General Conditions of Purchase dennree (AEB)

Download as PDF

§1 General, scope of application
(1) These GPC apply to all business relationships of dennree GmbH ("dennree") and its affiliated companies with our business partners and suppliers ("Seller"). The GPC only apply if the Seller is an entrepreneur (§14 BGB), a legal entity under public law or a special fund under public law.

(2) The GPC 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, 651 BGB). Unless otherwise agreed, the GPC in the version valid at the time of the Buyer's order or in any case in the version last notified to the 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.

(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.

(4) Individual agreements made with the Seller in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTCP (§305b BGB). Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.

(5) Insofar as primary contractual bases do not regulate deliveries and services or do not regulate them sufficiently, but which are described in more detail in subordinate contractual bases, the subordinate contractual bases shall apply in this respect; the latter shall also apply in the event of gaps or incompleteness of the primary contractual basis in relation to the subordinate contractual basis.

(6) Legally relevant declarations and notifications to be made by the Seller to us after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in text form to be effective.

(7) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GPC.

(8) The quality principles of dennree, as amended from time to time, are an integral part of these GPC.

(9) "Written form" in these GPC also includes text form in accordance with §126b BGB.

§2 Conclusion of contract
(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The seller must point out obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents to us for the purpose of correction or completion before acceptance; otherwise the contract is deemed not to have been concluded.

(2) The seller is obliged to execute our order without delay by dispatching the goods without reservation. A delayed acceptance of the order shall be deemed a new offer and shall require acceptance by us.

§3 Delivery time and delay in delivery
(1) The delivery time stated by us in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, the delivery time customary for the respective goods shall apply. The Seller is obliged to inform us in writing without delay if it is likely that it will not be able to meet agreed delivery times - for whatever reason.

(2) If the Seller does not perform or does not perform within the agreed delivery time or if the Seller is in default, our rights - in particular to rescission and damages - shall be determined in accordance with the statutory provisions. The provisions in para. 3 shall remain unaffected.

(3) If the seller is in default, we may charge a flat-rate cost of 10% of the order value of the goods delivered late. We shall be entitled to demand the lump sum for costs in addition to performance and as a minimum amount of damages owed by the seller according to the statutory provisions; the assertion of further damages shall remain unaffected. The Seller reserves the right to prove a lesser damage.

§4 Performance, delivery, transfer of risk, default of acceptance
(1) Without our prior written consent, the Seller shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).

(2) Delivery shall be made "free domicile" within Germany to the place and time 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 Töpen. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance.

(3) The delivery shall be accompanied by a delivery note stating the date (issue and dispatch), the content of the delivery (item number, quantity, best before date and batch) as well as our order identification (date and number). If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment.

(4) The risk of accidental loss and accidental deterioration of the item shall pass to us upon handover at the place of performance. The handover shall be the same if we are in default of acceptance.

(5) The statutory provisions shall apply to the occurrence of our default in acceptance. However, the seller must also expressly offer us his performance 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 his additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to a non-representable item to be manufactured by the seller (individual production), the seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.

§5 Prices and terms of payment
(1) The prices and conditions agreed at the time of the order are binding.

(2) Unless otherwise agreed in individual cases, 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, excise duties, customs duties, etc.).

(3) The Seller shall be responsible and liable to pay costs for the licensing and disposal under packaging law of the products delivered by it (e.g. participation in the Dual System). The respective quantities subject to registration are available to the Supplier on our mydennreeextranet.

(4) The agreed price shall be due for payment within 42 calendar days of complete delivery and performance and receipt of a proper invoice within the meaning of Section 14 of the German Turnover Tax Act (UStG). If payment is made within 14 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice, and a 2% discount if payment is made within 21 days. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.

(5) Until otherwise notified in writing, payments shall be made by us exclusively to the account specified in the supplier master data sheet.

(6) We do not owe any interest on arrears. Default in payment shall be governed by the statutory provisions.

(7) 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 are entitled to withhold payments due as long as we are still entitled to claims against the Seller arising from incomplete or defective performance.

(8) The Seller shall have a right of set-off or retention only in respect of counterclaims which have been established by declaratory judgment or are undisputed.

§6 Confidentiality and retention of title
(1) We reserve the property rights and copyrights to illustrations. Documents are to be used exclusively for the contractual performance. All documents and confidential information in connection with the supply relationship must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge or confidential information contained in the documents provided has become generally known.

(2) The above provision shall apply mutatis mutandis to templates, samples and other items which we provide to the Seller for production. Such items - as long as they are not processed - shall be stored separately at the Seller's expense and insured to a reasonable extent against destruction and loss.

