General terms and conditions
1.1 ELP GmbH European Logistic Partners (hereinafter referred to as “ELP”) provides its deliveries and services exclusively under the following General Terms and Conditions. They shall apply to all future business transactions between the contracting parties, without special renewed reference. They shall also apply if ELP does not expressly refer to them in subsequent contracts, in particular also if ELP provides deliveries or services to the Purchaser without reservation in the knowledge that the Purchaser’s terms and conditions are contrary to or deviate from our General Terms and Conditions of Sale.
1.2 Any references by the Purchaser to its terms and conditions of business are hereby objected to. Any terms and conditions of the Purchaser conflicting with or deviating from ELP’s terms and conditions shall not be accepted, not even by unconditional execution of the contract.
2.1 ELP’s offers to the Purchaser shall always be without engagement. If a binding period was specified in the offer, the offer shall only be subject to change upon expiry of this period. Only the order is considered a binding offer. Acceptance of this offer shall be effected, at ELP’s option, by sending an order confirmation or by unconditional performance of the ordered deliveries or services.
2.2 Information on quality and durability, technical data and descriptions in the product information, advertising materials or technical data sheets, as well as information provided by the manufacturer or his assistants within the meaning of § 434 Para. 1 item. 3 BGB (German Civil Code), are not guarantees of quality or durability of the goods to be delivered by ELP, unless the specifications are agreed upon in an individual contract.
2.3 Relevant identified uses for the goods according to the European Chemicals Regulation REACH shall neither constitute an agreement on a corresponding contractual quality of the goods nor a presumed use according to the contract.
2.4 In the case of sales based on samples or specimens, these merely describe professional trial conformity, but do not constitute a guarantee for the quality or durability of the goods to be supplied by ELP.
2.5 ELP shall provide technical application advice to the best of its knowledge. All data and information on the suitability and use of goods shall not release the Purchaser from its own checks and tests to determine the suitability of the products for the purposes intended by the Purchaser.
3.1 The prices agreed upon conclusion of the respective contract, in particular those stated in the order form or the order confirmation, shall apply. If a price is not expressly determined, the prices according to ELP’s price list valid at the time of the conclusion of the contract shall apply. The weights and quantities determined by ELP shall be decisive for the calculation of the prices unless the Purchaser objects immediately after receipt of the goods. In addition to these prices, the value added tax applicable on the day of delivery at the respective statutory rate as well as the costs for the packaging necessary for proper shipment, the transport costs ex works or ex warehouse, the cartage costs and – if agreed – the costs of transport insurance shall be added. For foreign deliveries, other transport-, goods- and country-specific duties may be added.
3.2 ELP reserves the right to adjust the prices appropriately if cost changes occur after the conclusion of the contract due to tariff agreements, price increases of the upstream suppliers or exchange rate fluctuations. These price changes will be communicated in writing at least four weeks before the new prices come into effect. If the customer does not object to the new prices within one week after notification, they shall be deemed accepted. This does not apply if a fixed price has been agreed.
3.3 Unless otherwise agreed, invoices shall be paid 30 days after receipt without deduction. After expiry of this period or of the payment deadline or due date stated on the invoice, the Purchaser shall be in default pursuant to §286 II No. 2 of the German Civil Code (BGB).
3.4 In case of positive creditworthiness, payment by SEPA corporate direct debit is possible. The pre-notification (advance information) can also announce several direct debits. The period for sending the pre-notification is reduced from 14 days to one day. It is done by showing the relevant data on the invoice, or by transmitting the data (together with the invoice data) electronically.
3.5 The Purchaser shall have a right of set-off or a right of retention only in respect of undisputed or legally established claims or entitlements.
3.6 If the Customer does not pay due invoices, exceeds a granted term of payment or if the Customer’s financial situation deteriorates after the conclusion of the contract or if ELP receives unfavorable information about the Customer after the conclusion of the contract which calls into question the Customer’s solvency or creditworthiness, ELP shall be entitled to declare the entire remaining debt of the Customer due and payable and to demand advance payment or provision of security or, after delivery has been made, immediate payment of all outstanding claims which are based on the same legal relationship, modifying the agreements made. This shall apply in particular if the Purchaser ceases its payments, a check of the Purchaser is not honored, a bill of exchange given by the Purchaser is not paid by the Purchaser, insolvency proceedings have been applied for or opened against the assets of the Purchaser or insolvency proceedings have not been opened due to lack of assets.
3.7 In case of justified doubts about the Purchaser’s solvency, in particular in case of default of payment, ELP may, subject to further claims, revoke granted terms of payment and make further deliveries dependent on the granting of other securities.
3.8 Failure to pay the purchase price when due shall constitute a material breach of contractual obligations.
3.9 In case of default of payment by the Purchaser, ELP shall be entitled to charge interest on arrears at the rate of 9 percentage points above the base interest rate announced by the Deutsche Bundesbank at the time of the default and at the rate of 9 percentage points above the discount rate of the highest banking institution of the country in whose currency the invoice was issued at the time of the default if the invoice was issued in Euro. Furthermore, in the event of default by the debtor, ELP shall also be entitled to payment of a lump sum in the amount of € 40.00. This shall also apply if the payment claim is a payment on account or other installment payment. The lump sum shall be credited against any damages owed to the extent that the damages are based on costs of legal prosecution.
4.1 Delivery times are only approximate unless a fixed date has been expressly agreed in writing. The specification of delivery periods is always subject to the contractual cooperation of the purchaser. If, nevertheless, agreed delivery times are exceeded due to circumstances for which ELP is responsible, the Purchaser shall be entitled to withdraw from the contract after fruitless expiry of a reasonable grace period set by the Purchaser. The withdrawal must be made in writing. Deliveries and services on Saturdays as well as on Sundays and public holidays are only possible by special agreement and for an additional charge.
