General Terms and Conditions of Purchase

of

Vennskap GmbH & Co. KG
In der Loh 36c
40668 Meerbusch

 

1. Scope of application, form

2. Conclusion of contract

3. Delivery period and delay in delivery

4. Delivery; performance; transfer of risk; default of acceptance

5. Prices and terms of payment

6. Secrecy; copyright; retention of title

7. Defective services; warranty

8. Liability of the seller; indemnity; insurance

9. Supplier recourse

10. Statute of limitations 

11. Choice of law; place of jurisdiction

12. Final provisions

 

1. Scope of application, form

1.1 These General Terms and Conditions of Purchase (hereinafter referred to as “Terms and Conditions of Purchase”) apply to all business relationships between Vennskap GmbH & Co. KG (hereinafter referred to as “we” or “us”) and its business partners, service providers and suppliers (hereinafter referred to as the “Seller”). The Terms and Conditions of Purchase only apply if the Seller is an entrepreneur (§ 14 of the German Civil Code, BGB), a legal entity under public law or a special fund under public law. 

1.2 The Terms and Conditions of Purchase apply to contracts for the purchase and/or delivery of movable goods (hereinafter referred to as “goods”) irrespective of whether the Seller manufactures the goods itself or purchases them from suppliers, and also to contracts for the purchase and/or commissioning of services and work performances (the delivery of goods as well as the provision of services or work performances hereinafter also referred to collectively as “services”).

1.3 These Terms and Conditions of Purchase apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Seller only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent applies in all cases, for example even if we accept the Seller’s services without reservation with knowledge of the Seller’s General Terms and Conditions or provide services ourselves without reservation.

1.4 Individual agreements made with the Seller in individual cases take precedence over these Terms and Conditions of Purchase. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.

1.5 Legally relevant declarations and notifications by the Seller with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) are to be submitted in text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in case of doubt as to the legitimacy of the declarant, are not affected.

1.6 References to the applicability of statutory provisions are only for clarification purposes. Even without such clarification, the statutory provisions therefore apply insofar as they are not directly amended or expressly excluded in these Terms and Conditions of Purchase.

 

2. Conclusion of contract

2.1 Our order is considered binding at the earliest on written submission or confirmation. The Seller is to point out to us obvious errors (e.g. typing and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before acceptance; otherwise, the contract is deemed not to have been concluded.

2.2 The Seller is to confirm our order in writing within a period of five (5) working days or, in particular, to execute it without reservation by delivering the goods or providing the service (acceptance).

 

3. Delivery period and delay in delivery

3.1 The delivery period specified by us in the order is binding. If the delivery period is not specified in the order and has not been agreed otherwise, it amounts to two (2) weeks from the conclusion of the contract. The Seller is obliged to inform us immediately in writing if it is unlikely to be able to comply with the agreed delivery periods – irrespective of the reasons.

3.2 If the Seller does not perform its service or does not perform it within the agreed delivery period or if it is in default, our rights – in particular to cancellation and compensation for damages – are determined in accordance with the statutory provisions. The regulations in para. 3 remain unaffected.

3.3 If the Seller is in default, in addition to further statutory claims, we may demand lump-sum compensation for our damages caused by the delay in the amount of 1% of the contractually agreed net price per calendar week or part thereof, however, not more than a total of 5% of the contractually agreed net price of the delayed performance. We reserve the right to prove that higher damages have been incurred. The Seller reserves the right to prove that no damages at all or only significantly lower damages have been incurred.

 

4. Delivery; performance; transfer of risk; default of acceptance

4.1 Without our prior written consent, the Seller is not entitled to have the performance owed by it rendered by third parties (e.g. subcontractors). The Seller bears the procurement risk for its services unless agreed otherwise in writing.

4.2 Delivery is made DDP (delivery duty paid – Incoterms 2020) to the place specified in the order. If the place of destination is not specified and nothing else has been agreed in writing, the delivery is to be made to our place of business. The respective place of destination is also the place of performance for the delivery and any subsequent performance.

4.3 Each delivery is to include a delivery note stating the date (issue and dispatch), the content of the delivery (item numbers and quantities) and our order identifier (date and number). In addition, the Seller is to specify the corresponding customs tariff numbers. If the delivery note is missing or incomplete, we are not responsible for any resulting delays in processing and payment. A corresponding dispatch note with the same content is to be sent to us separately from the delivery note.

4.4 The delivery also includes assembly instructions, operating instructions and other documentation in the contractually prescribed language and quantity as required for proper use.

4.5 The Seller is only entitled to make partial deliveries if these are reasonable for us.

4.6 The risk of accidental loss and accidental deterioration of the item passes to us on handover at the place of performance. Insofar as acceptance has been agreed, this is decisive for the transfer of risk. 

