(referred to below as “Heiderbeck” or “we”)
§ 1 Sphere of validity
These terms of purchase apply exclusively to all of our orders, also those made in future, that are placed with undertakings. The supplier’s general conditions of trade that contradict, deviate from, add to or supplement our terms do not apply unless we have specifically approved such in writing. Our silence to the supplier’s conditions, receipt of a delivery or payment does not signify approval of the supplier’s conditions. If our supplier does not agree with this, it must inform us immediately in writing. In this case, we can revoke our orders without being liable to claims of any kind. We hereby expressly contradict any reference to own conditions of trade printed by form. Provisions in framework agreements and single contracts concluded between the supplier and us, if pertinent, have priority over these terms of purchase.
§ 2 Conclusion of contract
(1) The conditions, amounts and the date of delivery for the articles to be delivered and possibly made by the supplier are determined in single orders between the supplier and us. Unless specifically agreed otherwise, these terms of purchase apply to individual orders, without this requiring a separate reference in the single contracts.
(2) At our request, the supplier is obliged to issue a confirmation of order. If the supplier fails to accept our order within a reasonable deadline set by us, we are able to revoke the order. Changes and supplements made to our order by the supplier are ineffective unless such are confirmed by us in writing.
(3) We reserve the rights of ownership and copyrights to illustrations, calculations and other documents. They may not be made accessible to third parties without out written approval and must be returned to us without further prompting after the order has been completed.
(4) If an application is made to open insolvency proceedings against the supplier’s assets, we can withdraw from the contract until the proceedings are opened, either in whole or for the non-fulfilled part, at our discretion.
§ 3 Prices, terms of payment, exclusion deadline for withdrawal, use of market development funds etc.
(1) The agreed prices are binding. Unless something else has been agreed, the agreed price includes the prevailing value-added tax and the Green Dot (DSD) fee or an equivalent fee. Separate itemisation on invoices shall not be accepted.
(2) We expect invoices to be submitted that conform to the law on the basis of the agreed prices and conditions. A GTIN may not be stated on the invoice for other product or packaging units whose price is not a component of the calculation of the invoice sum. The consequences of an invoice that does not satisfy these requirements shall be borne by the supplier. The same applies to other deficiencies for which the supplier is responsible.
(3) Unless something else has been agreed in writing, we pay by remitting the purchase price within the agreed payment period after delivery of the goods and receipt of a proper invoice able to be reviewed. If premature deliveries are accepted, maturity is governed by the agreed delivery date. In any case, maturity does not arise or payment target deadlines do not start to run before we have satisfactory, proper, correct (electronic) billing vouchers in accordance with the requirements of Para. 2.
(4) The submission of invoices and settlement of agreed, subsequent renumeration and rebates not effective on an invoice, whose exact amount is still not known at the date that the invoice is submitted (e.g. annual turnover discount), shall be agreed individually with the supplier. This must basically take place within 45 days after the settlement period has expired. If the supplier is in default with settlement, we charge the legal default interest to the supplier.
(5) If we do not provide a service or cooperative act agreed with the supplier (referred to together as “performance”) or do not perform conform to contract, the supplier must first grant us a reasonable deadline to provide or rework the performance. If we do not provide the agreed performance within this deadline, the supplier can only declare a necessary (partial) withdrawal from contract within a further deadline of 2 months, starting with the original maturity of the performance we did not provide or did not perform conform to contract. Once this 2-month deadline has expired, (partial) withdrawal from contract is excluded. The foregoing paragraphs 2 und 3 of this item do not apply in case of § 3 Paragraph 8 of these terms of purchase, not even if maturity of performance has not been determined.
(6) In case of a defective delivery, we can hold back the payment in a reasonable scope until the delivery is properly fulfilled; other rights accruing to us remain reserved.
(7) The supplier may not assign its claims, nor pledge them, nor have them collected by third parties unless it has our prior permission. In case of an extended reservation of title in favour of an upstream supplier, our approval to assign the claim to the upstream supplier is regarded as granted. § 354 a HGB is unaffected.
(8) If the parties have agreed the payment of market development funds etc., goods-related remuneration, discounts etc. by the supplier and if certain sales activities have been assigned by us on the basis of a separate agreement with the supplier, we are entitled to use the promised subsidies to promote sales of products or the supplier’s services at our discretion. The consideration of these subsidies on the supplier’s invoices submitted within the year does not represent such a special agreement. We shall inform the supplier of the nature and timing of use in a suitable manner.
