Terms and Conditions - Sale

Deutsche Vilomix Tierernährung GmbH

1. General

   1. These Terms and Conditions of Sale shall apply exclusively to all contracts, offers and other services relating to sales and deliveries by Deutsche Vilomix Tierernährung GmbH (hereinafter referred to as the Seller). They are agreed now for all future contractual relationships. The Seller does not acknowledge any conflicting, deviating or supplementary terms and conditions of the Buyer; they shall not be binding on the Seller, even if the Seller does not expressly object to them, unless the Seller has expressly acknowledge the other terms and conditions in writing in an individual case.
   2. The Seller's General Terms and Conditions of Sale can be viewed at: www.vilofoss.com/de.
   3. These General Terms and Conditions of Sale apply to both consumers and entrepreneurs. A consumer is any natural person who enters into the contract for a purpose that is predominantly not related to his or her commercial or independent professional activity. An entrepreneur is a person who, when concluding the contract, is acting in the exercise of his commercial or self-employed professional activity.

2. Offers, conclusion of contract, content of contract

   1. Price quotations in the Seller's offers are subject to change and non-binding, unless the Seller expressly assures a binding offer/price in writing. In the case of offers with a price validity of several months, a contract shall only be concluded if the Buyer accepts the Seller's offer in writing or by calling off the first delivery to the Seller within a period of two weeks from the beginning of the price validity.

   If cost items such as, in particular, raw material prices or transport costs increase after conclusion of the contract for reasons for which the Seller is not responsible and if this leads to an increase in the total costs of performance of the contract for the Seller, the Seller shall be entitled to adjust the price agreed with the Buyer accordingly at its reasonable discretion. The Seller undertakes to inform the Buyer immediately of the price adjustment and to provide evidence of the reason for the increase upon request.

   If the Buyer is a consumer, the above price adjustment provision shall not apply.

   1. In the case of any order by the Buyer, the contract shall be deemed to have been concluded when the delivery has been made or the Seller has confirmed acceptance of the order in writing. If the parties agree orally and the Seller subsequently records the content of the contract in a letter of confirmation which it sends to the Buyer without delay, the content of the letter of confirmation shall be decisive unless the Buyer objects without delay. This shall not apply if the Buyer is a consumer.
   2. If the parties enter into a written contract agreement, all agreements of the parties shall be set down in writing in full upon conclusion of the contract. The Seller's employees are not authorised to make verbal promises that deviate from the written contractual agreement.

3. Delivery / Acceptance / Service disruptions

   1. In the event of force majeure or other unforeseeable circumstances for which the seller is not responsible - e.g. export or import bans or comparable official interventions, such as epidemic hygiene measures, blockades, labour disputes, energy supply difficulties, natural disasters, extreme weather conditions, epidemics, pandemics, armed conflicts, etc. - even if they occur at the Seller's suppliers - which prevent the Seller from fulfilling its contractual obligations in a timely manner, the delivery period shall be extended by the duration of the hindrance to the exclusion of claims for damages. The Seller may only invoke the aforementioned circumstances if it notifies the Buyer without delay.
   2. The Seller's deliveries shall be subject to correct and timely delivery by its suppliers. If, despite careful selection of the supplier and timely conclusion of a covering agreement with its supplier, the Seller is not supplied or not supplied on time by the supplier for reasons for which it is not responsible, the delivery periods shall be extended accordingly. If the Seller is only supplied on a pro rata basis, it shall be entitled to fulfil the contract with the Buyer on a pro rata basis. The Seller undertakes to inform the Buyer immediately of the lack of self-supply. The provision shall apply mutatis mutandis if the procurement of the goods from the supplier has become impossible due to economic and financial sanctions and embargoes or similar laws, ordinances, regulations, measures or restrictions after the conclusion of the supplier contract.
   3. If the delay according to clause 3.1 or 3.2 lasts for more than three months, each of the parties shall be entitled to withdraw from the contract insofar as it has not been fulfilled. In this case, the Seller shall immediately refund to the Buyer any purchase price already paid for the undelivered goods.
   4. The Seller shall be entitled to partial performance to a reasonable extent. If delivery on call has been agreed, the Buyer shall call within a reasonable period.
   5. Quantities for orders in delivery contracts are always stated by the Seller as approximate quantities. Excess or short deliveries of up to 5 % of the final quantity shall not entitle to complaints about the delivery.
   6. For the delivery quantity of loose goods to be invoiced, the weight shall be determined by the Seller or its trading partner at the place of dispatch.
   7. The respective agreed delivery clause of the Incoterms shall be decisive for the transfer of risk vis-à-vis entrepreneurs.
   8. The Seller shall choose the route and means of dispatch unless the Buyer has given special instructions. In the event of delivery to the Buyer, the Seller shall only be liable for the freight costs valid at the time of conclusion of the contract. Any increases in freight costs that have occurred by the time of delivery and for which the seller is not responsible shall be borne by the buyer. The latter does not apply to consumers.
   9. The Buyer is obliged to accept the ordered products immediately. If he does not comply with his obligation to accept, the Seller shall be entitled, after granting a reasonable grace period, to store the goods for the account and at the risk of the Buyer or to rescind the contract. A grace period need not be set if the buyer has already seriously and finally refused acceptance. The Seller shall be entitled to claim damages from the Buyer for any damage caused by the Buyer's breach of the obligation to accept the goods, unless the Buyer proves that he is not responsible for the breach. Further rights, in particular the rights pursuant to § 373 HGB in commercial transactions, shall remain unaffected.
   10. The Seller's obligation to deliver shall be suspended as long as the Buyer is in arrears with due payments.

