General Terms and Conditions (GTC)
1. All sales and deliveries, including future sales and deliveries, shall be subject to the provisions of the Hamburger Futtermittel-Schlussschein No. 1a) as amended from time to time as well as the following terms and conditions, which shall take precedence over the provisions of the aforementioned Schlussschein. Our General Terms and Conditions together with the provisions of the Hamburger Futtermittel- Schlussschein No. 1a) as amended from time to time shall be accepted by the Seller and the contracting party at the latest upon receipt of the first delivery and shall apply for the entire duration of the business relationship. Prices are subject to change. The prices / price lists of DTC valid on the day of delivery shall apply, taking into account the market situation, unless otherwise agreed in advance and confirmed in writing.
2. The purchase contract is concluded under the condition of undiminished creditworthiness of the buyer. Unsatisfactory information, deterioration of the buyer's financial circumstances and other circumstances which become known after conclusion of the contract and which, in the opinion of the seller, make the granting of credit without cover no longer appropriate, shall entitle the seller to demand immediate payment of all claims, even in the case of bills of exchange - less discount -, to withdraw from the contract without setting a deadline or to demand advance payments of his choice or the provision of security.
3. The seller is entitled to make reasonable partial deliveries. If a delivery on call has been agreed, the Buyer shall call it off within a reasonable period of time. The seller retains full title to all goods delivered until full payment of all claims arising from the business relationship, including ancillary claims, claims for damages, claims arising from the encashment of cheques and bills of exchange and settlement of any current account balance to the detriment of the buyer; the seller's demand for surrender presupposes a withdrawal from the contract. The claims arising from the resale or further delivery of the goods to third parties in favour of the buyer are hereby assigned to the seller in advance, as are claims for compensation for use (e.g. for the rearing of animals) or for compensation for use against third parties. If the onward delivery is made in such a way that the goods are fed to animals, the Seller shall acquire co-ownership of the animals in the ratio of the value of the delivered goods to the sales price of the respective animal applicable at the time of feeding. This applies both to the delivered goods and proportionately to mixed, processed or otherwise altered goods. In the same way, the delivered and already paid goods and their sales proceeds shall be liable for all outstanding claims of the seller.
4. If the security provided by the retention of title exceeds the claim to be secured by 20%, the Seller shall release fully paid deliveries at its discretion.
5. If the buyer is in arrears with his payment obligations (default), the seller may assert the claims arising from the extended reservation of title directly against the third party recipients in accordance with the provision in No. 3 sentence 3, 2nd half-sentence. The buyer shall be obliged to provide the information and documents required for this purpose. Pledging or assignment of claims arising from the resale of the goods is excluded. Withholding or offsetting of a payment due to any counterclaims of the buyer is not permitted unless the counterclaims have been legally established or are undisputed. The buyer is obliged to inform the seller immediately of any seizure by third parties of the goods delivered under retention of title or of any claims arising from the onward delivery of these goods. In accordance with the above provisions, the Seller shall be entitled to take back the goods at the Buyer's expense if the Buyer fails to comply with the agreed terms of payment or fails to meet its other obligations towards the Seller. Payments already made towards the purchase price may initially be set off against interest, costs and the seller's own claims for damages for breach of payment obligations and retained by the seller.
6. If the buyer is in arrears with the acceptance of the goods or with payments (default), the seller may refuse further deliveries - also from independent contracts - and claim damages instead of delivery with regard to the further performances and damages due to the damage caused by the default. In the event of default in taking delivery of the goods, the seller may, irrespective of his other rights, also store the goods with himself or a third party at the expense and risk of the buyer or, after setting a grace period of one week, dispose of the goods in a suitable manner for the seller's account. In the event of default in payment and default in taking delivery of goods, the seller shall then also be entitled to make further deliveries dependent on prior payment of the purchase price or provision of security, without the buyer being entitled to withdraw from the contract as a result.
