Version: 1.0
Effective from: 9 September 2026
Vagoteq GmbH
Dresdener Straße 11
65474 Bischofsheim
Telephone: +49 6144 338 66 82
Email: info@vagoteq.com
Responsible person: Stanislav Sakhno
Part A – General Terms and Conditions of Sale (GTCS)
Section 1 General provisions and scope
(1) The present General Terms and Conditions of Sale (the “GTCS”) apply to all our business relationships with our customers (hereinafter referred to as the “Buyer”). The GTCS apply only if the Buyer is an entrepreneur within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”), a legal entity under public law or a special fund under public law.
(2) The GTCS apply in particular to contracts for the sale and/or delivery of movable goods, including goods that are yet to be manufactured or produced (sections 433 and 650 BGB), as well as to development, planning, design, calculation, simulation, consultancy and other service or works contracts (collectively also referred to as the “Services”). Where individual provisions apply by their nature only to goods, they shall apply mutatis mutandis to other Services to the extent permitted by the legal nature of those Services. The GTCS, in the version applicable at the relevant time, shall also constitute a framework agreement for future contracts with the same Buyer without any need for us to repeat the reference in every individual transaction. Amendments shall be notified to the Buyer in text form and shall apply only to contracts concluded after such notification.
(3) Our GTCS shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Buyer shall form part of the contract solely to the extent expressly approved by us. Our consent is required without exception, including where we make delivery to the Buyer without reservation despite being aware of the Buyer’s general terms and conditions.
(4) Individual agreements made with the Buyer, including ancillary agreements, additions and amendments, shall prevail over these GTCS. The written contract or our confirmation in text form shall be decisive as regards their content; proof to the contrary shall remain admissible.
(5) Legally relevant declarations and notices to be given to us by the Buyer after conclusion of the contract, such as the setting of deadlines, notices of defects, withdrawal or reduction of the price, shall be submitted in text form within the meaning of section 126b BGB unless a stricter form is mandatorily prescribed.
(6) References to the applicability of statutory provisions serve solely to clarify. Statutory provisions therefore remain applicable even in the absence of such clarification unless they are directly modified or expressly excluded by these GTCS.
Section 2 Conclusion of the contract
(1) Our quotations are subject to change and non-binding. This shall also apply if we provide the Buyer with catalogues, technical documentation, such as drawings, plans, calculations, costings or references to DIN standards, product descriptions or other documents, including in electronic form, in respect of which we reserve title and copyright.
(2) An order placed by the Buyer shall constitute a binding offer to enter into a contract. Unless otherwise stated in the order, we may accept this offer within 14 calendar days of receipt. We may accept the offer by an order confirmation in text form or by performance of the delivery or Service.
Section 3 Delivery and performance periods; delay
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order.
(2) If we are unable to comply with binding delivery periods for reasons for which we are not responsible (unavailability of performance), we shall notify the Buyer promptly and at the same time notify the Buyer of the anticipated new delivery period. If performance remains unavailable within the new delivery period, we may withdraw from the contract in whole or in part; any consideration already paid by the Buyer shall be reimbursed without undue delay. Unavailability of performance within the meaning of this provision includes, in particular, late delivery to us by our supplier where we have entered into a congruent covering transaction, neither we nor our supplier is at fault, or we are not obliged to procure the goods in the individual case.
(3) Whether we are in delay in delivery shall be governed by the applicable statutory rules. If we are in delay, the Buyer may claim liquidated damages for the loss caused by the delay. Such liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer suffered no loss or a substantially lower loss than the liquidated amount stated above.
(4) The Buyer’s rights under section 8 of these GTCS and our statutory rights, particularly where the obligation to perform is excluded, for example because performance and/or subsequent performance is impossible or unreasonable, shall not be affected.
Section 4 Delivery, transfer of risk, acceptance and default in acceptance
(1) Unless otherwise agreed, delivery shall be FCA (Incoterms® 2020) at the dispatch or production site specified in the order confirmation; this shall also be the place of performance for the delivery. At the Buyer’s request and expense, the goods shall be dispatched to another destination (sale involving carriage). Unless otherwise agreed, we shall determine the method of dispatch, in particular the carrier, route and packaging.
