General terms and conditions
General Terms and Conditions of Delivery and Payment
1.0. Scope
1.1. These General Terms and Conditions of Delivery and Payment (“GTC“) of Spezialfutter Neuruppin GmbH & Co. KG (“Spezialfutter”) apply for all, including future, deliveries, services and offers of specialty feed and are an integral part of all product sales contracts between Spezialfutter and its customers (“Buyers”). The GTC only apply if the customer is a business owner (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
1.2. Amendments and supplements to these GTC, ancillary agreements and deviating terms and conditions provided by the Buyer are only valid if Spezialfutter has expressly consented to their validity. A written contract or written confirmation by Spezialfutter is decisive for the content of these kinds of agreements, subject to evidence to the contrary. The express requirement to provide consent also applies, if Spezialfutter does not specifically object to the Buyer's terms and conditions in the individual case or delivers to the Buyer without reservation in knowledge of Buyer terms and conditions that contradict or deviate from the GTC, even if the Buyer refers to their terms and conditions.
1.3. The GTC valid at the time the Buyer places the order apply. If the Buyer accepts Spezialfutter's order confirmations, which refer to these GTC, without objection, this is considered consent to integrate the GTC into the contract.
1.4. If one or more of the terms and conditions of the contract to be concluded or these GTC are or become invalid, this shall not affect the validity of the remaining provisions. The invalid regulations shall be replaced by the legally valid provision, which the contract partners would have agreed in line with the economic objectives of the contract and the purpose of these GTC, if they had been aware of the invalidity. The same applies for loopholes.
2.0. Offers, legally binding declarations
2.1. Spezialfutter offers are only binding if they are expressly indicated as such. The order of the goods by the Buyer represents a binding contractual offer. Acceptance by Spezialfutter may either be declared in text form (e.g. in the form of an order confirmation) or by delivering the goods to the Buyer. The commitment period, within which the offer may be accepted by the Buyer or Spezialfutter, is 14 days after the dispatch of the offer.
2.2. If the Buyer declares their acceptance of the offer after the commitment period, a contract only enters into force, if Spezialfutter confirms the declaration of acceptance.
2.3. Samples, specimens, analytical data as well as product descriptions and other documents and information on the quality and composition of the goods, to which Spezialfutter retains all rights of ownership and copyrights, are only binding, if and to the extent that they have been identified as binding by Spezialfutter in text form.
2.4. Binding information, recommendations and contractual declarations may only be provided or made by Spezialfutter employees if they are authorised to do so.
3.0. Prices
3.1. Unless otherwise agreed, the current Spezialfutter prices, in EURO, at the time of conclusion of the contract apply, with free delivery to the destination and not including any applicable value added tax. For bagged goods, the prices include packaging.
3.2. Costs for a special type of packaging and transport requested by the Buyer, as well as customs duties, taxes, other duties, fees and the like shall be borne by the Buyer.
4.0. Delivery
4.1. The offer or the order confirmation by Spezialfutter is decisive for the scope of the delivery.
4.2. Delivery takes place at the agreed delivery date or within the agreed delivery period ex-factory. If the delivery period is defined in days, weeks or months, the deadline starts to run upon receipt of the order confirmation by the buyer or upon receipt of the acceptance of the offer by Spezialfutter. If the delivery period is measured in days, the delivery period is calculated from the number of working days.
4.3. Deliveries that are made within 3 days of the agreed delivery period are considered to have been made on time. In principle, the handover to the Buyer is decisive in this respect. If shipping has been agreed, the delivery deadlines and delivery periods refer to the date of handover to the carrier or freight forwarder or other third party commissioned with the transport. In the event of subsequent amendments to the order, the type of transport and the destination by the Buyer, the delivery period shall change as appropriately redefined by Spezialfutter.
4.4. Compliance with the delivery period requires the timely receipt of any documents, official approvals, release declarations and the like to be provided by the Buyer.
