Purchase and sales conditions
General Terms and Conditions of Purchase of Vantage Leuna GmbH (February 2020)
Section 1 General / Applicability
(1) These general terms and conditions of purchase (“Conditions of Purchase”) shall govern all (including future) contracts regarding the supply of goods and the provision of services between the supplier of goods or services (hereinafter “Contractor”) and Vantage Leuna GmbH (hereinafter “Client”), in as far as and to the extent that nothing to the contrary was agreed in individual contracts.
(2) The Conditions of Purchase shall in particular apply to contracts on the sale and/or the supply of movable goods (“Goods”) irrespective of whether the Contractor manufactures the Goods itself or purchases them from other suppliers (Sections 433, 650, German Civil Code (BGB)). Unless otherwise agreed, the Conditions of Purchase in the version valid at the time of the Client’s order or, in any event, in the version last communicated to the Contractor in writing, shall apply as a framework agreement also for similar future contracts, without the Client having to refer to them in each individual case.
(3) The Conditions of Purchase shall apply exclusively. Confirmation or execution of the order shall be deemed acceptance of these Conditions of Purchase. Deviating, conflicting or supplementary general terms and conditions of the Contractor shall become part of the contract only if and insofar as the Client has expressly agreed to their validity in writing. This requirement of consent shall apply in any case, e.g. even if the Client being aware of the Contractor’s general terms and conditions accepts its supplies without reservation.
(4) Individual agreements made with the Contractor in individual cases (including collateral agreements, supplements and amendments) shall in any case prevail over these Conditions of Purchase. Subject to proof to contrary, a written contract or written confirmation of the Client shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications of the Contractor in relation to the contract (e.g. setting of a deadline, reminders, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(6) Any references to the application of statutory provisions are for clarification purposes only. Even without such a clause, the statutory provisions shall apply, insofar as they are not directly amended or expressly excluded in these Conditions of Purchase.
Section 2 Conclusion of Contract
(1) Orders placed by the Client shall be deemed binding at the earliest upon written submission or confirmation. The Contractor shall notify the Client about obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents and ask for correction or completion before acceptance (Annahme); otherwise, the contract shall be deemed as not concluded.
(2) The Contractor shall be obliged to confirm the Client's orders in writing within a period of two (2) weeks or to execute them without reservation, in particular by dispatching the Goods (Annahme). A delayed acceptance shall be deemed as new offer and requires acceptance by the Client.
(3) Offers and cost estimates of the Contractor shall be free of charge and do not constitute any obligation for the Client. In its offer, the Contractor shall expressly point out any deviations from the Client's enquiry and additionally offer the Client solutions that are technically or economically more favorable than the enquiry.
Section 3 Supply Item
(1) If the order does not state concrete requirements, the Goods or services must be of merchantable quality and, where DIN, VDE, VDI, DUGW or equivalent standards exist, must comply with these and the recognized rules of technology. The Contractor undertakes to comply with all applicable laws, regulations and other directives of the legislator and supervisory authorities, in particular, but not exclusively, with regard to environmental protection, health and safety regulations, including the regulations and guidelines issued by the professional associations with regard to occupational safety and accident prevention regulations.
(2) The Contractor guarantees that supplies and services have not been performed using child, forced or prison labor and - unless expressly agreed otherwise - that delivered products do not contain arsenic, asbestos, benzene, carbon tetrachloride, lead, cadmium or other chemicals listed in the Montreal Protocol.
(3) In performing its obligations, the Contractor guarantees that the Contractor will not make, offer or authorize (whether as remuneration, gift, contribution or otherwise) any direct or indirect payment to any person or organization in violation of any applicable law in order to encourage the conclusion of transactions or to obtain any other business advantage. This includes the law of the United States of America (such as the Foreign Corrupt Practices Act) and the law of the country in which the Contractor provides the services covered by the contract.
(4) The Contractor shall comply with all regulations on export controls, embargoes and sanctions insofar as they are applicable in the respective specific case and insofar as this does not constitute a violation of Section 7 of the German Foreign Trade and Payments Regulation (AWV) or of Regulation (EC) No. 2271/96. These are in particular, but not exclusively
(a) the US Export American Export Regulations (EAR);
(b) the US American International Traffic in Arms Regulations (ITAR);
(c) Sanctions for which the US American Office of Foreign Assets Control (OFAC) of the US Treasury Department is responsible;
(d) US American anti-boycott laws;
(e) Export regulations and export control regulations, embargoes and economic sanction measures of the European Union, as implemented and applied by the respective Member States, and of the Federal Republic of Germany; and
(f) Regulations of other states equivalent and comparable to those mentioned above.
(5) The Contractor shall inform the Client in detail and in writing on possible authorization requirements for (re-)exports for delivered Goods. The Contractor shall provide the Client in writing with the following information: the HS code, the export control position or rather the list number of the US American value share (so-called US content) in the Goods.
(6) The Contractor shall carry out and maintain an effective quality assurance system and provide evidence thereof to the Client upon request. At the Client’s request, the Contractor shall apply a quality management system in accordance with ISO 9000 et seq. or equivalent. The Client is entitled to inspect this quality assurance system itself or to have it inspected by third parties authorized by the Client.
(7) Upon supply of the Goods or performance of the service, the Contractor shall provide a delivery note stating the order number and indicating the total quantity and value of the Goods or services. Quantity tolerances are only permissible if explicitly stipulated in the contract.
(8) The agreed technical documentation, test certificates, certificates of analysis, instructions for use and the like shall also be included in the scope of delivery. Without explicit agreement, the scope of supply shall also include all documents required for commissioning, storage, maintenance and servicing of the contractual object. The documentation shall be sent in German. Customary commercial clauses shall be interpreted in accordance with Incoterms 2020.
(9) Changes to the supply item and the service provided require the prior written approval of the Client.
Section 4 Prices / Invoice / Terms of Payment
(1) The price specified in the order shall be binding and does not include statutory VAT.
(2) Unless otherwise agreed in individual cases, the agreed net price shall include all services and ancillary services of the Contractor as well as all incidental costs (e.g. proper packaging, transport costs including any transport and liability insurance, inspection, examination and certificates).