(2) The risk of accidental loss of and accidental damage to the goods shall transfer to the Buyer at the latest upon handover. In the case of a sale involving carriage, however, the risk of accidental loss of and accidental damage to the
goods, as well as the risk of delay, shall pass upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment.
(3) If the Buyer is in default in acceptance, fails to cooperate or our delivery is delayed for other reasons for which the Buyer is responsible, we may claim compensation for the resulting loss, including additional expenses such as storage costs. For this purpose, we shall charge liquidated damages of 0.5% per calendar week, beginning on expiry of the delivery period or, if no delivery period has been specified, upon notification that the goods are ready for dispatch. Our right to prove a higher loss and our statutory claims, in particular reimbursement of additional expenses, reasonable compensation and termination, shall not be affected; the liquidated amount shall, however, be credited against any further monetary claims. The Buyer may prove that we suffered no loss or a substantially lower loss than the liquidated amount stated above.
Section 5 Packaging, packaging waste and the PPWR
(1) Legal Requirements and Responsibilities
The Seller shall comply with the legal requirements applicable to it in respect of the goods and packaging supplied by the Seller, in particular Regulation (EU) 2025/40 on packaging and packaging waste (the “PPWR”) and any applicable national legislation.
Each party shall remain responsible for the obligations legally applicable to it under the PPWR and other applicable legislation based on its respective legal role. Nothing in the following provisions shall extend any statutory responsibility of the Seller or result in the assumption by the Seller of any statutory responsibility of the Customer.
(2) Contractual Take-Back Service
Where the Seller supplies packaging together with the goods, the Seller shall, subject to the conditions set out below, offer the Customer a free-of-charge take-back and collection service for such packaging and packaging waste.
Take-back shall only be provided upon the Customer’s prior request and subject to prior agreement of a collection date with the Seller. The Customer shall have no entitlement to a specific collection period, collection frequency or collection date.
Collection shall be carried out only within the collection arrangements organised by the Seller and taking into account the economically and technically reasonable means of handling the relevant packaging waste.
(3) Scope of Take-Back
The free-of-charge take-back shall be limited exclusively to packaging which:
- a) was supplied by the Seller in connection with a delivery to the Customer;
- b) is in the possession or control of the Customer; and
- c) can be clearly attributed to the Seller.
Packaging or packaging waste originating from third-party suppliers, manufacturers or other third parties shall be excluded from the free-of-charge take-back.
Reusable packaging, transport equipment, load carriers, pallets, containers or other reusable packaging systems shall only be taken back where expressly agreed.
(4) Condition and Preparation of Packaging Waste
The Customer shall properly store and make the packaging designated for take-back accessible to the Seller without disproportionate effort.
The Customer shall keep different packaging materials separated in accordance with the Seller’s instructions and shall ensure that the packaging is free from significant foreign materials, residual contents and hazardous substances.
The Seller may decline to take back the packaging where the packaging or packaging waste does not comply with the foregoing requirements.
Any additional costs resulting from improper preparation, including sorting, cleaning, repackaging, special disposal or additional collection attempts, may be charged to the Customer based on the actual costs incurred.
(5) Availability and Accessibility
The Customer must ensure that the packaging designated for take-back is fully collected and made accessible to the transport vehicle arranged by the Seller at the agreed collection date.
Unless expressly agreed otherwise, the Seller shall have no obligation to collect or load packaging from inside buildings, storage areas or other areas that are not reasonably accessible.
Waiting time or additional collection attempts caused by the Customer’s failure to properly or timely prepare the packaging may be charged to the Customer based on the actual costs incurred.
(6) No Take-Back of Third-Party Packaging
The Seller shall have no obligation to take back packaging that was not supplied by the Seller.
In particular, the Seller shall have no obligation to collect or dispose of packaging waste originating from other suppliers, manufacturers or brands.
Any take-back of such packaging shall require a separate express agreement and may be made conditional upon the Customer bearing the resulting costs.
(7) EPR and Other Statutory Obligations of the Customer
The contractual take-back service shall neither transfer nor alter any statutory obligations of the Customer under the PPWR or other applicable EPR legislation.
To the extent the Customer is legally responsible, due to its role as producer, importer, distributor, manufacturer or otherwise, including in connection with own-brand or other arrangements, for registration, EPR system participation, financing, reporting, take-back, recovery or other EPR obligations, such obligations shall remain entirely with the Customer.
