General Terms and Conditions of Delivery of PetCom Tierernährung GmbH & Co. KG
§ 1 Scope of Validity
- All deliveries, services and offers from PetCom Tierernährung GmbH & Co. KG (hereinafter: "PetCom") are made exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts concluded by PetCom with its clients (hereinafter: "clients"), for supplies or services offered by or received by it. They also apply for all future deliveries, services or offers, if they are not separately agreed again.
- These General Terms and Conditions of Delivery govern business relationships between PetCom and companies within the meaning of § 14 of German Civil Code (BGB) (natural or legal persons or partnerships possessing legal capacity who, when entering into a legal transaction, are acting in performance of their trade, business or profession). They do not apply to legal relationships with consumers who are not commercial entities or selfemployed persons.
- Client’s’ or third party business conditions do not apply, even if PetCom does not object separately to their validity in individual cases. Even when PetCom refers to a written communication containing or referring to terms and conditions of a customer, client or third party, this does not constitute an agreement on the validity of those terms and conditions.
§ 2 Offer and conclusion of the contract
- All offers made by PetCom are subject to change without notice and are nonbinding, unless they are expressly marked as binding or contain a specific period for acceptance. PetCom may accept orders or contracts within 14 days of receipt.
- The legal relationship between PetCom and the client are governed solely by the contract concluded in writing, including these General Terms and Conditions of Delivery. This fully reflects all agreements between contracting parties on subject matter of the contract. Oral promises made by PetCom prior to concluding this contract are not legally binding and oral agreements between the contracting parties are replaced by this written contract, unless there is an express statement in each case, that they continue to be binding.
- Supplements and amendments to agreements reached, including these General Terms and Conditions of Delivery, must be made in writing in order to be effective. With the exception of executive directors or authorized signatories, PetCom employees are not entitled to make verbal agreements deviating from written agreements. Transmission by telecommunication, in particular by fax or by email, is sufficient to comply with the written form, provided a copy of the signed declaration is transmitted.
- PetCom's specifications concerning the subject matter of the delivery or service, such as weights, tolerances or technical data, are only approximations, unless application for the contractually intended purpose requires exact conformity. These are not guaranteed characteristics, but descriptions or characterisations of the delivery or service. Deviations customary in the trade and deviations occurring on grounds of legal regulations or which represent technical improvements are permitted insofar as they do not impair usability for the contractually intended purpose.
§ 3 Prices and payments
- Prices apply to the scope of performance and delivery specified in order confirmations. Additional or special services are charged for separately. In the absence of a separate agreement, prices are quoted in euros ex works or ex warehouse plus packaging, freight costs, costs for special packaging, pallets, statutory Value Added Tax and in case of export deliveries, customs duties as well as fees and other public charges. These costs are borne by the client.
- Invoice sums must be paid within 30 days without any deductions, unless otherwise agreed in writing. The date of receipt by PetCom is decisive for the date of payment. If the client has not paid by the due date, outstanding sums are subject to interest from the due date, at a rate of 5 % above the base interest rate p.a.; this does not affect rights to claim higher interest and further damages, in the event of default.
- Offsetting by the client with counterclaims or the retention of payments due for such claims is only permissible, insofar as counterclaims are undisputed or have assumed legal effect or result from the same order in which the delivery in question was made.
- PetCom is entitled to perform or render outstanding deliveries or services only against advance payment or payment of security if, after concluding the contract, it becomes aware of circumstances which are likely to substantially reduce client’s creditworthiness and as a result of which, payment of outstanding claims by the client on the part of PetCom arising from the respective contractual relationship is jeopardized (including payments from other individual orders to which the same framework agreement applies).
- An invoice or statement of account is deemed to have been accepted, unless a written objection to it is received by PetCom within one week. The date of receipt by PetCom is definitive for complying with a deadline.
- Invoices and bill of exchange cheques are only accepted on account of performance. Any costs incurred as a result must be borne by the client, and become due and payable upon handover and acceptance of the bill of exchange or cheque.