4.5. Delays in delivery caused by force majeure, strike, unforeseeable operating disruptions, supply restrictions for the raw materials and energies required to manufacture the purchase item, delays in the delivery of raw materials by upstream suppliers, with which Spezialfutter has concluded a congruent covering transactions, a lack of cargo space and other circumstances for which Spezialfutter is not responsible, release Spezialfutter from the delivery obligation for the duration of their existence and justify an appropriate amendment of the delivery periods by Spezialfutter. This does not apply for events for which Spezialfutter is responsible. Spezialfutter shall immediately inform customers of an event such as those defined in sentence 1. If these kinds of events make a Spezialfutter delivery or service much more difficult or impossible, and the impairment is more than just temporary, Spezialfutter is entitled to withdraw from the contract. Spezialfutter shall immediately reimburse any consideration already provided by the Buyer. In the cases defined in sentence 1, the Buyer is entitled to withdraw from the contract, by way of an immediate written declaration to Spezialfutter, if the acceptance of the delivery or service is unreasonable for the Buyer as a result of the delay. The Buyer is not entitled to raise any additional claims against Spezialfutter.
4.6. If the Buyer takes over or organises the transportation of the purchase item, or its dispatch is delayed for reasons for which the Buyer is responsible, the handover of the notice of readiness for shipping by Spezialfutter suffices to comply with the delivery period.
4.7. For call orders, the Buyer's request must be received in good time before the desired delivery date.
5.0. Place of fulfilment and transfer of risk
5.1. The place of fulfilment is Spezialfutter's plant in Neuruppin, irrespective of the destination of the delivery.
5.2. The risk of the accidental loss or accidental deterioration of the purchase item transfers to the Buyer upon handover to the Buyer or the carrier. Unless otherwise agreed, Spezialfutter is entitled to determine the type of shipping (especially the transport company, transport route, packaging) independently. This also applies if Spezialfutter assigns the transport order for the Buyer or executes the transport itself.
5.3. If the delivery is replaced by the notice of readiness for shipping (Section 4.6.), the risk of accidental loss or accidental deterioration of the purchase item transfers to the Buyer 3 working days from the dispatch of the notice of readiness for shipping.
5.4. The Buyer is responsible for obtaining transport and other insurances for the purchase item.
6.0. Payment conditions
6.1. Unless otherwise agreed, the purchase price is due immediately after the receipt of the invoice from Spezialfutter and the handover of the goods to the Buyer or the carrier and is payable immediately thereafter in the value indicated, without deduction. If cheques or bills of exchange are accepted, all costs of collection shall be borne by the Buyer.
6.2. However, Spezialfutter is also entitled to only execute a delivery against prepayment, either in part or in full, including as part of an ongoing business relationship. Spezialfutter shall declare a corresponding reservation no later than with the offer or the order confirmation.
6.3. The Buyer defaults on payment, if payment is not made within 14 days of the due date pursuant to 6.1. From the date of default, the Buyer must pay interest on the invoice amount at an interest rate of 9 percentage points above the base rate. Additional claims by Spezialfutter remain unaffected.
6.4. Payments must always be settled in accordance with Section 366 (2) BGB.
6.5. If the Buyer defaults on an invoice payment, all outstanding Spezialfutter receivables, including receivables from bills of exchange, shall fall due immediately without consideration of the agreed payment deadlines. Spezialfutter is also entitled to postpone any outstanding deliveries until all outstanding invoices are settled and request prepayment for these deliveries. The same applies, if Spezialfutter becomes aware of circumstances that may place the Buyer's credit rating at risk.
6.6. The Buyer only has a right of offset and retention to the extent that their counterclaims are undisputed, established by law or have been recognised by us. The Buyer's rights relating to defects remain unaffected in case of defects to the purchase item.
6.7. Spezialfutter is entitled to assign claims from the business relationship with the Buyer to third parties.
7.0. Reservation of title
7.1. All deliveries are subject to the reservation of title. Ownership only transfers to the Buyer once it has fulfilled all its liabilities towards Spezialfutter that have arisen in relation to delivery contracts with Spezialfutter or in connection herewith. In the event of a running account, the reserved ownership shall act as security for Spezialfutter's balance receivable. The balance receivable also includes any recourse claims, especially from any liability resulting from the acceptance of cheques and bills of exchange.
7.2. If the Buyer is in breach of contract, especially in the case of non-payment of the payable purchase price, Spezialfutter is entitled to withdraw from the contract in accordance with the statutory provisions and reclaim the goods based on the reservation of title and withdrawal. If the Buyer does not pay the purchase price due, Spezialfutter may only assert these rights, if Spezialfutter has previously set an appropriate payment deadline for the Buyer without success, or the setting of this kind of deadline is unnecessary in line with the legal requirements.
7.3. The Buyer is authorised to resell and/or process the purchase items delivered under reservation of title as part of their ordinary course of business until further notice.
