- The following General Terms and Conditions of Purchase (hereinafter called "GTCs-Purchase") apply exclusively to entrepreneurs as defined in § 14 Civil Code (BGB), legal persons under public law or special assets under public law (hereinafter called "Supplier").
- Our GTCs-Purchase apply exclusively; we do not accept any Supplier terms and conditions varying from our GTCs-Purchase, except if we expressly agree to them in writing. Our GTCs-Purchase also apply if we accept the Supplier's delivery without reservations even if we are aware of Supplier terms and conditions varying from or contrary to our GTCs-Purchase.
- The following GTCs-Purchase apply to all deliveries and services, unless agreed otherwise.
- All agreements concluded between us and the Supplier for the purpose of performing this contract shall be included in a contract in writing.
- The following GTCs-Purchase apply to permanent business relationships between us and the Supplier, even without any further explicit reference to future orders.
Offer, order, contract conclusion, call orders
- The creation of orders and cost estimates by the Supplier shall be free-of-charge and non-binding for us.
- Offers to us must contain all the relevant information that are needed to assess the quality and price.
- Delivery contracts (order and acceptance) as well as call orders and additions to them must be in writing; verbal orders and orders placed by phone require our written confirmation to be legally binding; this also applies in case of subsequent changes to already confirmed orders.
- If the order or the call order is not confirmed by the Supplier within 3 working days of it being received, we are authorised to revoke the order without giving rise to any claims on the part of the Supplier.
- A confirmation by the Supplier deviating from our order constitutes a new offer which requires our renewed written consent.
- We may demand changes from the Supplier to the contractual objects in terms of quality and quantity to the extent that this is reasonable. In this context, any consequences, particularly regarding an increase or reduction in the costs or a change to the delivery deadlines, must be agreed appropriately and unanimously.
- We reserve the rights of ownership and copyright to any documents handed over to the Supplier; these must not be made available to third parties without our explicit written consent. They must be used exclusively for the delivery based on our order. They must be kept secret from third parties; in this respect, they apply in addition to the provisions in § 11.
- The order by us is based on the respective agreed specifications for the goods. In particular, the properties of the goods are deemed to have been agreed in accordance with our approvals of any samples, templates, descriptions or other examples of goods supplied to us in advance and in accordance with those specifications and product descriptions which form part of the contract - e,g, by being described or referred to in our order.
Prices and terms of payment
- The price shown in the order is binding and includes all services and ancillary services of the Supplier as well as all ancillary costs. In the absence of any written agreement to the contrary, the price shall be a "door delivery" including packaging.
- We are only able to process invoices that state the order and item number shown in our order - in line with the requirements in our order; the Supplier bears responsibility for any consequences of non-compliance with this obligation, unless it can provide evidence that it is not responsible.
- Unless agreed otherwise in writing, we shall pay the purchase price less a 3% discount within 14 days from delivery and receipt of a proper invoice or net within 30 days of receiving the invoice.
- The invoice must be addressed to our printed address. It must not be sent with a delivery.
- We are entitled to any rights of set-off or retention as well as objection for unperformed contracts to the full extent of the law. In particular, we are entitled to retain any due payments, for as long as we still have claims relating to incomplete or defective services against the Supplier.
- We reserve the right to choose the method of payment. In case of payment by cheque or bank transfer, the legality of the payment depends entirely on whether the cheque or transfer order is received by the recipient or the bank by the payment deadline.
- Any Supplier invoices deviating from the delivery or service are only deemed to have been received by us at the time that we receive the correction as a proper invoice.
- Payments by us do not signify an acceptance of the delivery or service as compliant with the contract.
- We do not owe default interest. The legal provisions shall apply to payment default.
- The delivery time shown in the order shall be binding. Compliance with the delivery deadline shall be determined based on receipt of the delivery at our factory.
- Early deliveries shall only be accepted after prior written agreement.
- The Supplier undertakes to inform us immediately in writing if circumstances occur or he becomes aware of circumstances, which might result in these delivery times not being met.
- The Supplier is only permitted to make greater or smaller deliveries, or partial deliveries, after prior written release by us.
- If it is not possible for the Supplier to meet the agreed deadline for reasons for which it is responsible, we are authorised, any further legal provisions notwithstanding, at our option to withdraw from the contract after an appropriate period of grace, find a replacement by a third party and/or demand damages due to non-performance. We have a claim to reimbursement of all additional costs incurred by us due to delayed deliveries by the Supplier. Acceptance of delayed deliveries does not constitute a waiver of any claims for reimbursement.
