Terms and Conditions
Art. 1 Scope, conditions
Any deliveries, work/services and offers from Dostofarm GmbH (hereafter referred to as the Seller) shall be subject to these General Terms and Conditions which shall equally apply to any future trading relations even if not expressly agreed in each case. The Conditions shall be deemed to have been accepted on receipt of the goods/acceptance of work/services at the latest. Any counter-confirmation on the part of buyers, or reference to their terms of business or purchase is hereby rejected.
Exceptions to these Standard Terms and Conditions shall be effective only if confirmed in writing by the Seller.
Art. 2 Offers, conclusion of contracts
The Seller's offers shall be without obligation and not binding. Notices of acceptance and orders shall be legally effective only if confirmed in writing or by telex/cable by the Seller. The same shall apply to amendments, modifications or sub-agreements.
Dimensions, weights, capacities, quality grades and other specifications shall be binding only if agreed expressly in writing.
The Seller's sales personnel shall not be authorized to make sub-agreements or undertakings verbally which go beyond the contents of a written contract.
Art. 3 Prices
The relevant prices shall be those quoted in the Seller's confirmation of an order, plus legally applicable VAT. Any extra deliveries/supplies/work/services shall be charged separately.
Art. 4 Time of delivery/performance
Delivery dates/periods agreed as (not) binding shall be taken down in writing.
In cases where dates/periods have been agreed in binding form, the Seller shall not be held responsible for any delay in delivery/performance due to force majeure and events which essentially obstruct/prevent delivery [including, in particular, strikes, lockouts, administrative orders, etc. affecting the Seller or the latter's (sub)suppliers]. Such events shall entitle the Seller to delay delivery/performance by the period during which the event prevailed, plus a reasonable preparatory period, or to revoke the contract in whole or part.
If the obstruction continues for more than three months, the buyer shall be entitled, after granting a reasonable extension, to revoke the unperformed part of the contract. If the delivery period is extended or the Seller released from a specific obligation, the buyer shall not be entitled to claim any damages. The Seller shall have the right to invoke these circumstances only after notifying the buyer immediately.
If the Seller is responsible for non-compliance with dates/periods agreed as binding, or is in default, the buyer shall be entitled to compensation for delayed performance at the rate of 0.5% for each full week of delay, limited to a max. of 5% of the invoice value of contractual deliveries/work/services.
Any other claims are hereby excluded, except for delays caused by gross negligence, or worse, on the Seller's part.
The Seller shall have the right to partial performance/delivery at any time.
The Seller's compliance with delivery/performance obligations depends on the timely and correct fulfillment of the buyer's obligations.
If the buyer defaults on the acceptance of goods, the Seller may claim compensation for the damage caused. The risk of deterioration and accidental loss shall pass to the buyer on the first day of default.
Art. 5 Passing of risks
Risks shall pass to the buyer when a consignment has been handed over to the person transporting the goods, or left the Seller's warehouse for shipment. Should shipment be impossible with no negligence on the Seller's part, or delayed at the buyer's request, risks shall pass to the buyer when the latter has been notified that the goods are ready for shipment.
Art. 6 Buyer's rights if goods are defective
The buyer shall inspect goods after arrival for completeness, damage in transit, obvious defects, nature and properties. Obvious defects shall be notified in writing at once, other defects within one week and definitely before the goods are processed, mixed or resold. Complaints about transport damage shall be made to the carrier directly. The Seller warrants the goods to be of commercial quality and condition.
The Seller shall not be obliged to have goods analyzed before they are resold, if they were purchased with guaranteed contents or may be assumed from past experience to have the agreed condition.
No liability for defects shall be accepted if the Seller's instructions for use as printed on the packing are not observed. This shall apply if the buyer fails to refute a reasonably substantiated claim that one of these circumstances has caused the defect, and if the buyer has modified the goods.
Claims on the Seller arising from defects shall be limited to direct buyers and shall not be transferable.
Where justified complaints have been verified and accepted by the Seller, the latter shall have a choice of replacing the goods or making a further delivery to supplement the goods. If replacement is impossible or there are defects also in the further delivery, the buyer shall have the right to revoke the contract or reduce the price of the goods.
For the production, the Seller, on purpose, does not use any animal feed or feed components which, allowing for the provisions of Regulations (EC) 1829/2003 and 1830/2003 require labelling with reference to genetically modified components. The Seller produces according to GMP+-B1 / ISO 9001.2008 and an appropriate quality control scheme. Feed produced on this basis will only be supplied to the contractual partner provided the results of the above referenced tests have not revealed any requirement to label the feed in compliance with Regulations (EC) 1829/2003 and 1830/2003. In principle, the declaration of feeds is based on the valid legal regulations.