7.4. The reservation of title extends to the full value of the products created by processing, mixing or combining Spezialfutter's purchase item. The Buyer shall not acquire ownership as a result of any processing or modification of the purchase item delivered under reservation of title, as it expressly carries out these activities for Spezialfutter, but without establishing any obligations for Spezialfutter. If the Buyer processes, modifies, combines and/or blends the purchase item delivered under reservation of title with other goods that do not belong to Spezialfutter, Spezialfutter shall acquire joint ownership of the manufactured product in relation to the invoice value of the processed purchase item under reservation of title to the total value of all other goods used in the manufacturing process. If the Buyer acquires full ownership of the new product, the Buyer and Spezialfutter hereby agree that the Buyer shall grant Spezialfutter joint ownership of the new product in relation to the invoice value of the processed or combined, mixed or blended goods to the values of the other goods used. The Buyer shall preserve the full or joint ownership for Spezialfutter free of charge.
7.5. In the event of the resale of the purchase item delivered under reservation of title and the products jointly owned or owned by Spezialfutter in accordance with Section 7.4, the Buyer hereby assigns their associated receivables from their customers – in the proportional amount as defined in Section 7.4 in case of processing, modification, combination, mixing or blending – to Spezialfutter in the corresponding amount. Spezialfutter hereby accepts this assignment. The Buyer is entitled to collect these receivables until this right is revoked by Spezialfutter. If the Buyer defaults on payments to Spezialfutter, a lack of ability to pay exists or Spezialfutter enforces its reservation of title by exercising a right pursuant to Section 7.2, Spezialfutter is entitled to revoke the collection authorisation. In the event of the revocation of the collection authorisation, Spezialfutter is entitled to inform the third-party debtor of the assignment and request payment to itself, while the Buyer is obliged to immediately provide the information necessary to enforce Spezialfutter's rights and also provide Spezialfutter with a copy of the necessary delivery and invoice documents.
7.6. The Buyer must immediately inform Spezialfutter if it feeds animals also acquired from third parties subject to reservation of title or transferred to third parties as security. In this case, the Buyer hereby commits to granting other, equivalent security for the purchase item delivered under reservation of title to Spezialfutter.
7.7. If the value of the securities provided to Spezialfutter exceeds the value of Spezialfutter's receivables from the Buyer by more than 20%, Spezialfutter is obliged to release a corresponding amount of securities at the discretion of Spezialfutter at the Buyer's request.
7.8. The Buyer must store the purchase item delivered under reservation of title or the product created by mixing the purchase item separate from other products until its sale. During this period, the Buyer bears all the necessary maintenance and preservation costs and expenses and is liable to Spezialfutter for any deterioration. Any pledging of the purchase item or the resulting new product or its assignment as security, prior to the full payment of the secured receivable, is prohibited. Applications for the initiation of an insolvency proceeding, pledging or other encroachments on Spezialfutter's ownership by third parties must immediately be communicated and appropriately defended by the Buyer. The Buyer hereby assigns claims, to which it becomes entitled against third parties due to damage or the withdrawal of the aforementioned product, to Spezialfutter; Spezialfutter hereby accepts this assignment.
8.0. Warranty, material defects
8.1. Our liability for defects is primarily based on the agreement reached on the quality of the goods. Information on the features, composition, application, suitability or effect of the purchase item, the transfer of samples and specimens as well as a reference to standards and guidelines only represent an agreed quality of the purchase item, if it has been expressly confirmed as such to the Buyer by Spezialfutter.
8.2. Deviations from the specifications, which are within permitted latitudes, are not defects within the meaning of the warranty provisions. The applicable feed tolerances apply in this respect.
8.3. The statutory regulations apply for the Buyer's rights in the event of defects of quality and title, unless otherwise defined below. The special statutory provisions for the final delivery of the purchase item to a consumer remain unaffected in all cases (supplier recourse pursuant to Sections 478, 479 BGB). In the event of quality defects relating to the purchase item, Spezialfutter is initially obliged and entitled to choose to repair the defect or provide replacement delivery within an appropriate period. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unacceptable delays in the repair of the defect or replacement delivery, the Buyer may withdraw from the contract or appropriately reduce the purchase price. However, no right of withdrawal exists for minor defects.
