General Terms and Conditions of Purchase ("GTCP")
1. Scope, Applicable Law, Hierarchy of Standards
(1) The law of the Federal Republic of Germany shall apply to these General Terms and Conditions of Purchase (GTCP) and the contractual relationship between us and the seller, to the exclusion of uniform international laws, in particular the UN Convention on Contracts for the International Sale of Goods. This shall also apply to assessment of the inclusion of the GTCP. An integral part of these GTCP is our Code of Conduct for Business Partners (Annex 1), which will be sent to sellers at any time on request as PDF (digital) or in text form.
(2) As a matter of principle, individual agreements (e.g. contractual clauses, framework supply agreements or quality assurance agreements) and information on our orders/inquiries shall take precedence over our GTCP and the ‘Conditions of Business of the Waren-Verein der Hamburger Börse e.V.’.
(3) Furthermore, the Conditions of Business of the Waren-Verein der Hamburger Börse e.V. (hereinafter also referred to as the ‘Waren-Vereins-Bedingungen’, WVB) take precedence over our GTCP and will be sent to sellers at any time on request as PDF (digital) or in text form. The WVB shall apply only if the seller is an entrepreneur (Section 14 German Civil Code, BGB), is a legal entity under public law or a special fund under public law. The WVB can be downloaded at www.waren-verein.de/schiedsgericht and www.waren-verein.de/en/arbitral-tribunal in German as well as in English.
(4) These GTCP apply to all business relationships with our business partners and suppliers (‘sellers’), and are subordinate to individual agreements (Para. 2) and the Waren-Vereins-Bedingungen (Para. 3). However, the GTCP only apply if the seller is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law.
(5) In the event of contradictory provisions between individual agreements, the Waren-Vereins-Bedingungen and these GTCP, the following hierarchy of standards shall apply:
(a) Individual agreements
(b) Waren-Vereins-Bedingungen
(c) GTCP; Code of Conduct
(6) Both the GTCP and the WVB shall apply in particular to contracts for the sale and/or delivery of movable items (‘goods’), regardless of whether the seller manufactures the goods itself or purchases them from suppliers (Sections 433 and 650 BGB). Unless otherwise agreed, the GTCP and the WVB are valid in the version at the time of the order from OFI, or in any case in the version last notified to the seller in text form, shall also apply as a framework agreement for similar future contracts, without our needing to refer to them again in each individual case.
(7) Deviating, conflicting or supplementary General Terms and Conditions of the seller shall only become an integral part of the contract if and to the extent that we have explicitly agreed their validity in writing. This consent requirement shall apply in any case, for example even if the seller refers to its General Terms and Conditions in the context of the order confirmation and we do not explicitly object to this.
2. Place of Delivery
If the destination is not specified and nothing else agreed, the delivery to our warehouses in Hamburg must be made using Incoterms DDP (Delivered Duty Paid). The respective destination is also the place of performance for the delivery and any subsequent performance (obligation to provide).
3. Performance
(1) The seller guarantees that the delivered goods are true to the sample and/or correspond to the contractual agreements. In any case, the product descriptions which – in particular by being designated or referenced in our order/inquiry, and also in the declaration of acceptance – are the subject of the respective contract, or have been incorporated into the contract in the same way as these GTCP, shall be deemed to be an agreement on the quality. In this, it makes no difference whether the product description comes from OFI, the seller or the manufacturer. If no specific quality criteria have been agreed, the goods must be of at least merchantable quality. The quality and quantity information contained in the order/inquiry, as well as other specifications, must be strictly adhered to.
(2) The seller further guarantees that all goods which it delivers to OFI comply with at least the applicable legal requirements in every respect, whether these are national or European regulations, codes and standards and/or the agreed quality, and that no rights of third parties are violated. In particular, the seller shall ensure that the requirements of German and European food legislation (in particular the Food and Feed Code – LFGB / Regulation (EC) No. 178/2002 and the current requirements of the Food Hygiene Regulation (EC) No. 852/2004), as well as the German and European regulations for organic products, are met. Where foodstuffs are imported into the EU, they must at least be labelled in accordance with Regulation (EU) No. 1169/2011.
