GENERAL TERMS OF BUSINESS
TERMS OF PURCHASE (DATED 12/2010):
Dr. Theiss Naturwaren GmbH P. 1/2 These terms and conditions apply to business transactions of Dr. Theiss Naturwaren GmbH, with companies, legal entities under public law and special funds under public law.
1. General information
1.1 Our Terms of Purchase apply exclusively; we do not recognise conflicting or deviating terms and conditions of the supplier, unless we have expressly agreed to their validity in writing. Our Terms of Purchase shall also apply if we accept or pay for deliveries of products and services of the supplier (hereinafter referred to as the subject matter of the contract) whilst being aware of terms and conditions of the supplier that conflict with or deviate from our Terms of Purchase.
1.2 Our Terms of Purchase also apply to all future deliveries and services of the supplier to us.
1.3 In individual cases, individual agreements with the supplier take precedence over these conditions of purchase. For the content of such agreements, a written contract or our written confirmation shall prevail.
2. Conclusion of the contract and contract changes
2.1 Orders, statements and delivery schedules as well as their changes and additions must be made in writing. Orders and delivery schedules can also be made by remote data transmission, fax or e-mail.
2.2 Verbal agreements before or upon conclusion of the contract shall require the written confirmation of the purchase in order to be effective. Point 2.1, sentence 2 remains unaffected.
2.3 Verbal agreements after the conclusion of the contract, in particular subsequent changes and additions to our conditions of purchase - including this written form clause - as well as collateral agreements of any kind, shall also require written confirmation in order to be valid.
2.4 Cost estimates are binding and shall not be reimbursed unless expressly agreed otherwise.
2.5 If the supplier does not accept the order within two weeks of receipt, we shall be entitled to revoke it. Delivery schedules shall become binding if the supplier does not object within four working days of receipt.
3.1 Deviations from our financial statements and orders shall only be permitted after our prior written consent. Quantity deviations, in particular reduced performances, are generally not permitted. Additional quantities shall require explicit agreement before delivery and invoicing.
3.2 Agreed dates and deadlines are binding. Decisive for the observance of the delivery date or the delivery time shall be the receipt of the goods with us. If delivery “ex-works” (DDP according to Incoterms 2010) is not agreed, the supplier must make the goods available in good time, taking into account the time to be agreed with the carrier for loading and dispatch.
3.3 If the supplier has taken over the installation or assembly and nothing else has been agreed, the supplier shall bear all necessary ancillary costs, such as travel expenses, provision of the tool and releases, subject to deviating regulations.
3.4 If agreed deadlines are not met, then the statutory regulations shall apply. If the supplier foresees difficulties in terms of production, supply of preliminary materials, adherence to the delivery date or similar circumstances which could hinder him on the timely delivery or on the delivery in the agreed quality, the supplier must immediately inform our ordering department.
3.5 The unconditional acceptance of the delayed delivery or service does not constitute a waiver of the claims for compensation due to us for the delayed delivery or service; this shall be valid until full payment of the fee owed by us for the delivery or service concerned.
3.6 Partial deliveries shall be generally inadmissible, unless we have expressly consented to them or they are reasonable for us or part of our requirement.
3.7 For quantities, weights and dimensions, unless otherwise proved, the values determined by us during the incoming goods inspection shall be decisive.
3.8 In addition to the right to use to the extent permitted by law (§§ 69a et seq. UrhG), software that is part of the scope of delivery of the product, including its documentation, has the right to use it with the agreed performance features and in the scope required for the contractual use of the product. We may also make a back-up copy without express agreement.
4. Force majeure
Force majeure, labour disputes, disruptions of business, unrest, official measures and other unavoidable events shall entitle us - without prejudice to our other rights - to withdraw from the contract in whole or in part.
5. Shipment notification and invoicing
The supplier shall confirm the shipment of the goods to the company as soon as it has been shipped.
The information in our orders and delivery schedules shall apply. One copy of the invoice must be addressed to the company under specification of all required information according to § 14 (4) in conjunction with § 14a (5) UStG as well as other assignment characteristics (order number, article numbers, specification numbers, batch numbers, the ordering person, creditor number); it must not be included with shipments.
6. Pricing and transfer of risk
Unless otherwise agreed, prices are ex works duty paid (DDP as per Incoterms 2010) including packaging. VAT is not included. The supplier bears the material risk until acceptance of the goods by us or our agent at the place to which the goods are to be delivered according to the order.
7. Payment terms
Unless otherwise agreed, the invoice will be settled either within 14 days with a deduction of 3% discount or within 30 days with deduction of 2% discount or within 60 days without deduction from the due date of the claim for payment and receipt of both the invoice and the goods or provision of the service. Payment is subject to invoice verification.
8. Defects claims and recourse
8.1 The supplier shall warrant that all goods delivered by him and services rendered by him comply with all applicable laws, regulations, directives, other legal provisions, DIN standards and recognised rules of technology for both us and the supplier.