§ 4 Deliveries, default damages, covering purchases
(1) The delivery date stated in the order is binding.
(2) Default occurs as soon as the delivery date is overshot, unless the supplier is not responsible for overshooting the date.
(3) In the case of default, we are entitled to set a reasonable deadline for subsequent fulfilment by the supplier. After this deadline expires, we can demand a flat-rate recompense for damages of 5% of the order value of the missing amount (without VAT) for each week started, although at most not more than 20 % of the order value of the missing amount (without VAT). Further-going claims under law are reserved. The flat-rate is reduced accordingly if the supplier demonstrates that we have incurred considerably lower damages or none at all as a result of the default.
(4) The foregoing Para. 3 applies accordingly if the supplier default is attributable to an Act of God, but the supplier culpably fails to inform the recipient of delivery of this without delay from the time he became aware of the likelihood of a delayed delivery.
(5) In case of a repeated default of delivery, we can cancel the non-fulfilled part of the order at this time as a whole, with immediate effect, after giving a prior warning.
(6) If delays to deliveries can be foreseen, the supplier must notify us without delay. Our rights in case of default of delivery are not affected by the notification.
(7) The supplier is not entitled to make partial or substitute deliveries unless we have approved such in writing before the delivery. Under-deliveries (i.e. deliveries with less than the contractually stipulated delivery quota) entitle us to pursue recompense for damages instead of performance, including making reasonable covering purchases (also in reference to outside brands compared to our own brands) if the supplier is in default and after a reasonable deadline for subsequent fulfilment has expired. If no covering purchases are made because they were not possible or because they made no economic sense, we accrue the claims under Para. 3 and possibly further-going, legal rights in their entirety due to the under-delivery. In case of fixed transactions, setting a subsequent deadline can be dispensed with. Under the aforesaid circumstances, we are entitled, at our own discretion, to make covering purchases, or to enquire with the supplier or, if neither is possible, to invoice the loss of gross profit to the supplier.This gross profit is calculated from our sales price cleansed of value-added tax, less our buy-in price (without consideration of subsequent remuneration and refunds that are not effective on an invoice as per § 2 Para. 4).
(8) The original delivery note to be given to us in return for a receipt must state our order number, supplier number, possibly the bio control office number for non-food goods and the quantity of dispatch units. The packing unit with the delivery note must be clearly marked. If these prerequisites are not fulfilled, we do not have to accept the delivery and are not responsible for any delays that occur.
§ 5 Transport, transfer of risk, place of fulfilment
(1) Unless agreed otherwise, the delivery is made “delivery duty paid” (DDP according to the Incoterms 2000). The destination and the place of fulfilment shall be stated separately by us. We do not bear any demurrage. The supplier bears any disposal costs incurred for the packaging.
(2) The supplier is liable for damage suffered due to defective packaging.
(3) Goods are returned at the supplier’s expense; in case of returns, the BGB regulations on sale by dispatch apply accordingly to the transfer of risk.
(4) Deliveries are made free to our ramp (including unloading), unless something different is specifically agreed. Packages may not be repacked or sorting work carried out on the ramp.
§ 6 Reservation of title
(1) We reserve the ownership of goods returned by us until our claims from the returns against the supplier have expired.
(2) Even if goods are delivered to us under an effective reservation of title, we are entitled to resell the goods without disclosing their reserved ownership. Any approval we give to a reservation of the supplier’s title only covers an extended reservation of title normal in the trade, which refers to the delivery item to which a claim to the purchase price exists. Approval is regarded as given in this scope, if it would mean that our right of resale would not be created without it. Approval does not cover an extended reservation of title.
§ 7 Quality, documentation and GTIN, quality management, change of product data/characteristics, duty of providing information
(1) The supplier shall ensure that the goods delivered comply with the national and European legal provisions prevailing in the notified country of sale. If we have not notified a country of sale, the Federal Republic of Germany is regarded as the notified country of sale.
(2) The supplier shall ensure that the sales packaging it deploys is licensed with a Dual System in accordance with § 6 VpackVO and shall demonstrate this to us in writing. If it is not possible to prove licensing, we shall perform this and invoice the fees paid plus flat-rate expenses of € 50 per article concerned to the supplier.