(3) Should legal changes according to Section 3 Para. 2 come into effect between the conclusion of the contract and the delivery of the goods that affect the contractual goods, OFI may, at its reasonable discretion, request that the undelivered goods be modified/adjusted in accordance with the legal requirements. If the modification/adjustment is not reasonable for the seller in accordance with the legal requirements, the seller may withdraw from the contract. In the case of partial deliveries, the services already fully and properly provided are not covered by the right of withdrawal.
4. Prices and Payment Terms
(1) Unless otherwise agreed in individual cases, the price includes all services and all ancillary costs (e.g. appropriate packaging, transport costs including any transport and liability insurance).
(2) Payments shall be made in principle in accordance with the terms and conditions specified in the order and without exception from complete delivery and performance (including any agreed acceptance) and subject to receipt of a correct invoice.
(3) Payment of the invoice shall take place without prejudice to the subsequent assertion of rights. In particular, neither a payment obligation nor the order for the goods nor their completeness or absence from defects shall be recognized by the payment.
5. Set-Off, Retention, Assignment
(1) The seller has a right of set-off or retention only on the basis of legally established or undisputed counterclaims.
(2) Assignment and transfer of rights and obligations arising from this contract to third parties by the supplier are excluded. Section 354a of the German Commercial Code (HGB) remains unaffected.
6. Customer Protection
(1) The seller is prohibited from working for OFI’s customers during the accomplishment of a contract and for a period of twelve months after the expiry of a contract, insofar as the work involves the sale of products of the same or similar nature as the service which (i) we and (ii) the seller on our behalf provide for the customer. This shall apply regardless of whether the business activities are carried out in a self-employed, employed or other manner – including indirectly through third parties. In particular, this protects customers who are referred to as customers in the order, the contract, in tender documents, customer specifications or other documents that allow a conclusion to be drawn about customers of OFI, or whose position as customers of OFI can be derived from these documents.
(2) Para. 1 shall not apply to business activities with a customer that verifiably belongs to the seller’s customer base even before the start of the contractual negotiations between the seller and OFI.
(3) For each case of culpable infringement of this customer protection clause, the seller shall pay OFI a contractual penalty, the amount of which shall be determined by OFI at its reasonable discretion, and the appropriateness of which shall be subject to review by the competent court (arbitration court) in the event of a dispute. The basis for calculating the contractual penalty, and thus for exercising reasonable discretion, is 5% of the net order value of all orders between the seller and OFI (customer relationship) from the last calendar year, including the most recent contract conclusion.
(4) Further claims for injunctions and/or damages shall remain unaffected by this.
7. Industrial Property Rights and Confidentiality
(1) In accordance with the provisions of this Para. 1, the seller shall ensure that no third-party property rights are infringed by products supplied by it in countries of the European Union or other countries in which it manufactures the products or has them manufactured. The seller is obliged to indemnify us from all claims that third parties may make against us due to such an infringement of industrial property rights and to reimburse us for all necessary expenses in connection with any such claim. This shall not apply if the supplier proves that it is neither responsible for the infringement of industrial property rights nor should have been aware of it at the time of delivery if due business diligence had been applied.
(2) Further legal claims by us due to defects in title of the products delivered to us remain unaffected.
(3) The limitation period for these claims shall be three years, beginning with the transfer of risk.
(4) We reserve the right of ownership and copyright in respect of illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after the contract has been completed.
(5) The seller shall keep confidential from third parties all trade and business secrets and all information and transactions of which it becomes aware in connection with its activities for OFI and its customers and which OFI designates as confidential or which may be regarded as confidential in the particular circumstances, for an indefinite period of time and even after the contract has been carried out. The obligation to maintain confidentiality shall not expire until and to the extent that the knowledge contained in the documents provided has become generally known. Special non-disclosure agreements and legal regulations regarding the protection of confidentiality remain unaffected.
