Terms and conditions
Gramoflor GmbH & Co. KG Diepholzer Straße 173 49377 Vechta Tel: +49 4441 9997-0 Fax: +49 4441 9997-70 info@gramoflor.de
1. General terms and conditions
1.1 The general terms of sale and delivery of Gramoflor GmbH & Co. KG, 49377 Vechta, (hereinafter referred to as “Seller”) apply exclusively. Conflicting terms and conditions of the Buyer deviating from these conditions of sale and delivery are not recognized, unless the Seller has expressly and in writing agreed to the validity of deviating conditions. These conditions of sale and delivery also apply if the Seller unconditionally carries out the delivery to the Buyer in the knowledge of terms and conditions of the Buyer that conflict with or deviate from the Seller’s terms and conditions.
1.2 The terms of sale and delivery also apply to all future transactions concerning the sale and / or delivery of movable property with the same Buyer without the Seller having to refer to them in each individual case; He will inform the Buyer immediately about changes to his general terms of sale and delivery. By placing an order, but at the latest by accepting the goods, these conditions of sale and delivery are accepted by the Buyer.
1.3 Legally relevant declarations and advertisements which are to be submitted to the Seller by the Buyer after the conclusion of the contract (eg setting of deadlines, notification of defects, declaration of withdrawal and reduction) must be made in writing in order to be valid.
1.4 These terms of sale and delivery apply only to entrepreneurs.
2. Delivery item
2.1 Commercially available goods are delivered. Delivered by (packaging) units and / or by volume in liters in accordance with EN 12580. Gramoflor peat products are produced from peatland according to DIN 11540 and other organic and mineral mixed components. The DIN standards can be inspected at the seller’s company. The structure and nature of the substrate raw materials are subject to natural variations. The weights of peat products vary depending on the mixing components, structure and water content. The Seller endeavors to deliver his products in a consistent quality. However, due to deviations of the goods in structure and humidity compared to sales samples or previous deliveries, complaints can not be raised.
The cultivated substrates and potting soils produced by the Seller are free of human or phytopathogenic microorganisms. But they are though not sterile, but animated microbially.
Microorganisms may be autochthonous or may colonize substrates to varying degrees during storage or plant culture depending on the season or culture conditions. Gramoflor partially adds microbial auxiliaries to the substrates that promote the activation of the substrates.
A quantitative analysis of the retention samples with regard to the colony-forming microbial auxiliaries added can take place exclusively within 2 months after delivery of the substrate to the customer. Beyond this period, an analysis and thus a corresponding follow-up is excluded. The often high content of organic matter is inevitably exposed to microbial decomposition by fungi, bacteria and other organisms. It is an ideal habitat for saprophytic non-plant-damaging microorganisms. Saprophytic nematodes can be present in small numbers. The presence of saprophytic organisms and their consequences, e.g. Fungus, do not constitute a product defect.
2.2 Substrates with depot fertilizer and propagation substrates should be consumed within a few days. Other substrates should not be stored for more than a week. The storage should be cool and dry. Open substrate storage is to be avoided.
3. Offer and order confirmation
3.1Offers by the Seller are always non-binding. This shall also apply if the Seller has provided the buyer catalogs, price lists or documents belonging to the offer – including in electronic form – on which he reserves ownership rights and copyrights. The information, drawings, illustrations and specifications contained in catalogs, price lists or the documents belonging to the offer are approximations customary in the industry and do not constitute a quality agreement. The Seller is entitled to deviate from the descriptions in the offer, provided these deviations are not of a fundamental or substantial nature and the contractual purpose is not restricted.
3.2 An order of the Buyer is considered as accepted only if it is confirmed in writing by the Seller. Likewise, changes and other agreements are only binding if confirmed by the Seller in writing. For the execution of all orders only the written order confirmation or the offer of the Seller is decisive.
3.3 If the order qualifies as an offer in accordance with § 145 BGB, the Seller can accept it within 4 weeks. The contract is concluded at the latest with dispatch of the ordered goods, in case of partial deliveries with dispatch of the first delivery. Lieferung zustande.
4. Rights
On all illustrations, drawings, calculations and other documents the seller reserves ownership and copyright. This applies in particular to written documents that are designated as “confidential”. They may only be made accessible by the buyer to third parties with the prior written consent of the Seller.