8.2 Acceptance shall be subject to the examination for freedom from defects, in particular to accuracy, completeness and suitability. We shall be entitled to inspect the object of the contract insofar and as soon as this is possible in the ordinary course of business; discovered defects shall be reported by us immediately after discovery. The complaint shall be deemed timely, provided it is received by the supplier within a period of five working days, calculated from the receipt of the goods or, in the case of hidden defects, from the time of discovery.
8.3 The statutory provisions on material and legal defects shall apply unless otherwise provided below.
8.4 We shall generally be entitled to choose the type of supplementary performance. The supplier has the right to refuse the type of supplementary performance chosen by us under the conditions of § 439 (3) BGB.
8.5 If the supplier does not immediately start remedying the defect after our request for remedying the defect, then in urgent cases, in particular to avert acute dangers or avoid major damage, we shall have the right to do so ourselves or arrange for third parties to remedy it at the expense of the supplier. Claims for property damages shall expire in 3 years. The period of limitation for claims for material defects shall begin with the delivery of the subject of the contract (transfer of risk).
8.6 In the case of defects of title, the supplier shall also indemnify us from any existing claims of third parties. Regarding defects of title, a limitation period of 3 years shall apply.
8.7 For parts of the delivery that have been serviced or repaired within the limitation period of our claims for defects, the limitation period shall begin again at the time at which the supplier has completely fulfilled our claims for supplementary performance. The new beginning of the statute of limitation, however, shall only apply in the event that a subsequent improvement is made on the basis of legitimate supplementary performance.
8.8 If we incur costs as a result of the defective delivery of the subject of the contract, in particular transport, travel, labour, material costs or costs for a goods-in inspection exceeding the usual scope, the supplier shall bear these costs.
8.9 If we take back products manufactured and/or sold by us as a result of the defectiveness of the contractual item delivered by the supplier, or if we have been reduced in relation to the purchase price or if claims have been otherwise been made against us, we shall reserve the right of recourse against the supplier, whereby an otherwise required deadline setting shall not be required for our defect rights.
8.10 We shall be entitled to demand compensation from the supplier for the expenses we had to bear in relation to our customer, because he has a claim against us for compensation for the expenses required for the purpose of subsequent performance, in particular transport, travel, labour and material costs.
9. Product liability and recall
In the event that a claim is made against us on the basis of product liability, the supplier shall be obliged to release us from such claims upon first request, provided that the cause is within his control and organisation and he is liable externally according to the Product Liability Act.
Likewise, upon the first request, the supplier shall exempt us from all claims of third parties that are raised due to defects, infringement of third-party property rights or product damage to their delivery due to their share of the cause. Insofar as the cause of the damage lies within the area of responsibility of the supplier, he shall bear the burden of proof for a lack of fault.
The supplier shall assume all costs and expenses incurred by us in the above cases, including costs associated with any legal action or recall. The legal regulations apply in all other cases.
10. Performance of work
Persons who carry out work in the factory premises in fulfilment of the contract must observe the provisions of the respective company regulations. Liability for accidents that occur to these persons on the factory premises is excluded, as far as these were not caused by intentional or grossly negligent breach of duty by us, our legal representatives or our vicarious agents.
Materials, parts, containers and special packaging provided by us remain our property. These may only be used as intended. The processing of materials and the assembly of parts takes place on our behalf. It is understood that in proportion of the value of the supplies to the value of the entire product, we are co-owners of the products manufactured using our materials and parts, which are kept by the supplier for us.
12. Documents and confidentiality
12.1 All business or technical information made available to us (including features that can be found in transferred objects, documents or software, and any other knowledge or experience) must be kept secret from third parties as long as and to the extent that they are not publicly known, and may only be made available to such persons in the supplier's own company, who involvement is necessary for their use for the purpose of delivery to us and who are also obliged to maintain secrecy; the information shall remain our exclusive property. Without our prior written consent, such information - except for deliveries to us - may not be reproduced or used commercially. At our request, all information originating from us (including any copies or records made, if any) and items lent on loan shall be returned to us or destroyed immediately and completely. We reserve all rights to such information (including copyright and the right to apply for intellectual property rights such as patents, utility models, semiconductor protection, etc.). Insofar as these have been made available to us by third parties, this reservation of rights also applies to these third parties.
12.2 Products manufactured according to documents drafted by us, such as drawings, models and the like, or according to our confidential information or with our tools or copied tools, may not be used by the supplier or offered or delivered to third parties. This shall also apply in the same terms to our print jobs.
13. Place of fulfilment
Place of fulfilment is the place to which the goods are to be delivered according to the order.
14. General provisions
14.1 Should a provision of these conditions and of the further agreements made be or become ineffective, this will not affect the validity of the remaining provisions. The contracting parties are obliged to replace the ineffective provision by a provision which is as similar as possible in economic success.
14.2 The place of jurisdiction for all disputes arising directly or indirectly from contractual relationships on which these conditions of purchase are based is Homburg. We also have the right to sue the supplier at our discretion at the court of his place of business or branch or at the court of the place of fulfilment.
14.3 For the contractual relations, German law shall exclusively apply under exclusion of the conflict of laws and the convention of the United Nations over contracts over the international goods purchase (CISG).