General Purchase and Payment Conditions of Eckes-Granini Group
1. Scope
1.1 The following general terms and conditions shall apply to all - also future - service agreements, purchase agreements, supply agreements, orders and the execution thereof of the Eckes-Granini Group, unless provided for otherwise in writing. Other general terms and conditions shall not apply, even if we have not explicitly disputed their application or if deliveries/ services are accepted or paid with actual knowledge of conflicting terms and conditions of the supplier/service provider.
1.2 Eckes-Granini Group means Eckes Aktiengesellschaft and all companies which are affiliated - directly or indirectly - with Eckes Aktiengesellschaft irrespective of their shareholding. If a new company joins the Eckes-Granini Group, it shall be deemed a company of the Eckes-Granini Group within the meaning of this Agreement immediately upon joining. If a company leaves the Eckes-Granini Group, this company shall continue to be regarded as belonging to the Eckes-Granini Group within the meaning of this agreement for a transitional period of 24 months after leaving the Eckes-Granini Group. Any of the afortementioned companies are hereinafter referred to as Eckes-Granini Group or “we” or “us”.
1.3 Ordering Party means any affiliated company of the Eckes-Granini Group that is placing an order. Hereinafter referred to as Ordering Party.
1.4 Supplier/service provider means any natural or legal entity that concludes an agreement with a company of Eckes-Granini Group.
1.5 The Term “in writing” or “written form” means written form as per Sec. 126 (1) of the German Civil Code unless expressly provided otherwise.
2. Agreements, Orders
2.1 All agreements entered into between us and the supplier/ service provider shall be made in writing; the same applies to all orders. Amendments and supplements to an eSigning Section contract as well as all legally relevant declarations associated to a contract and declarations on the exercise of rights, in particular notices of termination, reminders or setting of deadlines, must be done in writing. This also applies to the waiver of the written form requirement.
The written form requirement may also be fulfilled – unless expressly provided otherwise in the relevant contractual document or excluded by law - by electronic form through the use of an electronic signature (according to eIDAS-Regulation), provided that this is done by means of electronic contracting procedures provided on behalf of Eckes-Granini Group or agreed with Eckes-Granini Group (e.g. via Docusign). Unilateral declarations made by email or provided with an electronic signature and transmitted to Eckes-Granini Group shall not - even in the context of existing business relations - acquire legally binding character by mere silence; those unilateral declarations become binding only if they are confirmed in writing, by electronic signature or email by Eckes-Granini Group. However, the provisions of section 127 (2) and (3) of the German Civil Code shall not apply in all other respects.
2.2 Orders under agreements between a company of the Eckes-Granini Group and the supplier/service provider can be placed either by the direct contract partner within the Eckes-Granini Group or another company of the Eckes-Granini Group, which then will also be the debtor for all pecuniary claims of the supplier/service provider connected to the respective order.
3. Order Confirmation, Documents
3.1 The acceptance of an order shall be promptly confirmed in writing towards the Ordering Party. For this purpose the order confirmation, which is attached to the order, shall be signed (or by electronic signature) with the proper corporate details, and shall be returned to the Ordering Party.
3.2 In case the order confirmation deviates from the order, an agreement becomes only legally effective when the Ordering Party was expressly advised of this deviation and has given its written consent to it.
3.3 We reserve all rights, particularly the copyright and the title to all samples, materials and documents including but not limited to pictures, drawings, calculations, and other documents provided by us; these samples, materials and documents shall not be made accessible to any third person. These samples, materials and documents may only be used for manufacturing purposes in connection with the order placed by us, and shall be kept confidential, clause 11 applies additionally.
4. Delivery and Service Time
4.1 The time of delivery/service stated in the respective agreement or order shall be legally binding. For the timeliness of delivery, it depends on the receipt at the respective place of receipt designated in the respective agreement or order, for the timeliness of service it depends on the approval.
4.2 The supplier/service provider is obliged to inform us promptly if any circumstances occur or become recognizable which prevent the supplier/service provider from keeping the fixed delivery/service date.
4.3 In case of a delay of delivery/service all statutory claims are reserved. In particular, we are entitled to withdraw from the order or the agreement in total and to claim damages in lieu of delivery following reasonable notice. In case we request the payment of damages, the supplier/service provider shall have the right to provide evidence that he is not responsible for his breach of duty.
4.4 If a contractual penalty has been agreed upon for delayed deliveries/services, such penalty is also due if the delayed delivery/service has been accepted without any reservation.
5. Place of Performance, Shipping, Transfer of Risk and Ownership
5.1 The place of performance with regard to all obligations of the supplier/service provider shall be the respective place of receipt designated in the respective agreement or order.