(3) The supplies and services provided shall be invoiced in compliance with the respective valid legal requirements for invoices according to the VAT law of the respective countries of the invoiced supplies/services. The Contractor shall issue the invoice in duplicate for each order. The invoice shall state the complete order number of the Client and, if available, the delivery note number of the Contractor. The invoice shall be accompanied by proof of performance and other supporting documents. Invoices shall comply with the details in the order with regard to the description of Goods, price, quantity, order of items and item number. The invoice shall be sent to the invoice address specified in the Client's order.
(4) Unless otherwise agreed, payment periods shall begin to run from the date of receipt of invoices complying with the aforementioned requirements.
(5) The agreed price is due for payment within thirty (30) calendar days from complete supply and performance (including any agreed acceptance) and receipt of a proper invoice. If the Client effects payment within fourteen (14) calendar days, the Contractor shall grant the Client a three (3) % discount on the net invoice amount. In case of bank transfer, payment shall be deemed as effected if the bank receives the Client's transfer order before expiry of the payment period; the Client shall not be responsible for delays caused by the banks involved in the payment process.
(6) The Client shall not owe interest on the due date. Statutory provisions shall apply to default of payment.
(7) The Client is entitled to set-off and retention rights as well as the defense of non-performance of the contract (Einrede des nichterfüllten Vertrages) to the extent permitted by law. In particular, the Client is entitled to withhold due payments as long as he is still entitled to claims against the Contractor arising from incomplete or default performance.
(8) The Contractor shall only have a right of set-off or retention based on counterclaims that are legally established or undisputed.
(9) Payment does not imply any acceptance of conditions and prices and does not affect the Client's rights due to improperly or incompletely performed supply/service, the Client's rights of inspection and the right to object to an invoice for other reasons.
Section 5 Delivery Period / Default in Delivery
(1) The Contractor shall meet the deadlines agreed for the supplies and services. The delivery of the defect-free Goods to the Client during normal business hours with the necessary shipping documents at the place specified in the order (Leistungsort) shall be decisive for compliance with the delivery date in the case of delivery of Goods. If a delivery including assembly/service is agreed between Contractor and Client, the delivery of the defect-free Goods after proper execution of the assembly/service is decisive for the timeliness of the delivery. If acceptance is stipulated by law or contractually agreed, the point of time of acceptance shall be decisive. Premature supply/service or partial delivery/partial services require the prior consent of the Client.
(2) If the Contractor realizes that it cannot meet its contractual obligations completely, partially or not in time, the Contractor will notify the Client thereof without undue delay (unverzüglich) in writing, stating the reasons and the expected duration of the delay. The unconditional acceptance of a delayed (partial) delivery/(partial) performance shall not constitute a waiver by the Client of any rights in respect of the untimely (partial) delivery/(partial) performance.
(3) The Contractor shall be obliged to request in good time any documents that may have to be provided by the Client for the execution of the order.
(4) In the event of default by the Contractor, the statutory provisions shall apply, in particular with regard to revocation (Rücktritt) and compensation for any damage caused by the default. Additional costs, especially in the case of necessary covering actions, shall be borne by the Contractor.
Section 6 Packaging / Dispatch / Transfer of Risk / Default in Acceptance
(1) The Contractor shall pack the Goods/services in a way that avoids transport damage and shall be liable for damage due to improper packaging. At the Client’s request, the Contractor shall collect all (transport and sales) packaging at the place of destination or have it collected by third parties. The Contractor shall pack, mark and dispatch dangerous products in accordance with the relevant national and international regulations.
(2) Without our prior written consent, the Contractor shall not be entitled to have the owed service performed by third parties (e.g. subcontractors). The Contractor shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
(3) Delivery shall be made free of charge (Frei Haus) within German to the place specified in the order or the place where the assembly/service is to take place. If the place of destination is not specified and unless otherwise agreed, delivery shall be effected to the Client's place of business in Stendal. The respective place of destination shall also be the place of performance (Leistungsort) for the delivery and any subsequent cure (Bringschuld).
(4) Unless otherwise agreed, the delivery shall also comprise the delivery note in duplicate, packing slips, cleaning certificates and test certificates in accordance with the agreed specifications and other necessary documents. All shipping documents and the outer packaging (for packaged Goods) shall, completely and separately from Goods and invoices, contain the following: description of Goods/order number/gross and net weight, number of packages, type of packaging (disposable/reusable), date of completion, transport method, place of delivery (unloading point), consignee, the project number (if applicable) and place of assemby. For deliveries to third countries (imports), the shipping documents must indicate whether the Goods are duty paid or duty unpaid. For duty unpaid Goods, the Contractor shall submit the complete customs clearance documents to the Client. The Contractor shall ensure that the information for the customs pre-declaration procedure is complete, correct and available in good time at the office obliged to make the pre-declaration. In case of cleared Goods, the shipping documents must contain evidence of customs clearance.
(5) Immediately after dispatch of the Goods or provision of services, the Contractor shall notify the Client of the dispatch/provision of services in text form (fax or e-mail).
(6) The Client is entitled to determine the mode and route of dispatch. If otherwise agreed in individual contracts that the Client shall provide means of transport, the Contractor shall be obliged to notify the Client of readiness for dispatch fifteen (15) days prior to dispatch.
(7) Until the actual transfer of the contractually agreed Goods, including the documents mentioned in these Conditions of Purchase at the place of delivery, the Contractor should bear the risk of loss or damage. If a delivery including installation/assembly/service is agreed, the transfer of risk shall take place after proper execution of the installation/assembly/service and actual transfer. If acceptance (Abnahme) is stipulated by law or contractually agreed, the acceptance date shall be jointly determined upon written request of the Contractor. The result of the acceptance shall be recorded in an acceptance protocol. The transfer of risk shall not take place before the Client has confirmed successful acceptance in the acceptance protocol. Acceptance cannot be carried out in any other way, in particular not by means of testing, expert opinions, certificates or proof of work. The payment of invoice amounts does not constitute acceptance.
