(Last update: September 2008)
1. General
These General Terms and Conditions of Purchase apply to all of our purchase orders. Deviating terms and conditions from the contractor shall only apply if we have agreed to their validity in writing. They shall have no effect even if we have not objected to them in individual cases. The acceptance or payment of goods or services does not constitute consent to the contractor’s terms and conditions.
2. Quotations, purchase orders, written form
2.1 Quotations or cost estimates are prepared free of charge. We also assume no costs and pay no remuneration for visits, planning and other preliminary services provided by the contractor in connection with the submission of quotations, unless this is agreed separately in individual cases.
2.2 Purchase orders, amendments or additions thereto, as well as other agreements made in connection with the conclusion of a contract are binding if they are declared or confirmed by us in writing.
3. Prices and discounts
Unless otherwise agreed, all prices include free delivery to the place of receipt. They shall cover all deliveries and services which the contractor must provide in order to fulfil its performance obligations up to and at the agreed place of receipt.
4. Shipping instructions, origin of goods
4.1 A precise dispatch note/delivery bill must be sent to the recipient for each delivery on the day of dispatch. The contractor shall be liable for the consequences of incorrect consignment notes. All shipping documents must include our order number and the recipient of the goods. Transport insurance shall be taken out by the contractor at its own expense, unless otherwise agreed. If the delivery involves hazardous goods that are subject to special national and international shipping regulations, the contractor shall pack, label and ship them accordingly.
4.2 If the delivery must meet the conditions of origin of the EU preferential agreement, the contractor shall provide us with the corresponding certificates of origin. Georg Parlasca Keksfabrik GmbH
5. Ownership, industrial property rights, copyright
5.1 Drawings, samples, recipes and other documents and aids which we provide to the contractor for the execution of orders shall remain our property. They may only be used for their intended purpose and must be returned to us at any time upon request.
5.2 All documents, information on supplied materials and other know-how which are provided or become known to the contractor during the business relationship must be kept secret and may not be made available or disclosed to third parties without our express written consent. The contractor shall also keep secret all knowledge and results obtained through use of the aforementioned; this shall not apply if the aforementioned become publicly known by no fault of the contractor. In particular, the contractor must respect our copyrights and other industrial property rights. They may only be used for the contractually agreed purposes. Products made based on documents, drawings, models or other supplied materials, or according to our specifications, may not be used by the contractor itself nor otherwise exploited on its behalf. The contractor may not offer nor deliver them to third parties.
6. Deadlines, dates
6.1 Compliance with agreed deadlines and dates shall be determined based on the date of receipt of the defect-free delivery and/or service at the place of receipt, or based on successful acceptance testing, if such acceptance testing has been agreed or is provided for by law.
6.2 As soon as the contractor realises that it will not be able to meet agreed deadlines and dates, whether in full or in part, it must inform us immediately, stating the reasons and the expected duration of the delay. Corresponding notifications by the contractor shall not affect the statutory rights and claims to which we are entitled in the event of default.
7. Contractual penalty due to default
If a contractual penalty has been agreed and incurred in the event of default, we may assert this penalty until the invoice for the delayed goods or services has been settled, without having to expressly reserve the right to do so when the goods/services were received.
8. Partial deliveries, excess deliveries or short deliveries
8.1 Partial deliveries or partial services require our prior written consent. If we accept such deliveries without having agreed to them previously, this shall not result in the associated payment obligations becoming due earlier, nor does it constitute our agreement to pay for additional transport costs.
8.2 We reserve the right to recognise excess or short deliveries in individual cases. If excess deliveries are made without prior written consent, we shall be entitled to refuse acceptance of the delivery, to store it at the contractor’s expense or to return it to the contractor.
9. Transfer of risk, receipt/acceptance testing, force majeure
9.1 The contractor shall bear the risk of accidental loss and accidental deterioration until the deliveries arrive at the place of receipt. If acceptance testing is provided for or agreed by law, the contractor shall bear the risk until acceptance.
9.2 Cases of force majeure (in particular labour disputes) and other circumstances beyond our control that are unforeseeable and beyond our control shall entitle us to postpone receipt of deliveries and/or services, or to delay acceptance testing accordingly.
9.3 We are otherwise only obliged to receive deliveries if they have the agreed quality characteristics.
10. Invoice, payment
10.1 Two copies of the invoice shall be submitted separately for each order (stating the order data) after complete defect-free delivery, completion of services or, in the case of performance-dependent services, after their acceptance. We may return invoices without an order number to the contractor unprocessed.
