GENERAL TERMS AND CONDITIONS
I. Application of these conditions
1. Subject to deviating agreements in individual cases, contracts with us shall be concluded exclusively in accordance with the following provisions; by placing an order, the customer agrees to our terms and conditions. Conflicting or deviating terms and conditions of the customer will only be binding for us if we have expressly acknowledged them in writing. Our terms and conditions shall also apply if we carry out our delivery without reservations despite knowing about conflicting or deviating terms and conditions of the customer.
2. These General Terms and Conditions shall apply to all our deliveries and services as well as to all obligations resulting from the contractual relationship. Our terms and conditions shall also apply to all future business relationships with entrepreneurs/contractors and legal entities under public law.
II. Contract conclusion
1. A contract with us shall only be deemed concluded when the customer accepts our offer without reservations or when the customer receives our written order confirmation, or when we commence performance of the contractual services. If we issue a written order confirmation, the latter shall be decisive for the content and scope of the contract, unless explicitly agreed otherwise.
2. Changes, ancillary agreements and amendments as well as the possible assumption of a quality guarantee ("assured quality") shall require our written confirmation in order to become effective. This shall also apply to any cancellation of this clause.
3. Unless stated otherwise in the contents of our offer, the offer shall be subject to change without notice.
III. Performance modalities
1. Deadlines and dates shall always be deemed approximate unless special agreements have been reached in writing in an individual case. Insofar as they are non-binding, we shall only come in default if the customer has previously set us a reasonable deadline in written form, without success, for provision of the delivery or service owed. In any case, time limits shall only start running from the complete performance of all acts of cooperation owed by the customer and, if applicable, from the receipt of an agreed down payment. Subsequent requests for changes or belated acts of cooperation by the customer shall trigger an appropriate extension of the delivery periods.
2. If the delivery owed by us is delayed by unforeseeable circumstances for which we are not responsible (e.g. industrial disputes, operational disturbances due to animal diseases or animal epidemics or due to other circumstances beyond our control, transport obstacles, lack of raw materials, measures taken by public authorities - including cases in which our own suppliers are affected by such circumstances - as well as untimely delivery by our suppliers), we shall be entitled to withdraw from the contract in whole or in part or, at our discretion, to postpone the delivery by the duration of the hindrance. Claims for damages shall be ruled out.
3. If the customer comes in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this event, the risk of accidental loss or accidental deterioration of the delivery item shall also pass to the customer at the time at which the customer comes in default of acceptance.
4. If we are in default due to reasons for which we are responsible, or if our obligation to perform is excluded due to reasons for which we are responsible, or if we may refuse performance in accordance with § 275 Subsection 2 BGB (German Civil Code), our obligation to pay damages in the event of slight negligence shall be limited to the foreseeable damage that is typical of the contract.
5. We shall be entitled to change the composition of our goods provided this does not affect the interests of the customer being worthy of protection, in particular provided it does not result in any loss of quality.
6a. Special regulations for the hatchery sector: Ordered turkey chicks will be delivered in the naturally occurring gender ratio. Shortfall or exceedance of the delivery quantity as well as gender deviations by up to 10% shall be permissible, as is a deviation from the agreed delivery date by up to 14 days. Defect notifications must be submitted within 2 days of delivery for young turkeys and within 4 days of delivery for turkey chicks.
6b. Special regulation for the feed sector: Deviations from order quantities shall be permissible within the framework of tolerances customary in the trade (+/- 5 %).
IV. Transfer of risk and transportation
1. The risk of accidental loss or accidental deterioration of the delivery item shall also pass to the customer upon dispatch if we have agreed to bear the shipping costs or provide other additional services, or if a partial delivery is made.
2. The delivery shall be made in appropriate packaging of our choice. Transport materials (Euro pallets, meat boxes etc.) shall remain our property and must be returned to us immediately. If this does not take place despite a corresponding request, we shall be entitled to procure replacement at the customer’s expense.
