General Terms and Conditions of Purchasing and Ordering
General Terms and Conditions of Purchasing and Ordering
1.1 The following General Terms and Conditions of Purchasing and Ordering of Kroha GmbH, which are based on the model terms and conditions of the Fachverband[...] Faltschachtel-Industrie e.V., are applicable to contracts with entrepreneurs, legal entities under public law and special funds under public law (hereinafter "Supplier") and thus also for all future business contracts and relationships, under which deliveries or services are rendered by the contract partner. Our General Terms and Conditions of Purchasing and Ordering shall apply exclusively. Any terms of business from the Supplier shall only be applicable subject to our express written authorization. This shall also be valid for clauses in terms of business of the Supplier, that are not contrary to our Terms and Conditions of Purchasing and Ordering. Our Terms and Conditions of Purchasing and Ordering shall apply even if we accept the delivery or service without any reservation, even if we are aware of deviating clauses of the Supplier.
1.2 Any rights that we are entitled to in accordance with statutory provisions and beyond those stated in the Terms and Conditions of Purchasing and Ordering shall remain unaffected.
1.3 We expect effective environmental management from our suppliers, with regards to energy and natural ressources.
2. Offers, Order, Modifications, Procurement risk
2.1 Supplier shall submit binding offers to us free of charge. The supplier shall treat the same as confidential.
2.2 The supplier shall be bound by his offer for a period of 12 weeks as of the date on which th offer was received.
2.3 An agreement shall be concluded only if we have confirmed an order in writing (in digital form or fax is sufficient). If we do not react to an offer of a Supplier, this shall not be deemed as our authorizationn or acceptance of the offer.
2.4 We may request changes to the delivery items even after conclusion of the contract, insofar as these are reasonable for suppliers. In the event of such an amendment the impact must be duly considered by the two partners, particularly with regard to additional or lower costs and delivery deadlines.
2.5 The Supplier assumes the procurement risk with regard to its being supplied by its own suppliers
3. Delivery or service period, delivery or service
3.1 The agreed delivery or service dates are binding Goods must arrive at the destination on the agreed date or within the agreed period. We are not obliged to accept delivery or service before the agreed date respectively before expiry of the agreed period for delivery or service. If the Supplier expects a delay of a delivery date/ date of service, it shall immediately inform us about this fact in writing, stating the reasons for the delay and indicating a new delivery date/ date of service. We are entitled to cancel the contract if we do not agree with the newly offered date or if the Supplier refuses to deliver or render services within a reasonable grace period proposed by us. If we agree with the new date proposed by the Supplier, or a grace period proposed by us is accepted by the Supplier, this shall not imply an extension of the delivery/service date or delivery/service date under the contract. Claims for damages due to late delivery or services shall remain unaffected thereby.
3.2 If the Supplier is in full or partial default of a delivery/service, we shall be entitled to avail ourselves of our statutory rights (damage compensation/cancellation of contract). We are especially entitled, after fruitless expiration of a reasonable grace period, to claim damages for non-performance in lieu of contract performance. Furthermore, we can demand from the Supplier a penalty from the occurrence of the default for the amount of 0.25% of the order price per workday, but which may not exceed 5% of the order price.
3.3 If the Supplier is in full or partial default of a delivery/service in case of successive deliveries contracts and similar agreements, we are entitled, after fruitless expiration of a reasonable grace period stipulated by us for this partial delivery, to claim damages for all pending partial deliveries/services under the contract for non-performance in lieu of contract.
3.4 We shall be relieved of our duty to accept or receive the ordered delivery/service in the event of force majeure, such as strikes, riot, civil commotion, etc. for the duration of the disruption and in the scope of their effects, Insofar this is possible, we shall provide the Supplier immediately with the required information. Upon our notification to the Supplier on the cancellation of the event, the Supplier shall immediately proceed with the delivery. We are entitled to cancel the agreement should thedelivery / service no longer be usable by us, taking account of economic aspects, owing to the delay caused by force majeure.