(3) The supplier shall ensure that the goods have a GTIN (Global Trade Item Number, formerly EAN) that can typically be read by machines, such as scanner tills. The GTIN must also be present in a format readable by machine (scanner) on the package, the surrounding carton and/or the re-packaging. Furthermore, the delivered pallets must have an EAN-128 transport label (UCC/EAN-128 Transport Label Stage 1) well-visible from the outside on the foil with SSCC (Serial Shipping Container Code), or below the foil in the case of sandwich pallets. If we must create a replacement label for reasons attributable to the supplier, we are entitled to invoice a flat-rate recompense for damages of EUR 2.50 plus VAT for every pallet concerned. The amount is reduced accordingly if the supplier can demonstrate that the actual damages incurred are considerable smaller.
(4) All deliveries must be made on Euro pallets in accordance with the UIC norm 435-2 or on 1/1 Chep pallets. The load carriers must be in a perfect state able to be exchanged. All articles must be labelled on all article levels in accordance with the GS1-Germany recommendation (bar code and plain text). ¼ or ½ displays must be delivered on Euro pallets or 1/1 Chep pallets and provide details of the content and sorting on the outside of the packaging. The pallet size 80 x 120 cm must be complied with and the edges of the goods may not protrude over the pallet. It is essential to comply with the specified time and date of delivery. Vehicles must be deployed that can deal with ramps. We shall invoice a flat-rate expenditure charge of EUR 20 plus VAT for every violation against these requirements. The aforesaid amount is reduced accordingly if the supplier is able to demonstrate that the actual damages incurred are lower. If certain other load carriers (e.g. Düsseldorf pallets or Chep semi-pallets) are stated in the order, the goods must then be delivered on these, and these must likewise be in a perfect state able to be exchanged.
(5) The supplier must have the goods it is to deliver and possibly manufacture examined by an accredited laboratory for compliance with the prevailing legal provisions before they are delivered. In particular, foodstuffs must correspond to the provisions of the Foodstuffs and Fodder Code (LFGB), the Maximum Residual Amounts Ordinance and to the remaining laws on foodstuffs and competition, each in the current version. The products delivered must have the legally required labelling (e.g. designation of the manufacturer) and be produced in accordance with the pertinent safety regulations and directives. The supplier shall ensure that the goods it delivers can be marketed in Germany or in the country of sale notified to it in good time.
(6) If § 10 of Germany’s legislation on consumer goods foresees a declaration of conformity for a product delivered to us by the supplier, this must be available to the supplier. At our request, it must send us this confirmation in German.
(7) The supplier shall ensure that the goods are not subject to sales obligations and are produced for the notified country of sale, that they are original goods and that we do not violate any third-party rights (such as protected commercial rights, brand rights or copyrights) when we market the goods in the notified country of sale. If the supplier is culpable of a violation of these duties, it must release us from all resulting third-party claims and from any costs of legal defence.
(8) The supplier must comply with all the agreed product specifications. Deviations are only admissible with our prior approval in writing. In addition, the supplier shall ensure that the quality of the products is at the best state-of-the-art.
(9) The products to be delivered may not contain genetically modified (genetically engineered) organisms (GMO), nor consist of such, nor be manufactured from GMOs, nor contain ingredients that were manufactured from GMOs, including additives and aromas. Exceptions to this are random or technically unavoidable contaminations with genetically modified material up to a threshold value of 0.9% referred to the individual ingredient. Moreover, the further exceptions under the Directive (EC) No. 1829/2003 the Directive (EC) No. 1830/2003 apply, each in the current version. The supplier may only deliver goods to us for which it has confirmations from its upstream suppliers that the goods delivered to us do not contain GMOs, consist of such, be manufactured from GMOs or contain ingredients that were manufactured from GMOs, including additives and aromas.
(10) The supplier shall ensure that goods falling under Art. 17 of the Regulation (EC) 1935/2004 and under Art. 18 of the Regulation (EC) 178/2002 can be traced.
(11) We have the right to perform a quality audit at the supplier’s premises, including the production works, and inspect quality documents at any time. The supplier shall send evidence (certificate) of the recertification of its quality system to us without delay, without any further prompting, once the certificate is available.