5. Term of delivery and delivery delay
5.1 Delivery times and delivery dates are only deemed to be agreed if they are expressly promised in writing upon acceptance. If this is not the case, the delivery period is approximately four weeks from the conclusion of the contract. Since the production of peat and peat products is weather dependent, indicated delivery dates can only be considered as approximate. Partial deliveries are expressly permitted.
5.2 The seller is not bound to the delivery date or the delivery period if the buyer does not meet his obligations (partial payments, furnish required documents, etc.) in time. The Seller reserves itself the right to plead non-performance of the contract.
5.3 Delivery periods begin on the day on which the contract was concluded in writing. In the event of subsequent changes requested by the customer, the Seller is exempted from compliance with the delivery date or the delivery period.
5.4 The delivery deadline is met if the delivery item has left the Seller’s work until expiry.
5.5 Due to delivery delays that are not based on intent or gross negligence of the Seller, the Buyer can not assert any claims. This applies in particular to delivery delays due to force majeure. The agreed delivery date shifts in these cases according to the duration of the delivery obstacle. The Seller will inform the Buyer without delay and at the same time notify the expected new delivery time. If the service is not available within the new delivery period, the Seller is entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer will be reimbursed immediately.
5.6 The occurrence of a delay in delivery by the Seller is determined by the statutory provisions. In any case, however, a reminder from the Buyer is required. If the Seller defaults in delivery, the Buyer may demand the lump-sum compensation of his damage caused by delay. The lump sum for each full calendar week of default amounts to 0.5% of the net price (delivery value), but in total not more than 5% of the delivery value of the delayed delivered goods. The Seller reserves the proof that no or only a significantly lower damage than the above flat rate has arisen for the Buyer.
5.7 The Purchaser’s rights pursuant to clause 11 of these General Conditions of Sale and Delivery and the Seller’s statutory rights, in particular in the event of exclusion of the obligation to perform (for example due to impossibility or unreasonableness of the performance and / or subsequent performance) remain unaffected.
6. Delivery, Transfer of Risk, Acceptance, Default of Acceptance
6.1 Unless otherwise agreed, the delivery shall be carriage paid (Incoterms 2010: “CPT”). In the case of railway deliveries within Germany, delivery is up to the agreed DB station; For rail deliveries abroad, delivery is made to the agreed foreign train station. In the case of truck deliveries, delivery is made to the buyer’s warehouse, unless otherwise agreed.
6.2 Deliveries are made exclusively at the expense and risk of the Buyer, the latter even if carriage paid delivery has been agreed. With the handing over of the goods to the forwarding agent or carrier, at the latest, however, with leaving the factory or warehouse or the dispatch station – even with freight-free delivery -, the risk of accidental loss and accidental deterioration as well as the risk of delay passes to the buyer in any case. The place of performance as well as the place of the supplementary performance are therefore the loading point of the supplier’s supplying plant (for trucks) or the shipping station (for railway deliveries).
6.3 In the case of freight-free railway delivery, the seller delivers non-free. The Buyer is entitled to reduce the invoice by the amount actually charged for the freight, as it is calculated for the delivery weight for freight shipment, without value added tax. Extra freight for express goods will not be reimbursed. For orders without details of quantities or quantity, the wagons or trucks are fully unloaded. If the quantity is too low, the corresponding empty freight will be charged to the Buyer. Likewise, increases in transport tariffs between the order confirmation and the delivery are at the expense of the Buyer. The weights and volumes of the delivered peat products can be decisive for the transport costs. The weights and volumes used on the loading papers are determined by the factory upon departure of the goods. The Seller is not liable for changes in weight and volume resulting from transport. The Buyer also bears the risk of overcharging and the associated consequences. The Seller is not liable for any overloads. A liability of the Seller is excluded in this respect. The Seller points out that a full weighing in the vicinity of the delivery works is possible. Corresponding addresses are available from the supplier.
Any costs or charges of any kind incurred after the consignment has left or at the place of residence of the recipient will not be reimbursed. Bill of lading signatures are to be sent by the Buyer on request of the Seller. When shipping abroad, customs, fees, taxes and other public charges, as well as costs of customs clearance and handling at the border, both in the country of transit and in the country of destination, are only assumed if this has been expressly confirmed in writing by the Seller.