§ 4 Delivery and delivery time
- Deliveries are made ex works or ex warehouse.
- Delivery periods do not commence until documents, approvals and releases which the client must obtain have been provided and an agreed down payment has been received. The delivery period is deemed to have been met if, prior to expiry of same, the delivery has left PetCom's works or notification has been made that the goods are ready for dispatch.
- Times and dates for deliveries and services promised by PetCom in all cases are approximate only, unless a fixed time or date has been expressly approved or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handing over to the forwarding agent, carrier or other third party commissioned with transportation.
- PetCom may, without prejudice to its rights arising from default on the part of the client, demand an extension of delivery and performance periods or a postponement of delivery and performance dates from the client, by the period during which the client fails to meet its contractual obligations to PetCom.
- PetCom is not liable for the impossibility or impracticality of its deliveries or for delivery delays insofar as these are caused by force majeure, Higher Power or other events which could not be foreseen at the time of concluding the contract, such as operational disruptions of all kinds, difficulties in procuring materials or power, transportation delays, strikes, lawful lockouts, labour shortages, power or raw materials shortages, difficulties obtaining the necessary official permits, official measures or failure to deliver, incorrect delivery or late delivery caused by clients for which PetCom is not responsible. If such events make it substantially more difficult or impossible for PetCom to implement delivery or performance and the impediment is not of a temporary nature, PetCom is entitled to withdraw from the contract. In the event of obstructions only of temporary duration, deadlines for delivery or performance are extended or postponed by the period of obstruction plus a reasonable startup period. Insofar as the client cannot reasonably be expected to accept handover and delivery of the service or delivery as a consequence of the delay, it may withdraw from the contract by informing PetCom in writing with immediate effect.
- PetCom is only entitled to make partial deliveries where partial delivery is usable for the client within the scope of the contractually intended purpose, delivery of the remaining goods ordered is assured and the client does not incur any significant additional costs or expenses, unless PetCom agrees to bear these costs.
- If PetCom is in default with a delivery or service, or if a delivery or service becomes impossible for PetCom for whatsoever reason, its liability for damages is limited in accordance with § 8 of these General Terms and Conditions of Delivery.
§ 5 Place of performance, dispatch, packaging, transfer of risk
- Place of fulfilment for all obligations arising from the contractual relationship is Minden, Germany unless otherwise contractually agreed.
- The method of shipment and packaging are subject to dutiful discretion by PetCom.
- Extra freight costs for other modes of transport which are desired or necessary for certain types of transportation must be borne by the client The weight at time of dispatch or delivery as determined by PetCom is decisive. For deliveries of less than 100 kg, even if nothing to the contrary has been agreed, we reserve the right to charge shipping costs in each case.
- The risk transfers to the client at the latest when the item for delivery is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party designated to complete the shipment. The start of the loading process is decisive. This also applies, if partial deliveries are made or PetCom has assumed responsibility for other services, such as shipping. If dispatch or delivery is delayed due to circumstances caused by the client, the risk transfers to the client on the date on which the delivery item is ready for dispatch and PetCom has notified the client thereof.
- Storage costs after the transfer of risk as well as in the event of shipment delays at the client’s request are borne by the client. In the event of storage by PetCom, storage costs amount to 0.25 % of the order value of products which must be stored per expired week from the date of notification of readiness for dispatch. Assertion and proof of further or lower storage costs remain reserved.
- Only at the client’s express request will shipments be insured by PetCom at the client’s expense, against theft, breakages, damage in transit, fire and water damage and other insurable risks.
- The object for delivery, even if it has insignificant defects, must be accepted by the client, without prejudice to his further rights. Insofar as handover and acceptance must take place, the purchased item is deemed to have been accepted once delivery has been completed, PetCom has notified the client thereof with reference to the implied acceptance pursuant to § 5, para. 7 of this contract and has requested acceptance, 12 working days have elapsed since delivery or the client has started using the purchased item and in this case 3 working days have elapsed since delivery, and the client has failed to accept the item within this period for a reason other than a defect PetCom was notified of, making using the purchased item impossible or which significantly impairs such use.
