Allgemeine Einkaufsbedingungen der NABA Feinkost GmbH
General Terms and Conditions of Purchase of NABA Feinkost GmbH
1. SCOPE OF APPLICATION
1.1 These General Terms and Conditions of Purchase (“GTCP”) shall apply exclusively to all contracts for the supply of goods and/or services entered into between NABA Feinkost GmbH (“Buyer”) and its suppliers (“Supplier”).
1.2 Any terms and conditions of the Supplier that conflict with or deviate from these GTCP, including but not limited to the Supplier’s general terms and conditions of sale, shall not apply unless expressly accepted by the Buyer in writing. These GTCP shall also apply where the Buyer accepts delivery from the Supplier without reservation despite being aware of conflicting or deviating terms and conditions of the Supplier.
2. OFFERS AND DOCUMENTATION
2.1 All quotations and offers submitted by the Supplier shall be made in writing or in text form (including e-mail, fax or equivalent electronic communication). The Supplier shall bear all costs incurred in connection with the preparation and submission of its offer.
2.2 The Buyer reserves all ownership rights, rights of use, exploitation rights and all intellectual property rights in any drawings, plans, illustrations, calculations, models, samples and other documents provided to the Supplier for quotation or procurement purposes. The Supplier shall not disclose, transfer or otherwise make such documents available to any third party without the Buyer’s prior written consent.
Where such documents are provided in connection with a request for quotation or a purchase order, they may be used solely for the purpose of preparing the quotation or performing the relevant purchase order. If no purchase order is placed, or upon completion of a purchase order and at the Buyer’s request, all such documents shall be returned to the Buyer without undue delay.
2.3 The Supplier shall provide the following documents and samples, free of charge and without request, together with its quotations and order confirmations:
2.3.1 For organic products, evidence of valid organic certification in accordance with applicable German and European legislation, including, without limitation, Regulations (EC) No. 834/2007 and (EC) No. 889/2008 or any successor legislation.
2.3.2 For food products, food supplements and non-food products, the applicable product specification.
2.3.3 For food products and food supplements, all available analyses, including in particular pesticide residue analyses and microbiological analyses issued by an accredited laboratory.
3. PURCHASE ORDERS
3.1 Purchase orders shall be legally binding only if issued by the Buyer in writing or in text form (including e-mail, fax or equivalent electronic communication). Verbal or telephone orders shall only become binding upon subsequent written or text-form confirmation by the Buyer.
The Buyer shall be entitled to reject acceptance of and payment for any deliveries made without a duly issued purchase order.
Should any ambiguity exist in a purchase order, the Supplier shall seek clarification from the Buyer in writing before commencing performance.
3.2 The Supplier shall confirm acceptance of a purchase order in writing or in text form within three (3) calendar days of receipt.
3.3 Where the Supplier’s order confirmation deviates from the purchase order, the Supplier shall expressly identify such deviations. In such case, a contract shall only be concluded upon the Buyer’s written or text-form acceptance of the deviation.
3.4 Any order confirmation deviating from the purchase order shall constitute a new offer and shall require acceptance by the Buyer in writing or in text form.
3.5 The engagement of subcontractors shall require the Buyer’s prior written or text-form approval. The Supplier shall remain fully responsible for the performance of all contractual obligations and shall be liable for the acts and omissions of its subcontractors as if such acts and omissions were its own.
4. PRICES, DELIVERY AND PACKAGING
4.1 The prices stated in the purchase order shall be fixed and binding.
4.2 All purchase orders shall be governed by the Incoterms® rules. Unless otherwise agreed in writing, delivery shall be made on a Delivered at Place (DAP) Incoterms® 2020 basis. The agreed price shall include all costs associated with delivery in accordance with the applicable Incoterms® rule.
4.3 Any price increase resulting from cost increases occurring after conclusion of the contract shall be excluded, irrespective of the cause thereof, unless otherwise agreed in writing.
4.4 Where no price is specified in the purchase order, the Supplier shall state the applicable price in its order confirmation. In such case, a contract shall only be concluded upon the Buyer’s subsequent written or text-form approval.
