General Terms and Conditions of fk poultry gmbh (as of 02/2022)

General information

1. These General Terms and Conditions (“GTC”) shall apply to all – including future – contracts with entrepreneurs ( § 14 BGB), legal entities under public law and special funds under public law (“Customer”) for the sale and/or delivery of movable goods, offers, orders and other services, including contracts for work and services and construction contracts as well as pre-contractual legal relationships.

2. In case of doubt, the latest version of the Incoterms shall be authoritative for the interpretation of trade terms.

3. Our offers are subject to change and non-binding. These are merely invitations to tender. Verbal agreements, promises, assurances or guarantees made by our employees or representatives in connection with the conclusion of the contract and with the execution of the contract are also subject to change and only become binding upon our written confirmation.

4. The order of the goods by the customer shall be deemed to be a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer 14 working days after receipt by written declaration or delivery of the goods to the customer.

5. Legally relevant declarations and notifications relating to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.

6. Our General Terms and Conditions apply exclusively. Terms and conditions or agreements deviating from these terms and conditions shall not be recognized even if we do not expressly object to them again after receipt. Deviating conditions shall only be binding if they are confirmed by us in writing.

2 Quality, offer, conclusion of contract

1. The information contained in brochures, the Internet, price lists or similar (e.g. drawings, dimensions, load capacity, technical data, mere reference to DIN/EN standards) is non-binding unless it is expressly declared as binding in writing in our offer or in our order confirmation. They serve as approximate illustrative pieces for quality, dimensions and color. We reserve the property rights and copyrights to all information, documents, files, drawings, drafts, calculations and preliminary work originating from us. The customer shall receive rights of use to the extent necessary to achieve the purpose of the contract between the customer and us.

2. Information provided by the customer may be assumed by us to be binding and accurate; there is no obligation on our part to verify it.

3. Our written offer or our order confirmation and our drawings are decisive for the scope of the delivery or service. The order confirmation must be checked carefully. Discrepancies must be reported no later than 3 working days after the date of our order confirmation. Silence on the part of the customer until the expiry of this period shall be deemed to be acceptance of the order confirmation as the content of the contract. Additional agreements and changes require our written confirmation. If we make insignificant, reasonable deviations in the dimensions and design of the ordered item, such deviations shall not give rise to complaints unless compliance with dimensions and color shades had been expressly agreed. Technical changes and improvements on our part that do not cause any deterioration in value or usability shall also be deemed permissible.

4. If the customer withdraws from the contract after conclusion of the contract without being legally or contractually entitled to do so, or otherwise rescinds the contract, we shall be entitled to liquidated damages in the amount of 20% of the price or the agreed remuneration in addition to reimbursement of expenses already incurred. We reserve the right to provide evidence of lower damages.

3 Duty to cooperate for contracts with installation services

1. The customer must ensure adequate access to the construction site and sufficient unloading space and create the structural conditions for the assembly work; in winter, the room in which the assembly work is to be carried out must be heated; the customer is obliged to provide electrical power, water and lighting. It must create the conditions for carrying out test runs.

2. The customer is solely responsible for obtaining permits, inspections, licenses or similar for the installation or assembly of the goods.

4 Prices

1. All prices apply to the scope of services and delivery listed in the order confirmation. Additional or special services will be charged separately.

2. The prices are net ex warehouse, plus delivery costs. statutory VAT, packaging, customs duties for export deliveries as well as fees and other public charges. If prices are not expressly agreed, our price list valid at the time of conclusion of the contract shall apply. Prices shall only be deemed fixed prices if they have been confirmed by us in writing and marked as fixed prices.

3. We reserve the right to change our prices accordingly if significant cost reductions or cost increases occur after conclusion of the contract, in particular in the event of price developments beyond our control, such as exchange rate fluctuations, currency regulations, customs changes, tax changes, changes in wage and collective agreements, transport costs, material or manufacturing costs, including those of our suppliers, etc. We will provide evidence of these on request.

5 Payment and settlement

1. Unless otherwise agreed in writing or stated in our invoices, the purchase price shall be due immediately upon receipt of the invoice by the customer and delivery or acceptance without deduction of discount.

