GASA Group Germany GmbH General Terms and Conditions

As at: 01/11/2018 

 

 

1. Scope of the terms and conditions

The deliveries, services and offers of GASA Group Germany GmbH occur exclusively based on these General Terms and Conditions (GTCs). To this extent, they also apply to all future business relationships, even if the GTCs are not expressly re-agreed. The terms and conditions are considered as accepted at the latest upon acceptance of the goods or services. Any declarations contrary to this by the customer or supplier, with reference to their own terms and conditions of business or purchase, are hereby expressly contradicted. Deviations from these GTCs shall only be effective if GASA Group Germany GmbH has confirmed them in text form. 

2. Contractual relationship

All sales – even if effected from horticultural undertakings with the consent of GASA Group Germany GmbH – occur only for the account of GASA Group Germany GmbH. It is only after payment has been made to GASA Group Germany GmbH that the purchaser is relieved of its payment obligations. Agreements between the purchaser and the upstream suppliers (horticulture undertakings) shall result in obligations for GASA Group Germany GmbH only upon the latter’s confirmation thereof in text form. If contracts of sale are concluded orally or by telephone, subject to confirmation in text form, then only the content of the text-form confirmation shall prevail, unless the customer or supplier immediately object to this.

3. Offer and contract conclusion

All offers made by GASA Group Germany GmbH shall apply only for the specified duration, as long as stocks last, and are otherwise subject to change without notice. Orders become binding for GASA Group Germany GmbH only once they are confirmed by GASA Group Germany GmbH in text form. The same applies to supplements, amendments or subsidiary agreements. The mere sending and/or presentation of samples does not result in any obligation to supply goods of the same size and quality. The orders are irrevocably issued vis-à-vis GASA Group Germany GmbH. GASA Group Germany GmbH reserves a unilateral right to withdraw from the contract, in particular in the event that the purchaser ceases its payments, or if insolvency proceedings are applied for regarding the assets of the purchaser, or if enforcement measures are taken against the purchaser, or a notice of dishonour of a bill or cheque is filed against the latter. Purchaser reservations are deemed to be binding commitments vis-à-vis GASA Group Germany GmbH, and oblige the customer to accept the ordered goods. GASA Group Germany GmbH assumes no guarantee regarding the ability of upstream suppliers to deliver. Reservations with suppliers by GASA Group Germany GmbH only become binding when the customer actually places an order and the relevant purchase order is subsequently raised by GASA Group Germany GmbH.

4. Provision, delivery and delivery periods

Delivery deadlines and delivery periods can be agreed as binding or non-binding; binding delivery deadlines and delivery periods must be first confirmed in text form by GASA Group Germany GmbH. GASA Group Germany GmbH is entitled to provide the contractual performance in partial deliveries, insofar as this is reasonable for the purchaser. Call orders are to be scheduled in text form. Partial deliveries from suppliers are only admissible with confirmation in text form by GASA Group Germany GmbH. Delivery takes place, unless otherwise agreed, within the agreed delivery time, commencing upon dispatch. In the event of non-compliance with the delivery periods, the customer is entitled to withdraw from the contract if it has given GASA Group Germany GmbH a reasonable period of grace, beginning when GASA Group Germany GmbH receives notice of this period of grace at its premises. In the event of force majeure and other unforeseeable, extraordinary circumstances for which neither party is at no fault, such as strikes, disruption of operations, energy-supply difficulties, frost, hail and other weather damage – even if affecting the upstream supplier or during transport
– the delivery period shall be extended by the duration of the impediment and its after-effects. GASA Group Germany GmbH may only invoke the above circumstances if it or its vicarious agent (for example, the forwarding agent) notifies the purchaser without delay, to the extent that such circumstances are not already generally known. In the event that GASA Group Germany GmbH suffers non-delivery or insufficient delivery by its suppliers, GASA Group Germany GmbH shall be released from its delivery obligations in whole or in part. GASA Group Germany GmbH undertakes to cede its claims against the supplier in this case to the purchaser, at the latter's request. Further legal claims of the customer concerning the right to withdraw from the contract are excluded, to the extent that these claims are not based on intent or gross negligence on the part of GASA Group Germany GmbH or its employees. In addition, GASA Group Germany GmbH shall in no case be liable for delays in delivery by the carrier, railway or other entities involved in the delivery, transport, transshipment, etc. if the carrier has been carefully selected. Packaging, insurance, import/freight charges and the like shall be borne by the purchaser, unless otherwise agreed. Unless the purchaser otherwise determines the manner of shipment, it shall be sent in the best way, as determined by GASA Group Germany GmbH. Increases in transport costs, fee changes, costs of customs clearance, extra expenses due to ice, flooding or low water may be applied by GASA Group Germany GmbH on top of the agreed purchase price. Insurance against transport damage is taken out only at the request and expense of the purchaser. All delivery dates from suppliers to the GASA Group Germany GmbH are fixed delivery dates.