4.5 Where delivery ex works, ex warehouse or from a third-party location is exceptionally agreed, all costs incurred up to handover of the goods to the carrier, including loading, handling and local transport charges, shall be borne by the Supplier.
4.6 The Supplier shall promptly notify the Buyer of shipment by means of a dispatch notice. The Buyer’s purchase order number shall be stated on the dispatch notice and on all documents and invoices relating to the performance of the purchase order.
4.7 The Supplier shall use environmentally friendly and, wherever reasonably possible, recyclable packaging materials.
So wirkt das gesamte Dokument einheitlich und entspricht dem üblichen Aufbau internationaler Purchasing Terms & Conditions.
5. INVOICES AND PAYMENT
5.1 Invoices shall be issued together with all required supporting documents and shall reference the relevant purchase order details. Any delays resulting from non-compliance with these requirements shall be borne by the Supplier. Payment periods shall not commence until the Buyer has received an auditable invoice complying with these provisions.
5.2 Invoices shall be payable within fourteen (14) calendar days less a cash discount of three percent (3%) or within thirty (30) calendar days net. Payment periods shall commence upon receipt of the invoice, but not before complete and defect-free delivery of the goods and/or services.
5.3 The Buyer shall be entitled to all statutory rights of set-off and retention to the extent permitted by applicable law.
6. DELIVERY TIMES, DEADLINES AND DELAY
6.1 Agreed delivery dates and delivery periods shall be binding and shall be calculated from the date of the purchase order. Compliance with such dates and periods shall be determined by the receipt of the goods at the delivery location specified in the purchase order or, where contractually or legally required, by successful acceptance.
6.2 If the Supplier becomes aware that agreed delivery dates or deadlines cannot be met, the Supplier shall immediately notify the Buyer in writing, stating the reasons for the delay and the anticipated duration thereof. Any revised delivery date shall require the Buyer’s prior written approval.
6.3 In the event of delayed delivery, the Buyer shall be entitled to all statutory remedies. In particular, following the unsuccessful expiry of a reasonable grace period, the Buyer shall be entitled to claim damages in lieu of performance and/or terminate the contract.
6.4 Early deliveries or partial deliveries shall only be permitted if expressly agreed in advance. Otherwise, the Buyer shall be entitled to reject and return such deliveries at the Supplier’s expense. Acceptance of an early delivery shall not oblige the Buyer to make payment prior to the agreed due date.
6.5 The Supplier shall state the Buyer’s purchase order number and, where provided by the Buyer, the relevant item number, together with the type, quantity and unloading location of the delivery, on all shipping documents, delivery notes, packing lists, consignment notes and invoices. Any delays resulting from the omission of such information shall not be attributable to the Buyer.
6.6 The Buyer’s unconditional acceptance of a delayed delivery or service shall not constitute a waiver of any rights, claims or remedies arising from such delay.
7. QUALITY REQUIREMENTS AND MANUFACTURING SPECIFICATIONS
7.1 Quality and Specifications
7.1.1 The goods and services supplied by the Supplier shall comply with the specifications set out in the purchase order and/or in any specification documents, including without limitation requirement specifications, technical drawings and related documentation.
7.1.2 Any modification of the agreed specifications by the Supplier shall require the Buyer’s prior written consent.
7.1.3 The Supplier warrants that the goods are free from defects in title and quality and conform to the agreed specifications and characteristics.
7.2 To the extent the Buyer provides drawings, samples or other instructions, such documents shall be solely authoritative with respect to the design, quality, characteristics and manufacture of the goods.
7.3 In the case of serial production based on the Buyer’s specifications, production shall not commence until sample approval has been granted by the Buyer in writing. Any concerns regarding the Buyer’s specifications shall be communicated to the Buyer without undue delay. In such case, sample production and any further performance shall be suspended until the parties have reached agreement.
7.4 The delivered goods shall comply with all applicable statutory requirements, industry standards, BNN requirements, regulations and recognised trade practices applicable to the relevant raw materials and products.