(8) In case of default in acceptance by the Client, the statutory provisions shall apply. However, the Contractor must also expressly offer its services to the Client if a specific or determinable calendar time (date) was agreed for an action or cooperation of the Client (e.g. provision of material). If the Client is in default in acceptance, the Contractor may demand reimbursement of its extra expenses in accordance with statutory provisions (Section 304 BGB). If the contract relates to an non-fungible item to be manufactured by the Contractor (individual production), the Contractor shall only be entitled to further rights if the Client undertakes to cooperate and is responsible for the failure to cooperate.
Section 7 Manufacturing Inspection / Final Inspection / Weights
(1) The Client reserves the right to inspect the quality of the material used, the accuracy of dimensions and quantities and other quality of the manufactured parts during manufacturing and before supply, as well as compliance with the other provisions of the order at the Contractor's site or those of its sub-contractors.
(2) If the Client has reserved the right of a personal final inspection of the completed supply item at the Contractor's site or of an inspection by an authorized third party, the Client and/or the authorized third party shall be informed in writing about the readiness for the final inspection at least fourteen (14) days in advance.
(3) The costs for production tests and final inspections shall be borne by the Contractor, with the exception of the costs for staff sent by the Client.
(4) If the Client has prescribed final inspection of the completed supply item by a third party, the Contractor shall arrange for the final inspection by the third party free of charge for the Client and shall notify the Client without undue delay of the inspection result, at the latest with the shipping documents.
(5) Production tests and final inspection do not release the Contractor from its performance, liability and warranty obligations. The inspections are not considered as acceptance procedures.
(6) For the determination of weight, the weights delivered, as determined by weighing masters of the Client on the Client’s factory scales shall apply. If weighing is not possible at the Client's premises, the weights determined by the railway authorities proven on the consignment note or, in the case of truck deliveries, those determined by a public weighing machine shall apply. If it is not possible to weigh the supply item, the Contractor must provide evidence of the delivery weight.
Section 8 Origin of Goods
(1) The Contractor shall inform the Client of the non-preferential origin of the Goods (country of origin) and, upon request, provide the Client with a certificate of origin of the Goods.
(2) Insofar as Goods are delivered within the framework of preferential agreements, free trade agreements or corresponding unilateral regulations of the EU, the Goods must comply with the applicable conditions, in particular regarding the origin, of these agreements or unilateral regulations. The Contractor shall provide the Client with required evidence and certificates.
Section 9 Quality / Defective Delivery / Warranty
(1) Statutory provisions shall apply, unless otherwise stipulated below, for the rights of the Client in the event of material and legal defects (Sach- und Rechtsmängel) of the Goods (including incorrect and short delivery as well as improper assembly, defective assembly, operating or instruction manual) and for other breaches of duty by the Contractor.
(2) The Contractor shall be responsible for ensuring that the deliveries and services are free of defects, in particular that they comply with the agreed product or service specifications and, in addition, that they show the contractually guaranteed properties and features. The Contractor shall also warrant that the deliveries and services comply with the state of the art and - if relevant - that the generally accepted state of the art in safety technology, occupational medicine and hygiene regulations is provided by qualified personnel and complies with all relevant legal provisions, including those for registration and approval. If machines, devices or systems are part of the delivery, they must comply with the requirements of the special safety regulations applicable at the time of contract fulfilment.
(3) The Contractor guarantees that all substances contained in the Goods are effectively pre-registered, registered (or exempted from the obligation to register) and, if applicable, authorized in accordance with the relevant requirements of the REACH Regulation for the uses notified by the Client. If the Goods are an article within the meaning of Article 7 of the REACH Regulation, the previous sentence shall apply with regard to substances released by these articles. In addition, the Contractor shall inform the Client without undue delay if a component of a product contains a substance in a concentration exceeding 0.1 mass percent (w/w) that meets the criteria of Article 57 and 59 of the REACH Regulation (so-called substances of very high concern). This also applies to packaging products.
(4) The Client shall notify the Contractor of obvious defects within fourteen (14) days after receipt of the Goods at the place of delivery. The Client shall notify the Contractor of defects that only become apparent at a later point of time within fourteen (14) days of their discovery. The date on which the Client sends such notification to the Contractor shall be decisive for compliance with the deadline. In this respect, the Contractor waives the claim of delayed notification of defects.
(5) In the event of defects, the Client shall be entitled to demand cure of defects (Nacherfüllung) in accordance with the statutory provisions. The choice of the type of cure is at the discretion of the Client. For cure purposes, the Goods shall be made available to the Contractor at the place of delivery or at the place where the Goods are located upon discovery of the defect, at the discretion of the Client. The Contractor shall bear the expenses for the cure. The Contractor shall act in accordance with the operational concerns of the Client when handling the cure of defects. If the Contractor has not carried out the cure of defects within a reasonable period, if cure has failed or if the specification of a deadline was dispensable, the Client may claim the further statutory rights applicable in case of defects.
(6) If the Contractor does not properly fulfil its cure obligation - without rightfully refusing the cure of defects - or refuses the cure seriously and definitively, if the cure failed, a loss of use is to be feared or the cure cannot be postponed for other reasons, the Client is entitled to cure the defect at the expense and risk of the Contractor or to have it cured by third parties and claim reimbursement of the necessary costs from the Contractor. In all other respects, the statutory provisions shall apply. Further rights of the Client arising from liability for defects or guarantees remain unaffected.
(7) Notwithstanding Section 442 para. 1 sentence 2 BGB, the Client shall be entitled to claims for defects without restriction even if the defect remained unknown to the Client due to gross negligence at the time of conclusion of the contract.
(8) Otherwise, in the event of material or legal defect, the Client is entitled to reduce the purchase price or to rescind the contract in accordance with statutory provisions. In addition, the Client is entitled to compensation for damages and expenses in accordance with the statutory provisions.
Section 10 Assignment / Set-off / Retention
(1) The Contractor may only transfer the rights and obligations from the contract with the Client to third parties with prior written consent of the Client.
