Status: June 2021
1.1 These General Terms and Conditions of Purchase (GTCP) of VPF- Veredelungsgesellschaft mbH für Papiere und Folien Co. KG (hereinafter also referred to as “VPF”) shall apply to all business relations with our business partners and suppliers (“seller”). The GTCP shall only apply if the seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.2 The GTCP 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 GTCP in the version valid at the time of the buyer’s order or in any case in the version last notified to the buyer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
1.3 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 we accept the seller’s deliveries without reservation in the knowledge of the seller’s General Terms and Conditions.
1.4 Individual agreements made with the seller in individual cases (including collateral agreements, supplements or amendments) shall in any case take precedence over these GTCP. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.5 Legally relevant declarations and notifications of the seller with regard to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing, i.e. in written or 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 declarant, shall remain unaffected.
1.6 References to the applicability of statutory provisions shall only have a clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTCP.
II. Conclusion of contract
2.1 Our order shall be deemed binding at the earliest upon written submission or confirmation. The seller shall notify us of any obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion prior to acceptance; otherwise the contract shall be deemed not to have been concluded.
2.2 Each order and/or change to the order must be confirmed by the seller in writing. This express acceptance by the seller shall be deemed equivalent to the implied acceptance of the offer to conclude the contract by the seller commencing performance.
2.3 VPF shall be entitled to demand changes to the delivery item even after conclusion of the contract, provided this is reasonable for the seller. Such a change to the contract shall reasonably take into account the effects on both sides, in particular additional and reduced costs as well as effects on the time schedule.
2.4 Deviations from our order and the documents submitted or changes in the nature, quality, performance or in the raw materials or the manufacturing process of the goods or services to be delivered compared to the previously delivered or agreed design require our prior written consent and must be announced in writing at least twelve months in advance.
2.5 In the event of delivery according to drawings or plans and specifications of the goods by us, the stated dimensions, tolerances and specifications shall be strictly observed. They shall take precedence over any general standards.
2.6 In the case of call off orders, we shall be entitled to determine the time of the call off and the amount of the respective quantity to be purchased (unless otherwise agreed) within the agreed call off period of at least nine months at our reasonable discretion, taking into account our respective requirements.
III. Performance, delivery and delay in delivery
3.1 Our prior written consent is required for passing on the order or part of the order to third parties (subcontractors) unless this involves minor ancillary work. The seller shall be liable for third parties commissioned by him even if our consent to the transfer has been given.
3.2 The delivery/service deadlines noted on our orders are binding and must be observed without fail. If a time limit has been agreed for the performance of the service, this time limit shall commence upon receipt of the order by the seller, unless otherwise stipulated.
3.3 As soon as the seller is able to recognise that it will not be able to fulfil its contractual obligations in full or in part or not in time, he shall notify VPF of this in writing without delay, stating the reasons and the expected duration of the delay. If the seller fails to give such notice, he shall not be entitled to invoke the impediment to VPF.
3.4 If the seller fails to perform or fails to perform within the agreed delivery period 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 provision in clause 1.5 remains unaffected.
3.5 If the seller is in default, we shall be entitled, after prior written warning, to demand a contractual penalty of 0.5% for each commenced week of the delay in delivery, up to a maximum of 5% of the order value, unless the seller is not responsible for the delay. A contractual penalty paid hereunder shall be set off against the default damage to be compensated by the seller. The contractual penalty may be claimed up to the due date of the final payment without this requiring a reservation.
3.6 All deliveries shall always be made by free delivery including packaging 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 place of business in Sprockhövel. The respective place of destination is also the place of performance for the delivery and any subsequent performance (obligation to deliver). Partial deliveries are only permissible with our prior written consent.
3.7 Insofar as the delivery items are machines, facilities or equipment, the supplier shall keep spare parts ready for delivery for the duration of the normal use of the delivered goods, at least for a period of ten years, and shall supply VPF as required at standard market conditions.
3.8 Insofar as a delivery date has been agreed, VPF reserves the right to return the delivery at the seller’s expense in the event of premature delivery. If VPF decides not to return the goods, the goods shall be stored at VPF until the agreed delivery date at the expense and risk of the seller.
