General terms and conditions

Terms and conditions of Carbon Terra GmbH

1. Conclusion of the contract and content of the contract

1.1


All deliveries, services and offers of Carbon Terra GmbH limited to biochar products (hereinafter called "Carbon Terra") are subject to these terms and conditions. Divergent and / or supplemental agreements shall require the express consent of Carbon Terra. The business and commercial conditions of the customer are expressly contradicted. They only become part of the contract if Carbon Terra has expressly agreed with them in writing.

1.2


Offers of Carbon Terra are subject to change and without obligation until the contract is concluded. The customer is bound to his order for three weeks from receipt of the order by Carbon Terra. A contract is concluded when Carbon Terra confirms acceptance of the order within this period in writing or by e-mail or makes the delivery.


2. Prices

The prices valid at the time of the conclusion of the contract apply. Conclusion of contract comes into effect by confirmation of the order or by realization of the delivery. Freight, postage and insurance will be charged separately even in the case of partial delivery. The VAT valid on the day of delivery is charged additionally.


3. Payment/delayed payment

3.1


All payments must be made net cash within 14 days after the invoice date. In case of international business and first-time deliveries Carbon Terra is entitled to demand advance payments.

3.2


Payment orders, cheques and bills of exchange are only accepted upon special agreement and payable taking into account all collection and discount charges. For payment orders, the payment is considered as effected with crediting the amount in the account of Carbon Terra; for cheques and bills of exchange the payment is considered as effected after encashment.

3.3


If payment is delayed an interest of 8% per annum plus the statutory VAT will be charged.

3.4


If the customer is in default of payment, all further claims of Carbon Terra are also due immediately independent of the respective due date. Furthermore, Carbon Terra is entitled to demand advance payment for not yet rendered deliveries.

3.5


Carbon Terra is entitled to credit payments on previous liabilities of the customer notwithstanding any other provisions of the customer. If costs and interests incurred already, Carbon Terra is entitled to attribute payment first to the costs, then to the interest rates and finally to the principal claim.

3.6


The customer can only offset against the claims of Carbon Terra if the counterclaim of the customer is undisputed or if there is a valid title. The customer can only claim a right of retention if the conflicting claims originate from the same contract.


4. Delivery

4.1


Delivery dates or periods that can be agreed on as binding or non-binding, must be stated in writing or by e-mail. Delivery periods shall commence on conclusion of the contract. If subsequent amendments to the contract are agreed upon, a new delivery date or delivery period has to be agreed upon if necessary.

4.2


Three weeks after a missed deadline of a non-binding delivery date or a non-binding delivery period by Carbon Terra the customer may request Carbon Terra in writing to deliver within a reasonable period. With this reminder Carbon Terra is in default. Apart from the delivery, the customer can only demand indemnification for the damages caused by the delay if Carbon Terra is guilty of acting with intent or gross negligence. 
In the event of delay by Carbon Terra the customer can also grant in writing a reasonable extension of time pointing out that he will refuse to accept the contractual services after the deadline. After unsuccessful expiration of the extension period the customer is entitled to withdraw from the contract or to claim damages for non-performance by written notice. The customer can only claim for damages in cases of intent or gross negligence by Carbon Terra. The claim for delivery is excluded in the cases specified in this paragraph.

4.3


If a binding delivery date or a binding delivery period is exceeded, Carbon Terra is already in default with the missed delivery date or delivery period. The rights of the customers are then determined by section 4.2.

4.4


Acts of God, riots, strikes, lockouts and business disruption without own fault change the dates and deadlines mentioned in section 4.1, 4.2 and 4.3 for the duration of the service disruptions caused by these circumstances.

4.5


Details in descriptions of scope of delivery, appearance, performance etc. of the subject matter at the conclusion of contract are part of the contract; they must be regarded as approximate and not as guaranteed characteristics, but they serve as a standard used to identify, whether the subject matter of the contract is faultless in accordance with section 6, except that an express warranty is given in writing.

4.6


Carbon Terra may make partial shipments of a total order at any time, which are to be paid upon receipt of the invoice according to section 3.