6.4 The transfer is the same if the buyer is in default of acceptance. If the purchaser is in default of acceptance or if he violates other obligations to cooperate or if the delivery is delayed for other reasons for which the purchaser is responsible, the Seller is entitled to demand compensation for any damage incurred, including any additional expenses (for example storage costs). For this, the Seller calculates a lump-sum compensation in the amount of 0.1% of the purchase price per calendar day up to a maximum of 5%, starting with the delivery date or – in the absence of a delivery period – with the notification of the shipment of the goods.
The proof of a higher damage the statutory claims of the Seller (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; the lump sum is however to be counted on further money claims. The Buyer is entitled to proof that the Seller has incurred no or only a significantly lower damage than the above flat rate.
In addition, the Seller is entitled to set a reasonable acceptance period for the Buyer and to withdraw from the contract after their fruitless expiration and to demand damages instead of performance.
7. Prices
7.1 Unless otherwise stated in the order confirmation, the prices quoted apply “carriage paid” (Incoterms 2010, “CPT”, see section 6.1).
7.2 The prices quoted are net, unless stated otherwise; the statutory VAT in the current amount is added.
7.3 Any additional expenses incurred as a result of subsequent change requests may be charged to the buyer by the Seller.
7.4 If events occur after the conclusion of a contract that is a continuing obligation or that extends beyond agreed delivery periods over a period of more than four months, events that increase the cost price of the Seller during the production or shipping of the goods, e.g. Wage, material, energy and weather-related costs, the Seller is entitled to corresponding price increase. If, on the other hand, there are cost reductions (offset by any cost decreases), these will also be passed on to the buyer and the price will be reduced accordingly. The corresponding adjustment will take place at the latest with the introduction of the new price list.
8. Payment
8.1 Invoices are payable within 14 days of the date of invoice without deductions. Discount applies only with explicit written confirmation by the seller as agreed.
8.2 The Seller is entitled, even in the case of conflicting purpose limitation of the Buyer, to first offset a payment against the oldest, non-titled debt. If costs or interest have already arisen, the Seller is entitled to offset payments first against the costs, then against the interest and finally against the main service.
8.3 The Buyer shall only be entitled to offset if and insofar as his counterclaims have been legally established, are undisputed or have been acknowledged by the seller in writing. The right of retention is limited to claims arising from the contractual relationship.
8.4 The Seller is entitled to demand default interest in the amount of 8% above the base lending rate according to § 347 BGB. The right to prove a higher damage caused by default remains expressly reserved. For merchants, the claim to the commercial maturity interest (§ 353 HGB) remains unaffected.
8.5 If, after the conclusion of the contract, it becomes apparent that the Seller’s claim is jeopardized by the purchaser’s inability to perform, then the Seller is entitled to withdraw from the contract according to the statutory provisions for refusal of service and, if applicable, after setting a deadline (§ 321 BGB).
8.6 Invoices are sent exclusively in writing or electronically. In the case of electronically transmitted invoices, the recipient’s consent does not require any special form. There only needs to be agreement between the invoice issuer and the invoice recipient that the invoice is to be transmitted electronically. This consent can be given in the form of an agreement or subsequently. However, it is also sufficient that the parties involved actually practice this procedure and thus tacitly approve it. In the event that the customer agrees to electronic invoicing, the customer will receive invoices exclusively in electronic form. In this case, the customer shall provide an e-mail address for the purpose of receiving electronic invoices. The customer undertakes to create the technical conditions to enable him to retrieve the invoice as agreed. The customer shall notify us without delay of any change in the e-mail address designated for the purpose of sending electronic invoices. In the event of culpably omitted or incorrect notification of the change of the e-mail address designated for the electronic invoice, the customer shall reimburse the damage incurred due to the address determination. The electronic invoice shall be deemed received upon receipt of the e-mail to which the electronic invoice is attached. The customer may revoke the consent to the electronic invoice dispatch at any time in writing.
9. Reservation
9.1 The Seller reserves the title to all delivered goods until receipt of all payments arising from the delivery relationship, including future liabilities. In case of breach of contract, in particular default in payment, the seller is entitled to withdraw from the contract according to the statutory provisions and to demand the goods due to the retention of title and the withdrawal. If the Buyer does not pay the due purchase price, the Seller may only assert this right if he has unsuccessfully given the buyer a reasonable period for payment or if such a deadline is dispensable according to the statutory provisions.
