Contents
1 Validity of the Terms and Conditions
2 Offers and Conclusion of Contract
3 Pricing
4 Delivery
5 Dispatch and Transfer of Risk
6 Weights / Volume
7 Retention of Title
8 Material Defects
9 Terms of Payment
10 Addional Claims
11 Applicable Law, Place of Jurisdiction, Severability and Transferability of Contractual Rights
Kekkilä-Brill Substrates GmbH valid from 01. September 2012
1 Validity of the Terms and Conditions
1.1 Our deliveries and services are exclusively provided on the basis of these Terms and Conditions of Business.Terms and conditions of business of the Partner to the contrary that are not expressly recognised by us shall not be valid.
2 Offers and Conclusion of Contract
2.1 Our offers are subject to confirmation and are non-binding. Order acceptance is always subject to availability and at the prices valid on the day of delivery; the same applies to on-demand and future deliveries. Supplements, amendments and additional agreements are only valid if confirmed by us in writing.
2.2 The information, drawings, images and performance descriptions contained in catalogues, price lists, electronic media (e.g., Internet) and other documents relating to the offer or the delivery are approximate values customary in the trade and non-binding unless they are expressly designated as binding in the order confirmation.Our statements in connection with sales, e.g., performance descriptions, reference to norms, prospectuses, data sheets, etc., do not include any acceptance of guarantee.
3 Pricing
3.1 Unless otherwise indicated, we are bound by the prices stated in our offers for 30 days as from the offer date. The prices plus VAT stated in euros in the offer are the applicable prices. Any additional deliveries and services are invoiced separately.
3.2 Unless otherwise agreed, all prices are stated in euros plus VAT without freight and insurance, free on truck ex loading point.
3.3 Should a substantial change in wage, material or energy costs occur, either contracting party is entitled to request an adequate adjustment of the price taking such factors into account.
4 Delivery
4.1 Unless otherwise agreed, we deliver “ex-works”. The date of the notice of readiness for dispatch or collection by us determines the observance of the delivery date or the period of delivery.The period of delivery starts with the order acceptance and is suitably extended if the requirements of Section 4.4 apply.The dispatch of the merchandise is at the expense of the Partner. With the handing over of the merchandise to the forwarding agent or carrier (loading on the collecting vehicle / appliance) – at the latest, however on departure from our loading points / areas (plant premises Georgsdorf, mooring loading points or Papenburg wharf) – the risk shall be transferred to the purchaser.The unloading of the delivery vehicle is carried out by the partner at its expense. Deliveries of packaged merchandise, the unloading services for which have been expressly agreed (with on-board unloading equipment provided by the forwarding company), and deliveries of bulk merchandise if such is intended for delivery by tipper truck or “walking – floor” vehicle at the request of the purchaser are excluded. In this case, the unloading service is part of the freight service.For carriage-paid deliveries, the dispatch to an unloading point on the company terrain of the partner is included in the price provided that this can be reached easily and is for the delivery vehicle.
4.2 Delivery dates and periods which may be agreed as binding or non-binding require the written form.
4.3 Orders are executed as far as possible by the deadlines requested by the partner. No claims for damages may be derived from the non-observance of the delivery periods, in particular for on-demand deliveries within 72 hours.
4.4 We shall not be responsible for any binding dates and deadlines in the event of delivery and service delays due to force majeure and due to events that substantially hamper or make impossible the delivery – this includes in particular labour disputes, civil unrest, actions by the authorities, the non-arrival of supplies from our suppliers, prolonged periods of rain, frost, etc. Such occurrences entitle us to postpone the delivery or service for the duration of the obstruction plus a reasonable start-up period or to fully or partially withdraw from the contract on account of the part not yet executed without the partner being able to claim damages from such.Should the above-mentioned obstructions occur at the partner’s location, the same legal consequences shall apply, also for its acceptance obligation.
4.5 The contracting partners undertake to report without delay the beginning and end of the obstructions of the above-mentioned nature to the other party.
4.6 Partial deliveries and partial services are admissible in so far as they are customary in the trade and shall be invoiced separately. They are exceptionally not admissible in the event that the partial execution of the contract is of no interest to the partner.
4.7 In the event that subsequent amendments to the contract by the partner affect the period of delivery, such may be extended to a reasonable extent.