4.2 ELP shall only be in default after the expiry of a reasonable grace period set by the Purchaser, which must be at least 15 working days. In the event of force majeure and other unforeseeable, extraordinary circumstances beyond ELP’s control, such as e.g. In the event of force majeure and other unforeseeable and extraordinary circumstances beyond ELP’s control, such as interruption of operations due to fire, water and similar circumstances, breakdown of production facilities and machinery, failure to meet delivery deadlines or failure to deliver on the part of ELP’s suppliers, as well as interruption of operations due to shortage of raw materials, energy or manpower, strike, lockout, pandemic, difficulties in procuring means of transport, traffic disruptions, official interventions, ELP shall be entitled – to the extent that it is prevented by the aforementioned circumstances through no fault of its own from fulfilling its performance obligations in due time – to postpone the delivery or performance for the duration of the impediment plus a reasonable start-up period. performance for the duration of the impediment plus a reasonable start-up time. If as a result of this the delivery or service is delayed by more than one month, both ELP and the Purchaser shall be entitled, to the exclusion of any claims for damages, under the conditions set forth in sec. Digit. 8.1 to 8.6 of these Terms and Conditions with respect to the quantity affected by the delivery disruption.
4.3 In any case of default, ELP’s liability for damages shall be limited in accordance with the provisions of sec. 8.1 to 8.6 of these Terms and Conditions.
4.4 ELP shall be entitled to make partial deliveries and render partial services within the agreed delivery and service periods if this is reasonable for the Customer.
4.5 ELP’s compliance with its delivery and performance obligations shall be conditional upon the timely and proper fulfillment of the Purchaser’s obligations. ELP reserves the right to plead non-performance of the contract.
4.6 If the Purchaser is in default with the expiry, acceptance or collection or if the Purchaser is responsible for a delay in dispatch or delivery, ELP shall be entitled, without prejudice to any further claims, to charge a lump sum for costs in the amount of the usual local storage costs, irrespective of whether ELP stores the goods on its own premises or with a third party. The customer reserves the right to prove that no damage or lower damage has been incurred.
5.1 Unless expressly agreed otherwise in writing between ELP and Purchaser, delivery shall be ex works ELP or ex warehouse ELP and shall be collected there by Purchaser at its own risk and expense. In this case, the risk of accidental loss and accidental deterioration of the contractual delivery items after they have been made available for collection shall pass to the Purchaser upon receipt by the Purchaser of the notification that they have been made available. In all other respects the risk of accidental loss and accidental deterioration of the delivery items shall pass to the Customer upon handover to the carrier (also in case of carriage paid delivery or delivery insured by ELP). The Purchaser shall be exclusively responsible for loading in a manner that is safe for transport and safe for operation.
5.2 If, at the Purchaser’s request, packaging deviates from the standard, this shall be charged at cost.
5.3 If the goods are shipped on pallets, they shall be invoiced; if the pallets are returned freight paid and in undamaged condition to a plant or distribution warehouse of ELP, they shall be reimbursed by credit note. If ELP exceptionally agrees to collect undamaged pallets from the Customer, the Customer shall bear the transport costs incurred by ELP; ELP expressly reserves the right to collect pallets separately from deliveries of goods or to have them collected by third parties.
5.4 Complaints regarding transport damage shall be made by the Purchaser directly to the transport company with a copy to ELP within the applicable time limits specified for this purpose.
5.5 Unless otherwise agreed in individual cases, the Purchaser shall be responsible for compliance with statutory and official regulations concerning import, transport, storage and use of the goods.
6.1 The delivered goods shall remain the property of ELP until full payment of the purchase price and all other present or future claims ELP may have against the Purchaser arising from the business relationship. The inclusion of the purchase price claim against the purchaser in a current account and the recognition of a balance shall not affect the retention of title.
6.2 The Purchaser shall be obliged to treat the object of sale with care until full ownership has been acquired; in particular, it shall be obliged to insure it adequately at its own expense against loss and damage and destruction, such as against fire, water and theft damage, at the replacement value. The Purchaser hereby assigns its claims under the insurance contracts to ELP. ELP hereby accepts this assignment.
6.3 Customer may neither pledge nor transfer by way of security the goods owned by ELP. However, he shall be entitled to resell the delivered goods in the ordinary course of business in accordance with the following provisions. The aforementioned entitlement shall not exist insofar as the Purchaser has assigned or pledged the claim against its contractual partner arising from the resale of the goods – in each case effectively – to a third party in advance or has agreed a prohibition of assignment with such third party.
6.4 The Purchaser assigns to ELP as security for the performance of all obligations set forth in Clause 6. 6.1. of these Terms and Conditions, the Customer hereby assigns to ELP all claims – including future and conditional claims – arising from a resale of the goods delivered by ELP including all ancillary rights in the amount of 110% gross of the value of the delivered goods with priority over the remaining part of his claims.
ELP hereby accepts this assignment.
6.5 As long as and to the extent the Customer meets its payment obligations towards ELP, it shall be authorized to collect the claims against its customers assigned to ELP in the ordinary course of business. However, he is not entitled to agree on a current account relationship or a prohibition of assignment with his customers with regard to these claims or to assign or pledge them to third parties. If, contrary to sentence 2, a current account relationship exists between the Purchaser and the purchasers of goods which are subject to ELP’s retention of title, the claim assigned in advance shall also relate to the acknowledged balance and, in the event of the Purchaser’s insolvency, also to the then existing balance.
6.6 Upon ELP’s request, the Purchaser shall individually prove its claims assigned to ELP and notify its debtors of the assignment effected with the request to pay to us up to the amount of ELP’s claims against the Purchaser. ELP is entitled at any time to notify the debtors of the Purchaser of the assignment and to collect the claims. However, ELP shall not make use of such powers as long as Purchaser duly and without delay meets its payment obligations, no petition for the opening of insolvency proceedings has been filed by Purchaser and Purchaser does not suspend its payments. If, however, one of the aforementioned cases occurs, ELP may demand that Purchaser informs ELP of the assigned claims and their debtors, provides all information necessary for the collection of the claims and hands over the relevant documents.
