General terms and conditions

General terms and conditions for the delivery of new and used motorized equipment, agricultural machinery, equipment and commodities to commercial customers (terms of delivery LM/G) - as of January 2020

I. General

The following terms and conditions of business and delivery apply to the delivery of new and used motorized equipment, agricultural machinery, equipment and commodities for commercial customers, including related consulting services that are not the subject of a separate consulting contract and provided they are not changed with the express written consent of the seller or be excluded. They apply to contracts concluded with customers who are entrepreneurs within the meaning of § 14 BGB or legal entities under public law and special funds under public law. Full-time or part-time farmers who earn income from their work are not consumers within the meaning of the law.
Conditions of the buyer are not part of the contract even if the seller does not contradict them again and provides the contractually owed delivery / service without reservation. Agreements deviating from these conditions should be included in the order confirmation.

II. Offer and Scope of Delivery

1. Seller's offers are always non-binding. The documents belonging to the offer, such as illustrations, drawings, weights and dimensions are only approximate unless they are expressly designated as binding. The changes are inappropriate and can no longer be accepted by the buyer if they go beyond what is customary in the trade. Performance and operating costs are given as average values. The seller reserves the property rights and copyrights to cost estimates, drawings and other documents; they may not be made accessible to third parties.
2. The buyer is bound to the order for a maximum of 6 weeks, unless another delivery period is expressly specified. The purchase contract is concluded when the seller has confirmed acceptance of the order for the specified object of purchase in writing within this period or the delivery has been carried out. However, the seller is obliged to immediately notify us in writing of any rejection of the order.
3. All agreements made between seller and buyer are to be recorded in writing in the respective delivery contract. This also applies to ancillary agreements and assurances. Subsequent changes to the contract, which are agreed verbally, are promptly fixed in writing by the contracting parties and added to the delivery contract as a supplement.
4. Information in the descriptions given to the buyer about scope of delivery, appearance, services, dimensions, weights, fuel consumption and operating costs are part of the contract. They serve as a benchmark for determining whether the purchased item is free of defects. We reserve the right to make changes to the design and form of the delivery item, provided the delivery item has not been significantly changed and the changes are reasonable for the buyer.

III. price and payment

1. In the absence of a special agreement, the prices apply from the seller's warehouse or, if shipped from the manufacturer's works, ex works. Delivery and shipping costs are not included in the price. The prices do not include the applicable sales tax. If the delivery is to take place more than 4 months after the conclusion of the contract, the seller is entitled to demand negotiations about a re-evaluation of the price in the event of price increases by his sub-suppliers or unexpected increases in wage and transport costs. The seller is only bound to the agreed price for the agreed delivery time – but at least 4 months. Additional expenses incurred by the seller due to the buyer's default of acceptance can be requested from the buyer.
2. In the absence of a special agreement, payment is to be made upon delivery or provision and receipt of the invoice without any deductions within 12 days free the seller's payment office. The rights of retention to which the buyer is entitled under § 320 BGB are not affected by this. Discount promises only apply in the event that the buyer is not in arrears with the payment of previous deliveries.
3. The seller only accepts discountable and properly taxed bills of exchange as payment if there is a corresponding agreement. Credits for bills of exchange and checks are subject to receipt less expenses with a value date of the day on which the seller can dispose of the equivalent value.
4. Offsetting against any counterclaims of the buyer that are disputed by the seller or have not been legally established is not permitted. The buyer can only assert a right of retention if it is based on claims from the purchase contract. If a notice of defects is asserted, payments by the buyer may be withheld to an extent that is in reasonable proportion to the defects that have occurred.
5. Payments may only be made to employees of the seller if they can show a valid power of attorney to collect.