5 Dispatch and Transfer of Risk
5.1 Merchandise reported ready for dispatch must be accepted by the partner without delay, otherwise we are entitled to dispatch such at our own discretion or to store it at the partner’s risk and expense. In the absence of special arrangements, we shall choose the means and route of transportation. With the handing-over to the forwarding agent or carrier or at the beginning of storage, however, at the latest on departure from the plant or warehouse, the risk shall be transferred to the partner, even if delivery is by us.
6 Weights / Volume
6.1 Weights for peat products vary according to composition and moisture content. Binding weights before delivery cannot therefore be specified. The weights indicated in the freight papers are determined with the technical devices available on the dispatch of the merchandise ex-works. We cannot be held responsible for any changes in weight occurring during transportation.The volume indicated applies at the time of manufacture and is in compliance with EN 12580. During storage of the product, irreversible losses in volume may occur.For bulk merchandise, the allowance during the loading on the collecting vehicle is in compliance with EN 12580 unless another binding volume has been mutually agreed. The compression taking place during the loading process and transportation leads to substantial compaction of bulk merchandise and does not constitute a reason for complaint. Due to variations in the weight of the material caused by the weather and varying load capacities of transport vehicles, we reserve the right to reduce or add to the delivery quantity ordered.
7 Retention of Title
7.1 We will retain title to the merchandise delivered until all claims pertaining to the business relationship with the partner have been satisfied.
7.2 The partner is entitled to sell this merchandise in the ordinary course of business as long as it complies with its obligations relating to this business relationship in good time. It may not, however, either pledge or re-assign the goods subject to retention of title as security. It is obliged to safeguard our rights during the credited resale of the goods subject to retention of title.
7.3 In the event of delays in payment by the partner, we are entitled after the granting of a reasonable period of grace to request the surrender of the goods subject to retention of title at the expense of the partner.
7.4 All claims and rights from the sale of goods to which we hold ownership rights shall already at this point be assigned to us by the partner as security. We hereby accept such assignment.
7.5 We shall release the securities to which we are entitled in accordance with the regulations specified above at the request of the partner to the extent that the realisable value of the goods subject to retention of title exceeds the claims to be secured by more than 20%.
8 Material Defects
8.1 We guarantee the faultless manufacture of the goods supplied by us.We are not responsible for material defects from inappropriate or incorrect use or treatment by the partner or third parties nor for the consequences of inappropriate modifications carried out by the partner or third parties and without our permission. The same applies to defects which only insignificantly reduce the value or suitability of the merchandise.Unless otherwise agreed, the statute of limitations for claims resulting from material defects shall be according to the law.
8.2 Our products predominantly contain natural raw materials that may change during mixing, filling, transportation and handling.In the event of incorrect storage or exceeding of the recommended period of storage, chemical, physical and biological characteristics of the substrate may change.Also during correct, weather-protected and preferably cool storage, our substrates are intended for prompt use. Our substrates must therefore be used within 3 months at the latest after delivery; substrates with organic and long-term fertilisers should be used immediately following delivery.We reserve the right to modify the indicated product composition in the formulation at short-notice for quality reasons.Our substrates contain a high proportion of organic substances; as a result, saprophytic organisms may be present. The presence of saprophytic organisms and their consequences such as, for instance, fungus, does not constitute a product defect; the same applies to saprophytic nematodes which may occur in small quantities.Traces of substrate-forming components not specified in the formulation do not constitute a product defect either.All values stated for our substrates may vary within the tolerances which are pre-defined by the Association for the Quality of Substrates – Gütegemeinschaft Substrate e. V.( www.substrate-ev.org ).All recommendations for application and use provided by us are non-binding and must be adapted to local and usage-related circumstances.
8.3 Obvious defects must be reported by the partner immediately upon receipt of the merchandise at the place of destination and complaints about hidden defects shall be made without delay following their discovery. The defect must be substantiated and the delivery note number, designation and registration number of the transport vehicle as well as the dates of dispatch and receipt must be included. In the case of dispatch by railway wagon, in the event of external defects, the additional submission of the statement of facts by the railway company is required; for trucks, the written confirmation of the forwarding company and for container shipment, the written confirmation of the shipping company or agent charged with such.