6.7 In case of seizure or other interventions by third parties, the customer shall notify ELP in writing without undue delay.
6.8 If the goods delivered by ELP under retention of title are processed, or mixed or combined with other items not belonging to ELP, ELP shall acquire co-ownership of the new item in proportion of the value of the goods delivered by ELP (final invoice amount, including VAT) to the other items at the time of processing/mixing or combination). In all other respects, the same shall apply to the item resulting from the processing as to the purchased item delivered under reservation. If processing, mixing or combining is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to ELP on a pro rata basis. The Purchaser shall be entitled to dispose of the products newly created by processing or transformation or combination or mixing in the ordinary course of business without pledging or assignment as long as the Purchaser fulfills its obligations under the business relationship with ELP in due time. The Purchaser hereby assigns to ELP by way of security its claims arising from the sale of such new products to which ELP has title to the extent of ELP’s ownership interest in the goods sold. If the Purchaser combines or mixes the delivered goods with a main item, he hereby assigns to ELP his claims against the third party up to the value of our goods.
ELP hereby accepts this assignment.
6.9 The Customer also assigns to ELP the claims up to the value of ELP’s goods as security for claims on the part of ELP arising from the connection of ELP’s goods with a property against a third party.
6.10 ELP undertakes to release the securities to which ELP is entitled at the Customer’s request at ELP’s discretion to the extent that the realizable value of ELP’s own securities exceeds the claims of ELP against the Customer to be secured by more than 20%.
6.11 In case of breach of contract by the Customer, in particular in case of default of payment of more than 10% of the invoice amount for a not insignificant period of time, ELP shall be entitled – without prejudice to further (damage) claims to which ELP is entitled – to withdraw from the contract and to demand return of the goods delivered by ELP. After taking back the goods delivered by ELP, ELP shall be entitled to dispose of them. The proceeds of the realization shall be set off against the customer’s existing liabilities towards ELP – less reasonable costs of realization.
7.1 Obvious material defects, wrong deliveries and deviations in quantity shall be notified to ELP by the Purchaser in writing without undue delay, however, no later than 3 days after receipt of the goods by the Purchaser. Non-obvious defects of any kind and delivery of goods that are not obviously different from those ordered must be reported immediately after they become visible by merchants within the meaning of the German Commercial Code (HGB), but by non-merchants at the latest within the warranty period from delivery. In order to safeguard claims for defects, the Buyer shall immediately inspect the goods for their conformity with the contract, in particular for deviations in type, quantity and weight, as well as for recognizable material defects, and shall comply with the inspection obligations set forth in the applicable DIN standards. This also applies if components are added that were not purchased from ELP. If any defects are only discovered during processing, the work must be stopped immediately and the unopened original containers that have not yet been processed must be secured. They shall be made available to ELP for review upon request. After 3 months from the transfer of risk to the Purchaser pursuant to Clause 5.1, notices of hidden defects shall be excluded and shall be deemed to have been given out of time to the extent that they should have been reasonably detectable. In the case of a claim made pursuant to sec. 7.1 Sentences 1 to 7, the Purchaser shall lose the right to claim damages if the notice of defect is late or not properly asserted under the conditions set forth in Clause 7.1. 8.1 to 8.5 of these Terms and Conditions, unless the defect has been fraudulently concealed by ELP.
7.2 In the event of defects in goods delivered by ELP, ELP shall, at its option, only be obliged to remedy the defect or to deliver defect-free goods (subsequent performance). If ELP is not willing or able to remedy the defect, in particular if the remedy is delayed beyond a reasonable period of time for reasons for which ELP is responsible, or if the remedy fails in any other way, the customer shall be entitled, at its option, to rescind the contract or to claim a reduction of the purchase price. A rectification of defects shall be deemed to have failed after the second attempt, unless the nature of the item or other circumstances indicate otherwise. Insofar as the customer has suffered damage or has incurred futile expenses due to defects in goods delivered by ELP, the liability of ELP for this shall be governed by sec. 7.1, 8.1 to 8.6 and para. 9 of these terms and conditions.
7.3 Claims for defects of the merchant within the meaning of the German Commercial Code (HGB) shall become time-barred at the latest one month after rejection of the complaint by ELP.
8.1 ELP shall only be liable for damages or futile expenses – irrespective of the legal ground – if the damage or the futile expenses a) has been caused by ELP or one of its vicarious agents through culpable breach of an essential contractual obligation or b) is due to a grossly negligent or intentional breach of duty by ELP or one of its vicarious agents. Pursuant to sec. 8.1.a and 8.1.b of these Terms and Conditions, ELP shall be liable for damages or futile expenses caused by advice or information not to be remunerated separately only in case of intentional or grossly negligent breach of duty, provided that such breach of duty does not constitute a material defect according to § 434 BGB of the goods delivered by ELP.
8.2 If ELP is liable pursuant to Section 8.1.a of these Terms and Conditions for the breach of an essential contractual obligation without gross negligence or intent, ELP’s liability for damages shall be limited to the foreseeable, typically occurring damage. In this case ELP shall in particular not be liable for loss of profit of the Purchaser and unforeseeable indirect consequential damages. The above limitations of liability pursuant to sentences 1 and 2 shall apply in the same way to damage caused by gross negligence or intent on the part of ELP’s employees or agents. ELP shall not be liable for any indirect damage incurred by the Purchaser due to the assertion of contractual penalty claims by third parties.
8.3 The limitations of liability set forth in clauses 8.1 to 8.2 above shall not apply to the extent that ELP’s liability is mandatory under the provisions of the Product Liability Act or if claims are asserted against ELP based on injury to life, body or health. If the goods delivered by ELP lack a guaranteed characteristic, ELP shall only be liable for such damages whose absence was the subject of the guarantee.