8. WARRANTY
8.1 The Buyer shall inspect the goods within a reasonable period for deviations in quality and quantity. Any notice of defects shall be deemed timely if communicated to the Supplier within ten (10) working days following receipt of the goods or, in the case of latent defects, within ten (10) working days following discovery.
8.2 Payments made by the Buyer shall neither constitute acceptance of contractual performance nor confirmation that the goods or services are free from defects, nor acceptance of the correctness of the invoice.
8.3 The Supplier shall ensure compliance with all warranties and guarantees assumed by it.
8.4 The Supplier warrants that the goods and services comply with the agreed specifications, are fit for their intended purpose, conform to the current state of the art and are otherwise free from defects. In particular, the goods and services shall comply with all applicable statutory provisions, regulations, directives and requirements of governmental authorities and trade associations. Unless otherwise agreed, the goods and their packaging shall be of merchantable quality. All quality and quantity requirements specified in the purchase order and related specifications shall be complied with.
8.5 The Supplier specifically warrants that:
8.5.1 the delivered goods and their packaging conform to approved samples and to all contractual specifications and requirements;
8.5.2 the goods and their packaging comply with all applicable German and European legal requirements, including, with respect to food products, Regulation (EC) No. 178/2002 and the German Food and Feed Code (LFGB);
8.5.3 the goods and their packaging comply with the agreed specifications;
8.5.4 the goods and their packaging are fully marketable and may be lawfully distributed both in the country of manufacture and in all markets communicated to the Supplier by the Buyer in writing;
8.5.5 contaminant and mycotoxin levels comply with Regulation (EC) No. 1881/2006, as amended;
8.5.6 flavourings and flavouring preparations used in the goods comply with Regulation (EC) No. 1334/2008;
8.5.7 goods originating from Japan comply with Regulation (EU) No. 561/2012, as amended or replaced;
8.5.8 pesticide residues comply with Regulation (EC) No. 396/2005 and remain below the applicable legal limits even when taking into account the upper value of the analytical measurement uncertainty range;
8.5.9 organic products comply with all applicable German and European legal requirements concerning organic production and labelling, including Regulations (EC) No. 834/2007 and No. 889/2008 or successor legislation, as well as the orientation values published by the German Organic Food Association (BNN);
8.5.10 the goods have not been treated with ultraviolet or ionising radiation;
8.5.11 the goods do not constitute genetically modified food and do not contain genetically modified organisms, ingredients, additives or flavourings derived from genetically modified organisms, except for technically unavoidable or accidental contamination not exceeding 0.9% per individual ingredient;
8.5.12 the goods are not subject to mandatory GMO labelling requirements;
8.5.13 all certificates, declarations and supporting documents submitted pursuant to Clause 2.3 are authentic, accurate and complete; and
8.5.14 food contact materials comply with all applicable German and European legal requirements, including Regulation (EC) No. 1935/2004, as amended.
8.6 Where the goods are mixed, combined or processed together with other materials by the Buyer, the Supplier warrants that the goods remain suitable and lawful for use both during the manufacturing process and in the finished product, provided the Buyer has informed the Supplier of the intended use. The Supplier shall immediately notify the Buyer of any concerns regarding such use.
8.7 Any changes to ingredients, formulations, compositions or packaging deviating from the agreed product specification shall be notified to the Buyer in writing at least six (6) months prior to implementation. Unless such changes are required by mandatory law, they shall require the Buyer’s prior written approval.
8.8 The Supplier warrants that appropriate and fully documented quality controls are carried out throughout the manufacturing process in accordance with applicable law and the current state of the art.
8.9 The Buyer shall be entitled to prohibit the use of specific sub-suppliers where justified concerns exist regarding their quality standards.
8.10 The Supplier shall ensure complete and uninterrupted traceability of the goods supplied in accordance with all applicable German and European legal requirements and regulatory guidelines. Traceability shall include, without limitation, ingredients, raw materials, additives, processing aids, packaging materials, manufacturing dates and production processes.
