§ 1 Validity and conditions
1. The deliveries, services and offers of the company Dostofarm GmbH – hereinafter referred to as “Seller” – are made exclusively on the basis of these Terms and Conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. The terms and conditions shall be deemed to have been accepted at the latest upon receipt of the goods or services. Counter-confirmations by the Buyer and reference to its terms and conditions of business or purchase are hereby rejected.
2. Deviations from these terms and conditions shall only be effective if the Seller confirms them in writing.
§ 2 Offer and conclusion of contract
The Seller’s offers are subject to change and non-binding. Declarations of acceptance and all orders require the written or telex confirmation of the seller to be legally effective. The same applies to supplements, amendments or subsidiary agreements. Dimensions, weights, content or quality specifications or other performance data are only binding if this is expressly agreed in writing.
The Seller’s sales staff are not authorized to make verbal collateral agreements or give verbal assurances that go beyond the content of the written contract.
§ 3 Price
The prices stated in the Seller’s order confirmation plus the applicable statutory value added tax shall apply. Additional deliveries and services shall be invoiced separately.
§ 4 Delivery and performance time
Delivery dates or deadlines, which can be agreed as binding or non-binding, must be made in writing. The Seller shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery significantly more difficult or impossible for the Seller – including in particular strikes, lockouts, official orders, etc., even if they occur at the Seller’s suppliers or their subcontractors – even in the case of bindingly agreed deadlines and dates.
They entitle the seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled. If the hindrance lasts longer than 3 months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if the Seller is released from its obligation, the Buyer may not derive any claims for damages from this. The Seller may only invoke the aforementioned circumstances if it notifies the Buyer immediately. Insofar as the Seller is responsible for non-compliance with bindingly agreed deadlines and dates or is in default, the Buyer shall be entitled to compensation for default in the amount of 0.5% for each completed week of default, but not more than a total of 5% of the invoice value of the deliveries and services affected by the default.
Any further claims are excluded, unless the delay is due to at least gross negligence on the part of the seller. The Seller shall be entitled to make partial deliveries and render partial services at any time. Compliance with the Seller’s delivery and performance obligations requires the timely and proper fulfillment of the Buyer’s obligations. If the Seller is in default of acceptance, the Seller shall be entitled to demand compensation for the damage incurred; the risk of accidental deterioration and accidental loss shall pass to the Buyer upon the occurrence of default of acceptance.
§ 5 Transfer of risk
The risk shall pass to the Buyer as soon as the consignment has been handed over to the person carrying out the transportation or has left the Seller’s warehouse for the purpose of shipment. If shipment is impossible through no fault of the Seller or is delayed at the request of the Buyer, the risk shall pass to the Buyer upon notification of readiness for shipment.
§ 6 Rights of the buyer due to defects
The buyer must inspect the goods received for completeness, transport damage, obvious defects, quality and characteristics. Obvious defects must be reported in writing immediately, other defects within one week at the latest, but in any case before processing, mixing or resale. Transport damage must be reported directly to the carrier. The Seller warrants that its products are of merchantable quality. The Seller shall not be obliged to have any goods analyzed prior to resale if it has purchased them under a guarantee of quality or if it may assume from experience that the purchased goods are of the agreed quality.
If the Seller’s instructions for use or application are not followed, even if they are attached to the packaging, the liability for defects shall lapse if the Buyer does not refute a corresponding substantiated assertion that one of these circumstances caused the defect. This also applies to any modification of the products by the buyer. Only the direct buyer is entitled to claims against the seller due to defects and these are not assignable. In the event of justified complaints that are accepted by the vendor through inspection, the vendor may, at its discretion, replace the delivery or deliver missing quantities. If it is not possible to replace the goods or if the replacement delivery is also defective, the Buyer shall be entitled to withdraw from the contract or to reduce the purchase price.
The vendor does not use any feed or feed components in production that require a reference to genetically modified components in the declaration in accordance with the provisions of Regulations (EC) No. 1829/2003 and 1830/2003. The vendor produces in accordance with GMP+-B1 / ISO 9001:2008 and a corresponding test plan. The feed produced in accordance with this system shall only be delivered to the contractual partner if the above-mentioned tests have not revealed any requirement to label the feed in accordance with the provisions of Regulations (EC) No. 1829/2003 or 1830/2003. Otherwise, the declaration of the feed shall be made in accordance with the applicable statutory provisions.
