General Terms and Conditions of Sale for Dogs Nature GmbH
Industriestr. 8-14 - 45739 Oer-Erkenschwick (Status: 29th October 2006)
1. General Conditions
a.) Our General Terms and Conditions of Sale form the basis for all of our quotations, deliveries and services.
b.) Our Terms and Conditions of Sale represent the only conditions with validity. Any conditions not in conformity with these will only be accepted as valid when they have been formally accepted by us in writing. The acceptance of our services is considered to represent acknowledgment of our Terms and Conditions of Sale, even in cases where the purchaser has confirmed our services under other than the standard conditions.
c.) These General Terms and Conditions of Sale are only valid for business transactions with trades people.
2. Conclusion of Contract
a.) All our quotations are subject to change. All contracts concluded only become valid when our confirmation has been given. Verbal commitments made by sales representatives and company employees are only considered binding when these are officially confirmed by us in writing.
b.) A contract will only come into being when Dogs Nature GmbH gives written confirmation of the order placed or, by delivering the merchandise, indicates that the company has accepted the order.
3. Prices, Payment
a.) Should no special agreement have been reached, prices apply ex works inclusive of shipment and exclusive of packaging and unloading. Value Added Tax at the appropriate legally valid rate will be added to the prices in each case.
b.) Should there be a rise in the effective prices charged by our suppliers or other costs involving our products between conclusion of contract and delivery, we will be entitled to raise the agreed prices accordingly.
c.) The purchaser is entitled to exercise his right to offset his claims against ours once his counter-claims have been determined by law or have been given our recognition.
d.) Should the purchaser not fulfil his payment obligations on the due date, we may as we choose – without relinquishing any other rights and claims to which we are entitled – terminate the contract, discontinue further supplies to the purchaser and/or debit the purchaser with interest on the unpaid sum amounting to 8% per annum above the European Central Bank’s basic interest rate.
e.) Should the purchaser fall behind with his payments, we will moreover be entitled to withdraw from the contract and to demand compensation for non-fulfilment thereof.
f.) Should circumstances come to our attention which give us cause for grave doubts concerning the solvency or creditworthiness of the purchaser, we will be entitled to demand immediate payment of all outstanding – including deferred – invoice amounts due and to make further supplies to the purchaser conditional to his making payment in advance or furnishing a security. Should the purchaser fail to fulfil such a requirement within a suitable period of time, we will be able, if we so choose, to demand compensation or to withdraw from the contract.
4. Deliveries and Delivery Arrears
a.) Any agreements with respect to a binding delivery time must be made in writing. Terms of delivery will commence with the date of our confirmation of order but not however prior to complete clarification of all particulars concerning the order, agreed documentation and/or receipt of down-payment and the provision of any official domestic or foreign certificates required.
b.) Delivery terms and delivery dates refer to the date of dispatch from the supplier’s works or warehouse. Should it not be possible to dispatch the merchandise in time through no fault of our own, these delivery terms and delivery dates will be deemed to have been observed when notification of readiness for dispatch has been given.
c.) Should no agreement in writing have been made to the contrary, our delivery times are only to be considered as approximate. Even in cases where a fixed delivery time or a fixed delivery period has been agreed, we must be granted an appropriate period of grace should we fall behind schedule with shipments. Once this period of grace has expired without result, the purchaser can withdraw from the contract for those amounts not notified as ready for dispatch at the time of expiry of the period of grace.
d.) We are not to be held responsible for delays in or non-performance of deliveries provoked by a sub-supplier. Terms of delivery will be extended – without prejudice to our rights resulting from default on the part of the purchaser – by the period of time corresponding with that by which the purchaser is in arrears with his obligations from this or other purchase transactions with us. Acts of God and circumstances beyond our control will entitle us to postpone delivery by the length of time represented by the encumbrance or the duration of an adequate start-up time or to withdraw from the contract in whole or in part on account of the as yet unfulfilled part thereof. The purchaser can demand a declaration from us as to whether we intend to withdraw from the contract or wish to effect delivery within a suitable term. Should we fail to declare our intent, the purchaser may withdraw from the contract.
e.) The purchaser is entitled to claim for compensation only if the delay was premeditated.
5. Transfer of Risk and Dispatch
a.) With all business transactions, inclusive of deliveries, the risk of damage to or loss of the merchandise passes over to the purchaser with the transfer of said merchandise to a freight forwarder or carrier, but at the latest when the merchandise has left the warehouse or the supplier’s works. It is not our obligation to insure the goods.
b.) Should the purchaser request this in writing, we will cover the shipment by a transport insurance; the costs incurred in this respect will be borne by the purchaser.
c.) We are entitled to make partial deliveries of a reasonable volume.
d.) We are not liable for losses in weight occurring during transportation. The purchaser is to provide us with shipping instructions together with the order in all cases. It is, however, solely our responsibility to decide on the method of dispatch and the shipping route – without guarantee for the swiftest form of carriage. Additional charges for fast goods traffic or express freight undertaken at the purchaser’s request will be charged to his account.
6. Dimensions, Weights and Delivery Amounts
The measurements, weights and quantities stated in the shipping documents/accompanying papers are definitive for accounting purposes. Complaints concerning dimensions, weight and quantity of the good delivered are to be made in writing within three working days of the merchandise arriving at its place of destination.
