Conditions of purchase (as at 12/2010):
Dr. Theiss Naturwaren GmbH p. 1/2 These terms and conditions apply to all business transactions by Dr. Theiss Naturwaren GmbH with companies, legal entities under public law and special funds under public law.
1.1 Our conditions of purchase apply exclusively; we do not recognise any terms of the supplier's which conflict with or differ from our conditions of purchase unless we have expressly agreed to their validity in writing. Our conditions of purchase also apply even when we are aware of the supplier's conflicting and/or differing terms and conditions and accept the products and services delivered by the supplier (hereinafter: contractual object) or pay for these.
1.2. Our conditions of purchase are also applicable to all future deliveries and services provided to us by the supplier.
1.3. Individual agreements reached with the supplier in individual cases take precedence over these conditions of purchase. The content of such agreements is subject to a written contract or to our confirmation in writing.
2. Conclusion and variation of a contract
2.1 Orders, financial statements and call-offs as well as any associated modifications and amendments must be in writing. Orders and call-offs may also be made by remote data transmission, fax or post.
2.2 Verbal agreements made before or during the conclusion of the contract become effective only with written confirmation of the purchase. Point 2.1, sentence 2 shall remain unaffected.
2.3 Verbal agreements made after the conclusion of the contract, in particular subsequent changes and additions to our conditions of purchase – including this clause regarding the necessity for written form – and additional agreements of any kind whatsoever, must also be confirmed in writing in order to be effective.
2.4 Quotations are binding and will not be compensated unless expressly agreed otherwise in writing.
2.5. If the supplier fails to accept the order within a period of two weeks of receipt, we shall be entitled to cancel. Call-offs are binding unless the supplier objects within four working days of receipt.
3.1. Any changes and/or deviations to our orders and final accounts require our prior written consent. Deviations in quantities, particularly reduced outputs, are in principle not permitted. Additional quantities require express agreement before delivery and invoicing.
3.2 Agreed dates and deadlines are binding. Compliance with the delivery date or delivery time is determined by the day of arrival of the goods with us. Unless delivery is "free domicile" (DDP according to Incoterms 2010), the supplier shall make the goods available in good time, taking into consideration the time to be agreed with the carrier for loading and shipment.
3.3 If the supplier has agreed to carry out installation or assembly, and in the absence of any agreement stating otherwise, the supplier shall, subject to any regulations to the contrary, bear all necessary expenses, such as travel expenses, tooling charges and daily allowances.
3.4 If agreed dates are not upheld, the statutory regulations apply. If the supplier foresees difficulties regarding manufacture, supply of required materials, observance of the arranged delivery date or similar circumstances which could impede its ability to deliver on time or with the stipulated quality, the supplier must immediately advise our ordering department.
3.5 The unconditional acceptance of the delayed delivery or service does not constitute a waiver of any claim for compensation due to us as a result of the delay in the delivery or service; this provision applies until full payment of all remuneration due from us for the delivery or service in question.
3.6. Partial deliveries are, in principle, not permitted unless we have expressly agreed to them, they are reasonable for us or they are part of our request.
3.7 Except where different evidence is provided, the number of items, weights and measurements are determined according to the values calculated during our incoming goods inspection.
3.8 In relation to software which falls within the scope of delivery, including associated documentation, in addition to the right of use to the extent permitted by law (Art. 69a ff. German Copyright Act), we have the right of use with the agreed performance characteristics and to the extent necessary for use of the product in accordance with the contract. We may also make backup copies even without an express agreement.
4. Force majeure
Force majeure, labour disputes, disruptions in operations due to no fault of our own, disturbances, governmental measures and other uncontrollable circumstances shall entitle us – without prejudice to our other rights – to withdraw from the contract in full or in part.
5. Dispatch note and invoice
The supplier shall confirm shipment of goods to the company as soon as these have been sent.
The details stated in our orders and call-offs apply. A single copy of the invoice is to be sent to the company, stating all mandatory information according to S.14 para. 4 in conjunction with S. 14a para. 5 of the German UStG (Value Added Tax Act), as well as any other identifying information (order number, item number, specification numbers, batch numbers, ordering person, creditor number); invoices must not be enclosed with shipments.
6. Pricing and transfer of risk
In the absence of any special agreement, prices are deemed to be free domicile (DDP according to Incoterms 2010) including packaging. Value Added Tax is not included. The supplier shall bear the risk of material damage until the goods are accepted by us or the person authorised by us at the place to which the goods are to be delivered as specified in the order.
7. Terms of payment
Where no special agreement has been made, the invoice shall be paid within 14 days with a discount of 3% or within 30 days with a discount of 2% or within 60 days without discount after the claim for payment is payable and receipt of the invoice and goods or provision of the service. Payment shall be made subject to verification of the invoice.
8. Claims for defects and recourse
8.1 The supplier shall guarantee that all goods it supplies and services it renders comply with all laws, ordinances, guidelines and other legal provisions, DIN standards and generally acknowledged rules of engineering applicable to both the supplier and to us.