(2) The Contractor shall notify the Client in writing without undue delay of any transfer of the contract that occurs by act of law and of any change regarding its company name.
(3) The Client may transfer the rights and obligations arising from the contract with the Contractor to third parties at any time without the prior consent of the Contractor.
(4) The Contractor is entitled to offset (Aufrechnung) against undisputed or legally established claims only. The Contractor shall only be entitled to a right of retention (Zurückbehaltungsrecht) if the claim for which he asserts the right of retention is undisputed or legally established and originates from the same contractual relationship.
(5) For advance assignments within the scope of a retention of title (Eigentumsvorbehalt) by the Contractor's subcontractors, consent shall be granted under the condition that a set-off shall also be permissible with counterclaims acquired after notification of the assignment.
Section 11 Liability / Indemnification / Insurance
(1) Insofar as the Contractor is responsible for product damage, the Contractor shall be obliged to indemnify the Client from claims for damages by third parties to the extent that the cause lies within its sphere of control and organization and the Contractor is liable itself in the external relationship. In this context, the Contractor is also obliged to reimburse any expenses pursuant to Sections 683, 670 BGB arising from and in connection with a recall action carried out by the Client. The Client shall inform the Contractor about the content and scope of the recall measure to be carried out as far as possible and reasonable, and give the Contractor the opportunity to comment. The Contractor undertakes to take out product liability insurance with a sum insured that is appropriate to the specific liability risk and to provide evidence of this insurance upon request of the Client.
(2) The Contractor shall otherwise be liable within the scope of the contractual and statutory provisions. He must maintain sufficient liability insurance at its own expense for damages for which the Contractor or its (vicarious) agents (Erfüllungs- und Verrichtungsgehilfen) are responsible. Evidence of the amount of the sum insured per damaging event must be provided to the Client upon request. The Contractor's contractual and statutory liability shall remain unaffected by the scope and amount of its coverage.
(1) The Contractor shall regard the inquiries, orders and the work relating thereto as business secrets and treat them confidentially. The use and application of information provided by the Client, of drawings, models, samples, materials used, data or other documents produced by the Client or the Contractor based on such information require the written consent of the Client. All of the aforementioned Client documents, including recipes and analysis methods etc. which the Client provides to the Contractor for the manufacturing of the supply item or for the performance of the service, as well as the documents prepared by the Contractor according to special information provided by the Client and described in the letter, shall remain the property of the Client and must be returned at any time upon the Client’s request. The Client retains all copyrights to these documents. They must not be reproduced, used for other purposes or made available to third parties. Upon request, all copies or duplicates must also be returned to the Client or be destroyed at the Client's discretion without undue delay. Any right of retention of the Contractor to the Client's documents shall be excluded.
(2) The Contractor shall hand over to the Client the plans, calculations or other documents owed in the agreed number in such good time that complies that the contractual execution deadlines are met. A review of the documents by the Client does not affect the responsibility of the Contractor.
(3) The Contractor shall ensure by appropriate contractual agreements that his employees and (vicarious) agents affected by this confidentiality agreement are also obliged to maintain confidentiality in accordance with the provisions of these Conditions of Purchase. Upon request, the Contractor shall provide the Client with written proof of compliance with this obligation. The Contractor undertakes to take all necessary and suitable precautions and measures to ensure that the confidential information obtained is effectively protected against loss and unauthorized access at all times. The Contractor undertakes to notify the Client in writing without undue delay if he has suffered loss and/or unauthorized access to confidential information.
(4) The Contractor grants the Client the freely transferable right of use and exploitation, without any restrictions as to time, location or purpose, of all plans, drawings, graphics, calculations and other documents concerning the contract, which the Contractor has either produced itself or had produced by third parties. This applies to all known media forms including electronic media, on all image, sound and data carriers. The Client shall in particular have the right to use, reproduce, distribute, modify, develop such work results in whole or in part, in order to have the aforementioned activities carried out by third parties and grant third parties the same full rights of use and exploitation of such work results. The same shall apply to modifications or further developments made in the meantime. The Contractor shall grant the Client the right of use and exploitation of the work results to the extent described above, also for types of use not yet known at the time of placing the order; in this respect the statutory provisions shall apply.
Section 13 Retention of Title
The transfer of title of the Goods to the Client shall take place unconditionally and regardless of the payment of the purchase price. If, however, in individual cases, the Client accepts an offer of the Contractor for transfer of title as the condition for the payment of the purchase price, the Contractor's retention of title shall expire at the latest upon payment of the purchase price for the Goods delivered. In the ordinary course of business, the Client shall remain entitled to resell the Goods in advance of payment of the purchase price and to assign the resulting claim (alternatively, the simple retention of title extended to resale). All other forms of title retention, in particular the extended and forwarded title retention as well as the extension of title retention extended for further processing, are excluded.
Section 14 Termination / Revocation
(1) The contract may be terminated without notice for good cause. A good cause exists in particular if
(a) the Contractor commits a serious breach of duty and fails to remedy the situation within a period set by the Client after receipt of the written complaint, or
(b) a significant deterioration of the financial standing of the other contracting party has occurred which endangers the performance of the contract or the other contracting party does not fulfil its obligation to pay taxes or social security contributions, or
(c) the purchase, the use of the Goods or the service is and/or becomes illegal in whole or in part due to legal or official regulations.
(2) If the Client terminates a contract for good cause and if it is unreasonable for the Client to adhere to further contracts existing with the Contractor for the same good cause, the Client may also terminate other agreements existing at the time of termination and not yet fulfilled against proportional remuneration for the service already provided. In the aforementioned case, the Contractor shall not be entitled to any further claims for damages, reimbursement of expenses or remuneration.
(3) If the Contractor has obtained documents, records, plans or drawings from the Client within the framework of the contract or for the purpose of its execution, the Contractor shall hand them over to the Client in the event of termination without undue delay. The same applies in the event of revocation from the contract.
