General Terms and Conditions

§ 1 General Provisions, Scope of Application

(1) These General Terms and Conditions (“GTC”) apply to all our business relationships with our customers (hereinafter: “Buyer”). The GTC apply only if the Buyer is an entrepreneur (§ 14 German Civil Code (BGB)), a legal entity under public law, or a special fund under public law (§ 310 (1) BGB).

(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter: “Goods”). The GTC, in their respective current version, also apply as a framework agreement to future contracts with the same Buyer, without us having to refer to them again in each individual case.

(3) Our GTC apply exclusively. Any reference by the Buyer to its own terms and conditions is hereby objected to. Deviating, conflicting, or supplementary terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent applies in any case, for example even if we carry out delivery to the Buyer without reservation while being aware of the Buyer’s terms and conditions.

(4) Individual agreements made with the Buyer in a specific case shall in any event take precedence over these GTC. Our confirmation in text form shall be decisive for the content of such agreements.

(5) Legally relevant declarations and notices which the Buyer must give to us after conclusion of the contract (e.g. setting deadlines, notices of defects, declaration of rescission or reduction) require text form to be effective.

(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions therefore apply, unless they are directly amended or expressly excluded in these GTC.

§ 2 Conclusion of Contract

(1) Our offers are subject to change and non-binding, unless expressly designated as binding. They constitute an invitation to the Buyer to submit an offer to purchase. If we expressly designate an offer as binding, we shall be bound by it for 7 calendar days from receipt by the Buyer, unless a different validity period is agreed in text form.

(2) The Buyer’s order for the Goods constitutes a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 7 days of its receipt by us.

(3) Acceptance shall be made in text form, e.g. by way of an order confirmation.

(4) Unless otherwise agreed, the prices stated in our order confirmation shall apply as fixed prices plus statutory value added tax. This shall be shown separately on the invoice to the extent it is chargeable.

§ 3 Delivery Period and Delay in Delivery

(1) The delivery period is agreed individually or stated by us upon acceptance of the order. Binding delivery dates require express agreement in text form.

(2) If we are unable to meet binding delivery periods for reasons for which we are not responsible (unavailability of performance), we will inform the Buyer thereof without undue delay and at the same time notify the Buyer of the expected new delivery period. If the performance is not available even within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will promptly refund any consideration already provided by the Buyer. Unavailability of performance in this sense shall in particular be deemed to include the failure of our supplier to deliver to us in good time, provided that we have entered into a congruent covering transaction, neither we nor our supplier is at fault, and we are not obligated in the individual case to procure the Goods.

(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any event, however, a reminder (Mahnung) by the Buyer is required. If we are in delay in delivery, the Buyer may demand lump-sum compensation for the delay damage incurred. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. The right to assert further damages as well as the Buyer’s statutory claims in the event of intent, gross negligence, or injury to life, body, or health remain unaffected; the lump sum shall be credited against any further monetary claims. We reserve the right to prove that the Buyer has suffered no damage or only substantially less damage than the above lump sum.

(4) The Buyer’s rights under § 7 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

§ 4 Delivery, Shipment, Passing of Risk, Default of Acceptance

(1) Unless otherwise agreed, we shall deliver the Goods carriage paid to the delivery address specified by the Buyer within Germany. Deliveries abroad and collection from our warehouse shall be subject to separate agreement.

(2) We determine the carrier, shipping route, and packaging. We will take the Buyer’s special requests (express delivery, fixed time window, tail lift) into account where possible, against reimbursement of the proven additional costs.

(3) Delivery generally takes place on business days Monday to Friday between 8:00 a.m. and 5:00 p.m. The Buyer shall ensure that the delivery point is accessible by articulated lorry and that a person authorized to accept delivery is available.

(4) By way of derogation from § 447 BGB, the risk of accidental loss and accidental deterioration of the Goods, in the case of dispatch arranged and paid for by us, shall only pass to the Buyer upon arrival of the Goods at the agreed delivery point. If dispatch takes place at the Buyer’s request and expense to a destination other than the agreed place of destination, or if the Buyer collects the Goods from the warehouse, the risk shall pass to the Buyer upon handover to the carrier or upon the Goods being made available for collection from the warehouse.