8.2. Acceptance will be subject to inspection for defects, in particular with regard to accuracy, completeness and suitability. We reserve the right to inspect the contractual object insofar as, and as soon as, this is feasible according to the ordinary course of business; any defects found will be reported by us immediately after their identification. A complaint is deemed timely if it is received by the supplier within five working days, calculated from the receipt of goods or from discovery in the case of hidden defects.
8.3 Statutory provisions on material defects and defects of title shall apply, unless subsequently agreed otherwise.
8.4 In principle, we always retain the right to select the manner of subsequent performance. The supplier shall be entitled to reject the type of subsequent performance selected by us under the provisions of S. 439 para. 3 BGB (German Civil Code).
8.5 Should the supplier not begin to rectify the defect immediately following our request we shall consequently be entitled, in urgent cases, in particular to avert acute danger or to avoid major damage, to rectify the defect ourselves at the supplier's expense or to have this work carried out by third parties. Material defect claims become time-barred after 3 years. The period of limitation for material defects begins upon delivery of the contractual object (transfer of risk).
8.6 In the case of defects of title, the supplier shall additionally indemnify us against any third-party claims. With regards to defects of title, a period of limitation of 3 years also applies.
8.7 For parts that are completely overhauled or repaired within the period of limitation, the period of limitation shall start anew from the point in time at which the supplier has completely fulfilled our claims for subsequent performance. However, the period of limitation renews only in the case that a rectification takes place due to a legitimate claim for subsequent performance.
8.8 If, as a result of defective delivery of the contractual object, we incur costs, particularly transport costs, travel costs, labour costs, material costs or costs for checks on incoming goods extending beyond the normal scope, these expenses shall be borne by the supplier.
8.9. If we take back products produced and/or sold by us as a consequence of the defect in the contractual object delivered by the supplier, or if our sales price has been reduced because of this, or if a claim has been made against us in any other way for this reason, we reserve the right to exercise recourse against the supplier, with no other period needing to be set for our rights arising from defects.
8.10 We shall be entitled to request compensation from the supplier for expenses which we had to bear in relation to our customer as the result of a claim against us for reimbursement of the expenses required for the purpose of subsequent performance, in particular, transport, travel, labour and material costs.
9. Product liability and recall
In the event of a product liability claim being asserted against us, the supplier shall, on first demand, indemnify and hold us harmless from such claims if and to the extent that the cause lies in its premises and organisational area and it is itself liable in relation to third parties according to product liability law. The supplier shall also indemnify us on first demand from all third-party claims arising from defects, infringements of copyrights of third parties or product damage in its delivery on the basis of its share of the cause. Insofar as the cause of the damage is the responsibility of the supplier, the supplier shall bear the burden of proof for the absence of fault. In the above cases, the suppler shall bear all costs and expenses incurred by us, including the costs associated with any legal action or recall. Statutory provisions also apply.
10. Performance of works
Persons who carry out work on the factory premises in fulfilment of the contract must observe the respective factory regulations. Liability for accidents sustained on the premises by such persons shall be excluded, unless they were caused by an intentional or grossly negligent breach of duty by us, our legal representatives and/or our vicarious agents.
Materials, parts, containers and special packaging provided by us remain our property. These may be used only for their intended purpose. The processing of materials and the assembly of parts is carried out on our behalf. Both parties agree that we shall be the joint owner of the goods manufactured from the materials and parts supplied by us in proportion to the value of the items supplied by us to the value of the finished products, which are in this respect kept for us by the supplier.
12. Documents and confidentiality
12.1 All commercial or technical information (including features apparent in the delivered items, documents or software, and any other knowledge or experiences) made accessible by us, must not, insofar as it has not demonstrably been made public, be disclosed to third parties, and may be made available, at the supplier's own factory, only to people who need to be involved in its use for the purpose of the delivery to us, and who are also bound to non-disclosure; the information remains our exclusive property. Without our prior written consent, such information may not be duplicated or used for commercial purposes other than for deliveries to us. At our request, all information originating from us (including any copies or records made) and any objects on loan shall be returned to us immediately and completely or destroyed. We reserve all rights to such information (including copyrights and the right to apply for proprietary rights, such as patents, utility models, semiconductor protection, etc.). Insofar as these were made available to us by third parties, this reserved right also applies in favour of these third parties.
12.2 Products made according to documents drafted by us (such as diagrams, models and similar), or according to our confidential information, or produced using our tools or replicated tools must not be used by the supplier itself, or be offered or delivered to third parties. This also extends to our print orders.
12.3 Please note our data privacy statement.
13. Place of fulfilment
The place of fulfilment is the place to which the goods are to be delivered as specified in the order.
14. General provisions
14.1 If one of the provisions of these terms and conditions and of additional agreements reached should be or become ineffective, this shall not affect the validity of the terms and conditions in other respects. The contractual partners are obliged to replace the ineffective provision with one which is as close as possible in economic effect.
14.2 The place of jurisdiction for all disputes arising directly or indirectly from contractual relationships based on these conditions of purchase is Homburg, Germany. We further have the right, at our discretion, to initiate legal action against the supplier at a court near the supplier's headquarters or branch, or at a court near the place of fulfilment.
14.3 The contractual relationships shall be governed solely by German law, under exclusion of the law of conflicts and the UN Convention on Contracts for the International Sale of Goods (CISG).