Upon request, the Customer shall inform the Seller of any circumstances relevant to determining the respective statutory responsibilities of the parties.
(8) Changes in Legal Requirements
If the legal requirements applicable to packaging, packaging waste or EPR are amended after conclusion of the contract, the Seller may reasonably adjust the manner in which the contractual take-back service is provided where necessary or appropriate to comply with such amended requirements or due to changed technical, organisational or economic circumstances.
(9) Mandatory Law
Mandatory statutory requirements shall not be affected. If any provision of this Section cannot be applied, in whole or in part, due to mandatory law, it shall be replaced by the legally permissible provision that most closely reflects the economic purpose of the original provision.
Section 6 Prices and payment terms
(1) Unless otherwise agreed in an individual case, our prices applicable at the time the contract is concluded shall apply ex production site plus statutory value added tax.
(2) In the case of a sale involving carriage (section 4(1)), the Buyer shall bear the transport costs from the agreed place of dispatch and the cost of any transport insurance arranged at the Buyer’s request. The Buyer shall bear customs duties, import charges, taxes and other public levies unless mandatory law or the agreed delivery term provides otherwise. Section 5 shall apply to the return, provision and handling of packaging.
(3) The purchase price shall fall due and must be paid within 21 days after an invoice has been issued to the Buyer. We may make performance conditional upon advance payment. If delivery is made against advance payment, the customer shall receive a pro forma invoice.
(4) The Buyer shall be in default upon expiry of the above payment period. During the period of default, interest shall accrue on the purchase price at the applicable statutory default interest rate. Our right to recover further loss caused by the default. Our claim against merchants for commercial maturity interest under section 353 of the German Commercial Code (Handelsgesetzbuch – “HGB”) shall not be affected.
(5) The Buyer may exercise rights of set-off or retention only where its counterclaim has been finally adjudicated, is ready for judgment or is undisputed, or arises from the same contractual relationship. In the event of defects, the Buyer’s corresponding rights, in particular under section 8(5), second sentence, shall not be affected.
(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardised by the Buyer’s inability to perform, for example by an application to open insolvency proceedings, we may refuse performance and, where applicable after setting a deadline, withdraw from the contract in accordance with the statutory provisions (section 321 BGB). In contracts for the manufacture of non-fungible goods (custom-made products), we may withdraw immediately; the statutory provisions under which setting a deadline is unnecessary shall not be affected.
Section 7 Retention of title
(1) We shall remain the owner to the goods sold until all our present and future claims arising from the contract of sale and an ongoing business relationship (the “Secured Claims”) have been paid in full.
(2) Before the Secured Claims have been paid in full, the goods subject to retention of title may neither be pledged to third parties nor transferred by way of security. The Buyer must inform us in writing without undue delay if and to the extent that third parties obtain access to goods owned by us.
(3) If the Buyer acts in breach of contract, in particular by failing to pay the purchase price when due, we may withdraw from the contract in accordance with the statutory provisions and/or demand surrender of the goods by virtue of our retention of title. A demand for surrender shall not at the same time constitute a declaration of withdrawal; rather, we may demand only surrender of the goods and reserve the right to withdraw. If the Buyer fails to pay the purchase price when due, we may exercise these rights only after an appropriate payment period set by us has expired without payment, unless setting such a period is unnecessary under the statutory provisions.
(4) The Buyer may resell and/or process the goods subject to retention of title in the ordinary course of business. In that event, the following supplementary provisions shall apply.
(a) The retention of title shall extend to products created by processing, mixing or combining our goods, at their full value, and we shall be deemed the manufacturer. If, upon processing, mixing or combining our goods with third-party goods, the third party’s title continues to exist, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. In all other respects, the product created shall be subject to the same provisions as the goods supplied under retention of title.
(b) The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or products, or such claims in the amount of any co-ownership share held by us pursuant to the preceding paragraph.
We hereby accept the assignment. The Buyer’s obligations set out in subsection (2) shall also apply in respect of the assigned claims.
