General Terms and Conditions of Sale –
E-FARM.COM as of 29th of July 2020
I.Scope of Application
These Terms and Conditions of Sale are binding for all contracts of sale concluded by E-FARM. Buyer’s Purchasing Terms and Conditions are hereby rejected and shall not apply, even if no express objection is being made by E-FARM when the order is confirmed or if E-FARM makes delivery without reservations being aware of Buyer’s Terms and Conditions. These Terms and Conditions of Sale only apply vis-à-vis entrepreneurs(Unternehmer) in terms of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). By placing an order or submitting an offer, Buyer confirms that he is an entrepreneur and, when concluding the contract with E-FARM, acts in exercise of his or its trade, business or profession. In these Terms and Conditions of Sale the headings are for reference only and will not affect their interpretation.
II.Conclusion of Contract
All offers by E-FARM shall not be binding unless explicitly stated otherwise.Offers by E-FARM via its website www.e-farm.com shall generally not be binding and subject to its written confirmation. Buyer submits an offer by placing its order. The contract is only concluded upon written confirmation by E-FARM. The parties agree that the provisions contained in sections 312i paragraph 1 nos. 1-3 of the German Civil Code (BGB) shall not apply. Any agreements made between the parties at the time of conclusion of contract are fully stipulated in writing. The employees of E-FARM are not entitled to verbally make any deviating agreements. Unless otherwise agreed, references to the INCOTERMS are meant to refer to the INCOTERMS in the most current version.
III.Prices and Taxes
If not otherwise agreed, prices are in EURO (€). Any increase or imposition of new taxes, duties and sale fees, which affects the export and comes into force after the signing of the contract will be for Buyer’saccount. The same shall apply to freight increases not attributable to E-FARM.
IV.Non-Availability of Goods
The Goods presented by E-FARM on its website are individual goods owned by third-party- suppliers that will be purchased by E-FARM in its own name and for its own account in order to fulfil the contract with Buyer. E-FARM will notify Buyer without undue delay in the event the purchased Goods may no longer be available from the respective supplier. If E-FARM becomes aware of the non-availability of the Goods before sending its order confirmation, E-FARM will not confirm the order but will give notice of the non-availability to Buyer instead. In this case, a contract is not concluded. If E-FARM only becomes aware of the non-availability after conclusion of contract and notifies Buyer in accordance with sentence 2 of this paragraph, either Party has the right to rescind the contract on the concerned Goods. Alternatively, the Parties may agree that E-FARM shall try to find acceptable replacement goods. If such replacement goods are found and both Parties agree on the terms and price of the replacement, the order will be adjusted accordingly. If the purchase price for the replacement goods is lower than the initial purchase price and Buyer has already made the payment, E-FARM will issue an adjusted invoice and reimburse the resultant price difference to Buyer without undue delay. If no replacement goods can be found or the Parties do not agree on the terms and price of the replacement, either Party again has the right to rescind the contract. In that case, E-FARM will return payments or payment instruments already received.
If not otherwise agreed, all payments payable to E-FARM under the contract will become due ten (10) days after receipt of the invoice. Place of performance for all payments to E-Farm shall be E-FARM’s place of business. Payments shall be effected on the bank account indicated in the respective invoice of E-FARM in the currency agreed between the parties and stated in the respective invoice. If Buyer fails to pay E-FARM any amount due pursuant to the contract, E-FARMreserves the right to charge interest from the due date for payment at 9percentage points above the base rate according to Section 247 BGB p.a. Further claims remain unaffected. If Buyer fails to effect payment within the terms of the contract or if, after conclusion of contract, it becomes apparent that Buyer’s financial situation has deteriorated and that therefore E-FARM’s claim for payment is jeopardized E-FARM shall be entitled to retain delivery and to either demand from Buyersecurity in E-FARM’s choice without delay or demand immediate payment. If Buyer does not comply with such demand within a reasonable period of time fixed by E-FARM, E-FARM shall be entitled to rescind any unfulfilled contract or part thereof. Buyer shall have no right to set-off or to withhold payments of any amount payable under the contract to E-FARM due to any counterclaims of Buyer unless such counterclaims are undisputed or determined by a non-appealable court decision. These restrictions shall not apply to any counterclaims of the Buyer due to defects or partial non-fulfilment of contract if these counterclaims result from the same contract as the claims of E-FARM. E-FARM may set-off any claim by Buyer against their own claims against the Buyer resulting from any transactions between Buyer and E-FARM. The provisions of clause V.5. shall apply accordingly to claims of affiliated companies of E-FARM.
