1. Scope of application
The present Conditions of Purchase (“Conditions”) shall apply to all – including future – orders placed by the orderer (“Buyer”) to a supplier (seller, contractor or else, the “Supplier”) in respect of supplies and services, even if the Conditions are not explicitly agreed in case of subsequent orders. Agreements and conditions of Supplier diverging from the Conditions shall require an explicit written agreement. General terms and conditions of Supplier and confirmations of diverging content given by Supplier are expressly rejected.
2. Confirmation of order, formation of contract
Orders of Buyer shall only be binding if made in writing. Buyer is entitled to withdraw an order, if Supplier has not given a written confirmation within two weeks (or the period stipulated in the order). To the extent these Conditions require notices of Buyer to be in writing, they may also be given via facsimile. As any email sent over the internet can be changed electronically during the process of transmission or be sent under the name of a third person, we assume no responsibility for the content of an email or any of its attachments and, consequently, the content of an email shall not constitute a legally binding offer or acceptance of an offer, unless otherwise agreed in writing. Any deviation of a confirmation from the order, or agreements prior, at or after the formation of the contract and deviations from these Conditions shall only be binding, if confirmed by Buyer in writing. Buyer shall only pay for quotations, plans and drafts, etc. if expressly agreed in writing.
3. Samples, patterns, supply of materials
Title to samples, patterns, material, etc. supplied by Buyer shall remain with Buyer and such items shall neither be passed on to third parties nor used for any other purpose without the prior written consent of Buyer. Such items shall be secured against unauthorized use and access and shall, just as any information disclosed by Buyer, be treated in a strictly confidential manner.
4. Time of performance, penalty for non-performance
All delivery dates agreed upon shall be binding and shall be strictly observed. Deliveries shall be received on time, if and when delivered at the place of performance stipulated in the order and services, supplies requiring assembly and other services, if and when accepted after inspection. Without prejudice to any claims of Buyer, any foreseeable delay in respect of the supply, rendering of services or subsequent performance shall be notified to Buyer as soon as possible. If the time for supply or performance is exceeded for reasons for which Supplier is responsible, Buyer shall have the right to claim a penalty in an amount equivalent to 0.3 % of the value of the order for each business day commenced during the delay, but which penalty shall not exceed 5 % of the value of the order, unless Supplier proves that Buyer only suffered damage of a less value; however, any claims of Buyer (e.g. claim for damages, avoidance of agreement) exceeding the foregoing shall not be affected. The claim for the penalty shall not be affected and may be claimed against the final invoice, even if the penalty had not been claimed at the time of the acceptance of the supply, services or subsequent performance. If the supply or rendering of services or the acceptance of a supply or rendering of services is affected by force majeure, Buyer may, after the expiration of an additional period of time fixed by Buyer, at its choice declare the contract avoided or extend the time of performance, without Supplier having a claim for damages or else.
5. Place of performance, dispatch, transfer of risks
In case of contracts to manufacture or supplies requiring assembly or other services, risk shall pass to Buyer at the time of acceptance and inspection, in case of other deliveries at the time of receipt at the place of performance stipulated in the order; unless otherwise agreed, all deliveries shall be agreed DDP named place of receipt and including packaging. If the price had been agreed EXW factory or warehouse of Supplier, Supplier shall ship at the lowest costs in each instance, unless and insofar as Buyer has not stipulated a specific mode of transport. Additional costs for express delivery required to comply with a delivery time stipulated in the contract shall be borne by Supplier. In case of delivery of goods, at the same time as the goods are loaded in the case of delivery on the basis of DDP place of destination (or made available for collection for delivery in case of EXW factory or warehouse of Supplier), Supplier shall for each order (or, in the event that a order is called off in various shipments, for each shipment) provide Buyer with a dispatch note via facsimile by setting forth order number, number of call off, quantity and time of the delivery. Each delivery of goods shall be accompanied with a delivery note, which shall contain the information required for the dispatch note (and also the remaining shelf life at the time of delivery). Loading devices (e.g. pallets) made available for hand-over purposes upon delivery or collection of goods shall comply with the agreed or, alternatively, standard quality requirements of average kind and quality; otherwise, Buyer may, at its discretion, refuse to accept hand-over of such loading devices. The weight of goods delivered in silo(-trucks) may be checked by Buyer at an standardized or public weighing station. Any damages of the original packaging of goods supplied or of any seals of silo(-trucks) giving reason to doubt the intactness or unadulteration of the goods shall give Buyer the right to reject such goods.
6. Invoices, Payment
Invoices (including a clearly marked duplicate thereof) shall contain the references of Buyer and the number for each item delivered and shall only be payable, if such information is complete. Unless otherwise agreed, invoices shall be due for payment in accordance with the terms 3 % cash discount within 14 days or net cash within 30 days of receipt of invoice and goods/services. The period allowed for payment shall commence as of the date of delivery or rendering of services having been executed in full and the issue and availability of a correct invoice. Buyer shall only be deemed to be in default, if payment has, after a demand for payment was given after the due date, not been effected and no defense or dispute has been put forward. Payments shall not be deemed an acknowledgment that the supply or rendering of services was in full compliance with the contract and shall always be made subject to review of the invoice. Supplier may only avail itself the right of offset or exercise of a retention right if the claim is not disputed or a final judgment has been obtained.