3.5 No delivery/service of partial quantities, higher or lower deliveries shall be allowed without our express written authorization.
3.6 Should we ask the Supplier to postpone delivery, you shall be obligated to properly store and insure the products duly packed and labelled for no longer than three months.
4. Packaging, shipment
4.1 Shipment occurs at the expense and risk of the Supplier to such address indicated in our order, unless otherwise provided.
4.2 The Supplier guarantees that all shipment and declaration requirements, as well as any export and import modalities are complied with. The Suppier shall be liable for all damages arising from the non-compliance with these regualtions and modalities.
4.3 The Supplier shall provide at its costs for a customary, appropriate, clean and durable packaging, and guarantee such a packaging in order to protect the merchandise against typical transport damages, corrosions and penetration of dirt or humidity. The Suppier shall be liable for all damages arising from the non-compliance with this provision.
4.4 Each delivery shall come attached with a delivery note, stating our order number, order date and contents.
4.5 The shipment risk for all goods deliveries shall pass in all cases on delivery of the goods, unless otherwise provided.
4.6 The obligation to take back the packaging is based on the statutory provision.
5.1 We shall only bear any insurance costs, provided this was expressly agreed by us in writing.
5.2 During the term of the whole delivery or order relationship, i.e. until the expiration of the limitation period, which may arise from the contract, the Supplier shall provide at its own cost for a civil liability insurance, also for damage in terms of product liability, including the risk of recall, at a reasonable amount for resultant personal, material and financial damage, and provide evidence of insurance, upon request. Should the Supplier not provide the corresponding insurance or refuse to provide evidence of an insurance after a reasonable grace period, we shall be entitled to cancel the contract and claim damages from the Supplier for the damages arisen.
5.3 Our claims are not restricted to the insurance amounts.
6. Prices, Payment conditions, assignment, invoice; order transfer, company modifications, production modifications; contract processing
6.1 Prices shall be in Euros, provided no other currency was agreed.
6.2 The prices of our order shall be binding The price includes delivery "ex-works" and packaging.
6.3 Invoices shall be submitted with the dispatch of the merchandise, stating the order number and order date for each order individually and in due form. VAT shall be stated individually. The invoice must clearly state the type and scope of the delivery or service.
6.4 We can pay invoices net within a period of 14 days with a discount of 3% or upon 30 days. The term starts at the date of the receipt of the invoice in due form, but at the earliest on such date the merchandise is delivered at the address stated by us, or the date of its release.
6.5 In case of faulty delivery or service or the submission of an invoice not in due form, we shall be entitled to retain our payment until the due submission/sending of the invoice, without this giving rise to any loss of discount.
6.6 Assignments are excluded without our written authorization. §354a HGB (German Commercial Code) remains unaffected. The Supplier shall be entitled to offset claims or to retention rights only if and when his counterclaims have been finally determined by a court of law, are undisputed or have been acknowledged by us.
6.7 The Supplier is not authorized without our previous written consent, to assign the order or a partial order to third parties. Should we provide such authorization, the Supplier shall still be reponsible for its obligations under the contract and be liable for third parties as it he were acting on its own
6.8 Any modification in the company group or any modification in the company shall be immediately notified to us by the Supplier.
6.9 If the Supplier intends to stop its whole production or to modify or stop the production of the merchandise under the contract, he must notify this immediately to us, provided our last order for goods was made more than 6 months ago. He shall ensure that the merchandise under the contract is deliverable within a period of at least 12 months upon its notification. 6.10If the Supplier starts working for us as a contract processor, he shall perform a goods entry check for the for the merchandise delivered to him for contract processing, whereby he shall inform us on any defects to the goods before starting the processing, and agree with us on the further procedure. If he omits to do so, he shall be liable to compensate damages. Our right for compensation to further legal claims remains unaffected.
