General Purchasing Agreement
For use in all legal contracts between companies, legal entities under public law and special estates under public law (hereinafter referred to as "Supplier") and the company Zerhusen Kartonagen GmbH (hereinafter referred to as " Buyer").
1 Applicable Terms and Conditions
1.1 The legal relationship between the supplier and the buyer shall be governed exclusively by the following terms and conditions of purchase.
1.2 Any conditions to the contrary are hereby excluded.
1.3 The unconditional acceptance of goods or services (hereinafter uniformly referred to as the "Subject Matter") or the payment without objection by the buyer shall in no case imply the acceptance of the general terms and conditions of the supplier.
1.4 These conditions of purchase shall also apply to all future transactions of this type with the supplier.
2.1Supply agreements (orders and acceptance) and delivery forecasts must be made in writing. Orders and delivery forecasts can also be made in text form (fax, e-mail, EDI, Web EDI).
2.2VERBAL AGREEMENTS AFTER CONCLUSION OF THE CONTRACT AS WELL AS COLLATERAL AGREEMENTS REQUIRE THE WRITTEN CONFIRMATION BY THE BUYER.
2.3Cost estimates are binding and are not to be reimbursed.
2.4THE BUYER MAY REQUIRE REASONABLE CHANGES IN THE CONSTRUCTION AND EXECUTION OF THE SCOPE OF SERVICES. The effects, in particular with regard to additional or reduced costs and delivery dates, shall be settled reasonably and by mutual agreement.
2.5If the supplier does not accept an individual order within two weeks of the order date, the buyer is entitled to cancel the order.
2.6If these general purchasing conditions are included in a general agreement, an individual agreement based on this general agreement shall also be concluded if the supplier does not object to a delivery call-off immediately and with good reason; the date specified in the delivery call-off shall be observed.
2.7If the supplier issues a deviating confirmation to the order, he is obliged to clearly draw the attention of the buyer to the deviation. A contract shall only be concluded if the buyer has agreed to this deviation in writing.
3.1In the event of no other specific agreement, the prices for domestic deliveries shall apply duty paid, i.e., DAP in accordance with Incoterms 2020) including packaging. In the case of cross-border delivery, DDP according to Incoterms 2010 shall apply to the prices. If the supplier has assumed the installation or assembly, it shall bear all necessary ancillary costs unless otherwise agreed in writing.
3.2Unless otherwise agreed, the customer shall pay within 21 days with a 3% discount or 30 days net from the due date of the payment claim and after receipt of a proper invoice and provision of the subject of performance. Any payment shall be subject to invoice verification.
3.3In case of acceptance of early deliveries or services (hereinafter referred to as " delivery "), the claim for payment shall become due at the earliest after the agreed date of payment, in case of doubt at the earliest after the agreed date of delivery. We reserve the right to assert claims for reimbursement of expenses, in particular regarding storage costs.
3.4The agreed prices are fixed prices and exclude subsequent claims of any kind.
4Delivery and Deadlines, Delay in Delivery, Liquidated Damages
4.1Agreed dates and deadlines are binding. The receipt of the goods at the delivery address specified or agreed by the buyer (place of performance) shall be decisive for compliance with the delivery date or the delivery period. Unless otherwise agreed, delivery shall be DAP according to Incoterms 2020.
4.2Partial deliveries and early deliveries are not permitted unless the buyer has expressly agreed to them in writing. The buyer is not obliged to dispatch deliveries before the arrival of the delivery documents.
4.3The unconditional acceptance of the delayed delivery shall not constitute a waiver of the claims to which the Purchaser is entitled on account of the delay.