Section 15 Intellectual Property Rights
(1) The Contractor shall bear the liability that the subject matter of the contract is free of third party intellectual property rights, e.g. patents, copyrights, trademarks or utility models in Germany or in the country of destination to the extent that the Contractor is aware of. In the event of a violation of intellectual property rights, the Contractor shall be obliged to compensate the Client for all damages incurred by the latter as a result. In this case, the Client shall also be entitled to obtain the necessary approval for delivery, commissioning, use, resale, etc. of the subject matter of the contract from the owner of such intellectual property rights at the expense of the Contractor.
(2) The Contractor shall also be liable for ensuring that the supply and use of the subject matter of the contract does not infringe any patents, licenses or intellectual property rights of third parties. Possible license fees shall be borne by the Contractor.
(3) The Contractor undertakes to indemnify the Client from all claims of third parties arising from an alleged possible violation of rights and to reimburse any expenses incurred.
Section 16 Limitation Period
(1) The mutual claims of the contracting parties shall become statute-barred in accordance with statutory provisions, unless otherwise provided for below.
(2) Notwithstanding Section 438 para. 1 no. 3 BGB, the general limitation period for claims arising from defects shall be three (3) years from the transfer of risk. If acceptance was agreed, the limitation period shall commence upon acceptance. The three-year limitation period shall also apply mutatis mutandis to claims arising from legal defects, whereby the statutory limitation period for third party claims in rem for restitution (Section 438 para. 1 no. 1 BGB) shall remain unaffected. Furthermore, claims arising from legal defects shall in no case become statute-barred as long as the third party can still assert the right - in particular in the absence of limitation - against the Client.
(3) The limitation periods of the German sales law, including the above extension, shall apply - to the statutory extent - to all contractual claims for defects. Insofar as the Client is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (Sections 195, 199 BGB) shall apply, unless the application of the limitation periods of the German sales law leads to a longer limitation period in individual cases.
Section 17 Advertising Ban / Applicable Law / Jurisdiction / Data Processing
(1) The Contractor may only refer to the existing business relationship with prior written consent of the Client.
(2) Even if the Contractor does not have its registered office in the Federal Republic of Germany or the place of performance is abroad, the law of the Federal Republic of Germany shall exclusively govern the contractual relationship, with the exclusion of conflict of law principles, in particular UN sales law (CISG).
(3) The exclusive, also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the Client’s registered office in Stendal. However, the Client shall in all cases also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these Conditions of Purchase or a prior individual agreement or bring an action at the general place of jurisdiction of the Contractor. Mandatory statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected.
(4) The Contractor agrees that the data required for the conclusion and/or execution of the contract may be processed and in particular stored and/or transmitted as file extracts to third parties within the Client’s organization.
General Terms and Conditions of Sale and Supply of Vantage Leuna GmbH (February 2020)
Section 1 Applicability / Form
(1) These general terms and conditions of sale and supply (“Conditions of Sale”) shall govern all (including future) contracts regarding sale, supply and services (hereinafter “Supplies”) between Vantage Leuna GmbH as “Seller” and companies, legal entities under public law or special funds under public law as "Purchaser".
(2) The Conditions of Sale shall apply in particular to contracts for the purchase and/or delivery of movable goods (“Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from other suppliers (Sections 433, 650 German Civil Code (BGB)). Unless otherwise agreed, the Conditions of Sale in the version valid at the time of the Purchaser's order shall apply as a framework agreement also for similar future contracts, without the Seller having to refer to them again in each individual case.
(3) These Conditions of Sale shall apply exclusively and shall be deemed accepted at the latest upon receipt of the Goods or services. Deviating, conflicting or supplementary general terms and conditions of the Purchaser shall become part of the contract only if and insofar as the Seller has expressly agreed to their validity. This requirement of consent shall also apply if the Seller, being aware of the Purchaser's general terms and conditions, carries out the Supplies to the Purchaser without reservation.
(4) Individual agreements made with the Purchaser in individual cases (including collateral agreements, supplements and amendments) shall in any case prevail over these Conditions of Sale. Subject to proof to contrary, a written contract or written confirmation of the Seller shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications of the Purchaser in relation to the contract (e.g. setting of a deadline, notification of defects, withdrawal or discount) must be made in writing, i.e. in written or text form (e.g. by letter, e-mail, fax). Statutory formal requirements and further evidence shall remain unaffected.
(6) Any references to the application of statutory provisions are for clarification purposes only. Even without such a clause, the statutory provisions shall apply, insofar as they are not directly amended or expressly excluded in these Conditions of Sale.
Section 2 Conclusion of Contract / Guarantees
(1) Offers of the Seller are non-binding and subject to change without notice, unless they are expressly marked as binding. Offers of the Seller are subject to availability of Supplies and services and may be revoked at any time free of charge.
(2) The order for Goods placed by the Purchaser constitutes a binding offer of contract. The acceptance of the offer (Annahme) may be declared either in writing by order confirmation (also invoice or delivery note) or by delivery of the Goods to the Purchaser. The same applies to collateral agreements, supplements, and amendments.
(3) After the receipt of an order confirmation, the order may only be cancelled by the Purchaser in whole or in part with upon prior written consent of the Seller. If the Purchaser cancels a confirmed order without the Seller’s consent, the Seller may demand either acceptance of the products and the payment of the invoice including default interest, or damages equal to the value of the products.
(4) Information obtained from other data sources than the order itself, such as advertising material, shall not be part of the contract.
(5) Guarantee of quality and durability shall only be considered as guarantees if they are expressly designated as such. The same applies to the assumption of a procurement risk.
Section 3 Prices / Terms of Payment
(1) The prices of the Seller at the time of the conclusion of the contract plus statutory VAT shall apply. Prices shall only be deemed fixed prices if they are expressly designated as such in writing in the contract documents.
(2) The Seller reserves the right to adjust the prices due to changes that may occur after the conclusion of the contract, such as increases in taxes, custom duties, other charges, packaging material, wage costs and purchase prices. The Seller shall promptly inform the Purchaser of the price changes. If the Purchaser does not agree with the price change, both parties shall be entitled to withdraw from the contract or, in the case of continuing obligations, to terminate the contract with effect from occurrence of the price change.
