General Terms and Conditions of SERRA Maschinenbau GmbH
Last revised: 8/2021
1. General information and scope of application
1.1. These General Terms and Conditions (“GTC”) apply to all business relationships and transactions between SERRA Maschinenbau GmbH (“SERRA”) and its Customers. However, the GTC apply only if the Customer is an entrepreneur (§14 German Civil Code (BGB)) or a corporate body under public law or a public-law special fund as defined by § 310 para1 p. 1 BGB.
1.2. SERRA shall provide its products, services and offers exclusively on the basis of these GTC. No deviating or conflicting or supplementary general terms and conditions of the Customer shall apply, even if SERRA does not explicitly object thereto. The acceptance of orders and contracts by SERRA without reservation is not to be taken as an acknowledgement of such terms and conditions.
1.3. The GTC shall also apply to any future business relationships with the Customer. The GTC shall be deemed acknowledged when an order is placed or a contract is awarded for the first time. The Customer accepts their exclusive application as a framework agreement for further orders and contracts.
1.4. Individual agreements made with the Customer on a case-to-case basis shall in any case take precedence over these GTC. The content of such agreements must be specified in a written contract and/or confirmation issued by SERRA.
1.5. Any legally relevant statements and notices submitted by the Customer to SERRA (e.g., time limits, notices of defect, notices of rescission or price reduction due to defects) must be in writing in order to be effective.
1.6. Any Incoterms® referred to in these GTC shall apply as in force at the time of execution of the contract.
2. Conclusion of contract
2.1. Prices quoted by SERRA are subject to change.
2.2. The purchase order shall be binding upon the Customer for four weeks. This period shall be reduced to two weeks where the contract item is in stock at SERRA’s. No contract shall be concluded until SERRA accepts the order either by sending a written order confirmation (e.g., by letter, email, telefax) or by making delivery within the deadline.
2.3. Any warranted features and warranties must be explicitly confirmed by SERRA in writing to be effective.
3. Price and price adjustment
3.1. Prices are in Euros ex works SERRA (EXW Incoterms®) plus the applicable statutory Value Added Tax and packaging costs, if applicable.
3.2. The Customer shall be obliged to submit to SERRA/support SERRA in obtaining the documents required for evidencing the delivery of VAT-exempt goods (confirmation of arrival or equivalent).
3.3. The price list in force at conclusion of contract shall apply. Should any costs which have a determining influence on pricing – including, but not limited to, raw material prices, collectively agreed wages, cost of transportation as well as taxes and duties – change following the conclusion of a contract, SERRA will be entitled to adjust the agreed price as it sees fit. An increase in a specific cost may be used by SERRA as a basis to increase the overall price only to the extent to which it is not offset by any falling costs in any other areas. Where cost reductions occur, the prices must be reduced to the extent to which those falling costs are not wholly or partly offset through increases in other areas. In choosing the date of a price adjustment SERRA will make sure that the conditions most favorable to the Customer prevail, so that the impact of cost reductions on pricing at least equals that of cost increases. To the extent SERRA does not deliver products/provide services under a continuing obligation, SERRA will not be entitled to adjust any prices for a period of four months after conclusion of contract. SERRA will send a written price change announcement at least six weeks before the change will take effect, stating the date from which the price change will take effect and explaining the reasons. The Customer has the right to object to price adjustments announced by SERRA in writing within a period of four weeks. If the Customer does not object, the price change shall be deemed to have been agreed and apply from the date specified – which shall not be before the date of mailing the announcement. If the Customer objects, SERRA will have a specific right to cancel and/or rescind the contract, which can be exercised by SERRA within two weeks of receipt of the objection setting a deadline of three months. This consequence shall be explicitly pointed out to the Customer by SERRA in the price change announcement. Any ordinary or extraordinary right to terminate the contract shall remain unaffected.
4. Payment and security
4.1. The purchase price and prices for additional services shall be paid at the time of delivery and/or acceptance and transmission of the invoice. SERRA shall be entitled to request a reasonable advance payment. SERRA shall not be obliged to deliver before receipt of the advance payment. Any completion deadlines agreed will be postponed until the date of receipt of the advance payment. In the case of orders placed by Customers whose residence or registered office is located abroad or if there are indications of a risk of nonpayment, SERRA will be entitled at any time, also within the framework of an ongoing business relationship, to deliver the products/services, in whole or in part, only against payment in advance. SERRA states this caveat upon confirmation of an order at the latest. In this case the products/services will not be delivered until full payment is made.