8.4. The expenses necessary for the purpose of inspection and supplementary performance, especially transport, travel, labour and material costs shall be borne by Spezialfutter, if a defect exists. Otherwise, Spezialfutter may demand that the Buyer reimburse the costs resulting from the unjustified defect removal request (especially inspection and transport costs), unless the absence of a defect was not identifiable for the Buyer.
8.5. The Buyer is only entitled to assert claims for compensation or the reimbursement of futile expenses, even in case of defects, in accordance with Sections 9.1. and 9.2. Claims are excluded in all other respects.
8.6. Spezialfutter is released from any warranty, if defects to the purchase item are based on following incorrect Buyer instructions or errors during transportation executed by the Buyer (including in the event of sale by dispatch) or during the storage or use of the purchase item by the Buyer for which Spezialfutter is not liable.
8.7. The Buyer's claims for defects require the Buyer to have complied with their statutory inspection and defect notification obligations (e.g. Sections 377, 381 of the German Commercial Code (HGB)). The Buyer must immediately carefully and comprehensively inspect the purchase item for completeness and integrity upon arrival at the destination in accordance with the information on the delivery note. All of the defects or shortfalls identified as part of this inspection must be fully reported to Spezialfutter in writing by enclosing a LUFA-certified certificate of analysis, indicating all the details as well as consequential damages and losses. The samples required for inspection must be taken by certified samplers.
8.8. Defects or shortfalls detected during the inspection or at a later date must immediately be reported to Spezialfutter after receipt of the goods at the destination.
8.9. The warranty period amounts to one year from the delivery of the purchase item. This deadline does not apply for compensation claims in the event of intentional or grossly negligent actions by Spezialfutter or in the event of death, physical injury or damage to health caused by Spezialfutter. The compensation claims indicated in sentence 2 lapse in accordance with the statutory regulations.
9.0. Liability for faults
9.1. Irrespective of the legal basis, Spezialfutter only accepts unlimited liability in case of intent, gross negligence, fraudulent concealment of a defect, acceptance of a guarantee, claims from the German Product Liability Act and damages resulting from death, physical injury or damage to health. In the case of simple negligence, Spezialfutter is only liable for damages from a material breach of contract. Material contractual obligations are all obligations whose fulfilment makes the proper performance of the contract possible in the first place and upon whose compliance the contract partner can regularly rely. If a material contractual obligation is breached as a result of behaviour that is classed as simple negligence, Spezialfutter's liability is limited to the typically foreseeable damages that existed upon conclusion of the contract.
9.2. The limitations of liability from Section 9.1. also apply for breaches of duty by persons whose culpable actions are the responsibility of Spezialfutter in accordance with the statutory provisions.
10.0. Withdrawal
10.1. Spezialfutter is entitled to withdraw from the contract if the Buyer breaches their obligations from the contract despite setting an adequate deadline, especially in the event of the repeated breach of their payment obligation. If the Buyer's financial situation deteriorates to such an extent as to place the payment of the delivery at risk, Spezialfutter is entitled to refuse performance and withdraw from the contract, after setting a deadline if necessary, in accordance with the statutory provisions (Section 321 BGB). The statutory regulations on the lack of the necessity for a deadline remain unaffected.
10.2. In the event of withdrawal, the performances and payments provided by the parties shall be reversed. However, Spezialfutter is entitled to demand the reimbursement of the expenses that arise for Spezialfutter in connection with the reversal.
11.0. Applicable law
Solely German law applies for the GTC and the legal relationships between Spezialfutter and the Buyer, to the exclusion of international private law and the UN Convention on Contracts for the International Sales of Goods.
12.0. Place of jurisdiction
The exclusive place of jurisdiction is Neuruppin, Germany, if the Buyer is a merchant, legal entity under public law or a special fund under public law. This also applies for the contracts concluded with the integration of these GTC and the procedures associated with its transactions.
13.0. Final provisions
If individual provisions of these GTC are or become void, invalid and/or unfeasible, either in part or in full, this shall not affect the validity of the remaining provisions. Void, invalid and/or unfeasible provisions shall be replaced by valid and feasible regulations that most closely resemble the intended economic purpose. The same applies if these terms and conditions contain a loophole. The German version of these terms and conditions is decisive. Versions provided in other languages are merely unofficial translations.
July 2016
Spezialfutter Neuruppin GmbH & Co.KG
Friedrich-Bückling-Straße 9
16816 Neuruppin