IV. Delivery times and default

1. Delivery periods and dates are only binding if they have been expressly designated as such by the seller. The delivery period begins with the conclusion of the contract, but not before the provision of any documents, approvals, releases to be provided by the buyer and before receipt of an agreed down payment.
2. Correct and timely self-delivery is reserved.
3. The delivery period is extended appropriately in the event of measures taken within the framework of lawful labor disputes, in particular strikes and lockouts, as well as the occurrence of unforeseen obstacles which are beyond the control of the seller or his vicarious agents, insofar as such obstacles can be proven to have an influence on the delivery of the item sold.
4. The same applies if the seller is not supplied on time. The seller is entitled to withdraw if the manufacturer does not supply him. However, this does not apply if the seller is responsible for the non-delivery (e.g. default in payment).
5. Adherence to the delivery period presupposes the fulfillment of the contractual obligations of the buyer.
6. If the buyer suffers damage due to a delay, the seller is liable according to the statutory provisions.
7. The seller is not responsible for deliveries that are delayed or omitted (impossibility) due to the fault of his sub-suppliers - with the exception of faults in selection or monitoring. Sentence 1 does not apply if the relationship between seller and buyer is determined by the law on contracts for work and services. In any case, the seller is obliged to indemnify the buyer if he cannot fully enforce the claims assigned to him against the supplier.
8. In addition to the statutory period of § 286 Para. 3 BGB and the reminder, the seller can also deviate from the period according to Section III.2. by another payment term that can be determined according to the calendar within the meaning of Section 286 (2) of the German Civil Code.
9. If the buyer defaults on his payment obligation, default interest of 5% above the respective base interest rate pa (§ 247 BGB) will be charged. The assertion of a higher damage caused by default remains reserved. In the event that the seller asserts a higher damage caused by the delay, the buyer has the opportunity to prove that the damage caused by the delay was not incurred or was at least significantly lower.

V. Passing of risk and transport

1. In the absence of a special agreement, the shipping route and means are left to the choice of the seller.
2. In the case of mail-order sales, the risk passes to the buyer when the goods are handed over to the forwarding agent or carrier, but no later than when they leave the warehouse or, in the case of direct shipment ex works, when they leave the works. This also applies if partial deliveries are made or the seller has taken on other services. The goods will be insured at the request and expense of the buyer.
3. If shipping is delayed as a result of circumstances for which the buyer is responsible, the risk passes to the buyer from the day of the offer to hand over the goods. However, the seller is obliged, at the request and expense of the buyer, to take out the insurance that the buyer requests.
4. Delivered items are to be accepted by the buyer, even if they have minor defects, without prejudice to the rights under Section VII (notification of defects and liability for defects).
5. Partial deliveries are permissible, as far as is reasonable for the customer.

VI. retention of title

1. The seller retains title until all claims arising from the business agreement with the buyer have been paid in full.
2. The buyer is obliged to treat the object of purchase with care, to secure it against interference by third parties and - if this has been agreed in writing, if an extended payment period has been granted or if the purchase is financed - to insure it immediately against fire, theft and water damage at replacement value and to provide evidence of this upon request; otherwise the seller is entitled to insure them himself at the expense of the buyer. The buyer undertakes to assign any claims for compensation to the seller.
3. The buyer may not pledge the object of purchase or assign it as security without the consent of the seller. The buyer is obliged to notify the seller immediately in writing in the event of attachments or other interventions by third parties, so that the seller can file a suit in accordance with § 771 ZPO. Insofar as the third party is not able to reimburse the seller for the court and out-of-court costs of a lawsuit under § 771 ZPO, the buyer is obliged to compensate for the costs.
4. The buyer is entitled to resell the goods in the ordinary course of business. However, he already assigns to the seller all claims in the amount of the final invoice amount (including sales tax) of the seller that accrue to him from the resale against his customers or third parties, regardless of whether the object of purchase was resold without or after processing is. The buyer is authorized to collect these claims even after assignment. The seller's authority to collect the claims himself remains unaffected by this, but the seller undertakes not to collect the claims as long as the buyer duly fulfills his payment obligations. Otherwise, the seller can demand that the buyer informs him of the assigned claims and their debtors,
5. If a vehicle registration document has been issued for the object of purchase, the seller has the sole right to possess the vehicle registration document for the duration of the retention of title.
6. In the event of breach of contract by the buyer, in particular default in payment, the seller is entitled to take back the goods after a reminder and declaration of withdrawal and the buyer is obliged to surrender them.
7. The buyer bears all costs of the return and the utilization of the object of purchase. The exploitation costs amount to 10% of the proceeds from the exploitation including sales tax without proof. They are to be set higher or lower if the seller proves higher or the buyer lower costs. The proceeds will be credited to the buyer after deducting the costs and other claims of the seller related to the purchase contract.