4. Payment

   1. Unless otherwise agreed, payment shall be made within 10 days of the invoice date. Payment shall only be deemed to have been made when the Seller has unrestricted access to this amount.
   2. The Seller may demand immediate payment of all claims arising from the business relationship and make all claims arising from the business relationship due for immediate payment and/or make deliveries dependent on advance payment or the provision of security, if Buyer is in default of payment of a claim which is not merely insignificant or if Seller becomes aware of justified doubts as to Buyer's ability to pay or if there is a significant deterioration in Buyer's financial or income situation and Seller only becomes aware of this after the contract has been concluded or if there is a demonstrable risk to Buyer's assets to the extent that fulfilment of Seller's claims is at risk due to the above circumstances.
   3. All mutual claims arising from the business relationship shall be placed in a current account in commercial transactions (§§ 355 ff. HGB). The assignment of these individual claims to be placed is excluded without the consent of the Seller.
   4. The Buyer may only offset such claims or exercise a right to refuse performance in accordance with § 273 of the German Civil Code (BGB) or §§ 369 - 372 of the German Commercial Code (HGB) on account of such claims which are undisputed, have become res judicata or are ready for a decision. This restriction shall not apply to claims of the Buyer due to defects or due to partial non-fulfilment of the contract, insofar as the counterclaims of the Buyer are based on the same contractual relationship as the claim of the Seller. 5.

5. Notification of Defects / Warranty for Defects

   1. If the Buyer is an entrepreneur, the following provisions shall apply in the event of defects in the goods:

   a) Complaints due to obviously defective or obviously deviating quality of the goods or due to delivery of goods obviously different from those ordered can only be asserted immediately, at the latest, however, within one week after receipt of the goods. The Buyer is obliged to inspect the goods immediately and properly after delivery. For contractual partners who are merchants, the obligations of §§ 377, 378 HGB (German Commercial Code) shall apply in this respect.

   b) Test results shall only be recognised by the Seller if the respective test has been carried out by a laboratory which has been accredited for the corresponding parameter in accordance with DIN EN ISO/IEC 17025:2005 and the sample has been taken in accordance with the provisions of the official sampling regulations.

   c) The Buyer's rights due to defects are subject to a limitation period of one year. The limitation period begins with the delivery of the goods. Notwithstanding the above, the statutory warranty period shall apply to claims for damages due to culpable injury to body, life or health as well as to claims for damages due to intent or gross negligence. The statutory limitation provisions in the case of supplier recourse shall also remain unaffected.

   1. If the Buyer is a consumer, he shall be entitled to the statutory warranty rights in the event of a defect, subject to the proviso that any claims for damages shall only exist within the scope of the liability provision under clause 8.

6. Sanctions clause

   Each Party hereby declares, represents, and warrants to the other Party that:

   (a) The Party shall comply with all economic or financial sanctions and embargoes or other similar laws, regulations, rules, measures or restrictions that are applicable to the performance of the obligations under this contract (collectively “Sanctions”); this also applies with regard to Sanctions of third countries, in particular the USA, which are declared applicable to the performance of the obligations under this contract under the laws of the third country (“secondary sanctions”), to the extent that this does not result in a violation of or conflict with national or EU law (“blocking laws”);

   (b) The Party is not subject to any Sanctions; in particular, is it not included in any list of persons, entities or bodies (PEB) with which business is restricted or prohibited, nor is it directly or indirectly majority-owned, held or controlled by any such PEB. Such lists include, but are not limited to, those issued by the European Union (EU) or any of its Member States, the United Nations (UN) Security Council, and the US Government. This declaration does not extend to Sanctions imposed by any body other than the UN, the EU or the Federal Republic of Germany that are related to economic sanctions measures taken by one state against another state, unless the UN, the EU or the Federal Republic of Germany have also adopted – albeit not identical – economic sanctions measures against that state.