2. In the case of partial deliveries and partial services, we shall be entitled to demand reasonable payments on account.

3. Our invoices shall be deemed accepted if no objection is raised in writing within 30 days of receipt of the invoice. We will inform the customer of this with every invoice.

4. Target sales require an express written agreement. If a payment term is granted, invoices are due for payment without deduction on the agreed payment date.

5. The granting of a discount requires an express written agreement with us. An agreed cash discount always relates only to the value of the goods and presupposes the complete settlement of all due liabilities of the customer at the time of the cash discount. Pallets, freight and services are not discountable.

6. Unless otherwise stated in the above, we shall charge interest on arrears at a rate of 9% above the current prime rate of the European Central Bank from the 10th day after the due date without further reminder.

7. If it becomes apparent after conclusion of the contract that our claim for payment is jeopardized by the customer’s inability to pay, we shall be entitled to the rights under § 321 BGB (“plea of uncertainty”). In this case, we shall also be entitled to declare all outstanding claims – including deferred claims – from the business relationship with the customer due and payable. Furthermore, the defense of uncertainty extends to all other outstanding deliveries and services arising from the business relationship with the customer.

8. We are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation with the order confirmation at the latest.

9. The customer waives the assertion of a right of retention from earlier or other transactions in the current business relationship. The offsetting of counterclaims is only permissible insofar as these are recognized by us and due for payment or have been legally established.

6 Delivery, transfer of risk, delivery periods and dates, default of acceptance

1. Our warehouse is the place of performance for all our deliveries. If the goods are delivered to another location, the customer shall bear the risk. In this case, delivery shall be made to the agreed location. We determine the shipping route and means as well as the forwarder and carrier. When the goods are handed over to a forwarding agent, carrier or other person or institution designated to carry out the shipment, but at the latest when they leave the warehouse, the risk, including the risk of confiscation of the goods, shall pass to the customer for all transactions, including carriage paid and free deliveries. If acceptance has been agreed, this shall be decisive for the transfer of risk. If the customer is in default of acceptance, this shall be deemed equivalent to handover.

2. Delivery periods shall commence on the date of our order confirmation. They shall be extended in each case by the period by which the customer does not fulfill his obligations to us. This applies accordingly to delivery dates. The time of dispatch from the warehouse shall be decisive for compliance with delivery periods and dates. They shall be deemed to have been complied with upon notification of readiness for dispatch if the goods cannot be dispatched through no fault of our own.

3. Force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, transport delays, strikes, shortage of labor, for example due to epidemics, pandemics, quarantine entry bans) or official measures that temporarily prevent us from delivering the goods on the agreed delivery date or within the agreed period through no fault of our own shall release us from our contractual performance obligations for the duration and scope of their impact. We must inform the customer immediately after becoming aware of the event. If we are unable to perform even after a reasonable extension of the deadline, we are entitled to withdraw from the contract. Claims for damages by the customer are excluded. If we withdraw from the contract, we shall immediately reimburse the customer for all payments already made. Other rights of withdrawal remain unaffected.

4. We are entitled to make partial deliveries to a reasonable extent. We are also entitled to use subcontractors to fulfill our contractual obligations.

5. Non-compliance with a delivery date or a delivery period by us shall only entitle the customer to assert his statutory rights if he has set us a reasonable grace period of at least 14 working days and if the delay in delivery is due to an intentional or grossly negligent breach of contract. A written reminder from the customer is mandatory for the occurrence of a delay in delivery. Otherwise, the occurrence of a delay in delivery shall be determined in accordance with the statutory provisions.

6. If we are unable to meet a binding delivery deadline for reasons for which we are not responsible, we will inform the customer of this immediately and notify the new expected delivery deadline. If we are also unable to meet this delivery deadline, we are entitled to withdraw from the contract in whole or in part. We shall immediately refund any consideration already provided by the customer.

7. Delivery dates apply to the execution of assembly work under the following conditions

a. the freedom of construction by the customer or other contractors is guaranteed;
b. the customer must obtain the public law permits and authorizations (in particular under building law, road traffic law, water law, trade law) required for us to carry out the work and present them on request; the customer shall bear the risk of obtaining, obtaining and maintaining such permits.