7. Intellectual property rights, copyrights
Title to all results of the contractual performance of the Supplier made by Supplier pursuant to contract, including all information and documents, which refer to the results of the contractual performance, as well as samples, patterns, tools, etc. made by Supplier pursuant to contract, shall be assigned to Buyer. This assignment of rights shall be included in the agreed consideration; no further consideration shall be payable by Buyer unless mandatory according to applicable law. If the results of the contractual performance of the Supplier consist of patent rights or design rights, Buyer shall be free to apply for, maintain or drop legal protection of such patent or design right in any country in its own name and in its sole discretion – while naming the inventor or designer according to respective applicable law. If the results of the contractual performance of the Supplier consist of copyrights or comparably protected rights, Supplier shall grant to Buyer a timely and locally unlimited, irrevocable, assignable, sub-licensable and exclusive right to use the results of the contractual performance in any manner, including the right to edit or modify the results, without being obliged to name the author. Supplier shall indemnify and hold harmless Buyer from any liability and from all claims of third parties, including inventors, designers and authors, as a result of the assignment or use by the Buyer of the results of the contractual performance of the Supplier including especially, but not limited to, any compensation claims made by any inventors, designers or authors against Buyer.
8. Inspection on receipt, warranty
§ 377 of the German commercial code (HGB) shall apply to any delivery of goods to the effect that the Buyer shall be obliged to give notice in respect of external and readily identifiable defects or transport damage within 10 business days as of the date of receipt and within 10 business days as of the date of detection in the case hidden defects, unless and insofar as perishable goods require the notice to be given in a shorter period. In the event the goods are redispatched or redirected in transit, inspection shall be deemed to have been deferred until arrival of the goods at the new place of destination. Supplier shall bear the costs of return of goods, replacement deliveries and repairs. Supplier guarantees that the goods delivered shall comply with the German and EU laws and regulations applicable to food products (and their ingredients) and in case that goods are delivered to a place outside the EU comply with regulations applicable to food products (and their ingredients) at the agreed place of delivery and that all goods or services comply with all other laws and regulations in force at the agreed place of delivery pertaining to the protection of life, health and safety, where applicable. The period of limitations for warranty claims made by Buyer pursuant to § 437 Nos. 1 and 3 of the German civil code (BGB), shall, in derogation of § 438 I No. 3 BGB, be 3 years; in other respects, the prevailing law shall apply. Buyer shall have the right to select the mode for curing a defective performance; the right of Supplier pursuant to § 439 III BGB shall not be affected. If the goods or the services are defective on grounds of a breach of a guarantee given by Supplier, Supplier shall be liable for damages irrespective of culpability. If the goods or services are defective without a guarantee being applicable, Supplier may only exonerate itself in respect of the claims of Buyer for damages or losses, if Supplier can prove that the non-performance of its obligations is due to an impediment beyond its control and that it could not reasonably be expected to have taken into account at the time of the formation of the contract or have avoided or overcome it or its consequences; if Supplier has engaged a third party to perform its obligations, Supplier only is exempted, if it is exempted under the preceding requirements and the third party it has engaged would also be exempted, if the foregoing provisions were applied to it. If the goods or services are defective, the exercise of rights of Buyer due to such defect shall not require giving a notice to Supplier, if Supplier had performed its obligations at a time when it had been in default or if Buyer, in order to prevent being in default to its customer, or in other cases of urgency, has a particular interest in exercising its rights immediately. If, in the case of curing a defective performance, Supplier supplies entirely or in substantial respects new or cures in such respect, the period of limitations in respect of warranty claims shall resume anew. Supplier guarantees that the goods delivered or services rendered are free from any intellectual property rights of a third party, in particular that such rights do not conflict in any manner with the use provided for under the contract at the place of performance or a different destination agreed in the contract, and in case of services rendered by Supplier, that the author of copyrights has consented to the assignment and license of such rights to Buyer. Supplier shall, in the course of performing its obligations vis-à-vis Buyer, only engage such third person to perform its obligations under the contract, who are holding the required official authorizations, and pay at least the applicable statutory minimum wage to their employees and, furthermore, Supplier shall indemnify and hold harmless Buyer from any obligations relating thereto.
9. Product liability, Insurance
The Supplier shall maintain business third party liability insurance, pecuniary liability insurance and extended product liability insurance with an adequate minimum insurance amount of EUR 5 million for each single occurrence of event insured. Supplier shall ensure, that possible claims are covered by the insurance until these claims are time-barred. Supplier shall submit a copy of the insurance certificate upon request of the Buyer.
Supplier shall treat the order and all work and supplies including all documentation and samples received strictly confidential. Disclosure of the fact of the existence of a business relationship shall require the prior written approval of Buyer.
11. Termination for cause
In the event of the insolvency of Supplier, the appointment of a preliminary receiver or the institution of insolvency proceedings in respect of the assets of Supplier, Buyer shall be entitled to terminate, in full or in part, the contract. In the event of termination, Buyer may, in return for reasonable remuneration, make use of existing installations of Supplier in the course of continuing any work and making use of deliveries and services effected by Supplier.
12. Choice of law, venue, language
The laws of the Federal Republic of Germany shall apply. In the event of any dispute with a Supplier being a merchant (§§ 1 to 7 HGB), venue shall be the location of the registered office of Buyer. Place of performance of all obligations under a contract is the business seat of the Buyer. Any confirmation of order, dispatch note, delivery note, invoice and any other document to be supplied by Supplier shall be in the German language, unless otherwise agreed.
If one or more provisions of these Conditions shall be determined to be invalid in whole or in part for any reason at present or in future, such invalidity shall not affect the remaining provisions of these Conditions.