8.4 Any further liability for damages than provided for in clauses 8.1 to 8.3 of these Terms and Conditions shall be excluded – irrespective of the legal nature of the asserted claim. This also applies in particular to claims for damages arising from culpa in contrahendo pursuant to §311 para. 3 BGB, positive breach of contract according to §280 BGB or due to tort claims according to §823 BGB.
8.5 ELP shall not be liable in case of impossibility or delay of performance of delivery obligations if the impossibility or delay is due to Customer’s proper compliance with obligations under public law in connection with the European Chemicals Regulation REACH.
8.6 To the extent that ELP’s liability is excluded or limited pursuant to clauses 8.1 to 8.5, this shall also apply with regard to the personal liability for damages of ELP’s employees, workers, staff, representatives and vicarious agents as well as persons employed by ELP in the performance of its obligations.
9.1 Claims of the Purchaser based on defects of goods delivered by ELP or based on services rendered by ELP in breach of its obligations – including claims for damages and claims for reimbursement of expenses incurred in vain – shall become statute-barred within one year, unless otherwise provided for in the following Clauses 9.2 to 9.4 or unless the law according to §439 para. 1 No. 2, 445b BGB (right of recourse) and §634 a para. 1 No. 2 BGB prescribes longer periods.
9.2 If the Purchaser or another buyer in the supply chain has fulfilled claims against its buyer due to defects in newly manufactured goods delivered by ELP, the limitation period for claims of the Purchaser against ELP under §437 BGB and §445a BGB shall commence at the earliest two months after the point in time when the Purchaser or the other buyer in the supply chain as entrepreneur has fulfilled the claims of the consumer, unless the Purchaser could have successfully invoked the defense of limitation against its customer/contractual partner. The statute of limitations of the Purchaser’s claims against ELP due to defective goods delivered by ELP shall in any case occur as far as the claims of the Purchaser’s customer/contractual partner against the Purchaser due to defects of the goods delivered by ELP to the Purchaser are statute-barred, but no later than 5 years after the date ELP has delivered the respective goods to our Purchaser.
9.3 If ELP has provided advice and/or information not subject to separate remuneration in breach of duty without ELP having delivered goods in connection with the information or advice or without the advice or information in breach of duty constituting a material defect pursuant to §434 BGB of the goods delivered by ELP, any claims against ELP based thereon shall become statute-barred within one year from the statutory commencement of the limitation period. Claims of the Purchaser/Customer against ELP arising from a breach of contractual, pre-contractual or statutory obligations which do not constitute a material defect according to §434 BGB of the goods to be delivered or delivered by ELP shall also become time-barred within one year from the statutory commencement of the limitation period. Insofar as the aforementioned breaches of duty constitute a material defect pursuant to §434 of the German Civil Code (BGB) of the goods delivered by us in connection with the advice or information, the statute of limitations of the claims based thereon shall be governed by the provisions set forth in sec. 9.1, 9.2 and 9.4 of these Terms and Conditions.
9.4 The provisions set forth in the foregoing sec. IX.1 to IX.3 shall not apply to the limitation of claims based on injury to life, body or health to the extent that they do not apply to the limitation of claims under the Product Liability Act and to claims based on defects in title of the goods delivered by ELP which consist in a right in rem of a third party on the basis of which the return of the goods delivered by ELP can be demanded. Furthermore, they shall not apply to the limitation of claims of our Purchaser/Customer based on the fact that ELP fraudulently concealed defects in goods delivered by ELP or that ELP intentionally or grossly negligently breached a duty. In the cases mentioned in this Section IX.4, the statutory limitation periods shall apply to the limitation of these claims.
10.1 The return of defect-free goods delivered by ELP is excluded. If we exceptionally agree to the return of defect-free goods with a value of goods > 200,- EUR, a credit note for this will only be issued to the extent that we determine the unrestricted reusability. For the costs of testing, reprocessing, reworking and repackaging, the actual costs, at least 20% of the invoice amount or at least 30 euros will be deducted. Any freight costs incurred for return freight will be deducted additionally. Such credit shall not be paid out, but shall only be used to offset future deliveries.
11.1 Without ELP’s express written consent, rights or claims against ELP, in particular due to defects in goods delivered by ELP or due to breaches of duty committed by ELP, may not be transferred in whole or in part to third parties or pledged to third parties; §354 a of the German Commercial Code (HGB) remains unaffected.
12.1 If Regulations (EC) No. 1907/2006 (REACH Regulation) and/or (EC) No. 305/2011 (EU Construction Products Regulation), as amended from time to time, apply to the delivery item, Purchaser agrees to retrieve the safety data sheet from ELP’s website and/or the declaration of performance.
13.1 The place of performance and exclusive place of jurisdiction for all claims between ELP and merchants or legal entities under public law or special funds under public law shall be Wuppertal, or the registered office of the respective supplying plant or distribution warehouse, for payments the paying agents designated in the invoice, unless mandatory statutory provisions conflict therewith. However, ELP shall have the right to bring an action against a Purchaser also at the Purchaser’s statutory place of jurisdiction.
13.2 The legal relationship between ELP and the Purchaser shall be governed exclusively by the laws of the Federal Republic of Germany as applicable between German merchants and as could be validly agreed in the respective countries of delivery (see I of these Terms and Conditions of Sale). The application of the provisions on the international sale of goods (CISG-Vienna UN Convention on Contracts for the International Sale of Goods) and German private international law are expressly excluded.
13.3 Insofar as trade clauses according to the International Commercial Terms (INCOTERMS) have been agreed, the INCOTERMS shall apply in their latest version (currently INCOTERMS 2020).
Should any of the above provisions be invalid, partially invalid or excluded by a special agreement, this shall not affect the validity of the remaining provisions.
