General Terms and Conditions of Purchase
General Terms and Conditions of Purchase for
HUNTER International GmbH
Mittelbreede 5, 33719 Bielefeld
HUNTER Hunde- und Reitsportartikel GmbH,
Mittelbreede 5, 33719 Bielefeld
§ 1 General Information, Ambit
(1) These General Terms and Conditions of Purchase (TCP) apply to all business relations with our business partners and vendors (hereinafter: “vendor”). These TCP only apply if the vendor is a businessman (§ 14 of the German Civil Code), a corporate entity under public law or a legal entity under public law.
(2) These TCP apply in particular to contracts on the sale and/or delivery of chattel (hereinafter also referred to as: goods), irrespective of whether the vendor manufactures the goods or acquires them from external suppliers (§§ 433, 651 of the German Civil Code). The respective version of the TCP shall furthermore also serve as a master agreement for future contracts on the sale and/or delivery of chattel with the same vendor without us having to reference them again in each individual case; we will promptly notify the vendor of any changes to the terms of our TCP.
(3) These TCP are exclusively applicable. Deviating, opposing or supplementary general terms and conditions of the vendor will only become a contract component, when and if we have explicitly approved applicability thereof in writing. This approval requirement applies in all cases, including for instance in the event of our acceptance of deliveries from the vendor without reservation, duly aware of the vendor’s general terms and conditions.
(4) Individual agreements made with the vendor in specific cases (including subsidiary agreements, amendments and addenda) take precedence over these TCP in any case. A written contract or our written confirmation is decisive for the content of such agreements.
(5) Legally relevant declarations and notifications which the vendor is required to submit to us following a conclusion of contract (e.g. deadlines, reminders, cancellations) shall be submitted in writing or electronically (e.g. letter, email, fax) to become effective.
(6) References to the applicability of statutory provisions are solely for the purpose of clarification. The legal provisions also apply without such clarification, unless amended or explicitly excluded directly in these TCP.
§ 2 Conclusion of Contract
(1) Our order is not deemed binding until submitted or confirmed in writing. The vendor shall inform us of obvious mistakes (e.g. clerical and arithmetic errors) and incomplete orders, including order documents, for the purpose of correction or completion prior to acceptance thereof; otherwise the contract shall be considered not concluded.
(2) The vendor shall confirm (accept) our order in writing within three business days. The order confirmation shall include the signature of an authorised person as well as the company stamp. The same applies to order changes.
A late acceptance shall be considered as a new offer and will require our acceptance.
(3) We are entitled to cancel orders prior to receipt of a written order confirmation.
(4) Quotations shall be binding and free of charge unless explicitly agreed otherwise.
(5) The object of purchase shall be specified exclusively in the order. Variations in the order confirmation require our specific confirmation.
§ 3 Delivery Time and Delay of Delivery
(1) The delivery time specified in our order is binding. Compliance with the delivery time and delivery date shall be determined by our receipt of goods or service provision. Unless stipulated as delivery “ex works” (DAP or DDP per Incoterms 2010) the supplier shall have the goods ready in a timely manner, taking into account the amount of time required for loading and shipping, to be coordinated with the carrier.
(2) The vendor shall immediately notify us in writing if the vendor expects - for whatever reasons - that they will be unable to meet the delivery time.
(3) If the vendor fails to render service or does not do so within the agreed delivery time or is in default, our rights shall be determined in accordance with statutory provisions – particularly our right to cancellation and compensation. The stipulations under section 2 remain unaffected.
(4) In the event the vendor is in default we shall be entitled to demand a penalty amounting to 0.8% of the order value per full calendar week, the total not to exceed 5% of the net price of the goods delivered late. We reserve the right to prove that greater damage was suffered. The vendor shall be entitled to prove that no damage or significantly less damage was suffered. We shall be entitled to demand the contract penalty in addition to fulfilment and as the minimum compensation owed by the vendor according to the law; the assertion of claims for further damages remains unaffected. If we accept the delayed service, we will assert the penalty no later than at the time final payment is made.
§ 4 Delivery, Transfer of Risk
(1) The vendor shall pack the goods appropriately. Only environmentally-friendly packaging materials shall be used.