(3) Unless the parties have agreed otherwise, the invoice or an equivalent payment schedule is payable without deduction within (30) days of the receipt of the invoice by direct bank transfer to a bank named by the Seller. The date of receipt of the payment on the Seller’s bank account shall be decisive. Any objections are to be notified immediately and do not justify a deferment of payment. The deduction of a discount is only permissible upon a separate written agreement. Any expenses incurred shall be borne by the Purchaser.
(4) With the expiry of the above payment periods, the Purchaser shall be in default. During the period of default, interest shall be charged on the purchase price at the respectively applicable default interest rate, i.e. in the amount of nine (9) percentage points above the base interest rate pursuant to Section 247 BGB applicable at the time of the occurrence of default. The assertion of further damages caused by default remains unaffected.
(5) The Purchaser shall only be entitled to rights of set-off and retention insofar as its claim has been legally established or is undisputed. In case of defects in the Services, the Purchaser’s counter rights shall remain unaffected.
(6) If a payment date is exceeded, as well as in the event of cessation of payments or knowledge of insolvency proceedings on the part of the Purchaser, the Seller's claims shall be due immediately and in full. The same shall apply if the Seller becomes aware of circumstances which seriously question the creditworthiness of the Purchaser. In such cases, the Seller is entitled to demand advance payments for outstanding Supplies and to withdraw from the contract after a reasonable period of grace has lapsed or to demand compensation for non-performance. Furthermore, the Seller is entitled to prohibit the Purchaser from reselling the Goods and to reclaim unpaid Goods at the expense of the Purchaser.
Section 4 Delivery Period / Default in Delivery
(1) The Seller will always endeavor to deliver as soon as possible. There are no fixed delivery periods unless the parties have agreed to them in writing.
(2) If the Seller cannot meet binding delivery periods for reasons for which it is not responsible (Nichtverfügbarkeit der Leistung), the Seller will immediately inform the Purchaser thereof and of the expected new delivery date. If delivery is still not available within the new delivery period, the Seller shall be entitled to withdraw from the contract in whole or in part; the Seller shall reimburse any consideration already rendered by the Purchaser within two (2) weeks. Non-availability of service within this meaning shall be deemed to be in particular the non-timely self-supply of the Seller by the Seller’s suppliers, if the Seller concluded a congruent hedging transaction, neither the Seller nor its supplier is at fault or the Seller is not obliged for procurement in the individual case.
(3) The occurrence of the Seller's default in delivery shall be governed by the statutory provisions. In any case, however, a reminder from the Purchaser is required. After unsuccessful expiry of the period of grace, the Purchaser may withdraw from the contract for those quantities that have not been delivered by the expiry of the period of grace. Withdrawal from the entire contract shall only be considered if the Purchaser can prove to the Seller that it no longer has a justified interest in it after assessing the overall circumstances.
(4) The Seller is entitled to adequate partial deliveries.
(5) All cases of force majeure, war, strike, lockout, insufficient supply of material, raw material or energy, lack of transport facilities and other similar events or causes outside the sphere of influence of the Seller shall release the Seller from its obligation to fulfil the contract for the duration and to the extent of such obstacles and shall not give rise to any claim for damages. This shall also apply if these events and circumstances occur at the Seller's suppliers or make the execution of the affected transaction uneconomical for the Seller in the long term. The aforementioned circumstances shall also not be the responsibility of the Seller if they occur during an already existing default. The beginning and end of such obstacles shall be notified to the Purchaser in writing without undue delay (unverzüglich). The Seller reserves the right to correct and timely self-delivery. In the event of temporary or complete loss of the Seller's sources of supply, the Seller shall not be obliged to obtain supplies from external suppliers. In this case, the Seller has the right to distribute the available product quantities taking into account its own requirements.
Section 5 Delivery / Transfer of Risk / Default in Acceptance
(1) Delivery is ex works, which is also the place of performance (Leistungsort) for the Delivery and any subsequent performance. At the request and expense of the Purchaser, the Goods shall be shipped to another destination (Versendungskauf). Unless otherwise agreed, the Seller has the right to determine the type of shipment (in particular transport company, shipping route, and packaging). Additional costs caused by special shipping requests of the Purchaser shall be borne by the Purchaser. Transport risks shall only be insured at the express written request of the Purchaser and at the Purchaser’s expense. Further obligations, including liability, shall not result therefrom for the Seller.
(2) If the Purchaser is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the Purchaser is responsible, the Seller has the right to demand compensation for the resulting damage including additional expenses (e.g. storage costs) and to sell the Goods free of charge. Therefore, the Seller reserves the right to claim reasonable compensation per calendar day, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification of readiness for delivery of the Goods. The proof of higher damages and legal claims of the Seller (especially compensation for additional expenses, appropriate compensation and termination) remain unaffected; however, the compensation is to be offset against further monetary claims. The Purchaser reserves the right to prove that the Seller has not incurred any damage at all or that the damage incurred by the Seller is significantly lower than the compensation as set forth above.
(3) Complaints due to transport delays, false reports or transfer damage must be asserted without undue delay by the Purchaser against the Seller’s forwarding agent or carrier.
(4) Orders in which the delivery of the delivery items extends to several delivery instalments shall only be accepted by the Seller if the Purchaser indicates an acceptance date for each delivery instalment and the total period for the delivery of all ordered delivery items does not exceed nine months starting from the first acceptance date. After the expiry of the agreed total period, the Seller has the right to deliver the total remaining quantity to the Purchaser, even if the Purchaser is in default with the acceptance of the previous delivery instalments.
Section 6 Retention of Title
(1) The Seller shall retain title to the delivered Goods until all current and future claims arising from the purchase contract and ongoing business transactions (secured claims) have been paid in full. This shall also apply where payments are made on specially designated claims. In case of current accounts, the reserved Goods (Vorbehaltsware) shall be deemed as security for the balance claim. Exercising the retention of title shall not constitute a withdrawal from the contract.
(2) The reserved Goods may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The Purchaser shall immediately notify the Seller in writing if an application for the opening of insolvency proceedings has been filed or if third parties seize the Goods belonging to the Seller (e.g. attachments (Pfändungen)).