7. Guarantee, Limitation period
7.1 The Supplier guarantees that the goods or service are free of any material or legal defects, comply with th state-of -the art technology, as well as with the relevant national and European legal provisions (specially including but not limited to the law relating to food and consumer goods), and meet the relevant legal provisions and regulations as well as guidelines of authorities and professional and trade associations, and the agreed quality and data provided in the order/task, as well as the conformity statement.
7.2 Should any deviation from the specification, the agreed quality or the data in the order be required or suit the intended use in the individual case, or should there be any objections against the type of performance desired by us, the Supplier shall notify us immediately on this fact. We shall notify the Supplier as soon as possible on the implementation of these modifications. This authorization shall not restrict the Supplier's liability. Should there be any modification of costs for the Supplier arising from the modification under the contract, both we and the Supplier shall be entitled to adapt such costs for the Supplier.
7.3 The Supplier further guarantees th suitability of the merchandise or service for the agreed or intended purpose deriving from the type of merchandise or service and that no prohibited or unvalued substances are contained in the same. For merchandise serving packaging of foodstuff, the Supplier also guarantees that the goods are suitable for the contact with foodstuff and that foodstuff shall not be negatively be affected by such a contact.
7.4 The Supplier guarantees the due labelling of the merchandise.
7.5 The Supplier shall perform the order/task in compliance with the law for technical working equipment, the machinery protection law, the labor accident prevention regulations of the relevant professional assocations, the fire prevention regulations as well as the recent versions of the DIN and VDE standard, whereby the instructions for CE-marking shall be observed.
7.6 Should the delivered merchandise/service be intended for use by us or our purchasers in countries outside of the European Union, which are recognized by the Supplier, the Supplier shall also provide the guarantees according to section 7.1 to 7.5 for such countries which are recognized by the same as buyer countries under the contract.
7.7 We are entitled to the statutory guarantee claims without any limitations. Specifically, we are entitled to require at our choice, remediation of a defect, or require a flawless article/performance of a flawless service. Should the Supplier not comply with its duty to comply with such claim within a reasonable period of grace awarded by us, we shall be entitled to demand from the supplier at our choice either to perform ourselves the required measures at the cost and risk of the Supplie or to have these performed by third parties. In urgent cases or where immediate rectification of the defect and its willingness and condition to do so, is not confirmed by the Supplier in writing and in binding form within 24 hours upon the notice of claim, we will shall the right to rectify the defects ourselves even before the termination of the grace period. We are entitled to invoice our own performance at the prices customary in the market. The statutory rights shall otherwise remain unaffected.
7.8 The Supplier shall bear all costs arising from the determination of the defect and rectification of the same, irrespective of liability, even if they are incurred by us, such as examination costs, assembly, dismounting and reassembly costs of defective parts, work and material costs as well as all transport and other costs for the exchange of defective parts.
7.9 To the extent that we are entitled to cancellation, such cancellation can - as far as the non-performance or default is limited to a part of the performance - be limited to such part of the performance without affecting the validity of the remaining contract.
7.10 Our rights to make further claims for damage compensation remains unaffected irrespective of cancellation of contract or the reduction of charges.
7.11 Warranty claims for material or legal defects expire after 36 months, provided no extension of the legal limitation period is applicable and the time limitation is not suspended The limitation term shall run upon the arrival of the defective goods or the acceptance of the service. If acceptance is delayed through no fault of the supplier, the warranty period shall be a maximum of 36months after provision of the merchandise/service for acceptance.
7.12 If the goods are procured for resale or for reuse in manufacturing machines or products, the period of limitation shall begin at the point of time at which the period of limitation starts for our goods furnished with the produce, at the latest however 6 months after delivery of the goods to our address.
7.13 In case of a replacement by the Supplier in the context of a remedial action, the limitation period for the replaced goods restarts on the date of delivery of the latter. For any subsequently improved parts, the limitation period shall recommence to run upon termination/acceptance of subsequent improvement.