(12) We must be informed of changes to master data or to products (changes to product specifications and/or labels and/or packaging) without delay, without any further prompting. Any changes must be reported at least 6 weeks in advance. These changes include things such as EAN/GTIN, carton contents, sorting, manufacturer, weight changes for equalised articles and logistics data (piece count, carton dimensions, pallet factors), allergens, additives, ingredients, nutritional values or milk treatment. It is essential that the aforesaid deadline is complied with in order to ensure the continued listing with the customer. If the deadline is not complied with, we reserve the right to invoice the damages incurred to the supplier or to return the entire stock of goods. In the latter case, we are forced to charge an additional, administrative charge of € 2,000, unless the supplier is able to demonstrate that we have incurred lower damages or none at all.
(13) The supplier is furthermore obliged to always comply with all the requirements of quality management and its duty of providing information, as in the supplier information form to be given to us separately.
§ 8 Claims to defects and recompense for damages
(1) We shall complain of defects to the goods within a reasonable period after these have been established in the course of regular business operations. Insofar, the supplier shall not invoke the objection of a late complaint. In the case of goods that quickly turn bad (e.g. dairy products and fresh goods), a reasonable deadline is 2 work days. In the case of all other goods, a complaint is made in good time if it is made within 2 weeks.
(2) In case of claims to defects, the supplier is obliged to refund the costs of processing and claiming defects to us. The obligation to refund costs includes the costs of non-used packaging or packaging materials invoiced to us by other suppliers, disposing of stocks in the finished goods warehouse and of relabelling. If the supplier is culpable for the defect, we are entitled to demand a flat-rate charge of 25% of the gross value of the defectively delivered batch, although at least Euro 1,000 for foregone profit, the costs of return, call-back and disposal of goods already delivered to or on the shelves of retail outlets, unless the supplier is able to demonstrate that we have incurred lower damages or none at all.
(3) Claims to defects under law accrue to us in their entirety. Regardless of this, we are entitled to demand a rectification of the defect or a substitute delivery from the supplier at our discretion. The expenses required for the purpose of rectifying the defect or making the substitute delivery are borne by the supplier. The legal rights to recompense damages, in particular those to recompense damages instead of performance, remain unaffected. §§ 478 and 479 BGB apply in the relationship between the supplier and us.
(4) We are entitled to rectify the defect ourselves at the supplier’s expense, if a reasonable deadline set for the supplier to rectify the defect has expired fruitlessly.
(5) In case of our withdrawal, the supplier must take back the delivered goods without delay. In this case, we are moreover entitled, after a warning has expired fruitlessly, to destroy or dispose of the goods or particularly to exploit them otherwise at the supplier’s expense.
(6) If the same goods are repeatedly delivered defectively, then after a written warning, we are entitled to withdraw from the non-fulfilled part of the contract if the delivery is defective again.
(7) Claims expire by limitation of time in 36 months from the transfer of risk. Longer periods of limitation under law are unaffected. If we pursue claims due to legal deficits that are justified by third-party rights, the supplier can only invoke expiry by limitation of time against us after the expiry of the aforesaid period of limitation, if the objection of limitation by time has also been successfully upheld against the third-party.
§ 9 Product liability, insurance, producer liability
(1) If action is taken against us under producer liability or product liability due to a defect in the item delivered by the supplier, the supplier must release us from the producer liability or product liability resulting from the defect to the extent that it is liable to us in the internal relationship, unless the supplier can demonstrate that the defect neither existed nor was created at the date that risk was transferred (see § 6 Para. 1). The supplier shall furthermore release us from all third-party claims to material damages, losses and injury awards, insofar as these are connected with the products delivered by the supplier in the original context.
(2) At our request, the supplier is obliged to demonstrate the extended product indemnity insurance policy it has concluded, which shall have a reasonable coverage for the goods it has delivered. At our request, the policy shall be sent to us within 4 weeks of receipt of our demand.
§ 10 Crisis management, call-backs and public warnings, recompense for damages, recompense for a loss of image
(1) The supplier must maintain a properly functioning crisis management system under its own responsibility. This system must clearly regulate the flow of information and people able to be reached outside office hours to ensure smooth procedures if a crisis occurs. In case of a crisis, it must name to us the person responsible along with his or her current telephone number, under which this person can be reached at any time. Changes must be notified to us immediately in writing without any further prompting.
