Terms and Conditions - Procurement
Deutsche Vilomix Tierernährung GmbH
The present terms and conditions of procurement shall exclusively be decisive for all contracts concluded by the firm of Deutsche Vilomix Tierernährung GmbH (hereinafter referred to as Purchaser) for the procurement of fodder, fodder additives, their mixtures, raw materials and packaging materials. Vendor shall acknowledge them as being binding for the present and all future purchase contracts in which Purchaser procures from Vendor. Contradictory, deviating or supplementary terms and conditions of Vendor shall not be acknowledged by Purchaser and shall not be binding for Purchaser, even if Purchaser does not expressly challenge them, unless Purchaser has expressly acknowledged the other terms and conditions in writing in the individual case. Purchaser’s general terms and conditions of procurement underlying the contract in question can be inspected under: www.vilofoss.com/de.
2. Relationship to form contracts
The present terms and conditions of procurement shall prevail over all and any form contract which has been agreed.
3. Supply / acceptance / rights in non-fulfilment
(1) The agreed delivery/acceptance period shall apply. If Vendor fails to fulfil its contractual duties or does not do so in good time, Purchaser shall be entitled to withdraw from the contract and/or to claim damages in lieu of performance following fruitless expiry of a suitable period of grace to be set for Vendor of 5 working days as a rule - to the extent not dispensable according to statutory directives -.
(2) If Purchaser claims damages in lieu of performance, it shall be entitled, but not obliged, to calculate its non-performance damages by means of establishment of price difference and to demand the price difference and the costs of establishing the price from Vendor. The decisive date for the establishment of price shall be the working day following the expiry of the period of grace. If no setting of a period is necessary, for example in cases of a fixed transaction or express rejection of performance by Vendor, the decisive date for the establishment of price shall be the working day following the incident decisive for the non-performance, for example the declaration of non-performance.
(3) Instead of claiming damages in lieu of performance, Purchaser can make a hedging transaction for Vendor’s account. The hedging transaction shall be carried out within 3 working days of the expiry of the period of grace or certainty of non-performance.
4. Properties / quality / sampling
(1) Subject to further-reaching agreements, the goods supplied must be customary for the branch and healthy and fulfil all statutory, in particular fodder law requirements and must have been approved by Purchaser. The goods supplied must be free of third parties’ rights, amongst others patent rights. Official establishments of the lack of ability to place the goods on the market shall be binding for the contracting parties.
(2) Sampling shall be a matter for Purchaser. It shall be done at the place of performance of the delivery or acceptance duty and shall be done by a laboratory accredited according to DIN EN ISO/IEC 17025:2005 according to the directives of the official sampling ordinance. Vendor shall acknowledge sampling fulfilling these directives as being proper.
5. Warranty from defects
If the goods supplied are defective, the warranty rights regulated in the following subsections shall accrue to Purchaser, with subsections (1) to (4) regulating the general consequence of deviations in contents and other properties, whereas subsection (5) applies to the specific case of establishment of undesired/forbidden substances in the goods.
(1) If the goods supplied deviate from the agreed property and quality, Purchaser shall be entitled to demand a reduced value remuneration from Vendor.
(2) If a considerable defect exists, Purchaser shall be entitled to demand return of the goods supplied with reimbursement of the purchase price paid and costs and interest on the goods in lieu of a reduced value remuneration.
(3) Alongside the right to return of the goods, a replacement supply of contractual goods can be demanded once. Vendor for its part shall have the right to provide one replacement delivery for the defective goods, unless acceptance of a replacement delivery cannot be reasonably expected of Purchaser under the specific circumstances of the individual case. If Purchaser or Vendor makes use of the right to replacement delivery, Purchaser shall provide Vendor with the goods giving rise to complaint for taking back. If nothing to the contrary has been agreed, Vendor shall implement the replacement delivery within 2 working days of provision of the goods to be returned being notified by Purchaser.
(4) If the replacement delivery is not provided in good time pursuant to subsection (3), Purchaser shall be entitled to withdraw from the contract or to demand damages in lieu of performance or to undertake a hedging transaction for Vendor’s account pursuant to no. 3 subsection (3).
(5) The statutory regulations shall apply to Purchaser’s claims on account of undesired/forbidden substances and contaminants. If Vendor is obliged to damages according to the statutory regulations, Purchaser shall in particular and also indemnify damage incurred as a result of a recall of the defective goods or of a product connected with them (fodder) prescribed by law or ordered officially.
(6) Purchaser’s rights from defects shall be barred after two years. The period of barring shall commence upon delivery of the goods.
6. Handling of payments
Payment of the purchase price shall be against an invoice and presentation of the matching proof of delivery. Rights to offset and retention shall accrue to Purchaser to the statutory scope.
7. Applicable law / place of performance / place of jurisdiction
(1) The concluded contract shall be governed by German law and EU law, ruling out UN purchase law.
(2) Place of performance for all legal obligations resulting from the contractual relationship between the parties shall be Purchaser’s registered office, to the extent that Vendor is a fully-fledged merchant, public-law entity or public-law fund.
(3) All disputes arising from the contractual relationship and from further agreements made by the parties in connection therewith shall, at Purchaser’s choice, be decided by an arbitration panel set up at the location of a German commodities exchange or the ordinary court of law at Purchaser’s registered office. Place of jurisdiction for all disputes resulting between the parties shall be the Court competent for Vendor’s registered office, to the extent that Vendor is a fully-fledged merchant, public-law entity or public-law fund. If Purchaser requests a decision by the arbitration panel, its arbitration rules shall be decisive for the composition of the arbitration panel and the proceedings. In the event of Vendor intending to initiate judicial proceedings against Purchaser, the latter undertakes to exercise its right of choice between the ordinary courts of law and the arbitration panel within a suitable period to be set for it, which must amount to no less than 3 working days, following request by Vendor. If Purchaser fails to make a declaration within the period set for it, the right of choice shall pass to Vendor. It shall make its choice without delay and notify Purchaser in writing.
(4) To the extent not determined to the contrary in the present general terms and conditions or by law, the rules produced by the International Chamber of Commerce in Paris for the interpretation of trade terms (Incoterms 2020) as amended at the time, shall apply as a supplement.
Effective: January 2020
Deutsche Vilomix Tierernährung GmbH
Bahnhofstr. 30 - 49434 Neuenkirchen-Vörden
Phone: +49 5493 / 9870 0 – firstname.lastname@example.org