4.4If agreed deadlines are not met, the statutory provisions shall apply. If the supplier foresees or has knowledge of difficulties that could prevent them from delivering on time or in the agreed quality, they shall inform the buyer immediately, stating the reasons. IN ADDITION, IF THE SUPPLIER IS AT FAULT, THE BUYER SHALL BE ENTITLED TO CLAIM A LUMP-SUM COMPENSATION OF 0.5 % OF THE VALUE OF THE DELAYED PERFORMANCE ITEM, UP TO A MAXIMUM OF 5 % OF THE TOTAL ORDER VALUE, FOR EACH WEEK OR PART THEREOF THAT THE DELIVERY DATE IS EXCEEDED. THE LUMP-SUM COMPENSATION SHALL BE OFFSET AGAINST CLAIMS FOR DAMAGES FOR EXCEEDING THE DELIVERY DATE. THE LUMP-SUM COMPENSATION MAY BE CLAIMED UNTIL THE AGREED PRICE HAS BEEN PAID IN FULL.
4.5The supplier shall bear the risk of delivery until acceptance by the buyer or its representative at the place to which the goods are to be delivered in accordance with the order.
4.6THE SUPPLIER GUARANTEES A COMPLETE OUTGOING GOODS INSPECTION TO ENSURE DELIVERY WITH ZERO DEFECT QUALITY. An incoming goods inspection shall only take place regarding externally visible damage and/or deviations in identity and quantity. Such defects shall be notified by the buyer without delay. Further defects shall be notified as soon as they are detected in the ordinary course of business under real conditions and load. TO THIS EXTENT, THE SUPPLIER WAIVES THE OBJECTION OF LATE NOTIFICATION OF DEFECTS.
4.7If necessary and at the request of the Buyer, the Parties shall agree on the establishment of a consignment warehouse.
4.8The Buyer shall be informed immediately of any product changes or discontinuation of production. In the event of discontinuation of production, the Supplier shall ensure that the goods previously delivered to the Buyer are still available for delivery for at least 6 months after notification.
5.1All information made available by the Buyer shall be kept confidential from third parties as long as and to the extent that it is not demonstrably known to the public. It shall remain the exclusive property of the Buyer and shall only be made available at the Supplier's premises to persons who must necessarily be involved for the purpose of the delivery to the Buyer and who are also obliged to maintain such confidentiality. Such information may not be reproduced or used commercially without the prior written consent of the Purchaser - except for deliveries to the Purchaser itself. At the Buyer's request, all information originating from the Buyer, in any form or embodiment whatsoever, shall be returned to the Buyer immediately and in full or destroyed, together with the handing over of a written declaration to this effect.
5.2The Buyer reserves all rights to such information (including copyrights and the right to register commercial property rights). If the Buyer has received such information from third parties, this reservation shall also apply in favor of such third parties.
5.3Products which are manufactured according to documents designed by the Buyer, such as drawings, models and the like, or according to its confidential information or with its tools or copied tools, may neither be used by the Supplier itself nor offered or delivered to third parties. This shall also apply similarly to any print orders.
5.4The Supplier may only advertise its business relationship with the Buyer with the prior written consent of the Buyer.
6Inventions, Property Rights
6.1The Supplier shall transfer all intellectual property rights as well as rights to know-how to the Buyer, results and inventions of the Supplier which arise during the contractual relationship regarding the subject matter of the performance ("Development Results"). In addition, the Supplier shall transfer to the Buyer the exclusive right of use, unrestricted in terms of time, space and content, to development results that are not capable of being protected or copyrighted.
The right of use shall in particular include the right to use the development results for the manufacture, sale and use in connection with all products manufactured and services offered by the Buyer. The right of use includes any kind of use, in particular the right to publish, reproduce, process or modify the development results. The Buyer shall be entitled to transfer the rights granted to it or to have them used by third parties without the consent of the Supplier. Additional consent by the Supplier for the use of the development results by third parties is not required. The Supplier shall ensure organizationally that it can meet its obligation to transfer rights, in particular regarding inventions made by employees of the Supplier. The Supplier shall inform the Buyer of the content of an invention disclosure without undue delay after receipt thereof.