- If the Supplier fails to meet the agreed delivery deadline, we are also authorised to demand a contractual penalty of 1% for every commenced calendar week of the delivery delay, however up to a maximum of 5% of the order value. The forfeiture of the contractual penalty does not exclude the right to assert any further claims alongside set-off of the contractual penalty. If we accept the goods or service in spite of the delay, we can demand the contractual penalty without having reserved this right at the time of acceptance. The Supplier bears the burden of proof for any lower damage or for no damage.
- We reserve the right to amend the volume of placed orders for operating reasons or to order the temporary suspension of planned deliveries.
- If a delivery takes place earlier than agreed, we are authorised to refuse the service or goods and return them to the Supplier at the latter's expense and risk. If we do not choose to return them, the goods will be stored on our premises at the Supplier's expense and risk. The agreed delivery deadline will be material for the payment.
Delivery, transfer of risk, transfer of ownership, acceptance of the goods and documentation
- The goods are transported at the expense and risk of the Supplier, DPU (Delivery Agreed Place Unloaded). If a delivery charge is agreed in exceptional circumstances, we only accept the cheapest delivery charge, except where we have specified a specific type of delivery.
- Deliveries must be carried out with the delivery company specified by us, unless, in exceptional cases, deliveries other than Free Carrier (FCA) is agreed.
- Independently of the costs, the risk shall only pass to us after the delivery and acceptance of the goods or service at the agreed delivery destination.
- With the transfer of risk, the ownership of the goods shall pass to us. The goods are transferred unconditionally and without consideration of payment of the respective fee. We do not recognise any right on the party of the Supplier to retain ownership, particularly any extended right, forwarded right or prolonged right for further processing.
- The Supplier is obligated to include a delivery note with the delivery. Moreover, the Supplier is obligated to quote our order number, item number, item description, delivery volume, delivery deadline and delivery address on all delivery papers, order confirmations, invoices etc. The delivery documents must be handed over to our Goods Receipt team. If the Supplier fails to do so, we shall not be responsible for any delays in processing that may result.
- The goods shall be accepted, subject to any agreements to the contrary between the Parties, during our regular business hours (Monday to Friday, between 7AM and 12 midday and between 1PM and 5PM, with the exception of public bank holidays in Baden-Württemberg).
- We shall not be in default of acceptance due to any delays that may arise, particularly standing and waiting times for which we are not responsible.
Transfer of rights
The contract concluded with us must not be transferred to third parties in whole or in part without our written approval. Claims against us may only be transferred with our written approval. This does not apply to the extent that the legal transaction on which the claim is based is a commercial transaction for both Parties or if the Supplier is a legal person under public law or special assets under public law.
Food law, packaging
- The Supplier must adhere to all recognised technological standards and applicable statutory and official regulations, particularly the guidelines in the German Codex Alimentarius as well as the provisions "Good Manufacturing Practice" (GMP).
- The goods to be delivered must meet our specific requirements and guidelines and the agreed specifications in all aspects. Irrespective of our ingredient and product specifications and of any other specially agreed provisions, any foodstuffs must in their composition, quality and declaration comply with the provisions of food law applicable in Germany and must be safe. In particular, the Supplier guarantees that the goods are free from genetically manipulated foodstuffs and feed as defined in the Regulations (EC) No. 1829/2003 and (EC) No. 1830/2003. The packaging materials and transport materials used for ordered goods must be non-hazardous to health, and must comply with the requirements of the state of the art, the applicable legal provisions and the recommendations of the relevant authorities.
- The documentation for the Supplier's ongoing production monitoring in the context of the duty of diligence prescribed by food law as well as the monitoring of the produced goods by its own laboratories and/or by certified commercial chemists must be sent to us immediately upon request. This must be kept by the Supplier for at least 3 years from the best before date of the corresponding products.
- In order to ensure food safety, the Supplier is obligated to maintain a certified quality management system, which complies with the GFSI Global Food Safety Initiative Standard. The certificates presented to us shall be a component as well as the foundation of this agreement. The Supplier is obligated to notify us immediately in advance if the certification is due to expire or has not been renewed. If the certificate expires during contract term, we are authorised to withdraw from the contract without a notice period.
- Where Euro pallets are delivered, it must be ensured that only flawless, exchangeable Euro pallets are used. If we identify when using the goods that non-exchangeable pallets were used, we are authorised to charge the re-procurement value to the Supplier.
- The Supplier agrees to impose the same obligations pursuant to clauses (1) to (5) above onto its own suppliers.
- The quality assurance provisions in § 8 shall not be affected by the provisions in this § 7.
Warranty for material defects, incoming goods checks, quality assurance and complaints
- The legal provisions regarding material defects shall apply, unless specified differently below.
- The Supplier warrants that the delivered goods are free of defects, and particularly that they are of the contractually agreed quality and quantity, that they meet the specifications demanded by us and that they comply with the quality and safety standards required at the time of the delivery. Any changes must be approved by us before the goods are delivered.
