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1. Scope of application, authorisation to amend, contract content, change of contractual partner
1.1 These General Terms and Conditions (GT&Cs) apply to transactions between intelligent fluids GmbH (hereinafter the “Seller”) with contractual partners (hereinafter “Customer”).
1.2 Seller offers commercial Customers the opportunity to acquire goods (in particular, products relating to horticulture, forestry and agriculture) and renders associated services.
1.3 These General Terms and Conditions (GT&Cs) apply exclusively vis-à-vis entrepreneurs, legal entities under public law and special funds under public law. The entrepreneur is a natural person or legal entity or legally responsible partnership that is exercising its commercial or independent-professional activity when concluding of a legal transaction (Sec. 14  of the German Civil Code [BGB]).
1.4 These GT&Cs constitute an essential component of every contract concluded. They further apply to future business relations with the Customer without the need for another explicit inclusion.
In principle, the following essential contractual provisions apply in the order shown:
The current version may be inspected on the Internet at http://www.intelligent-fluids.com/agb. Here, the Customer may also print the GT&Cs and SCCs or download them as PDF files.
1.5 Differing General Terms and Conditions of the Customer as well as amendments and supplements are valid only where approved in writing by the Seller. This shall also apply where Customer’s General Terms and Conditions have not been expressly contradicted.
1.6 The Seller is entitled to amend the GT&Cs at any time without giving reasons, including with effect for an existing contractual relationship. The Seller shall inform the Customer in text form (email) about any amendments at least 14 business days prior to their coming into force. The Customer is deemed to have granted consent if it does not give notice of its rejection of the changes within 14 days after becoming aware of them. The Seller shall inform the Customer separately of this de-facto consent. Should any amendment modify the services or deviate from the contents, the desired adaptation must be reasonable when the Customer’s interests are considered.
1.7 The Seller is entitled to assign the execution of contractually agreed deliveries and services to subcontractors. Moreover, the Seller may transfer its rights and/or obligations arising from the contractual relationship to one or more third parties (assignment and assumption of contract and/or obligations). In the event of the assumption of a contract and/or obligations, the Customer is entitled to withdraw from the contract.
2. Contract offer, contract conclusion and contract adjustments
2.1 All presentations and other descriptions of services, especially those made via the http://www.intelligent-fluids.com website, are non-binding and subject to alteration.
2.2 The essential contractual provisions must be recorded in an individual contract. In the event that a third party (especially the Seller’s distributor) has participated in the conclusion of the contract, the Seller does not acknowledge Customer’s objections deriving from an additional contractual relationship with the third party.
2.3 A contract shall be concluded only once the Seller has accepted the Customer’s offer without reservation or has begun due performance (such as by dispatching goods). In the latter case, Customer waives receipt of the declaration of acceptance.
2.4 The specific ordering and customer-master data of the Customer shall be stored at the Seller. The Customer can contact the Seller’s customer service using a contact form (http://www.intelligent-fluids.com/kontakt, using the email address email@example.com, or by telephone on the service hotline: +49 (0)341 3196810) to change the listed address or form of payment, for example. To protect customer security, this shall occur in e-commerce via encrypted data transfer (TSL/ SSL – transport layer security/ secure sockets layer).
2.5 All facts essential to the business relationship must be promptly communicated to Seller, especially changes in Customer’s name, address, contra account and capacity to make disposals or enter into obligations as well as changes involving its proxies, along with declared powers of representation or disposal (especially contact individuals). In the event that the Customer culpably fails to disclose changes to its contractual data, it must bear the costs of determining the information necessary to carry out the contractual relationship.