IV. Transfer of risk and default of acceptance
4.1 The risk of accidental loss and accidental deterioration of the goods 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 accordingly in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
4.2 The statutory provisions shall apply to the occurrence of our default in acceptance. However, the seller must expressly offer us his performance even if a specific or determinable calendar time has been agreed for an action or cooperation on our part. If we are in default of acceptance, the seller may demand compensation for its additional expenses in accordance with the statutory provisions. 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.
V. Prices and terms of payment
5.1 The prices stated in our order are fixed prices. They are understood to be free delivery including packaging as well as the respective statutory value added tax.
5.2 Unless otherwise agreed in the individual case, the price includes all services and ancillary services of the seller as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
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 shall grant us 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.
5.4 We do not owe any interest on arrears. The statutory provisions shall apply to default in payment.
5.5 We shall be 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 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.
5.6 The seller shall have a right of set-off or retention only in respect of counterclaims which have become res judicata or are undisputed. The seller may assign claims arising from the business relationship to third parties only with our written consent.
VI. Secrecy and Retention of Title
6.1 We reserve the property rights and copyrights to our own sketches, drafts, plans, final drawings, originals, calculations, implementation instructions, product descriptions and other documents. The seller shall maintain such documents in a usable condition at his own expense, and shall in particular care for and maintain them in a proper and professional manner. They shall be returned to us in proper condition at any time upon our request, including copies made, at the latest when they are no longer required for the execution of the order.
6.2 All items of the type mentioned above may only be used within the scope of the cooperation with us and within the scope of the intended purpose. They may not be made available to third parties for inspection or disposal without our prior written consent.
6.3 The above provisions shall also apply to such items which the supplier manufactures himself or has manufactured for the manufacture of the products intended for us and the manufacturing costs of which are borne by us in whole or in part, irrespective of whether these items become our property or not in accordance with the respective agreements.
6.4 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 goods supplied 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.
6.5 The transfer of ownership of goods to us shall be unconditional and without regard to payment of the price.
6.6 If, by way of an individual agreement, we accept an offer of the seller for transfer of 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. VPF shall remain authorised to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the claims arising therefrom; alternatively, the simple retention of title extended to the resale shall apply. In any case, all other forms of retention of title are excluded. This applies in particular to the extended reservation of title, the forwarded reservation of title and the reservation of title extended to further processing.
VII. Liability for defects and other warranty
7.1 The seller warrants that the goods and/or services owed do not have any defects impairing their value or suitability, that they have the agreed or contractually presumed quality and that they are suitable for the use presumed under the contract. Furthermore, the seller warrants that the delivery or service owed complies with the generally recognised rules of technology, the latest regulations of the authorities, the Product Safety Act, the respectively applicable safety requirements and the occupational health and safety and accident prevention regulations.
7.2 The seller’s liability shall also extend to parts manufactured and/or supplied by sub-suppliers and services rendered by sub-suppliers.
7.3 We are not obliged to inspect the goods or to make special enquiries about any defects upon conclusion of the contract. Partially deviating from § 442 para. 1 sentence 2 BGB (German Civil Code), we shall therefore also be entitled to claims for defects without limitation if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.
7.4 The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to examine and give notice of defects with the following proviso: Our duty to examine 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 and short delivery) or which are recognisable during our quality control in the random sampling procedure. If 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 remains 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 five working days of discovery or, in the case of obvious defects, of delivery.
7.5 Parts subject to complaint shall remain in our possession and property until they are replaced. They shall be transferred back to the Seller concurrently with the handover and transfer of ownership of the replacement.
7.6 If the seller fails to fulfil its obligation to provide subsequent performance – at our discretion 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 or have it remedied by third parties and demand reimbursement from the seller of the expenses required for this 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.
7.7 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.
The seller shall take out, at its own expense, a liability insurance policy customary in the industry for damages caused by it, its personnel and/or its agents by services rendered, work delivered or objects. Proof of this insurance must be provided to us upon request. Any further claims for damages to which we may be entitled over and above the insured sums shall remain unaffected.
IX. Supplier recourse
9.1 We shall be entitled to our statutory rights of recourse within a supply chain (supplier recourse) without restriction in addition to the claims for defects. In particular, we shall be entitled to demand exactly the type of subsequent performance (repair 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) shall not be restricted hereby.
9.2 Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 445a para. 1, 439 para. 2 and 3 BGB), we shall notify the seller and request a written statement, briefly explaining 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, it shall be incumbent on the seller to prove the contrary.
9.3 Our claims under supplier recourse shall also apply if the defective goods have been further processed by us or another entrepreneur (e.g. by incorporation into another product).