- In case of default in acceptance on the part of the client, PetCom is entitled, following settlement and ineffective expiry of a reasonable deadline, to dispose of the delivered object otherwise and to supply the client within a reasonably extended period. This penalty is expendable, if goods are subject to spoilage or decay and there is a risk of destruction during the delay. However, redemption of the delivered item does not constitute a withdrawal from the contract, unless PetCom has expressly declared this in writing. PetCom is entitled to demand compensation for damages incurred by PetCom, including any additional expenses.
§ 6 Reservation of title, attachment
- All deliveries by PetCom are implemented subject to reservation of title. Ownership does not transfer to the client, until the client has fulfilled all obligations due from the respective contract. Until this time, the client must store the goods separately. However, the client is entitled to resell the goods acquired under retention of title in the normal course of day-to-day business. He hereby assigns to PetCom in advance his claims arising from such resale, including Value Added Tax, up to the amount of the respective invoice. PetCom accepts this assignment. The clients’ continues to be entitled to collect the claim even after assignment. PetCom's right to collect the claim themselves, remains unaffected. However, PetCom undertakes not to collect the claim so long as the client meets its payment obligations towards PetCom, is not in default of payment and, in particular, no petition to institute administration or insolvency proceedings has been filed, nor payments suspended. If this is the case, however, PetCom may demand that the client disclose the assigned claims and debtors to PetCom, provide them with all information required for collection, hand over relevant documents for this and notify the debtor (third party) of assignment.
- In the event of processing or further processing of goods delivered subject to retention of title, PetCom remains the manufacturer pursuant to § 950 BGB (German Civil Code) without any obligations associated with manufacturing transferring to PetCom.
- Pledging or transfer by way of securing goods delivered under reservation of title is excluded. In the event of sequestration or other impairment by third parties of goods delivered under retention of title, the client must notify us of this without delay, and must take all reasonable measures to avert impairment.
- Sequestration or confiscation of the delivered item by PetCom constitutes withdrawal from the contract in all cases. PetCom is entitled to exploit or utilize the delivered item following retraction or withdrawal. Proceeds from the sale must be credited against client liabilities, after deducting reasonable realisation costs.
- PetCom must release securities to which it is entitled at the client’s request, to the extent that the value of securities exceeds claims to be secured by more than 20 %. PetCom is responsible for selecting the collateral to be released. The purchase price constitutes the reference value in each case.
§ 7 Warranty and material defects
- The warranty period is one year from delivery or, to the extent acceptance is required, from acceptance. This period does not apply to claims for damages by the client arising from injuries to life and limb or health or from wilful or grossly negligent breaches of duty by PetCom or its vicarious agents, which each become timebarred in accordance with statutory provisions.
- Delivered products must be examined carefully immediately on delivery. With respect to obvious defects or other defects which would have been apparent on careful inspection immediately, they are deemed to have been accepted by the Purchaser if PetCom does not receive a written defect notice within 5 days of delivery. With regard to other defects, delivered items are deemed as having been approved by the Purchaser if a defect notice is not received by PetCom within 5 days of the time at which the defect became apparent. If the defect was already apparent at an earlier point in time during normal use, however, this earlier point in time is definitive for the start of the period for lodging a complaint.
- In the event of a defect notice, a sample must be taken which constitutes an appropriate quantity or volume and made available to PetCom. This sample must be stored and transported in accordance with relevant regulations. In the event of a justified notice of defects, PetCom must reimburse costs of the most favourable shipping route. This does not apply insofar as costs increase, because the delivered item is located at a place other than that for intended use.
- In the event of material defects to delivered items, PetCom is first of all obliged and entitled to remedy the defect or to make a replacement delivery, at its discretion and to within a reasonable period of time. In case of failure, i.e. impossibility, impracticality and a problem with reasonableness, refusal or unreasonable delay to repair or replacement delivery, the client may withdraw from the contract or reduce the purchase price appropriately.
- The client may not dispose over goods objected to by third parties, without PetCom's consent.
