General Terms and Conditions of Purchase Arwed Löseke Papierverarbeitung und Druckerei GmbH
§ 1 Scope, form
(1) These General Terms and Conditions of Purchase (GTCP) shall apply to all business relations with our business partners and suppliers ("Seller"). The GPC shall only apply if the Seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GPC shall apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GPC in the version valid at the time of the Buyer's order or, in any case, in the version last notified to the Seller in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
(3) These GTCP shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Seller shall only become part of the contract if and to the extent that we have expressly consented to their application in writing. This requirement of consent shall apply in any case, for example even if the Seller refers to its GTC in the context of the order confirmation and we do not expressly object thereto.
(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and specifications in our order shall take precedence over the GPC. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® published by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
(5) Legally relevant declarations and notifications of the Seller with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) shall be made in writing. Written form within the meaning of these GPC includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declaring party, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.
§ 2 Conclusion of contract
(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller shall point out obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents to us for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not concluded.
(2) The Seller is required to confirm our order in writing within a period of 14 calendar days, stating the binding delivery time, the price and the order number (acceptance).
(3) A delayed acceptance shall be deemed a new offer and shall require acceptance by us.
(4) Offers of the Seller shall be made in writing. The Seller shall be irrevocably bound by its offer for 14 calendar days. The binding period shall commence from the date of submission of the offer. Acceptance of the contract by us shall be effected by written confirmation of our terms and conditions of purchase.
§ 3 Delivery time and delay in delivery
(1) The delivery time specified by us in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be two weeks from the conclusion of the contract. The Seller shall be obliged to notify us in writing without delay if it is likely that it will not be able to comply with agreed delivery times - for whatever reason.
(2) If the Seller does not perform or does not perform within the agreed delivery time or if the Seller is in default, our rights - in particular to rescission and damages - shall be determined in accordance with the statutory provisions. The provisions in para. 3 shall remain unaffected.
(3) If the Seller is in default, we may - in addition to further statutory claims - demand lump-sum compensation for our damage caused by default in the amount of 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the goods delivered late. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage at all or only a significantly lower damage has been incurred.
§ 4 Performance, Delivery, Transfer of Risk, Default of Acceptance
(1) The Seller shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors) without our prior written consent. The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
(2) Delivery shall be made within Germany "free domicile" in accordance with the Incoterms® of the International Chamber of Commerce Paris (ICC) valid at the time of conclusion of the contract to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our registered office in Hildesheim. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).
(3) The delivery shall be accompanied by a delivery bill stating the date (issue and dispatch), the content of the delivery (item number and quantity) and our order identification (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any delays in processing and payment resulting therefrom. A corresponding dispatch bill with the same content must be sent to us separately from the delivery bill.
(4) The risk of accidental loss and accidental deterioration of the item shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis in the event of acceptance. The handover or acceptance shall be deemed equivalent if we are in default of acceptance.
(5) The statutory provisions shall apply to the occurrence of our default in acceptance. However, the Seller must also expressly offer us its performance if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may demand compensation for its additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to a non-representable item to be manufactured by the Seller (individual production), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
§ 5 Prices and terms of payment
(1) The price stated in the order is binding. All prices are exclusive of statutory value added tax. The sales tax shall be expressly stated in the invoice.
(2) Unless otherwise agreed in the individual case, the price shall include all services and ancillary services of the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
(3) The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If payment is made within 8 calendar days, the Seller shall grant us a 4% discount, if payment is made within 14 calendar days, a 3% discount on the net amount of the invoice. In the case of bank transfer, payment shall be deemed to have been made in due time if our transfer order is received by our bank before the expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.
(4) The invoice must contain the order number so that the payment can be properly processed by us. The seller is responsible for all consequences resulting from non-compliance with the obligation, unless he can prove that he is not responsible for the non-compliance.
(5) We shall not owe any interest on arrears. The statutory provisions shall apply to default in payment.
(6) We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, we shall be entitled to withhold payments due as long as we are still entitled to claims against the Seller arising from incomplete or defective performance.
(7) The Seller shall have a right of set-off or retention only in respect of counterclaims that have become res judicata or are undisputed.
(8) Place of performance for our payment obligation is Hildesheim.
§ 6 Secrecy and retention of title
(1) We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known. Special confidentiality agreements and statutory regulations on the protection of secrets shall remain unaffected.
(2) The foregoing provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the Seller for production. Such items shall - as long as they are not processed - be stored separately at the Seller's expense and insured to a reasonable extent against destruction and loss.
(3) Any processing, mixing or combination (further processing) of provided items by the Seller shall be carried out on our behalf. The same shall apply in the event of further processing of the delivered goods by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
(4) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. However, if in individual cases we accept an offer of the seller to transfer title conditional on payment of the purchase price, the seller's retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorized to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the claim arising therefrom (alternatively validity of the simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.