5.2 The place of performance with regard to the payment shall be the place of the Ordering Party.
5.3 Unless otherwise agreed upon in writing, the supplier/ service provider shall be obliged to make deliveries/services with carriage prepaid. The risk with regard to the accidental destruction or the accidental deterioration of the good shall always be borne by the supplier until the delivery at the place of delivery, regardless of whether delivery with carriage prepaid was agreed upon or not. For services, the risk shall always be borne by the service provider until the approval of the Ordering Party.
5.4 Ownership to the goods transfers upon delivery at the place of performance within the meaning of clause 5.1 to the Ordering Party, without prejudice to any rights of Eckes-Granini Group. Any extended, expanded or other retention of title is expressly disclaimed.
6. Liability and Notice of Defects
6.1 The supplier / service provider guarantees that the delivered product / service conforms to the specifications made in the respective agreement with regard to their quality and function. We are obliged to inspect the good delivered / service approved and to object to defects and/or differences in quantity, quality and functional deviation within a reasonable time period; the objection shall be deemed to be made in due time if the notification thereof is received by the supplier / service provider within five working days following the delivery of the good/approval of the service, in case of hidden damages within five working days after detection.
6.2 In case there is a defect or the good / service does not conform with the agreed specifications under the respective agreement, we may claim all statutory warranty claims without any deductions; we are particularly entitled to demand at our option the removal of defects or the delivery of a new good / performance of new service. The same shall apply accordingly for all cases of bold optical defects (defects limited to optical deviations not affecting the bottled content); for the sake of clarity, optical defects on the packaging materials (e.g. pre-forms / caps etc.) shall be deemed as defect according to sec. 434 German Civil Code.
The right to withdraw from the order or the agreement in total and to claim damages shall remain unaffected. Apart from that, the statutory provisions shall apply.
6.3 Unless longer time periods apply due to an agreement on the reverse side, by statutory provisions or other regulations, the statute of limitations with regard to all warranty and guarantee claims shall be thirty-six months from delivery / approval.
6.4 In addition, the supplier / service provider shall indemnify us from all claims of business or private recipients of our products which such individuals sustain following a use of our products in accordance with the regulations or in a foreseeable manner and which are based on a defect deficiency or another condition of the good / service contrary to the use agreed upon and/or based on a violation of the duties of care, control or supervision imposed on the supplier/service provider.
6.5 The supplier/service provider ensures that it holds and shall maintain in full force and effect at all times during the term of the respective contract a valid and adequate insurance that covers any and all liabilities that may arise in connection with the respective contract (particularly but not only for product liabilities) at its own expenses. Before a contract is concluded and at the beginning of each calendar year the supplier/service provider will provide evidence of such cover to Eckes-Granini Group unrequestedly.
7. Protection of Rights
7.1 The supplier/service provider guarantees that third parties' rights will not be violated in connection with the delivery or the use of the good or the services.
7.2 In case third parties claim damages because of a violation of their rights, the supplier/service provider shall indemnify us upon first written request from all those claims. We are not authorized to make any agreements, in particular settlements, with the third party without the consent of the supplier/service provider.
7.3 The obligation of the supplier/service provider to indemnify us refers to all costs which result necessarily of or in connection with the claim of the third party.
8. Accounting and Payment
8.1 The invoice shall be submitted to the accounting department of the Ordering PArty preferably by E-Mail and shall be submitted separately from the delivery of the goods/services and earliest after goods/services receipt and approval by the Ordering Party. The related Ordering Party is indicated on the letterhead of the (purchase) order.
8.2 Only valid and correct invoices will be eligible for payment. Invoices shall exclusively be deemed eligible for payment provided that (i) they specify properly invoice date and invoice number, total invoice value, name and address of the supplier/service provider, VAT number of the supplier/service provider, correct description of the delivered goods/services, our product/material code (if applicable), unit price of goods/services and quantity of goods/services and unit of measure, currency, (ii) they bear the correct and relevant reference or purchase order number and the date of the order by Eckes-Granini Group and (iii) they are send to the correct invoicing address, which is the address of the Ordering Party as specified in the order or respective agreement. Invoices which do not meet these requirements will be returned for re-issuance and may lead to payment delays. We will bear no responsibility for payment delays due to incorrect invoicing. Baseline date for the returned invoice will be the date of receipt of the new/corrected invoice.
8.3 Unless explicitly agreed upon otherwise, payment terms shall commence from the invoice baseline date. The invoice baseline date is considered to be the goods/services receipt date or invoice receipt date, whichever is the latter. Unless explicitly agreed upon otherwise, payments will be made net within 30 days after such dates. Unless otherwise agreed upon in writing, payments shall be made by means of payment or currency in our discretion.
8.4 Payments are made subject to the examination of the basis and amount of the bill outstanding and payments shall have no influence whatsoever on the liability and warranty of the supplier/service provider.