6.2THE SUPPLIER UNDERSTANDS THAT THE BUYER'S PRODUCTS ARE USED WORLDWIDE. IT UNDERTAKES TO IMMEDIATELY NOTIFY THE BUYER THE USE OF PUBLISHED AND UNPUBLISHED, OWNED AND LICENSED PROPERTY RIGHTS AND PROPERTY RIGHTS NOTIFICATIONS in inventions and know-how which arose prior to the formation of the Contract ("Existing Rights "). Furthermore, the Supplier shall grant the Buyer an irrevocable, royalty-free, non-exclusive, and transferable right of use, unlimited in time and place, to the Existing Rights to the extent necessary for the commercial use of the Subject Matter by the Buyer.
7Packaging, Delivery Note, Invoice, Origin of Goods, Export Regulations
7.1A delivery note and a separate invoice shall be issued to the Buyer for each shipment. These must contain the supplier number, date and number of the order or delivery call-off and purchase agreement, quantity and material number, the indication of the customs tariff (HS code), number and date of the delivery note, gross and net weights listed individually, additional data of the Buyer (e.g., unloading location) as well as the agreed price/units of quantity. Each delivery must be accompanied by a delivery note with a precise list of contents, stating the order number.
7.2If the invoice refers to different orders, the information given in paragraph 7.2 shall be listed separately for each order. The invoice may only refer to the delivery bill.
7.3The Supplier shall comply with all national, European as well as international customs regulations regarding goods and services. A Supplier whose place of business is in the European Union shall provide the Purchaser with long-term supplier's declarations for goods with preferential originating status according to Regulation (EC) 1207/2001. The long-term Supplier's declarations must contain or enable a designation of the country of origin (specific member state) and a conversion to the material no. of the Purchaser. The Supplier shall be obligated to hand over an information sheet (INF 4) for verification or authenticity check of the supplier's declaration in accordance with Art. 6 of EU Regulation No. 1207/2001 as amended from time to time upon the Purchaser's request. The Supplier shall immediately inform the Purchaser in writing if the long-term supplier declarations lose their validity. The Supplier shall be obliged to provide the Purchaser with the current version without being requested to do so. A Supplier with a place of business outside the European Union shall prove the origin of the goods by means of an official certificate of origin (issued by the competent authority) and enclose necessary preference documents (e.g. Form A, EUR:1, EUR-MED, A.TR.) with each order.
7.4Supplier acknowledges that the Goods / Services or any part thereof are subject to export control rules and regulations and warrants compliance with applicable export control laws and regulations (including U.S. regulations). Supplier shall, at the time of acceptance of the Purchase Order, identify the portion of the Goods and Services that are subject to export control regulations and shall provide all relevant export control information, including export list classification, for all Goods and Services. This includes the obligation to indicate on all delivery notes the correct export control classification number (including US, EAR or ITAR classification) and the number or reference of any applicable export license and any distribution restrictions. In the event of a change in the respective export control regulations or classification according to the Export List, the Supplier shall notify Purchaser accordingly in writing. Supplier shall be responsible, at its own expense, for the timely issuance of all necessary governmental export licenses, permits, approvals and clearances required to ensure that (i) all goods and services to be delivered are used by Customer in accordance with the Purchase Order and (ii) delivery to Customer is made at the agreed time. In the case of an existing export license, Supplier shall provide to Customer a copy of such document containing all relevant information and reservations, including, but not limited to, with respect to re-export.
7.5The Supplier undertakes to comply with the security and reliability requirements issued by the customs authorities for certification as an Authorized Economic Operator (AEO) (or equivalent certification). If the Supplier is not certified as an AEO and has not yet applied for such certification, the Supplier shall attach a separate security declaration. The Supplier shall inform the Buyer if security or reliability requirements are not met or if their strict compliance can no longer be ensured.
7.6The Supplier shall be liable for and indemnify the Buyer against all damages, losses and liabilities incurred by the Buyer as a result of the Supplier's breach of the above obligations.