VII. Notification of Defects and Liability for Defects

The seller is liable for defects as follows:

1. The buyer must inspect the received goods immediately upon arrival for quantity, condition and guaranteed properties and promptly report obvious defects in writing. If the contract is a commercial transaction for both parties, § 377 HGB applies with the proviso that recognizable defects are to be reported in writing to the seller within 14 days.
2. Goods that turn out to be unusable or whose usefulness is significantly impaired as a result of a circumstance occurring before the transfer of risk - in particular due to faulty design, poor building materials or defective workmanship - are to be repaired or replaced free of charge. The seller has the right to choose in this regard. Replaced parts become the property of the seller. If the entire purchased item is replaced by way of supplementary performance, the seller is entitled to unlimited compensation for use of the item taken back from the buyer. The compensation for use is based on the average rental costs for the item that would have been incurred during the period of use.
3. In the case of new items for sale, the buyer's right to assert claims based on defects expires 12 months after the transfer of risk. In the case of used purchased items, the buyer is only entitled to claims for defects if this has been expressly agreed in writing with the seller.
4. No liability is assumed for damage caused by the following reasons: unsuitable or improper use, incorrect assembly or commissioning by the buyer or third parties, missed maintenance work if this is normal and/or recommended by the manufacturer, normal wear and tear - in particular wearing parts -, incorrect or negligent treatment, unsuitable operating resources, replacement materials, defective construction work, unsuitable building ground, chemical, electronic or electrical influences, provided they are not attributable to the fault of the seller.
5. If the defect is to be remedied, the buyer must set the seller a reasonable deadline for the necessary work. Only in urgent cases of endangering operational safety and to prevent disproportionately large damage, in which case the seller must be informed immediately, or if the seller is in default with the remedy of the defect, does the buyer have the right to have the defect remedied by third parties himself and to demand reimbursement of the necessary costs from the seller.
6. Claims for defects expire after 12 months for replacement parts and repairs. The period for liability for defects in the delivery item is extended by the duration of the interruption in use caused by the repair work.
7. Liability for the consequences arising from improper modifications or repair work carried out by the buyer or third parties without the prior consent of the seller is waived.
8. If a repair or replacement delivery to be performed by the seller fails despite several attempts, the buyer can withdraw from the contract (withdrawal) or demand a corresponding reduction in payment (reduction). As a rule, the seller must be given two opportunities to remedy the defect within a reasonable period of time, taking into account the burden on the buyer and the complexity of the defect.
9. Section VIII applies to claims for damages.

VIII. Limitation of Liability - Damages

1. The liability of the seller is based on the statutory provisions. However, this is excluded - regardless of the legal reason - if there is a non-essential breach of duty that was committed neither intentionally nor through gross negligence. This does not apply if damage to life, body or health has occurred or if there is liability insurance cover in favor of the seller. In this case, the seller assigns his claim against the insurance company to the buyer.
2. The claims to be asserted by the buyer against the seller become time-barred in accordance with the statutory provisions. However, there is a limitation period of six months if the seller has rejected a claim of the buyer as unfounded in writing.
3. Place of performance, place of jurisdiction, applicable law
4. The place of performance and exclusive place of jurisdiction for delivery and payments as well as for all disputes arising between the parties from the contractual relationship is the seller's headquarters if both contracting parties are merchants within the meaning of the German Commercial Code or legal entities under public law or special funds under public law (§ 38 ZPO ). Otherwise the statutory provisions apply.
5. The relationships between the contracting parties are based exclusively on the law applicable in the Federal Republic of Germany, excluding the UN Sales Convention.
6. privacy

Personal data of the buyer will be stored and processed by the seller in compliance with the data protection regulations exclusively within the framework of the contractual relationship between buyer and seller and will not be passed on to third parties without the express consent of the buyer.