General Terms and Conditions of Purchase (Packaging Materials/Technical Procurement) of Hälssen & Lyon GmbH / as of: May 2014
1. General provisions
1.1 The following general terms and conditions of purchase (subsequently referred to as "General Terms of Purchase") apply to the entire business relationship with our business partners (subsequently referred to as "Suppliers"). We do not accept any deviating, conflicting or additional general terms and conditions of business and delivery provided by the Supplier, in particular not by silence or unconditional contract performance.
1.2 Our General Terms of Purchase shall apply only if the Supplier is an entrepreneur (Section14 German Civil Code (BGB)), a corporate body under public law or a special asset under public law. The General Terms of Purchase in the latest version in effect at any time shall also govern all future contracts with the same Supplier without us having to expressly refer to them in each individual case. We shall inform the Supplier promptly of any modifications to our General Terms of Purchase.
1.3 Individual agreements with the Supplier (including subsidiary agreements, additional agreements and modifications) take precedence over these General Terms of Purchase. The content of such agreements requires our written confirmation.
1.4 Statements and notifications which are relevant in law and which the Supplier has to submit to us after conclusion of the contract (such as deadlines, notices of defects, letters of resignation or reductions) require the written form to be effective.
2. Contract Conclusion
2.1 The Supplier shall promptly confirm our orders in writing or fulfill them without reservation - particularly by delivering the products. By confirming the order and/or making the delivery, the Supplier agrees to our General Terms of Purchase.
2.2 The delivery shall be governed by the product and quality specifications and quantities specified in our order. Excess deliveries shall be accepted as is customary in the trade and commensurate with the order volume. Other differences from the order shall be considered a new offer and require our acceptance. The Supplier may not make, in particular, partial deliveries without our prior written consent.
3.1 Unless agreed otherwise, the delivery shall be made "delivered duty paid" (DDP, Incoterms 2010) to the location specified in the order.
3.2 Unless agreed otherwise, the hours of delivery are as follows: Monday, Wednesday, Thursday 06:00 a.m.- 02:45 p.m. Deliveries outside of these hours of delivery have to be coordinated with the buyer in charge.
3.3 Order number(s), article number(s), lot number (s), quantities and other notations required in the order have to be listed in all accompanying documents such as dispatch notes, waybills, delivery notes and package labels in accordance with the labeling of the individual products.
3.4 Fulfillment of an order or significant parts thereof by third parties requires our prior written consent.
4. Delivery Date, Default in Delivery
4.1 The delivery dates specified in the order are binding. If the order does not list a delivery date and a delivery date has not been agreed on otherwise, the products shall be delivered without undue delay. The Supplier is obligated to notify us promptly in writing of existing or anticipated circumstances which make it impossible to keep delivery dates.
4.2 If the Supplier fails to perform its service or fails to perform it within the agreed delivery time, we shall have unrestricted recourse to legal rights.
4.3 If the Supplier is in default, we may – in addition to further legal claims, if applicable – require liquidated damages for the delay amounting to 1% of the net price per completed calendar week, however, not to exceed a total of 5% of the net price of the products delivered late. We reserve the right to provide evidence that we sustained higher damages. The Supplier reserves the right to provide evidence that we sustained no or considerably smaller damages.
5. Transfer of Risk, Default in Acceptance
5.1 The risk of accidental loss and accidental deterioration shall be transferred to us upon delivery at the destination. If an acceptance has been specified, it shall be required for a transfer of risk.
5.2 The same consequences arise with regard to transfer or acceptance if we are in default in accepting delivery. A default in accepting delivery on our part is subject to the statutory regulations.
6. Other Requirements
6.1 General Requirements (a) The Supplier shall warrant that the delivered products are unconditionally marketable and useable and fit for the specified or customary intended use and comply with the specifications listed in the order and applicable provisions - including, without limitation, EU regulations, German laws and regulations and, if applicable, BfR [German Federal Institute for Risk Assessment] recommendations and resolutions of the European Council. The regulations to be observed include, without limitation and not conclusively, EC Reg. No. 852/2004, EC Reg. No. 1935/2004, EC Reg. No. 2023/2006, EC Reg. No. 10/2011, the LFBG, [German Food, Consumer Goods and Feed Law], BedGgstV [German Consumer Goods Regulation], VerpackV [German Packaging Regulation], BfR recommendation XXXVI - Paper, Cardboard & Paperboard and BFR recommendation XXXVI/1 - Cooking Papers, Hot Filter Papers and Filter Layers - in their version in effect at the time. The Supplier shall warrant in particular that the delivered products will have no detrimental effects on other products they will come in contact with if used as intended. (b) The Supplier is obligated to make available to us promptly and without charge proofs, certificates and other documents necessary for selling the products, such as, for instance, clearance certificates, certificates of origin, certificates of conformity, etc.
6.2 Traceability The Supplier shall warrant the consistent and complete traceability of the delivered products and the substances, objects and raw (materials) used for production in accordance with applicable legal requirements. The Supplier is obligated to promptly provide us with the necessary tracing information upon request if there is an objection by authorities and/or a customer complaint.
6.3 Hygiene The Supplier is responsible for ensuring that all production, processing and distribution steps regarding the delivered products comply with the provisions of EC Reg. 852/2004, the HACCP guidelines and comparable hygiene regulations (such as Codex Alimentarius, IFS Food (International Featured Standard Food), BRC (Global Standard for Food Safety)) as well as the Guidelines for Good Manufacturing Practices.
