General Terms and Conditions of Purchase and Payment of RAPS GmbH & Co. KG and RAPS Fresh GmbH (General Terms and Conditions of Purchase)
We purchase goods and other objects worldwide, order trades, rent or lease rooms or objects, book trips, place orders for business management and make use of services of all kinds. For this purpose, we conclude various contracts (e.g. purchase contracts, contracts for work and services, service or agency contracts, rental or lease contracts, travel contracts, brokerage contracts, insurance contracts, commission contracts, storage contracts, forwarding contracts and various mixed forms of the aforementioned types of contracts).
We refer to our contractual partners (e.g. suppliers, vendors, contractors, service providers, brokers, lessors, forwarding agents) in the following as “Supplier”.
Regardless of the type of contract, we refer to a contract that we have concluded with a Supplier as a “Contract” in the following.
1. Scope of Application
Unless otherwise agreed in text form, these General Terms and Conditions of Purchase shall apply exclusively to all our orders - including future orders - and their processing. Deviating contractual or business terms and conditions of the Supplier shall not apply unless we have agreed to them in text form. This shall also apply if these have not been expressly objected to in individual cases or if we accept services in the knowledge of terms and conditions which conflict with or deviate from our General Terms and Conditions of Purchase.
2. Contents of the Contract
The content of the Contract shall be determined by the agreements between us and the Supplier in text form and by these General Terms and Conditions of Purchase.
3. Offer Documents
All property rights, copyrights and other rights to illustrations, drawings, data, calculations or other documents shall remain with us. They may not be made accessible to third parties without our prior express consent.
4. Time of Performance, Delivery and Customs Documents
4.1 The time of performance specified in the order or in the Contract shall be binding. Premature performance shall require our prior consent.
4.2 The Supplier shall be obliged to inform us immediately in text form if circumstances occur or become apparent to it which indicate that the agreed time of performance cannot be met.
4.3 In the event of a delay in performance, we shall be entitled to the statutory claims. In particular, we shall be entitled to withdraw from the Contract after the fruitless expiry of a reasonable period and - if the Supplier is responsible for the delay - to claim damages instead of performance.
4.4 If we have agreed with the Supplier on a contractual penalty for a delayed performance, we may initially accept the performance without reservation and declare that we reserve the right to claim the contractual penalty until the performance has been paid in full.
4.5 Incorrect or incomplete delivery or customs documents shall entitle us to refuse acceptance.
5. Place of Performance, Shipping Costs and Transfer of Risk
5.1 Unless expressly agreed otherwise in text form, the place of performance for all services rendered by the Supplier shall be the respective place designated by us in the Contract or in the order.
5.2 The place of performance for payment shall be the registered office of our principal place of business.
5.3 Unless expressly agreed otherwise in text form, the Supplier shall be obliged to deliver carriage paid in accordance with Incoterms ® 2020 / ICC (DDP - Delivered Duty Paid).
5.4 The risk of accidental loss or accidental deterioration of the object of performance shall in any case be borne by the Supplier until handover at the place of performance, irrespective of whether the performance was agreed to be carriage paid or not.
6. Quality, Inspection Obligations of the Supplier, Warranty, Inspection, Liability for Defects
6.1 The Supplier guarantees that the performance complies in all respects with the agreed quality requirements, in particular with the contents of an agreed specification sheet or our specification questionnaire. All deliveries must fully comply with the quality and suitability required in our order or, in the absence of a special requirement, with the quality and suitability customary in the trade. The information on the delivery and the specifications stated in our order shall be deemed to be information on quality. The Supplier warrants that all (1) foodstuffs, (2) goods and raw materials intended for the production of foodstuffs as well as (3) packaging delivered by it comply with all relevant foodstuff regulations applicable in Germany and the administrative practice in this respect in Germany. When supplying equipment of any kind, the Supplier warrants that the equipment complies with all accident prevention, safety and environmental protection regulations applicable in Germany (including CE and DIN standards) and is in line with the current state of the art.
6.2 The Supplier shall be obliged to deliver only foodstuffs and qualities and raw materials intended for the production of foodstuffs (hereinafter jointly referred to as “Goods”) which (1) do not contain any substances hazardous to health, which (2) comply with the regulations and recommendations under food law and which (3) do not contain any foreign bodies. The Goods must be naturally pure, without any other (e.g. chemical) additives and treatments, and must not contain genetically modified organisms subject to mandatory labelling (Regulations EG No. 1829/2003 and EG 1830/2003), unless expressly agreed otherwise in each case. The Goods shall be cleaned according to the state of the art and comply with the "European Spice Association Quality Minima Document" (www.esa-spices.org). The Goods shall only be transported by suitable vehicles approved for foodstuffs.
