General Terms and Conditions of SERRA Maschinenbau GmbH
1. General information and validity
1.1. These General Terms and Conditions of Business (hereafter referred to as “GTC”) apply to all business relationships and transactions between SERRA Maschinenbau GmbH (hereafter referred to as “SERRA”) and its customers. However, the GTC apply only if the Customer is an entrepreneur (§14 German Civil Code (BGB)), a legal entity under public law or a specialized agency subject to public law as defined by § 310 para1 p. 1 BGB.
1.2. SERRA provides its products, services and offers exclusively on the basis of these GTC. No deviating, conflicting or supplementary general terms and conditions of the Customer shall apply, even if SERRA does not explicitly object to such terms and conditions in any given case. The acceptance of orders and contracts by SERRA without reservation is not to be understood as acknowledgment of such terms and conditions.
1.3. The GTC also apply to any future business relationships with the Customer. The GTC shall be deemed to be acknowledged when an order is placed or a contract awarded for the first time. The Customer acknowledges their exclusive validity as a framework agreement for all further orders and contracts.
1.4. Individual agreements concluded with the Customer on a case-to-case basis will take priority over these GTC in every case. 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 after conclusion of the contract (e.g., time limits, notification of defects, notice of withdrawal or price reduction due to defects) require the written form in order to be effective.
1.6. Any Incoterms® referred to in these GTC shall apply in their respective current version.
2. Conclusion of Contract
2.1. All prices quoted by SERRA are subject to change without notice.
2.2. The Customer is bound by the purchase order for a period of four weeks. This period shall be reduced to two weeks where SERRA has the contractual object “on stock”. No contract shall be deemed to be concluded until SERRA accepts the order either by sending written order confirmation (e.g., by letter, email, telefax) or by effecting delivery.
2.3. Any warranty of features and guarantees must be explicitly confirmed by SERRA in writing in order to be effective.
3. Prices and Price Adjustment
3.1. Prices are quoted in euros ex works SERRA (EXW Incoterms®) plus the applicable statutory sales tax and packaging costs, where applicable.
3.2. The Customer is under obligation to submit to SERRA or support SERRA in obtaining the documents required for verification of the delivery of goods exempt from sales tax (confirmation of arrival or equivalent).
3.3. The price list valid on conclusion of the contract shall apply in each case. Should any change in costs with a decisive influence on pricing – including, but not limited to, raw material prices, collectively agreed wages, transport costs as well as taxes and duties – occur following the conclusion of a contract, SERRA shall be entitled to adjust the agreed price at its own discretion. An increase in a specific cost may be used by SERRA as the basis for increasing the overall price only to the extent to which it is not offset by falling costs in any other areas. In the case of falling costs, prices will be reduced to the extent to which those falling costs are not wholly or partly offset through price increases in other areas. SERRA will select the date of a price adjustment so as to ensure the most favorable conditions for the Customer and so that the impact of cost reductions on pricing at least equals that of cost increases. In as far as SERRA does not deliver products/provide services as part of a continuous obligation, SERRA shall not be entitled to adjust prices for a period of four months after conclusion of contract. SERRA will give notice in writing of any price change at least six weeks before the change takes 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 and within a period of four weeks. If the Customer does not object, the price change shall be deemed to have been agreed and will apply from the date specified – which must not be before the date on which the announcement was mailed. If the Customer objects, SERRA shall have the right to extraordinary termination and/or rescission with three months’ notice, and SERRA is entitled to exercise these rights within two weeks of receipt of the objection. SERRA will explicitly point out this consequence to the Customer in the notification of the price change. Any ordinary or extraordinary right to terminate the contract shall remain unaffected by this.
4. Payment and Security
4.1. The purchase price and prices for additional services are payable immediately at the time of delivery and/or acceptance and receipt of the invoice. SERRA is entitled to request an appropriate advance payment. SERRA is under no obligation to deliver before receipt of the advance payment. Any completion deadlines agreed upon will be extended by the period of time elapsing until receipt of the advance payment. Where orders are placed by Customers whose residence or registered office is located abroad or if there is reasonable indication of a risk of nonpayment, SERRA is entitled at any time, also within the framework of an ongoing business relationship, to effect delivery, in whole or in part, only against payment in advance. SERRA will make this caveat known at the latest on confirmation of an order. In this case, delivery will not be effected until full payment is made.