(c) The Buyer shall remain authorised, alongside us, to collect the claim. We undertake not to collect the claim provided that the Buyer meets its payment obligations towards us, is not in default in payment, no application to open insolvency proceedings has been filed and there is no other deficiency in its ability to perform. If any of these circumstances arises, we may require the Buyer to disclose the assigned claims and the relevant debtors, provide all information required for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment.
(d) If the realisable value of the security exceeds our claims by more than 10%, we shall, at the Buyer’s request, release security of our choice.
Section 8 Buyer’s claims for defects
(1) Unless otherwise provided below, the statutory provisions shall apply to the Buyer’s rights in the event of defects as to quality and title, including incorrect or short delivery, improper assembly or defective assembly instructions. In particular, the statutory provisions governing reimbursement of expenses and recourse within the supply chain (sections 445a, 445b and 478 BGB) shall not be affected.
(2) Our liability for defects is based primarily on the agreed quality and the contractually intended purpose. In particular, product descriptions, specifications, drawings and approved samples expressly incorporated into the contract shall constitute agreements as to quality. Where no quality has been agreed, whether a defect exists shall be determined in accordance with section 434 BGB. Liability on our part shall arise for public statements made by the manufacturer or other third parties only in accordance with the statutory provisions.
(3) The Buyer’s claims for defects require the Buyer to have complied with its statutory duties of inspection and notification under sections 377 and 381 HGB. If a defect becomes apparent during inspection or later, we must be notified without undue delay in text form. A notice shall generally be deemed to have been given without undue delay if it is dispatched within ten calendar days after discovery; for obvious defects, the period shall begin upon delivery. If the Buyer fails to carry out the required inspection or give the required notice, the statutory consequences shall apply.
(4) If the goods supplied are defective, we may initially choose whether to provide subsequent performance by remedying the defect (repair) or by supplying goods free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall not be affected.
(5) We may make subsequent performance conditional upon payment by the Buyer of the purchase price due. The Buyer may, however, retain a reasonable portion of the purchase price in proportion to the defect.
(6) The Buyer shall give us the time and opportunity required for subsequent performance and shall make the rejected goods accessible or hand them over for inspection. In the event of replacement delivery, the defective item shall be returned in accordance with the statutory provisions. Our obligation to remove the defective item and install or attach the repaired or replacement item shall be governed by section 439(3) BGB.
(7) We shall bear the expenses required for inspection and subsequent performance, in particular transport, travel, labour and material costs as well as necessary removal and installation costs, in accordance with the statutory provisions if a defect actually exists. If the request to remedy a defect was unjustified, we may demand reimbursement of the resulting costs if the Buyer knew, or negligently failed to realise, that no defect existed.
(8) If subsequent performance has failed, a reasonable period has expired without success or setting a period is unnecessary under the statutory provisions, the Buyer may withdraw from the contract or reduce the purchase price in accordance with the statutory provisions. There shall be no right of withdrawal in the event of an immaterial defect.
(9) The Buyer may claim damages and reimbursement of futile expenditure only in accordance with section 9.
Section 9 Other liability
(1) Our liability in damages, irrespective of the legal basis, including impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall, insofar as fault is relevant, be limited in accordance with this section 9.
(2) In the event of ordinary negligence, we shall be liable only for loss resulting from the breach of a material contractual obligation. Material contractual obligations are obligations whose performance is essential for the proper performance of the contract and on whose compliance the Buyer may regularly rely.
(3) Where we are liable under subsection (2), our liability shall be limited to the loss typical for the contract and foreseeable at the time the contract was concluded.
(4) Any further monetary limitation apply exclusively where expressly agreed in the individual contract.
(5) The exclusions and limitations of liability above shall apply to the same extent for the benefit of our corporate bodies, legal representatives, employees and other vicarious agents.
(6) If we provide technical information or advice that does not form part of the contractually agreed scope of Services, it shall be provided free of charge. Any liability in this respect shall also be governed by this section 9.
(7) The limitations in this section 9 shall not apply in cases of intent or gross negligence, fraudulent concealment of a defect, assumption of a guarantee or procurement risk, injury to life, limb or health, or to claims under the German Product Liability Act (Produkthaftungsgesetz) or other mandatory law.
(8) In the event of a breach of duty that does not constitute a defect, the Buyer may withdraw or terminate only if we are responsible for the breach. The Buyer’s right to terminate for convenience, in particular under section 648 BGB, is excluded to the extent permitted by law. In all other respects, the statutory requirements and consequences shall apply.
