General Terms and Conditions of Sale (4.11.2019)
§ 1 Range of these Conditions
These Terms and Conditions of Sale shall apply to all meat sales contracts of Dostlar with Customer including all future transactions with the Customer, insofar as these are legal transactions of a similar nature.
Terms and conditions of the Customer to the contrary or deviating from these terms and conditions shall only be recognised by Dostlar if this is expressly done in writing.
§ 2 Definitions und Abbrevations
Customer - the buyer of goods from Dostlar
customers - the customers of Customer
Dostlar - Dostlar Dönerproduktion GmbH, 66578 Schiffweiler, Deutschland
GCS - these General Terms and Condidtions of Sale
§ 3 Offer and Conclusion of Contract
(1) Dostlar may accept an order from the Customer within two weeks.
(2) Unless otherwise agreed in writing, delivery by Dostlar shall be EXW (Incoterms 2010).
(3) Dostlar shall be entitled to change product specifications even after a binding order has been placed if this is required by law, official order or force majeure. Dostlar shall inform the Customer in good time in text form about relevant changes of this kind.
Relevant in this sense are changes in any case, if these make a change of the labelling or transport documents necessary.
§ 4 Terms of Delivery
(1) The Customer shall immediately and continuously check whether all ingredients and labels comply with the requirements, practices and laws of the countries of destination and transit.
(2) Dostlar shall inform the Customer of any relevant intended ingredient or recipe change so that the Customer can comply with his obligation under paragraph 1. Before executing an order, the Customer shall confirm to Dostlar that the ingredients and labelling of the new recipe comply with the requirements, practices and laws of the countries of destination and transit.
(3) Labels which Dostlar affixes to products shall not be modified or deleted by the Customer, but shall also be brought to the attention of the customers of Customer in the manner specified by Dostlar. Any change to the labelling requires Dostlar's written consent.
(4) Dostlar assumes no responsibility for legal claims, no obligation to conduct official proceedings or legal disputes or other actions by, against or towards authorities of the transit and/or destination countries. The Customer, not Dostlar, bears the responsibility for the correctness and completeness of the transport, transit and import documents as well as the obligation to pay any duties.
(5) Dostlar shall, if necessary, issue the following accompanying documents:
(a) commercial invoice in triplicate,
(b) certificate of origin,
(c) veterinary certificate,
(d) Halal certificate.
(6) Dostlar shall receive from the Customer corresponding proof documents in the original immediately after customs clearance in the country of destination and immediately in advance as a scan by e-mail. The Customer shall be liable to Dostlar for any disadvantages resulting from the late or missing provision of the documents.
(7) Dostlar undertakes to make the ordered products available for collection within 14 days of receipt of the order. This obligation shall not apply if the conditions in accordance with the following "Terms of Payment" clause are not fulfilled by the Customer 5 working days prior to the date of collection.
(8) Dostlar shall not be liable for obstacles to delivery and/or delays in delivery beyond its control (e.g. delays in loading due to official discretionary decisions).
§ 5 Prices, Transport and Ancillary Costs
(1) The parties shall fix the prices in a separate agreement. Prices quoted by Dostlar shall be subject to change without notice unless otherwise expressly stated by Dostlar in writing. Payment of the purchase price shall be made exclusively to the named account. Discounts may only be deducted if a special written agreement has been made.
(2) The agreed prices apply ex works (EXW Incoterms 2010) and, if applicable, plus statutory taxes, e.g. value added tax.
(3) The Customer shall bear the transport costs and commission the carrier.
§ 6 Terms of Payment - Payment Alternatives
These payment alternatives (1) and (2) are regularly possible:
(1) Advance payment including transport and ancillary costs to be forwarded by Dostlar to the carrier.
Or:
(2) The Customer shall first provide Dostlar with a bank guarantee.
(a) Mandatory features of the bank guarantee:
- directly and on first demand ("on first demand"),
- indefinitely,
- securing of all claims from deliveries of goods from Dostlar to the Customer.
- The bank guarantee must cover the amount of the Customer's complete order, including transport and ancillary costs, which Dostlar must pass on to the carrier.
(b) If the order value of an order exceeds the value of the bank guarantee, the Customer must either provide a new, increased bank guarantee against the previous one or pay the difference between order value and guarantee amount in advance.
(c) If a bank guarantee corresponding to the order value is issued, the following terms of payment shall apply: 30 days after delivery of the goods to the carrier by Dostlar, unless otherwise agreed.
(d) In the event of default in payment, Dostlar shall send the Customer a payment reminder in text form with a grace period of 5 days, i.e. Dostlar shall not bear the burden of proof for receipt only for dispatch. After the unsuccessful expiry of this period, Dostlar shall be entitled to make use of the bank guarantee available to it.