4.2. In the case of a delay in payment, the Customer will incur interest at a rate of 9 percent above the base rate during the period in which they are in arrears.
4.3. SERRA is entitled to request adequate security (e.g. appropriate advance payment, bank guarantee, financing confirmation) for the purchase price, on or after conclusion of a contract.
4.4. If the provision of security is delayed by more than 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 Delayed Delivery
5.1. The products are delivered ex works SERRA (EXW Incoterms®), which is also the place of performance for delivery and any supplementary performance. The contractual object can be dispatched to another destination (sale by delivery to a place other than the place of performance) at the Customer’s request and expense. SERRA is entitled to determine the type of dispatch (including, but not limited to, the transport company, route, and packaging).
5.2. Delivery periods and deadlines will be agreed in writing and can be stipulated as binding or non-binding. They will only be deemed binding if explicitly confirmed by SERRA in the order confirmation. Delivery periods will commence on conclusion of the contract. Delivery periods and dates will be deemed to have been complied with on notification of readiness for delivery. Should the Customer fail to provide on request any information required for execution of the order, the delivery period and deadlines will be extended 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 intended purpose, the delivery of the remaining contractual objects is ensured and the Customer does not incur any significant additional outlay or additional expense, unless SERRA agrees to bear those costs.
5.4. The Customer is not entitled to demand delivery by SERRA (i.e., send a reminder) earlier than four weeks after expiry of the agreed non-binding delivery period/date. This period shall be reduced to two weeks where SERRA has the contractual object on stock. If a binding delivery date or a binding delivery period is exceeded, SERRA will be deemed to be in default as soon as the delivery date or delivery period is exceeded.
5.5. If SERRA is in default with a delivery, or if, for any reason whatsoever, it should become impossible for SERRA to deliver, SERRA’s liability for damages shall be limited in accordance with article 10 of these GTC.
5.6. In cases of force majeure (unforeseeable circumstances and events occurring through no fault of SERRA and which could not have been prevented with the due diligence of a prudent merchant, for example strikes and lockouts, war, fire, floods, obstacles to transport, shortage of labor, energy, raw materials or supplies, subsequent shortage of material, import and export restrictions, measures by public authorities, pandemics, epidemics or other operational disturbances), irrespective of whether SERRA or its sub-suppliers or subcontractors are affected by the events, which – through no fault of SERRA – make it temporarily impossible for SERRA to deliver the contractual objects by the specified date, SERRA will be released from its delivery obligations for the duration of the impediment plus an appropriate lead time, and to the extent of the impact of the incident. SERRA will notify the Customer without delay of the beginning and the end of the force majeure event and will make every reasonable effort to remedy the situation and, as far as possible, to limit its consequences. Should a force majeure event occur, SERRA and the Customer will decide jointly on what action to take. If the delay caused by the force majeure event should exceed eight weeks, each party has the right to terminate the contract for cause with respect to the part of the contract not yet completed or to rescind the contract.
5.7. Compliance with specified delivery dates and deadlines is subject to the proviso that SERRA receives proper and punctual deliveries from its own suppliers, that non-delivery is not attributable to SERRA and that SERRA has made arrangements for substitute deliveries from suppliers with due diligence. SERRA will notify the Customer as soon as possible of impending delays.
6. Acceptance
6.1. Where an acceptance procedure has been agreed, the Customer must accept the contractual object within 3 workdays after receiving notification of readiness for delivery. In this case, transfer of risk takes place on the acceptance date.