Status: May 2020
1.1 These General Terms and Conditions of Purchase shall apply to all orders placed by ELP GmbH European Logistic Partners (hereinafter referred to as “ELP”) with suppliers, service providers and other business partners (hereinafter collectively referred to as “Supplier”).
1.2 They shall also apply if ELP accepts deliveries without reservation in the knowledge of contradictory or supplementary terms and conditions of the Supplier. General terms and conditions of the Supplier which contradict or supplement these General Terms and Conditions of Purchase shall only become part of the contract to the extent that ELP has expressly agreed to their application in writing in advance.
1.3 Individual written agreements made with the supplier in individual cases shall take precedence over these General Terms and Conditions of Purchase.
2.1 Offers of the Supplier shall be made free of charge and shall not create any obligations for ELP. The Supplier shall expressly point out any deviations from ELP’s inquiry in its offer and additionally offer ELP alternatives which are technically and economically more favorable compared to the inquiry.
2.2 Orders placed by ELP must be in writing or text form. Deviations, amendments or additions to the order by the order confirmation shall only become part of the contract if they are confirmed by ELP in writing or text form.
2.3 ELP may revoke the order if the Supplier does not accept it in writing or by immediate delivery within two (2) weeks after receipt.
2.4 Cost estimates of the Supplier shall be binding and shall not be remunerated unless expressly agreed otherwise.
2.5 The use of subcontractors requires the prior written consent of ELP. If consent is granted, the supplier shall nevertheless remain fully responsible to ELP for the performance of the contract.
3.1 The prices and currencies stated in ELP’s order shall be exclusively decisive. All prices include packaging, transport costs and insurance and are net prices plus value added tax, which ELP shall additionally pay at its respective statutory rate.
3.2 If the Supplier has assumed responsibility for installation or assembly, the Supplier shall bear all expenses required for this, in particular installation and assembly costs, travel expenses, provision of tools and allowances.
3.3 Invoices shall be sent in single copy to the respective invoice address specified in the order. Payments to suppliers shall be made exclusively in weekly payment runs following the due date. Only deliveries/services from one order may be settled in one invoice. As long as ELP does not have an auditable invoice in conformity with the order and the law, there is no obligation to pay. The payment can be made with debt-discharging effect by ELP itself or by a payment service provider explicitly authorized by ELP for this purpose.
4.1 Delivery of Goods shall be made carriage paid (CPT in accordance with INCOTERMS 2020) from the place of delivery specified in the Order (if applicable), to the place of destination specified in the Order.
4.2 The Supplier shall not be entitled to make partial deliveries unless ELP has expressly agreed to them in advance or they are reasonable for ELP. In the case of batch-dependent goods, partial deliveries must originate from one batch and be marked accordingly.
4.3 Agreed dates or deadlines are binding. The receipt of the goods at the place of destination designated by ELP shall be decisive for compliance with the delivery dates or deadlines. If a delivery with installation and assembly has been agreed, the acceptance of the installation or assembly shall be decisive for the timeliness of the delivery.
4.4 If delivery dates or deadlines are not met, the statutory provisions shall apply. If the Supplier realizes that it cannot fulfill its contractual obligations in whole or in part or cannot fulfill them in time, it shall inform ELP thereof without undue delay, stating the reasons and the expected duration of the delay. In particular, Supplier may only claim that it has not received or has not received in due time the documents required for the delivery (e.g. design and manufacturing documents, end-use declarations) from ELP if it has previously sent a written reminder to ELP and has not received the documents within a reasonable period of time.
4.5 The Supplier shall notify ELP in writing without undue delay if circumstances occur or become apparent to the Supplier which are likely to make timely delivery or performance impossible. Operational disruptions, shortages of energy or raw materials, traffic disruptions, insofar as such events were not foreseeable, as well as strikes, lockouts, official decrees and cases of force majeure shall release the party affected thereby from the obligation to deliver or accept for the duration of the disruption and to the extent of its effect. In this case, the Supplier shall distribute any remaining stocks of goods among its customers on a pro rata basis in proportion to their orders. If the delivery or acceptance is delayed by more than one (1) month due to the circumstances listed in this paragraph, both the Supplier and ELP shall be entitled to withdraw from the contract with respect to the quantity affected by the delivery and acceptance disruption, to the exclusion of all further claims.
5.1 The risk of accidental loss and accidental deterioration shall pass to ELP in accordance with the INCOTERMS agreed in the Purchase Order. If the supplier has taken over the installation or assembly, the risk shall only pass to ELP at the time of acceptance.
5.2 Each delivery shall be accompanied by a delivery bill referencing ELP’s purchase order number and identifying the contents of the delivery by type and quantity as well as lot, batch or serial numbers. If the delivery bill is missing or incomplete, ELP shall not be responsible for any resulting delays in processing and payment.
5.3 The Supplier shall pack the goods with packaging materials approved at the place of destination and, where applicable, licensed in the Dual System, in such a way that transport damage is avoided and transport specifications are complied with. The supplier shall be liable for damage resulting from improper packaging in accordance with the statutory provisions. If ELP exceptionally agrees to bear packaging costs, these shall be charged at the verifiable cost price.
6.1 The Supplier is obliged to carry out an effective quality assurance and to maintain a corresponding, effective quality assurance/quality management system and to prove this to ELP upon request. Upon ELP’s request, Supplier shall apply a quality assurance/quality management system in accordance with DIN ISO 9001 and/or ISO 14001 and/or DIN EN ISO 13485 or equivalent in accordance with the recognized regulations on GMP and GLP (“Quality Assurance System”). The supplier accepts that ELP is entitled to audit its quality assurance system.