2.6 Should it become evident that the Customer has given the Seller erroneous or incomplete information regarding the rendering of the performance of the services that are the object of the contract or that, despite a written request for essential information regarding the rendering of the services that are the object of the contract, it has incompletely or partially made such information available, and that the Seller has consequently incurred, as a result of the inadequate provision of information, additional costs that were unforeseeable prior to the conclusion of the contract, the Seller is entitled to demand renegotiations with the goal of achieving an adjustment of the remuneration and/or description of services that is appropriate and reasonable for the Customer. Should the parties to the contract fail to reach an agreement within 14 working days following the demand for renegotiation, the Seller is entitled to suspend the contractual services and/or terminate the contract either in whole or in part for good cause.
3. Delivery, dispatch and the Customer’s duty to cooperate
3.1 Dates and deadlines for delivery and performance shall be binding only where confirmed in writing by the Seller. The Customer undertakes to give notice of any need to extend deadlines in good time for the Seller to be able to make appropriate arrangements. The agreement to fixed delivery and performance deadlines is subject to the proviso of the Seller’s receipt of deliveries and services from its respective suppliers on time and as contractually agreed. Seller is entitled to render partial services / partial deliveries.
3.2 Dispatch – even within the same shipping location – shall occur at Customer’s cost and risk, even where goods are transported by means of Seller’s vehicles. Goods shall be packaged in the manner customary in the trade. Packaging on loan shall be immediately emptied by the receiver and returned carriage paid in perfect condition.
3.3 Insofar as the Seller is reliant, for the rendering of its services, upon supplies and services that it does not itself render and that are neither in stock nor able to be procured at the time of concluding the contract, the Seller is entitled to terminate (withdraw from) the contract if the Seller has not been supplied by its suppliers/sub-contractors and the supply failure is not attributable to Seller, or if the Seller, despite reasonable efforts, either cannot obtain the supplies and services or can only obtain them at substantially higher market prices (in comparison to those customary in the trade). The Seller shall promptly inform Customer of the unavailability of services and reimburse the Customer for any remuneration already received. Further rights of the Customer are excluded.
3.4 Events that are unforeseeable or unavoidable and that lie outside the Seller’s sphere of influence and are unattributable to the Seller, such as force majeure, shall release the Seller from the duty to perform its contractual obligations for the duration of their occurrence. Agreed performance deadlines shall be extended by the duration of the disruption; the Customer shall be appropriately informed of the occurrence of the disruption. Should the end of the disruption be unforeseeable, or should it persist longer than one month, either party is entitled to terminate or cancel the contract. The same applies mutatis mutandis if the above circumstances occur in connection with one of the Seller’s subcontractors.
3.5 The Customer shall communicate or make available to the Seller, in a timely fashion, all information and documentation required to execute the services and shall make any agreed advance payments, grant approvals and releases, and take other required cooperative actions. Should additional or expanded orders be issued following the conclusion of the contract, the agreed performance dates and deadlines are to be extended accordingly. Should the Customer fail to meet its obligations to provide sufficient information and cooperation, thereby delaying the execution of the Seller’s contractual obligations, the agreed deadlines shall be automatically extended appropriately, and at least for the duration of the delay. The Seller’s entitlement to compensation (in accordance with Sec. 642 of the German Civil Code, for example) and its right to termination where applicable (in accordance with Sec. 643 of the German Civil Code, for example), shall remain unaffected.
3.6 If the Customer is required to obtain approvals (from public authorities, for example) in connection with the use of the contractual services, or required to submit reports to public authorities (such as planning authorities) or other third parties, the Seller shall, to the extent possible, supply all required information to which it has access and support the Customer at the Customer’s cost.
4. Prices and conditions of payment
4.1 Where the contractual parties have not agreed a specific price, the price shall be determined by the Seller’s price list in force on the date of concluding the contract or, if no such list exists, by the customary remuneration (within the meaning of Sec. 632  of the German Civil Code) plus ancillary costs (such as packaging, transport and transport-insurance costs, as well as statutory value-added tax). Discounts shall not be granted.
4.2 When billing for services under a works contract, regulation pursuant to Sec. 632a  Sentence 3 of the German Civil Code (corresponding applicability of Sec. 641  of the German Civil Code) is waived.