5. Risk/Shipment

5.1


Place of fulfilment is the registered office of Carbon Terra. The customer has the right to inspect the subject matter at the agreed place of acceptance within eight days after receipt of a delivery notification and is obligated to accept the subject matter within this time limit.

5.2


If the subject matter is delivered at the request of the customer to a location other than to the place of performance acc. 5.1, the transfer of risk takes place as soon as the subject matter has been passed to the transport company and has left the warehouse of Carbon Terra. This applies even if Carbon Terra has taken over the transport costs. The conclusion of transport insurance or other insurances is at the customer’s discretion.

5.3


If the customer defaults on acceptance, this shall be deemed equivalent to hand-over.

5.4


If the customer does not accept the subject matter within 14 days after receipt of the delivery notification, Carbon Terra may grant an extended time-limit of 14 days in writing with the declaration that Carbon Terra will refuse the acceptance after this deadline. After the expiry of this extension Carbon Terra is entitled to withdraw from the contract in writing or to demand compensation on the grounds of non-performance. The setting of the extension period is not required if the customer refuses acceptance seriously and permanently, or is obviously not able to pay the contractual price within this deadline.

5.5


If Carbon Terra claims compensation, this shall amount to 25% of the contractual price. The damages shall be higher or lower if Carbon Terra proves a higher damage or if the customer proves a lower damage. 
If Carbon Terra does not exercise its rights acc. section 5.4 and 5.5, Carbon Terra may dispose freely of the subject matter and deliver a similar subject matter in its place according to the conditions of the contract.


6. Warranty

6.1


Complaints about defects, wrong deliveries and / or quantity deviations, if they are obvious defects in the delivered goods, must be reported to Carbon Terra in writing or by e-mail without delay, at the latest within two weeks of receipt of the goods. If such an (apparent) defect shows later, the report must be made immediately, at the latest, however, within two weeks after discovery. The goods shall be deemed approved and warranty rights are excluded in the case of non-observance of the time limits.

6.2


For other than obvious defects, the warranty period is one year from delivery of the goods.

6.3


6.3.1


In the case of a defect in the purchased goods the customer is entitled to request the removal of the defect or a replacement of the delivery (supplementary performance). Carbon Terra will pay all expenses relating to the supplementary performance, particularly transportation, travel, labor and material costs.

6.3.2


Carbon Terra can refuse the type of supplementary performance chosen by the customer, if it is only possible with disproportionate costs. The claim of the customer shall be limited in this case to the other type of supplementary performance. The right of Carbon Terra to deny the supplementary performance under these conditions because of disproportionate costs remains unaffected.

6.3.3


If the supplementary performance fails or if Carbon Terra is not willing or able, the customer may withdraw from the contract or reduce the purchase price. After the second unsuccessful attempt the supplementary performance is rated as failed, if nothing else arises particularly from the kind of the object or the defect or other reasons. 
In case of only slight nonconformity with the contract, particularly with respect to minor defects, the customer shall have no right of rescission. In the case of contract withdrawal due to a legal or material defect, the customer will not have additionally the right for compensation of the defect.

6.4


Warranty obligations shall not apply if the defects are related to the following cases:

  • The customer did not report a defect acc. section 6.1 and did not give the opportunity for an immediate supplementary performance or the subject matter was handled improperly or overused, operating or maintenance instructions from Carbon Terra were not followed by the customer.
  • The subject matter has been previously repaired, serviced or maintained in an establishment other than that of Carbon Terra or an establishment authorized by Carbon Terra.
  • Parts were installed in the subject matter or parts or accessories have been used with the contract matter, the use of which has not been permitted by Carbon Terra or the subject matter was changed by the customer in any way not approved by Carbon Terra.

Normal wear and tear of the purchased item is excluded from the warranty.

6.5


Warranties are only effective if they are agreed in writing or confirmed in writing by Carbon Terra.

6.6


A right to exchange is principally excluded. If in individual cases, however a replacement or a revocation takes place, the customer has to pay a service fee of 20% of the net invoice amount plus the applicable VAT to Carbon Terra.


7. Retention of title

7.1.


The delivered goods remain the property of Carbon Terra until payment of the purchase price and settlement of all claims arising from the business.