Section 10 Limitation periods
(1) By way of derogation from section 438(1) no. 3 BGB, the general limitation period for claims arising from defects as to quality and title shall amount to one year from delivery. If acceptance has been agreed, the period shall begin upon acceptance. In particular, mandatory longer periods under section 438(1) nos. 1 and 2, section 445b and section 634a BGB, as well as claims based on intent, gross negligence, fraudulent conduct, a guarantee, injury to life, limb or health, or the German Product Liability Act, shall not be affected.
(2) The limitation periods under the law of sale stated above shall also apply to the Buyer’s contractual and non-contractual claims for damages based on a defect in the goods, unless application of the standard statutory limitation period under sections 195 and 199 BGB would result in a shorter period in the individual case. The limitation periods under the German Product Liability Act shall not be affected in all cases. In all other respects, only the statutory limitation periods shall apply to the Buyer’s claims for damages under section 8.
Section 11 Governing law and dispute resolution
(1) These GTCS and all legal relationships between us and the Buyer shall be subject to the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The requirements for and effects of retention of title shall be governed by the law of the place where the goods are located if, under that law, the choice of German law is inadmissible or ineffective.
(2) All disputes arising out of or in connection with contracts to which these GTCS apply shall be resolved with final effect under the Arbitration Rules of the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit e. V. – “DIS”). The arbitral tribunal shall consist of a sole arbitrator. The seat of arbitration shall be Wiesbaden and the language of the proceedings shall be German. The parties’ right to apply to a competent state court for interim relief before constitution of the arbitral tribunal shall not be affected.
Part B – General Terms and Conditions of Purchase (GTCP)
Section 1 General provisions and scope
(1) These General Terms and Conditions of Purchase (the “GTCP”) apply to all business relationships with our business partners and suppliers (hereinafter referred to as the “Seller”). The GTCP apply only if the Seller is an entrepreneur within the meaning of section 14 BGB, a legal entity under public law or a special fund under public law.
(2) The GTCP apply in particular to contracts for the purchase and/or delivery of movable goods, including goods that are yet to be manufactured or produced (sections 433 and 650 BGB), as well as to development, planning, design, calculation, simulation, consultancy and other service or works contracts (collectively also referred to as the “Services”). Where individual provisions apply by their nature only to goods, they shall apply mutatis mutandis to other Services to the extent permitted by the legal nature of those Services. The GTCP, in the version applicable at the relevant time, shall also constitute a framework agreement for future contracts with the same Seller; amendments shall apply only to contracts concluded after they have been notified.
(3) These GTCP shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Seller shall form part of the contract solely to the extent expressly approved by us in writing. Our consent is required without exception, including where we accept the Seller’s deliveries without reservation despite being aware of the Seller’s general terms and conditions.
(4) Individual agreements made with the Seller, including ancillary agreements, additions and amendments, shall prevail over these GTCP. The written contract or our confirmation in text form shall be decisive as regards their content; proof to the contrary shall remain admissible.
(5) Legally relevant declarations and notices to be given to us by the Seller after conclusion of the contract, such as the setting of deadlines, reminders or withdrawal, shall be submitted in text form within the meaning of section 126b BGB unless a stricter form is mandatorily prescribed.
(6) References to the applicability of statutory provisions serve solely to clarify. Statutory provisions therefore remain applicable even in the absence of such clarification unless they are directly modified or expressly excluded by these GTCP.
Section 2 Conclusion of the contract
(1) Our purchase order shall be binding once transmitted in text form. The Seller shall notify us of obvious errors and omissions in the purchase order, including the order documents, before acceptance; otherwise, the contract shall be deemed not to have been concluded to the extent that the error or omission prevents agreement.
(2) The Seller shall confirm our purchase order in text form within 14 calendar days or accept it by performing it without reservation. A late or modified acceptance shall constitute a new offer and require our acceptance.
Section 3 Delivery and performance periods; delay
(1) The delivery period specified by us in the purchase order shall be binding. If no delivery period is specified in the purchase order or otherwise agreed, it shall be two months from conclusion of the contract. The Seller must inform us in writing without undue delay if, for any reason, it anticipates that it will be unable to meet an agreed delivery period.