4.3 Additional packaging, transport and transport-insurance costs, as well as delivery restrictions, shall be individually specified by the Seller prior to the conclusion of the contract.
4.4 The Seller is not obliged to accept cheques or bills of exchange; under no circumstances does the acceptance of bills of exchange or cheques imply deferment of a receivable. Exchange fees shall be borne by Customer; bills of exchange shall only be accepted for the purpose of fulfilment of payment. Payments to individuals acting on behalf of the Seller may only be made upon presentation of a specific collection authority signed by the management.
4.5 If the service owed is performed more than one month after the conclusion of the contract, the Seller is entitled to increase the originally agreed price if the price increase is based on changes in price-relevant factors (such as collective bargaining agreements, increases in the cost of raw materials or energy, toll charges, costs of auxiliary and operating materials) that have occurred since the conclusion of the contract and if this situation is not attributable to Seller; in such a case, prices may be increased under the agreement in accordance with Sec. 315 of the German Civil Code.
4.6 Unless otherwise agreed in individual cases, the following conditions of payment shall apply:
The Seller shall provide the Customer with an invoice (electronic and/or in text format) for the contractual services performed. The Customer is permitted to effect payment by means of cash, direct debit, transfer or credit card. Accounts are due and payable upon submission of the invoice unless the Seller specifies a separate payment period in its invoice.
In the event that Customer does not effect payment within 7 days after receipt of the invoice or by the separate payment deadline specified in the invoice, it shall be in default in accordance with Sec. 286 (2) Nos. 1 and 2 of the German Civil Code, resulting in interest on the arrears due in accordance with Sec. 288 (1) of the German Civil Code.
Should the Customer enter into default with its payment obligations, the Seller will charge a reminder fee (of at least € 3.00) for each reminder notice. The Seller reserves the right to claim further default compensation.
4.7 The Customer must raise any objections to the Seller’s billing for its services performed, in writing, within fifteen (15) working days after receipt of the invoice. Upon expiry of the above deadline, the invoice shall be deemed to have been approved by the Customer.
4.8 Should the Customer fail to provide all or part of the compensation for a due receivable by the contractual payment deadline, the Seller shall be entitled to revoke the agreed terms of payment for all receivables. The Seller is further entitled to perform further services only against prepayment or with the security of a performance bond from a credit institution or credit insurer certified in the European Union. Prepayment shall cover the respective invoicing period or – in the case of one-off services – compensation for said services.
4.9 Should the Customer become financially unable to fulfil its obligations to the Seller, the Seller may terminate existing continuing contractual exchange relationships with the Customer without notice by withdrawing from the contract, even if the Customer should file for insolvency. Sec. 321 of the German Civil Code and Sec. 112 of the German Insolvency Code (InsO) remain unaffected. The Customer shall inform the Seller immediately in writing regarding any imminent inability to pay.
5. Retention of title
5.1 The Seller shall retain title to goods supplied until all claims of the Seller vis-à-vis the Customer at the time of performance or in connection with the supplied items in the future are settled. In the case of open invoices, such retention of title shall constitute the Seller’s security for any due balance or current account receivable.
5.2 The Customer’s sale of the supplied items under reservation of title, especially their connection to third-party objects, is permissible only in the normal course of business. The Customer is not otherwise entitled to pledge the items under retention of title, assign them by way of security or make other dispositions jeopardising Seller’s property. The Customer hereby assigns to the Seller the amount receivable from any resale; the Seller herewith accepts this assignment. The Customer is granted revocable authorisation to collect the receivables assigned to the Seller in trust for the Seller in its own name. The Seller may revoke this authorisation as well as the right of resale if the Customer should fail to meet its essential contractual obligations. The Customer must, upon request, provide the details necessary to enforce collection of the receivables, especially the end customer’s name, address, telephone number, and the objects sold to that customer.