(5) Tools and models which we make available to the Seller or which are manufactured for contractual purposes and are charged to us separately by the Seller shall remain our property or shall become our property. The Seller shall mark them as our property, keep them in safe custody, protect them to a reasonable extent against damage of any kind and use them only for the purposes of the contract. In the absence of an agreement to the contrary, the contracting parties shall each bear half of the costs of their maintenance and repair. However, insofar as these costs are attributable to defects in the items manufactured by the Seller or to improper use on the part of the Seller, its employees or other vicarious agents, they shall be borne solely by the Seller. The Seller shall notify us immediately of any damage to such tools and models which is not merely insignificant. Upon request, he shall be obliged to return them to us in proper condition if they are no longer required by him for the performance of the contracts concluded with us.
§ 7 Defective delivery
(1) The statutory provisions and, exclusively in our favor, the following supplements and clarifications shall apply to our rights in the event of material defects and defects of title of the goods (including wrong and short delivery as well as improper assembly/installation or defective instructions) and in the event of other breaches of duty by the Seller.
(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, those product descriptions which - in particular by designation or reference in our order - are the subject matter of the respective contract or were included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, from the seller or from the manufacturer.
(3) In the case of goods with digital elements or other digital content, the Seller shall owe the provision and updating of the digital content in any case to the extent that this results from a quality agreement pursuant to para. 2 or other product descriptions of the manufacturer or on its behalf, in particular on the Internet, in advertising or on the goods label.
(4) We shall not be obliged to inspect the goods or make special inquiries about any defects upon conclusion of the contract. In partial deviation from Section 442 (1) sentence 2 of the German Civil Code (BGB), we shall therefore also be entitled without restriction to claims for defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
(5) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects, subject to the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, wrong delivery and short delivery) or which are recognizable during our quality control in the random sampling procedure. Insofar as acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later shall remain unaffected. Notwithstanding our duty to inspect, our notice of defect shall be deemed to have been given without undue delay and in good time if it is sent within 5 working days of discovery or, in the case of obvious defects, of delivery.
(6) Subsequent performance shall also include removal of the defective goods and reinstallation, provided that the goods were installed in another item or attached to another item in accordance with their type and intended use before the defect became apparent; our statutory claim to reimbursement of corresponding expenses (removal and installation costs) shall remain unaffected. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, shall be borne by the Seller even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request for rectification of defects shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
(7) Notwithstanding our statutory rights and the provisions in Para. 5, the following shall apply: If the Seller fails to meet its obligation of subsequent performance - at our option by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery) - within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the expenses required for this purpose or a corresponding advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without undue delay, if possible in advance.
(8) Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
(9) The Seller warrants that the goods may be further processed or resold in the European Union without any patents or other industrial property rights being opposed thereto.
§ 8 Property rights
(1) In accordance with this Paragraph 1, the Seller shall be responsible for ensuring that no third party industrial property rights are infringed by products supplied by him in countries of the European Union or other countries in which he manufactures the products or has them manufactured. He shall be obliged to indemnify us against all claims asserted against us by third parties due to such infringement of industrial property rights and to reimburse us for all necessary expenses in connection with such claims. This shall not apply if the supplier proves that he is neither responsible for the infringement of industrial property rights nor that he should have been aware of the infringement at the time of delivery if he had exercised due commercial care.
(2) Our further legal claims due to defects of title of the products delivered to us shall remain unaffected.
§ 9 Supplier recourse
(1) We shall be entitled to our legally determined claims for expenses and recourse within a supply chain (supplier recourse pursuant to Sections 478, 445a, 445b or Sections 445c, 327 para. 5, 327u German Civil Code) without limitation in addition to the claims for defects. In particular, we shall be entitled to demand exactly the type of subsequent performance (repair or replacement) from the Seller that we owe our customer in the individual case; in the case of goods with digital elements or other digital content, this shall also apply with regard to the provision of necessary updates. Our statutory right of choice (Section 439 (1) BGB) shall not be restricted hereby.
(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2), (3), (6) sentence 2, 475 (4) of the German Civil Code (BGB)), we shall notify the Seller and request a written statement, briefly setting out the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall have the burden of proof to the contrary.
(3) Our claims from supplier recourse shall also apply if the defective goods have been combined with another product or further processed in any other way by us, our customer or a third party, e.g. by installation, attachment or installation.
§ 10 Producer liability
(1) If the Seller is responsible for product damage, it shall indemnify us against claims of third parties to the extent that the cause lies within its sphere of control and organization and it is itself liable in relation to third parties.
(2) Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by third parties including recall actions carried out by us. We shall inform the Seller about the content and scope of recall measures - to the extent possible and reasonable - and give him the opportunity to comment. Further legal claims shall remain unaffected.
(3) The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage.
§ 11 Limitation
(1) The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise stipulated below.
(2) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims for defects shall be 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for claims in rem of third parties for surrender of goods (Section 438 (1) No. 1 BGB) shall remain unaffected; in addition, claims arising from defects of title shall in no case become time-barred as long as the third party can still assert the right against us - in particular in the absence of a limitation period.
(3) The limitation periods of the law on sales including the above extension shall 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 (§§ 195, 199 BGB) shall apply for this, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
§ 12 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GPC and the contractual relationship between us and the Seller to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Hildesheim. The same shall apply if the Seller is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation pursuant to these GPC or a prior individual agreement or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
Status: May 2023