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General Terms and Conditions

Terms and Conditions of Sale 

(Last updated: January 2016)

Westcrown GmbH
Am Bahnhof 5, D-49201 Dissen
hereinafter referred to as the 'User'
 


1. Scope and amendment of these General Terms and Conditions


Unless otherwise expressly acknowledged or agreed in writing, the following terms and conditions exclusively apply to all legal transactions - including future transactions - between the User and the Contracting Partner (traders and consumers). Should any individual term or condition subsequently prove to be ineffective, all remaining terms and conditions remain valid. The same applies if individual terms are not incorporated into the contract.

The Contracting Partner's own terms and conditions shall not apply even if the User fails to expressly object to them.


 
2. Conclusion of contract


If contracts have been concluded with traders subject to written confirmation or confirmation by fax, the content of the confirmation letter from the User shall be definitive, unless the recipient objects to the letter without undue delay. When addressed to consumers, the User shall make special reference to this consequence in the confirmation letter.

 

3. Delivery


(1) Unless a specific delivery term or delivery date has been agreed, delivery shall be made as soon as possible. Extreme heat, frost or risk of frost shall release the User from complying with the delivery term or delivery date until the weather has sufficiently improved. The User shall inform the Contracting Partner without undue delay about the occurrence of such events.

(2) The User is also entitled to make partial deliveries, provided that the Contracting Partner is able to make use of the partial delivery for the contractually agreed purpose, that delivery of the remaining goods is ensured and that the Contracting Partner does not incur any additional expense or effort as a result or if the User commits to reimburse such costs.

(3) If delivery becomes impossible or is disproportionately obstructed within the meaning of section 275(2) of the German Civil Code (BGB) due to force majeure, administrative measures, an operational shutdown, strike, extreme weather conditions or the like, including on the User's suppliers' end, then the User shall be exempt from the obligation to deliver for the duration of the obstruction and its after effects. If the obstruction is not merely a temporary impediment and if it does not fall within the User's sphere of responsibility, the User shall also be entitled to withdraw from the contract. If the User's suppliers fail to deliver or make insufficient deliveries, the User shall be exempt entirely or in part from his delivery obligation toward traders. The User shall be exempt from the delivery obligation only if he has taken the necessary precautions to comply with his obligation to perform and selected his upstream suppliers with care. The User undertakes in this case to assign any claims against the supplier to the trader at the latter's request. In this case, the trader remains obliged to render consideration pursuant to section 326(3) BGB. The User shall inform the trader about the occurrence of the above events and non-availability and, in the event of withdrawal from the contract, return the consideration of the trader without undue delay.

(4) The User may add any increases in shipping costs and changes in rates to the remuneration if delivery is to be made more than one month after the conclusion of the contract.

(5) Risk and liability for live animals sold shall pass to the Contracting Partner upon delivery. If 'marketed after slaughtering' has been agreed, risk and liability shall pass to the Contracting Partner after completed weighing at the abattoir and release by the statutory meat inspection.

(6) Shipping - including within the same place of dispatch - shall be at the expense of the Contracting Partner, unless the goods are transported by vehicles belonging to a freight carrier commissioned by the User to this end. In the case of dispatch to a trader - including from another location - the latter shall bear the risk; this shall also apply in the case of prepaid delivery. In the absence of specific instructions by the Contracting Partner, the User shall select the type of shipping. At the request of the Contracting Partner, the User shall conclude transport insurance in the desired extent at the Contracting Partner's expense.

(7) Any delivery to the premises agreed with the trader is contingent on the existence of an access road or delivery location accessible for a heavy truck and trailer and unaffected by weather conditions. If the truck and trailer leaves the trafficable access road at the instruction of the trader, the latter shall be liable for any resulting damage. Costs incurred due to the access road being impassable or the delivery location being inaccessible shall be borne by the trader in his capacity as buyer.
If the delivery location is not staffed at the time of delivery and if receipt of the delivery therefore cannot be acknowledged, the time and place of delivery shall be recorded by the driver signing the delivery slip.

(8) If goods are delivered to the Contracting Partner by a freight forwarder so commissioned by the User that are packed in empties of different shapes, then the property in the empties remains in all cases with the User. The Contracting Partner is obliged to return the empties in the same number, type and quality to the User. To this end, the User or a freight forwarder so commissioned by the User shall compile an overview of the empties accounts, which must be confirmed by the Contracting Partner. If the Contracting Partner does not respond with feedback within five days after dispatch of the overview, the User shall assume without further prompting that the listed inventory is accurate and has been tacitly confirmed. This inventory shall then form the basis for further deliveries.