5.3 Processing or mixing is always done for the Seller as the manufacturer. In the event of connection or mixing of items under retention of title with other movable assets, including in the form whereby they become key components of a unitary object, the Seller shall become joint owner of that object. The proportion shall be determined based on the value ratio of the objects at the time of connection or mixing. If, however, the item under retention is deemed the most important item, the Seller shall acquire sole ownership.
If the item under retention of title is connected to a building structure, the Customer’s right to request a security mortgage of the site by the building contractor shall be assigned to the Seller in the amount corresponding to the proportionate value of the item under retention.
5.4 In the event the property under retention or the assigned payment claim is pledged or otherwise restricted by third parties, the Customer is obliged to provide notification regarding the retention of title and the Seller’s property as well as the assignment of claim, and to inform the Seller immediately. The Customer is further obliged to divulge to the Seller the name of the third party or parties pursuing repossession or attachment of claims or causing other impediments. The costs of defending against such access shall be borne by the Customer.
5.5 If the total realisable value of the securities exceeds by more than 20% the total claims of the Seller to be secured, the Seller shall release the debt securities.
6.1 Seller warrants that the services shall be free from defects.
6.2 Assured characteristics or guarantees (especially regarding condition and/or durability) are limited to those expressly designated as such. The Customer shall be informed of their existence. The assurance shall be valid only until the expiry of the warranty period.
6.3 Customer shall examine the delivered items immediately for obvious and detectable defects and, should these be found to exist, shall indicate these to Seller in a comprehensible fashion, providing information suitable for correcting the defect (within the meaning of Sec. 377 of the German Commercial Code). The Customer must report deficiencies that are not obvious immediately upon them becoming known. Moreover, the Customer shall take necessary steps to make it possible to determine and reproduce the defects or damages and their causes or to facilitate and accelerate the remediation of the failure.
6.4 In order to assert claims under the warranty, the Customer is obliged to report deficiencies in writing, providing a precise description of the respective deficiencies within fourteen (14) days after the occurrence of the deficiencies. At its discretion, the Seller shall render supplementary performance in the event of a defect either by means of repair or by supplying a replacement. The Customer must tolerate three (3) attempts at repair per defect reported.
6.5 The Customer shall support the Seller in the remediation of deficiencies to an extent reasonable for the Customer.
6.6 There shall be no warranty obligation where the deficiencies that have occurred are due to circumstances not attributable to the Seller. If the Seller has taken action due to Customer’s notice of defect in the absence of a defect, or should the Seller not be obliged under warranty for a remediation it has undertaken, the Seller shall be entitled to demand compensation from the Customer for its efforts in this regard.
7.1 Irrespective of the legal basis, the Seller shall only be liable for full compensation of the Customer’s damages or compensation of expenses incurred in vain where these are caused by intentional or grossly negligent behaviour, fraudulent concealment of defect, in the event of assumption of express guarantees or assured characteristics of condition and/or durability, for loss of life, physical injury or damage to the health of a person, for claims arising from product liability, or in the case of mandatory legislative provisions.
7.2 Notwithstanding the cases described in paragraph 1, liability in the case of negligent violation of essential contractual obligations (cardinal obligations), shall be limited solely to damages that are typical of the contract and reasonably foreseeable at the time of the contract’s conclusion. Cardinal obligations are defined as obligations that enable the fulfilment of the orderly performance of the contract in the first place, violation of which places achievement of the contractual purpose at risk, and on the compliance of which the contractual partner may regularly rely.
7.3 Multiple damage incidents involving the same cause of damage shall be regarded as a single damage event (connecting link / unity of action).
7.4 The Seller merely makes the services under this contract available for use by the Customer and is not liable for damages incurred by Customer through its use of these services (misappropriation of purpose). In particular, the Seller accepts no responsibility for inspections at the Customer by authorities or third parties (e.g., construction supervision authorities).
7.5 Furthermore, the Seller’s liability for property damage and financial losses (especially lost profits, expenses in vain, indirect damage or consequential damage resulting from defects) is excluded. To the extent applicable, legally binding liability regulations remain unaffected by this.