(2) In case of call-backs of goods delivered to us that are not our own brands, the supplier is obliged to inform our responsible purchaser and our quality officer without delay, in writing, of the call-back, its causes, the further procedure and notify them of all the relevant data (e.g. precise details of the place that the called-back goods were delivered). The supplier must ensure through enquiries that awareness of the call-back is achieved. The supplier is furthermore obliged to refund us for demonstrated, necessary expenses in accordance with §§ 683, 670 BGB, which result from or are connected with a call-back campaign or warnings issued by us or by our buyers, insofar as the call-back campaign or warning is required due to legal provisions, official decrees or due to circumstances that would force a prudent businessman to execute a call-back campaign to defend against threatened losses – not only under asset laws. Necessity is regarded as given in case of call-backs made by the supplier.
(3) The action involved in call-back campaigns shall be performed by the supplier under its own responsibility according to our instructions.
(4) If a threat to health is claimed by official bodies and backed-up by evidence due to the goods themselves or their lack of marketability, we can withdraw from the purchase contract for the articles and return goods already delivered at the expense and risk of the supplier. The same applies in the case of publications pursuant to § 40 LFGB.
(5) The supplier owes us, at our discretion, either the flat-rate recompense for damages as per § 8 Para. 2 Clause 2 or a flat-rate recompense for damages of EUR 1,000 for each call-back of goods in which goods are returned because of the supplier’s culpability; evidence of greater losses remains reserved. We point out that we are obliged to our buyers, insofar as these are retailers, to pay a flat-rate recompense for damages of at least EUR 25 per retail outlet in case of a call-back of goods. The flat-rate is reduced accordingly if the supplier demonstrates that we have incurred lower damages or none at all, or if the supplier is not culpable for the reasons for calling-back goods. We shall release the supplier, insofar as it has paid, from the claims of the aforesaid retail outlet operators for this reason.
(6) If call-back campaigns are demanded by authorities, which become public knowledge without our culpability, or if public warnings are issued to the buyers or end consumers of the deliveries, and insofar as these are based on defects in the delivered goods for which the supplier is culpable, we are entitled to demand a contractual fine of EUR 50,000 (in words: fifty thousand Euro) from the supplier for each case. The contractual fine can be pursued against the supplier for up to three months after the call-back campaign or the public warning.
§ 11 Contractual fine in case of undershooting delivery quotas
If the supplier undershoots the agreed monthly delivery quota of a maximum of 98% for reasons that it is culpable, we are entitled to demand a contractual fine of 5% of the order value of the missing quantities (without VAT) from the supplier, unless the supplier can demonstrate that it is not culpable for undershooting the delivery quota. If we accrue recompense for damages or this has been paid to us by the supplier under other regulations – in particular § 4 Para. 3 and Para. 7 of these terms – due to conduct on the part of the supplier that is connected with or is a (co-)cause for an undershoot of delivery quotas, the contractual fine shall be reduced by this amount.
§ 12 Confidentiality
(1) The parties are obliged to treat all business and operating secrets in confidentiality.
(2) The supplier is furthermore obliged not to make business and operating secrets, which have become known in the course of fulfilling orders, accessible to third parties, unless this is essential to fulfil the orders.
(3) The supplier shall ensure that data carriers - regardless of the type – which contain our business and operating secrets are only copied and replicated to the extent that is essential to fulfil the contract. After completion of an individual order or at the end of the contractual relationship, it shall return such to us completely and without delay, unless they are to be retained under fiscal or commercial law. A right of retention to data carriers - regardless of the type – is excluded. Files no longer required shall be irrevocably deleted using an eraser program.
(4) The supplier is liable to us for any damages incurred as a result of passing on data carriers to third parties for which it is culpable. Insofar, it is liable both for the acts of its own workforce and its own actions. Freelance workers and persons working on behalf of the supplier are also regarded as its workforce.
§ 13 Concluding provisions
(1) If individual provisions in these terms of purchase are unworkable or void, this shall not affect the workability of the remaining provisions or the contract as a whole.
(2) German courts are solely responsible internationally. The place of fulfilment for our payments and the place of jurisdiction is our company’s headquarters, insofar as the supplier is a merchant. However, we are also entitled to initiate action against the supplier at its headquarters. German law shall apply to the exclusion of UN Commercial Law.
As at: 09/11/2018