6.2. Minor defects do not constitute justified cause for refusing acceptance.
6.3. A contractual object shall be deemed to have been accepted if, after completion, SERRA 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 contractual objects made ready for delivery by SERRA and is thus in default of acceptance, SERRA shall be entitled, taking the Customer’s interests into account, to store the contractual objects on its premises or in another storage location of its own choice at the Customer’s risk and expense. SERRA will inform the Customer without delay of the storage location and provide details of the storage location, including, but not limited to, the costs for the Customer. The Customer must inform SERRA in a timely manner if punctual acceptance of the contractual objects made ready for delivery is not possible. Moreover, the Customer is under obligation to immediately seek other possibilities to pick up the contractual objects, immediately and with due care, including, but not limited to, alternative means of transport/routes.
6.5. In the event of non-acceptance, SERRA is entitled to exercise its statutory rights, including, but not limited to, substitute sales as defined by § 373 HGB (German Commercial Code). SERRA is entitled to demand compensation amounting to 15 % of the net purchase price. The amount of compensation may 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. Retention of title
7.1. Where the Customer is the end customer of the contractual objects delivered, the contractual objects 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 has been or is concluded, the Customer also undertakes to secure SERRA’s property rights with regard to contractual objects that have not yet been paid in full with the respective lessee/credit institution.
7.3. Where the Customer is a commercial reseller, the contractual objects 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 these contractual objects (“goods subject to retention of title”) in the course of ordinary business. The Customer is not entitled to take any action that would jeopardize SERRA’s ownership. The precondition for resale of the goods is the prior assignment to SERRA of all claims and rights which the Customer accrues against a third party through the resale, in the amount of SERRA’s invoices, until such time as the purchase price, including interest and costs, has been paid in full. SERRA hereby accepts the assignment.
Where the Customer integrates goods subject to retention of title into other goods, SERRA shall be entitled to 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 SERRA’s ownership expires through integration, mixing or processing, the Customer will, at the time of integrating, mixing or processing, transfer to SERRA the property rights to the new goods to which the Customer is entitled, to the amount of the invoice value of the goods subject to retention of title, and will 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 to SERRA the purchase price, remuneration or other claims to 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., in the case of an insurance claim, tort or loss of ownership through integration of the contractual object into a plot of land) and which refer to the goods subject to retention of title; SERRA hereby accepts the assignment. The purpose of the assignment of claims in accordance with 7.7, para. 1, is to provide security for all – including future – claims arising from the business relationship with the Customer.
The Customer has the revocable right to collect the receivables from the resale on their own behalf, even after the assignment. SERRA’s right to collect the receivables itself remains unaffected by this. However, SERRA undertakes not to collect the receivables as long as the Customer duly complies with their payment obligations. SERRA is entitled to request the Customer to disclose the assigned receivables and the respective debtors, to supply all information required for collecting the receivables, to provide the respective documents and to inform the debtor of the assignment in writing.
The Customer’s right to resell and use goods subject to retention of title and the authorization to collect assigned claims will expire with the discontinuation of payment or application for insolvency proceedings against the Customer. The statutory rights of an insolvency administrator – including a temporary insolvency administrator – will remain unaffected by this.
7.5. The Customer undertakes to treat the contractual object/the goods subject to retention of title with due care; in particular to take out sufficient insurance at the Customer’s own cost against damage caused by fire, water and theft to cover their replacement value, and to inform SERRA immediately of any attachment, confiscation, damage and/or loss; failure by the Customer to comply with this obligation will entitle SERRA to rescind the contract. The Customer will bear all costs arising in the context of a third-party action against an attachment and possibly for recovery of the contractual object/goods subject to retention of title, in as far as such items/goods cannot be withheld by third parties.
7.6. If the realizable value of the securities granted to SERRA in accordance with the above provisions 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 the case of deliveries to other jurisdictions in which the provisions above governing the retention of title do not have the same effect in terms of security as in Germany, the Customer will make every effort, without delay, to establish adequate security rights for SERRA. The Customer will 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, Rights of Use
8.1. The Customer is granted the non-exclusive right to use the software themselves, including the documentation. The Customer is not entitled to grant usage rights or licenses to affiliated companies as defined by §§ 15 et seq. AktG (German Stock Corporation Act), end customers or third parties.