Unless otherwise agreed and stated in the sales confirmation, the Goods shall be shipped EXW (INCOTERMS); the agreed delivery date is met if the Goods are made available for shipment to the Buyer or respectively to the carrier appointed by the Buyer at due time. If E-FARM undertakes to organize the transportation of the goods delivery shall be made CIP (INCOTERMS) to the indicated place of destination if not otherwise agreed and stated in the sales confirmation; the delivery obligations of E-FARMare fulfilled in due time if the Goods are handed over to the carrier in a timely manner. E-FARM shall be entitled to adjust the transportation fee in case the transportation costs increase after the invoice date for reasons not attributable to E-FARM. All contracts are concluded under the condition that E-FARM’s Suppliers are delivering the Goods as contractually agreed with E-FARM. If on the Buyer’s side any administrative confirmations, foreign exchange permits and/ other official approvals are necessary these will have no bearing on the contract, and it is Buyer’s duty to obtain them and bear the costs. Unless otherwise agreed in writing, part deliveries shall be permissible to the extent reasonable for Buyer. If Buyer is responsible for the transport of Goods, those Goods have to be picked up by Buyer or the carrier appointed by the Buyer immediately after they have been reported ready for shipment. If the Buyer is in default of acceptance E-FARM shall be entitled to store the Goods for Buyer’s account without liability, if necessary in the open, or, after prior warning notice, to sell them for Buyer’saccount. Any costs and risks will be borne by Buyer. The risk of accidental loss and deterioration of the Goods shall be transferred to the Buyer as defined in the applicable INCOTERMS provision. If delivery is made CIP the risk of accidental loss or deterioration of the Goods or accidental delay shall pass to the Buyer upon handing over the Goods to the carrier.
In case of prohibition of export or in the event of blockade, hostilities or any executive or legislative act of the country of origin or the territory where the port or ports of shipment named in the contract is/ are situated restricting export, whether partially or otherwise, or if E-FARM is prevented from fulfilling its obligations by any Act of God, strike, legitimate lock-out, riot or civil commotion, breakdown of machinery not attributable to E-FARM or any other event of force majeure the delivery obligations of E-FARM shall be suspended for the duration of the impediment. Each of the parties shall be entitled to rescind the contract in whole or in part if the prohibition or restriction continues for more than three months. If delay in shipment is likely to occur for any of the above reasons, E-FARM shall give written notice to Buyer. The notice shall state the reasons for the anticipated delay. Buyer shall, if necessary, arrange that the period of validity of the respective banker’s credit instructions, letters of credit, import licences,foreign exchange permits and other relevant documents will be extended accordingly. Buyer shall not be entitled to claim compensation from E-FARM in any of the above mentioned events. Claims based on § 285 para. 1 BGB (German Civil Code) remain unaffected from this limitation.
VIII.Non-performance by the buyer
If the Buyer refuses to fulfil his contractual obligations to accept and/or payor does not fulfil them despite a reasonable grace period, E-FARM is entitled to withdraw from the contract and, if necessary, to use the machine in another way. E-FARM is also entitled to claim a lump sum compensation of 10% of the net purchase price, unless the Buyer proves that he is not responsible for his breach of duty. If the Buyer has made adown payment, E-FARM is entitled to withhold the amount up to the aforementioned amount. The Buyer reserves the right to prove that E-FARM did not suffer any damage or that the damage was significantly lower. E-FARM reserves the right to prove that E-FARM actually suffered higher damages. Other rights and claims remain unaffected.