4.2. For overdue invoices the Customer will incur interest at a rate of 9 percent above the base rate for the period of missed payment.
4.3. At or after conclusion of contract SERRA may request adequate security (e.g. adequate advance payment, bank guarantee, financing confirmation) for the purchase price.
4.4. If the provision of security is delayed by five days after the set date, the deadlines specified in 5.2 of these GTC will be extended by the duration of the delay.
5. Delivery and delay in delivery
5.1. The products are delivered ex works SERRA (EXW Incoterms®), which is also the place of performance for delivery and supplementary performance, if any. At the Customer’s request and expense, the contract item will be dispatched to another destination (sale by dispatch). SERRA shall be entitled to determine the type of dispatch (including, but not limited to, the transportation service company, route of dispatch, and packaging).
5.2. Delivery periods and deadlines shall be agreed in writing and may be agreed either as binding or subject to change. They shall only be deemed binding if explicitly confirmed by SERRA in the order confirmation. Delivery periods shall commence upon conclusion of contract. Delivery periods and deadlines shall be deemed complied with when readiness for delivery is notified. The Customer’s failure to provide, upon request, any information that is required to execute the order will extend the delivery period and deadline by an appropriate period.
5.3. SERRA is entitled to make partial deliveries if the partial delivery can be used by the Customer for the contractually foreseen purpose and the delivery of the remaining products ordered is ensured and the Customer does not incur any significant inconvenience and additional expense, unless SERRA agrees to pay those costs.
5.4. The Customer may not demand delivery by SERRA (i.e., send a reminder notice) earlier than four weeks after the agreed non-binding delivery expiration date. This period is reduced to two weeks for contract items in stock at SERRA’s. If a binding delivery date or a binding delivery period is exceeded, SERRA will be deemed in delay as soon as it misses the delivery date or delivery period.
5.5. When SERRA is in delay of delivery or if it becomes impossible for SERRA to deliver for any reason whatsoever, SERRA’s liability is limited to damages according to article 10 of these GTC.
5.6. In cases of force majeure (unforeseeable circumstances and events occurring through no fault of SERRA, which could not have been prevented with the due care of a prudent businessman, such as e.g. strikes and lockouts, war, fire, floods, traffic or shipment disturbances, shortage of labor, energy, raw materials or supplies, subsequent scarcity of material, import and export restrictions, measures by public authorities, pandemics, epidemics or other operational disturbances), irrespective of whether SERRA or its vendors or subcontractors are struck by the events, which – through no fault of SERRA – make it impossible for SERRA to deliver the contract items by the applicable date, SERRA will be released from its delivery obligations for the duration of the impediment plus an appropriate start-up time, and to the extent of the impact of the incident. SERRA shall notify the Customer of the beginning and the end of the force majeure event without delay and make all reasonable efforts to remedy the situation and limit its consequences to the greatest possible extent. If a force majeure event occurs, SERRA and the Customer shall jointly decide on what action to take. If the period of delay caused by the force majeure event exceeds eight weeks, either party has the right to terminate the contract for cause with regard to the portion of the contract not yet completed or to rescind the contract.
5.7. Compliance with delivery dates and deadlines is subject to appropriate and timely incoming deliveries to be received by us, provided that non-delivery is not attributable to SERRA and SERRA made arrangements for substitute deliveries from suppliers with due diligence. SERRA shall notify the Customer as soon as possible when delays become apparent.
6.1. Where an acceptance procedure has been agreed, the Customer must accept the contract items within 3 workdays after being notified of readiness for delivery. In this case, the acceptance date shall be the date of passing of risk.
6.2. Refusal of acceptance due to minor defects is not permissible.
6.3. A contract item shall be deemed to have been accepted when SERRA, after completion, set a reasonable period for acceptance by the Customer and the Customer has not refused acceptance due to at least one defect within that period.
6.4. Should the Customer be unable, at least temporarily, to accept all or part of the contract items made ready for delivery by SERRA, thus being in default of acceptance, SERRA will be entitled to store, at the Customer’s risk and expense, the contract items at its premises or another storage location chosen by SERRA (taking the Customer’s interests into account). SERRA shall inform the Customer without delay about the location of the storage place and provide details about the storage place, including, but not limited to, the costs the Customer will incur. The Customer must inform SERRA in time about its inability to accept the contract items made ready for delivery on schedule. Moreover, the Customer will be obliged to immediately seek with due care other possibilities to pick up the contract items, including, but not limited to, alternative means of transport/routes.