(3) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. If, however, in an individual case we accept an offer by the seller to transfer title conditional on payment of the purchase price, the seller's retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorised to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the claim arising therefrom (alternatively validity of the simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.

§7 Defective delivery
(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title in the goods (including wrong delivery and short delivery) and in the event of other breaches of duty by the Seller, unless otherwise stipulated below.

(2) In accordance with the statutory provisions, the Seller shall be liable for ensuring that the goods have the contractually agreed quality at the time of transfer of risk to us, in particular also the quality specified in the quality principles dennree. In any case, those product and manufacturing descriptions which - in particular by designation or reference in our GPC - are the subject matter of the respective contract or were included in the contract in the same way as these GPC shall be deemed to be an agreement on the quality. It makes no difference whether the product and manufacturing description originates from us or from the Seller.

(3) Notwithstanding Section 442 (1) sentence 2 of the German Civil Code (BGB), we shall also be entitled to unrestricted claims for defects if the defect remained unknown to us at the time of conclusion of the contract due to gross negligence.

(4) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects with the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection by means of external examination including the delivery documents as well as during our quality control by means of random sampling (e.g. transport damage, wrong delivery and short delivery). In all other respects, 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. In all cases, our complaint (notice of defect) shall be deemed to have been made without delay and in good time if it is received by the Seller within 7 working days. Our obligation to give notice of defects for hidden defects is excluded.

(5) The costs incurred by the Seller for the purpose of inspection and subsequent performance shall be borne by the Seller even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, we shall only be liable if we recognised or were grossly negligent in not recognising that there was no defect.

(6) If the Seller fails to fulfil its obligation to provide subsequent performance - at our discretion either by remedying the defect (rectification) or by delivering a defect-free item (replacement) - within a reasonable period of time set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the expenses incurred in this respect. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without delay, if possible in advance.

(7) Furthermore, 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.

(8) In the event of a defective delivery which causes the Buyer to recall the products, the Buyer may claim a lump sum for costs amounting to 10% of the order value of the recalled products and € 25.00 per affected store. The Buyer shall be entitled to claim these lump-sum costs in addition to performance and as a minimum amount of damages owed by the Seller under the statutory provisions; the assertion of further damages shall remain unaffected. The seller reserves the right to prove a lower damage.

§8 Supplier recourse
(1) We shall be entitled to our statutory rights of recourse within a supply chain (supplier recourse pursuant to §§ 478, 479 BGB) without limitation in addition to the claims for defects. In particular, we are entitled to demand exactly the type of subsequent performance (repair or replacement delivery) from the seller that we owe our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) shall not be restricted hereby.

(2) Before we acknowledge or fulfil a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 478 para. 2, 439 para. 2 BGB), we shall notify the seller and request a written statement, briefly stating the facts of the case. If the statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer; in this case, the seller shall be obliged to prove the contrary.

(3) Our claims from supplier recourse shall also apply if the goods have been further processed by us or one of our customers into another product before being sold to a consumer.

§9 Product liability
(1) If the seller is responsible for product damage, 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.

(2) Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by a third party including recall actions carried out by us. We shall inform the Seller about the content and scope of recall measures - insofar as possible and reasonable - and give him the opportunity to comment. Further legal claims remain unaffected. §Section 7 (8) of these GPC shall apply mutatis mutandis.

(3) The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage.

§ 10 Obligation to notify
(1) All article master data, changes thereto or other relevant circumstances which may affect the quality, condition or labelling of the product must be notified to us immediately via the electronic system mydennree. If we or third parties suffer damage due to incorrect information or changes notified too late (e.g. due to incorrect allergen information), the supplier shall be liable analogous to a defective delivery or in its capacity as producer.

(2) In accordance with the quality principles of the dennree Group, the Seller shall inform us without delay of all significant incidents which are of relevance in connection with our supply relationship. In the event of imminent danger ("crisis"), the Seller shall inform us by telephone and additionally in text form in accordance with the contact details provided in the event of a crisis.

§11 Product pictures
The Seller shall participate in the dennree pack-shot service. Alternatively, he shall provide product images in accordance with the dennree product photography photo guide (latest version).

§12 Limitation
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, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.

§13 Choice of law, contractual language and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GPC and the contractual relationship between us and the Seller to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) The contractual language is German. If any duplicates etc. of this contract or other correspondence have been prepared in other languages, these are solely translations which do not have contractual quality.

(3) All correspondence shall be in German. Communications in other languages are irrelevant.

(4) If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office in Töpen. 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.

Status 01.04.2017