Force majeure, labor disputes, operational disruptions for which we are not responsible, riots, official measures and other unavoidable events, including the imposition of country and/or personal sanctions and/or embargo regulations by the European Union, one of its member states and/or the USA, shall entitle the Purchaser - without prejudice to its other rights - to withdraw from the contract in whole or in part insofar as they result in a significant reduction in its requirements and are of considerable duration.
9Liability for Defects
9.1The statutory provisions on material defects and defects of title shall apply unless otherwise stipulated below.
9.2The Buyer may choose the type of subsequent performance. The Supplier shall carry out the rectification and new delivery, if necessary, in multiple shifts or overtime or on public holidays, if this is absolutely necessary and reasonable for the Supplier.
9.3If the Supplier does not immediately start to remedy the defect within the period to be set by the Buyer, the Buyer may remedy the defect itself or have it remedied by a third party at the Supplier's expense. If it is no longer possible for the Buyer to inform the Supplier of the defect and the impending damage and to set a deadline due to particular urgency, in particular due to the prevention of acute dangers and/or substantial damage, the Buyer shall be entitled to remedy the defect itself even without setting a deadline.
9.4The warranty ends 36 months after delivery or acceptance by the customer.
9.5FOR PARTS OF THE DELIVERY REPAIRED OR SUBSEQUENTLY DELIVERED WITHIN THE PERIOD OF LIMITATION, THE PERIOD OF LIMITATION SHALL BEGIN ANEW WITH THE COMPLETELY RENDERED SUBSEQUENT FULFILLMENT.
9.6Costs incurred by the Buyer as a result of defective delivery of the goods/services, in particular handling, transport, travel, labor, material costs, installation and conversion costs, costs for incoming inspection exceeding the usual scope as well as costs which the Buyer has to bear vis-à-vis its customers due to legal obligations, shall be borne by the Supplier.
9.7In the event of any defects of title for which the Supplier is responsible, correspondingly in the event of an infringement of third-party property rights, the Supplier shall indemnify the Buyer and its customers against third-party claims and reimburse the costs incurred by the Buyer due to a necessary and reasonable legal defense in connection with the infringement of third-party rights. A limitation period of 7 years shall apply to defects of title.
9.8If the Buyer takes back products manufactured and/or sold by it as a result of the defectiveness of the object of performance delivered by the Supplier, or if the payment to the Buyer has been reduced or the Buyer has been held liable in any other way as a result, the Buyer reserves the right of recourse against the Supplier.
9.9The Supplier may only invoke the absence of necessary documents to be supplied by the Buyer if it has sent a written reminder for the documents and has not received them within a reasonable period of time.
9.10If similar defects occur in more than 5% of the delivered items (serial defects), the Buyer shall be entitled to reject the entire existing delivery quantity as defective and to assert the statutory and contractually agreed defect claims for the same.
10.1If a claim is made against the Buyer based on product liability, the Supplier shall indemnify the Buyer insofar as and to the extent that the damage was caused by a defect in the object of delivery. In the case of liability based on fault, however, this shall only apply if the Supplier is at fault. If the cause of the damage lies within the Supplier's sphere of responsibility, the Supplier shall bear the burden of proof in this respect. THE SUPPLIER SHALl IN SUCH CASES ASSUME all costs and expenses, including the COSTS of any legal action.
10.2The Supplier undertakes to take out and provide proof of a business liability insurance with an insurer licensed in the EU area, including damages of the extended product liability as well as recall costs. The amount of coverage for the areas of personal injury, property damage and the area of extended product liability and recall costs must be at least 5 million euros each.
10.3The Supplier shall be liable for actions taken by the Buyer to avert danger and/or damage (e.g., recall action) insofar as the Supplier is legally and/or contractually obligated to do so.
11Third-party Property Rights
11.1The Supplier warrants that no third-party property rights oppose the contractually agreed use of the subject of the performance.
