Terms and conditions
Bergmann GmbH
§ 1 Generals
(1) The following terms and conditions are agreed with Bergmann GmbH for all offers, deliveries, services and connected transactions:
(2) If there is no written contract, delivery note is order confirmation. Delivery note is decisive for the subject of the contract.
(3) If sale contracts are agreed orally or by telephone subject to written confirmation, the content of the confirmation letter is decisive, if the addressee does not disagree immediately. All prices are inclusive value added tax valid on day of delivery.
(4) If the client is a registered retailer, only our terms and conditions are valid, unless otherwise agreed by the parties. For fertilisers, pesticides, combustibles and mineral oils are valid the factory conditions. For field seeds, seeds and corn seeds are valid the sale and delivery conditions for accredited agricultural seeds.
(5) Conflicting or deviating conditions of sellers or buyers, suppliers or contract partners are valid only if declared the base of contract and/or confermed in written form.
§ 2 Delivery
(1) The Bergmann GmbH is entitled to partial reasonable delivery, if the delivery is difficult. If the parties agreed delivery on call, the buyer has to allow appropriate terms of delivery.
(2) The Bergmann GmbH is entitled to change the components of premixed fodder / premixed fertiliser without informing the buyer, respecting the decisive ingredients. If Bergmann GmbH has guaranteed a defined percentage for the mixture, the seller can change the mixture only with prior approval of the buyer.
(3) Quantities of orders and deliveries are always circa quantities for goods in bulk, if parties didn't agree otherwise. If are delivered 5 % more or less of the confirmed quantity, the buyer is not entitled to reject the contract.
(4) If buyer falls behind with calling or discharging the goods, Bergmann GmbH is entitled to stock the goods in its own stock or in the stock of third parties at the buyer's expense and risk, after prior information of the buyer, rigardless other legal rights. Bergmann Gmbh is also entitled to set a new deadline and to use afterwards the goods in the best way at the buyer's expense.
§ 3 Prices
(1) Delivery and services of Bergmann GmbH are selled at market price, if no other prices were agreed, plus the valid value added tax.
(2) If decisive facts change within four months after conclusion of contract, for instance transport costs, tariffs, ice, high or low water surcharges, taxes, pubblic fees and charges, the agreed price can be adjusted if proof is shown.
§ 4 Notice of defects
(1) Immediately apparent defects during ordinary control and verifcation have to be communicated to Bergmann GmbH within a time limit of two days after delivery in written form (telex, telefax, e-mail), unless are applied shorter time limits. Otherwise the buyer has no right to ask for compensation of defects.
(2) Bergmann GmbH accepts the control results concerning the inner value of the complained goods only if an accredited institute or research institute (for instance LUFA) controlled the goods, and the assay was taken in accordance to the official regulations in this regard.
(3) If the notice of defect is justified Bergmann GmbH is entitled to deliver substitute goods free of defect.
(4) If the substitute delivery is justfiably rejected because of defects, the buyer has the right to abatement or transformation.
(5) In case of other not consumable goods the notices of defects entitle only to rectification or substitute delivery. If this is not possible in an appropriate time, the buyer has the right to abatement or transformation.
(6) Bergmann GmbH is responsable only in cases of intention and gross carelessness; and it is responsabile for assistants and/or legal representatives only in this mentioned cases.
§ 5 Packing and shipping
(1) The goods are packed as usual at the expense of the buyer. The buyer has to discharge the delivery without delay. Within one month he has to send the delivered paletts and lended containers back, emty and in a good state, carriage free, or he has to replace their value. He has to bring other packing material to a disposal company, we can send you the adresses if you want them.
(2) Carriage free shipping is on buyers risk. On buyers request Bergmann GmbH contracts a transport insurance, on buyer's expense.
(3) The addressee has to claim loss or damages on railway transport directly from the railway company, and he should ask for a certification in the moment of discharge. So the claims against the railway company can not cease. The buyer is not entitled to refuse delivery to Bergman Gmbh because of damages caused by railway transport.
§ 6 Payment, current account and addition
(1) Unless not agreed otherwise, the buyer has to pay strictly net without delay on receipt of the invoice. If the buyer orders sales on credit, the date of payment is counted from date of delivery.
(2) If the buyer pays with cheque, payment means not the receipt of the cheque, but the irrevocable encashment by Bergmann GmbH.
(3) All mutual claims of the business are registered in a current account, valid are the regulations §§ 355 et seq. HGB. The claims registered in the current account are interest-bearing. The statements of bank account of Bergmann GmbH are closing of accounts. Saldo is accredited if not objected within one month from receipt of the closings. The claims coming from basic business will remain unaffected.
(4) The buyer is entitled to count up counterclaims only if Bergmann GmbH has not rejected them or if they are legally binding.
§ 7 Refusal or delay of payment
(1) If are known concrete doubts about liquidity of the buyer, purchase price has to be payed immediately for sales on credit. The same happens, if the buyer is in delay with a sum higher than the agreed installment or with payment of an other due claim.
(2) Bergmann GmbH is entitled to refuse further deliveries and services, if the buyer refuses definitely to pay purchase price, without the need to set a deadline and without previous information. Bergmann GmbH can complain replacement of all damages, for instance costs and price differences.
§ 8 Unanticipated events
(1) If the performance of the concluded contract will be impossible because of war, blockades, exportation or importation embargos, or similar measures of national or foreign authorities or enemies, epidemies or other cases of force majeure, Bergmann GmbH is entitled to cancel the contract completely or partially for the part which is not realisable. Bergmann GmbH has to send a written information without delay, if it has known such an event, at the latest when performance time starts.