8.2. The right of use is limited to the contractual object for which it is intended. Above all, the Customer is forbidden to decompile or disassemble the software or to engage 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 the prior express permission of SERRA.
8.4. All other rights to the software and the documentation, including copies, remain with SERRA and/or the software supplier.
9. Warranty
9.1. Any information provided in descriptions that are valid on conclusion of the contract regarding the scope of delivery, appearance, performance, dimensions and weight etc. of the contractual object forms part of the contract; such data are to be deemed approximate and not guaranteed, serving only as a measure to determine whether a contractual object is free of defects. SERRA reserves the right to modify the appearance, shape, engineering design or scope of delivery of the contractual object, provided that the contractual object is not changed substantially and that 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 has complied with their statutory obligation to inspect the goods and give notice of defects (§§ 377, 381 HGB). SERRA must be informed without delay of any defect discovered during the inspection or later. Without delay is understood to mean giving notice within two work days, whereby punctual dispatch of the notification of defects is sufficient for compliance with the warranty conditions. Independent of this obligation to inspect the goods and give notice of defects, the Customer must give written notice of obvious defects without delay, at the latest within seven working days of the date of delivery. Here, too, it will suffice to dispatch notification within this period. No liability will be accepted for a defect that was not reported due to failure on the part of the Customer to properly inspect the goods and/or give notice of defects.
9.3. In the case of a justified notice of defect, SERRA is entitled, at its own discretion, either to eliminate the defect or supply a flawless item (supplementary performance). Should the first supplementary performance be unsuccessful, SERRA is entitled to at least a second supplementary performance. In the event of failure of or refusal to effect supplementary performance, or if a reasonable deadline set by the Customer in writing expires, or where it is not necessary to grant a period of grace under statutory provisions, the Customer is entitled to rescind the contract or reduce the purchase price. If the defect is minor, the Customer may only exercise the right to reduce the price.
SERRA reserves the right to remedy defects by remote maintenance or remote diagnostics (possibly via a remote access (VPN connection or Remote Desktop Sharing)), provided that this 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 site, if no risk to IT security is posed and the technical requirements are met on the Customer’s premises. SERRA will take appropriate state-of-the-art security measures to prevent virus infection or other adverse effects for the Customer.
9.4. The Customer is only entitled to claim damages and/or reimbursement of fruitless expenditure as defined by para 10 of these GTC; any other claims are excluded.
9.5. Used contractual objects are sold under the exclusion of any kind of liability for material defects. The exclusion of liability for material defects does not apply to claims by the Customer for damages and/or reimbursement of fruitless expenditure as defined by para 10 of these GTC.
10. Liability
We assume unlimited liability under the German Product Liability Act for willful or grossly negligent injury to life, body or health, if and to the extent that defects in the contractual object were fraudulently not disclosed, in cases where warranty or procurement risks have been expressly assumed, and in cases of willful or grossly negligent breach of duty. In the case of property damage and financial damage caused by minor negligence, SERRA assumes liability only in cases of the breach of obligations whose fulfillment is indispensable for proper performance of the contract and may be therefore expected by the Customer (“fundamental contractual obligations”), but limited to damage typically occurring under this type of contract and foreseeable at the time the contract was concluded. In as far as 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 of claims by the insurance company. This also applies to liability for employees and vicarious agents of SERRA.
11. Limitation of Liability
11.1. Notwithstanding § 438 para 1 no. 3 BGB, the Customer’s claims arising from defects in quality and title shall expire as soon as the contractual object has exceeded the 2,500 operating hours that are typical within the first year of operation, or after one year from the date of delivery (whichever occurs first). Where an acceptance procedure is agreed upon, the limitation period begins on acceptance of the contractual object.
11.2. The limitation periods for liability given above do not apply to limitation periods stipulated in the German Product Liability Act. Moreover, §§ 438 para 1 no. 1, no. 2, and 438 para 3 BGB remain unaffected by this. The statutory limitation periods apply exclusively in the case of claims for damages made by the Customer under para 10 of these GTC.