§ 7 Retention of title
The goods shall remain the property of the Seller; processing or transformation shall always be carried out for the Seller as manufacturer, but without any obligation for the Seller. If the Seller’s (co-)ownership expires due to combination, it is hereby agreed that the Buyer’s (co-)ownership of the uniform item shall pass to the Seller in proportion to its value (invoice value). The Buyer shall store the (co-)ownership of the Seller free of charge.
Goods to which the seller is entitled to (co-)ownership are hereinafter referred to as reserved goods. The Buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are not permitted. The Buyer hereby assigns to the Seller in full by way of security any claims arising from the resale or any other legal grounds (insurance, tort) in respect of the goods subject to retention of title (including all current account balance claims). The seller revocably authorizes him to collect the claims assigned to the seller for the seller’s account in his own name. This withdrawal authorization can only be revoked if the Buyer does not properly meet his payment obligations.
In the event of access by third parties to the reserved goods, in particular seizures, the Buyer shall draw attention to the Seller’s ownership and inform the Seller immediately. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for these.
In the event of breach of contract by the Buyer – in particular default of payment – the Seller shall be entitled to take back the goods subject to retention of title and to demand the return of the goods subject to retention of title or, if applicable, to demand the assignment of the Buyer’s claims for return against third parties. The repossession or seizure of the reserved goods by the seller shall not constitute a withdrawal from the contract, unless this is contrary to mandatory statutory provisions.
§ 8 Payment
Unless otherwise agreed, the Seller’s invoices are payable 10 days after delivery without deduction. The Seller shall be entitled to offset payments against the Buyer’s older debts first, despite the Buyer’s provisions to the contrary, and shall inform the Buyer of the type of offsetting that has taken place. If costs and interest have already been incurred, the Seller shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal performance.
A payment shall only be deemed to have been made when the Seller can dispose of the amount. In the case of checks, payment is only deemed to have been made when the check is cashed.
If the buyer is in default, the seller is entitled to demand interest at a rate of 8% above the base interest rate as lump-sum compensation from the relevant date. They shall be set lower if the Buyer proves a lower charge; the Seller shall be entitled to prove higher damages.
If the Seller becomes aware of circumstances that call the Buyer’s creditworthiness into question, in particular if a check is not honored or the Buyer suspends payments, or if the Seller becomes aware of other circumstances that call the Buyer’s creditworthiness into question, the Seller shall be entitled to declare the entire remaining debt due, even if it has accepted checks. In this case, the Seller shall also be entitled to demand advance payments or the provision of security.
The Buyer shall be entitled to offset, withhold or reduce payments, even if notices of defects or counterclaims have been legally established or are undisputed. However, the customer is only entitled to withhold payment due to counterclaims arising from the same contractual relationship.
§ 9 Liability
Claims for damages are excluded regardless of the type of breach of duty, including tortious acts, unless the seller has acted with intent or gross negligence.
In the event of a breach of material contractual obligations, the seller shall be liable for any negligence, but only up to the amount of the foreseeable damage. Claims for loss of profit, saved expenses, claims for damages from third parties, as well as other indirect and consequential damages cannot be demanded, unless a procurement feature guaranteed by the seller is specifically intended to protect the buyer against such damages.
The limitation and exclusion of liability in the previous paragraphs shall not apply to claims arising from fraudulent conduct on the part of the Seller, nor to liability for guaranteed procurement characteristics, claims under the Product Liability Act, nor to damages resulting from injury to life, body or health.
Insofar as the Seller’s liability is excluded or limited, this shall also apply to employees, workers, representatives and vicarious agents of the Seller.
§ 10 Applicable law, place of jurisdiction, partial invalidity
The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between the seller and the buyer, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
If the buyer is a merchant within the meaning of the German Commercial Code, the place of of the German Commercial Code, a legal entity under public law or a special fund under public law, Westerstede shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
