Status: December 2023
Contractual Basis, Conclusion of Contract, Written Form
1.1 These General Terms and Conditions of Purchase apply to all business relationships with sellers or suppliers (hereinafter: “Seller” or “Supplier”). The General Terms and Conditions of Purchase shall only apply if the Seller is an entrepreneur (Section 14 of the German Civil Code [“BGB”]), a legal entity under public law or a special fund under public law.
1.2 The General Terms and Conditions of Purchase apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as: goods), irrespective of whether the Seller manufactures the goods itself or purchases them from suppliers (Sections 433, 651 BGB). The General Terms and Conditions of Purchase shall also apply in their respective version as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same Seller, without us having to refer to them again in each individual case.
1.3 Our General Terms and Conditions of Purchase shall apply exclusively; deviating, conflicting or supplementary terms and conditions of the Seller shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. Even if we refer to a letter that contains or refers to the terms and conditions of the Supplier or a third party, this shall not constitute any agreement to the validity of those terms and conditions. Our General Terms and Conditions of Purchase and the requirement of express written consent shall also apply if we accept the Seller’s delivery without reservation in the knowledge that the Seller’s terms and conditions conflict with or deviate from our Terms and Conditions of Purchase.
1.4 References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these General Terms and Conditions of Purchase.
1.5 Orders, contracts and call-off orders as well as their amendments and supplements must be made in writing, whereby this shall also be deemed to have been complied with in the case of telecommunication transmission of documents, e.g. by fax, computer fax or e-mail, provided that this does not conflict with mandatory statutory provisions. Verbal agreements of any kind – including subsequent amendments and supplements to our Terms and Conditions of Purchase – must be confirmed by us in writing in order to be valid.
1.6 If our orders are not accepted by the Supplier within 4 working days of receipt, we shall be entitled to cancel them.
Forwarding of Orders
Without our prior written consent, the Supplier is not entitled to have the service owed by him or essential parts of this service performed by third parties (e.g. subcontractors).
Ownership, Tools, Copyright, Confidentiality
3.1 Tools, supplies of other kinds, drawings or other documents which we make available to the Supplier shall remain our property. The Supplier shall return them to us without being requested to do so as soon as they are no longer required for the performance of the contractually owed services.
3.2 The Supplier must ensure that these are not affected by third-party access or any enforcement measures. Should this nevertheless occur, he must inform us immediately. The Supplier shall be responsible for damage due to improper use or storage.
3.3 All documents provided to the Supplier shall be deemed confidential information. He must keep them secret, as well as the knowledge and findings about our operational processes gained in connection with the contractual cooperation, as long as they are not publicly accessible. The Supplier may not make them accessible to third parties, disclose them or use or reproduce them itself or through third parties without our express consent. Their use is only permitted for the purpose agreed in the contract. He shall return these documents and any copies to us in full at our request if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract
4.1 Agreed deadlines and dates are binding. If they cannot be met, the Supplier must inform us immediately of this, the reason for the hindrance and its expected duration. This shall not affect our statutory claims for default. In particular, we may, in addition to other claims for damages incurred, withdraw from the contract after expiry of a reasonable period in the event of default and demand compensation instead of performance.
4.2 If a contractual penalty has been agreed and incurred in the event of default, we may claim this until the invoice for the delayed deliveries or services has been settled. It shall be offset against any further claims for default.
4.3 Premature deliveries and services are not allowed without our prior consent.
4.4 The unconditional acceptance of a delayed delivery or service shall not constitute a waiver of any claims for compensation to which we may be entitled due to the delayed delivery or service.
Partial, Additional or Short Deliveries
5.1 The Supplier shall not be entitled to make partial deliveries or render partial services without our prior consent.
5.2 We reserve the right to recognize additional or short deliveries in individual cases. If additional deliveries are not recognized, we are entitled to store them at the Supplier’s expense or to return them to him.
5.3 Subject to proof to the contrary, the values determined by us during the incoming goods inspection shall be decisive for compliance with the agreed quantities, weights and dimensions.
Shipping, Packaging, Transport Insurance
6.1 Delivery within Germany shall be “free of charge” (DDP/Incoterms® 2020) to the place specified in the order (destination). If the place of destination is not specified and nothing else has been agreed, delivery shall be made to our storage facility with the address Manupackaging Deutschland GmbH, Value Park, Bau Z 20, 06258 Schkopau, Germany. The respective place of destination is also the place of performance (debt to be discharged at creditor’s residence).
6.2 The risk shall not pass to us until the goods have been handed over to the recipient at the place of destination. In the case of delivery with installation or assembly as well as in the case of other services to be provided on a performance-related basis, the risk shall pass to us after acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
6.3 The Supplier must enclose two copies of the delivery bills with a precise description of the contents. Invoices must also be submitted in two copies.
6.4 The Supplier must accept all details of the destination stated in the order in complete form. This applies in particular to all shipping documents. The Supplier shall bear any additional costs due to non-compliance with shipping instructions or due to expedited transportation in order to meet the agreed deadline.
Prices, Invoice, Payment
7.1 The agreed prices are fixed prices.
7.2 Unless otherwise agreed in individual cases, the price shall include all services and ancillary services of the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. for proper packaging, transportation costs to the place of destination including any transport and liability insurance and all fees).
7.3 If, in deviation from Clause 6.1 (delivery “free of charge”), pricing “ex works” has been agreed, the Supplier shall ship the goods at the lowest possible cost, unless we have specified a particular mode of transportation.