- If a defect is due to a fault of PetCom, the client may claim damages according to the preconditions specified in § 8.
§ 8 Liability for damages due to culpability
- PetCom’s liability to pay damages for any reason whatsoever, in particular for impossibility or impracticality, delay, defective or incorrect delivery, breach of contract, breach of obligations from contract negotiations and tort, are limited in accordance with provisions of this § 8, insofar as culpability or fault is involved in each case.
- PetCom is not liable in cases of simple negligence on the part of its organs and entities, legal representatives, employees or other vicarious agents, insofar as these do not involve a breach of material contractual obligations. For example, delivery of grossly defective goods or a delivery delay of more than two weeks is deemed as being material to the contract.
- In so far as PetCom is liable on merit for damages pursuant to § 8 paragraph 2, such liability is limited to damages which PetCom had foreseen as a possible consequence of a breach of contract at the time of concluding the contract, or which it should have been able to foresee if it had exercised customary levels of care. Indirect damages and consequential damages resulting from defects in delivered goods are are only compensable, insofar as such damages may typically be expected when using the delivered item in accordance with instructions.
- In the event of liability for simple negligence, PetCom's liability to pay compensation for property damages and any further financial losses resulting from these, are limited to the financial sum covered by its product liability insurance, even if these involve a breach of material contractual obligations.
- The exclusions and limitations of liability above apply to the same extent in favour of executive bodies, legal representatives, employees and other vicarious agents of PetCom.
- If PetCom provides technical information or acts in an advisory capacity and this information, according to the advice given, is not part of the contractually agreed scope of services due by PetCom, this does not occur free of charge or to the exclusion of any liability.
- The limitations § 8 of this do not apply for PetCom's liability because of wilful misconduct, to guaranteed characteristics, nor to injury to life and limb or health or according to the German Product Liability Act.
§ 9 Ceded objects
- Containers provided to the client on loan, such as transportation containers, containers, plastic containers, barrels, crates, pallets, etc. remain the sole, unrestricted property of PetCom. They must be returned by the client immediately following intended use in a perfect and clean condition. Otherwise PetCom is entitled to charge the client for cleaning and replacement costs.
§ 10 Commercial Confidentiality and Secrecy
- PetCom retains the title or copyright to illustrations, calculations, descriptions and other documents provided to the client. The client may not provide such documents to third parties or use or reproduce them itself or through third parties, without express consent from PetCom. It must return these documents in full at PetCom's request once they are no longer required during the ordinary course of business, or if negotiations do not lead to conclusion of a contract. Copies made by the client must be destroyed in this case. The only exceptions are storage within the framework of legal storage obligations and storage of data for backup purposes within the framework of normal data backup.
- The client is obliged to keep the terms of the contract and all information and documents made provided to him for this purpose secret (with the exception of publicly accessible information) for a period of 5 years, following conclusion of the contract and to use it only for implementation of the contract. It must return these to PetCom immediately upon request, following completion or settlement of the contractual relationship.
- The client may not refer to the business relationship in advertising materials, brochures, etc. without the express PetCom ‘s consent.
- The client must oblige its subcontractors and business partners appropriately, corresponding to § 10 of this.
§ 11 Assignment
- The client is not entitled to assign his claims arising from the contractual relationship to third parties. This does not apply, insofar as monetary claims are concerned.
§ 12 Place of Jurisdiction, Applicable Law, Final Provisions
- If the client is a merchant, a legal entity constituted under public law or a special fund under public law or if it has no general place of jurisdiction inside boundaries of the Federal Republic of Germany, the place of jurisdiction for any disputes arising from business relationships between clients and PetCom is PetCom's registered offices, according to PetCom’s choice. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
- Relationships between PetCom and the client are governed exclusively by the laws of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980 (CISG) is excluded.
- If the contract or these General Terms and Conditions of Delivery contain omissions or loopholes, those legally effective provisions are deemed to have been agreed in order to fill these loopholes, which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery, if they had been aware of the omission or loophole.
Minden, Germany in December 2020