(2) Delivery is “ex works”, duty paid (DDP per Incoterms 2010), incl. packaging and insurance, delivery shall be made with respect to the delivery location specified in the order. In the event we are billed separately for packaging on an exception basis under another agreement, we shall be entitled to return it to the vendor carriage paid for a credit in the amount of 2/3 of the value for the packaging specified in the invoice. In the event that the parties enter into an agreement related to invoicing for packaging, said shall only be invoiced at cost.
In the event that the place of destination is not specified or otherwise stipulated, delivery shall be made to our registered office in Bielefeld. The respective place of destination is also the place of fulfilment (debt to be discharged at creditor’s domicile).
(3) Delivery shall include a delivery note indicating the date (issued and dispatch), contents of the delivery (item number and quantity) as well as our order code (date and number). If the delivery note is missing or incomplete, we shall not be held responsible for delays in processing and payment resulting from this. Apart from the delivery note, a corresponding dispatch note with the same content shall be submitted to us.
(4) The vendor shall procure the export and import licences and other official permits, and handle all customs formalities required for the export and import of the goods and, where applicable, for transit through another country.
(5) Partial deliveries require our prior approval.
(6) The risk of accidental loss and of accidental deterioration of the goods is transferred to us upon delivery to the place of fulfilment unless we do not accept the goods within a reasonable period of time, set by the vendor for this purpose in writing after the expiry of the delivery time, in which case we shall then be deemed in fundamental breach of the contract.
§ 5 Vendor’s Additional Obligations
(1) The vendor shall not be entitled to having services owed rendered by a third party (e.g. sub-contractor) without our prior written approval.
(2) The vendor shall include all accessories and instructions required for the intended use of the goods in the delivery.
(3) The vendor shall provide us with a certificate of origin for each object of purchase without being requested to do so. Certificates of origin shall be consistent with pertinent preferential agreements with the EU. The vendor shall further be responsible for the goods complying with regulations applicable in the country of destination.
(4) The vendor shall provide us or our agent with samples for testing purposes. The vendor shall bear the cost of the samples and freight. Upon delivery the sample shall become our property. The vendor guarantees the goods later delivered to correspond with the sample approved by us. In addition to the sample the following documents shall be provided at a minimum: bill of materials including manufacturer and origin, certificates, etc., production schedules, design and layout drawings. The quantity and consignees of the samples shall be specified in the respective order.
§ 6 Pricing and Terms of Payment
(1) The price indicated in the order is binding. All prices are net, not including value added tax, to be indicated separately, where applicable.
(2) Unless otherwise stipulated in isolated cases, the price includes all of the vendor’s services and ancillary services as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
(3) The stipulated price is due for payment within 60 calendar days from complete delivery and performance (including any inspection where agreed) as well as receipt of a proper invoice. In the event the goods are received after receipt of invoice, the term of payment shall commence on the date the goods are received. Payment is made subject to invoice verification.
(4) The invoice shall indicate the order number. A proper invoice shall further include the following documents:
Proof of delivery (POD) or the bill of lading (B/L) as well as the properly completed inspection report per our procedural provisions regarding the quality standards specified in our instructions for quality assurance, which confirms the quality of goods which meets our satisfaction. Invoices shall not be paid prior to receipt of the respective POD or B/L as well as the inspection certificate and other required documents specified in the respective position.
(5) The vendor shall grant a 3% discount on the net amount of the invoice for any payments we make within 14 calendar days. In the case of bank transfers, payment is duly made when our remittance order is received by our bank prior to expiry of the term of payment; we cannot be held responsible for delays caused by the banks involved in the payment process.
(6) We shall not owe any interest on maturity. The annual default interest rate is 6 percentage points above the base lending rate. Statutory provisions apply to the commencement of our default. Deviating hereof, the vendor shall always be required to submit a written reminder.
(7) We shall be entitled to offset and retention as well as the right to claim non-performance of contract to the extent of the law. We shall particularly be entitled to withhold outstanding payments so long as we are still entitled to assert claims against the vendor for incomplete or faulty performance.
(8) The vendor shall only be entitled to offset or retention for counter-claims established as final and absolute or undisputed.
§ 7 Confidentiality
(1) Illustrations, plans, drawings, calculations, executive instructions, product descriptions and other documents we provide for the vendor in line with our business relationship shall be treated as strictly confidential by the vendor and shall remain our property. Such documents may solely be used by the vendor for the contractual service and shall be returned to us upon performance of the contract. The vendor shall not disclose said documents to third parties, including in the period after termination of the contract. The vendor’s duty of confidentiality shall remain effective until the information contained in the documents provided has become common knowledge.