(6) Furthermore, the seller shall accordingly oblige the persons employed by it to provide the services owed to maintain confidentiality and shall provide proof of this at the request of OFI. These obligations shall not apply to information which was legally known to the seller without obligation of confidentiality prior to its release, or which is or will become publicly available without the seller being responsible for this, or which has been released in writing by OFI or one of its customers.
8. Liability, Manufacturer’s Liability
(1) The seller is liable, without this being dependent on negligence, for ensuring that the offer, product range and/or designs do not violate any trademarks and/or other competition law and do not violate legal or official regulations. The seller shall indemnify OFI from any such third-party claims and shall compensate OFI for any damage beyond this provision, including loss of profit.
(2) The seller shall be liable for all personal injury, property damage and financial damage caused by it or its performing agents or vicarious agents in connection with the performance of this contract. The level of culpability here is simple negligence.
(3) If the seller is also responsible for product damage, it shall indemnify us from third-party claims insofar as the cause is within its sphere of control and organization and it is personally liable in relation to third parties.
(4) Within the scope of its indemnification obligation, the seller shall, in accordance with Sections 683 and 670 BGB, be obliged to recompense expenses arising from or in connection with a claim by third parties, including product recalls carried out by us. We shall inform the seller of the content and scope of product recalls – as far as possible and reasonable – and give it the opportunity to comment. Further legal claims remain unaffected.
(5) The seller shall take out product liability insurance with a lump sum coverage of at least EUR 3 million per personal injury/property damage event.
9. Food Safety and Packaging
(1) The Seller must be certified according to a standard recognized by the Global Food Safety Initiative (GFSI).
(2) The Seller is obliged to take preventative protective measures to secure the production site against possible malicious manipulation (physical, chemical or biological contamination, sabotage, espionage).
(3) Delivered goods must be packaged in accordance with the relevant regulations. This includes in particular the EU Directive 94/62/EC (renewed by the Directive (EU) 2018/852) with its respective national implementations.
10. Arbitration Agreement
(1) All disputes arising from a contract concluded under these GTCP or with the ‘Waren-Verein’ arbitration clause shall be settled by an arbitration court to the exclusion of legal action. This arbitration clause shall also apply to and against the personally liable shareholders of the parties to the contract. The arbitration court shall be authorized to decide on the validity of the main contract. The rules of arbitration adopted by the General Assembly of the Waren-Verein der Hamburger Börse e.V. shall apply for the organization of this arbitration court, the proceedings to be followed by it, the costs of the proceedings and the jurisdiction of national courts (Section 1062 ZPO, German Code of Civil Procedure) and for the responsibility of the Association, its organs and employees, including the advisor. The most recent version shall apply to each procedural stage.
(2) If an arbitration award is overruled by the national court for any reason other than the absence of a valid arbitration agreement, or if a request for a declaration of enforceability of an arbitration award is rejected, the arbitration agreement shall not be exhausted.
(3) Paragraphs 1 and 2 shall also apply to the relationship between a contracting party and an intermediary broker or an agent who has negotiated or concluded the contract, as well as to the relationship between several participating brokers or agents.
11. Language
(1) The contractual language of these General Terms and Conditions of Purchase is German. This applies both to the text version and to the interpretation of the content of the contract.
(2) For convenience, these GTCP have been translated into English.
(3) However, in case of error or disagreement, the executed German language version shall prevail.
12. Severability Clause
(1) The invalidity of one or more provisions of these Terms and Conditions of Purchase shall not affect the validity of the remaining provisions of the GTCP.
(2) The parties are obliged to replace the invalid provision by joint agreement with a provision that comes closest to the economic purpose of these GTCP. The same shall apply to any loopholes that may arise in the GTCP.
Annex 1 – Code of Conduct for Business Partners
1. Declaration of Values
(1) The company Otto Franck Import wants to live up to its responsibility in society and towards its employees, customers and business partners. We therefore commit ourselves to clear principles as a framework for our entrepreneurial and societal activities. For us, economic success and ethical behaviour are not contradictory, but both together are an indispensable prerequisite for sustainable positive development.