IX.Retention of Title
All Goods delivered shall remain E-FARM’s property and title shall not pass onto Buyer until E-FARM has received the contractual payments in full. Until the complete payment Buyer shall keep the Goods as E-FARM’s trustee and shall neither pledge them nor sell them to third parties or secure these Goods in favour of third parties. In case of outstanding payments E-FARM is entitled to forbid any combination, mixing, processing or transformation of the Goods. Processing or transformation of the Goods in which title is retained is always carried out for E-FARM as manufacturer without any liability arising from it for E-FARM. Should the delivered Goods in which title is retained be combined, mixed, processed or transformed with other Goods by Buyer, E-FARM shall have title or joint title to the resultant product in proportion to the value of the Goods supplied. If E-FARM’s ownership expires due to combining, mixing, processing or transformation Buyer shall assign to E-FARM title or joint title to the new product in proportion to the value of the Goods supplied. The new products shall be deemed to be Goods in which title is retained as defined in clause VIII.1. in proportion to the value of the Goods supplied Irrespective of clause VIII.1. above, Buyer shall be entitled to resell the Goods to which E-FARM holds title in the ordinary course of business; however Buyer assigns the claims against its customers resulting from the resale of the Goods, up to the invoice amount (including VAT) of the claim of E-FARM. Buyer accepts the assignment. Buyer remains authorized to collect this claim after the assignment. E-FARM undertakes not to collect the claim as long as Buyer meets his payment obligations from the proceeds received and as long as no application for the opening of insolvency proceedings over his assets has been filed. If these requirements are no longer met, E-FARM may request that the Buyer discloses to E-FARM the assigned claims and the respective debtor and provide all information required for the collection, hand over the associated documents and disclose the assignment to the debtor. In case Buyer’s property is seized or otherwise becomes subject to third party rights Buyer shall inform E-FARM immediately. If the value of such securities exceeds E-FARM’s claims by more than 20 %, E-FARM will, upon Buyer’s request, surrender securities at their option equivalent to the exceeding value. In case these provisions should not be effective in Buyer’s domicile or in the country where the Goods are located, appropriate securities according to the applicable laws will be considered agreed upon between the parties. If the cooperation of Buyer is necessary for the establishment of such rights, Buyer is obliged, at his own expense, to take all measures for the establishment and preservation of such rights upon E-FARM’s request.
E-Farm does not warrant that the contracted Goods are suitable for any specific use or purpose unless explicitly agreed between the parties. The Goods comply with the legal and technical requirements applicable in the country where the machine was last registered. E-FARM does not warrant that the Goods will also comply with any legal and technical requirements in other countries which might deviate from these requirements. The Buyer is responsible for checking the applicable requirements and for obtaining any permits or authorisations required in order to use the Goods at the place of destination. Unless E-FARMS sells newly produced Goods (neu hergestellte Sachen), warranty claims for defects of the Goods shall be excluded except for claims for damages of Buyer due to culpable violations of life, body or health or due to gross negligence or intentional breach by E-FARM, its representatives or vicarious agents. Without prejudice to the foregoing, the Buyer may enter into a separate warranty or guarantee agreement with E-FARM. In that case, separate warranty terms and conditions shall apply in respect of the obligations undertaken by E-FARM.