12. Offsetting, Right of Retention, Assignment
12.1. Customers are only entitled to offset their own claims against the claims of SERRA where the Customer’s counterclaim is undisputed or legally enforceable.
12.2. The Customer is not entitled to exercise a right of retention except where it is based on claims arising from the same contractual relationship and the claim is uncontested or has been declared legally valid.
12.3. Claims against SERRA may only be assigned with SERRA’s prior written consent.
13. Confidentiality, Data Processing and Data Storage
13.1. The Customer undertakes to maintain confidentiality, not to make public or disclose any trade secrets of SERRA as defined by § 2 no. 1 GeschGehG (German Law on the Protection of Trade Secrets) or 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, irrespective of whether such information is explicitly marked as confidential. Confidential Information does not include any information that is or becomes generally known or available 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 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 shall not be entitled to use, exploit or gain any Confidential Information themselves or for or through purposes other than those contractually agreed upon between SERRA and the Customer. In particular in the case of products and items, the Customer is not entitled to obtain Confidential Information by way of so-called reverse engineering, by drawing on observation, examination, dismantling or testing.
13.3. Where documents containing Confidential Information have been provided in electronic form, at the latest on termination of the contract, the data must be deleted or – as far as technically possible – access to the data permanently blocked.
13.4. The Customer may disclose Confidential Information internally only under need-to-know restrictions, in other words, restricting disclosure strictly to the absolutely necessary data and to those persons who require the information in order to carry out their work. In particular, the Customer may disclose Confidential Information only to those employees who have signed a non-disclosure agreement or to consultants who are required to observe professional secrecy, in as far as they are involved in processing the contractual relationship with SERRA and may reasonably be deemed to require the information. Employees must be made aware of this agreement in advance. The Customer will take all necessary steps to ensure that all persons to whom Confidential Information is disclosed or made accessible handle that information in the same manner in which the Customer is obliged to do so.
13.5. The Customer will also protect the Confidential Information against unauthorized access by third parties by means of appropriate non-disclosure measures and will 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 placing its employees under obligation to maintain confidentiality and comply with data protection regulations (Art. 28 para 3 lit. b GDPR).
13.6. In the event of a willful or negligent breach of the aforementioned confidentiality obligations, the Customer undertakes to pay a reasonable penalty, the amount of which will be determined by SERRA according to equitable discretion and will be subject to review by the competent court in case of dispute. The amount of the contractual penalty incurred in each case will be based primarily 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 was wrongfully disclosed.
13.7. SERRA processes personal data in compliance with the provisions of the EU General Data Protection Regulation (Regulation (EU) 2016/679 of the European Union (GDPR)) as well as the other applicable statutory data protection provisions, including, but not limited to, the provisions of the German Federal Data Protection Act (BDSG). All data are treated as confidential. For further information, see our separate privacy policy at https://www.serra-sawmills.com/de/datenschutz, which includes a detailed overview of how personal data is processed by our company. Furthermore, in as far as this is necessary for remote maintenance and remote diagnostics, the parties will enter into a separate written agreement relating to order processing in compliance with Art. 28 GDPR.
14. Place of Jurisdiction, Choice of Law, Miscellaneous
14.1. The exclusive place of jurisdiction for all present and future claims arising out of or in connection with business relationships with registered traders is the location in which SERRA has its registered office, except in cases where an exclusive place of jurisdiction is stipulated by law. Irrespective of whether the Customer is a registered trader, this shall also apply if the Customer moves their place of residence or habitual residence to a foreign country or if the Customer’s place of residence or habitual 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 will be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of any conflict-of-laws rules of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG). The German version of the text is exclusively binding for the interpretation of the contract, including these terms and conditions.
14.3. Should any provision of these GTC be or become invalid, the validity of the contract and the remaining provisions will not be affected. The invalid or void provision will be replaced by a provision which as far as possible approximates its intended commercial purpose. The same applies to any regulatory loopholes.
Version: 08/2021