(2) If the Seller fails to perform, fails to perform within the agreed delivery period or is otherwise in delay, our rights, in particular to withdrawal and damages, shall be governed by the statutory provisions. Subsection (3) shall not be affected.
(3) If the Seller is in delay, we shall be entitled to claim a contractual penalty of 2% of the net price for each completed calendar week, but not more than 10% of the net price of the goods delivered late. We may claim the contractual penalty in addition to performance and as the minimum amount of damages owed by the Seller under the statutory provisions; the right to claim further loss shall not be affected. If we accept late performance, we shall assert the contractual penalty no later than upon final payment.
Section 4 Performance, delivery, transfer of risk and default in acceptance
(1) The Seller may not engage third parties to perform its obligations, such as subcontractors, without our prior written consent. The Seller shall bear the procurement risk for its performance unless otherwise agreed in the individual case, for example in the case of a sale of goods held in stock.
(2) Deliveries within Germany shall be made “free domicile” to the location stated in the purchase order. If no destination is stated and nothing else has been agreed, delivery shall be made to our registered office in Bischofsheim. The respective destination shall also be the place of performance (obligation to deliver at destination).
(3) The delivery must include a delivery note stating the date of issue and dispatch, the contents of the delivery (item number and quantity), and our purchase-order reference (date and number). We shall not be responsible for delays in processing and payment resulting from a missing or incomplete delivery note. A dispatch notice containing the corresponding information shall be sent to us separately from the delivery note.
(4) The risk of accidental loss of and accidental damage to the goods shall pass to us upon handover at the place of performance. Handover or acceptance shall be deemed to have occurred if we are in default in acceptance.
(5) Our default in acceptance shall be governed by the statutory provisions. The Seller must expressly offer performance even where a specific or determinable calendar time has been agreed for an act or cooperation on our part. If we are in default in acceptance, the Seller may claim reimbursement of its additional expenses under section 304 BGB. Where the contract concerns a non-fungible item to be manufactured by the Seller, the Seller shall have further rights only if we were obliged to cooperate and are responsible for failing to do so.
Section 5 Packaging, packaging waste and the PPWR
(1) Compliance with Legal Requirements
The Supplier shall ensure that all goods supplied by the Supplier and all packaging used in connection with such goods comply with all applicable legal requirements, in particular Regulation (EU) 2025/40 on packaging and packaging waste (the “PPWR”), as well as any applicable national implementing legislation.
The Supplier must properly discharge all obligations relating to extended producer responsibility (“EPR”) applicable to the Supplier in respect of the packaging, to the extent such obligations are legally incumbent upon the Supplier.
(2) Packaging Information and Documentation
Upon request, the Supplier must furnish the Purchaser with all information and documentation required to assess and fulfil the applicable requirements of the PPWR. This shall include, in particular, information on the type, material, composition, weight and packaging category and, where applicable, technical documentation, declarations of conformity and other evidence of packaging compliance.
The Supplier shall promptly inform the Purchaser of any changes to the packaging, packaging materials, composition or any other circumstances that may affect the conformity of the packaging or its classification under applicable EPR requirements.
(3) EPR and Registration
To the extent the Supplier is legally responsible under the PPWR or applicable national legislation for the registration, participation in an EPR system, financing, take-back, recovery or reporting of packaging, the Supplier shall duly and timely fulfil such obligations.
Upon request, the Supplier must furnish the Purchaser with appropriate evidence of compliance with such obligations.
(4) Packaging under the Purchaser’s Brand
Where the Supplier manufactures, fills or supplies packaging or packaged products under the name, trademark or brand of the Purchaser, the Supplier shall provide the Purchaser in a timely manner with all information and documentation required for the Purchaser to fulfil its obligations as “manufacturer” and/or “producer” under the PPWR.
The Supplier’s obligation to provide such information and documentation shall not affect the statutory responsibilities of the Purchaser under the PPWR.
(5) Take-Back of Packaging
Where agreed between the parties or required by applicable law, the Supplier shall take back, free of charge, packaging and packaging waste supplied by the Supplier and ensure its proper reuse, recovery, recycling or other legally compliant management.
The details of such take-back, including the place of collection, collection frequency, sorting requirements and condition of the packaging waste, may be agreed separately between the parties.