4.7 If the performance owed by the Seller consists of the provision of a service or work performance, the place of performance is the place specified in the order. If the place of destination is not specified and nothing else has been agreed in writing, the place of performance is our place of business. In all other respects, the statutory provisions apply.

4.8 In case of default of acceptance on our part, the statutory provisions apply. However, the Seller must also expressly provide us with its performance if a specific or determinable calendar date has been agreed for an action or cooperation on our part (e.g. provision of materials). If the contract relates to a non-representable item to be manufactured by the Seller (individual production), the Seller is only entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.

 

5. Prices and terms of payment

5.1 The price specified in the order is binding. All prices include statutory value added tax if this is not shown separately.

5.2 Unless otherwise agreed in writing, the price includes all of the Seller’s services and ancillary services (e.g. assembly, installation, etc., if relevant) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance, etc.).

5.3 The agreed price is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller grants us a 3% discount on the net amount of the invoice. In case of bank transfer, payment is deemed to have been made in time if our transfer order is received by the receiving bank before the expiry of the payment deadline; we are not responsible for any delays caused by the banks involved in the payment process.

5.4 We do not owe any due date interest. The statutory provisions apply to default on payment.

5.5 We are 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, we are entitled to withhold payments due as long as we have outstanding claims against the Seller arising from incomplete or defective performance.

5.6 The Seller only has a right of set-off or retention on the basis of counterclaims that have been legally established or are undisputed.

 

6. Secrecy; copyright; retention of title

6.1 We reserve all property rights and copyrights to illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents. Such documents are to be used exclusively for the contractual performance and returned to us after completion of the contract. The documents are to be kept secret from third parties, also after termination of the contract. The obligation to maintain secrecy only expires if and to the extent that the knowledge contained in the documents provided has become generally known, but at the earliest 5 years after fulfilment of the contract.

6.2 The above provision applies mutatis mutandis to substances and materials as well as to tools, templates, samples and other objects which we provide to the Seller for production. As long as they are not processed, such items are to be stored separately at the Seller’s expense and insured to a reasonable extent against destruction and loss.

6.3 Any processing, mixing or combination (further processing) of items provided by the Seller is carried out on our behalf. The same applies in case of further processing of the delivered goods by us, such that we are considered the manufacturer and acquire ownership of the product at the latest on further processing in accordance with the statutory provisions.

6.4 The transfer of ownership to us takes place on delivery and without regard to the payment of the purchase price. However, if in an individual case we accept an offer by the Seller to assign title subject to payment of the purchase price, the Seller’s retention of title expires at the latest on payment of the purchase price for the goods delivered. We remain authorised to resell the goods in the ordinary course of business before payment of the purchase price subject to advance assignment of the claim arising from this to the Seller. All other forms of retention of title are, in any case, excluded.

 

7. Defective services; warranty

7.1 Unless otherwise stipulated below, our rights in the event of material defects and defects of title of the delivered goods (including wrong delivery and short delivery as well as improper assembly, defective instructions for assembly, operation or use) and in the event of other breaches of duty by the Seller are governed by the statutory provisions.

7.2 In accordance with the statutory provisions, the Seller is in particular liable for ensuring that the goods have the agreed quality at the time the risk passes to us. The product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or have been included in the contract in the same way as these Terms and Conditions of Purchase are deemed to be an agreement on the quality. It makes no difference whether the product description comes from us, the Seller or the manufacturer.

7.3 In deviation from § 442 para. 1 sentence 2 of the German Civil Code (BGB), we are also entitled to unlimited claims for defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.

7.4 Our obligation to examine the goods and to give notice of defects is subject to the statutory provisions with the following proviso: The obligation to examine is limited to defects which become apparent during the incoming goods inspection and the inspection of the delivery documents (e.g. transport damage, wrong delivery and short delivery) or which are recognisable during a quality control in a random sampling procedure. Insofar as acceptance has been agreed, there is no obligation to examine. In all other respects, it depends on the extent to which an examination is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects that are discovered later remains unaffected. Notwithstanding the obligation to examine, our notification of defects is deemed to be immediate if it is sent within fourteen (14) working days from discovery or, in the case of obvious defects, from delivery.

7.5 The costs incurred by the Seller for the purpose of inspection and subsequent performance (including any removal and installation costs) are borne by the Seller even if it turns out that there was actually no defect. Our liability for damages in case of unjustified warranty claims remains unaffected; in this respect, however, we are only liable if we recognised that there was no defect or failed to recognise this due to gross negligence.