10.2 Unless otherwise agreed in writing, properly submitted invoices shall be paid within 14 days with a 3% discount or within 30 days net. The payment period shall commence upon receipt of the invoice, but not before the defect-free fulfilment of the contract and/or acceptance. Payment shall be deemed to have been made on time if we have instructed the bank to make payment, or, in the case of payment by cheque, have posted the cheque by the last day of the payment period.
11. Notice of defects, rights in the event of defects
11.1 Insofar as the commercial obligation to inspect and give notice of defects applies, our obligation shall be limited to checking the quantity and identity of the goods, checking for externally recognisable transport or packaging damage, and random inspection of the goods for their essential characteristics. If obvious defects are recognisable, we shall notify the contractor of these immediately, but no later than 10 days after delivery; other defects shall be reported immediately after their discovery. In cases of doubt regarding quantities, weights and dimensions, the values determined by us in the goods receipt inspection shall be decisive.
11.2 The contractor is obliged to deliver defect-free goods and services. In particular, these must have the agreed quality characteristics; correspond to the intended use, the current state of the art and the generally recognised technical and occupational health and safety regulations from authorities and professional associations; and comply with the relevant statutory provisions. For products that are subject to the German Foodstuffs and Commodities Act (LMBG), the requirements of the Act must be met. Our approval of submitted drawings, samples and other documents (e.g. written documents, programming, etc.) shall not affect the contractor’s responsibility for the proper performance of the contract.
11.3 In the event of defects and in the event of a warranty claim, we shall be entitled to our statutory warranty rights. Insofar as warranty claims go beyond the statutory rights in the event of defects, these rights remain unaffected by such claims. A period of 36 months shall apply to claims for defects which are subject to the statute of limitations; this period shall commence upon delivery and/or performance or upon acceptance, if such is agreed or provided for by law. This does not affect the validity of longer statutory limitation periods for claims for defects, nor does it affect the progress of the statutory limitation period for guarantees.
11.4 If a defect becomes apparent within the limitation period, we are entitled, at our own discretion, to demand subsequent performance by rectification, subsequent delivery or new production within a reasonable period. In urgent cases, i.e. if the contractor is not available and there is a risk of disproportionately high damage, we have the right to remedy the defect or have it remedied by a third party at the expense and risk of the contractor. We shall inform the contractor of such measures without delay.
11.5 If the contractor fails to provide subsequent performance within a reasonable grace period set, or if the grace period was not applicable in the particular case, we may withdraw from the contract in accordance with the statutory provisions and demand in lieu of performance compensation for damages, reimbursement of futile expenses, or a reduction in price.
12. Third-party property rights
The contractor shall ensure that we do not infringe copyrights, patents or other third-party property rights through the contractual use or sale of its goods and/or services. The contractor shall indemnify us against all claims made against us for infringement of an industrial property right and shall bear the costs of safeguarding the rights if these claims are based on a culpable breach of duty by the contractor. We will inform the contractor immediately in the event of a claim.
13. Product liability, insurance
13.1 The contractor shall indemnify us against all claims arising from product liability if these are attributable to a defect in the goods and/or services provided by the contractor. Under the same conditions, the contractor shall also be liable for damage incurred by us in such cases as a result of appropriate (in type and scope) and necessary precautionary measures, e.g. public warnings or recalls. This shall not affect our right to assert our own claims against the contractor.
13.2 The contractor undertakes to insure the relevant risks to an appropriate amount and shall present this insurance policy to us on request as proof.
14. Data protection
We are entitled to store and process all data required from the contractor to fulfil the contractual relationship with the contractor, including personal data.
15. References/marketing
The contractor is not entitled to use information about an intended or existing contractual relationship for reference or marketing purposes without our written consent. Photography on our premises and in our business facilities is prohibited without our written consent, as is the use and/or publication of the same.
16. Transfer of orders, assignment, offsetting
16.1 The contractor may only transfer the execution of orders or essential parts thereof to third parties with our prior written consent.
16.2 The contractor 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 established or undisputed.
16.3 We object to the contractor’s retention of title provisions insofar as these go beyond the simple retention of title. These require prior written agreement in individual cases. Should it nevertheless occur that subcontractors assert property rights, co-ownership rights or liens against us or have enforcement measures carried out, we shall hold the contractor liable for all damage incurred as a result.
17. Place of performance, applicable law, place of jurisdiction
17.1 The place of performance for all obligations of the contractor shall be the place of receipt; for payments, the place of performance shall always be 31303 Burgdorf, irrespective of the place of receipt.
17.2 German law shall apply The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention; CISG) is excluded.
17.3 The place of jurisdiction is Burgdorf/Hanover.