- Our duty to inspect the goods shall be limited to defects which are clearly apparent from external inspection during the incoming goods checks, including of the delivery documents, as well as our quality control based on sampling (e.g. transport damage, incorrect or insufficient deliveries). We shall report such apparent delivery defects as well as any hidden defects to the Supplier immediately upon discovery in accordance with the circumstances of ordinary business operations. In this regard, the Supplier shall waive any objections to a delayed defect report.
- The values determined by our incoming goods checks shall be relevant in relation to the item numbers, weights and measurements.
- The Supplier is obligated to perform quality checks during production and to implement outgoing goods checks. It must extensively check the quality of its delivery.
- The Supplier must implement quality assurance in accordance with the latest state of the art which is appropriate for the type and scope and must provide us with evidence of this upon request. The Supplier shall conclude a corresponding quality assurance agreement with us, if we consider this to be necessary. The Supplier shall compile appropriate monitoring and test reports for the service production and shall keep these documents for a period of 3 (three) years from the expiry of the best before date of the corresponding goods, unless we stipulate a different procedure; it shall make these documents available to us upon request. The Supplier shall grant us access to its operating premising in the required extent and following prior consultation for the purpose of a quality audit (§ 9).
- We shall generally have the right to choose the type of supplementary performance. The Supplier shall have the right to refuse the type of supplementary performance chosen by us under the conditions set out in § 439 para. 3 BGB.
- If the Supplier does not meet the request for a rectification of the defect or a replacement delivery immediately, however at the latest within 7 working days, or if it is unable to perform these, we shall be authorised to withdraw from the contract and/or demand compensation in place of performance, as well as to send back the goods at the Supplier's risk and expense and obtain stock from elsewhere. The resulting costs shall be borne by the Supplier.
- In urgent cases, if the immediate rectification of the defect is justified due to a special interest on our part or if there are concerns that the rectification of the defect by the Supplier might result in delays that would make it difficult for us to meet our obligations towards our contract partners, or if the rectification of the defect by the Supplier would incur higher costs than the rectification of the defect by us, we shall be authorised to perform the required rectification of the defect or the supplementary performance of the defective delivery or service to the required extent ourselves or arrange for third parties to do so at the Supplier's expense without prior notification (self-help). In such cases, we shall be authorised to procure defect-free goods or services from third parties (replacement purchase). The Supplier shall bear the costs incurred for the self-help or the replacement purchase.
- We may return any goods not delivered in accordance with the contract at the Supplier's risk and expense.
- If a delivery defect is only identified after the goods supplied by the Supplier have been processed further or delivered elsewhere, the Supplier is obligated to bear any costs required for and related to the replacement or remediation of the defective goods, particularly audit, transport, travel, work and material costs.
- In the event of an inability to pay, suspected inability to pay or insolvency on the part of the Supplier, we shall be authorised to retain an appropriate security, however at least 10% of the agreed price, until the end of the limitation period for warranty claims.
- The Supplier shall transfer its warranty entitlements in relation to its own suppliers to us. We are authorised to disclose this transfer in the event of the Supplier's insolvency. Moreover, we are authorised to withdraw from any orders pertaining to the scope of delivery still remaining unfulfilled at this time.
- The Supplier shall indemnify us from any and all third-party claims which are based on a defect within the Supplier's scope of performance. The Supplier shall accept any and all costs arising from the defect, including any recall costs.
- To the extent that the delivered goods are to be processed into an end product to be sold to a consumer, we shall be entitled to a recourse claim against the Supplier in the event of a claim being asserted by its buyers pursuant to §§ 478, 479 BGB.
- The limitation period is 36 months from the transfer of risk, except where the mandatory provisions of §§ 478, 479, 634a BGB apply. In the event of replacement deliveries, the liability period for material defects shall recommence for every replaced part.
- We are authorised at any time to demand samples or templates from the Supplier at its own expense, particularly in relation to foodstuffs and packaging. We or our commissioned third-party experts are further authorised at any time to check compliance with the contractually agreed or legally stipulated quality and safety requirements based on an operating audit on the Supplier's premises. We are permitted to check the raw materials, auxiliary supplies and packaging materials stored on the Supplier's premises as well as monitor the manufacturing processes, take samples and inspect the production, quality and monitoring records relating to the goods to be supplied during the regular business hours of the Supplier and those of the latter's own suppliers. The investigations performed in this regard exclusively serve the purpose of orientation and do not constitute a forestalling of the incoming goods check. As a result, any defects identified during the course of the incoming goods check can be asserted to their full extent.