8.11 In addition to Clause 8.10, the Supplier shall, upon request, provide full traceability of food products, food packaging and food contact materials throughout the entire supply chain up to the source of origin. The Buyer may request supporting certificates relating to upstream suppliers. The Supplier warrants that it continuously monitors its suppliers and conducts incoming goods inspections consistent with industry standards.
8.12 Upon request, the Supplier shall immediately provide all information required by the Buyer in connection with official inspections, customer complaints, recalls or comparable events. Any further rights or remedies of the Buyer shall remain unaffected.
8.13 For goods bearing a best-before date, use-by date or similar shelf-life indication, the remaining shelf life available to the Buyer as of the day following receipt of the goods shall be at least eighty percent (80%) of the total shelf life. Deliveries failing to meet this requirement shall be deemed defective.
8.14 Where packaging materials constitute the subject matter of the supply, the foregoing provisions shall apply mutatis mutandis. The Supplier warrants unrestricted usability and marketability of such packaging materials and, in particular, that they do not adversely affect the packaged product.
8.15 If public warnings are issued, particularly through governmental authorities or the media, concerning actual or alleged health risks associated with products of a similar nature or containing comparable ingredients, the Buyer shall be entitled to cancel outstanding orders and return delivered goods against reimbursement of the purchase price, particularly where demand for such goods is expected to cease. Such right shall be exercised within one (1) month of the first publication of the warning.
8.16 The Supplier warrants that all means of transport used for delivery are suitable for the transportation of food products. Such means of transport shall be free from pests, foreign odours, dust, moisture, mould, foreign matter or any other contamination. The same requirements shall apply to loading areas, unloading areas and temporary storage facilities. In particular, the Supplier shall not use vehicles whose cargo area is wholly or partially enclosed solely by tarpaulins.
8.17 In the event of defects, the Buyer shall be entitled to all statutory remedies without limitation. In particular, the Buyer may require, at its discretion, repair, replacement delivery or remanufacture. All costs associated with cure or replacement shall be borne by the Supplier. The Buyer’s rights to damages, damages in lieu of performance and claims under guarantees shall remain unaffected.
8.18 If the Supplier fails to remedy a defect within a reasonable period, the Buyer shall be entitled to remedy the defect itself or have it remedied by a third party at the Supplier’s expense.
8.19 Limitation periods and commencement of limitation periods for warranty claims shall be governed by applicable law.
9. PRODUCT LIABILITY, INDEMNIFICATION, INSURANCE AND INTELLECTUAL PROPERTY RIGHTS
9.1 If the Buyer is held liable under product liability laws due to a defective product, the Buyer shall be entitled to recover all resulting losses and damages from the Supplier to the extent that the defect falls within the Supplier’s sphere of responsibility. The Supplier shall indemnify and hold harmless the Buyer against any third-party claims arising therefrom.
9.2 The Supplier shall reimburse the Buyer for all reasonable costs incurred in preventing or mitigating product liability risks, including product recalls. The Buyer shall inform the Supplier of the nature and scope of such measures wherever reasonably practicable. Any further statutory rights shall remain unaffected.
9.3 The Supplier shall maintain adequate product liability insurance covering all risks associated with its products and shall provide evidence of such insurance upon request.
9.4 The Supplier warrants that all goods and services are free from third-party intellectual property rights and may be used for the contractually intended purposes without restriction.
9.5 The Supplier shall indemnify and hold harmless the Buyer against all claims arising from infringements of intellectual property rights attributable to the Supplier or its subcontractors and shall reimburse all costs incurred by the Buyer in connection with such claims.
10. TERMINATION AND DAMAGES
10.1 If the Supplier fails to fulfil its contractual obligations or fails to do so in accordance with the contract, the Buyer may, after expiry of a reasonable cure period, terminate the contract and claim damages in lieu of performance.
10.2 The Buyer shall in particular be entitled to terminate the contract if the Supplier breaches its obligations under Clause 13 (Confidentiality).