6.3 The Supplier (even if it is only an intermediary) shall be obliged to inspect the delivered Goods with regard to the specifications stated in clauses 6.1 and 6.2, unless expressly agreed otherwise in text form. Corresponding test certificates shall be submitted to us by the Supplier upon request. The Supplier must keep reserve samples and hand them over to us upon request.
6.4 If the Contract concluded with the Supplier is a commercial transaction within the meaning of Sections 343, 344 of the German Commercial Code (HGB), we shall be obliged to inspect the Goods or services within a reasonable period of time for any deviations in quality and quantity; the notice of defect shall be deemed to be in time if it is received by the Supplier within 5 working days, calculated from receipt of the Goods or, in the case of hidden defects, from discovery.
6.5 We shall be entitled to the statutory claims for defects in full. In particular, we shall be entitled to demand from the Supplier, at our discretion, either the removal of the defect or the delivery of a defect-free performance. We expressly reserve the right to withdraw from the Contract and to claim damages instead of performance.
6.6 Unless longer statutory periods apply or a deviating agreement has been made, the limitation period for our claims for defects under commercial law shall be 36 months, calculated from the transfer of risk; this shall also apply to claims for breach of warranty.
7. Release from Liability
The Supplier shall indemnify us against all claims asserted against us by our customers which are based on the intended or foreseeable use of our products and which are attributable to a defect or to a condition of the performance otherwise contrary to the agreement or to a culpable breach of duty by the Supplier.
8. Property Rights
8.1 The Supplier warrants that no third party rights within the Federal Republic of Germany are infringed by its performance or in connection with its performance.
8.2 If claims are asserted against us by a third party due to an infringement of the Supplier's obligations under clause 8.1, the Supplier shall indemnify us against such claims (including any costs of legal defence) upon our first written request to the extent that the Supplier is responsible for the infringement of the property rights. We are not entitled to make any agreements with the third party - without the Supplier's consent - in particular to conclude a settlement.
8.3 The limitation period for our claims under this Section 8 shall be 3 years from the statutory commencement of the limitation period.
9. Invoicing, Payment and Prohibition of Set-Off
9.1 The invoice must contain all mandatory information in accordance with the statutory provisions as well as the purchase order number and must be submitted to us in duplicate and separately from the delivery of goods or the performance of services.
9.2 Unless otherwise agreed in writing, payment periods shall commence after complete performance and receipt of the invoice. We have the option to pay in 14 days with a 3% discount or net in 45 days. Unless otherwise agreed in writing, payments shall be made by means of payment or in the currency of our choice.
9.3 The Supplier may only offset claims that are undisputed, disputed but ready for a decision or legally established.
10. Assignment, Retention of Title and Right of Retention
10.1 Claims of the Supplier may only be assigned to third parties with our prior consent. We may make such consent conditional upon the third party confirming to us that a payment to the Supplier also has a debt-discharging effect. Beyond this, we shall only refuse consent for good cause. Section 354a of the German Commercial Code (HGB) shall remain unaffected.
10.2 We do not accept simple reservations of title.
10.3 We do not accept extended reservations of title.
10.4 The Supplier shall only be entitled to assert a right of retention on the basis of counterclaims arising from this Contract. This shall not apply to legally established or undisputed claims.
11. Force Majeure
11.1 In cases of force majeure (e.g. natural disasters, war, civil unrest, pandemics), we may withdraw from the Contract for services not yet rendered by the Supplier if it is impossible or difficult for us to accept the service. If we do not withdraw, the performance periods shall be extended by the duration of the hindrance.
11.2 If, due to an event of force majeure, the sale of goods for the manufacture or resale of which we purchase goods from the Supplier becomes impossible or substantially more difficult for us, the occurrence of the event shall be deemed to be a disturbance of the basis of the business within the meaning of Section 313 of the German Civil Code (BGB).
12.1 Illustrations, drawings, data, calculations and other documents which we make available to the Supplier or which the Supplier manufactures according to our specifications may not be made available to third parties by the Supplier. These shall be returned to us immediately upon request. Furthermore, the Supplier shall be obliged to treat as confidential all business information received by us within the scope of the order, including the fact of the placing of the order. This shall not apply if and to the extent that the information is already known to the third party, the information is already publicly known or the Supplier is legally obliged to disclose it.
12.2 The obligation to maintain confidentiality shall continue to exist for a period of two years after termination of the Contract.
With regard to the goods delivered by it, the Supplier shall guarantee continuous and uninterrupted traceability in accordance with the respective applicable provisions (in particular the provisions of Regulation (EC) No. 178/2002).
14. Other Provisions
14.1 The exclusive place of jurisdiction shall be Kulmbach.
14.2 The law of the Federal Republic of Germany shall apply exclusively in all cases. The application of the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) is expressly excluded.
(Status: February 2021)