7. Retention of Title
a.) The merchandise remains our property until all present and future requirements resulting from business relationships with the purchaser have been fulfilled.
b.) The purchaser is obliged to specifically label and separately warehouse the merchandise belonging to us (goods shipped subject to reservation).
c.) The purchaser is obliged to store the merchandise sold to him under reserve in a separate warehouse and to label this clearly. The purchaser is obliged to treat the goods purchased with due care and attention; in particular the purchaser is obliged to insure this merchandise sufficiently at his own expense against damage from fire, water and theft at reinstatement value.
d.) Should our merchandise sold to the purchaser under reserve be reworked or mixed, added to or combined with other goods not belonging to us, we will then acquire a co-ownership in the new goods proportionate to the value of the merchandise purchased from us in relationship to the other reworked goods at the time of reworking. The same applies incidentally to the item resulting from reworking as applies to the merchandise supplied by us subject to reservation. Sale of this merchandise is only permissible in proper business dealings.
e.) Any other acts of disposal of the goods supplied by us under reserve, particularly the pledging of goods as collateral and assignment as security, are not permissible. The purchaser herewith relinquishes to us in advance and in full all amounts receivable to which he is entitled from resale or from other legal grounds with respect to the merchandise supplied under reserve; in the case of co-ownership, this surrender covers only the portion of the claim corresponding to our co-ownership. Resale is only permissible if surety is provided for the object of surrender.
f.) The purchaser is empowered to collect the surrendered sums in proper business transactions and this is subject to repeal at any time. Should we so require, he is obliged to announce his surrender of claims to his debtors. We also may make this announcement at any time.
g.) The authorization of the purchaser to dispose over as well as to rework, alter, combine, blend and mix the merchandise supplied under reserve and furthermore to collect surrendered monies receivable expires upon non-adherence to the conditions of payment, in case of unauthorized dispositions, protested bills and cheques and whenever an application is made for insolvency proceedings against the purchaser or we become aware of a significant deterioration in his financial circumstances. In cases such as these, we are entitled to take immediate repossession of the merchandise supplied by us under reserve, to enter the purchaser’s premises for this purpose, to demand appropriate information concerning the said merchandise and possible amounts receivable resulting from its resale as well as to inspect the purchaser’s books insofar as this is conducive to the securing of our rights. We are further entitled to expressly prohibit the reworking of and any alteration to the merchandise supplied under reserve and to revoke any direct debit authorizations issued as well as to inform third party companies of such interdictions and revocations. The costs for the collection or respectively the return of the merchandise or the transfer of indirect ownership of the merchandise supplied under reserve are to be borne by the purchaser.
h.) Provided that and to the extent to which the registration and/or fulfilment of other requirements are a precondition for the effectiveness of this retention of title, the purchaser is obliged, irrespective of our own competence, to undertake without delay and at his own expense all the necessary actions necessary to this end and to notify all necessary parties. If and to the extent to which the definitive legal system does not permit any agreement of retention of title, the purchaser will provide us with appropriate alternative securities should he avail himself of a commercial loan.
i.) The purchaser must notify the vendor without delay in case of distraints or other interventions by third parties in order for the vendor to be in a position to take necessary action. Should the purchaser not comply with this requirement, he will be held liable for any damages incurred.
j.) The vendor will undertake to release the securities to which he is entitled at the request of the purchaser insofar as the realisable value of those securities exceeds the claims to which the vendor is entitled. The vendor will choose which securities are to be released.
8. Notification of Defects
a.) The purchaser is to examine the merchandise and the packaging immediately upon receipt of the delivery. Specifically the purchaser must open and control individual samples. The purchaser must give written notice of all identifiable deficiencies, shortfalls or incorrect deliveries within five working days after receipt of the delivery but at all events prior to resale, usage or reworking. The purchaser must claim for hidden defects immediately upon discovery of such. Due to the nature of the merchandise supplied, the purchaser is only entitled to exercise this right within a period of four weeks after delivery.
b.) Should the object or purchase be defective, the vendor has the right, under exclusion of all other claims, to demand to make an additional delivery. Should we decline to make subsequent delivery or should the delivery of substitute or subsequent delivery be unsuccessful, the seller shall have the right to withdraw the goods completely.
c.) This settles once and for all any claims by the purchaser regarding the supply of goods not compliant with the contract. Specifically the purchaser has no claims to damages on account of defects in the object of purchase or on account of consequent damage to persons, objects or the purchaser’s legal estate resulting from such defects. The exclusion of liability mentioned above is invalid should the cause of damage be based on premeditation.
9. Written Form, Partial Invalidity
a.) Amendments, supplements to or the amicable annulment of this contract must be submitted in writing for the sake of validity. Notifications made by Telefax or other means of electronic data transmission fulfil this requirement relating to the written form. The same applies to other declarations made by the parties to the contract which are essential for the substantiation, protection or exercising of their rights, particularly notification of defects, appointment of deadlines or unilateral declarations of annulment of contract.
b.) Should one clause be or become null and void or invalid, this will not affect the validity of the remaining clauses.
c.) Should one or several clauses of this contract be or become invalid, the parties to the contract will decide on a legally valid replacement clause as near as possible from an economic point of view to the invalid clause.
10. Place of Performance, Court of Jurisdiction, Applicable Law
a.) Place of performance for payment obligations on the part of the purchaser and for obligations on our part is Fuenlabrada, Madrid.
b.) The agreed court of jurisdiction for disputes resulting from and connected with this contract is Fuenlabrada. Each party to the contract is also entitled to file suits against the other party to the contract at his own general place of jurisdiction.
c.) The UN agreement on contracts for the international sales of goods (CISG) applies for all privity of contract between the purchaser and ourselves, supplemented by the legislation of Spain.