk occurs when the notice of readiness for the dispatch or of readiness for collection is given. If any damage occurs during transport, the Buyer is to arrange a statement of facts at the responsible authorities and to inform us without delay.
  3. The delivery is carried out in the delivery units to be found in the order documents unless agreed otherwise. We are entitled to part deliveries and part performance as customary in the trade except in cases in which the part deliveries or part performances are intolerable for the Buyer.
  4. With regard to any and all of our deliveries and performances, the Buyer assumes the obligations of examination for and notification of defects according to section 377 HGB (German Commercial Code), as far as in the following it is not provided for otherwise. Defects which cannot be identified by careful inspection within the aforesaid term shall be notified to us immediately after the Buyer has identified such defects. Eventual notices of defect have to be performed in writing and together with a detailed description of the defect. The defective goods shall be retained in the condition at the time when the defect was identified and shall be made available for our inspection.


VII. Price Quotation

  1. The prices are quoted ex-works plus normal packaging plus sales tax at the rates provided for by law. We are entitled but not obliged to insure the deliveries against loss or damage of the goods during transport in the name of and on the account of the Buyer.
  2. In case of cross-border deliveries, the Buyer shall also assume all the costs and expenses relating to the border crossing, including charges for import and export licenses and custom duty, irrespective of whether they have been paid for in advance by us.
  3. Insofar as prices are not quoted, the prices valid on the day of delivery shall be charged.


VIII. Warranties

  1. We warrant that the goods delivered by us shall have the agreed quality according to the provisions of German Law regarding the sale of goods and according to the subsequent provisions.
  2. In case of proven defects, we will perform our duties according to our choice either by supplying the Buyer with a new product free of defects (substitution delivery) or by eliminating the defect (repair). On our request, in case of a repair of the product, the Buyer has to specify his notification of defects and has to present written reports of defects and other information, which are suitable for an analysis of the defect. In case of a proven defect in title, we will perform a supplementary fulfilment by means of granting the Buyer a legally indisputable possibility of usage of the delivered goods or - according to our choice - on substituted equivalent goods.
  3. If the substitution delivery or the repair according to the previous paragraph remains unsuccessful, the Buyer is entitled to withdraw from the contract or to make a reduction of the purchase price under the condition of having previously set an adequate term in writing, unless according to German Law the setting of such a term is superfluous.
  4. We will reimburse the Buyer for damages and expenses deriving out of a defect according to the limitations as provided for in Sec. IX.
  5. The warranty period for any claims according to para. 1 to 4 shall be 10 years in the case of a defect in title in the form of a third party's right in rem to claim the surrendering of the goods and in the case of malicious non-disclosure of a defect, and 1 year for any other defect of the products. The warranty period shall begin with the delivery of the product.
  6. The Buyer shall notify us of any and all claims asserted by third parties infringing with the Buyer's possibility of usage immediately and exhaustingly in writing. Already now, he authorises us to solely conduct judicial or extrajudicial legal disputes with the third party. If we exercise such right, which is exclusively in our discretion, the Buyer must not recognise the claims of the third party without our consent and we are obliged to ward off the claims on our own expense and to hold the Buyer harmless of any costs and damages deriving of such defence, unless they are based on a conduct of the Buyer which is contrary to his obligations. The provisions of this paragraph remain unaffected from the Statutes of limitations as provided for in para. 5).
  7. Statements on our part regarding the quality of the goods are not to be considered as guarantees with regard to the quality, unless the parties explicitly agree upon such a guarantee. In such case the rights of the Buyer are determined by the content of the guarantee given by us. The Buyer has to assert his rights deriving of the guarantee within two months after a case of guarantee has materialised (term of foreclosure).


IX. Liability

  1. In any case of contractual or non-contractual liability we will make reimbursements for damages or expenses only:
    a.    in case of a wilful conduct to the whole amount; in case of gross negligence or in case of a lack of a quality we have given a guarantee for, only in the amount of the predictable damage, the materialisation of which was to be prevented by the violated contractual obligation or guarantee;
    b.     in other cases: only in case of a violation of an essential contractual obligation which jeopardises the realisation of the purpose of the contract, however limited to the amount of 50.000,-- for each event of damage and to EUR 100.000,-- in total, unless regarding the single case such amount is to be considered inadequately low; in such case the limitation of liability according to lit. a) is applicable;
    c.    to any further extent: if we are covered by insurance with regard to the damages occurred to the extent of the coverage of the insurance and under the suspensory condition of the payment by the insurance company.
    d.    We are free to resort to the objection of contributory negligence of the Buyer. The limitations of liability according to para. 1 are not applicable in case of damages resulting from an injury to life or physical health or resulting from guarantees or from the statutes on product liability ("Produkthaftungsgesetz").
  2. In case of contractual or non contractual liability, claims against us regarding the reimbursement of damages or expenses - with the exclusion of cases of wilful conduct or an injury to life or physical health - must be asserted within one year. The period of limitation starts with the moment provided for under Sec. 199 para. 1 German Civil Code ("BGB"). It expires at the latest with the expiry of the maximum term set by Sec. 199 para. 2 to 4 BGB. The term for limitation of claims deriving out of a defect of the product or of a defect in title (Sec. VIII. para. 5) remains unaffected of the provisions of this paragraph.
  3. The suspension of the Statutes of limitations concerning claims deriving out of or in connection with the contractual relationship between the parties according to sec. 203 BGB (German Civil Code) ceases in the moment of our or the Buyer's refusal to continue negotiating the claim or the circumstances on which the claim is based on. Unless one of the Parties expressly declares in writing that the negotiations have failed, the refusal is deemed to have occurred six months after the dispatch of the last correspondence, the object of which was the claim or the circumstances on which the claim is based on.


X. Place of Performance, Jurisdiction, Applicable Law

  1. The place of performance for all obligations deriving of the contract is the seat of our head office or the seat of our respective branch effecting the delivery or the performance. For all lawsuits, also in respect of a bill of exchange or cheque lawsuit, the courts of the seat of our head office shall have exclusive jurisdiction.
  2. The contract is subject to German Law. The UN-Convention regarding the International Sales of Goods is not applicable.
  3. Our previous sales and delivery conditions are herewith rendered invalid.