6.5. In the case of non-acceptance SERRA may exercise its statutory rights, including, but not limited to, substitute sales as defined by § 373 HGB (German Commercial Code). SERRA may demand compensation equivalent to 15 % of the net purchase price. The amount of compensation will be higher or lower if SERRA furnishes proof that more damage has been caused or the Customer furnishes proof that less damage has been caused.
7. Reservation of ownership
7.1. If the Customer is the end customer of the contract items delivered, the contract items will remain the sole property of SERRA until payment is received in full.
7.2. If the Customer is an agricultural tenant and if a mortgage loan agreement is or has been concluded, the Customer also undertakes to secure SERRA’s property rights with regard to contract items that have not yet been paid in full with the respective credit institution.
7.3. If the Customer is a commercial reseller, the contract items delivered remain the property of SERRA until all claims to which SERRA is entitled under the contract or the ongoing business relationship, including future or contingent claims, also arising from contracts concluded at the same time or later, have been fulfilled.
7.4. The Customer is entitled to sell the contractual “goods subject to retention of title” in the course of ordinary business. The Customer shall not do anything that would jeopardize SERRA’s ownership. Until the purchase price including interest and costs is paid in full, the previous assignment to SERRA of all claims and rights, in the amount of SERRA’s invoices, which the Customer accrues against a third party through the resale shall be a condition precedent for reselling the goods. SERRA hereby accepts the assignment.
If the Customer integrates goods subject to retention of title into other goods, SERRA shall be entitled to the co-ownership of the new goods in the proportion of the invoice value of the goods subject to retention of title to the invoice value of the other goods plus the value of the processing of the goods. If the ownership of SERRA expires through integration, mixing or processing, the Customer shall transfer to SERRA the property rights in the new items to which SERRA is entitled already at the time of integrating, mixing or processing the goods, to the extent of the invoice value of the goods subject to retention of title, and safeguard these rights for SERRA free of charge. The property rights to which SERRA is entitled thereby shall be deemed ‘goods subject to retention of title’ as defined in 7.4.
The Customer hereby assigns the purchase price, remuneration or other claims in the amount of the invoice value of the goods subject to retention of title which arise from the resale and/or processing or are based on another legal ground (e.g., tort in case of an insured event or loss of ownership through integration of the contract item into a plot of land) and which refer to the goods subject to retention of title to SERRA; SERRA hereby accepts the assignment. The purpose of the assignment of claims according to 7.7 subpara 1 is to provide security for all – including future – claims arising from the business relationship with the Customer.
The Customer is authorized (subject to revocation) to collect the receivables from the resale on its own behalf, even after the assignment. SERRA’s authority to collect the receivables itself remains unaffected, but SERRA undertakes to not collect the receivables as long as the Customer duly complies with its payment obligations. SERRA may ask the Customer to disclose the assigned receivables and the respective debtors, to provide the information required for collecting the receivables, to provide the respective signatures and to inform the debtor about the assignment in writing.
The Customer’s right to sell and use goods subject to retention of title and the authorization to collect receivables assigned shall cease upon cessation of payment or request for or opening of insolvency proceedings against the Customer. The statutory rights of an insolvency administrator – even if it is a temporary one – will remain unaffected.
7.5. The Customer undertakes to treat the contract items/the goods subject to retention of title with care; in particular to insure them at the Customer’s own expense against damage due to fire, water or theft, with the insured sum being adequate to cover the replacement value, and to immediately inform SERRA about any attachment, confiscation, damage and/or loss; the Customer’s failure to comply with this obligation will entitle SERRA to rescind the contract. The Customer shall bear all costs arising in the context of a third-party action against an attachment and possibly for recovery of the contract items/goods subject to retention of title, to the extent such items/goods cannot be withheld by third parties.
7.6. If the realizable value of the security granted to SERRA in accordance with the above clauses exceeds the amount of SERRA’s receivables from the Customer by more than 10 %, SERRA will, at the Customer’s request, waive securities of its own choice to that extent.
7.7. In case of deliveries to other jurisdictions in which the foregoing provisions governing the retention of title do not have the same effect in terms of security as in Germany, the Customer shall take any possible steps to establish adequate security rights for SERRA without delay. The Customer shall cooperate in all actions such as registration, publication etc. that are necessary and conducive to the efficiency and enforceability of such security rights.