(2) This Code of Conduct describes fundamental principles and values that should guide all of our employees and business partners. It is our declared goal to adhere to these principles and values together with our business partners and to incorporate them into our daily actions.
(3) This Code of Conduct defines the requirements OFI bindingly demands its business partners to comply with. This Code of Conduct is an integral part of any cooperation with OFI and therefore applies to all business relationships with our business partners and suppliers. It defines the minimum standards in the areas of human rights, environmental protection and fair trade, compliance with which the business partners must ensure in the business relationship with OFI. We require our business partners to act in accordance with our principles as well and, in addition, to endeavour to pass these on to their sub-suppliers. The aim is to implement these minimum standards throughout the supply chain.
2. Interaction with and among Business Partners
(1) Our business partners shall interact with their customers, representatives of public authorities, suppliers and other business partners in a trusting, fair, correct and reliable manner. They fulfil their agreements and contracts and comply with country-specific laws and regulations. In particular, they shall comply with all relevant economic sanctions, embargoes and other trade restrictions (collectively referred to as ‘trade laws’).
(2) Fair and trustful dealings with customers, suppliers and business partners in general include maintaining confidentiality about confidential information and adhering to the principle of data minimization. Our business partners therefore undertake in particular to comply with all relevant data protection and information security laws, official requirements and best industry practices whenever personal data is collected, stored, processed, transmitted or forwarded. Business partners are also required to protect and maintain the confidentiality of all OFI proprietary information, not to disclose such information to third parties without OFI's written consent, and to prevent any misuse of such information.
(3) Our business partners do not enter into agreements that violate competition and antitrust laws. They shall comply with all applicable antitrust and competition laws and shall never take or attempt to take advantage of other parties through manipulation, concealment, misuse of confidential information, unfair business practices or other practices that may unfairly influence competition, such as price fixing or market sharing.
(4) Our business partners reject any form of bribery, do not pay acceleration payments and do not accept them under any circumstances. Our business partners, like us, do not tolerate corruption. Therefore, under no circumstances are they permitted to make, offer or authorize, directly or indirectly, any unlawful payments, gifts, promises or other benefits in connection with their work for OFI. All business transactions must be conducted in a transparent manner and correctly recorded in the books and records of business partners.
(5) Our business partners shall apply the highest ethical standards in their work, especially with public bodies, public officials and international authorities, and shall comply with laws and regulations. In addition, our business partners will endeavour to pass on our standards to their manufacturers, suppliers and other business partners.
3. Human Rights and Workplace Safety
(1) Our business partners shall conduct their activities in a manner that respects internationally recognized human rights. They undertake to comply with the following conventions of the International Labour Organization ('ILO') and corresponding protocols:
- Forced Labour Conventions No. 29 (incl. the corresponding Protocol of 11 June 2014) and No. 105,
- Freedom of Association and Collective Bargaining Conventions No. 87 and No. 98,
- Equal Treatment and Discrimination Conventions No. 100 and No. 111,
- Child Labour Conventions No. 138 and No. 182,
- Convention on Occupational Safety and Health and the Working Environment No. 155.
This means in particular:
(2) Child labour is not tolerated. No children shall be employed, directly or indirectly, who are under the age of 15 or who are of compulsory school age according to the law of the place of employment. Children under the age of 18 shall not, in principle, be employed in work that is or may be harmful to the health, safety or morals of children.
(3) The business partners shall assure and provide its employees with adequate wages and decent working conditions. No persons shall be employed in forced or compulsory labour. All occupational health and safety obligations under the law of the place of employment shall be observed and freedom of association and the right to strike under the law of the place of employment shall be respected. Workers shall not be prevented from freely forming, joining or being members of trade unions.
(4) Employees shall not be discriminated against on the grounds of national and/or ethnic origin, social origin, health status, disability, sexual orientation, age, gender, political opinion, religion or belief.
4. Environmental Protection and Handling Hazardous Substances
(1) Furthermore, our business partners must carry out their activities in such a way that the goods originate from environmentally friendly production wherever possible, using environmentally compatible processes in accordance with the state of the art. The raw materials used for production or their extraction must not lead to the destruction of tropical forests or threaten biodiversity.