V. Prices and payments
1. The prices quoted by us shall be decisive. To these prices, the respective statutory value added tax - insofar as it is applicable - will be added. Unless otherwise stipulated in the contract, we shall charge the list prices applicable on the day of delivery. Our invoices are due for payment without discount and exempt from charges within 8 days of the invoice date. If cheques or bills of exchange are accepted on the basis of explicit agreements in an individual case, this shall only take place on account of payment and likewise without discount deduction. Any redemption charges shall be borne by the customer; we will only acknowledge cheques or payments by bill of exchange as fulfilment once the respective amounts have been credited to our account without reservations. We reserve the right to demand reasonable down and advance payments.
2. If we have several accounts receivable from the customer, we shall decide on the debt, in regards to which the payment is credited. The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us in writing. The same applies to the assertion of rights of retention vis-à-vis contractors/entrepreneurs.
3. If it becomes apparent after conclusion of the contract that our claims against the customer are at risk due to the customer's lacking ability to pay, we shall be entitled to make outstanding deliveries only against advance payment or against provision of a security and to withdraw from the contract after the unsuccessful expiry of a deadline set for this purpose.
4. In the event of delayed payment, the customer shall owe the statutory default interest unless we are able to prove higher damages.
5. If the purchaser is in default with fulfilling any payment obligations towards us, all existing accounts receivable will become due immediately.
VI. Subsequent performance
1. In the event that we have made a defective delivery, the customer shall give us the opportunity to provide subsequent performance (at our option either to remedy the defect or to supply a flawless item) within reasonable periods. If the subsequent performance fails, the customer shall be entitled to reduce the price or withdraw from the contract; claims for damages shall only be in place in accordance with Section VII. However, the right of withdrawal shall not apply if the value or suitability of a delivery item is only diminished insignificantly.
2. Apart from the cases under Subsection 1, the customer shall only be entitled to rescind the contract if we are responsible for the breach of duty, on the basis of which the rescission is to be declared.
VII. Compensation for damages
1. We shall be liable for damages exclusively in accordance with the following regulations: We shall be liable on the merits: - for wilful and grossly negligent acts, - for any culpable breach of essential contractual obligations, - in the event of assumption of a guarantee of quality ("assured quality"), - for default and in cases where the claim to performance is excluded pursuant to § 275 BGB (German Civil Code) due to reasons for which we are responsible or in which we may refuse performance. In terms of amount, our obligation to pay compensation to contractors/entrepreneurs in cases of simple negligence shall be limited to compensation for the foreseeable damage that is typical of the contract. Apart from that, any liability for material damage and financial losses shall be ruled out; reference is made to Sections III. 2. and 4. of these Terms and Conditions.
2. The liability for damages resulting from injury to life, body or health shall remain unaffected by the above liability provisions.
3. Insofar as our liability for damages is excluded or limited under the provisions above, this shall also extend to the personal liability of our executive bodies, employees and other staff members, representatives and vicarious agents. It shall also apply to all claims arising from tortious acts (§§ 823 et seq. BGB), but not to claims under §§ 1, 4 of the German Product Liability Act (ProdHaftG).
5. Force majeure such as riot, strike, lockout, unforeseen shortage of raw materials, untimely delivery by suppliers, operational disturbances due to animal epidemics and animal diseases as well as other operational disturbances through no fault of our own (e.g. because of constraints or delivery prohibitions due to statutory regulations) shall extend an agreed delivery period by the time of their duration without further ado. If our delivery or service becomes impossible due to the aforementioned circumstances although we have made all reasonable efforts to procure the goods, we shall be released from our delivery obligation. Should the aforementioned circumstances last longer than two weeks, we shall furthermore be entitled to withdraw from the contract.
VIII. Reservation of proprietary rights
1. All items delivered shall remain our sole property until the purchase price claim has been fulfilled and, in the case of businesspersons, until all claims arising from the business relationship have been fulfilled. Pledging, transfer by way of security or other realisation shall be prohibited, unless the purchase was made for resale purposes. In this case, the customer shall be revocably entitled to resell the goods being subject to reservation of proprietary rights in his own name within the framework of orderly business operations as long as he is not in default with his payment obligations towards us and provided no prohibition of assignment is in place between the customer and his clients/purchasers.