(2) The preceding provision applies accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other objects we make available to the vendor for production. The vendor shall store such objects – so long as they are not processed – at his expense and adequately insured against damage and loss.
(3) Any technical and business information to which we provide access shall not, if and when not verifiably deemed public knowledge, be disclosed to third parties and may only be made available to persons at the vendor’s company who are required to use said information for the purpose of delivery and who are also obligated to confidentiality. Such information or products manufactured or marked with such information and means of production, trademarks and make-ups shall not be duplicated or used in terms of value, or ultimately supplied to third parties without our prior written consent.
(4) The vendor shall not use products manufactured based on documentation created by us, such as drawings, models, etc., or based on our confidential specifications or using our tools or replicated tools, nor offer or supply said products to third parties. This also applies to our print orders accordingly.
(5) Upon our request, the vendor shall return to us all information and objects we provided or loaned promptly and in full.
(6) For every case of infringement of sections 1 to 5, the parties agree the vendor shall pay us a penalty in the amount of EUR 50,000.00 under exclusion of continuation of offence.
§ 8 Provision, Retention of Title
(1) Any processing, mixing or combining (further processing) of the objects provided is carried out for us by the vendor. The same applies to our further processing of the delivered goods, so that we are deemed the manufacturer, thus acquiring ownership of the product no later than when said goods are processed further in accordance with statutory provisions.
(2) It is imperative that the goods shall be transferred to us regardless of the payment of the costs. However, in the event that we accept the vendor’s offer for transfer conditional on payment of the purchase price on an exception basis, the vendor’s retention of title expires no later than upon payment of the purchase price for the goods delivered. In the normal course of business, we shall also be authorised to resell the goods, including in the period prior to paying the purchase price, with the advance assignment of the claim resulting therefrom (alternatively applicability of simple retention of title is extended to resale). All other forms of title retention are in any case consequently excluded, in particular extended or assigned retention of title and retention of title extended to resale.
§ 9 Non-Competition Clause
(1) For the duration of our business relationship, the vendor shall not manufacture competing articles (i.e. accessories for dogs, cats and horses) for another manufacturer, buyer or customer or other third parties, have said articles manufactured by third parties or enable production thereof, or work for said parties, or directly or indirectly hold shares in a rival business or support said business in any other manner.
(2) For every case of infringement the parties agree we shall receive a penalty in the amount of EUR 30,000.00 under exclusion of continuation of offence.
§ 10 Defective Delivery
(1) Unless otherwise defined below, our rights in the event of defects in goods (including incorrect and short delivery as well as inadequate assembly, operating or user instructions) and other breaches of duty committed by the vendor shall be subject to statutory provisions.
(2) Under statutory provisions the vendor is specifically liable for the goods being of the stipulated quality at the time the risk is transferred to us. In any case, the product descriptions, which – in particular based on a description or reference in our order – are the object of the respective contract or were incorporated into this contract in the same manner as these TCP, shall be regarded as an agreement on the quality. Whether the product description is provided by us, the vendor or the manufacturer is irrelevant.
(3) Notwithstanding § 442 sec. 1 sentence 2 of the German Civil Code, we shall be entitled to claims for defects without restriction, even if the defect remained unknown at the time the contract was concluded due to gross negligence.
(4) Statutory provisions (§§ 377, 381 of the German Commercial Code) apply to the commercial duty to examine and give notice of defects, subject to the following condition: Our duty to examine is limited to defects identifiable by external examination during incoming goods inspection, including the delivery documents as well as in the course of our quality control through random sampling (e.g. transport damages, incorrect and short delivery). There is no duty to examine when inspection is stipulated. Furthermore, it depends on to what extent an examination is feasible, taking into account the circumstances of the individual case during the normal course of business.
Our duty to inform of defects identified at a later point in time remains unaffected. In the event a defect is discovered upon delivery, during examination or after the fact, we shall immediately provide written notification thereof (notice of defect). In all cases our notice of defect is deemed prompt and in due time if obvious defects are reported to the vendor within five business days from delivery, and for defects not identifiable during examination within the same period from discovery thereof.
(5) However, the vendor shall also bear costs incurred for the purpose of inspection and rectification if it becomes evident a defect in fact did not exist. Our liability for damages for an unwarranted rectification request remains unaffected; however, in this respect we shall only be liable if we detected or were grossly negligent in failing to detect a defect did not exist.