(2) Our business partners shall endeavour to use packaging materials that are as environmentally compatible as possible within the framework of the respective specifications and to avoid or save packaging wherever possible.
(3) The respective nationally applicable laws on animal protection and animal welfare are fully complied with by business partners who process animal products.
(4) Our fish processing business partners comply with all local fisheries laws as well as recognized international agreements on catch quotas, fishing nets and (temporary) fishing bans. They also ensure to a reasonable extent that their suppliers also comply with these rules and that only fish caught within the framework of these regulations is processed. Only through consistent enforcement throughout the whole supply chain, global fish stocks can be conserved and sustainably managed.
(5) Our business partners undertake to comply with the following international conventions:
- ‘Minamata Convention’ (implemented by the European Union Mercury Regulation 2017/852),
- Stockholm Convention on Persistent Organic Pollutants (‘POPs Convention’) ,
- Import and export of hazardous waste (Regulation (EC) No. 1013/2006) and Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (‘Basel Convention’).
This means in particular:
(6) No harmful soil changes, water pollution, air pollution, harmful noise emissions or excessive water withdrawals are carried out which result in (i) significantly impairing the natural basis for the preservation and production of food, (ii) denying access to safe drinking water or (iii) impeding or destroying access to sanitary facilities or (iv) harming the health of any person.
(7) No products containing mercury are manufactured. Mercury or mercury compounds are not used in manufacturing processes. No chemicals pursuant to Art. 3 Para. 1 letter a and Annex A of the POPs Convention are produced or used. Wastes pursuant to the regulations in force in the applicable jurisdiction in accordance with the provisions of Art. 6 Para. 1, d, i and ii of the POPs Convention shall be handled, collected, stored and disposed of in an environmentally sound manner.
(8) Hazardous waste pursuant to Art. 1 Para. 1 and other waste pursuant to Art. 1 Para. 2 of the Basel Convention and pursuant to Regulation (EC) No. 1013/2006 of the European Parliament and of the Council on shipments of waste shall not be exported
- to a country that is a Party to the Basel Convention and has prohibited the import, or
- to an importing country as defined in Art. 2 No. 11 Basel Convention which has not given its written consent to the particular import, or
- into a country which is not a Party to the Basel Convention, or
- to an importing country if such hazardous waste or other waste is not managed in an environmentally sound manner in that country or elsewhere.
(9) Hazardous waste from countries listed in Annex VII to the Basel Convention shall not be exported to countries not listed in Annex VII (Art. 36 of Regulation (EC) No 1013/2006).
(10) Hazardous waste and other waste from a non-Party to the Basel Convention shall not be imported.
5. Audits
OFI reserves the right to audit the Business Partner and/or its sub-suppliers at any time or to have them audited by third parties. Dates for regular audits shall be agreed by mutual consent. OFI shall have the right to carry out unannounced audits in case of violations of the provisions in § 3 and § 4 of this Code of Conduct. The Business Partner acknowledges, accepts and ensures that OFI's customers may also carry out audits at the supplier’s and/or its sub-suppliers' premises to the same extent.
6. Right of Termination
Notwithstanding any other agreed termination provisions, OFI reserves the right to terminate the contractual relationship in part or in full without notice if the Business Partner demonstrably fails to comply with the Code of Conduct or fails to implement the required reasonable preventive or remedial measures to reduce a risk of a breach or to remedy a breach despite having been given a reasonable period of time to do so. In the event of a serious violation of this Code of Conduct, where OFI cannot seriously be expected to continue the contractual relationship with the Business Partner, a prior warning shall not be required.
7. Passing on within the Supply Chain
The Business Partner shall make reasonable and necessary efforts to ensure compliance with the principles and requirements set out in this Code of Conduct in the areas of human rights and environmental protection (in accordance with § 3 and § 4 of this Code of Conduct) in an appropriate manner at its suppliers within the supply chain.