8. Software, usage rights
8.1. The Customer is granted a non-exclusive right to use the software including the documentation itself. The Customer shall not be entitled to grant affiliated companies as defined by §§ 15 et seq. AktG (German Stock Corporation Act), end customers or third parties any usage rights or licenses.
8.2. The usage permission is limited to the contract item for which it is intended. Above all, the Customer is forbidden from decompiling or disassembling the software or engaging in any other form of reverse engineering.
8.3. The Customer undertakes to refrain from removing or altering any manufacturer’s information – including, but not limited to, copyright notices – without prior express permission from SERRA.
8.4. All other rights to the software and the documentation including copies remain with SERRA and/or the software supplier.
9.1. Any information provided in descriptions that are valid upon conclusion of contract regarding the scope of delivery, appearance, performance, dimensions and weight etc. of contract items is part of the contract; such data shall be deemed approximate only and not guaranteed, serving as a measure to determine whether a contract item is free of defects. Any deviations in appearance, shape, engineering changes or change of scope of delivery on the part of SERRA remain reserved, provided that the contract item is not changed substantially and the changes are deemed acceptable to the Customer. Where SERRA uses symbols or numbers to describe the order or the contract item, no rights may be derived solely from these.
9.2. The Customer may only assert a claim for defects if the Customer complied with its statutory obligation to inspect the goods and give notice of defects (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, SERRA must be informed without delay. Without delay means giving notice i.e., dispatching the notice within two work days. Aside from this obligation to inspect the goods and give notice of defects, the Customer must give written notice of obvious defects i.e., dispatch the notice without delay but no later than within seven work days of the date of delivery. If the Customer fails to properly inspect the goods and/or give notice of defects, any liability for an undisclosed defect shall be excluded.
9.3. In the case of a justified notice of defect SERRA shall, at its discretion, either eliminate the defect or supply a flawless item (supplementary performance). Should the first supplementary performance be unsuccessful, SERRA will be entitled to at least a second supplementary performance. If the supplementary performance fails or is not provided or if a reasonable deadline set by the Customer in writing has expired unsuccessfully or if it is not necessary to set a deadline according to statutory provisions, the Customer may rescind the contract or reduce the purchase price. If the defect is not a significant one, the Customer is entitled to a price reduction only.
SERRA reserves the right to remedy defects by remote maintenance or remote diagnostics (possibly via a remote access (VPN connection or Remote Desktop Sharing)), if it is not to the detriment of the Customer, particularly if it does not exceed the period of time it would take to provide those services on the ground, if no risks to IT security exist and if the technical requirements are in place on the Customer’s premises. SERRA will take adequate state-of-the-art measures to prevent virus infection or other impairments for the Customer.
9.4. The Customer is only entitled to damages and/or reimbursement of futile expenditure as defined by para 10 of these GTC; any other claims are excluded.
9.5. Second-hand contract items are sold under the exclusion of any material deficiency claims. The exclusion of liability for material defects does not apply to the Customer’s claims for damages and/or reimbursement of futile expenditure according to para 10 of these GTC.
SERRA assumes unlimited liability under the German Product Liability Act in the case of willful or grossly negligent harm to life, body or health, if and to the extent defects in the contract item were maliciously not disclosed, in cases in which a warranty or a procurement risk has been explicitly assumed, and in cases of willful or grossly negligent breach of duty. For property damage and financial damage caused by minor negligence SERRA assumes liability only in cases of breach of obligations whose fulfillment is indispensable for proper performance of the contract and may be therefore expected by the Customer (“fundamental contractual obligations”), limited however to typical damage foreseeable at the time the contract was concluded. Where the damage is covered by an insurance policy taken out by the Customer for the respective risk, SERRA assumes liability only for any loss suffered by the Customer in association with it, e.g., higher insurance premiums or interest payable until settlement by the insurance company. The same applies also to liability for employees and subcontractors of SERRA.
11. Limitation periods
11.1. Notwithstanding § 438 para 1 no. 3 BGB, the Customer’s claims arising out of defective goods or defects of title shall expire as soon as the contract item has exceeded the 2,500 operating hours that are typical within the first year, or once one year has passed since delivery (whichever occurs first). Where an acceptance procedure is agreed, the limitation period shall begin upon acceptance of the contract item.
11.2. The provisions on limitation periods mentioned above shall not apply to the limitation periods stipulated in the Product Liability Act. Also, §§ 438 para 1 no. 1, no. 2, and 438 para 3 BGB remain unaffected. Claims for damages made by the Customer in accordance with para 10 of these GTC are exclusively subject to the statutory limitation periods.