7.4 Invoices shall not be issued separately for each order or call-off prior to complete delivery free of defects, completion of services or after acceptance of success-related services.
7.5 If it becomes apparent after conclusion of the contract that the Supplier is experiencing payment difficulties and this endangers our claim to counter-performance, we may, if we are obliged to make advance performance, make advance performance dependent on appropriate security. If the Supplier is unable to do so within a reasonable period of time, we shall be entitled to withdraw from the contract.
7.6 Unless otherwise agreed, payments on our Suppliers’ invoices shall be made within 90 calendar days of delivery or performance of the service and after receipt of a correct, verifiable invoice to the invoice address specified by us.
Assignment, Retention of Title
8.1 The Supplier may only assign its claims against us to third parties or have them collected by third parties with our prior written consent, unless the claims in question are legally recognized, ready for decision (cannot be disputed for logical reasons) or undisputed. Otherwise, we may not refuse consent for unreasonable reasons. Section 354a German Code of Commerce (“HGB”) remains unaffected.
8.2 We object to all retention of title provisions that go beyond simple retention of title. They require our prior written consent in individual cases. Should subcontractors nevertheless assert property rights, co-ownership rights or liens against us or have enforcement measures carried out, the Supplier shall compensate us for all damages and expenses incurred as a result.
If the submission of test certificates has been agreed, the Supplier must enclose a single copy of these with its invoice at the latest.
Transfer of Risk, Notice of Defects
10.1 Our incoming goods inspection is only carried out by means of random checks and, in addition to compliance with quantity and quality, also covers the detection of transport damage, unless otherwise agreed with the Supplier in a quality assurance agreement.
10.2 We shall notify the Supplier of visible defects within 7 days of delivery at the latest, other defects immediately after their discovery. In this respect, the Supplier waives the objection of late notification of defects.
Rights in the Case of Defects
11.1 The Supplier shall be responsible for defect-free deliveries and services. In particular, these must have the agreed quality characteristics and correspond to the purpose stipulated in the contract, the current state of the art, the generally recognized technical and occupational health and safety regulations of authorities and professional associations, comply with the current environmental protection regulations and be free from third-party rights (in particular industrial property rights).
11.2 If the subject of the delivery is machinery, equipment or systems, these must comply with the requirements of the special safety regulations for machinery and systems applicable at the time of fulfillment of the contract and have a CE mark.
11.3 In the event of material defects and defects of title and non-compliance with guarantees, the Supplier shall assume responsibility in accordance with the statutory provisions. If a defect becomes apparent within the limitation period in accordance with Clause 12, we shall be entitled to demand subsequent performance – at our discretion by remedying the defect (“repair”) or by delivering a defect-free item (“replacement delivery”) – as well as compensation for damages that cannot be remedied by subsequent performance (“damages in addition to performance”). The Supplier shall also bear the expenses necessary for subsequent performance. If recourse claims arise in the supply chain to the consumer which are attributable to defective deliveries by the Supplier, we may pass on our recourse claims to the Supplier in accordance with the statutory provisions.
11.4 If the subsequent performance has not taken place within a reasonable period of time set by us, has failed or if the setting of a deadline was dispensable, we may also withdraw from the contract, demand compensation for damages instead of performance, compensation for futile expenses or a reduction in price in accordance with the statutory provisions. If we are entitled to warranty claims that go beyond the statutory rights in the event of defects, these shall remain unaffected by this.
11.5 If the Supplier fails to meet its obligations within a reasonable period set by us for subsequent performance without having the right to refuse subsequent performance, we shall also be entitled to remedy the defects ourselves or have them remedied by third parties and to demand compensation from the Seller for the expenses required for this. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage), no deadline need be set; the Seller must be informed immediately, if possible in advance.
11.6 The Supplier shall be responsible for any fault of its subcontractors as if it was its own fault.
12.1 The reciprocal claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.
12.2. Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims for defects is 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall also apply accordingly to claims arising from defects of title, whereby the statutory limitation period for third-party claims for restitution in rem (Section 438 (1) No. 1 German Civil Code [“BGB”]) shall remain unaffected; furthermore, claims arising from defects of title shall in no case become time-barred as long as the third party can still assert the right – in particular in the absence of a limitation period – against us.
12.3. The limitation periods under sales law, including the above extension, shall apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (Sections 195, 199 German Civil Code [“BGB”]) shall apply, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
Product Liability, Insurance
13.1 If the Seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organization and it is liable itself in relation to third parties. In the case of significant contributions to the cause on our part, such as gross negligence, or in the case of obvious errors, the claim for compensation shall be reduced proportionately. Under the same conditions, the Supplier shall also be liable for damages incurred by us as a result of reasonable precautionary measures against claims arising from non-contractual product liability, e.g. public warnings. Our right to assert our own damages against the Supplier shall remain unaffected by this.
13.2 The Supplier undertakes to take out and maintain product liability insurance of an appropriate amount covering all risks arising from product liability, including an appropriate risk of recall. The Supplier shall prove this to us upon request by presenting its insurance policy.
Place of Fulfillment, Jurisdiction, Applicable Law
14.1 The place of performance shall be the destination specified by us.
14.2 If the Supplier is a merchant within the meaning of the German Commercial Code (“HGB”), a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Halle (Saale). However, we may also sue the Supplier at its general place of jurisdiction.
14.3 The law of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.