XI.Inspection of Goods
Buyer may commission an inspection of the Goods to be carried out prior to the conclusion of the sales contract. If Buyer choses this option E-FARM will commission (i) DEKRA e.V., (ii) another comparable technical inspection company, (iii) an authorized dealer of the Goods or (iv) the producer of the Goods as an expert (hereinafter referred to as the “Expert”) to carry out the inspection according to their respective general terms and conditions and will make available the inspection results in writing to Buyer. For the avoidance of doubt, the Expert shall not be a vicarious agent (Erfüllungsgehilfe) of E-FARM, in particular, E-FARM does not assume any own obligation for the inspection of the Goods; it remains the sole responsibility of Buyer to inspect the Good prior to entering into any contract with E-FARM. Irrespective of E-Farms existing limited warranty (clause IX.) and liability (clause XI.) obligations against the Buyer (which remain unaffected), E-FARM will assign any claims for non-performance, mal-performance, default or any other breach of contractual obligations against the Expert to Buyer. Buyer accepts the assignment. Buyer shall be only entitled to assert any claims against E-FARM (within the agreed scope of warranty and liability between E-FARM and Buyer) if Buyer’s attempts to enforce the assigned claims against the Expert in court or to execute a judgment against the Expert fail. The limitation period of the claims against E-FARM will be suspended for the duration of the lawsuit against the Expert. Claims for damages of Buyer due to culpable violations of life, body or health or due to gross negligence or intentional breach by E-FARM, its representatives or vicarious agents remain unaffected. Neither the agreement on the inspection of the Goods nor the performance of such inspection give rise to any claim for the delivery of the respective Goods. E-FARM will use its best endeavours to ensure that the owner of the Goods (third-party-supplier) does not otherwise dispose of the Goods. However, by conclusion of the agreement on the inspection E-FARM does neither guarantee nor warrant that the Goods will remain available for purchase after inspection. If the Goods are not available for purchase any longer although Buyer places its purchase order without undue delay after inspection, E-FARM offers to reimburse the remuneration for the inspection to buyer upon buyer’s written request. If the Goods are not available for inspection any longer, buyer may either choose another machine for inspection or rescind the agreement on the inspection and claim reimbursement of the remuneration.
Unless stipulated otherwise, E-FARM’s liability is limited to damages caused by wilful misconduct or gross negligence on behalf of E-FARM, its executives or vicarious agents or for culpable breach of essential contract obligations. Essential contractual obligations are those obligations that have to be met in order to achieve the purpose of the contract and on the compliance with which the Buyer regularly relies on and may reasonably rely on. In the event of culpable breach of essential contract obligations E-FARM shall be, except in the case of intent or gross negligence, only liable for foreseeable, contract specific typical damages. This restriction of liability shall also apply for the benefit of E-FARM’s executives or vicarious agents. The above mentioned liability restrictions shall not apply in case of harm to life, physical injury or harm to health or in case of liability under the Product Liability Act.
XIII.Use and Export of Goods
In accordance with the applicable laws and regulations in the Federal Republic of Germany and the European Union, all contracts are entered into under the condition that the Goods will under no circumstances be used for any military purposes, directly or indirectly unless otherwise authorized by German governmental or any other competent authorities. In view of the legal requirements referred to in paragraph 1, Buyer warrants that he will ship the Goods to the country of destination as agreed in the contract. If Buyer desires to change the destination, he will have to get E-FARM’s written consent in advance. Upon E-FARM’s request Buyer is obliged to submit clear evidence as to the whereabouts of the goods. In case Buyer violates the obligations set forth in this provision he has to indemnify E-FARM for any and all consequences of whatever nature which may result from such breach of contract, unless he proves that he is not responsible for such breach.
E-FARM reserves the right to assign this contract or any part thereof to any of its affiliated companies. Buyer may receive on request a full list of E-FARM’s affiliated companies. Buyer shall not be entitled to assign this contract or any part of it without prior written consent by E-FARM.
XV.Choice of Law; Arbitration and Jurisdiction
The governing law shall be solely the German law; application of the UN convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded. Any disputes arising out of or in connection with the agreement or with respect to its validity shall be finally settled by the Court of Arbitration of the Hamburg Chamber of Commerce, to the exclusion of the ordinary courts of law. Language of arbitration shall be German. Instead of initiating arbitration proceedings pursuant to sentence 1 of this subsection, E-FARM shall, at its choice, be alternatively be entitled to file a lawsuit with the competent state courts in Hamburg, Germany.
Should any provision of these provisions be or become illegal, invalid or unenforceable, the validity of the remainder shall not be affected. Instead of the invalid or unenforceable provision the statutory provisions shall apply.