General Terms and Conditions of SERRA Rimsting as of 07/08
All deliveries, performances and offers of SERRA Maschinenbau GmbH (hereafter SERRA) are exclusively based on the following general terms and conditions. They are deemed to be acknowledged by order placement or by acceptance of the delivery. Deviations require express written agreements.
Conclusion of Contract and Scope of Delivery
Offers are always subject to change. Unless otherwise agreed in writing, all offers shall be without obligation and shall only be approximations. Verbal orders that were confirmed by SERRA in writing shall be deemed accepted, even by non-merchants if a payment/deposit was made.
The written order confirmation by SERRA is authoritative for the scope of delivery. Assurances of properties, warranty statements, additional agreements and modifications in particular require written confirmation by SERRA.
SERRA reserves the right to modify the goods with regard to design and form, insofar as the goods are not substantially altered and the modifications are reasonable.
Payment and Delivery Conditions
Prices are ex-factory of SERRA, or for shipments of commodities ex-stock, excluding packaging. Prices do not include the respective statutory amount of value added tax. The customer assumes responsibility with the transfer of the goods to a forwarding agent or a freight carrier, or at the latest when the goods leave the factory. This also applies to partial deliveries or when SERRA assumes other services, e.g. shipping costs or delivery or exhibition. Partial deliveries are permissible.
Delay in delivery
Terms and dates are only binding if they are expressly confirmed by SERRA in the order confirmation. SERRA is not liable for delays in manufacture if the customer misses the payment date of previously agreed upon advance payments.
Delivery periods and delivery dates shall be extended by a reasonable period in case of unforeseeable obstacles beyond SERRA’s control, such as strike and lockout, interruption of operations, delay in deliveries of incoming materials, regardless of whether these obstacles affect SERRA or its suppliers. In the event SERRA incurs a delay in delivery, the customer must extend a waiting period of 8 weeks. The customer is entitled to withdraw from the agreement if SERRA exceeds this waiting period.
Retention of title
If the customer uses the delivered machines, devices, apparatuses or systems himself, SERRA will retain the title until the price has been paid in full.
If the customer is an agricultural leaseholder and in the event of existence or connection to a credit agreement under inventory pledge, he agrees to secure SERRA’s title rights for goods that have not been paid in full with the corresponding leaseholder/credit institution.
If the customer is a professional reseller, the delivered goods remain property of the customer as reserved goods until all conditions are met, irrespective of the legal basis, including future or contingent claims, also including simultaneously executed or future agreements. The customer has the right to resell the goods in the ordinary course of business with the condition that he immediately assigns to SERRA the acquired claims and rights resulting from the sale for the invoice amount of SERRA until purchase price and interest are paid in full. The buyer will remain authorized to collect these receivables even after the assignment. The authority of SERRA to collect the receivables itself remains unaffected; however, SERRA is obliged to refrain from doing so provided that the customer does not default on his payment.
SERRA can demand that the customer disclose all the receivables assigned and their debtors, provide all the particulars required for collection, hand over associated documents and inform the debtors concerned of the assignment.
Defects must be reported immediately in writing, at the latest seven days after delivery. Material defects which cannot be detected even after very careful inspection have to be reported in writing immediately after detection or at the latest before expiry of the agreed upon or legal statutory limitation period.
If the notice of defects is justified, we can at our discretion either remedy the defect or deliver a non-defective product (supplementary performance). Should we fail to substitute the goods or decline the substitution, the Buyer may, upon the elapse of an adequate additional period of time, withdraw from the contract or reduce the purchase price. If the defect is not considerable he may only reduce the purchase price.
If the buyer does not immediately give us the opportunity to verify the material’s defect, and, above all, if he does not make the criticized merchandise available to us, all rights regarding material defects are voided.
We assume expenditures with regard to the subsequent fulfilment only if – in individual cases – they are proportionate to the purchase price of the merchandise, however in no case more than 150% of the purchase price. Expressly excluded are the costs of installation and removal of the defective product, as are the costs incurred by the Buyer for remedying or repairing a defect himself unless the statutory conditions have been met for such cases.
We will not reimburse the Buyer for any expenditure in connection with the redelivery of the goods to any other place than the customer’s branch office, unless such redelivery corresponds to the contractual use of the goods. Claims and rights on account of defects in quality shall be barred after twelve months.
With regard to the violation of contractual and non-contractual obligations in particular due to impossibility, default, fault when initiating contracts and tort, we are only liable – also for our executives and other vicarious agents – in cases of willful intent and gross negligence, limited to damages which are foreseeable when the contract is executed and are typical for the contract.
These restrictions shall not apply if a breach of a fundamental contractual obligation has occurred for which we are responsible, where this endangers the fulfilment of the purpose of the contract, in cases of statutory liability pursuant to the German Product Liability Act, where there is damage to life, to the body or to health and to the extent where we fraudulently conceal the defects in the goods or have guaranteed their absence. The statutory rules of the burden of proof remain unaffected.
Unless otherwise agreed, contractual claims, which arise due to or in connection with the delivery of goods shall lapse one year after the inspection of such goods, as long as these claims are not based on reimbursements for bodily harm and adverse health effects or typical foreseeable damages or intent or gross negligence on part of the seller. This restriction does not apply to our liability for deliberate or grossly negligent breach of obligations and the statute-of-limitations of statutory claims for recourse. In cases of remedy deliveries, the limitation period shall not start anew.
Offsetting and Assignment
The customer can only offset his own claims against claims by SERRA if these claims are undisputed or the title is recognized by declaratory judgement. The customer is only entitled to assert his right of retention if his claims are founded upon the same agreement. An assignment of the claims against SERRA requires their consent.
Place of Performance, Place of Jurisdiction
Place of performance for our deliveries shall be our place of business. At our option, the legal venue is our place of business or the general legal venue of the customer. In addition to these conditions, all legal relationships between us and the Buyer shall be governed by the laws of the Federal Republic of Germany. The provisions of the Convention for the International Sale of Goods (CISG) shall be excluded.