9.2 The Buyer is obliged to treat the delivered goods with care and to insure them at their own expense against any form of loss at replacement value during the period of retention of title. The seller remains entitled to insure the goods himself at the expense of the Buyer.
9.3 In the event of seizure or other interference by third parties, the buyer must immediately notify the seller in writing so that he can file a third-party objection. Insofar as the third party is not in a position to reimburse the court and out-of-court costs of such a claim, the buyer is liable for this.
9.4 The buyer is entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to the Seller all claims in the amount of the final invoice amount (including value added tax) of the claim against the seller arising from the resale against his customers or third parties, irrespective of whether the purchased item is without or after processing was resold. To collect this claim, the buyer remains entitled after delivery. The Seller’s right to collect the claim itself remains unaffected. However, the seller undertakes not to collect the claim as long as the buyer meets his payment obligations from the proceeds received, does not default on payment and, in particular, an application for the opening of insolvency proceedings is not filed or cessation of payments is not present. If this is the case, however, the seller may demand that the buyer informs him of the assigned claims and the debtors, provides all information necessary for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment.
9.5 If the delivered goods are inseparably mixed or combined with other products not belonging to the Seller, the Seller acquires co-ownership of the new or connected goods in proportion to the value of the delivered goods (final invoice amount, including VAT) to the one or the other products at the time of mixing or compound. The buyer keeps the resulting sole or co-ownership for the Seller.
9.6 If the value of the securities given to the seller exceeds its claims by more than 10% in total, the Seller is obliged at the request of the buyer to release the surplus securities at his option.
10. Claims of the Buyer
10.1 For the rights of the Buyer in case of material and legal defects (including wrong or short delivery), the statutory provisions shall apply, unless otherwise stated below. In all cases, the statutory special provisions remain unaffected on final delivery of the goods to a consumer (supplier recourse in accordance with §§ 478, 479 BGB).
10.2 The Seller’s liability for defects is based primarily on the agreement made on the condition of the goods. As an agreement on the condition of the goods, the product descriptions designated as such apply, which have been given to the buyer before his order or have been included in the contract in the same way as these terms and conditions.
10.3 Insofar as the condition has not been agreed upon, it shall be judged according to the legal regulation whether or not there is a defect (§ 434 (1) p. 2 and 3 BGB).
10.4 The Buyer’s claims for defects only exist if he has complied with his statutory inspection and complaint obligations (§ 377 HGB). The Buyer is obliged to fulfill his inspection obligation even if the goods are resold. If there is a defect during the examination or later, the Seller must be informed immediately in writing. The notification is deemed to be immediate if it takes place within two weeks, whereby the timely dispatch of the advertisement is sufficient to meet the deadlines. Regardless of this obligation to inspect and notify, the Buyer has to report obvious defects (including false and short deliveries) in writing within two weeks of delivery, whereby the timely dispatch of the advertisement is also sufficient to meet the deadlines. If the Buyer fails to properly examine and / or notify the defect, or if the goods are altered by processing, the Seller’s liability for the defect not indicated is excluded.
10.5 If the delivered goods are defective, the Seller is entitled to choose between rectification and new delivery.
10.6 The expenses required for the purpose of supplementary performance are not covered by the Buyer.
The Seller shall be liable to the extent that the expenses increase as a result of the goods having been moved to a place other than the Buyer’s commercial establishment after delivery.
10.7 The Seller is entitled to make the subsequent performance owed dependent on the Buyer paying the due purchase price. However, the Buyer is entitled to retain part of the purchase price which is reasonable in relation to the defect.
10.8 The Buyer has to garant the Seller the necessary time for owed supplementary performance and opportunity to hand over, in particular, the rejected goods for examination purposes. In the case of replacement, the Buyer must return the goods to the Seller in accordance with the statutory provisions. The supplementary performance does not include the excavation of the defective goods or the re-application, if originally there was no obligation on the part of the Seller to carry it out.
10.9 The expenses necessary for the purpose of the examination and supplementary performance, in particular transport, travel, labor and material costs (not: excavation and application costs), shall be borne by the Seller, if a defect actually exists. If, however, a defect removal request of the buyer turns out to be unjustified, the seller is entitled to demand compensation for the resulting costs from the Buyer.