Art. 7 Reservation of ownership
The goods shall remain the Seller's property. Any processing or reshaping shall be carried out on behalf of the Seller who is the manufacturer, without an obligation to the latter.
Where the Seller's (co-)ownership expires by way of combination, it is hereby agreed that the buyer's (co-)ownership in the uniform good(s) shall be transferred to the Seller as a percentage of value (invoice value). The buyer shall hold the goods (co-)owned by the Seller in safe custody free of charge. Goods in which the Seller retains (co-)ownership rights will be referred to as reserved goods in the following.
The buyer shall have the right to process reserved goods in the ordinary course of business and to sell them, as long as he is not in default. No pledging or collateral assignment shall be permitted. The buyer hereby assigns to the Seller as security any claim arising from the resale or any other cause in law (insurance, commission of a tort) in relation to the reserved goods (including all balance claims from account current). The Seller revocably authorizes the buyer to collect, in his own name, claims on behalf of the Seller which have been assigned to the latter. This collection order may be revoked only if the buyer does not meet his payment obligations properly.
In the event of third-party seizure of the reserved goods, and particularly execution, the buyer shall point to the Seller's ownership and inform the latter immediately. If the third party is unable to refund to the Seller the legal or extra-judicial costs incurred in this connection, the buyer shall be liable.
If the buyer does not act in accordance with the contract and, in particular, defaults on payments, the Seller shall have the right to take back/reclaim the reserved goods or, if necessary, demand assignment of the buyer's right to recovery in relation to third parties. By taking back/seizing the reserved goods, the Seller has not revoked the contract, save for the existence of statutory provisions giving compelling grounds to the contrary.
Art. 8 Payment
Unless agreed otherwise, invoices issued by the Seller shall be payable within 10 days from delivery without discount. Despite provisions of the buyer to the contrary, the Seller shall have the right to offset payments against older debts run up by the buyer, and will inform the latter about the type of settlement chosen. In cases where costs and interest have already been incurred, the Seller shall have the right to offset any payments first against costs, then against interest and finally against the primary obligation.
Payment shall be deemed to have been completed when the amount is at the Seller's disposal. Where checks are used, payment shall be deemed to have been made when the check is cashed.
Upon default, the Seller shall have the right to claim, as lump compensation, interest at a rate of 8% above the base lending rate from the date the buyer has defaulted. The rate shall be reduced if the buyer can show the burden to be less; the Seller may show the damage to be greater.
If circumstances detracting from the buyer's creditworthiness come to the Seller's knowledge, and particularly if a check can not be cashed or the buyer suspends payments, or if the Seller is informed of other circumstances which question the buyer's creditworthiness, then the Seller shall have the right, even after accepting checks, to accelerate the due date for the residual debt as a whole. In such a case, the Seller shall also have the right to demand advance payment or the furnishing of security.
Even if notice of defects has been given or counterclaims have been made, the buyer shall have the right to offset, withhold or reduce amounts if the counterclaims have become legally valid or non-contentious. However, customers may withhold sums only in view of counterclaims from the same contractual relation.
Art. 9 Liability
Claims for damages shall not be accepted regardless of the type of neglect of duty and including unlawful acts, except in cases where the Seller has acted with willful/gross negligence.
If the Seller breaches essential contractual obligations, he/she shall be liable for any type of neglect, limited by the amount of foreseeable damage. No claims shall be accepted for lost profit, saved expenses, and in relation to damage claims of third parties and other indirect and consequential damage, except in cases where a feature in the condition of the goods is expressly designed to safeguard the buyer against such damage.
The limitations and exemptions from liability listed in the paragraphs above shall not apply to claims arising from a malicious behavior on the part of the Seller or in cases where the Seller is liable for guaranteed features in the condition of goods, nor shall they apply to claims arising under the German Product Liability Act and damage to health, the body and human life.
Limitations to, and exemptions from liability which apply to the Seller shall also cover the Seller's (white-collar) employees, agents and subcontractors.
Art. 10 Applicable law, venue, severability
The law applicable to these Standard Terms and Conditions and the legal relations between Seller and buyer shall be that of the Federal Republic of Germany, UN law on sales being excluded.
To such an extent as the buyer is a merchant within the meaning of the German commercial code, a legal person under public law or special public assets, Westerstede shall be the exclusive venue for any disputes arising directly or indirectly from the contractual relationship.
Should any individual provision contained in these Terms and Conditions or other agreements be or become invalid, the validity of the remaining provisions or agreements shall in no way be affected.