7.2


During the period of retention of title the customer is entitled to the possession and use of the subject matter, provided he timely meets his obligations under the retention of title and under the terms and conditions.

7.3


The customer is entitled to resell or process the reserved goods in the ordinary course of business, either in return for immediate payment or under retention of title.

7.4


As long as Carbon Terra retains ownership, pledging, security transfer, letting or other provision of the contract subject as well as its change impairing the security of Carbon Terra require the prior written consent of Carbon Terra, unless it is allowed in accordance with section 7.3. 
The customer shall store the goods free of charge for Carbon Terra.

7.5.


The customer resigns by way of security his claims to Carbon Terra from the resale or further processing of the reserved goods including all ancillary rights against a third-party debtor up to the total net invoice amount with the authority to confiscate the claim. Carbon Terra accepts the cessation with immediate effect. If the value of this security surmounts the amount of the claim of terra carbon by more than 20%, Carbon Terra shall insofar release the security at its choice at the request of the customer. 
The customer is entitled, until further notice, to collect the claims surrendered to Carbon Terra; this happens only on a fiduciary basis and on account of Carbon Terra. The collected proceeds therefore belong to Carbon Terra and have to be delivered to Carbon Terra. 
The customer is obliged to notify the third party at the request of Carbon Terra of the cessation of rights and to provide the information necessary for the assertion of rights of Carbon Terra against the third-party. The direct debit authorization can only be revoked if payment obligations of the conditional buyer towards Carbon Terra are not met properly. Only under this condition Carbon Terra may demand disclosure of the cessation of rights to the third-party.

7.6


The customer has to inform Carbon Terra immediately of any access or diminuation of the rights of Carbon Terra by a third-party on the reserved goods or the surrendered claims and has to support Carbon Terra in every way with the intervention.

7.7


The costs of measures to preserve or secure the property of Carbon Terra are borne by the customer.

7.8


The repossession of the reserved goods by Carbon Terra does not constitute a withdrawal from the contract.


8. Liability

8.1


The liability of Carbon Terra is limited to intent and gross negligence. This does not apply to liability for damages resulting from injury to life, body or health, and not to liability for the violation of essential contractual obligations. In these cases Carbon Terra is also liable for simple negligence. Furthermore, the provisions of product liability remain unaffected if they are mandatory.

8.2


Damage claims by the customer due to a defect expire one year after delivery of the goods. This does not apply if Carbon Terra can be accused of malice.

8.3


The rights of the customer from warranty obligations acc. section 6 remain unaffected.

8.4


The claims due to delays in delivery are conclusively regulated in section 4.


9. Confidentiality / brand protection

9.1


Offers, sales documents and other documents, including video, audio and other data carriers may not be distributed to competitors or unauthorized persons without consent of Carbon Terra either as the original or as copies or be used in a manner that damages the interests of Carbon Terra. Furthermore, the terms granted by Carbon Terra in its offer, especially the prices, may not be forwarded to a third-party in writing or orally.

9.2


The customer is not allowed to use the name “Carbon Terra”, the brand “Carbon Terra”, logos or other signs or designations of Carbon Terra or to exploit them in any kind without written permission from Carbon Terra.


10. Resignation

Until shipment of the goods Carbon Terra is entitled to withdraw from the contract, provided the customer breached the contract to a considerable extent, his financial situation has deteriorated significantly or the underlying conditions of the contract have changed significantly.


11. Jurisdiction, Applicable Law

11.1


The place of jurisdiction is the registered office of Carbon Terra, to the extent that it is not contrary to compulsory law.

11.2


For the legal relations of Carbon Terra to customers only the law of the Federal Republic of Germany applies, to the extent that it is not contrary to compulsory law.


12. Final provisions

12.1


Carbon Terra is entitled to process data obtained on the customer with respect to the business or in connection with it, no matter whether the data comes from the customer itself or from third parties in compliance with the mandatory rules for the data protection law.

12.2


The invalidity of single points of the contract does not affect the remaining provisions. The invalid provision shall be substituted by a valid provision, which most closely approximates the intent and economic effect of the invalid provision.

 

Augsburg, 01-2012