7.6 If the Seller fails to fulfil its obligation of subsequent performance – at our option by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery) – within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement of the expenses required for this purpose or a corresponding advance payment from the Seller. If the subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent threat of disproportionate damage), no deadline needs to be set; we will inform the Seller of such circumstances without delay, if possible in advance.

7.7 In all other respects, in case of a material defect or defect of title, we are entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we are entitled to compensation for damages and expenses in accordance with the statutory provisions.

7.8 Insofar as the performance owed by the Seller consists of the provision of a service or work performance, in case of non-performance or defective performance, the statutory provisions apply. These are, in particular, the service contract and work contract law of the German Civil Code (BGB). 

7.9 If, in accordance with the contract, the Seller undertakes to perform a service or work performance, the Seller warrants to us that it has all the skills, knowledge, approvals, certifications or the like required for the proper performance of the contract. On request, it is to provide us with evidence of the relevant skills, knowledge, approvals, certifications, etc. by submitting suitable documents. The Seller is to inquire on its own responsibility as to which professional and other requirements are to be fulfilled by it for the performance of the contract.

 

8. Liability of the seller; indemnity; insurance

8.1 The Seller is liable for culpable breaches of duty in accordance with the statutory provisions.

8.2 The Seller is to indemnify us from all product law, product liability law and or similar claims of third parties if and insofar as the cause of these claims lies within its domain and organisational area and it is itself liable in the external relationship. Within the context of its indemnity obligation, the Seller is to reimburse expenses under §§ 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by a third party, including recall actions carried out by us. We will inform the Seller about the content and scope of recall measures – as far as this is possible and reasonable – and give it the opportunity to comment. Further legal claims remain unaffected.

8.3 Within the context of its indemnity obligation, the Seller is to reimburse us for all expenses arising from or in connection with a claim by a third party. Further legal claims remain unaffected.

8.4 Unless otherwise agreed in writing, the Seller of goods is to take out and maintain product liability insurance and the Seller of services is to take out and maintain liability insurance, in each case with the amount of cover customary in the sector. On request, it is to provide us with proof of insurance cover by submitting suitable receipts.

 

9. Suppliers’ recourse

9.1 Our legally determined recourse claims within a supply chain (supplier recourse according to §§ 445a, 445b, 478 BGB) are available to us without restriction alongside the claims for defects. In particular, we are entitled to demand exactly the type of subsequent performance (subsequent improvement or replacement delivery) from the Seller that we owe to our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.

9.2 Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses according to §§ 445a para. 1, 439 para. 2 and 3 BGB), we will notify the Seller and, with a brief statement of the facts, request a written statement. If a substantiated statement is not made within a reasonable period of time and if no mutual solution is reached, the claim for defects actually granted by us is deemed to be owed to our customer. In this case, the Seller is obliged to prove the contrary.

9.3 Our claims from suppliers’ recourse also apply if the defective goods have been further processed by us or another entrepreneur.

 

10. Statute of limitations 

10.1 The mutual claims of the contracting parties become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.

10.2 In deviation from § 438 para. 1 no. 3 of the German Civil Code (BGB), the general limitation period for claims for defects is three (3) years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period commences on acceptance. The 3-year limitation period applies mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for real claims for surrender by third parties (§ 438 para. 1 no. 1 BGB) remains unaffected; furthermore, claims based on defects of title do not become statute-barred as long as the third party can still assert the right against us – in particular in the absence of a statute of limitations.

10.3 The statute of limitations of the sale of goods law including the aforementioned extension apply – to the extent provided 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 applies for this, unless the application of the statute of limitations of the sale of goods law leads to a longer period of limitation in individual cases.

 

11. Choice of law; place of jurisdiction

11.1 The parties will endeavour to settle any disputes arising from or in connection with the legal relationship between them promptly by negotiation in a spirit of partnership and good faith.

11.2 If the parties are unable to settle the dispute by negotiation within thirty (30) days after one party has requested the other party in writing to enter into negotiations, both parties have recourse to the ordinary courts. The courts at our place of business have exclusive jurisdiction for all legal disputes arising from or in connection with the legal relationship existing between the parties.

11.3 The legal relationship between the Seller and us is subject to German law, excluding the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG).

 

12. Final provisions

12.1 There are no oral or written ancillary agreements.

12.2 Amendments and supplements to these Terms and Conditions of Purchase by individual contractual agreements within the meaning of § 305b of the German Civil Code (BGB) do not require any form. In all other respects, amendments or supplements require the text form.

12.3 Should any provision of these Terms and Conditions of Purchase be or become invalid in whole or in part, the validity of the remaining provisions of these Terms and Conditions is not affected by this. The parties now already agree to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic intention of the invalid provision. This also applies in case of an unintended gap in the regulations.

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