(3) If the Purchaser acts in breach of contract, in particular in the event of non-payment of the due purchase price, the Seller shall have the right to withdraw from the contract without granting a grace period, unless required by mandatory law, and/or to demand the return of the Goods on the basis of the retention of title. Further claims for damages, in particular loss of profit, remain expressly reserved.
(4) Until revocation by the Seller, the Purchaser shall be entitled to resell and/or process the reserved Goods in the ordinary course of business. Resale within this meaning shall also include the installation in land and soil or in systems attached to buildings or the use of the reserved Goods for the performance of other contracts. In this case, the following provisions shall apply additionally:
(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combination of the Seller's Goods, whereby the Seller shall be deemed the manufacturer without obliging the Seller. If, in the event of processing, mixing or combining with goods of third parties, the ownership rights of the third parties remain, the Seller shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. The Purchaser shall keep the ownership thus created in safe custody for the Seller free of charge. In all other respect, the same applies to the resulting product as to the reserved Goods delivered.
(b) The Purchaser hereby assigns to the Seller by way of security all claims against third parties arising from the resale of the Goods or product, either in total or in the amount of the possible co-ownership share of the Seller in accordance with the preceding paragraph. The Seller accepts the assignment. The obligations of the Purchaser mentioned in Section 6 para. 2 shall also apply with regard to the assigned claims.
(c) The Purchaser remains authorized to collect the claim alongside the Seller. The Seller undertakes not to collect the claim as long as the Purchaser fulfils its payment obligations to the Seller, there is no deficiency in its ability to pay and the Seller does not assert the retention of title by exercising a right according to Section 6 para. 3. If this, however, is the case, the Seller may demand that the Purchaser informs the Seller of the assigned claims and their debtors, provides all information necessary for collection of the claims, hands over the relevant documents and informs the debtors (third parties) of the assignment. Moreover, in this case the Seller is entitled to revoke the Purchaser's authority to further sell and process the reserved Goods.
(d) If the realizable value of the securities exceeds the Seller’s claims by more than ten (10) percent, the Seller shall release securities of its choice at the Purchaser's request.
(5) The Purchaser is obliged to adequately insure the reserved Goods at its own expense against all usual risks, in particular against fire, burglary and water hazards and to treat them with care and to store them properly. If maintenance and inspection work is required, the Purchaser shall carry out such work in due time and at its own expense. The Purchaser assigns its claims from the insurance contracts to the Seller in advance.
(6) In case of Supplies to other legal systems in which the above retention of title does not provide the same security effect as in the Federal Republic of Germany, the Purchaser shall do everything possible to provide appropriate security rights for the Seller without undue delay. The Purchaser shall cooperate in all measures such as registration, publication, etc. which are necessary and beneficial for the effectiveness and enforceability of such security rights.
Section 7 Claims of the Purchaser for defects
(1) The statutory provisions shall apply to the rights of the Purchaser in the event of material defects (Sachmangel) and defects of title (Rechtsmangel) (including wrong and short delivery), unless otherwise provided for below. Claims from supplier regress are excluded if the Purchaser or a third party has further processed the defective Goods.
(2) The basis of the Seller's liability for defects is the agreement made on the quality of the Goods. The agreement on the quality of the Goods shall be deemed to include all information and data contained in the order which is the subject of the individual contract. The Seller does not assume any liability for public statements made by a manufacturer or other third parties (e.g. advertising statements) to which the Purchaser has not pointed out to the Seller as being decisive for the Purchaser's purchase.
(3) Claims for defects on the part of the Purchaser presuppose that the Purchaser has properly fulfilled its statutory obligations to inspect and give notice of defects pursuant to Sections 377, 381 of the German Commercial Code (HGB)). In case of Goods intended for installation or other processing, an inspection must in any case be carried out immediately before processing. If a defect is discovered during delivery, inspection or at any later time, the Seller shall be notified thereof in writing without undue delay, but no later than within two (2) weeks after arrival of the Goods at the destination, giving a precise description of the defect and the order or invoice number. If the Purchaser fails to properly inspect the Goods and/or notify the Seller of defects, the Seller’s liability for the defect not notified or not notified in due time or not properly notified shall be excluded in accordance with the statutory provisions and the Goods shall be deemed to have been approved.
(4) At the request of the Seller, the documents, samples and/or the defective Goods related to the Services are to be returned at the expense of the Seller. The Purchaser shall choose the least expensive mode of dispatch. In addition, the Purchaser shall secure evidence in a suitable form and shall give the Seller the opportunity to inspect the defective Goods upon request. As far as the Purchaser does not comply with these obligations, claims of the Purchaser due to defectiveness or incompleteness of the Services are excluded.
(5) If the Goods are defective, the Seller may as cure (Nacherfüllung) either eliminate the defect (Nachbesserung) or provide a Good free of defects (Ersatzlieferung). The right of the Seller to refuse cure under the statutory conditions remains unaffected. In addition, the Seller has the right to condition the cure owed upon the Purchaser paying the due amount or an appropriate part of the purchase price.
(6) The Purchaser shall give the Seller the time and opportunity required for the owed cure, in particular to hand over the rejected Goods for inspection purposes. In case of a replacement delivery, the Purchaser shall return the defective item to the Seller in accordance with the statutory provisions.
(7) The Seller shall bear or reimburse the expenses required for the purpose of inspection and cure, in particular transport, travel, labor and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, the Seller may demand that the Purchaser reimburse the Seller for the costs arising from the unjustified demand for the removal of defects (in particular testing and transport costs), unless the lack of defects was not recognizable to the Purchaser.
(8) Only if the cure has failed or a reasonable period to be set by the Purchaser for the cure has expired without success or is dispensable according to the statutory provisions, the Purchaser may withdraw from the purchase agreement or reduce the purchase price. However, in case of an insignificant defect, the right to withdraw from the contract is excluded.