(6) Indemnification
The Supplier shall indemnify and hold the Purchaser harmless against all reasonable costs, losses, expenses and third-party claims arising from the Supplier’s culpable failure to comply with any statutory or contractual requirements applicable to the packaging supplied by the Supplier.
This shall include, in particular, costs arising from regulatory measures, necessary corrective actions, take-back, disposal and recovery, as well as reasonable legal defence costs, to the extent caused by a breach attributable to the Supplier.
(7) Mandatory Law
Nothing in this Section shall alter the statutory allocation of responsibilities under the PPWR. Each party shall remain responsible for the obligations legally incumbent upon it under the PPWR.
Section 6 Prices and payment terms
(1) The price set out in the purchase order shall bind the parties. Unless expressly stated otherwise, prices are net plus the applicable statutory value added tax.
(2) Unless otherwise agreed or itemised in the purchase order, the price shall cover every principal and ancillary service of the Seller and all incidental costs, in particular proper packaging, transport and insurance to the agreed place of performance. Section 5 shall additionally apply to the return of packaging.
(3) The agreed price shall fall due within 30 calendar days after complete delivery and performance, including any agreed acceptance, and receipt of a proper invoice. If we make payment within 14 calendar days, the Seller shall grant us a cash discount of 3% on the net invoice amount.
(4) We shall not owe maturity interest. In the event of default, the statutory default interest rate shall apply. The commencement of default shall be governed by the statutory provisions.
(5) Rights of set-off and retention and the defence of non-performance may be exercised by us to the extent permitted by law. In particular, we may withhold payments due for as long as we have claims against the Seller arising from incomplete or defective performance.
(6) The Seller shall have a right of set-off or retention only in respect of counterclaims that have been finally adjudicated or are undisputed.
Section 7 Confidentiality, documents and retention of title
(1) Title and copyright shall remain vested in us in illustrations, plans, drawings, calculations, performance instructions, product descriptions and other documents. Such documents may be used only to perform the contract and must be returned to us upon completion of the contract. The documents shall be kept confidential from third parties, including after termination of the contract. The confidentiality obligation shall expire only if and to the extent that the knowledge contained in the documents provided has become generally known.
(2) The preceding provision shall apply mutatis mutandis to substances and materials, such as software, finished and semi-finished products, and to tools, templates, samples and other items that we provide to the Seller for production. Unless and until processed, such items shall be stored separately at the Seller’s expense and adequately insured against destruction and loss.
(3) Any processing, mixing or combination (further processing) by the Seller of items provided shall be carried out on our behalf. The same shall apply if we further process the goods supplied, with the result that we shall be deemed the manufacturer and shall acquire title to the product upon further processing at the latest in accordance with the statutory provisions.
(4) Title to the goods shall be transferred to us unconditionally and irrespective of payment of the price. If, however, in an individual case we accept an offer by the Seller to transfer title subject to payment of the purchase price, the Seller’s retention of title shall expire no later than upon payment of the purchase price for the goods supplied. In the ordinary course of business, we shall remain authorised to resell the goods before payment of the purchase price, subject to advance assignment of the resulting claim; alternatively, a simple retention of title extended to the resale shall apply. All other forms of retention of title are therefore excluded, in particular extended retention of title, forwarded retention of title and retention of title extended to further processing.
Section 8 Defective delivery
(1) Unless otherwise provided below, the statutory provisions shall apply to our rights in the event of defects as to quality and title, including incorrect or short delivery, improper assembly or defective assembly, operating or user instructions, and in the event of other breaches of duty.
(2) Under the statutory provisions, the Seller shall be responsible in particular for ensuring that the goods have the agreed quality when risk passes to us. In all cases, product descriptions that form part of the relevant contract, in particular by being identified or referred to in our purchase order, or that have been incorporated into the contract in the same manner as these GTCP, shall constitute agreements as to quality. It shall be immaterial whether the product description originates from us, the Seller or the manufacturer.
(3) By way of derogation from section 442(1), second sentence, BGB, we shall retain unrestricted claims for defects even if, as a result of gross negligence, we were unaware of the defect when the contract was concluded.