5.  Transfer of risk and notices of defects

The risk passes to the purchaser as soon as the goods are handed over to the purchaser. If a dispatch occurs, the risk passes to the purchaser as soon as the goods have been handed over to the person performing the transport, or have left the distribution point for the purpose of dispatch, regardless of whether the shipment occurs starting from the place of performance, and regardless of who bears the freight costs. If the goods are ready for dispatch and if the dispatch or acceptance is delayed for reasons for which GASA Group Germany GmbH is not responsible, the risk passes to the purchaser when notice of readiness for dispatch is received. If delivery is agreed as "carriage paid", the risk passes to the purchaser upon delivery to the latter. The risk in the case of deliveries by suppliers to GASA Group Germany GmbH passes to GASA Group Germany GmbH upon acceptance, and once the goods inspection has been completed.

Where the delivered goods have non-hidden defects, the purchaser must immediately send written notice thereof upon receipt, in text form. Other defects must be immediately notified by the purchaser upon their discovery, in text form. In the case of perishable goods (for example: plants, cut flowers, salad etc.) defects may only be notified within 24 hours of the delivery being received. If the purchase is a commercial transaction for both parties, then the provisions of Sections 377 et seq. HGB (German Commercial Code) continue to apply. In the case of samples, for example for the purpose of inspecting for the presence of residues of plant protection products etc., mixed samples from a delivered consignment are not recognised, if it has been proven – via the marking of individual batches/boxes, etc. – that the consignment has been supplied by different suppliers. The purchaser must instead, taking into account the traceability requirement according to Article 18 Regulation (EC) No 178/2002, document the manufacturer designated by the marking, to whom the test is to be allocated. The purchaser is obliged to give GASA Group Germany GmbH the opportunity to have a representative inspect the goods in order to verify the validity of the complaint. If the purchaser disposes of the goods forming the subject of a complaint without GASA Group Germany GmbH waiving its right to inspection and investigation, then the purchaser’s complaint shall lapse. If the purchaser’s complaint proves to be unfounded, then it must refund GASA Group Germany GmbH for any expenses for the investigation.

6.  Liability for defects and damages

In the event of a justified notification of defects, the claims of the purchaser are initially limited to a replacement delivery. If a replacement delivery is not possible or if this fails, then a reduction in price may be required.

Claims for any loss or damage occurring during train transport or freight forwarding is to be asserted towards the freight forwarder for “ex works” deliveries, and the relevant carrier/freight forwarder is to have such loss/damage certificated prior to the transfer of the consignment. Damage occurring during transport does not entitle customer to refuse acceptance. In the case of “carriage paid” delivery, any loss or damage is to be immediately reported to GASA Group Germany GmbH, and noted on the transport documents.

No liability is accepted for defects or damage occurring due to the following reasons:

- Unsuitable or improper use
- Natural wear and tear; faulty or negligent handling
- Chemical, electronic, biological or similar influences (such as radiation, heat, light, lack of light, etc.) unless they are the responsibility of GASA Group Germany GmbH.

The purchaser’s claims for damages – regardless of the legal grounds, and in particular due to infringement of duties arising in connection with contractual obligations and tort – are excluded. This does not apply insofar as liability is mandatory, in particular

- In cases of intent or gross negligence,
- In the event of injury to life, limb or health,
- Due to the assumption of a guarantee of the existence of a property,
- In the event of breach of fundamental contractual obligations or
- Due to claims under the German Product Liability Law.

A change in the burden of proof to the detriment of the purchaser is not connected with any of the above provisions.

7.  Sales and transport packaging

All objects used in transporting goods are termed “transport equipment” at GASA Group Germany GmbH. This includes CC containers, EC containers, Euro pallets. GASA Group Germany GmbH provides the purchaser with the transport equipment on a sale or rental basis. All movements of the reusable transport equipment are recorded on the accounts, if there is no 1-to-1 replacement. If there is no 1-to-1 replacement, GASA will invoice for the costs of providing the transport equipment.

Transport equipment for the internal transportation of goods on the grounds of GASA Group Germany GmbH may not be placed on the customer's vehicle.

