General Sales Conditions
General Terms and Conditions of Xelan International GmbH for the Sale of Agricultural Machinery
I. Formation of Contract
- Xelan International GmbH sells exclusively in accordance with the following conditions. Counter-confirmations made by the Buyer with reference to its own terms and conditions only apply if they correspond in full with these General Terms and Conditions. Otherwise they are hereby rejected.
- Our written offers are binding for thirty (30) days, unless we stipulate otherwise in writing. Otherwise general offers, price lists and other promotional documents of Xelan International GmbH are not binding and subject to confirmation. A contract only takes effect either by way of a timely written acceptance of a written offer made by Xelan International GmbH or with the written order confirmation by Xelan International GmbH. Verbal arrangements made prior to formation of contract are only binding if they have been confirmed by Xelan International GmbH in writing.
No amendments or changes to the agreements made shall be binding unless confirmed by us in writing.Xelan International GmbH reserves the property rights and copyrights to all drawings, technical descriptions, cost estimates and other documents. They may not be made available to third parties without our express written approval.
II. Prices and Terms of Payment
- Cited prices apply for delivery ex works in Labin (Croatia), unless agreed upon otherwise.
- In absence of a specific arrangement Xelan International GmbH shall assume the organization of transport ex works or storage at the Buyer's expense.
- If a delivery is carried out more than six (6) months after formation of the contract, Xelan International GmbH is entitled to adjust its prices accordingly in case of price increases of our upstream suppliers.
- The purchase price and prices for additional services are due and payable upon delivery of the object of purchase and receipt of the invoice. Advance payments are due and payable upon receipt of the invoice for the amount of the advance payment.
- The Buyer is entitled to offset claims of Xelan International GmbH only with counterclaims which have been established with legal effect or which are undisputed. The Buyer is entitled to assert a right of retention, as long as the right is based on claims arising in connection with this purchase agreement and which have been established with legal effect or which are undisputed.
III. Delivery and Performance
- Our delivery periods and dates are not fixed, but are rather approximate figures. They relate to the time of provision of the product and are regarded as observed with notice of readiness for pickup / transport. At such time, the risk passes over to the Buyer even if the shipment or acceptance is delayed for reasons that are beyond the control of Xelan International GmbH.
- In case of force majeure or other circumstances that are beyond the control of Xelan International GmbH, e.g. material procurement difficulties, operational disruptions, strikes, lack of transport means, official intervention and similar – even if such occur to an upstream supplier – the delivery period is extended to a reasonable extent. Xelan International GmbH shall notify the Buyer in this regard immediately.
If delivery or performance is impossible over a long period of time due to such a circumstance or if Xelan International GmbH is authorized by such a circumstance to refuse performance, Xelan International GmbH is entitled to withdraw from the contract. It must inform the Buyer immediately in this regard and shall reimburse any advance payment received.
If the Buyer cannot be reasonably expected to accept the delivery as a result of the delay, it is entitled to withdraw form the purchase agreement by way of prompt notification vis-a-vis Xelan International GmbH.
The Buyer may not derive damage claims in the aforementioned cases if Xelan International GmbH demonstrates that it is not responsible for the breach of obligation. Xelan International GmbH is only responsible for intent or gross negligence.
- If the Buyer is in default with payment of the agreed upon advance payment or an earlier delivery, Xelan International GmbH is entitled to hold back deliveries until payment of the advance payment and/or the earlier delivery without being obligated to compensate the Buyer for any arising damage in this regard. Other rights to refuse performance, especially the plea of uncertainty of Art. 321 of BGB remain unaffected by Clause.
IV. Reservation of Title Clause
- All products delivered by us (object subject to retention of title) remains our property until fulfillment of all obligations, even future obligations regardless of legal grounds, arising in connection with doing business with us. If the value of the collateral held by us exceeds the secured claim altogether by more than 20%, we are obligated at the Buyer's request in this regard to release the collateral at our discretion.
- The Buyer is obligated to take out a comprehensive coverage at new value for the object subject to retention of title providing that Xelan International GmbH is entitled to the rights from the insurance policy.
The Buyer is moreover obligated to kept the object subject to retention of title in a proper state of repair and to have all prescribed maintenance work and necessary repairs performed by qualified specialists.
- The Buyer may only sale the object subject to retention of title during the ordinary course of business. The Buyer is not entitled to other forms of disposal of the object subject to retention of title; a pledging or transfer by way of security in particular are not permitted. If the right to retain title does exist, the object subject to retention of title may only be used within Germany.
- The Buyer assigns any claims resulting from the resale to Xelan International GmbH which accepts these upon formation of this contract with Xelan International GmbH. The same applies to all of the Buyer's damage claims due to loss or damage to the object subject to retention of title. They shall serve as collateral to the same extent as the object subject to retention of title.
- The Buyer is entitled to collect claims arising from the resale, unless Xelan International GmbH revokes the authorization to collect. Xelan International GmbH is especially authorized to cancellation if the Buyer is in default, if circumstances are known which may have a considerably impact on the Buyer's credit standing or if an application is filed to open insolvency proceedings for the Buyer's assets.