(4) Sections 377 and 381 HGB shall apply to the commercial duties of inspection and notification subject to the following conditions: our duty of inspection shall be limited to defects that are apparent during incoming-goods inspection by external examination, including examination of the delivery documents, and during reasonable sample-based quality control. Where acceptance has been agreed, there shall be no duty of inspection. In all other respects, the nature and scope of the inspection shall depend on the circumstances of the individual case and the ordinary course of business. A notice of defect shall generally be deemed timely if dispatched within ten calendar days after discovery.
(5) The Seller shall bear, in accordance with the statutory provisions, the expenses required for inspection and subsequent performance, in particular transport, travel, labour and material costs as well as necessary removal and installation costs. If our request to remedy a defect proves unjustified, we shall owe reimbursement of costs only if we knew, or negligently failed to realise, that no defect existed.
(6) If the Seller fails to perform its obligation of subsequent performance, at our option by remedying the defect (repair) or supplying an item free of defects (replacement delivery), within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance from the Seller. No deadline need be set if subsequent performance by the Seller has failed or is unreasonable for us, for example because of particular urgency, a threat to operational safety or the imminent occurrence of disproportionate loss; we shall notify the Seller of such circumstances without undue delay and, where possible, in advance.
(7) In all other respects, in the event of a defect as to quality or title, we may reduce the price or withdraw from the contract in accordance with the statutory provisions. In addition, we may claim damages and reimbursement of futile expenditure in accordance with the statutory provisions.
Section 9 Supplier Recourse
(1) Our statutory rights of recourse within a supply chain, under sections 445a, 445b and 478 BGB, shall be available to us without restriction in addition to our other claims for defects. We may demand the type of subsequent performance that we owe to our customer in the individual case; our statutory right of choice under section 439(1) BGB shall not be affected.
(2) Before recognising or satisfying a claim for defects asserted by our customer, we shall notify the Seller and give it an opportunity to comment. If no comments are provided within a reasonable period and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to have been owed unless it was manifestly unfounded; the Seller may prove otherwise.
(3) Our supplier-recourse claims shall also apply where the goods were further processed by us or one of our customers before being sold to a consumer, for example by incorporation into another product.
Section 10 Product liability
(1) If the Seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause originated within its sphere of control and organisation and it is itself liable externally.
(2) As part of its indemnification obligation, the Seller shall reimburse expenses under sections 683 and 670 BGB arising from or in connection with claims by third parties, including recall actions carried out by us. To the extent possible and reasonable, we shall inform the Seller of the content and scope of recall measures and give it an opportunity to comment. Further statutory claims remain unaffected.
(3) Throughout the term of the contract, the Seller shall maintain appropriate business and product liability insurance with coverage of at least EUR 10 million per occurrence for personal injury and property damage and shall provide evidence of such insurance at our request.
Section 11 Limitation periods
(1) The parties’ mutual claims shall be subject to the statutory limitation rules unless otherwise provided below.
(2) By way of derogation from section 438(1) no. 3 BGB, the general limitation period for claims for defects shall be three years from the passing of risk; where acceptance has been agreed, it shall begin upon acceptance. Mandatory longer periods, in particular under section 438(1) nos. 1 and 2, section 445b and section 634a BGB, shall not be affected. The following shall also apply to defects in title: claims shall not become time-barred for as long as the third party can still assert the right against us.
(3) The limitation periods under the law of sale, including the above extension, shall apply, to the extent permitted by law, to all contractual claims for defects. Where we also have non-contractual claims for damages on account of a defect, the standard statutory limitation period under sections 195 and 199 BGB shall apply unless application of the limitation periods under the law of sale results in a longer limitation period in the individual case.
Section 12 Governing law and dispute resolution
(1) These GTCP and all legal relationships between us and the Seller shall be subject to the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The requirements for and effects of retention of title shall be governed by the law of the place where the goods are located if, under that law, the choice of German law is inadmissible or ineffective.
(2) All disputes arising out of or in connection with contracts to which these GTCP apply shall be resolved with final effect under the Arbitration Rules of the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit e. V. – “DIS”). The arbitral tribunal shall consist of a sole arbitrator. The seat of arbitration shall be Wiesbaden and the language of the proceedings shall be German. The parties’ right to apply to a competent state court for interim relief before constitution of the arbitral tribunal shall not be affected.