(3) In cases of riots, strikes or similar, lockouts and similar events in the origin country, on the transport way or on the delivery/shipping/service place, impediments because of ice or similar, unforeseeable and serious events that aren't Bergmann's fault, delivery time is extended about the time of impediment. If such an unforeseeable and serious impediment that is not Bergmann's fault takes longer than one month, Bergmann GmbH is authorised to regress, unless the buyer does not ask for prolungation of delivery time for another month. After this month the contract is cancelled, also without mutual recompense.
(4) The seller has to inform the buyer without delay about the impediment of performance (point 1 or 3) in written form (telex, telefax, e-mail). If one party invokes ad impediment of performance it has to prove it without delay, on request of the other party.
§ 9 Retention of title
(1) We reserve title to the goods of purchase and/or documents until complete payment of all, also of future claims of Bergmann GmbH against the buyer, during business relationship with Bergmann GmbH. The retention of title guarantees the open accounts.
(2) Processing or treatment of the goods that remain in the property of Bergmann GmbH are made for it as the manufacturer and on its demand, no responsabilities exist for Bergmann GmbH. It has the right of property on the new processed or treated goods, time and state of processing or treatment are not decisive. If the goods are mixed and treated with other goods that do not belong to the buyer, Bergmann GmbH has the co-property of the new object, proportional to the value of the retention goods and the value of the other treated goods at the moment of treatment. If the buyer is not respecting the mentioned regulation and buys the co-property of the retention goods of Bergmann through processing or treatment, with conclusion of contract he transfers to Bergmann GmbH the co-property of the goods in the moment of its buying and storages the goods for Bergmann GmbH. The buyer transfers to Bergmann GmbH possible claims for the return of their goods against third owners. The goods are retention goods for the purpose of these clauses.
(3) If the goods delivered by Bergmann GmbH are mixed or connected with other objects, the buyer transfers to Bergmann GmbH his ownership or co-property rights of the mixed subject or the new object and stores them for Bergmann GmbH. The buyer transfers possible claims to Bergmann GmbH for the return of goods against third owners.
(4) The buyer is entitled to sell the goods that are in co-property of Bergmann GmbH in ordinary business for cash or with retention of property. He is not allowed to pawn or sell them to secure credits. Concluding the contract the buyer transfers to Bergmann GmbH all claims that belong to the buyer from selling them, indipendently of the state of treatment, mixture and so on, included all secondary rights, and possible compensatory claims against credit insurances. If Bergmann GmbH has only the co-property for the goods or the buyer selled them together with other goods for a total purchase price, the trasfer of claims to Bergmann GmbH ammounts only to this part of goods - the state of the good is not important.
(5) Until cancelled the buyer is entitled to collect the claims of Bergmann GmbH and acquired by transfer. When cancelled the right passes to Bergman Gmbh - also in cases of insolvency. The buyer has to allow to Bergmann GmbH always access to the goods, on request of Bergmann GmbH he must label the goods to make visible the property, and to give all information required. In the event of delay of payment the buyer has to the next buyer about the transfer of claims, on request of Bergmann GmbH.
(6) The buyer has to defend the rights of Bergmann GmbH if third persons want to access to the goods that are in property or co-property of Bergmann GmbH, or to the transferred debts, and inform the company without delay about this access.
(7) As long as Bergmann GmbH owns the delivered goods, the buyer has to contract insurance against the usual dangers. The seller transfers to Bergmann GmbH the debts resulting from a damage, particularly against the insurance company, to secure the ammount of the claims.
§ 10 Liens
The buyer is informed that Bergmann GmbH has a legal fruit lien at the fruit crop and at the fruits not yet taken away from land (according to the law that regulates the fertiliser- and seeds supply of 19.01.1949), for all its claims of delivery of fertilisers, accredited seeds, or certified agricultural trade seeds. The buyer grants to the seller of pesticides with a contract a lien at the fruits, if possible, subject to legal fruit lien.
§ 11 Security declaration for Authorised Economic Operators AEO
You as a business partner of Bergmann GmbH declare:
(1) All goods produced, stocked, transported for or to Bergmann GmbH or to the clients, or accepted by Bergmann GmbH or by suppliers, are produced, stocked, processed or treated and shipped in secure places and factories, access of unwarranted persons is impossible during production, stocking, processing or treatment, shipping and transporting.
(2) The staff is reliable in all steps: production, storing, treatment, shipping, transport and discharging of the goods.
(3) Persons who are trading by order of business partners of Bergmann GmbH were instructed by the business partners of Bergmann GmbH, about their duty to take appropriate measures which guarantee the logistic chain mentioned above.
§ 12 Place of execution and jurisdiction
Place of jurisdiction is the competent authority at the domicile of Bergmann GmbH.
§ 13 Arbitration
(1) Conflicts rising from starting and concluding affairs between Bergmann GmbH and registered retailers can be arbitrated by an arbitration court of a german commodity market, inspite of an ordinary court, on request of Bergmann GmbH. Conflicts regarding the competence are defined by the institutional conditions for german corn agricultural trade.
(2) For contracts between agricultural clients and Bergmann GmbH the place of jurisdiction is mentioned in § 11. The parties can agree a separate arbitration contract (according to § 1027 ZPO).
§ 14 Salvatory clause
Should any part of this agreement be invalid for any reason, it is to be replaced with a corresponding text, which is valid and equivalent to the intended meaning. The rest of the agreement shall remain unaffected and valid, especially the conditions of delivery and payment.