7.6 To the extent that Seller’s liability toward Customer is restricted or excluded, this shall apply correspondingly to the Seller’s legal representatives, employees, freelancers and other vicarious agents.
8. Limitation period
8.1 Claims based on wilful or grossly negligent actions by Seller or Seller’s legal representatives or vicarious agents, as well as claims for damages arising from loss of life, bodily injury or damage to the health of a person are subject to limitation in accordance with provisions of the law.
8.2 For all other contractual and legal claims against the Seller, the limitation period is one (1) year. The same period shall apply to any other warranty rights of the Customer.
8.3 The Seller’s processing of the Customer’s notification of material defect shall only inhibit limitation to the extent that the legal prerequisites for this exist. This shall not result in the limitation period being restarted. The effect of supplementary performance (new delivery or repair) shall be exclusively on the limitation period for the defect that required repair.
9. Data protection and confidentiality
9.1 The Seller undertakes to handle all confidential information in confidence for an indefinite period and only to use such information in the context of the agreed intended purpose, as well as to honour the applicable provisions of data protection and data security.
9.2 All shared personal information shall be collected, processed or used exclusively in accordance with the applicable conditions of data projection law (details on this point may be found in the privacy statement at http://www.intelligent-fluids.com/datenschutzerklaerung).
9.3 In the handling of payments (see 4) or supplies, Customer’s personal information can be divulged to and processed by the respective recipients for specific purposes. No use for other business purposes (such as advertising or trading of address lists) shall take place.
9.4 In individual cases, the Seller may obtain creditworthiness information from credit agencies. Information is recorded for the purpose of credit checking regarding the application for, acceptance and termination of agreements that have been concluded or are in the process of conclusion. Customer is entitled to receive information from credit agencies regarding the information they store about it. The addresses and contact information for the credit agencies infoscore Consumer Data GmbH, CEG Creditreform Consumer GmbH, SCHUFA Holding AG and Bürgel Wirtschaftsinformationen GmbH & Co. KG will be provided to the Customer on request.
10. Warranty of performance under the sales contract
10.1 In the event that the Seller fails to provide the services owed, the Customer is entitled to assert claims under the warranty for a period of 12 months following delivery of the item. 8.1. shall be unaffected by this.
10.2 The Seller may initially, at its own discretion, fulfil the warranty by either repair or substitution (supplementary performance). In the exercise of its right of discretion, the Seller is entitled to a reflection period of at least ten working days calculated from its reception of Customer’s communication. The Customer must tolerate three attempts at repair per defect reported. Should efforts at repair prove unsuccessful, the Customer may, at its own discretion, demand reduced compensation (minimisation) or rescission of the contract (withdrawal). The right of withdrawal for minor contractual violations (insignificant breaches of duty) is excluded, however, especially for slight defects.
10.3 In the event that the Customer, following failed efforts at supplementary fulfilment, elects to withdraw from the contract, it shall have no claim against the Seller for damage compensation due to the claimed defect, notwithstanding the cases described in 7.1 and 7.2.
11.1 If a long-term obligation is agreed on, this shall extend over the contractually agreed term. If no date is agreed for the end of the performance period, the respective performance can be terminated with advance notice of three months to the end of a calendar month but no earlier than at the end of a minimum contractual period agreed in the contract.
11.2 The right to extraordinary termination for good cause shall remain unaffected. The Seller shall be deemed to have good cause if the Customer is in default of payment of compensation owed under the contract or a significant portion of such compensation for more than 30 calendar days and payment has not been rendered following a reminder from the Seller within 10 calendar days following receipt of the reminder (Seller’s receipt of payment shall be authoritative); if Customer violates an essential provision of the contract (especially number 7); if a cancellation or liquidation of the other party in the Commercial Register has been applied for or registered; if a change in the person of the Customer or a company sale occurs or if the company is legally restructured such that there is justified doubt regarding the partner’s reliability and ability to perform; if application has been made for insolvency proceedings against Customer’s assets or such application has been rejected for lack of assets, enforcement has proven fruitless, or enforcement measures have been taken and not dismissed with one month (e.g., annulment of seizure).