At our request, the Buyer is obligated to inform its consumers about an assignment to Xelan International GmbH and shall provide Xelan International GmbH with the information and documents needed for collection. The Buyer is in no way entitled to assign a claim.
- If Xelan International GmbH revokes the authorization to collect the assigned claim, it is entitled – without prejudice to any other claims – to collect the object subject to retention to secure its rights without declaring the cancellation of the contract in advance or herewith. Xelan International GmbH is entitled to utilize any collected object subject to retention even by way of private sale and to offset the proceeds remaining after deduction of the disposal costs against its claims.
- In case of distraint or other third party access to the object subject to retention, the Buyer shall point to the ownership of Xelan International GmbH and notify Xelan International GmbH immediately.
V. Warranty, Guarantee and Liability Limitations
- Xelan International GmbH does not assume any liability for the condition of the product. Declarations made by Xelan International GmbH with regard to the condition or certain characteristics or properties of the product may only be used for determining the agreed upon condition of the object within the meaning of Art. 443 of BGB. The acceptance of a more extensive quality guarantee presupposes that Xelan International GmbH declares expressly and in writing its willingness to accept a guarantee exceeding the statutory claims of the Buyer which should grant the Buyer rights that are independent of the statutory claims.
- The Buyer shall check immediately the intactness of the package, wrong delivery or obvious faults upon delivery and shall report any faults immediately Xelan International GmbH. Other deficiencies shall be reported by the Buyer immediately upon discovery in writing while specifically describing the wrong delivery or deficiency to Xelan International GmbH.
- Commercially available and/or slight or technically unavoidable deviations in quality, color, and form even from the description of functions and technical details in the manuals are not regarded as deficiencies and cannot be the object of a complaint.
- If the delivered product is faulty, the Buyer can demand supplementary performance. The supplementary performance may be implemented at the discretion of Xelan International GmbH by way of elimination of the deficiency or delivery of a fault-free product. The Buyer's right to supplementary performance does not encompass the elimination of faults or malfunctions that are the result of unexpected external influences due to contractual use, operator error on part of the Buyer, normal wear and tear or similar. If the supplementary performance should fail or if Xelan International GmbH fails to eliminate a deficiency within a suitable period set by the Buyer, the Buyer is entitled to withdraw from the contract. Any more extensive rights on part of the Buyer to damages or compensation of expenses incurred in vain remain unaffected subject to the following paragraphs. When replacing the product or rescinding the entire contract, Xelan International GmbH is entitled to a right to an unlimited loss-of-use indemnification for the reclaimed product vis-a-vis the Buyer. This is based on the average rental fees that apply to the product that would accrue during the period of use.
- The Buyer's claims to supplementary performance, reduction, damages or compensation of expenses incurred in vain become statute-barred twelve (12) months after delivery of the product. The Buyer's withdrawal due to services not rendered in compliance with the contract is not enforceable if the Buyer's claim for supplementary performance according to Clause 1 is statute-barred and Xelan International GmbH pleads such.
- Xelan International GmbH is liable vis-a-vis the Buyer in case of breach of substantial contractual obligations in accordance with the statutory provisions. In case of Clause 1, the Buyer's claim is limited to the compensation of typically occurring damage, which is foreseeable at the time of formation of contract. In case of violation of other contractual obligations, a liability of Xelan International GmbH - especially for consequential damages - is excluded if Xelan International GmbH is not responsible for breach of duty; Xelan International GmbH is responsible, however, for intent and gross negligence. If the damage is covered by insurance taken out by the Buyer for the relevant loss, Xelan International GmbH is only liable for any related disadvantages incurred by the Buyer, e.g. higher insurance premiums or interest disadvantages through to loss adjustment by the insurance.
- The aforementioned liability limitations do not apply - if the Buyer is entitled to rights arising in connection with a warranty assumed by Xelan International GmbH - if Xelan International GmbH is liable for damages, personal injury or death resulting from intent or gross negligence.
VI. Privacy Protection
Xelan International GmbH only processes personal data relating to the Buyer for the purpose of processing contracts, customer support and providing customers with information. Such information is not provided to third parties for any other purposes.
VII. Final Provisions
- The assignment or pledging of the Buyer's claims or rights vis-a-vis Xelan International GmbH is not permitted.
- All legal relations between Xelan International GmbH and the consumer are subject exclusively to German law. The UN Convention on International Sale of Goods (CISG) does not apply.
- The competent court for all present and future claims arising from business relations with registered merchants is Aachen. The same applies if the Buyer does not have a place of general jurisdiction in Germany, if after formation of the agreement it has moved its place of residence or usual domicile from Germany or its place of residence or usual domicile is unknown at the time of filing of action. Xelan International GmbH is, however, entitled to take legal action against the Buyer at one of its statutory places of jurisdiction. Aachen is the sole competent court for lawsuits against us.
- Should any individual provision or any part of any provision of these General Terms and Conditions be or become void or unenforceable, the validity of the remaining provisions hereof shall in no way be affected. In such case, the void provision or provisions shall be replaced by a legally valid provision coming as close as possible to the actual sense, spirit and purpose of the invalid provision.