7 Extended retention of title

1. All delivered goods remain our property (“reserved goods”) until all claims have been fulfilled, in particular also the respective balance claims to which we are entitled within the scope of the business relationship (“balance reservation”). This also applies to future and conditional claims, e.g. from acceptor’s bills of exchange and also if payments are made on specially designated claims. This balance reservation shall finally expire with the settlement of all claims still outstanding at the time and covered by this balance reservation.

2. The customer may only sell the goods subject to retention of title in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims arising from the resale in accordance with the provisions of the German Civil Code (BGB) have been satisfied. of these conditions are transferred to us. In this case, the following conditions apply:

a. The claims arising from the resale of the reserved goods shall be assigned to us already now together with all securities which the customer acquires for the claims. We hereby accept the assignment. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the customer together with other goods not supplied by us, the claim arising from the resale shall be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. In the case of the sale of goods in which we hold co-ownership shares in accordance with the § 7 No. 2 of these Terms and Conditions, a part corresponding to our co-ownership share shall be assigned to us.
b. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered subject to retention of title.
c. In addition to us, the customer is entitled to collect claims arising from the resale of the reserved goods. This direct debit authorization shall expire in the event of our revocation, but at the latest in the event of default of payment, non-payment of a bill of exchange or application for the opening of insolvency proceedings. We shall only make use of our right of revocation if it becomes apparent after conclusion of the contract that our claim to payment from this or other contracts with the customer is jeopardized by the customer’s inability to pay. At our request, the customer is obliged to inform his customers immediately of the assignment to us and to hand over to us the documents required for collection.

3. The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The customer must inform us immediately of any seizure or other impairments by third parties. The customer shall bear all costs that have to be incurred to cancel the seizure or to return the reserved goods, insofar as these are not reimbursed by third parties.

4. If the customer is in default of payment, we shall be entitled to take back the reserved goods after the expiry of a reasonable grace period and, if necessary, to enter the customer’s premises or property for this purpose. The same shall apply if, after conclusion of the contract, it becomes apparent that our claim for payment under this or other contracts with the customer is jeopardized by the customer’s inability to pay. Taking back the goods does not constitute withdrawal from the contract. The provisions of the InsO remain unaffected by this.

5. If the realizable value of the existing securities exceeds the secured claims including ancillary claims (interest, costs, etc.) by more than 10% in total, we shall be obliged to release securities of our choice at the customer’s request.

9 Liability for material defects

1. The quality of the goods shall be determined in accordance with the agreed product descriptions and manufacturer’s specifications available at the time of conclusion of the contract, in the absence of such, in accordance with commercial practice. If the quality has not been agreed, the statutory regulations shall be used to assess whether a defect exists.

2. The statutory provisions shall apply to the inspection of the goods and notification of defects with the following proviso:

3. The customer is obliged to inspect the properties of the goods relevant for the respective use immediately after delivery and to notify us in writing of any defects in the goods immediately, at the latest within five working days of delivery. In the case of goods intended for installation or other further processing, an inspection must always be carried out immediately before processing. In this case, the properties relevant for installation or attachment also include the internal properties of the goods. Defects that cannot be discovered immediately after delivery, even with the most careful inspection, must be reported in writing immediately after discovery, at the latest within five working days of discovery.

4. In the event of a justified, timely notice of defects, we may, at our discretion, remedy the defect or deliver goods free of defects (“subsequent performance”). Our right to refuse subsequent performance under the statutory conditions remains unaffected. In the event of failure or refusal of subsequent performance, the customer may withdraw from the contract or reduce the purchase price after the unsuccessful expiry of a reasonable period. If the defect is not significant or if the goods have already been sold, processed or redesigned, the customer shall only be entitled to a reduction in price.

5. We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. For his part, the purchaser may retain a reasonable part of the purchase price in proportion to the defect.

6. The customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the reinstallation if we were not originally obliged to install it.

7. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions, if a defect actually exists. Otherwise, we may demand compensation from the customer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the customer.