 

4. Notification of defects


(1) Objections based on an evidently defective or evidently deviating quality of the goods or based on the delivery of goods that are evidently not the goods ordered, must be notified by the trader without undue delay, however, not later than 24 hours after receipt of the goods or after discovery of the defect.

(2) The trader must inspect the goods immediately after receipt for material defects, e.g. quantity, quality and characteristics, and must record evident defects on the confirmation of receipt. In all other respects, section 377 of the German Commercial Code (HGB) applies in relation to traders. Damage incurred during shipping does not entitle the trader to refuse receipt of the goods.

(3) Notifications of defects shall entitle the trader only to request cure of the defect; if such cure fails, the trader shall be entitled to either withdraw from the contract or to reduce the purchase price. The rights of the trader in the case of a resale of the defective goods to a consumer (right of recourse against suppliers) remain unaffected.

(4) In the case of a notification of defect in animals, the User shall be entitled at any time after notification to have the animals concerned inspected, examined and treated by his own veterinarian in the presence of the Contracting Partner. The User shall bear the costs of such a procedure.

 
 
5. Claims for defects


Except in the cases of section 309 No. 7 lit. a) and b) BGB, the User shall be liable for claims for defects for a period of one year from the date of delivery. For consumers, this period shall only apply to the sale of used, movable goods/animals. In relation to traders, liability for defects shall be excluded subject to the instances listed in sentence 1. The User shall be liable vis-à-vis traders only for public expressions, in particular advertising which they have used for their own purposes or which have been incorporated expressly in the contract.

 

6. Payment


(1) Unless otherwise agreed, payment for delivery of goods and services performed by the User shall be made without undue delay after receipt of the invoice. In the case of delivery or performance subject to term, the payment terms shall be calculated based on the date of delivery and performance.

(2) Payment by means of a bill of exchange is permitted only if expressly agreed and shall be accepted only in lieu of payment.

(3) Discount charges and collection charges shall be paid by the Contracting Partner and are due immediately.

(4) In the case of payment by cheque, the date of payment shall be not the date of receipt of the cheque by the User, but the date of final redemption.

(5) The Contracting Partner may set off counter-claims only if those claims are not contested or have become final and binding. The Contracting Partner may not exercise a right of retention unless it is based on the same legal relationship. The Contracting Partner is not permitted to assign any of its claims against the User.

(6) The User may set off their claims or claims of their affiliated companies or holdings within the meaning of section 271 HGB against claims of the other Contracting Partner. This shall apply to claims of holdings provided that they have been assigned to the User in advance.

 

7. Current account


(1) All mutual claims arising from the business relation can be entered - if so agreed by separate agreement - in a current account governed by the provisions of sections 355 et seq. HGB.

(2) The User's credit in the current account shall bear interest at the rate of eight percentage points over the base interest rate.

(3) The User shall compile a balance statement, which will serve as a final account statement, at least once per year. The balance shall be deemed to have been acknowledged if the account holder does not object to the balance within six weeks after the final account statement. The User shall make express reference to this consequence when submitting the final account statement. Statutory claims remain unaffected.

 

8. Pricing


Unless otherwise agreed, the User shall be entitled to fix prices at their discretion.

 

9. Non-performance


(1) The purchase price is immediately due for payment if the Contracting Partner definitively refuses payment of the purchase price. The same legal consequence shall apply if the Contracting Partner is in arrears with an amount that exceeds an instalment and if the amount in arrears is equivalent to at least 10% of the total purchase price. In the case of a definitive final refusal to pay the purchase price, the User may refuse performance of the contract of purchase and sale even without setting a grace period and demand reimbursement of all costs and expenses incurred as well as compensation for a decrease in value.

(2) During default, a consumer shall be liable to pay default interest at the rate of five percentage points and a trader at the rate of eight percentage points over the applicable base interest rate. The User reserves the right to assert further damage, and likewise the right to claim a higher rate of interest based on other legal grounds. The User may demand advance payment, part payments or cash on delivery.

(3) In the case of acceptance default on the part of the Contracting Partner, the User may store the goods at the expense and risk of the Contracting Partner at the User's premises or the premises of a third party or dispose appropriately of the goods at the expense of the Contracting Partner without prior notice.

