General Terms and Conditions of Purchase of Frey + Lau GmbH
1 Scope of application
1.1 These General Terms and Conditions of Purchase shall apply to all orders and contracts of Frey + Lau GmbH (hereinafter referred to as “Purchaser”) for the purchase and/or delivery of movable goods (hereinafter referred to as “Goods”), if the seller is an entrepreneur as defined in Section 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law (hereinafter referred to as “Supplier”). These General Terms and Conditions of Purchase shall also apply in particular to orders and contracts for the purchase of foodstuffs, feedstuffs, pharmaceutical and cosmetic products as well as the auxiliary and raw materials required for their manufacture and packaging which are subject to special regulatory requirements (hereinafter referred to as “Special Goods”) and to which the special contractual provisions pursuant to Clause 8 of these General Terms and Conditions of Purchase shall additionally apply.
1.2 These General Terms and Conditions of Purchase shall apply exclusively. Any terms and conditions deviating from, conflicting with, or supplementing these General Terms and Conditions of Purchase shall be excluded. General terms and conditions of sale, delivery or other terms and conditions of the Supplier shall only apply if and to the extent that the Purchaser has expressly agreed to their application in the individual case. These General Terms and Conditions of Purchase shall also apply to all future orders and contracts, even if the Purchaser does not make specific reference to them.
1.3 Any reference to an offer, a letter, an e-mail or other declarations of the Supplier which contain or refer to deviating, conflicting or supplementary terms and conditions or the unconditional acceptance of deliveries as well as their payment in knowledge of such terms and conditions shall not constitute an agreement of the Purchaser, and these General Terms and Conditions of Purchase shall apply exclusively also in such cases.
2 Conclusion of contract
2.1 Any inquiries of the Purchaser are subject to change and non-binding.
2.2 All offers made by the Supplier shall be deemed to be a binding contractual offer. Unless otherwise stated in the offer, the Purchaser is entitled to accept such a contractual offer within 10 days of receipt by placing an order.
2.3 The contract concluded with the offer of the Supplier and the order of the Purchaser reflects the agreements between the Supplier and the Purchaser in full, and any verbal agreements between the contracting parties are replaced by this contract, unless they expressly state that they continue to be binding. Supplements and amendments to the contract, including these General Terms and Conditions of Purchase, must be made in writing or text form (e.g. by letter, fax or e-mail, SMS, messenger services) in order to be effective.
3 Delivery, transfer of risk, acceptance of the Goods
3.1 Deliveries must correspond to the agreements made in terms of execution, scope, and scheduling, and must be made on time and within the agreed deadlines.
3.2 Unless expressly agreed otherwise, deliveries shall be made according to “DDP.... (named place of destination)”, Incoterms® as amended from time to time.
3.3 The Supplier must provide a certificate of origin concerning the origin of the Goods or attach a movement certificate to them if they are covered by a preferential agreement and autonomous preferential measures are taken. If an import of the Goods depends on applications, the Supplier must comply with the necessary preconditions and measures.
3.4 The Supplier bears the procurement risk with regard to self-supply by its suppliers. Any reservations of self-delivery on the part of the Supplier shall not apply.
3.5 The Supplier bears the risk of accidental loss and accidental deterioration of the Goods until they arrive at their place of destination.
3.6 Furthermore, the Purchaser is only obliged to accept deliveries if they comply with the agreed specification features or have the other guaranteed features.
4 Partial, excess, or short delivery
4.1 Partial deliveries require the prior written consent of the Purchaser. In such cases, the outstanding remaining quantity must be listed on the delivery note. If the Purchaser accepts partial deliveries without prior consent, this shall not cause any early maturity of payment obligations or constitute consent to the assumption of additional transport costs.
4.2 The Purchaser reserves the right to acknowledge excess or short deliveries in individual cases. If excess deliveries are made without prior written consent, the Purchaser shall be entitled to refuse acceptance of the excess quantity or the complete delivery. Insofar as the Purchaser cannot reasonably be expected to separate the quantities or such separation is not practically possible, the Purchaser shall be entitled to store excess deliveries at the Supplier’s expense or to return them to the Supplier at the Supplier’s expense and risk.