11.2Insofar as the Supplier is responsible for an infringement of property rights, it shall indemnify the Buyer against all third-party claims asserted against it in and out of court, including the costs incurred by the Buyer for a necessary and reasonable legal defense, arising from an infringement of property rights.
11.3Furthermore, the contracting parties shall inform each other without delay of any risks of infringement and alleged cases of infringement that become known and shall give each other the opportunity to jointly counteract any corresponding claims.
12Assignment and Offsetting
12.1Without prior written consent, which may not be unreasonably withheld, the Supplier may not assign its claims against the Buyer or have them collected by third parties.
12.2The customer may withhold payments or declare offsetting on the basis of counterclaims.
13.1An extended or prolonged retention of title by the supplier shall require an explicitly separate agreement in order to be binding.
13.2The materials provided by the Buyer shall remain its property and may only be used for the intended purpose. The processing of materials and the assembly of parts shall be carried out for the Buyer. It shall be co-owner of the products manufactured using its materials and parts in the ratio of the value of the materials provided to the value of the overall product, which shall be held in safe custody for him by the Supplier.
14Quality and Documentation
14.1The Supplier shall adhere to the latest standards of science and technology, the safety regulations, and the agreed technical data for its delivery. It must set up and provide evidence of an appropriate quality management system.
14.2The Supplier is obliged to provide the Purchaser with all current certificates and data sheets and to send updated certificates and data sheets without being requested to do so.
15Use of Subcontractors
15.1The use of third parties (subcontractors or additional subcontractors) for the performance of the contract is subject to the statutory provisions and requires the prior consent of the Buyer in each case, which may not be refused without objective reason. If the use of third parties for the performance of the contract is intended by the Supplier from the time of the offer, the Supplier shall already inform the Buyer thereof in its offer. Such consent shall not affect the Supplier's liability towards the Buyer. Insofar as the Buyer requires this in order to comply with the statutory regulations affecting it, in particular those relating to labor law and/or social security law, the Supplier shall also provide supplementary information on the use of the subcontractor without delay.
16Safety and Environmental Conservation
16.1Packaging must be designed in such a way that it is easily separable and recyclable, mixed containers are avoided, and materials made from naturally renewable raw materials are used. Appropriate product and material information must be provided.
16.2Persons who carry out work on the Buyer's factory premises in fulfillment of the contract shall observe the applicable regulations for safety and environmental protection. Liability for accidents that happen to persons on the factory premises is excluded, insofar as these were not caused by intentional or grossly negligent breach of duty by the legal representatives or vicarious agents of the Buyer.
17Replacement Items and Readiness to Deliver
Unless otherwise agreed, the Supplier shall be obliged to supply replacement items on reasonable terms for the period of normal technical use, but at least 10 years after the last delivery of the delivery item.
18.1The place of jurisdiction for all legal disputes arising directly or indirectly from contractual relationships based on these Terms and Conditions of Purchase shall be Vechta, Germany, to the extent permitted by law, otherwise the place of business of the Buyer. THE BUYER IS ALSO ENTITLED TO SUE THE SUPPLIER AT ITS CHOICE AT THE COURT OF ITS REGISTERED OFFICE OR PLACE OF BUSINESS OR THE PLACE OF PERFORMANCE.
18.2The contractual relations shall be governed exclusively by the law of the Buyer's place of business to the exclusion of the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
18.3If one of the contracting parties ceases to make payments or if insolvency proceedings are instituted against its assets or if judicial or out-of-court composition proceedings are applied for, the other party shall be entitled to withdraw from the contract for the unfulfilled contractual share.
18.4Should any provision of these Terms and Conditions of Purchase and the further agreements made be or become invalid, the validity of the Terms and Conditions of Purchase in other respects shall not be affected. The contracting parties shall be obliged to replace the invalid provision with a provision which comes as close as possible to it in terms of economic success.