(5) The Buyer should have externally recognizable transport damage and shortfalls noted on the transport documents and notify us thereof in text form within three business days – if possible enclosing photographs. We will support the Buyer in asserting claims against the carrier. If such notification is not given, the Buyer’s rights regarding defects under § 7 remain unaffected.

(6) Partial deliveries are permissible insofar as they are reasonable for the Buyer, the remaining delivery is assured, and the Buyer does not incur additional costs as a result.

(7) If the Goods cannot be delivered for reasons for which the Buyer is responsible, we will inform the Buyer without undue delay and agree a replacement date with the Buyer. Storage at the Buyer’s cost and risk shall only take place after the unsuccessful expiry of a grace period set by us of at least five business days. The first ten calendar days of storage are free of charge for the Buyer; thereafter we shall charge a flat fee of 0.25% of the net value of the goods not accepted for each commenced calendar week, up to a maximum total of 5%. The Buyer retains the right to prove that we have suffered no damage or only substantially less damage; we reserve the right to prove higher damage and to assert our statutory claims. The lump sum shall be credited against further monetary claims.

(8) In the cases referred to in paragraph 7, the purchase price shall become due at the commencement of chargeable storage.

(9) Emptied and cleaned plant protection product packaging may be returned by the Buyer via the PAMIRA take- back system at the respective collection points.

§ 5 Prices and Payment Terms

(1) Unless otherwise agreed in the individual case, the prices stated in our order confirmation shall apply plus statutory value added tax; the delivery and shipping terms are governed by § 4.

(2) The costs of any transport insurance additionally requested by the Buyer, as well as the additional costs of special requests under § 4 (2), shall be borne by the Buyer. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.

(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the Goods, unless otherwise agreed. Any change to the payment period requires text form.

(4) Upon expiry of the above payment period, the Buyer shall be in default. During the period of default, the purchase price shall bear interest at a rate of nine percentage points above the base rate (§ 247 BGB). We reserve the right to assert further default damages. Default in payment constitutes a material breach of contractual obligations.

(5) The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed, or arises from the same contractual relationship.

(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer’s inability to pay (e.g. by the filing of a petition for insolvency proceedings), we shall be entitled, in accordance with the statutory provisions, to refuse performance and – if applicable after setting a deadline – to withdraw from the contract (§ 321 BGB).

(7) In the event of justified doubts as to the Buyer’s solvency, we are entitled to revoke payment terms and to make further deliveries conditional upon advance payment.

(8) If the Buyer is in default of payment with respect to any claim, the Seller may declare all other claims against the Buyer due and payable.

§ 6 Retention of Title

(1) We reserve title to the Goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

(2) Goods subject to retention of title may not be pledged to third parties or assigned as security prior to full payment of the secured claims. The Buyer must notify us without undue delay in text form if and to the extent that third parties gain access to goods belonging to us.

(3) In the event of conduct by the Buyer in breach of contract, in particular non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and to demand return of the Goods on the basis of the retention of title and the withdrawal. If the Buyer does not pay the purchase price due, we may only assert these rights if we have first unsuccessfully set the Buyer a reasonable deadline for payment or if setting such a deadline is dispensable under the statutory provisions.

(4) The Buyer is authorized to resell and process the Goods subject to retention of title in the ordinary course of business. In addition, the following shall apply:

(a) The Buyer shall always carry out any processing, mixing, or combination of the reserved Goods on our behalf as manufacturer within the meaning of § 950 BGB, without any liabilities arising for us as a result. If the reserved Goods are processed, combined, or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the invoice value of the reserved Goods to the invoice value or value of the other processed items at the time of processing. If the Buyer’s item is to be regarded as the main item, the Buyer hereby transfers to us pro-rata co-ownership; we accept this transfer. The Buyer shall keep the resulting sole or co- ownership in safe custody for us free of charge.