10.10 If the supplementary performance has failed or a reasonable period to be set by the Buyer for the supplementary performance has expired without success or is unnecessary according to the legal provisions, the Buyer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
10.11 Claims by the purchaser for damages or reimbursement of futile expenses exist only in accordance with para. 11 and are otherwise excluded.
11. Other liability
11.1 Unless otherwise stated in these General Conditions of Sale and Delivery, including the following provisions, the Seller shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
11.2 The Seller’s liability under the statutory provisions for damages is unlimited if a breach of duty attributable to the Seller is based on intent or gross negligence. Insofar as the breach of duty attributable to the Seller is based on simple negligence and an essential contractual obligation has been culpably breached, the liability for damages shall be limited to the foreseeable damage which typically occurs in comparable cases. Moreover, liability is excluded.
11.3 The provisions of para. 11.2 shall not apply insofar as the Seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. Liability under the provisions of the Product Liability Act or comparable, indispensable rights of foreign legal systems remains unaffected. The liability for injury to life, body and health remains unaffected.
11.4 The Seller is not liable for damages caused by improper handling, storage or other actions of the Buyer or third parties.
11.5 Insofar as liability is established in accordance with the provisions of clause 11.3, the liability of the Seller in foreign legal systems in relation to the buyer is limited insofar as it would be permissible under the respective foreign law.
11.6 Due to a breach of duty that does not exist in a defect, the Buyer can only resign or terminate if the seller is responsible for the breach of duty. Incidentally, the legal requirements and legal consequences apply
12. Product liability
12.1 The Buyer may only use the goods as intended and must ensure that these goods are only sold to persons familiar with the risks and rewards of the product.
12.2 The Buyer is obliged to comply with his warning obligation when using the goods as basic material and partial product of own products when placing the final product on the market, also with regard to the goods delivered by the Seller. In the internal relationship, the Buyer exempts the seller from the assertion of claims in case of breach of this obligation on first request.
12.3 The Buyer must treat all business and product information received from the Seller from third parties as business and trade secrets unless they are generally known. Such information may only be passed on to third parties who are involved in a confidentiality agreement for contractual purposes
13. Limitation
13.1 Deviating from § 438 Abs. 1 Nr. 3 BGB the general period of limitation for claims arising from material and legal defects is one year from delivery.
13.2 Legal special regulations for statutory rights of third parties (§ 438 Abs. 1 Nr. 1 BGB) remain unaffected, in case of malice of the Seller (§ 438 Abs. 3 BGB) and for claims in the supplier recourse for final deliveries to a consumer (§ 479 BGB).
13.3 The above limitation periods of the purchase right shall also apply to contractual and non-contractual claims for damages of the Buyer, based on a defect of the goods, unless the application of the regular statutory limitation (§§ 195, 199 BGB) would lead in individual cases to a shorter limitation period. The limitation periods of the Product Liability Act remain unaffected. In addition, claims for damages of the purchaser pursuant to para. 11 exclusively the statutory limitation periods.
14. Prohibition of assignment
All claims of the Buyer against the Seller from the contractual relationship are not assignable.
15. Choice of Law
For these general conditions of sale and delivery and all legal relationships between the Seller and the Buyer, the law of the Federal Republic of Germany shall apply, excluding international uniform law, in particular the UN Sales Convention. Conditions and effects of the retention of title pursuant to para. 9 are subject to the law at the respective location of the thing, as far as then the choice of law in favor of German law is inadmissible or ineffective.
16. Jurisdiction
Jurisdiction for all disputes arising from the contract is Vechta. However, the Seller is entitled to sue the Buyer also at the court at whose seat the Buyer has his general place of jurisdiction or at whose seat the buyer has a place of business.
17. Further
17.1 The Seller and the Buyer are obliged to comply with all applicable statutory provisions in the context of the execution of the contractual relationship (compliance with laws).
17.2 If individual provisions of the contractual relationship are ineffective, then the effectiveness of the remaining provisions is unaffected. The parties will endeavor to replace ineffective provision with an effective one which most closely reflects the commercial purpose of the contract.
In case of doubt the german terms and condittions are valid.