10.3 The Buyer shall also be entitled to terminate the contract if the Supplier ceases deliveries or files for insolvency or similar proceedings.
10.4 The statutory right to terminate continuing obligations for cause shall remain unaffected.
11. RETENTION OF TITLE AND BUYER-FURNISHED MATERIALS
11.1 The Buyer expressly objects to any retention of title provisions or declarations of the Supplier exceeding a simple retention of title.
11.2 Any materials, components or other items provided by the Buyer to the Supplier (“Buyer-Furnished Materials”), as well as any tools, drawings, specifications or other documents supplied to the Supplier in connection with the conclusion or performance of the contract, shall remain the exclusive property of the Buyer. Tools provided by the Buyer may only be used for the manufacture of goods intended for the Buyer.
11.3 Any processing, transformation or modification of Buyer-Furnished Materials by the Supplier shall be carried out on behalf of the Buyer. Where Buyer-Furnished Materials are processed together with other materials, the Buyer shall acquire co-ownership of the newly created item in proportion to the value of the Buyer-Furnished Materials relative to the other processed materials at the time of processing.
Where Buyer-Furnished Materials are inseparably combined or mixed with materials not owned by the Buyer, the Buyer shall acquire co-ownership of the resulting item in proportion to the value of the Buyer-Furnished Materials relative to the value of the other materials at the time of combination or mixing.
Where, as a result of such combination or mixing, the Supplier’s materials are deemed to constitute the principal item, the Supplier hereby transfers proportionate co-ownership to the Buyer and shall hold such co-owned property in safekeeping on behalf of the Buyer.
12. ASSIGNMENT
12.1 The Supplier may not assign, transfer or otherwise dispose of any rights or obligations arising under the contract without the Buyer’s prior written consent. Section 354a of the German Commercial Code (Handelsgesetzbuch – HGB) shall remain unaffected.
13. CONFIDENTIALITY
13.1 The Supplier shall keep strictly confidential all drawings, plans, illustrations, calculations, models, samples and other documents provided by the Buyer, unless such information is publicly available or becomes publicly available through no fault of the Supplier.
13.2 The Supplier shall not disclose any such information to third parties without the Buyer’s prior written consent. Any approved disclosure shall be subject to confidentiality obligations equivalent to those set out herein. The Supplier shall be liable for any breach of confidentiality by its employees, agents, affiliates, subcontractors or other third parties engaged by it as if such breach had been committed by the Supplier itself.
13.3 The confidentiality obligations set forth herein shall survive termination or expiration of the contractual relationship. Such obligations shall cease only to the extent that the relevant information becomes publicly known without breach of this Agreement.
13.4 In the event of a breach of the confidentiality obligations, the Supplier shall pay a contractual penalty to the Buyer. The amount of such penalty shall be determined by the Buyer at its reasonable discretion and, in the event of dispute, shall be subject to review by the competent court. The Buyer’s right to claim additional damages and other remedies shall remain unaffected.
14. FINAL PROVISIONS
14.1 The place of performance for all obligations of the Supplier shall be the delivery address specified in the relevant purchase order.
14.2 These General Terms and Conditions of Purchase and all contractual relationships between the Buyer and the Supplier shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the rules of private international law.
14.3 The exclusive place of jurisdiction shall be the court having jurisdiction over the Buyer’s registered office. However, the Buyer shall also be entitled, at its sole discretion, to bring proceedings against the Supplier before any court having jurisdiction over the Supplier.
14.4 Should any provision of these General Terms and Conditions of Purchase be or become wholly or partially invalid, illegal or unenforceable, the validity and enforceability of the remaining provisions shall remain unaffected.
NABA Feinkost GmbH
Apfelring 1
99100 Gierstädt
Germany
Phone: +49 (0) 36206 2530
Fax: +49 (0) 36206 25325
E-mail: info@naba.de
Managing Directors: Felicitas v. Heinz, Bernhard von Reiche and Dr.-Ing. Philipp Theden
Commercial Register: Local Court (Amtsgericht) Jena, HRB 101179