(b) The Buyer hereby assigns to us as security, in full or in the amount of our co-ownership share pursuant to sub- paragraph (a) above, the claims against third parties arising from the resale of the Goods or product. We accept this assignment. The Buyer’s obligations set out in paragraph 2 also apply in respect of the assigned claims.

(c) The Buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the Buyer meets its payment obligations to us, is not in default of payment, no petition for insolvency proceedings has been filed, and there is no other deficiency in the Buyer’s ability to pay. If, however, this is the case, we may require the Buyer to disclose to us the assigned claims and their debtors, to provide all information necessary for collection, to hand over the related documents, and to notify the debtors (third parties) of the assignment.

(d) If the realizable value of the security exceeds our claims by more than 10%, we will release security of our choice at the Buyer’s request.

(5) The Seller has the right to assign its claims against the Buyer to a third party.

§ 7 Buyer’s Warranty Claims

(1) The Buyer’s rights in the event of defects of quality and title (including incorrect and short delivery) shall be governed by the statutory provisions, unless otherwise specified below. In all cases, the statutory special provisions regarding final delivery of the Goods to a consumer (supplier recourse pursuant to §§ 445a, 445b BGB) remain unaffected.

(2) The agreement reached on the quality of the Goods is in particular the basis of our liability for defects.

(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether or not a defect exists (§ 434 (2) and (3) BGB). However, we assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).

(4) The Buyer’s warranty claims presuppose that it has complied with its statutory obligations to inspect the Goods and give notice of defects (§§ 377, 381 German Commercial Code (HGB)). If a defect becomes apparent upon inspection or later, we must be notified thereof without undue delay in text form. Notification shall be deemed to have been given without undue delay if it is made within five business days of discovery of the defect, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this duty to inspect and give notice, the Buyer must notify us of obvious defects (including incorrect and short delivery) in text form within seven business days of delivery, whereby here too timely dispatch of the notification shall suffice to meet the deadline. If the Buyer fails to carry out the proper inspection and/or notification of defects, our liability for the defect not notified shall be excluded.

(5) If the item delivered is defective, the Buyer shall have the statutory rights. In this regard, we reserve the right to choose, at our discretion, either to remedy the defect or to deliver a defect-free item to the Buyer (subsequent performance). We reserve the right to make two attempts at subsequent performance. If the subsequent performance fails or is unreasonable, the Buyer may, at its discretion, withdraw from the contract or demand a reduction of the purchase price.

(6) If the Buyer does not state which of these rights it chooses, we may set the Buyer a reasonable deadline for this purpose. If the Buyer does not make its choice within this deadline, the right to choose shall pass to us upon expiry of the deadline.

(7) The Buyer must give us the time and opportunity required for the subsequent performance owed, in particular by handing over the goods complained of for inspection purposes. In the case of replacement delivery, the Buyer must return the defective item to us in accordance with the statutory provisions.

(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor, and material costs, if a defect actually exists. However, if a request by the Buyer to remedy a defect turns out to be unjustified, we may demand reimbursement of the costs thereby incurred from the Buyer.

(9) In urgent cases, e.g. where operational safety is jeopardized or to avert disproportionate damage, the Buyer has the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively required for this purpose, such as cover purchases. We must be notified beforehand of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse corresponding subsequent performance under the statutory provisions.

(10) The Buyer’s claims for damages or reimbursement of futile expenses shall only exist in accordance with § 8 and are otherwise excluded. This applies in particular to compensation for indirect damages such as consequential damages resulting from a defect, e.g. lost profit. Claims under the German Product Liability Act (ProdHaftG) remain unaffected by the above limitations.

§ 8 Other Liability

(1) Unless otherwise provided in these GTC, including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

(2) We shall be liable for damages – on whatever legal grounds – in the event of intent and gross negligence. In the case of simple negligence, we shall only be liable

a) for damages arising from injury to life, body, or health,

b) for damages arising from the breach of a material contractual obligation (an obligation whose fulfilment is a prerequisite for the proper performance of the contract in the first place and on whose compliance the contracting party regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable damage typical for this type of contract. In the case of simple negligent breach of non-material contractual obligations, our liability is excluded.