6.4 Transport, Packaging, Labeling
(a) All shipments shall be labeled, packaged and transported in accordance with legal requirements and the specifications listed in the order and in these General Terms of Purchase.
(b) Unless agreed otherwise, labeling shall include the following on the smallest packaging unit in addition to the legally required information:
- Order number
- Article number
- Lot number
- Quantity (number of units or running meter)
For rolls of material, the core as well as the outer winding of the individual role shall be labeled accordingly. Pallets have to be labeled, once each edgewise and crosswise, as a minimum. The labeling must be clearly visible. Any changes to the labeling require our prior written consent.
(c) All shipments shall be packaged and secured for transport in such a manner as to prevent damage, moisture penetration or contamination with foreign matter.
(d) Pallets used for transport shall be clean, dry and without defects. Only euro-pallets that are as good as new shall be traded; euro-pallets that can no longer be traded shall be billed to the Supplier at replacement cost value.
6.5 Quality Assurance
(a) The Supplier warrants that consistent checks will be performed – including incoming goods inspections of the substances, objects and (raw) materials used for manufacturing the products – to ensure compliance with legal requirements and the criteria specified in these General Terms of Purchase and, if applicable, the order, particularly with regard to (food grade) compliance and hygiene.
(b) The Supplier shall permit us or persons authorized by us to enter, after prior agreement, Supplier's operating and business facilities and perform an audit during customary operating and working hours.
7. Pricing and Payment Terms
7.1 The price listed in the order is binding. All prices shall include VAT.
7.2 Unless explicitly agreed otherwise, the prices are "free delivered" and include all of Supplier's performances and ancillary services as well as all incidental costs such as packaging, transport (including transport insurance), customs duties, fees and other public charges and levies). At our request, the Supplier shall take back transport packaging at its expense.
7.3 The occurrence of our default shall be determined by the applicable statutory provisions.
7.4 The default interest rate is five percentage points above the base rate of interest. We shall not owe interest payable from the due date [Fälligkeitszinsen].
7.5 We are entitled to offset rights and rights of retention to the extent allowed by law.
7.6 The Supplier shall have offset or retention rights only in case of counterclaims which are undisputed or have been confirmed by a final court judgment.
8. Protection of Property; Non-disclosure
8.1 Extended or prolonged reservation of title by the Supplier is not permitted.
8.2 We reserve property rights and copyrights to orders placed by us and their terms and conditions as well as descriptions, plans, calculations, pictures, implementation guides and other information ("Documents"). Such Documents shall be used exclusively for the services under this contract and shall be returned to us after completion of the contract; copies made by the Supplier shall be destroyed in this case, unless there are legal obligations to retain them. The Documents shall be kept confidential from third parties, also after termination of the contract. The confidentiality obligation expires only if and to the extent the know-how contained in the Documents provided has become public knowledge.
8.3 The aforementioned provision applies likewise to substances and materials as well as templates, patterns and other items we provide for the Supplier ("Provided Items").
8.4 Processing, blending or combining (further processing) of Provided Items shall be performed by the Supplier for us. The same applies to the further processing of delivered products by us, so that we are considered the manufacturer and obtain ownership of the product no later than upon further processing in accordance with statutory regulations.
9. Rights of Third Parties
The Supplier warrants that the delivered products are free of third-party rights and that no rights – including intellectual property rights – of third parties are infringed by the delivery. The Supplier shall hold us harmless from and against any claims of third parties because of such an infringement.
10. Defective Deliveries
10.1 The statutory regulations shall apply to our commercial duty to examine and object to defects with the following proviso: Our duty to examine is limited to defects which become clearly evident during our incoming goods inspection upon external examination including the shipping documents and during our quality and quantity control in the form of sampling. This does not affect the duty to object to defects discovered later. In all cases, our objection shall be considered prompt and timely if it is received by the Supplier within 10 calendar days.
10.2 We shall be entitled, without limitation, to statutory warranty claims and rights of recourse within the supply chain (supplier's recourse); however, notwithstanding the foregoing, the warranty period shall be 36 months. According to statutory regulations, the Supplier shall be liable for ensuring, in particular, that the products, upon transfer of risk, have the qualities agreed upon; in any event, the requirements specified in the order and under clause 6 of these General Terms of Purchase shall constitute the agreement on qualities.
10.3 Neither the approval of samples nor acceptance or payment of the invoice shall constitute a waiver of warranty rights.
11.1 The contractual and non-contractual liability of the Supplier shall be governed by statutory regulations. We do not recognize limitations of liability.
11.2 The Supplier shall be responsible for all claims by third-parties related to personal injury or property damage which is attributable to a defective product delivered by the Supplier, and shall hold us harmless from and against any liability resulting therefrom. If we are obligated to perform a product recall because of a defect in one of the products delivered by the Supplier, the Supplier shall bear all costs related to the product recall.
11.3 The Supplier is obligated to take out, at its own expense, product liability insurance with at least EUR 5 million coverage per personal injury/property damage incident and shall send us, upon request, a copy of the liability insurance policy at any time.
12. Jurisdiction and Applicable Law
12.1 The exclusive – and international – place of jurisdiction for all disputes arising from these General Terms of Purchase and the contractual relationship between the Parties shall be Hamburg. We are, however, also entitled to commence legal action at the Supplier's general place of jurisdiction.
12.2 These General Terms of Purchase and all legal relations between the Parties shall be governed by the laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG).