1.1 These General Terms and Conditions of Purchase (hereinafter called “GTC”) apply to all transactions between Coloyal GmbH (hereinafter called the “Customer”) and its suppliers (hereinafter called the “Supplier”). The Supplier’s own contradictory, conflicting or supplementary general terms and conditions are expressly rejected; this rejection applies even in the event of the Supplier having specified a particular procedure for such rejection. The acceptance of goods and services as well as payments will not be deemed acknowledgement of the Supplier’s general terms and conditions. This applies even in the event of the Supplier stating that its goods and services are to be supplied solely on its own terms and conditions.
1.2 Where other contractual provisions in an order or in signed supply contracts conflict with these GTC those other contractual provisions will have priority. Otherwise, the various provisions will apply in juxtaposition.
2.1 Orders or call-offs for goods already ordered (“call-offs”) and associated amendments and additions must be made in written form. Written form is ensured if sent by fax, e-procurement system, email or EDI. The Customer’s orders can only be accepted by the Supplier within 14 calendar days unless a different acceptance period is stated in the order. The Customer’s call-offs will be binding on the Supplier unless the latter objects thereto for good cause in written form within two working days of receipt. The date of receipt by the Customer will determine whether the Supplier gives any notice on time.
2.2 Where appropriate for the Supplier the Customer may request changes to the goods to be supplied or services agreed. Reasonable account is to be taken of the consequences thereof, especially with regard to increased or reduced costs and delivery and performance deadlines.
2.3 The Supplier will only be entitled to effect partial delivery or performance with the Customer’s prior written consent. In such an eventuality the remaining quantity is to be shown on the delivery note.
2.4 All of the Supplier’s correspondence is to be addressed to the Customer’s purchasing agent designated in the order along with details of the SAP order number – where available.
Unless expressly agreed to the contrary, prices are quoted inclusive of all ancillary costs (transportation, packaging and customs clearance) with free delivery to the receiving office, plus VAT. If the Supplier makes general price reductions after the conclusion of a contract but before delivery it must also charge the Customer those prices for the transaction concluded. Unless expressly agreed to the contrary, quotations are binding and free of charge.
4. Invoicing, terms of payment and offsetting
4.1 The Supplier’s invoices must be drawn up in duplicate, stating the item number shown in the order, the name of the Customer’s purchasing agent, the quantity supplied and prices as well as the relevant SAP order number – where available. All payments will be withheld by the Customer until a proper VAT invoice is issued in accordance with the provisions of the UStG [German VAT Act]. If so requested by the Customer an invoice may be replaced by credit note procedure pursuant to the UStG.
4.2 Unless otherwise agreed, payments are to be made in the normal commercial manner within 14 days for a 3% discount or net within 30 days. The place of performance for payment purposes is the Customer’s head office.
4.3 The Customer has the right to offset against debts due to the Supplier all accounts receivable held by group undertakings associated with it under §§ 15 et seq. AktG [German Companies Act].
5. Delivery, packaging, certificate of origin, services
5.1 The Supplier is only entitled to effect delivery after the expiry of an agreed period or certain deadline with the Customer’s written consent.
5.2 The Supplier is under an obligation to use environmentally friendly products and processes in its goods and services as far as economically and technically feasible. The relevant technological rules and regulations, European and German rules and all legislation and regulations applicable at the place of performance and at the place of delivery or performance by the Supplier designated under the contract are to be observed, particularly regulations pertaining to environmental protection, fire protection, hazardous goods and materials and accident prevention. Generally accepted health and safety provisions are to be met.
5.3 The Supplier must attach all necessary delivery documents to its deliveries. The delivery documents must state the delivery address, the SAP order numbers (where available), the item numbers shown in the order, the name of the Customer’s purchasing agent, the quantity delivered, the weight and any other information of relevance to the delivery. Delivery documents that contain errors or are incomplete will entitle the Customer to refuse acceptance. Where machinery is delivered within the meaning of the Machinery Directive (2006/42/EC) the Customer is also to be handed the documents required under the directive, particularly the requisite hazard assessment.
5.4 Deliveries must be packed in a merchantable and proper manner. Environmentally friendly packaging materials must generally be used. If special packaging is agreed the Customer will be entitled to refuse acceptance in the event of non-compliance. Transport packaging is to be taken back by the Supplier at its own expense. Product packaging must be designed in such a manner that it can be disposed of by the Customer in the ordinary course of business at no extra cost. Reusable packaging must be used where possible. Where such packaging is used the Supplier must point this out and clearly mark the reusable material as such. Reusable packaging material will be provided and taken back at the Supplier’s own risk and expense.
The Customer may return to the Supplier freight paid any packaging for which it has been separately charged, in return for reimbursement of 2/3 of the packaging costs charged, provided that the packaging is in a state permitting re-use.
5.5 Where goods are intended for export the Supplier must make a written declaration concerning the customs origin of the goods using the proper form. This declaration must be forwarded to the Customer no later than with the first delivery. The Supplier must ensure that the goods supplied comply with all relevant legislation and, in the case of deliveries to countries other than the country of origin, that they also comply with such provisions in the target country.
5.6 Goods supplied become the property of the Customer once they are handed over to it. Any ordinary retention of title, including extended or augmented retention of title, is expressly refuted.
6. Deployment of personnel
6.1 The Supplier is basically to use its own personnel for supplies and services. The Supplier is to only deploy staff in accordance with the legislation applicable to the performance to be rendered where they hold a valid work permit for the Federal Republic of Germany or, where performance is not to be rendered in Germany, a valid work permit for the particular country where the services are to be supplied or the goods manufactured. The Supplier shall ensure that its personnel is properly registered with social security providers in Germany or the country where the services are supplied or the goods are manufactured and will make sure that taxes and other duties are paid correctly. All applicable tax and social security contributions are to be paid by the Supplier to the relevant bodies (social security bodies, tax office or similar) in full and on time. Employees must be in possession of a valid employment contract with the Supplier and must be remunerated in accordance with the respectively applicable provisions. Employees are to have been instructed by the Supplier to strictly comply with the regulations on occupational safety, the general occupational safety of minors, and any applicable statutory or regulatory requirements. Compliance with the aforementioned regulations is to be constantly monitored by the Supplier.
6.2 The Supplier may only have supplies and/or services provided in whole or in part by a suitable and reliable subcontractor with the prior written consent of the Customer. In such an eventuality subcontractors are to give a written undertaking to maintain confidentiality and data privacy in accordance with the agreements between the Supplier and the Customer. The Customer’s consent does not either limit the Supplier’s obligations or create rights for the subcontractor. The subcontractor acts as the Supplier’s agent.
7. Default, contract penalty
Agreed time limits and deadlines must be met. In the event of delay in delivery the Supplier must pay a contract penalty in the sum of 0.5% of the net order value per week or part thereof, subject to a maximum, however, of 5% of the net order value. Further claims arising from delay will remain unaffected.
The Supplier must promptly inform the Customer of any foreseeable delay. The unconditional acceptance of, or payment for, a delayed delivery or service does not constitute a waiver of the Customer’s claims for delay.
8. Warranty, limitation period, quality assurance, duty to provide information
8.1 The Customer is only required to examine goods supplied for externally identifiable deviations in identity or volume and for externally identifiable damage, especially damage in transit (“obvious defects”) and must promptly notify the Supplier thereof. The Customer will also promptly notify the Supplier of any defects that are not obvious as soon as they are discovered. The duty to examine goods and raise a complaint on time will be fulfilled in the case of obvious defects if the Customer raises a complaint within a period of two weeks of delivery of the goods and, in the case of defects that are not obvious, within a period of two weeks from the date on which a defect is discovered.
8.2 The Supplier must carry out a works inspection of products to be supplied by it, especially an outgoing inspection of the merchandise. The Supplier will ensure that its deliveries conform to the agreed quality standards. The Supplier undertakes to keep records of the inspections carried out and save all results of checks, measurements and inspections in its archives for 10 years. The Supplier must also retain samples relating to the Customer’s respective orders. The Customer has the right to view the aforementioned records and documents and make copies as well as the right to require retained samples to be produced for inspection purposes. Any dispatch costs will be borne by the Customer.
8.3 The warranty period for claims for defects is 36 months from delivery or – where required by law or contract – from acceptance of goods or products. In cases under §§ 438(1) Nos. 1 and 2, 438(3), 634 a(1) Nos. 2 and 3, 634 a(3) BGB [German Civil Code] the limitation period stated therein will apply. The limitation period will begin to run once again in the event of rectification by the provision of a flawless item or flawless work.
8.4 The costs of subsequent performance arising from items delivered being taken by the Customer to a different location following delivery are to be borne by the Supplier.
8.5 In an emergency the Customer may effect subsequent performance itself, or have same effected by a third party, at the Supplier’s expense if the Supplier should fail to agree to effect subsequent performance promptly (maximum of 3 working days).
8.6 Where occupational health and safety regulations have to be adhered to in connection with goods and/or services the Supplier must make express mention thereof in writing.
8.7 Persons deployed by the Supplier or their employees working on the Customer’s site must heed the provisions of the respective works codes and any instructions given by the Customer’s plant security department or authorised staff.
9. Product liability, insurance requirement
9.1 In the event of a client or other third party bringing product liability claims against the Customer the Supplier undertakes, on first demand, to indemnify the Customer in respect of such claims in so far as the cause of such claims lies within the scope of the Supplier’s control and organisation. In cases of fault-based liability the duty to indemnify does not apply if the Supplier is not responsible for the breach of duty. The Supplier shall bear the costs and expenses proportionate to its share of responsibility or fault, including the cost of any legal proceedings or recall process as well as the cost of any other expenditure necessarily incurred by the Customer due to or in connection with a claim being brought by a third party. The statutory rules shall also apply.
9.2 The Supplier is required to maintain lump-sum product liability insurance cover of € 10 million for personal injury / pecuniary loss / material damage and to provide the Customer with proof of reasonable cover on request.
10. Intellectual property right infringements
10.1 The Supplier undertakes to make a check of intellectual property rights at the place of performance and at the place of delivery or performance designated in the contract. The Supplier warrants that the goods or services to be supplied and the application thereof do not infringe any third-party intellectual property rights or applications.
10.2 The Supplier will be liable for all legal consequences, including all damage, resulting from the infringement of third-party intellectual property rights or applications in the course of contractually agreed use of goods and services supplied by the Supplier.
11. Force majeure
11.1 Force majeure, lawful labour disputes and wildcat strikes, unrest, government measures and other extraordinary unforeseeable circumstances that are no one’s fault will relieve the contracting parties of their duty to effect performance for the duration of the disturbance. This even applies where the events occur during a period when the contracting party concerned is in default. The contracting parties will within reasonable bounds provide one another with the information necessary in this context and adapt their obligations to the change in circumstances in good faith. If the force majeure should continue for a considerable period of time the Customer may cancel the contract in the event of a significant reduction of its needs.
The Supplier must ensure that outside influences over which it has no control, such as a pandemic, will have as little impact as possible on its own operational processes and on agreed performance deadlines. The Supplier must, in particular, take special care to seek alternative means of procuring materials, resources and means of transport in good time – even at extra cost. The Supplier must also take appropriate measures to ensure that its own output and operating ability are maintained as comprehensively as possible.
11.2 The Customer will be released from its duty to take and accept goods / services and will be entitled to cancel the contract if the goods and services to be supplied are no longer viable for it due to the delays caused by force majeure or labour disputes.
12. Safety and security in the supply chain
12.1 The Supplier states, if and when required, that it is an accredited Authorised Economic Operator (AEO) and will prove this by sending a copy of its official certification to the Customer by no later than the date of execution of the contract.
12.2 If the Supplier should not be an accredited Authorised Economic Operator it undertakes to sign the customs security declaration (www.zoll.de), to make the arrangements stipulated therein and to comply with the rules contained therein.
12.3 In the event of the Supplier being wholly or partially in breach of the measures and/or rules contained in the customs security declaration or wrongly completing the “Declaration of Security” attached the Customer will have the right to summarily terminate the contract concerned for good cause.
12.4 The Supplier must also indemnify the Customer in respect of all third-party claims arising in the course of non-compliance or partial non-compliance with the Supplier’s obligations agreed in the customs declaration of security – especially vis-à-vis the authorities – unless the Supplier should not be responsible for the breach of duty in the event of fault-based liability. Any further claims in damages and any other rights and/or claims are not affected hereby.
12.5 Under the law the Supplier bears all costs incurred by the Customer as a result of liability for defects or as a result of non-compliance with individual requirements in the customs declaration of security, including the costs of summary termination.
13. Minimum wage
13.1 The Supplier is required to pay its staff the statutory minimum wage. At the request of the Customer the Supplier must provide it with proof of compliance with that requirement within 14 days during the entire term of the contract and up to six months after the present contractual relationship has come to an end by submitting appropriate documents (especially documents under § 17(1) of the German Minimum Wage Act [‘MiLoG’], a clearance certificate from the relevant social security body, paid leave agency etc).
13.2 The Supplier shall indemnify the Customer, on first demand, in respect of all third-party claims (especially by staff of the Supplier, customers of the Customer, or the German Federal Employment Agency) in connection with breach of the duty to pay the statutory minimum wage.
13.3 The Supplier is required to impose on any of its subcontractors the same duty to make proven payment of the statutory minimum wage and to indemnify the Customer to the same extent as it itself is required to do under sub-clauses 13.1 and 13.2. If the subcontractor should also itself use subcontractors the Supplier must ensure that all of the subcontractors’ own subcontractors are put under a corresponding obligation.
13.4 The Supplier shall be liable to the Customer for all third-party claims arising from a breach of duty to pay the statutory minimum wage on the part of subcontractors.
14. Procurement of energy services, products, facilities and energy
When procuring energy services, products and facilities which have or might have a significant effect on energy consumption the products and services will be assessed for energy efficiency by the central purchasing department or the procurement agency. Energy efficiency will therefore be a decisive factor. All other things being equal, preference will be given to those energy services, products and facilities with greater energy efficiency.
15. Closing provisions
15.1 The contracting parties shall consider all commercial and technical details that are not already public knowledge, together with all information that becomes known to them as a result of their business relationship, to be trade secrets, strictly confidential, and not to be disclosed to third parties in particular. The same applies to data and documentation. The same obligation is to be imposed on subcontractors in writing. Third parties in the above sense mean undertakings that are not group companies affiliated with the Customer within the meaning of §§ 15 et seq. AktG. The aforementioned documentation is to be promptly returned to the Customer free of charge once the contract has come to an end.
15.2 Except where pecuniary claims are assigned in transactions under § 354a HGB [German Commercial Code], rights and duties may only be transferred by the Supplier to third parties with the written consent of the Customer. Third parties in the above sense do not mean undertakings that are group companies affiliated with the Customer within the meaning of §§ 15 et seq. AktG. The place of jurisdiction for all disputes arising from or under the contract and these GTC is the Customer’s head office, with an extra place of jurisdiction for the Customer’s claims being the Supplier’s head office.
15.3 The law of the Federal Republic of Germany shall have exclusive jurisdiction to the exclusion of the UN Convention on the International Sale of Goods (CISG) and private international law.
15.4 If one or more of the provisions of these GTC should be or become invalid in whole or in part the validity of the remaining provisions of these GTC will not be prejudiced thereby. The invalid provision shall be replaced by such other reasonable rule as is closest economically speaking to what the contracting parties wished or would have wished if they had considered the rule to be invalid. The same applies mutatis mutandis if there should be an omission in these GTC.