8.5 For security reasons, each new supplier/service provider shall provide Eckes-Granini Group with written confirmation by mail or fax from its account-holding credit institution that the account details provided are correct.
The same applies to cases of change of name and to any changes in account details. A confirmation by email will be rejected due to lack of sufficient security for the commencement of payment transactions.
9. Assignment of Claims
Claims of the supplier / service provider may only be assigned with our prior written consent. We may only refuse to grant our consent if good cause exists, particularly, if we have counterclaims or objections which may reduce the claim. We shall be entitled to Corporate Offsetting Clause Added offset all claims - irrespective of the legal transaction on which they are based - of the Eckes-Granini Group against claims of the supplier / service provider. This shall also apply with regard to claims of the supplier / service provider against us and to our own claims against the supplier / service provider against claims of the supplier / service provider against the Eckes-Granini Group.
10. Force Majeure
In case of force majeure (for example natural disasters, war, mobilization, civil disorders, pandemics) we may withdraw from the agreement or request performance at a later date with regard to deliveries of the supplier/service provider not yet performed and with regard to our consideration, without any claims of the supplier/service provider resulting thereof.
11. Confidentiality and Naming for reference purposes
11.1 All information and documents the supplier/service provider has received from us, including the drawings prepared by the supplier/service provider based on our instruction, shall not be made available to third parties and shall be returned immediately to us upon our request. Furthermore, the supplier/service provider shall keep confidential all business information received in connection with the order including the fact that an order was placed. This duty of confidentiality shall apply even after the performance or termination of this agreement.
11.2 Supplier/service provider is not permitted to name Eckes-Granini Group publicly as its contract partner or to use the business relation to Eckes-Granini Group for reference purposes unless Eckes-Granini Group has granted a suitable
permission for this in writing before.
11.3 Suppliers/service provider shall keep all information exchanged in the run up or in the course of the cooperation with Eckes-Granini Group strictly confidential. Subject to those confidentiality obligations are in particular business secrets, company secrets and /or matters designated as confidential, as well as samples, prototypes, recipes, formulations, market data, consumer data and studies, information on and knowledge of fundamental principles, working methods, manufacturing, machine-generated data from production processes, new developments (incl. new designs), improvements and other details, also of a verbal nature, including all documents, material, data and articles.
Supplier/service provider shall not (nor direct a third party to) attempt to analyze or split up its components, reverse engineer, deconstruct or otherwise undertake to ascertain the makeup, formula, composition, ingredients or any other aspect of any models or samples provided by Eckes-Granini Group and entities belonging to Eckes-Granini Group in any manner. The attempt and the execution of a reverse engineering are expressly prohibited and will be sanctioned (irrespective of a concrete damage evidence).
12. Communication of public product information
12.1. In the case of a product recall or a mere possibility that a product recall could be necessary, solely and exclusively Eckes-Granini Group has the right to inform and communicate this matter to the public. The same applies for the correspondence with public authorities or third parties in the course of a product recall or the mere possibility of a product recall.
12.2. A violation of the aforementioned provision is considered as a substantial breach of the contract and results in an appropriate contractual penalty and in damage claims. The contractual penalty is in the reasonable discretion of Eckes-Granini Group and can be verified by a competent court in case of disputes.
13. Statutory Minimum Wages Duties
13.1 Supplier/service provider guarantees and warrants to Eckes-Granini Group without any limitations and exceptions that all employees - who are subject to the German statutory minimum wage legislation and contribute or take any action in the contract performance and the provision of services by order of Eckes-Granini Group - receive the statutory minimum wage in full extent without any allocations or other constructions which are suitable to affect the statutory minimum wage. Irrespective to the aforementioned German requirements supplier/service provider has to comply with the statutory minimum wages duties that apply at its respective place of business and its business areas.
13.2 In the event of any infringement of the statutory minimum wage legislation by the supplier/service provider, Eckes-Granini Group is entitled to terminate the agreement with immediate effect and without any pecuniary compensation.
13.3 The supplier/service provider undertakes to indemnify Eckes-Granini Group for any fines, losses, costs, damages or claims of third parties incurred by Eckes-Granini Group as a consequence of an infringement of the statutory minimum wage legislation. Furthermore the supplier/service provider undertakes to assign claims against third parties to Eckes-Granini Group that result of an infringement of the statutory minimum wage legislation.
14. Miscellaneous
14.1 Should any provisions of these conditions or the respective agreement be or become invalid, in whole or in part, then the validity of the remaining provisions or parts thereof will not be affected thereby.
14.2 The exclusive place of jurisdiction (including summary proceedings regarding documentary evidence) shall be Mainz.
14.3 In each case the substantive law of the Federal Republic of Germany shall apply.
14.4 The provisions of the UN Convention on the International Sale of Goods (CISG) shall be excluded.