(3) The limitations of liability arising from paragraph 2 do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the Goods. The same applies to claims by the Buyer under the Product Liability Act.

(4) In the case of a breach of duty that does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination for the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.

§ 9 Limitation Period

(1) The general limitation period for claims arising from defects of quality and title is 12 months from the passing of risk.

(2) The above limitation periods of sales law also apply to contractual and non-contractual claims for damages by the Buyer that are based on a defect in the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter limitation period in the individual case. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer’s claims for damages pursuant to § 8.

§ 10 Withdrawal and Termination

(1) We are entitled to withdraw from contracts if facts occur that give reason to fear that the Buyer is not creditworthy. These include, in particular, enforcement measures by a bailiff based on a final and binding title, or the filing of a petition for the opening of insolvency proceedings.

(2) In the cases referred to under (1), we may also carry out the order against advance payment or declare all claims arising from the business relationship immediately due and payable. Security may be demanded for outstanding deliveries.

(3) If unforeseen events such as import and export bans, strikes, war, natural disasters, or the delay in delivery of essential materials or parts occur, the contractual obligations shall be suspended for the duration of such disruptions. Ongoing deadlines shall be interrupted in these cases. If the disruptions exceed a period of four weeks, both parties may withdraw from their contractual obligations.

(4) If, after conclusion of the contract, the marketability of the Goods is wholly or partially withdrawn, suspended, or ceases to exist – in particular through revocation, withdrawal, or suspension of the marketability certificate or the authorization for parallel trade, through revocation, suspension, or expiry of the authorization of the reference product, or through any other official order – we are entitled to withdraw from the contract in whole or in part. We will inform the Buyer of this without undue delay; we will promptly refund any consideration already provided. Further claims by the Buyer are excluded in these cases, insofar as we are not responsible for the circumstance.

§ 11 Special Provisions under Plant Protection Law, Expertise, Traceability

(1) The Buyer warrants that it is authorized to acquire and supply plant protection products and has the necessary expertise pursuant to § 9 of the German Plant Protection Act (PflSchG), or ensures that supply is carried out exclusively by qualified persons and only to qualified purchasers. At our request, the Buyer shall provide evidence of this. Until such evidence is provided, we are entitled to withhold delivery.

(2) Storage, supply, and application of the Goods shall be governed exclusively by the authorization applicable to the respective product, the instructions for use, and the label accompanying the Goods, in each case in the version applicable at the time. General application advice, consulting services, and recommendations are provided by us on a non-binding basis; they do not constitute an agreement on quality or a guarantee.

(3) The Buyer shall retain the batch or lot identification of the Goods delivered and pass it on within the distribution chain. The Buyer shall cooperate without undue delay and free of charge in traceability measures, product recalls, and officially ordered measures, and shall provide us with the necessary information for this purpose.

(4) The Buyer may only resell or transfer the Goods to countries in which a valid authorization or approval exists for the product. The Buyer shall comply with the applicable foreign trade, embargo, and sanctions law provisions of the European Union, the Federal Republic of Germany, and, where applicable, other states. Violations of this entitle us to refuse further deliveries.

(5) If an official sell-off or use-up period has been set for a product, we will point this out at the latest in the order confirmation. The Buyer shall ensure that supply and application take place within these periods.

§ 12 Governing Law and Jurisdiction

(1) These GTC and all legal relationships between us and the Buyer shall be governed by the law of the Federal Republic of Germany, excluding uniform international law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG). The requirements and effects of the retention of title pursuant to § 6 shall be subject to the law of the place where the item is stored, insofar as the choice of law in favor of German law made thereunder is impermissible or ineffective.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the district of the Bonn Regional Court (Landgericht Bonn). However, we are also entitled to bring an action at the Buyer’s general place of jurisdiction.

§ 13 Final Provisions

(1) Should any provision of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by a valid provision that comes closest to the economic purpose pursued by it.

(2) Information on the processing of personal data in connection with the business relationship is provided to the Buyer separately pursuant to Art. 13, 14 GDPR; it is available at agrimotion.eu.