5 Periods, deadlines, delay in delivery
5.1 The delivery time stated by the Purchaser in the order is binding.
5.2 The receipt of the defect-free Goods at the place of destination shall be decisive for the compliance with agreed periods and dates.
5.3 As soon as the Supplier realises that it will be unable to meet agreed deadlines and dates in full or in part, it shall inform the Purchaser thereof, stating the reasons and the expected duration of the delay. Such notifications shall not affect the rights and claims to which the Purchaser is entitled in the event of a delay.
5.4 If the Supplier is in default, the Purchaser may - in addition to further statutory claims - demand a lump-sum compensation for the damage caused by the delay in the amount of 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the Goods the delivery of which has been delayed. The Purchaser reserves the right to prove that a higher damage has occurred. The Supplier reserves the right to prove that no damage at all or only a significantly lower damage has occurred.
6 Prices, packaging, shipping
6.1 Agreed prices are fixed prices and exclude subsequent claims by the Supplier. Unless expressly agreed otherwise, the costs for packaging and transport to the place of destination are included in the prices.
6.2 The Goods must be transported in such a way as to avoid damage or spoilage in transit. Public law regulations or individual agreements on shipping, e.g. for the transport of temperature-controlled Goods, must be complied with.
6.3 If Goods to be delivered must be marked or packaged in accordance with special national or international shipping regulations, the Supplier shall do so even in the absence of an express request.
6.4 Order numbers communicated to the Supplier, the designated recipients, article description and number as well as the correct place of receipt of the Goods must be stated in all shipping documents.
7 Invoice, payment, rights of set-off, and retention
7.1 Invoices must be submitted in a form that is suitable to being audited, containing all mandatory details required by applicable law after complete delivery free of defects and submission of documents for each order. Invoices may be rejected if they are not suitable to being audited.
7.2 Unless otherwise agreed in writing, payments shall be made within 14 days with a 3% discount or within 30 days net. The payment and discount period runs from receipt of the invoice, but not before the contract has been fulfilled without defects. Payment shall be deemed to have been made when the Purchaser has instructed the bank to make the payment on the last day of the period.
7.3 The Purchaser does not owe any interest on the due date. The statutory provisions shall apply to payment defaults.
7.4 The Purchaser shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law. In particular, the Purchaser shall be entitled to withhold payments due as long as the Purchaser is still entitled to claims against the Supplier arising from incomplete or defective performance. The Supplier shall have a right of set-off or retention only in respect of counterclaims which have been legally established or are undisputed.
8 Additional performance, control, and due diligence obligations for Special Goods
In the case of the sale and delivery of Special Goods, the Supplier must also observe and comply with the special obligations listed below:
8.1 The Supplier of Special Goods is obliged to comply with the relevant national and international legal provisions (in particular - insofar as relevant - the provisions of food law, consumer goods law, pharmaceutical and medicinal product law, cosmetics law and feed law). This obligation also extends to sub-legislative guidelines and directives which reflect the prevailing view of the market.
8.2 In order to maintain perfect quality, the relevant legal regulations must be complied with for Special Goods throughout the entire product cycle (in particular, at the place of manufacture, at the place of storage and at the place of delivery). Upon request, the Supplier shall provide the Purchaser with evidence of its checks regarding the compliance with these regulations.
8.3 Documentation regarding the ongoing monitoring of the Supplier’s production and the inspection of Special Goods produced within the framework of the legal requirements shall be submitted to the Purchaser upon request. These documents must be kept by the Supplier for at least 10 years from the date of delivery of the relevant Special Goods.
8.4 The Supplier grants the Purchaser the right, after prior notification and during normal business hours, to inspect compliance with the regulations relevant to the Special Goods at its premises and to refuse acceptance of deliveries if quality defects are discovered in the process.
8.5 If required by law, the Supplier shall ensure the traceability of delivered Special Goods back to their origin within 48 hours so that necessary measures can be taken in justified cases, in particular in the event of danger to life and limb emanating from the Goods. When selecting its upstream suppliers, the Supplier shall also ensure that traceability of the Special Goods is guaranteed.