   (c) The Party shall not do, nor omit to do, any act, which causes the other Party to be in breach of any Sanctions;

   (d) Each Party shall co-operate in good faith with any requests for appropriate documentation (incl. Sanctions search documentation and/or permits from relevant authorities) made by the other Party, to the extent reasonably necessary for that Party to verify compliance with Sanctions;

   (e) Where either Party (‘Defaulting Party’) does, or omits to do, any act which causes the other Party (‘Non Defaulting Party’) to be in breach of any Sanctions, the Non Defaulting Party is in whole or in part immediately by written notice entitled to terminate its co-operation with the Defaulting Party including this Contract, without incurring any liability towards the Defaulting Party; such termination shall be without prejudice to any rights and obligations existing prior to termination; and

   (f) The Defaulting Party shall indemnify and hold harmless the Non Defaulting Party from and against all liability, claims, proceedings, actions, fines, losses, costs, expenses and damages arising out of, connected with or resulting from the Defaulting Party’s violations of the aforementioned obligations unless the Defaulting Party proves that it is not responsible for the violation of its obligations.

7. Retention of title

   1. The delivered goods shall remain the property of the Seller until the purchase price has been paid in full. If the Buyer is an entrepreneur, the goods shall remain the property of the Seller until full settlement of all claims, including any balance claims, which the Seller has against the Buyer from the business relationship with the Buyer or acquires in the future.
   2. If the Buyer acquires general ownership as a result of mixing, blending or processing, he hereby assigns to the Seller co-ownership in proportion to the value of the goods subject to retention of title (invoice value) to the other goods at the time of mixing, blending or processing until the Seller's claims have been paid in full. In this case, the Buyer shall store free of charge the item co-owned by the Seller, which shall also be deemed to be goods subject to retention of title within the meaning of the following provisions.
   3. If the Buyer is an entrepreneur, the following provisions shall apply in addition:

   a) The Buyer hereby assigns to the Seller all claims arising from the resale of the goods subject to retention of title or the goods produced by mixing, blending or processing, including the current account balance claims to which the Buyer is entitled against its customers and any claims for compensation against a credit insurance company, as security for all of the Seller's claims arising from business transactions. If the goods are only co-owned by the Seller or if they are sold by the Buyer together with other goods not belonging to the Seller at a total price, the assignment of the claim already executed herewith shall only take place to the extent of the amount charged by the Seller to the Buyer for the part of the goods in question.

   b) The Buyer shall be authorised to collect the assigned claim. The Seller undertakes not to collect the claim as long as the Buyer meets his payment obligations and no application has been made to open insolvency proceedings against his assets. If these preconditions no longer exist, the Seller may demand that the Buyer informs it of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and discloses the assignment to the debtors.

   c) If the retention of title or the assignment is not effective according to the law in whose area the goods are located, the security corresponding to the retention of title or the assignment in this area shall be deemed agreed. If the cooperation of the Buyer is required for the creation, the Buyer shall be obliged to take all reasonable measures (such as registration or publication requirements) at its own expense which are necessary for the creation and maintenance of such rights.

   d) If the value of the securities existing for the Seller exceeds the claims by more than 20% in total, the Seller shall be obliged, at the request of the Buyer or a third party affected by the excess security of the Seller, to release securities to this extent at the discretion of the Seller.

8. Liability

   1. Any liability on the part of the Seller for infringements of the labelling obligation pursuant to Regulations (EC) No. 1829/2003 and 1830/2003 shall be excluded subject to the provisions of Clause 8.3, unless the infringement is due to intent or gross negligence on the part of the Seller or its vicarious agents.
   2. Contractual or tortious claims for damages shall be excluded unless the damage was caused by intentional or grossly negligent acts of the Seller or its vicarious agents or is based on a culpable breach of material contractual obligations. Material contractual obligations are those whose fulfilment is necessary for the achievement of the purpose of the contract and on whose compliance the Buyer regularly relies and may rely. Insofar as the Seller is not guilty of intent or gross negligence, the liability of the Seller in this case shall be limited to the foreseeable damage typical for the contract.
   3. The above exclusions of liability do not apply to damage resulting from culpable injury to life, body or health. Furthermore, the mandatory liability according to the Product Liability Act or according to § 24 LFGB (Lebens- und Futtermittelgesetzbuch, Foodstuffs and Feed Code) remains unaffected.

9. Place of performance, place of jurisdiction and applicable law

   1. The place of jurisdiction and performance for all disputes and obligations arising between the parties from the contractual relationship shall be, insofar as the Buyer is a merchant, a legal entity under public law or a special fund under public law, the court responsible for the registered office of the Seller in 49434 Neuenkirchen-Vörden or respectively the registered office of the Seller.
   2. The concluded contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention). If the Buyer is a consumer who has his habitual residence in a country other than the Federal Republic of Germany, the mandatory statutory provisions of that country, which cannot be deviated from by agreement, shall remain unaffected by the above choice of law.
   3. Insofar as reference is made to commercial clauses in accordance with the Incoterms, their interpretation shall be determined in accordance with the Incoterms in their most current version (currently Incoterms 2020), unless otherwise specified.
   4. We are not obliged to participate in a dispute resolution procedure before a consumer arbitration board and do not participate in such a procedure.

Status: April 4, 2023

Deutsche Vilomix Tierernährung GmbH
Bahnhofstr. 30 - 49434 Neuenkirchen-Vörden
Germany
Phone: +49 5493 / 9870 0 – info-de@vilofoss.com