GASA Group Germany GmbH distinguishes between sales and transport packaging. Transport packaging is the removable encasement of products or of transport equipment, and is used for the purpose of transport and the protection of the transported materials. Packaging is sold as disposable packaging at the valid prices at the applicable prices; alternatively, the purchaser is provided with reusable packaging against the payment of a deposit and a usage fee.

GASA Group Germany GmbH participates in a “dual system”, and does not therefore take back disposable packaging. GASA Group Germany GmbH’s suppliers are obliged also to take part is a dual system. If a supplier cannot provide evidence of this, the GASA Group Germany GmbH receives a packaging fee amounting to 0.25% of the relevant invoice.

Transport equipment and reusable packaging are to be treated with care by the purchaser, and returned in a good, clean condition. Damaged packaging or transport equipment will not be taken back. Returns can only be made within the scope of quantities delivered by GASA Group Germany GmbH, against the presentation of receipts issued by GASA Group Germany GmbH. The return of transport equipment of a similar value is permitted. The “Delivery terms and conditions for CC” of GASA Group Germany GmbH other wise apply. A current version of these can be found on GASA Group Germany GmbH’s website.

 (https://gasa-germany.com/de/service/408-anlieferbedingungen-cc)

If the purchaser or supplier is late in returning reusable packaging or transport equipment, then GASA Group Germany GmbH may demand damages in the amount of the purchase price at the time of the most recent procurement, whereby the customer reserves the right to prove that GASA Group Germany GmbH has not incurred any losses or has done so to a lower level. Any deposit paid by the purchaser shall be offset against any such claim for damages.

The prices, usage fees or deposits applicable in each case will be recorded via multiple-address messages, notices or any other appropriate form.

8. Disposal

The disposal of disposable packaging resulting from GASA Group Germany GmbH deliveries is a matter for the purchaser, subject to legal return obligations and/or other legal bases.

9. Payments

All prices are given in EUR, and are exclusive of statutory VAT. Unless otherwise agreed, payment shall be made immediately upon receipt of invoice, without any deductions. If the purchaser has granted a debit order or a direct debit authorisation of which GASA Group Germany GmbH has made use, the purchaser renounces the possibility of withdrawing these vis-à-vis the relevant bank. The purchaser shall bear the cost of all international transfers.

If delivery is made on time, the due date for payment is calculated according to the date of delivery. In the event of default, any discount agreed shall no longer be valid; GASA Group Germany GmbH may also demand interest on arrears at the customary bank rate. The purchaser may attempt to prove that any damages caused by such delay have in fact not occurred. The statutory interest rate shall be payable as a minimum.

GASA Group Germany GmbH expressly reserves the right to refuse cheques and bills of exchange. Acceptance is only ever on account of performance; payment is only deemed to have been made when the cheque or bill of exchange has been cashed. Discount charges and charges for bills of exchange shall be borne by the customer and a payable immediately. If several bills of exchange or cheques are given for a given delivery, then the fact of a bill of exchange or a cheque not being honoured entitles GASA Group Germany GmbH to immediately claim the entire debt balance arising from the business relationship, even if bills of exchange or cheques are given in this respect. A payment is only then considered to have been effected if GASA Group Germany GmbH can dispose of the amount. All mutual claims arising from the business relationship are given in a ledger account, to which the provisions of Sections 355 et seq. HGB apply. Account statements of GASA Group Germany GmbH shall be considered as balance statements. Such account statements are generated at least once a year. The balance is considered to be accepted if the customer does not raise objections (in text form) to it within one month after receipt of the balance statement. GASA Group Germany GmbH is entitled, despite any contrary provisions of the customer, to offset payments against its oldest claim, initially. If costs or interest have already been incurred, GASA Group Germany GmbH shall be entitled to the payment of the costs first, then of the interest and lastly of the main performance.

The customer is entitled to set-offs, retention or reduction, even if notices of defect or counterclaims are asserted, only if the counterclaims have been legally established or are undisputed. The customer is however entitled to effect retention as a result of counterclaims from the same purchase contract.

10. Impairment of performance

The purchase price will be due immediately without warning if the customer refuses acceptance of the goods, does not comply with the agreed instalments, does not provide or honour bills of exchange in accordance with the agreement, or if GASA Group Germany GmbH becomes cognisant of facts which appear to endanger the security of the claim. In the aforementioned cases, GASA Group Germany GmbH may also withdraw from the contract of sales and demand compensation for damages. If the purchaser is late with its acceptance, GASA Group Germany GmbH will store the goods – at the expense and risk of the customer – at the GASA Group Germany GmbH’s premises or those of a third party, or dispose of them profitably in a suitable manner for the account of the customer. In addition, GASA Group Germany GmbH may, without prejudice to the possibility of asserting higher actual damages, demand 10% of the purchase price as liquidated damages. The customer may prove that no damage have been incurred or that it is considerably lower than the liquidated lump sum.