- If the operating audit reveals that the Supplier does not meet the requirements listed in § 9 para. (1), then, following the unsuccessful passing of an appropriate period of grace to enable the Supplier to rectify the complaints, we shall be authorised to withdraw from the contract. This shall not affect the right to terminate these contracts for good cause, e.g. if product and work safety is put at risk.
Liability, product liability, indemnification, liability insurance requirement
- The Supplier shall be liable to us in accordance with the legal provisions.
- If third parties assert claims for damages against us due to a product defect under the Product Liability Act or under other regulations, the Supplier shall indemnify us from the claims for damages when first requested to do so, including in relation to damages from a required recall, if and to the extent that the defect is due to a defect in the goods supplied by the Supplier. If the cause of the defect lies with the Supplier, the latter shall bear the burden of proof. In such cases, the Supplier shall accept all costs and expenses, including any legal defence costs. We and the Supplier shall mutually inform and support each other in the legal defence.
- The Supplier shall take out public liability insurance and product liability insurance to protect its obligations under the supply relationship with us, including for recall risk in a sufficient amount, with a sum insured of at least € 5 million per personal damage/material damage and maintain this at its expense continuously and for at least 3 years following delivery. Upon request, the Supplier shall provide us with written proof of having taken out and of maintaining such insurance. Further claims for damages shall remain unaffected.
Secrecy and data protection
- The Supplier agrees to keep secret all information provided by us in the context of an order, including product specifications, as well as all documents compiled by the Supplier for us in the context of an order (hereinafter called "Confidential Information") and to only use this for the purpose of performing the order. Confidential Information must not be copied, used commercially or made available to third parties without our prior written consent.
- The Supplier may only make Confidential Information, including in its own business, available to persons who must necessarily be involved in performing the order and who the Supplier has in turn obligated to maintain secrecy. The Supplier agrees to impose corresponding obligations of confidentiality on this group of persons, to the extent that this has not yet taken place. It shall further take all appropriate precautions to prevent third parties from gaining access to the work results or the Confidential Information obtained from us. The Supplier shall be liable for any violation of the non-disclosure obligations by third parties with which it has shared Confidential Information.
- The duties under § 11 para. (1) and para. (2) do not apply to the extent that Confidential Information can be shown to be generally known, becomes known without this being the Supplier's fault, is lawfully obtained by a third party or was already known to the Supplier.
- Any advertising that mentions the business relationship with us and any other statements towards the public or the authorities regarding this business relationship are only permitted following prior written approval, except where such statements are stipulated based on mandatory legal regulations.
- This non-disclosure obligation shall continue to apply after the supply and business relationship has ended, subject to Sentence 2 below, for a duration of 5 years. To the extent that the information subject to the non-disclosure obligation is a business or operating secret, the non-disclosure obligation shall continue to apply without a time limit. The above non-disclosure obligation applies accordingly to documents received in the context of preparing a contract, as listed in para. (1) above, even if the contract is ultimately not concluded, with the requirement that the non-disclosure obligation shall start once the contract negotiations have failed.
- Any received documents must be returned to us in a proper condition after the end of the supply and business relationship, without needing to be requested.
- The Supplier shall ensure that all persons entrusted with contract performance in the context of the supply and business relationship observe the legal provision on data protection.
Code of Conduct, compliance, sustainability
- As a minimum requirement for the business relationship, the Supplier agrees to observe and safeguard all applicable national regulations to protect employees, with the provisions of the Code of Conduct der Business Social Compliance Initiative (www.bsci-intl.org) being considered a minimum standard. The Supplier shall also impose these obligations on its own suppliers, which in turn shall impose them on their own suppliers.
- Sustainability is a key component of our business policy. We are continuously striving to operate more sustainably. We also expect our suppliers to take into account all three pillars of sustainability, i.e. environment, economics and social matters, when procuring and producing the products required by us or the services to be performed, in order to operate in the most resource-friendly way.
Place of performance, jurisdiction, choice of law
- Our place of business shall be the place of performance for all deliveries and services.
- Without our prior written approval, the Supplier is not authorised to arrange for the service owed by it to be performed by third parties (e.g. subcontractors).
- If the Supplier is an entrepreneur, a legal person under public law or special assets under public law, our place of business shall be the exclusive jurisdiction; however, we are also authorised to assert claims at the Supplier's place of business.
- All legal relationships between the Parties shall be governed exclusively by German law, to the exclusion of UNCISG and the international conflict of law provisions.
If individual provisions of these GTCs-Purchase are or become invalid, the effectiveness of the remaining provisions shall remain unaffected.
Version: 22 November 2016
Pfalzgraf Konditorei GmbH - Zeißstrasse 6 - DE 72285 Pfalzgrafenweiler
Tel: +49 7445 / 85 10-0
Fax: +49 7445 / 85 10-27