8. Obligation of notice of claim
Notices of claims reaching the supplier within two weeks from goods receipt or, concerning hidden faults within two weeks from their detection, shall always be deemed as immediately within the meaning of § 377 HGB (German Code of Commercial Law). This term shall also be determined by verbal or telephone declaration.
9. Ownership reservation
A reservation of ownership with regards to the goods by the Supplier is excluded. The Supplier guarantees that the delivered merchandise is free of any ownership rights by third parties. The Supplier shall immediately, upon request, exempt us from any third party claims deriving from infringements in this regard. This also applies to attorney and court costs.
10. Property rights
10.1 The Supplier warrants that the merchandise or service are free of any third parties' property rights or intellectual property rights and that no third parties' patents, licenses, utility models, industrial design, brands, copyrights or other property rights will be infringed upon by the delivery or service.
10.2 The Supplier shall indemnify us against all corresponding third party claims arising from infringement of the rights of third parties mentioned in section 10.1, and shall bear all costs arising in this regards. This also applies to attorney and court costs.
10.3 We are entitled to obtain from authorized third parties at the Supplier's expense licenses to use the relevant delivered merchandise and services. 10.4 Our claims, resulting from the legal liability for defects shall remain unaffected.
10.5 The Supplier is not entitled to use our trade names, logos, brands, or other property rights in its own interest, or in the interest of third parties.
10.6 Such merchandise or services which are not part of the standard offer of the Supplier and which were prepared by the Supplier on the basis of our instructions or our drawings and technical specifications, may not be offered, sold, delivered or disclosed to third parties, without our previous written authorization.
10.7 The Supplier shall not offer, sell, deliver to third parties or introduce in the market, any merchandise of the Supplier's standard program, if our trade name, our logo, our brand or any other property right is visible on the same.
11. Work materials
11.1 We retain property and intellectual rights for all work materials supplied to the Supplier for the preparation of its offer or the execution of the order/task or manufactured according to our instructions
11.2 The Supplier shall not use the work materials within the meaning of section 11.1 for any other purposes than for the compliance of the order/task. The Supplier shall not disclose or provide access to the same to third parties. Should the Supplier breach this proviso, all damages shall be compensated by the Supplier.
11.3 In case of loss of work materials, within the meaning of section 11.1, the Supplier shall replace the same at its own costs and compensate for any damages.
12. Product liability
12.1 If claims are made against us because of violation of official safety precautions or because of domestic or foreign product liability regulations or laws because of the defectiveness of our product that was caused by a commodity of the supplier, we shall be entitled to demand from the Supplier at our choice either compensation for this damage or indemnity to the extent that the damage was caused by the merchandise supplied by the Supplier. Should any damages be caused due to merchandise supplied by several Suppliers, they shall be jointly and severally liable. If any damages are produced as a typical result of a defect in the merchandise supplied by the Supplier, it is assumed that damages are due to this fact. Supplier is free to prove that it is not responsible for the defect being the cause for such liability.
12.2 In the context of its liability for events of damage under section2 the supplier is also obliged pursuant to §§ 683, 670 BGB or pursuant to §§ 830, 840, 426 BGB to reimburse any possible expenses arising from or in connection with any recall action implemented by us. We shall inform the Supplier of the content and scope of the recall measures to be carried out - as far as can be reasonably expected - and give it the opportunity to comment. Further statutory claims shall thereby remain unaffected.
13. Quality insurance
13.1 The Supplier shall guarantee that it maintains, performs and documents a state-of-the-art quality assurance system according to the type and scope of the products and services, The Supplier is obliged to produce documentation of conducted tests, measurements and controls and to archive all test, measurement and control results for a term of 10 years and to ensure the traceability of such data. We are entitled at normal business hours and without prior notice to check through an audit on-site the whole quality assurance system with regards to the supplied merchandise. The Supplier shall make all documents of the quality assurance system with regards to the supplied merchandise available to us upon our request and provide us with any copies that are required.