8.4 Hidden defects can only be processed by us if unchanged samples (at least 10 litres) of the merchandise which is the subject of the complaint are made available to us as soon as possible for the examination of the reason for the complaint. The partner must describe the damage which has occurred, give all necessary information and provide the opportunity for technical staff or agents of our company to check all facts relating to the investigation of the complaint also inside the plant of the user without restriction. The partner is obliged to exercise damage limitation in cases of complaint.
8.5 In the event of a justified complaint about defects duly submitted within the deadlines, we shall either reprocess the merchandise queried or supply a flawless replacement.
8.6 For special mixtures, our liability shall not apply if the partner requests product deviations that do not comply with our recommendations or if at the specific request of the partner aggregates have been added to the substrate that were not tested by us nor recommended as being suitable for the intended cultivation.
9 Terms of Payment
9.1 Unless otherwise agreed, all invoices are payable without deductions within 30 days of the invoice date after delivery of the merchandise is effected.
9.2 In the event that we indisputably supplied defective merchandise, our partner is nevertheless obliged to pay for the flawless part unless the partial delivery is of no interest to the partner. In addition, the partner can only set off legally established or undisputed counterclaims. This does not apply if the partner sets off compensation claims relating to the faultiness of products from the same service or delivery agreement or any other claims which have a strong synallagmatic relation to the principal claim. The partner only has a right of lien on goods if the counterclaim is arising from the same contractual relationship and has been legally established or is undisputed or if we failed to comply substantially with our contractual obligations and to offer reasonable collateral despite having received a written reminder.
9.3 For late payment, we shall be entitled to charge interest on arrears at the rate we are charged for current account credits by the bank, but at least equivalent to 5 % above the current base interest rate.
9.4 In the event of delayed payment, we may suspend the performance of our obligations after written notice to the partner until receipt of the payments.
9.5 Bills of exchange and cheques will only be accepted as payment by agreement and on condition of their discount ability and shall only be deemed to constitute conditional payment. Discount charges will be charged from the due date of the invoiced amount. Warranty for correct submission and lodging of bill protest is excluded.
10 Addional Claims
10.1 Unless stated otherwise below, additional and continuing claims of the partner against us are excluded. This in particular applies to claims for damages due to delays, impossibility of performance, culpable violation of secondary contractual obligations, culpability upon conclusion of the contract and tortuous acts. We shall therefore not be liable for damage not caused to the merchandise supplied as such. Above all, we shall not be liable for loss of profits or other financial losses incurred by the partners.
10.2 The above limitations of liability shall not apply if we caused the damage intentionally or through gross negligence or if we violated essential contractual obligations. In the event that an essential contractual obligation was breached by us, we shall only be liable for typical contractual and reasonably foreseeable damage.
10.3 The limitation of liability does not apply either in cases where in accordance with product liability laws for defects of the merchandise supplied if there is liability for personal and material damages relating to privately used items. It also does not apply to loss of life, physical injury or damage to health in the absence of assured properties if and to the extent that the purpose of the assurance in particular was to provide coverage to the partner against damage incurred not concerning the merchandise as such.
10.4 Claims under the right of recourse of the partner against us are only applicable to the extent that the partner has not entered into any agreement with its customer beyond the statutory claims for defects.
10.5 To the extent that our liability is excluded or limited, this also applies to the personal liability of our legal representative and vicarious agents.
11 Applicable Law, Place of Jurisdiction, Severability and Transferability of Contractual Rights
11.1 Changes to these Terms and Conditions of Business require the written form.
11.2 These Terms and Conditions of Business and all legal relations between the contracting parties are governed by the laws of the Federal Republic of Germany.The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980 is excluded.The interpretation of commercial clauses such as fob or cif shall be according to the international rules for the interpretation of standard contractual forms (Incoterms, latest version).
11.3 For all legal disputes, also within the context of bill and/or cheque procedures, the place of jurisdiction shall be our registered office if the partner is a businessman, a legal entity under public law or a public special asset. We shall also have the right to sue at the registered office of the partner.
11.4 If a provision of these Terms and Conditions of Business or a provision within the framework of other agreements is or becomes ineffective in law, the effectiveness of the remaining contract shall not be affected by this. In this case, the contracting parties shall be obliged to replace the ineffective provision by another which is as close as possible to its financial effect.
11.5 The mutual contractual rights may only be transferred by mutual agreement.
11.6 The language of the contract shall be German.