8.6 The Supplier must inform the Purchaser when submitting the offer if it offers Special Goods which it produces in a country other than that of its place of business or which it obtains from another country. The purchase of the Special Goods from a country other than the country of origin must be approved in advance by the Purchaser.
8.7 The Supplier may only entrust third parties with the performance of assumed manufacturing and delivery obligations in respect of Special Goods or a substantial part thereof with the prior written consent of the Purchaser.
8.8 Unless expressly agreed otherwise, individual deliveries of Special Goods may only be made from one batch.
9.1 The Supplier must provide defect-free deliveries. The Supplier is obliged to deliver the Goods in accordance with the samples, type samples, batch or lot samples, raw material specifications, product, or other specifications on which the contract is based. The relevant statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title, unless otherwise stipulated below.
9.2 Insofar as Regulation (EC) 1907/2006 (REACH Regulation) applies to the deliveries of goods or components of goods and insofar as not expressly agreed otherwise, the respective substances must be registered or authorised in advance.
9.3 The Purchaser’s commercial obligation to examine the Goods is limited to defects which become apparent during an incoming goods inspection in the course of an external examination, including the delivery documents (e.g. transport damage, short delivery), or which are recognisable during a quality control via a random sampling procedure. Moreover, it depends on the extent to which an investigation is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The Purchaser’s obligation to give notice of defects discovered later remains unaffected. Notwithstanding the Purchaser’s duty to inspect, a notice of defect by the Purchaser shall in any case be deemed to have been sent without undue delay and in good time if it is sent within three working days of discovery or, in the case of obvious defects, of the arrival of the goods at the Purchaser’s premises.
9.4 Limitations or exclusions of liability by the Supplier are not accepted. In the event of defects and in the event of a warranty claim, the Purchaser shall be entitled to the statutory rights in respect of defects. Insofar as individual warranty claims, e.g. on the basis of an assumed durability guarantee, go beyond the statutory defect-related rights, these shall remain unaffected.
9.5 A period of 36 months shall apply in each case to defect-related claims subject to the statute of limitations, beginning with the arrival of the Goods at the place of destination. Any longer statutory limitation periods for the limitation of defect-related claims as well as the course of the statutory limitation period for guarantees shall remain unaffected.
9.6 If a defect becomes apparent within the limitation period, the Purchaser shall be entitled, at its own discretion, to demand subsequent performance by way of repair, subsequent delivery, or new manufacture within a reasonable period of time. If the Supplier does not fulfil its obligation to remedy the defect within the set period, the Purchaser may remedy the defect itself and demand compensation from the Supplier for any expenses borne or a corresponding advance payment. In the event of defective packaging or incorrect declaration of the Goods, the expenses to be reimbursed to the Purchaser shall also include the costs incurred by the Purchaser as a result of this (e.g. for repackaging or new packaging). In urgent cases, if the Supplier could not be reached and there is a risk of disproportionately high damages, the Purchaser has the right to carry out the supplementary performance at the expense and risk of the Supplier or to have it carried out by third parties. The Purchaser shall inform the Supplier of such measures without delay.
9.7 Furthermore, in the event of a material defect or defect of title of the Goods, the Purchaser may reduce the purchase price, withdraw from the contract, and claim damages or the reimbursement of futile expenses in accordance with the statutory provisions.
10 Supplier recourse
10.1 The legally determined recourse claims within a supply chain (supplier recourse according to Sections 445a, 445b, 478 BGB) are available to the Purchaser without restriction in addition to the defect-related claims. In particular, the Purchaser shall be entitled to demand from the Supplier exactly the type of subsequent performance (repair or replacement delivery) which the Purchaser owes to its customer in the individual case. The statutory right of choice of the Purchaser (Section 439 para. 1 BGB) shall remain unaffected.
10.2 Before the Purchaser acknowledges or fulfils a defect-related claim asserted by its customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and (3) BGB), the Purchaser shall notify the Supplier and request a written statement, briefly setting out the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is brought about, the defected-related claim actually accepted by the Purchaser shall be deemed to be owed to its customer. In this case, the Supplier bears the burden of proof to provide evidence to the contrary.
10.3 The Purchaser’s claims from supplier recourse shall also apply if the defective Goods have been further processed by the Purchaser or another entrepreneur.