2. In the event that such a delivery item is combined or mixed with other objects, we shall acquire co-ownership with our share of ownership being determined by the invoice value (our delivery price including value-added tax without deduction of a discount); insofar as the customer acquires sole ownership by virtue of the law, he shall transfer proportionate co-ownership to us and store the item(s) on our behalf. Any processing of such items shall be carried out for us as the manufacturer.
3. The customer already hereby assigns to us, by way of security, any claims arising from resale or any other legal reason (e.g. insurance, tort) in respect of the goods being subject to the reservation of proprietary rights, including all current account balance claims, as far as the amount of the invoice value is concerned. This shall also apply in the event that resale was not permissible under the restrictions stated above. We accept the assignment. If we are only entitled to co-ownership of the goods being subject to the reservation of proprietary rights, the assignment in advance shall be limited to that part of the claim which corresponds to the share of our co-ownership on the basis of the invoice value.
4. The customer shall be revocably entitled to collect the claims assigned to us in his own name and for his own account. This collection authorisation may be revoked if the customer does not properly meet his payment obligations. In the event of justified revocation, the customer or his legal successor or insolvency administrator shall, upon request, disclose the assigned claims and their debtors including addresses, provide all information required for collection, hand over the associated documents and notify the debtor of the assignment without delay.
5. In the event of access by third parties to the goods being subject to the reservation of proprietary rights, the customer shall draw attention to our ownership and notify us immediately. In addition, he shall immediately file a suit as an assigned plaintiff at his own expense pursuant to § 771 ZPO (German Code of Civil Procedure).
6. In the event of default of payment by the customer, we shall be entitled to demand return of the goods being subject to the reservation of proprietary rights at the customer's expense and to withdraw from the contract according to the statutory preconditions.
7. We shall release the aforementioned securities at the customer's request and at our discretion to such extent as their realisable value exceeds the secured claims by more than 10%. The realisable value shall be the estimated value in case of goods being subject to the reservation of proprietary rights, and the nominal value in the event of claims assigned by way of security, less a deduction of one third in each case.
IX. Obligations of the customer
1. The customer shall ensure that the goods are kept and stored in a quality-preserving manner and in compliance with all relevant regulations. He shall also be responsible for the compliance with marking or labelling regulations that deviate from nationwide regulations.
2. In the case of sample taking by public authorities, the customer must request a counter sample and send it to us immediately, sealed by the official inspector.
X. Place of performance and prohibition of assignment
1. The place of performance for all deliveries shall be Ahlhorn / Germany.
2. The assignment of claims, to which the customer is entitled under the business relationship with us, shall be ruled out; however, we shall be entitled to assign our claims arising from the business relationship.
XI. Place of jurisdiction and applicable law
1. The exclusive place of jurisdiction for all claims arising from the business relationship against registered traders and legal entities under public law shall be Cloppenburg / Germany. This shall also apply to claims arising from cheques as well as to claims under the law of tort and third-party notices. However, we shall also be entitled to sue the customer at his general place of jurisdiction.
2. For cross-border services, Cloppenburg shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship (Article 17 of the EU Regulation on Matters of Legal Venue and Enforcement). However, we reserve the right to sue the customer at his general place of jurisdiction or bring legal action at any other court which is competent on the basis of the EU Regulation on Matters of Legal Venue and Enforcement.
3. The law of the Federal Republic of Germany shall apply exclusively to all business relationships and legal relations between the customer and us; any application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is ruled out.
XII. Final provisions
1. Should any of the above provisions be or become ineffective, this shall not affect the validity of the remaining provisions. The ineffective provisions shall then be replaced with regulations that come as close as possible to the commercial purpose of the contract and the reasonable protection of the interests of both parties.
2. All our previous General Terms and Conditions are hereby cancelled.
3. We process personal data in accordance with the relevant data protection regulations, in particular with the provisions of the EU General Data Protection Regulation (EU-GDPR). Insofar as we process personal data on behalf of the customer, we create the necessary legal basis and, if necessary, conclude commissioned data processing agreements pursuant to Article 28 of the EU-GDPR.