(9) Claims for defects shall not exist in case of only insignificant deviation from the agreed quality, in case of only insignificant impairment of usability, in case of natural wear and tear as well as in case of damage occurring after transfer of risk (Gefahrübergang) as a result of inappropriate or incorrect use or incorrect handling or storage of the Goods or in the case of violation of instructions for use specified by the Seller or in case of alteration of the Goods by the Purchaser or a third party. In addition, the Purchaser shall bear full responsibility for the use of any design, trademark or trade name requested by the Purchaser and which are decisive for the Goods.
Section 8 Liability
(1) Unless otherwise stated in these Conditions of Sale, including the following provisions, the Seller shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) The Seller shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in cases of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit). In the case of simple negligence (Fahrlässigkeit), the Seller shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs, minor breach of duty), for
(a) Damages resulting from injury to life, body or health;
(b) Damages resulting from the breach of an essential contractual obligation (an obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies or may rely on); in this case, however, liability is limited to compensation for the typical, foreseeable damage.
(3) The limitations of liability resulting from Section 8 para. 2 shall also apply to breaches of duty by or in favor of persons whose fault the Seller is responsible for according to statutory provisions. Such limitations of liability shall not apply if the Seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the Goods and for claims of the Purchaser under the German Product Liability Act (ProdHaftG).
(4) Due to a breach of duty which does not consist of a defect, the Purchaser may only withdraw or terminate the contract if the Seller is responsible for the breach of duty. A free right of termination of the Purchaser (in particular according to Sections 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
Section 9 Limitation Period
(1) Notwithstanding Section 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be twelve (12) months from the date of the transfer of risk.
(2) With regard to any replacement deliveries and rectification work, a period of limitation of three (3) months shall apply starting from delivery or execution, which, however, shall run at least until the expiry of the period of limitation for claims for defects in the Supplies.
(3) The aforementioned limitation periods of the purchase right shall also apply to contractual and non-contractual claims for damages of the Purchaser which are based on a defect of the Goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages of the Purchaser according to Section 8 para. 2 sentence 1 and sentence 2 (a) as well as according to the German Product Liability Act shall become statute-barred exclusively according to the statutory limitation periods.
Section 10 Compliance
(1) The Purchaser shall comply with the statutory provisions, official directives based thereon, as well as recognized procedures for import, transport, storage, handling, use and disposal of the Goods.
(2) The Purchaser shall familiarize itself with all product information, including Material Safety Data Sheets (MSDS), provided by Seller, and shall provide its employees, contractors, agents and customers with adequate instructions on how to handle the products and take appropriate measures to prevent harmful effects on the environment and other risks to persons or property caused by Seller's Goods.
(3) The Purchaser shall be liable to the Seller for all damages resulting from the Purchaser’s disregard of the safety regulations and shall indemnify the Seller against any corresponding claims made by third parties.
(4) The Purchaser shall comply with all regulations concerning export controls, embargos and sanctions, insofar as these are applicable in the respective specific case and insofar as this does not constitute a violation of Section 7 of the Foreign Trade and Payments Regulation (AWV) or of EU Regulation (EC) No. 2271/96. These are in particular, but not exclusively
(a) The US Export Administration Regulations (EAR);
(b) The US International Traffic in Arms Regulations (ITAR);
(c) Sanctions for which the US Office of Foreign Assets Control (OFAC) of the US Treasury Department is responsible;
(d) US Anti-Boycott Laws;
(e) Export regulations and export control regulations, embargos and economic sanction measures of the European Union, as implemented and applied by the respective Member States, and of the Federal Republic of Germany and
(f) Regulations of other states equivalent and comparable to those mentioned above.
When re-exporting Goods from the Federal Republic of Germany to other countries, a permit from German or foreign authorities may be required. In this case, the Purchaser shall obtain a corresponding permit.
(5) The Seller is majority-owned by a company based in the USA. This circumstance may result in further restrictions on the export of Goods to certain countries, which may also apply to the Purchaser.
(6) The Purchaser shall fulfil its obligations under the REACH Regulation. These obligations include but are not limited to the Purchaser's obligation to comply with all requirements for so-called "downstream users" under Titles IV and V of the REACH Regulation. In particular, the Purchaser is obliged to provide the Seller with new information on hazardous properties of substances and mixtures, irrespective of the uses concerned, and, in the case of identified uses, to provide further information which may call into question the suitability of the risk management measures indicated in a safety data sheet submitted to it (Art. 34 REACH Regulation). If the Purchaser fails to comply with its obligations under the REACH Regulation, the Seller shall be entitled, in addition to its other legal and contractual rights, to terminate the contract by notice in writing and/or withdraw from the relevant order confirmation with immediate effect if the order has been confirmed but the Goods have not been delivered, and to terminate the supply of Goods to the Purchaser immediately upon becoming aware of the non-compliance with the REACH Regulation.
Section 11 Transfer of Rights / Trademark Use
(1) The transfer of the Purchaser's rights from the contractual relationship is only permitted with the prior written consent of the Seller.
(2) The Purchaser may use the Seller's protected trademarks in its advertising only with the Seller's consent and specifications, in the original design and only for unmodified original Goods. The Purchaser bears sole responsibility for the design of its advertising.
(3) If the Purchaser violates the obligations mentioned under Section 8 para. 1 and 2, the Seller is entitled to withdraw from the contract after prior warning.
Section 12 Data protection
The Purchaser agrees that the data necessary for the conclusion and/or the execution of the contract will be processed, in particular stored and/or transmitted from files to third parties within the Seller’s organization.
Section 13 Applicable Law / Jurisdiction / Effectiveness Clause
(1) The contractual relationship shall be governed by the law of the Federal Republic of Germany, with the exclusion of conflict of law principles (CISG), in particular UN sales law, even if the Purchaser is not domiciled in the Federal Republic of Germany or the place of performance is abroad.
(2) The exclusive, also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the Seller's registered office in Stendal. However, the Seller shall in all cases also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these Conditions of Sale or a prior individual agreement or bring an action at the general place of jurisdiction of the Purchaser. Mandatory statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected.
(3) Customary commercial clauses shall be interpreted in accordance with Incoterms 2020.