X. Producer’s liability
10.1 If the seller is responsible for a product defect, he shall indemnify us against claims of third parties to the extent that the cause lies within his sphere of control and organisation and he himself is liable in relation to third parties.
10.2 Within the scope of his own liability for cases of damage pursuant to Clause 1.1, the seller shall also be obliged to reimburse the buyer for any expenses pursuant to Sections 683, 670 or pursuant to Sections 830, 840, 426 of the German Civil Code (BGB) which arise for us from or in connection with a recall action lawfully carried out. This shall also apply to precautionary recall actions.
10.3 The seller shall take out and maintain product liability insurance in an appropriate amount to cover this risk.
10.4 We shall inform the seller about the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment.
10.5 In all other respects, the seller shall be liable in accordance with the statutory provisions.
XI. Quality assurance and documentation
11.1 The seller shall implement and maintain effective quality assurance (e.g. in accordance with ISO 9001 or any subsequent or supplementary standards). Upon request, the seller shall provide us with evidence of such measures.
11.2 We shall be entitled to inspect the quality assurance measures ourselves or through third parties commissioned by the Seller after giving notice.
11.3 Insofar as the seller is a supplier within the meaning of Article 3 No. 32 of the REACH Regulation (Regulation (EC) 1907/2006), it undertakes to fulfil the obligations incumbent upon it with regard to the delivery of the goods.
11.4 The seller further ensures that all substances contained in the goods are effectively registered in accordance with the relevant requirements of the REACH Regulation for the uses notified by us, unless they are exempted from the registration obligation, and that they are registered in accordance with the requirements of the REACH Regulation. Registration obligation, and that they are authorised where necessary. This shall apply accordingly to substances released from articles within the meaning of Article 7 of the REACH Regulation.
11.5 In accordance with Good Laboratory Practice (GLP), ChemG and GefstoffV as well as REACH-VO, the seller is obliged to provide us with the necessary, prescribed information, leaflets and/or data sheets as well as the test reports without being requested to do so. The seller shall comply with the statutory general and special recording and documentation obligations and shall demand the same from its upstream suppliers, if any. VPF must be provided with all the necessary information, in particular documentation, manuals, instructions for use, either in written or electronic form, at the latest upon delivery.
XII. Compliance with laws
12.1 The seller is obliged to comply with the relevant statutory provisions in connection with the contractual relationship. This applies in particular to anti-corruption and money laundering laws as well as antitrust, labour and environmental protection regulations.
12.2 The seller shall ensure that the products delivered by it comply with all relevant requirements for placing on the market in the European Union and the European Economic Area. Upon request, he shall provide us with evidence of conformity by submitting suitable documents.
12.3 The seller shall use reasonable efforts to ensure that its sub-suppliers comply with the obligation’s incumbent on the seller under this provision.
The seller is expected to conduct its business operations and business practices in a manner that promotes the sustainable use of resources. In this context, the seller shall implement ethical, social and environmental standards. VPF is entitled to verify the seller’s sustainability level by means of a requested self-assessment (e.g. online, written questionnaire, etc.) or by means of an on-site audit carried out by VPF or a third party.
14.1 The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
14.2 Notwithstanding § 438 para. 1 no. 3 BGB and § 634a para. 1 no. 1 BGB, the general limitation period for contractual claims for defects shall be 3 years from the passing of risk. Insofar as an early acceptance has been agreed in the cases of § 634a para. 1 no. 1 or no. 2 BGB, the limitation period shall commence at the earliest with the final 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 (§ 438 para. 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 – in particular in the absence of a limitation period – against us.
14.3 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 in this respect, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.
XV. Final Provisions
15.1 These GTCP and the contractual relationship between us and the seller shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
15.2 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 – including international – place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Sprockhövel. The same shall apply if the seller is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCP or a prior individual agreement or at the general place of jurisdiction of the seller. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
15.3 Should individual provisions of the contract be or become void or ineffective in whole or in part, this shall not affect the validity of the remaining provisions.
15.4 Insofar as provisions have not become part of the contract or are ineffective, the content of the contract shall primarily be governed by the statutory provisions (§ 306 para. 2 BGB). Only in other respects and insofar as no supplementary interpretation of the contract takes precedence or is possible, shall the parties replace the void or invalid provision with a valid provision which comes as close as possible to it in economic terms, taking into account the mutual interests.