8. Insofar as the expenses claimed by the customer for subsequent performance are disproportionate in individual cases, in particular in relation to the purchase price of the goods in a defect-free condition and taking into account the significance of the lack of conformity, we shall be entitled to refuse to reimburse these expenses.

9. If the customer carries out the repairs himself or has them carried out without our consent and without giving us the opportunity to carry out the repairs, our liability shall lapse. In urgent cases, e.g. if operational safety is jeopardized or to prevent disproportionate damage, the customer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We must be informed immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

10. Further claims of the customer for damages or reimbursement of futile expenses shall only exist in accordance with § 9, even in the case of material defects, and are otherwise excluded.

9 General limitation of liability

1. We shall be liable for damages – also for our executive employees and other vicarious agents or persons whose fault we are responsible for according to statutory provisions – irrespective of the legal grounds, within the scope of fault-based liability only in cases of intent and gross negligence.

2. The limitations shall not apply in the event of culpable breach of essential contractual obligations, insofar as the achievement of the purpose of the contract is jeopardized, in the event of damage to life, limb and health and also not if and insofar as we fraudulently conceal defects in the item or have guaranteed their absence, as well as in cases of mandatory liability under the Product Liability Act. The rules on the burden of proof remain unaffected by this.

3. The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the customer is excluded. Otherwise, the statutory requirements and legal consequences apply.

4. In the event of delay, we shall be liable for 0.5% of the order value per week, up to a maximum of 10%. Furthermore, claims for compensation are limited to the reimbursement of proven additional costs (covering purchase on the basis of three comparative offers).

5. We are not liable for breaches of contract or damages due to force majeure.

6. If the countries in which the customer will resell our products have different, in particular stricter product liability or product safety regulations compared to German law, the customer must inform us of this when placing the order. In this case, we are entitled to withdraw from the contract within one month. If the customer fails to provide this information, we may withdraw from the contract within one month of learning of the relevant legal situation. In the latter case, the customer is obliged to indemnify us against third-party claims that exceed our obligation to perform in a comparable product liability case in Germany. This also applies if we adhere to the contract.

10 Statute of limitations

1. Contractual claims as well as contractual and non-contractual claims for damages shall lapse within one year, unless the application of the regular statutory limitation period would lead to a shorter limitation period in individual cases. The limitation period shall not apply to damage caused by intent or gross negligence on our part or in the event of injury to life, limb or health or under the Product Liability Act. In cases of subsequent performance, the limitation period shall not begin to run again.

11 Applicable law; place of jurisdiction; data protection

1. In addition to these Terms and Conditions, the law of the Federal Republic of Germany shall apply to all legal relationships between us and the Customer, in particular the German Civil Code (BGB) and the German Commercial Code (HGB) in their respective valid versions, to the exclusion of international uniform law, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

2. If the requirements for an agreement on the place of jurisdiction pursuant to Section 38 para. 1 ZPO (German Code of Civil Procedure), the place of jurisdiction for all claims of the contracting parties, including actions on bills of exchange and checks, shall be the court responsible for our registered office in Laer. However, we are entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or at the general place of jurisdiction of the customer. Overriding statutory provisions remain unaffected.

3. In accordance with the applicable data protection law, we would like to point out that all orderer and supplier-related data is stored and processed by us with the aid of electronic data processing. We are entitled to forward the data transmitted to us to the persons and companies required to provide the service, insofar as this is necessary for the delivery of the goods or execution of the order. Personal data that has been provided to us will only be stored until the purpose for which it was entrusted to us has been fulfilled and prescribed retention periods do not prevent deletion. If there is no longer consent to the storage of personal data or if it has become incorrect, we will arrange for the deletion, correction or blocking of the data in accordance with the statutory provisions. Upon request, we will provide information free of charge about all personal data that we have stored about our customers. If you have any questions about the collection, processing or use of personal data, or if you require information about the data or wish to correct, block or delete the data, please send us a corresponding request in text form.

4. Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. In such a case, the parties undertake to immediately agree on new effective provisions that come as close as possible to the economic purpose of the invalid provision.