6.2 For this purpose, ELP or a third party commissioned by ELP and bound to secrecy may conduct an audit at the Supplier’s business premises during the Supplier’s usual business hours in order to verify the Supplier’s compliance with the quality specifications. If separately agreed between the Parties, ELP may conduct audits at the Supplier’s premises on a regular basis, in each case after prior notice. For this purpose, the Supplier shall, among other things, provide insight into the certification and audit reports as well as into testing or manufacturing processes carried out, including all records and documents relating to the delivery. ELP, as well as the third party commissioned by ELP to conduct an audit, shall ensure that the audit is conducted in compliance with the applicable data protection and other statutory provisions in a manner that disrupts the Supplier’s business operations as little as possible and that there is no breach of confidentiality agreements of the Supplier with third parties. ELP and the supplier shall each bear the costs incurred in carrying out the audit.
7.1 The Supplier shall owe the freedom from defects of the Delivery and the existence of the agreed and/or guaranteed quality as well as the quality that ELP may expect based on public statements of the Supplier, the manufacturer or third parties entrusted with the distribution of the Goods. The delivered goods must comply with the applicable statutory provisions, regulations, directives, in particular with regard to environmental protection, occupational health and safety, CE regulations, legal and administrative provisions, tax and social security provisions, as well as the recognized rules of science and technology (Current State of the Art).
7.2 Supplier warrants that all substances contained in the delivered goods have been effectively pre-registered, registered and authorized in accordance with Regulation EC No. 1907/2006 of 18.12.2006 (“REACH Regulation”) and Regulation EC No. 1272/2008 of 16.12.2008 (“CLP Regulation”), including all amendments, modifications, guidance notes and all national laws applicable in connection with the REACH Regulation and the CLP Regulation, respectively, with the relevant requirements of the REACH Regulation and the CLP Regulation, respectively. The Supplier warrants that it will provide ELP with current, complete safety data sheets that comply with the requirements of the REACH or CLP Regulation with each delivery.
7.3 Supplier further warrants that if articles supplied to ELP contain a concentration of more than 0.1% by mass (w/w) of one or more substances meeting the criteria of Articles 57 and 59 of the REACH Regulation, Supplier will provide ELP with sufficient information for safe storage and use of the articles.
7.4 Suppliers delivering goods from outside the European Union to the European Union undertake to carry out the necessary registrations for products referred to in Title II of the REACH Regulation and to appoint an Only Representative in accordance with Article 8 of the REACH Regulation who will fulfill the obligations of an importer arising from Title II of the REACH Regulation.
8.1 Invoices from suppliers are due within thirty (30) days. The payment period begins as soon as (i) the delivery has been handed over to ELP or to a person authorized by ELP at the destination named in the order, (ii) all other services have been fully performed (including any agreed acceptance); and (iii) a properly issued invoice has been received.
8.2 If payment is made within fourteen (14) days, ELP shall be entitled to a discount of three (3) percent. A discount shall also be allowed if ELP offsets or withholds payments in an appropriate amount due to defects.
8.3 The Supplier shall prepare an auditable invoice for each purchase order, which must contain all mandatory information required by German law. The invoice shall state ELP’s complete purchase order number and, if available, the supplier’s delivery note number(s). The invoice shall be sent to the billing address specified in ELP’s purchase order.
8.4 Payments made by ELP shall not imply acceptance of the deliveries or services as being in accordance with the contract.
8.5 Offsetting or assertion of a right of retention by the Supplier shall be excluded unless the Supplier offsets against an undisputed or legally established claim or asserts a right of retention in this respect.
9.1 ELP shall, insofar as this is feasible in the ordinary course of business, inspect the goods immediately upon receipt at the place of destination to determine whether they correspond to the ordered quantity and type and whether there is any externally visible transport damage or other externally visible defects. Unless a separate agreement has been concluded in this respect, the supplier undertakes to maintain product liability insurance of at least EUR 1 million per personal injury/property damage – as a lump sum. The amount of the legal and contractual liability remains unaffected by the scope of the insurance cover.
9.2 If ELP discovers a defect during the incoming goods inspection according to clause 9.1 or even later, ELP shall notify the Supplier thereof.
9.3 The Supplier waives the objection of late notification of defects for all externally visible defects notified within ten (10) calendar days after delivery and all other defects notified within ten (10) calendar days after discovery.
10.1 If goods are defective, ELP shall be entitled to its statutory rights in accordance with the following provisions.
10.2 ELP shall have the right to choose the type of subsequent performance. The Supplier may refuse the type of subsequent performance chosen by ELP if it is only possible at disproportionate costs. In the event of subsequent performance, the Supplier shall be obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor, material costs as well as installation and removal costs.
10.3 If the Supplier fails to meet its obligation to remedy the defect within a reasonable period of time set by ELP, ELP may, at its option and in accordance with the statutory provisions, rescind the contract in whole or in part, demand a price reduction, remedy the defect itself or have it remedied by third parties at the Supplier’s expense and claim damages or reimbursement of futile expenses.
10.4 The rights set forth in Clause 10.3 may be asserted without setting a time limit if ELP has a special interest in immediate subsequent performance and a request to the Supplier to remedy the defect within a reasonable period of time is unreasonable. This shall be the case in particular if ELP has to remedy the defect immediately in order to avoid its own delay in delivery, if there is a risk to operational safety or if this is necessary to avert exceptionally high damages. The statutory provisions on the dispensability of setting a deadline shall remain unaffected.
10.5 The limitation period for ELP’s rights due to defects shall be thirty-six (36) months from the date of delivery of the goods at the place of destination or, if delivery with installation or assembly is owed, from the date of acceptance thereof, unless a longer statutory period applies. Insofar as the Supplier delivers a new item free of defects (replacement delivery) within the scope of its subsequent performance obligation, the limitation period shall start anew, unless the Supplier has expressly and appropriately reserved the right to make the replacement delivery only as a gesture of goodwill, to avoid disputes or in the interest of the continuation of the supply relationship when making the subsequent performance.