12. Offsetting, right of retention, assignment
12.1. The Customer is not entitled to offset a claim against SERRA’s claims except where the Customer’s counterclaim is undisputed or legally enforceable.
12.2. The Customer is not entitled to exercise a right to withhold payments except where it is based on claims arising from the same contractual relationship and the claim is undisputed or has been declared to be final and conclusive.
12.3. No claims against SERRA may be assigned except with SERRA’s prior written consent.
13. Confidentiality, data processing and data storage
13.1. The Customer is obliged to maintain confidentiality, to not make public or disclose any trade secrets of SERRA as defined by § 2 no. 1 GeschGehG (German Law on the Protection of Trade Secrets) and other confidential information, including, but not limited to, economically, legally, fiscally and technically sensitive data (collectively “Confidential Information”) that were entrusted or have become known to the Customer, whether the information is explicitly marked as confidential or not. Confidential Information does not include any information that is or becomes generally known or available for use to the public either before it is disclosed or forwarded to the Customer or at a later time without breach of a confidentiality obligation; information that was already known to the Customer before the disclosure and without breach of a confidentiality obligation; information developed by the Customer independently without use of or reference to Confidential Information of SERRA or information provided or made accessible to the Customer by an authorized third party without breach of a confidentiality obligation. This obligation shall remain in force for five (5) years after the respective business relationship has ended. This obligation also applies to the content of the respective contract.
13.2. The Customer is not entitled to use, exploit or gain any Confidential Information itself or for or through purposes other than those contractually agreed between SERRA and the Customer. Particularly with regard to products and items, the Customer is not entitled to obtain Confidential Information by way of so-called reverse engineering drawing on observation, examination, dismantling or testing.
13.3. Where documents containing Confidential Information have been provided in electronic form, the data must be deleted or – as far as technically possible – permanently blocked upon termination of the contract at the latest.
13.4. The Customer may disclose Confidential Information internally only under need-to-know restrictions i.e., to the necessary extent and to the persons who need the information to do their job. In particular, the Customer may disclose Confidential Information only to those employees who are under obligation of confidentiality or make it accessible to advisers who are required to observe professional secrecy, to the extent they are involved in processing the contractual relationship with SERRA and reasonably need the information. This agreement must be pointed out to the employees beforehand. The Customer shall take all necessary steps to ensure that all persons to whom Confidential Information is disclosed or made accessible handle that information in the same way the Customer is obligated to handle it.
13.5. The Customer shall also protect the Confidential Information against unauthorized third-party access by implementing adequate nondisclosure measures and shall comply with the statutory and contractual data protection provisions when processing the Confidential Information. This includes the implementation of state-of-the-art technical security measures (Art. 32 GDPR) and imposing the obligation of confidentiality and compliance with data protection regulations upon its employees (Art. 28 para 3 lit. b GDPR).
13.6. The Customer undertakes to pay a reasonable penalty the amount of which shall be determined by SERRA according to equitable discretion in case of a willful or negligent breach of the aforementioned confidentiality obligations; the amount shall be subject to review by the competent court in case of dispute. The amount of the forfeited penalty in each case is based mainly on the degree of confidentiality of the respective business secret or other Confidential Information as well as the number of unauthorized persons to whom the information is wrongfully disclosed.
14. Place of jurisdiction, governing law, miscellaneous
14.1. The exclusive place of jurisdiction for all disputes arising out of or in connection with business relationships with merchants is the location in which SERRA has its registered office, except in cases where an exclusive place of jurisdiction is stipulated. Irrespective of whether the Customer is a merchant or not, this shall also apply if the Customer moves its domicile or usual residence to a foreign country or if its domicile or usual residence is not known at the time when legal action is filed. SERRA is also entitled at any time to file an action with the court having jurisdiction at the Customer’s place of business.
14.2. The contractual relationship between SERRA and the Customer shall exclusively be governed by and construed in accordance with the laws of the Federal Republic of Germany, without giving effect to any conflict-of-laws rules of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG). For the interpretation of the contract including these terms and conditions the text written in German shall be exclusively authoritative.
14.3. Should any individual provision of these GTC be or become void, the contract and the remaining provisions will not be invalidated. The invalid or void provision shall be replaced by a provision with the same economic intention. The same applies in case of regulatory loopholes.