11.3 Any termination must be made in writing. Application of Sec. 545 of the German Civil Code is excluded. Termination by the Customer in accordance with Sec. 543 (2) Sentence 1 No. 1 of the German Civil Code due to failure to grant usage in accordance with the contract shall only be permissible if Seller has been given sufficient time to address the defect and this has proved fruitless. An attempt to address the defect shall only be deemed fruitless if it is impossible, if it has been refused or unreasonably delayed by the Seller, or if it has become unreasonable for the Customer due to other reasons.
11.4 In the case of an agreed term and in the event of termination due to a reason attributable to the Customer, the Customer shall remain obliged, despite the termination of services by the Seller, to provide the agreed compensation by the next possible regular termination date; the Customer retains the right, however, to prove that Seller has sustained no damage or only minor damage resulting from the premature termination of the contract. The Seller’s claims to further compensation shall remain unaffected by this.
11.5 Should the regulatory content of individual provisions extend beyond the term of the contract (such as indemnifications, limitations of liability, copyrights, data protection), these provisions shall remain effective beyond the term of the contract. Upon termination of the contract, irrespective of the legal basis, warranted rights of use or licenses shall lapse in the context of performance by the Seller or third parties.
11.6 Customer undertakes to retain in an orderly manner all documentation related to matters related to the Seller in its possession that has been made available to it by the Seller, as well as all documents prepared by the partner or other drawings and codes, even in the form of data carriers or outlines, taking special care that third parties are prevented from accessing them. Once Customer’s contractually agreed, time-limited right of use has come to an end, for whatever reason, the Customer shall return to the Seller the contractual object supplied, along with associated user documentation, information, codes and contents, including in particular all copies, and shall delete or destroy all copies of these unless legally required to retain them. In the latter case, the claim to surrender and deletion/destruction shall be delayed by the duration of the legally prescribed retention period. The Customer shall confirm the deletion/destruction of all copies to the Seller in writing.
12. Final provisions
12.1 Amendments or supplements to the terms and conditions must be made in writing. Should the Seller fail to insist on the complete and/or partial observance or fulfilment of any of the conditions or provisions or supplementary provisions, this shall not be understood to constitute recognition of the infringement action or waiver of future application of the condition, provision or option of the right or legal remedy in question.
12.2 The Customer can only assert compensation claims against the Seller where the claims have been legally established or acknowledged by the Seller.
12.3 Assignment or pledging of claims or rights against the Seller to which the Customer is entitled is excluded without the Seller’s authorisation.
12.4 The law of the Federal Republic of Germany shall apply exclusively to the exclusion of private international law (especially the United Nations Convention on Contracts for the International Sale of Goods [CISG] and conflict of laws [IPR]).
For all disputes arising from or in connection with this contract, the place of fulfilment (and jurisdiction if the Customer is a merchant, legal entity under public law or special fund under public law) is the site of the Seller's registered office. Moreover, Seller is entitled to bring a suit against the Customer at its general place of jurisdiction. Any exclusive place of jurisdiction shall remain unaffected.
12.5 The invalidity, non-enforceability or ineffectiveness of individual provisions of these conditions, including where these are subsequently incorporated or regulated in a supplement, shall not affect the validity of the remaining conditions. In place of the ineffective, invalid or unenforceable condition, a condition shall be deemed agreed that, as far as is legally possible, comes closest to the commercial intent and purpose of the ineffective, invalid or unenforceable conditions. The same shall apply to unintentional regulatory loopholes; in such a case, a condition shall be deemed agreed that comes closest to what would have been regulated according to the intent and purpose of the present contract, had the parties been aware of the loophole, or should a condition prove ineffective with respect to a period of time or a stipulated behaviour.
Status as of 1.11.2018