 

10. Retention of title


(1) The User retains title to all goods delivered by or on behalf of the User, i.a. animals and any of their offspring, until full payment of the purchase price. With respect to traders, this shall apply also to all existing or future claims of the User against the trader arising from the business relations with the latter. If the Contracting Partner acts in breach of contract, in particular in the case of payment default, the User shall be entitled to withdraw from the contract after setting a reasonable period for performance. The Contracting Partner shall store the goods for the User.

(2) If the reserved goods are inseparably mixed, intermixed or combined, the User shall acquire co-ownership of a share in the final product at the ratio of the value of the reserved goods delivered to the value of the final product at the time of mixing, intermixture or combination.

(3) The Contracting Partner is obliged to inform the User immediately of any seizure or other interference with the reserved goods.

(4) If the Contracting Partner, as the tenant of agricultural land, has pledged his inventory in accordance with the provisions of the Land Lease Credit Act (Pachtkreditgesetz), then the animals supplied by the User subject to retention of title must be entered in the pledging contract or in a supplement thereto, listing their significant characteristics and excluding them from the pledge. This agreement, which is to be concluded with the creditor of the pledge, must be registered with the competent local court. The User must be informed thereof without undue delay.

(5) The Contracting Partner shall insure the goods belonging to the User at the latter's request to a reasonable extent at [● replacement value/the value at the time of conclusion of the contract] against the customary risks at his own expense and assign the insurance claims to the User. The User shall also be entitled to pay the insurance premiums at the expense of the Contracting Partner.

(6) A trader shall be entitled to resell the goods - including the goods produced by means of mixing, intermixture, combination or processing - only as part of his ordinary course of business. A trader shall not be entitled to dispose of those goods in any other way - especially not to pledge the goods or to transfer ownership therein as a collateral.

(7) The trader shall assign all claims resulting from the resale of the reserved goods or of the goods produced through processing to the User. The same applies to all other claims that may substitute the reserved goods or arise in connection with the reserved goods. The trader herewith assigns to the User a preferential share - corresponding to the co-ownership share of the User in the sold goods - in the claims arising from the sale of the goods in which the User acquired co-ownership through mixing, intermixture or combination. If the trader sells goods of which the User is the owner or co-owner together with goods that do not belong to the User for a total amount, then the trader herewith assigns a preferential partial amount corresponding to the value of the reserved goods in this total claim of the User.

(8) The User is entitled to collect the claims arising from the resale. The User is entitled to revoke this collection authorisation at any time if the trader fails to comply with his payment obligations, in the case of payment default, an application to declare the trader's estate insolvent or forced execution measures taken by third parties. The trader shall name the debtors of the assigned claims to the User at the latter's request, inform those debtors of the assignment and submit the notices of assignment to the User. The User will not disclose the assignment as long as the trader complies with his payment obligations. If the realisable value of the securities provided to the User exceeds the secured claims by more than 10%, then the User shall release the securities at his discretion to that extent upon the trader's request.


 
11. Liability


(1) Claims for damages of the Contracting Partner, irrespective of the grounds on which they are based, and especially claims based on a breach of a contractual obligation or tort, are excluded.

(2) This does not apply to cases of mandatory statutory liability, especially in cases of

  • fraud, intent and gross negligence
  • loss of life, limb or health
  • acceptance of a guarantee, e.g. for the existence of a specific quality
  • breach of essential contractual duties or
  • liability in terms of the German Product Liability Act.

(3) Claims for damage for negligent breach of essential contractual duties are limited to the contract-typical, foreseeable damage.

(4) To the extent that liability is excluded or limited, this shall also apply to the personal liability of the User's employees, representatives and vicarious agents.

(5) The above provisions do not result in any shift in onus to the detriment of the Contracting Partner.  

 

12. Place of performance, jurisdiction, applicable law


(1) The business premises of the head office of the User shall be the place of performance for both parties if the Contracting Partner is a merchant or a legal person under public law or a special fund under public law or have their place of residence outside the Federal Republic of Germany.

(2) If the Contracting Partner is a merchant, a legal person under public law or a special fund under public law, the User may bring an action against the Contracting Partner at the competent court at the place of performance and an action against the User may be brought only at this court.

(3) The law applicable at the place of performance shall be decisive for all legal relations between a Contracting Partner who is a trader and the User, even if the legal proceedings are instituted outside the Federal Republic of Germany.

(4) Oral side agreements concluded between the Contracting Partner and the User shall not be binding. To be effective, such agreements must be made in writing.