11 Third-party property rights, ownership
11.1 The Supplier shall ensure that the Purchaser does not infringe the industrial property rights of third parties, in particular recipes and manufacturing processes, by using or selling the Goods in accordance with the contract. The Supplier shall indemnify the Purchaser against all claims made against the Purchaser for infringement of an industrial property right and shall bear the costs of protecting the rights if the claims are based on a breach of duty due to the Supplier’s fault. In the event of a claim being raised the Purchaser shall inform the Supplier immediately.
11.2 The Purchaser objects to retention of title regulations of the Supplier, insofar as these go beyond a simple retention of title. Those regulations require a prior written agreement in individual cases. Should it nevertheless come about that sub-suppliers assert property rights, co-ownership rights or liens against the Purchaser or have compulsory enforcement measures carried out, the Purchaser will raise a claim against the Supplier for all damages resulting from this.
12 Product and manufacturer liability, insurance
12.1 The non-contractual product and manufacturer liability of the Supplier shall be governed by the statutory provisions. The Supplier shall indemnify the Purchaser against all claims arising from product and manufacturer liability if these are attributable to a defect in the Goods supplied by it, the cause of which lies within its sphere of control or organisation and it itself is liable in relation to third parties. Under the same conditions, the Supplier shall also be liable for damages incurred by the Purchaser in such cases as a result of reasonable and necessary precautionary measures, e.g. public warnings or recalls. The Purchaser’s right to assert its own claim for damages against the Supplier remains unaffected by this.
12.2 Within the scope of its indemnification obligation, the Supplier shall reimburse expenses pursuant to Sections 683, 670 BGB arising from or in connection with a third party claim, including recall actions carried out by the Purchaser. The Purchaser shall inform the Supplier of the content and scope of recall measures - insofar as this is possible and reasonable - and give the Supplier the opportunity to comment. Further legal claims remain unaffected.
12.3 The Supplier undertakes to insure corresponding risks to an appropriate amount, to maintain the insurance cover at least for the term of the business relationship with the Purchaser, and to prove this to the Purchaser on request by presenting its insurance policy.
13.1 Documents and samples made available to the Supplier by the Purchaser are to be treated as confidential and may not be made available to third parties or otherwise used without prior written consent. The Purchaser reserves the right to demand the return of these documents at any time if the Supplier violates such obligations or if current contracts have been settled. The Purchaser reserves the right to withdraw from current contracts for cause in the event of a violation, as well as the right to file criminal charges, in order to initiate criminal prosecution measures.
13.2 The Supplier is obliged to keep confidential all operational data and information of which it becomes aware in connection with the business relationship with the Purchaser, including information about customers of the Purchaser, and to oblige its employees and other vicarious agents accordingly. This does not apply to data that is generally accessible to the public.
14 Foreign trade law
14.1 The Supplier shall comply with all requirements of applicable national and international customs, export control and other foreign trade law (hereinafter jointly referred to as „Foreign Trade Law“) and observe the relevant provisions, irrespective of whether it acts as importer or customs declarant. In particular,it shall also comply with and observe provisions on embargoes and sanctions of the European Union.
14.2The Supplier shall provide the Purchaser, no later than one week after the conclusion of the contract pursuant to Clause 2 – and without undue delay in case of changes – with all information and data required by the Purchaser to comply with Foreign Trade Law in case of export, import or reimport, in particular: the customs tariff number and the statistical commodity code according to the current Harmonized System; the country of origin (non-preferential origin); and a confirmation that no prohibitions and restrictions apply to the import of the Goods into the European Union.
15 Place of performance, choice of law, place of jurisdiction
15.1 Unless expressly agreed otherwise, the place of destination is the place of performance.
15.2 These General Terms and Conditions of Purchase and all contracts between the Supplier and the Purchaser shall be governed by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) is excluded.
15.3 The exclusive place of jurisdiction for all disputes arising from or in connection with the contract is Hamburg. This shall also apply if the Supplier does not have a general place of jurisdiction in the Federal Republic of Germany or has moved his usual place of residence abroad after conclusion of the contract. However, the Purchaser may sue the Supplier at any other legal place of jurisdiction.
Status December 2022