14. REACH, Hazardous materials, Environmental protection
14.1 The Supplier guarantees that its delivery complies with the provisions of the REACH regulation in the version valid at the time. The Supplier shall also make available to us the corresponding safety data sheets for the REACH regulation with their intended use as well as all information required for the REACH regulation.
14.2 Complying with REACH regulations does not free the Supplier of the general obligation to provide us the qualified information on all modifications to the goods and substances, with the submission of the respective data in a data sheet.
14.3 For any materials (substances and preparations) and items (such as goods, parts, technical equipment, uncleaned or contaminated items in storage) which due to their nature, their properties or their condition might present a hazard [...] for human life and health, for the environment and for things and which therefore, according to the applicable regulations, require special treatment in terms of packaging, transportation, storage, handling, and waste disposal, Supplier shall submit to us, along with the offer, a completed safety data sheet in accordance with § 14 German Ordinance on Hazardous Substances - GefStoffV and an applicable accident instruction sheet (transportation).
14.4 Statutory or official regulations with regards to the environmental protection must be strictly observed in the performance of the service under the contract.
Should employees or representatives of the Supplier be working on our premises, the Supplier shall ensure their compliance with the respective applicable safety and accident prevention regulations, fire preventions regulation conforming our GMP and energy bases. If the supplier does not rectify the violation of these regulations immediately but at the latest within three days following a written notification, or if these regulations have been violated repeatedly, we shall be entitled to terminate the contract immediately for exceptional reasons. All damages and costs arising from the non-compliance of these regulations shall be reimbursed by the Suppier.
16. Deterioration of financial situation
16.1 If after the contract has been signed we become aware of facts concerning a significant deterioration of the financial situation of the Supplier or the Supplier's subsidiary (such as payment difficulties or cessation of payment, a claim to start insolvency proceedings, a claim to open insolvency) or any other of such facts become known that are capable of jeopardising our right to a counter-performance, we may demand to retain our performance until such momwnt that the counterperformance or a security is rendered by the Supplier. If within a week upon notificaiton, the full counterperformance or adequate security is not rendered by the Supplier, we shall be entitled to cancel the contract. § 323 BGB shall be applicable likewise. Our right to claim damages according to the legal provisions, remains unaffected.
16.2 In case of other reasonable grounds capable of seriously jeopardizing the continuance of a reliable contractual relationship, we shall also be entitled to cancel the contract.
17.1 The supplier is obliged to keep all confidential information in the terms of pre-contractual communications and cooperation strictly confidential and use this information for the exclusive purpose of the contractual relationship, unless the same is of public knowledge or legally required by third parties. Confidential information shall include specifically order and offer, technical data, reference quantities, products, information with regards to products and product developments, research and development projects, all company data and all work materials within the meaning of section 11.1.
17.2 Emplyees who are instructed with the preparation of the offer and/r execution of our order/our task, shall be obligated to maintain secrecy.
17.3 If the Supplier discovers that information to be kept secret has come into possession of any unauthorized third party or that a document to be kept secret is lost, the Supplier must notify us accordingly without delay.
17.4 Should the Supplier violate its obligations in sections 17.1 tot 17.3, the Supplier shall be liable for all costs and damages that arise from this violation.
17.5 The Supplier may use its business relationship in publications only with prior written consent.
17.6 The obligations in sections 17.1 to 17.5 shall also apply upon the termination of the contractual relationship for an undefined period.
18. Place of venue, jurisdiction, applicable law
18.1 Place of venue for the delivery or service is the agreed delivery site in Miesbach and Barleben. Our business office is the venue of payment for our payment obligations.
18.2 For business with companies, legal entities under public law or public-law special funds, the jurisdiction shall be our business site or, as we may choose, the business site of the Supplier.
18.3 The exclusive law of the Federal Republic of Germany, excluding the the German international private law and the UN-Convention on Contract for the International Sale of Goods (CISG). The above provision also applies to deliveries/services across national borders.