(e) The Customer is free to deposit a new bank guarantee in the amount of the order value or to pay in advance for the Customer's next order.
(f) Dostlar shall release the bank guarantee at the written request of the Customer if all of Dostlar's payment claims have expired or if a permanent excess security exists. Overcollateralisation: The bank guarantee amounts to 150 % of the outstanding claims. In this respect, a period of 12 weeks is deemed to be permanent. The release shall be effected at the Customer's option by means of an original written declaration of limitation or exchange concurrently with a lower bank guarantee declaration.
§ 7 Prohibition of Offsetting
A contracting party is only entitled to a right of set-off with an undisputed or legally established counterclaim.
§ 8 Retention of Title
(1) Dostlar reserves title to the delivered goods until full payment of all claims arising from the delivery contract. Dostlar shall be entitled to take back the object of purchase if the purchaser behaves contrary to the terms of the contract.
(2) The Customer shall be obliged, as long as ownership has not yet been transferred to him, to treat the object of sale with care, in particular to ensure sufficient and uninterrupted cooling. As long as ownership has not yet passed to Dostlar, the Customer must immediately notify Dostlar in writing if the delivered item is seized or subjected to other interventions by third parties. Insofar as the third party is not in a position to reimburse Dostlar for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Customer shall be liable for the loss or expense incurred by Dostlar.
(3) The Customer is entitled to resell the goods in the normal course of business. The Customer hereby assigns to Dostlar the claims against the buyers arising from the resale of the goods in the amount of the agreed final invoice amount (including value-added tax). This assignment shall apply irrespective of whether the object of purchase has been resold without or after processing. The Customer remains authorised to collect the claim against his customers even after the assignment. Dostlar's authority to collect the claim itself shall remain unaffected thereby. However, Dostlar shall not collect the claim as long as the Customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed for insolvency or suspended payments.
§ 9 Warranty
(1) In the event of defects, Dostlar shall, at its discretion, provide warranty by repair or replacement (subsequent performance). In the event of rectification, Dostlar shall not be obliged to bear any increased costs arising from the transport of the goods to a location other than the place of performance, unless the transport corresponds to the intended use of the goods.
(2) If the supplementary performance by Dostlar fails twice, the Customer can exercise his other warranty rights.
(3) Claims of the Customer for expenses necessary for the purpose of supplementary performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods delivered by Dostlar have subsequently been taken to a location other than the Customer's branch office, unless the transfer corresponds to their intended use.
(4) The Customer shall have a right of recourse against Dostlar only to the extent that the Customer has not entered into any agreements with his Customer that go beyond the legally mandatory claims based on defects. Furthermore, paragraph 1 shall apply mutatis mutandis to the scope of the Customer's right of recourse against Dostlar.
(5) The Customer's warranty rights presuppose that he has promptly complied with his commercial inspection and complaint obligations.
(6) Warranty claims expire 12 months after the goods delivered by Dostlar have been handed over to the Customer or his carrier. The statutory limitation periods shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, body and health which are based on an intentional or negligent breach of duty by the user. Also the legal limitation periods for the right of recourse according to § 478 BGB remain unaffected.
(7) Before any return of the goods, Dostlar shall be given the opportunity to comment and decide otherwise on the whereabouts of the goods. Insofar as costs are incurred as a result and a case of warranty exists, Dostlar shall bear the costs of an alternative decision to return the goods.
§ 10 Liability
(1) Claims for damages against Dostlar are excluded unless otherwise specified below. The exclusion applies in principle to all types of damage, i.e. material or immaterial damage, loss of profit, consequential damage and indirect damage. The limitation of liability shall also apply in favour of Dostlars' legal representatives and vicarious agents and in favour of their executives, managing directors, consultants, representatives and employees.
(2) The above exclusions shall not apply to claims for damages arising from injury to life, limb or health or from the breach of essential contractual obligations. Material contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.
They shall also not apply to other damages caused by wilful or gross negligent breach of duty by Dostlar, its legal representatives or vicarious agents.
(3) If Dostlar violates essential contractual obligations, liability shall only include the foreseeable damage typical for the contract if this was caused by simple negligence, unless it is a matter of claims for damages arising from injury to life, limb or health.
§ 11 Confidentiality
(1) Both parties undertake to keep confidential any confidential information which they have received from the other party in connection with the terms of this contract or which they have passed on to the other party.
(2) "Confidential Information" within the meaning of this contract means all data, documents and information identified in this respect and also in any case all information relating to technical or recipe-related or imputed details in any form.
(3) This clause shall survive the contract for five years after its end.
§ 12 Use of Trademarks, Designations, etc.
Without a written agreement, no contracting party shall be entitled to use the trademarks or business names of the other. Insofar as and in the manner in which Dostlar labels goods, the use of these labels on the original goods themselves shall be deemed legitimate.
§ 13 Amendments to the Terms and Conditions
The current terms and conditions of Dostlar at the time the order is placed shall apply in each case.
The Customer is obliged to check the conditions under which he orders.
Dostlar shall indicate the status of the conditions by date marking.
§ 14 Miscellaneous
(1) This contract and all legal relations between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive place of jurisdiction for all disputes arising from this contract shall be our place of business, unless otherwise stated in the order confirmation.
(3) All agreements made between the parties for the purpose of executing this contract are set down in writing in this contract.
§ 15 Severability clause
Should one or more of the preceding clauses be or become invalid, the remainder of the contract shall remain valid.
The parties undertake to close any loopholes by means of a provision which is helpful to the purpose of the contract.
General Terms and Conditions of Purchase (18.7.2019)
§ 1 Validity of these conditions
These Terms and Conditions of Purchase shall also apply to all future transactions with the Supplier, insofar as these are legal transactions of a similar nature.
Any terms and conditions of the Supplier to the contrary or deviating from these terms and conditions shall only be recognised by Dostlar if this is expressly done in writing.
§ 2 Definitions und Abbrevations
Supplier - the seller
Dostlar - Dostlar Dönerproduktion GmbH, 66578 Schiffweiler, Deutschland
GCP - these General Terms and Conditions of Purchase
§ 3 Offer and Conclusion of Contract
1. Where a contracting party submits an offer to conclude a contract in respect of a supply of meat, it shall be bound by it for one week, unless the offer expressly contains a different commitment period.
(2) Unless otherwise agreed in writing, delivery by the Supplier shall be made DDP (Incoterms 2010) loading edge Dostlar.
(3) Dostlar may change the determination of the delivery time and place as well as the type of packaging at any time with a notice period of 7 days prior to the agreed delivery date. The Supplier shall notify Dostlar in writing of any change in costs no later than 5 days prior to the delivery date.
(4) Dostlar may terminate the contract at any time in writing stating the reason if it no longer wishes to use the products contrary to its own expectations. It shall then remunerate the partial services already rendered.
§ 4 Acceptance Conditions
(1) The Supplier shall be responsible for the correctness and completeness of the labelling, the transport, transit and import documents as well as the obligation to pay any levies.
(2) If requested in writing, the Supplier shall issue the following accompanying documents at no additional cost:
(a) Commercial invoice in triplicate,
(b) certificate of origin,
(c) veterinary certificate,
(d) Halal certificate.
(3) Each delivery must be accompanied by an accompanying delivery note which shall at least contain information on the type and quantity of the goods, delivery date, place of delivery, any deviations from the order, any interruptions in the cold chain and the order date.
(4) The delivery date stated in the order or resulting from these conditions may neither be under- nor exceeded without Dostlars written consent.
(5) If the date on which delivery is to take place at the latest can be determined on the basis of the contract, default shall occur at the end of this day without a reminder being required.
(6) Dostlar shall be entitled, after prior warning, to demand a contractual penalty in the amount of 0.5 %, but not exceeding 5 %, of the respective order value for each commenced week of delay in delivery. The contractual penalty shall be set off against the damage caused by default to be compensated by the Supplier.
(7) The Supplier shall not be entitled to make partial deliveries without Dostlar's written consent.
(8) Even if shipment has been agreed, the risk of performance or loss shall not pass to Dostlar until the goods have been handed over at the agreed place of delivery.
(9) Meat and offal may be delivered only in hygienically sound refrigerated vehicles with refrigeration facilities which are capable of maintaining the core temperatures laid down below and which must be cleaned and disinfected before each delivery.
A temperature recorder must be available in the vehicle and, on request, a temperature record must be provided within 24 hours at the latest.
The core temperature of the goods shall be measured upon delivery. The following temperatures must not be exceeded:
+7°C for lamb halves, beef quarters, calves and cuts thereof, boneless lamb, beef and veal
Maximum +4°C for poultry meat
Maximum +3°C for offal and slaughterhouse by-products/heads
At least -18°C for frozen goods
(10) Larger pieces of meat (halves of lamb, calves, quarters of bovine animals and their cuts) must be transported hanging. Only EURO meat hooks are permitted. Goods that cannot be transported hanging must be protected in or by mechanically and hygienically sound transport containers (E2 boxes and hooks with tare weight indication).
(11) Goods to be delivered may not be transported together with used empties.
(12) Complaints about parts of the delivery entitle Dostlar to reject the entire delivery.
(13) Weights, quantities, categories and commercial classes determined by Dostlar shall be decisive for payment. Any loss of weight, transport damage or theft occurring during transport shall be borne by the Supplier.
In the event of major differences, a second weighing or counting may be carried out at the Supplier's request. The request shall be made immediately after the weighing or counting. Later complaints are excluded.
(14) The Supplier guarantees that the delivering employees are trained in handling foodstuffs and are in possession of a valid health certificate or an official certificate of instruction in accordance with § 43 of the Infection Protection Act and can prove this at any time upon request.
(15) Transport packaging shall be provided by the Supplier at cost price insofar as this may be charged in exceptional cases. The Supplier shall be obliged to dispose of any transport packaging.
§ 5 Prices, transport and additional costs
(1) The parties shall fix the prices in a separate agreement.
(2) Unless otherwise agreed in writing, the prices shall be DDP (Incoterms 2010) loading edge Dostlar and shall include transport costs, packaging costs and statutory levies, e.g. value added tax.
(3) Unless otherwise agreed in writing, the following shall apply: The Supplier shall bear the transport costs and commission the carrier.
§ 6 Plant Inspection and Change of Quality Parameters
(1) Dostlar shall have the right to inspect the Supplier's business premises without prior notice during working hours there.
This right includes the inspection of all documents concerning quality assurance, production, storage and transport of the product types delivered or to be delivered to Dostlar.
(2) The Supplier shall have Dostlar's prior written approval for any changes to quality parameters and product compositions for goods intended for Dostlar.
§ 8 Declarations of Conformity
(1) The Supplier guarantees compliance with all statutory provisions, in particular but not limited to those mentioned in the following paragraphs, in connection with the production and trade of the goods to be delivered. The Supplier guarantees:
(a) The goods are not subject to labelling pursuant to EC Regulation 1829/2003 and EV Regulation 1830/2003 as amended.
(b) Packaging corresponds to §§ 30, 31 LFGB, VO(EG) 1935(2004) and 10/2011 in the respectively valid version.
§ 9 Warranty
(1) Defects shall in any case considered notified in good time if they are notified to the Supplier in writing or orally within 4 working days of receipt of the goods. A period of 4 working days after discovery shall apply to hidden defects.
(2) Payment of an invoice from the Supplier does not constitute an acknowledgement that the goods are free of defects or complete or that the place and time of delivery have been observed.
(3) If the Supplier stopps payments or if insolvency proceedings are instituted against his assets, Dostlar shall be entitled to withdraw from the unfulfilled part of the contract.
(4) Upon receipt of a notice of defects by the Supplier, the limitation period for claims based on defects shall be suspended until the Supplier seriously and definitively rejects the claims, declares the defect to have been remedied or otherwise refuses to continue negotiations on the claims.
§ 10 Liability
(1) The Supplier shall be obliged to indemnify Dostlar upon first request against any claims by third parties asserted against Dostlar due to defects in the delivered goods. This applies in particular - but not only - to the occurrence of animal diseases.
(2) The Supplier shall bear the costs of any necessary recall from third parties.
(3) The Supplier undertakes to take out product liability insurance with a sum insured of at least 5,000,000.00 €. Upon request, he shall send a copy to Dostlar.
§ 11 Confidentiality
(1) Both parties undertake to keep confidential any confidential information which they have received from the other party in connection with the terms of this contract or which they have passed on to the other party.
(2) Confidential information within the meaning of this contract is all data, documents and information identified in this respect and, in any case, all information relating to technical or prescription-related or imputed details in any form.
(3) This clause shall survive the contract for five years after its end.
§ 12 Use of Trademarks, Designations, etc.
Without a written agreement, no contractual partner is entitled to use the trademarks or business names of the other party as own trademarks.
§ 13 Amendments to the Terms and Conditions
The terms and conditions of Dostlar valid at the time of placing the order shall apply in each case.
§ 14 Miscellaneous
(1) Upon request, the Supplier shall provide Dostlar with the contact details of the veterinarian responsible for him in writing and at short notice.
The Supplier declares his agreement that Dostlar shall use the opportunity to obtain information from this veterinarian in the event of defects.
(2) On request, the Supplier shall provide current chemical-microbiological analyses of the raw materials (including salmonella analysis), the company hygiene and the residue analyses of the meat.
(3) This contract and all legal relations between the parties shall be governed by the laws of the Federal Republic of Germany excluding the application of the UN Convention on Contracts for the International Sale of Goods (CISG).
(4) Place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is Dostlars place of business.
(6) All agreements made between the parties for the purpose of executing this contract are laid down in writing in this contract. Changes must be made in writing. This also applies to this written form clause itself.
§ 15 Severability Clause
Should one or more of the preceding clauses be or become invalid, the remainder of the contract shall remain valid.
The parties undertake to close any loopholes by means of a provision which is helpful to the purpose of the contract.