(6) In the event the vendor does not fulfil its obligation to supplementary performance – at our own discretion by eliminating the defect (repair) or by delivering a product free of defects (replacement) – within a reasonable amount of time set by us, we shall be entitled to eliminate the defect ourselves and demand compensation for expenses incurred in this respect or demand a respective advance payment from the vendor. A deadline is not required if the vendor’s supplementary performance fails or is unacceptable to us (e.g. due to particular urgency, endangerment of operational safety or imminent risk of disproportionate damage); in this case we shall promptly inform the vendor of such circumstances, where possible in advance.
(7) According to statutory provisions we shall further be entitled to reduce the purchase price or withdraw from the contract. Moreover, according to statutory provisions we are entitled to compensation and reimbursement of expenses.
§ 11 Indemnity
(1) The vendor shall indemnify us from all third party claims asserted against us and/or our managing directors and/or shareholders for products or materials supplied by the vendor for any trademark, industrial design, utility model, patent, copyright and other intangible property rights or due to infringement of competition law, provided the vendor is at fault.
The vendor shall bear any costs of appropriate legal defence and prosecution against third parties incurred by us in this regard.
(2) In the event industrial or other intellectual property rights are enforced against us or a legal defect related to the goods is otherwise determined, we shall not forfeit legal remedies to which we are entitled due to the fact we did not notify the vendor thereof.
(3) The vendor shall inform us immediately after becoming aware of any claims of the nature of those stated in sec. (1) and consult with us in detail in the event such claims are asserted against the vendor.
§ 12 Manufacturer Liability
(1) In the event that the vendor is responsible for a product defect, he shall indemnify us from third party claims provided the cause is within the vendor’s control and organisation and the vendor is personally liable in relation to third parties.
(2) In line with its indemnity obligation, pursuant to §§ 683, 670 of the German Civil Code the vendor shall compensate for expenses resulting from or in connection with third party claims, including product recalls we conducted. We shall inform the vendor – where possible and reasonable – of the content and extent of recall measures and give the vendor the opportunity to comment. Any other statutory claims remain unaffected.
(3) The vendor shall procure, maintain and upon request provide proof of product liability insurance with a lump sum coverage of at least 5 M EUR per personal injury/property damage.
§ 13 Rights of Withdrawal and Termination
In addition to the statutory rights of withdrawal, we shall be entitled to withdraw from or terminate the contract with immediate effect if
- the vendor has ceased operations;
- the vendor is in breach of a duty arising from the contract concluded with us and fails to remedy such within a reasonable amount of time not to exceed 30 days from the date of notice.
§ 14 Statute of Limitations
(1) Unless otherwise stipulated below, the contracting parties’ reciprocal claims lapse in accordance with statutory provisions.
(2) Notwithstanding § 438 sec. 1 no. 3 of the German Civil Code, the general statute of limitations for claims for defects is 3 years from the transfer of risk. Where inspection is stipulated, the statute of limitations shall commence at the time of inspection. The 3-year statute of limitations also applies accordingly to claims resulting from defects of title; the statutory limitation period for third party actions in rem (§ 438 sec. 1 no. 1 of the German Civil Code) remains unaffected; in any case, claims resulting from legal defect moreover do not lapse so long as the third party is still able to assert the right – particularly in the absence of a statute of limitation – against us.
(3) The statutes of limitations under sale of goods law including aforementioned extension apply – to the extent of the law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to defect, the regular statutory limitation period shall apply (§§ 195, 199 of the German Civil Code) if the application of the statutes of limitations of the purchase right does not, in isolated cases, result in a longer statute of limitations.
§ 15 Applicable Law and Jurisdiction
(1) These TCP and all legal relations between us and the vendor are subject to the laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods. Requirements and effects of the retention of title are subject to the laws at the respective location of the goods if under those laws the choice of German law is prohibited or void.
(2) In the event the vendor is a merchant as defined by the German Commercial Code, a corporate body under public law or special fund under public law, the exclusive place of jurisdiction – also internationally – for all disputes resulting from this contractual relationship is Bielefeld. However, we shall also be entitled to file action at the place of fulfilment of the delivery obligation. Overriding statutory provisions, particularly related to exclusive jurisdiction, remain unaffected.
Dated: 12 October 2017