11.1 In the event that ELP is held liable on the basis of product liability, the Supplier shall indemnify ELP against such claims to the extent that the damage was caused by a defect in the goods delivered by the Supplier. In cases of fault-based liability, however, this shall only apply if the Supplier is at fault. If the cause of the damage lies within the supplier’s sphere of responsibility, he must prove that he is not at fault.
11.2 Upon request, the Supplier shall provide ELP with adequate support in clarifying and defending claims of third parties.
11.3 Within the scope of its indemnification obligation under Clause 11.1, Supplier shall also be obliged to bear all costs and expenses arising from or in connection with any measure lawfully taken by ELP to prevent damage (e.g. recall action). ELP shall inform the Supplier in good time in advance about the content and scope of such a measure – as far as possible and reasonable – and give the Supplier the opportunity to comment.
11.4 The Supplier undertakes to maintain adequate insurance coverage with regard to product liability. Upon request, the supplier shall provide ELP with evidence of the insurance coverage.
11.5 Unless a separate agreement has been concluded, the Supplier undertakes to maintain a product liability insurance of at least EUR 1 million per personal injury/property damage – lump sum. The amount of the legal and contractual liability remains unaffected by the scope of the insurance cover.
12.1 If the Supplier fails to comply with the applicable statutory and contractual provisions in the performance of the contract despite a warning with a reasonable deadline, ELP shall be entitled to terminate the contract without notice for good cause. Termination for cause may also occur if the supplier violates environmental regulations, health and safety regulations, applicable ethical principles (cf. http://www.unglobalcompact.org) or provisions to combat corruption and money laundering as well as illegal employment (collectively hereinafter referred to as “security and protection provisions”) and there is a possibility that ELP may be not insignificantly impaired in its business operations as a result. This is particularly the case if the public image of ELP may be affected.
12.2 The Supplier accepts the requirements of ELP’s own “Code of Conduct for Suppliers” (cf. http://www.elpgmbh.de/ComplianceLieferant) as amended from time to time and complies with them. It is the supplier’s responsibility to check this regularly for changes.
12.3 The Supplier accepts that ELP is entitled to audit and assess its compliance with safety and security regulations based on our corporate social responsibility. This assessment can be done through a questionnaire provided by ELP.
12.4 If there is a reasonable suspicion that the Supplier is in breach of safety and protection regulations, a third party commissioned by ELP and bound to secrecy may conduct audits at the Supplier’s business premises during the Supplier’s usual business hours in order to verify the Supplier’s compliance with the safety and protection regulations. ELP, as well as the third party engaged by ELP for an audit, will ensure that the audit is conducted in compliance with applicable data protection and other legal requirements in a manner that disrupts Supplier’s business operations as little as possible and ensures that there is no breach of Supplier’s confidentiality agreements with third parties. If the audit reveals that the supplier is in breach of safety and protection regulations, the supplier shall bear the costs of the audit. Otherwise ELP will bear these costs.
12.5 The Supplier shall immediately inform ELP of the nature and extent of any such circumstances which, in the course of the performance of any purchase or supply contract entered into with us, may result in ELP becoming a party to the public interest, such as an accident during transportation or handling of our products and waste.
13.1 The Supplier shall ensure that the delivered goods and the manufacturing process do not infringe any industrial property rights or other rights of third parties.
13.2 The Supplier shall be liable for expenses and damages (including legal costs) arising from the infringement of industrial property rights or other rights of third parties, unless the Supplier is not responsible for the infringement. To this extent, the supplier is obliged to indemnify ELP against claims of third parties based on the infringement of such rights.
13.3 The Supplier warrants that no patents, licenses or other copyrights and property rights of third parties in Germany and abroad are infringed in connection with the intended use of the delivered goods. The supplier shall indemnify ELP against any claims of third parties which may nevertheless exist or arise. The limitation period for this is ten (10) years, calculated from the conclusion of the contract. The Supplier shall transfer to ELP the exclusive right, unlimited in time, to publish, distribute, reproduce, process and otherwise exploit all ideas, concepts, drafts and designs provided by the Supplier and commissioned by ELP. Designs created on behalf of ELP are the intellectual property of ELP. Design and manufacturing documents (design drawings, circuit diagrams, source codes, etc.) of such contract work shall be the property of ELP and shall be handed over to it as part of the delivery. The rights granted above extend to all types of use, including in particular print advertising and multimedia use (e.g. Internet presence, social media, print-on-demand, e-book, online publishing). The transfer of rights under this provision expressly includes the right to transfer to third parties. The Supplier undertakes to inform ELP immediately about any inventions created. The Supplier undertakes to perform all necessary steps to transfer the rights to ELP. The acquisition of the aforementioned rights is compensated with the remuneration according to the respective assignment.
14.1 ELP shall be entitled to withdraw from the contract in whole or in part or to terminate the contract for good cause if the supplier has suspended payments, if the supplier has filed an application for the opening of insolvency proceedings or if the opening of insolvency proceedings has been rejected due to lack of assets or if any other material deterioration of the financial situation of the supplier occurs or threatens to occur and the fulfillment of a delivery or service obligation towards ELP is jeopardized thereby.
15.1 Material provided by ELP shall remain the property of ELP and shall be kept by Supplier free of charge and with the diligence of a prudent businessman separately from its other property and marked as property of ELP. Material provided may only be used as intended.
15.2 Any processing or transformation of provided material by the Supplier shall always be carried out free of charge for ELP. However, if material provided is processed with other items not belonging to ELP, ELP shall only acquire co-ownership of the new item in the ratio of the invoice value of the material provided to the value of the other processed items. The supplier shall store the new item, marked accordingly, free of charge for ELP with the diligence of a prudent businessman.
16.1 Suppliers with whom ELP has permanent business relations are obliged to inform ELP at an early stage if they intend to make product or process changes as well as changes in the analysis method with regard to products purchased from ELP.