7. Default in payment shall be deemed to have occurred in any case if the buyer does not pay as agreed, but at the latest if he does not pay within 30 days after receipt of the invoice or equivalent payment schedule. In the event of default in payment, the Seller shall be entitled to interest on arrears at 8 percentage points above the base interest rate from the date of the commencement of the default, without prejudice to any other claims. If the Seller agrees with the Buyer on an instalment payment in the event of the Buyer's default in payment or even prior to the occurrence of a default in payment, such instalment payment shall lapse and the entire remaining purchase price together with costs and interest shall become due immediately if the Buyer is at least 10 days in arrears with an amount equal to 60% of an agreed instalment and the amount in arrears amounts to at least 5% of the total outstanding purchase price.
8. Claims for damages of the buyer, e.g. due to breach of duties arising from the contractual obligation or from tortious acts, are excluded in principle. This shall not apply to the extent that liability is mandatory by law, in particular-
in cases of intent or gross negligence;
- due to the assumption of a guarantee for the quality of the delivery item;
-
in cases of culpable injury to life, limb and health;
- in accordance with the Product Liability Act or- in the
event
of other breaches of material contractual obligations; in this case (other breaches of material contractual obligations), the claim for compensation of the damage shall be limited to the damage typically occurring.
9. Unless otherwise agreed and unless a shorter limitation period applies by law, a limitation period of one year shall apply to all warranty claims and consequential claims arising from warranty claims under this contract. The enforceability of the buyer's warranty rights requires that the buyer inspects the goods immediately after receipt in a reasonable manner and immediately notifies the seller in text form of any defect. If a defect only becomes apparent later, the notification must be made immediately after discovery. If the buyer fails to give notice, the goods shall be deemed to be free of defects and thus approved. The goods shall be deemed to be free of defects in particular if the buyer continues to use the goods without the seller's consent despite having detected the defect. The goods are free of material defects if they have the agreed quality at the time of transfer of risk. Insofar as the quality is not agreed, the goods shall be free from material defects if they are suitable for the use provided for in the contract, otherwise if they are suitable for normal use and have a quality which is customary for goods of the same type and which the buyer can expect according to the type of goods. If the defect concerns the intrinsic value of the goods (in particular nutrient content, hygiene, foreign matter), the test result of a LUFA (laboratory for environmental and agricultural analysis) from a representative sample shall be decisive in case of doubt. A defect which becomes apparent after the expiry of the best-before date of the goods shall not constitute grounds for any liability or warranty claim. The buyer is obliged to cooperate in the limitation and clarification of damage and warranty claims. He shall be liable for any breach of his duties to cooperate. The burden of proof for all claims shall be borne by the buyer, unless the law provides for a mandatory reversal of the burden of proof or the circumstance to be proven originates from the area of responsibility of the user.
10. In the case of bulk loading of feed with self-service via handheld or other comparable instruments, DTC shall not be liable for the selection of incorrect feed and the consequences thereof. Disadvantages and damages incurred by DTC as a result of the selection of incorrect feed by DTC contractors and/or employees or agents acting on behalf of DTC contractors shall be jointly and severally compensated to DTC by the DTC contractor and the employees and/or agents acting on behalf of DTC contractors.
11. If the goods are accepted by vehicles provided by the buyer, stowage on the truck and thus proper loading is the sole responsibility of the buyer or its carrier. He shall be obliged to issue executable loading instructions and shall ensure that the permissible total weight of the vehicle is complied with. The buyer shall compensate the seller for any disadvantage suffered by the seller as a result of non-compliance with the aforementioned obligations by the buyer or persons commissioned by him.
12. Official orders: If, after the conclusion of this contract, new obligations of any kind whatsoever are imposed on the Seller by orders of any governmental authority or agency established by any governmental authority affecting the sale or deliveries of the goods purchased hereunder, the modifications or additions to these conditions resulting from such orders shall be deemed to be agreed between the parties.
13. All disputes arising out of and in connection with the contract shall, at the option of the seller, be settled by the ordinary courts or by the arbitration tribunal of the Verein der Getreidehändler der Hamburger Börse e.V..
14. Place of performance and place of jurisdiction - also for actions on bills of exchange and cheques - is Düsseldorf.
15. Should one of the provisions be invalid, this shall not affect the validity of the remaining provisions; the same shall apply in the event of legal loopholes.