11. Retention of title

Until fulfilment of all claims (including balances receivable) which GASA Group Germany GmbH is entitled to receive from the customer on any legal basis now or in the future, GASA Group Germany GmbH reserves the title to the delivered goods (goods subject to retention of title). In the event of third-party access to the goods subject to retention of title (and in the event of pledging, in particular), the purchaser shall highlight the GASA Group Germany GmbH’s ownership, and notify the latter immediately. The purchaser must compensate GASA Group Germany GmbH for all costs associated with releasing the pledge, of whatever sort. In any case, the purchaser is obliged to repel third-party requests for the property of the GASA Group Germany GmbH, and is liable for all damages and costs which may arise as a result of such requests by third parties.

The purchaser is entitled to process and sell goods in the ordinary course of business, as long as it is not in default. With regard to claims and rights arising from the resale or any other legal grounds (insurance, unlawful act) with regard to the goods subject to retention of title, the purchaser hereby undertakes (by way of security) to assign these to GASA Group Germany GmbH in the amount of the value of the goods subject to retention of title. The purchaser is obliged in these cases to make a corresponding entry in its books or on its invoices, and in any case also on the list of open receivables for each claim, indicating the date of the assignment and the name of the assignee. GASA Group Germany GmbH revocably authorises the purchaser to collect the claims assigned to GASA Group Germany GmbH for its account, in its own name. This collection authorisation may only be revoked if an agreement to the contrary is concluded in text form with GASA Group Germany.

If the goods subject to retention of title are inextricably mixed or combined with other goods, GASA Group Germany GmbH acquires co-ownership of the unified item, at a proportion of the value of the goods subject to retention of title to the value of the goods mixed with these, as at the time of mixing or combination. By machining or processing the goods subject to retention of title, GASA Group Germany GmbH obtains ownership of the new item; the customer shall store it for GASA Group Germany GmbH. The item created by mixing or combining, and through machining or processing, constitutes a “good subject to retention of title” within the meaning of this provision. The customer is authorised to resell the goods – including by way of mixing, commixture, processing or machining of manufactured goods – only in the ordinary course of its ordinary business operations. It is not authorised to otherwise dispose of these goods, in particular through pledging or transfer by way of security.

12. Quality

Beyond the GTCs, GASA Group Germany GmbH’s contractual and commercial quality standards apply. The supplier shall ensure that the plant deliveries fulfil all statutory regulations in Germany and the EU. The supplier guarantees deliveries exhibiting varietal identity, freedom from disease and weeds, and ensures traceable cultivation. The supplier shall pay particular attention to the fulfilment of all sanitary and phytosanitary requirements, and to correct documentation and awards. GASA Group Germany GmbH’s sample checks are carried out according to AQL 2.5 Test Level II, according to DIN 2859. Visible defects shall be notified within two working days. Hidden defects shall be notified without undue delay.

13. Place of performance

The place of performance is, unless otherwise agreed, the headquarters of GASA Group Germany GmbH, in Kevelaer.

14. Applicable law, jurisdiction, partial invalidity

a) All contracts with GASA Group Germany GmbH shall be governed exclusively by German law, to the exclusion (amongst others) of the laws on the international purchase of movable goods and the United Nations Convention on Contracts for the International Sale of Goods, even if the orderer has its company headquarters outside of Germany.
b) In the case of all disputes resulting from the contractual relationship, if the orderer is a registered trader, a legal person under public law or a special fund under public law, the suit is to be filed at the court which has jurisdiction at the seat of GASA Group Germany GmbH. GASA Group Germany GmbH however reserves the right to sue at the headquarters of the orderer, in this respect.
c) The same place of jurisdiction shall apply if the customer has no general place of jurisdiction in Germany, if it relocates its domicile or habitual residence away from Germany after contract conclusion, or if its domicile or habitual residence is unknown at the time the suit is filed.
d) Transfers of rights and obligations arising from the contract concluded with GASA Group Germany GmbH are effective only if GASA Group Germany GmbH grants its approval in text form.

15. Severability clause

Should a provision within the terms and conditions or within the other contractual arrangements with the contracting partner of GASA Group Germany GmbH be or become invalid, the validity of the other provisions of the contractual agreements, and of the terms and conditions, shall not be affected. A permissible and valid provision, which comes closest to the sense and purpose of the ineffective provision, is then deemed to be agreed.

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