16.2 The Supplier shall not use, reproduce or make available to third parties any design documents provided by ELP for the manufacture of the delivery item for any purpose outside the scope of the contract concluded with ELP. ELP reserves all rights thereto. Upon ELP’s request, the Supplier shall immediately return the documents provided to him or prove that these documents have been destroyed in due time.
17.1 Supplier undertakes to keep strictly confidential and not to disclose to any third party any information which is either marked as confidential or which may reasonably be expected to be confidential and which becomes known to it through the contractual relationship existing with ELP, including illustrations, plans, drawings, source codes, calculations, design instructions, product descriptions and other information relating to inventions, ideas, concepts, drafts and designs (collectively hereinafter referred to as “Information”), even under a corresponding non-disclosure agreement with such third parties. The supplier shall ensure by means of suitable contractual agreements that its employees and vicarious agents affected by the contractual relationship existing with ELP are also obliged to maintain secrecy in accordance with the provisions of this No. 17. The supplier shall also prove this in writing upon ELP’s request. The Supplier undertakes to use Information only for the purposes of its respective contractual relationship with ELP, not to exploit it commercially and not to make it the subject of industrial property rights.
17.2 The foregoing obligations shall not apply to such information that Supplier proves was lawfully known to it prior to receipt of ELP, was available to the public prior to receipt of ELP, was available to the public after receipt of ELP without Supplier being responsible therefor, and such information that is made available to Supplier at any time by a third party authorized to do so to the best of Supplier’s knowledge. Finally, the above obligations shall also not apply if the Supplier is legally obliged to disclose information in judicial, official or other proceedings.
17.3 References by the Supplier to existing business relations with ELP or the use of the name “ELP GmbH European Logistic Partners” for advertising purposes shall require the express written consent of ELP. This confidentiality obligation shall apply with its restrictions beyond the time of mutual fulfillment of the respective purchase or delivery contract concluded between us and a supplier for a further ten (10) years, unless a further confidentiality obligation results from statutory provisions.
17.4 After termination of the contract, the Supplier shall destroy or delete all information stored on its computer systems and in its databases. Insofar as the supplier has received documents from ELP, the supplier shall return them to ELP at our request or demonstrably destroy them. Insofar as legally mandatory, the supplier shall retain a copy for documentation purposes.
18.1 Supplier shall comply with all requirements of applicable national, European and international export and customs regulations. Supplier shall provide ELP in writing in due time prior to delivery of the ordered goods with all data, documents and information required by ELP for compliance with applicable export and customs regulations for export, import and re-export, in particular all applicable export list numbers (including Export Control Classification Number according to U.S. Commerce Control List (ECCN), commercial origin of goods and statistical commodity code (HS-Code), EU commodity tariff number and BTI number if designated by ELP).
19.1 ELP shall be entitled to process and store data about the Supplier received in connection with the business relationship within the meaning of the German Data Protection Regulation (“DSGVO”) and the German Federal Data Protection Act (Bundesdatenschutzgesetz) to the extent this appears expedient in the context of the performance of the Contract. The Supplier undertakes to comply with the applicable provisions of data protection, in particular the DSVGO. The Supplier agrees that ELP may also process its personal data using “instant messaging” services such as “WhatsApp”.
20.1 In the event that one of the Contracting Parties is unable to perform its contractual obligations due to acts, events or circumstances which are not reasonably within its control (force majeure), such Contracting Party shall be released from its performance obligations for the duration of the impediment. Force majeure shall include, in particular, war, terrorism, natural disasters, strikes or labor disputes, general shortages of raw materials and restrictions on energy consumption.
20.2 If one of the contracting parties is unable to fulfill its contractual obligations for more than six (6) months due to force majeure, the other contracting party shall be entitled to withdraw from the contract. Claims for damages do not exist in this respect.
21.1 Supplier undertakes to ELP to fulfill its obligations to pay the statutory minimum wage as well as taxes and social security contributions and to provide appropriate evidence thereof upon ELP’s request.
21.2 The Supplier shall only be entitled to use a third party contractor/subcontractor for the performance of its contractual obligations with the express written consent of ELP. However, he remains responsible to ELP for the proper performance of the contractual service. Insofar as the Supplier uses a third party company with the consent of ELP, such third party company must comply with its legal obligations to pay the statutory minimum wage as well as taxes and social security contributions and must fulfill the trade law requirements necessary for the performance of the activity. Prior to engaging the respective third party company, the Supplier shall notify ELP in writing in good time in advance of its name, address and the relevant employers’ liability insurance association (including membership number) for the purpose of approving the assignment. In this context, the Supplier shall inform ELP in writing about the type and scope of the contractually owed service to be provided by the third party contractor prior to the use of the respective third party contractor. ELP shall be entitled at any time to demand evidence of the intended third party contractor’s expertise, performance and reliability.
22.1 The Supplier may not assign its claims against ELP to third parties without ELP’s written consent.
22.2 If any provision of these General Terms and Conditions of Purchase and the further agreements made between ELP and the Supplier is or becomes invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by another valid and enforceable provision which the contracting parties would have agreed upon with regard to the meaning and purpose of their contractual relationship if they had considered the invalidity or unenforceability of the respective provision upon conclusion of the contract and which corresponds to the intentions of the contracting parties with regard to the meaning and purpose of their contractual relationship. The same shall apply in the event of a gap in the contract.
22.3 Amendments to contractual provisions between the contracting parties as well as the waiver of rights arising from these provisions must be made in writing, unless a stricter formal requirement applies. This shall also apply to a waiver of this written form clause.
22.4 The place of performance for the delivery and any subsequent performance shall be the destination specified in the order.
22.5 The law of the Federal Republic of Germany shall apply. The Vienna UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
22.6 The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be Wuppertal. Deviating mandatory statutory responsibilities remain unaffected.
Status: May 2020