General Terms of Purchase (GTP)
1. General Issues
These terms shall apply to all current and future orders of supplies and other provisions of service placed by Pickenpack Seafoods GmbH.
Additional terms shall apply for the supply of foodstuffs as well as of auxiliary materials and food packaging materials.
Our terms and conditions of purchase shall apply exclusively. Supplier’s sales terms and delivery conditions are expressly opposed herewith and shall not be deemed accepted. Even the fact that we do not specifically oppose them again shall be construed as an acknowledgement. Order execution constitutes unconditional acceptance of these terms. No modification to or addition to or exclusion of these terms shall be binding unless confirmed by Pickenpack Seafoods GmbH in writing.
2. Order and Order Confirmation
Our orders have to be confirmed in writing by the contractor immediately after receipt. Verbal agreements shall not be effective unless we have given our written consent thereto.
2.1. Forwarding orders to third parties
The forwarding of orders to third parties is prohibited without our written approval and entitles us to withdraw from the contract, either partially or in full and to demand compensation.
2.2. Secrecy Clause
The Supplier shall treat conclusion of the contract confidentially and may only refer to business connections with us in advertising material after obtaining our written permission.
The contracting parties shall undertake to treat all details that are not obviously commercial or technical, which become known to them through the business relationship, as a business secret. Subcontractors shall be obliged accordingly.
3. Delivery Dates and Penalties for Default
Delivery time specified in our order is binding. Applicable for timelines of deliveries is receipt during normal working hours at place of delivery as stipulated by us. The Supplier is obliged to immediately inform us in written if it has reason to assume that he will not comply with the delivery date stipulated due to occurring circumstances. Without prejudice to any other rights we are entitled in case of delay, after abortive expiration of an appropriate time period set by us, to demand compensation or to withdraw from the contract due to non-performance. In case we demand compensation, the Supplier is entitled to provide evidence that he cannot be held responsible for the breach of duty. We are entitled, but not obliged, to conclude a covering purchase.
Same shall apply for delay in performance due to force majeure, e.g. strikes and riots, unless we have not been notified thereof by the Supplier without delay.
In case of a contractual penalty agreed in the event of delay any further claims and our right to cancel the contract shall not be affected thereof. The contractual penalty can even be claimed in case we are not reserving same at time of acceptance of service rendered, but are calling for within two weeks after acceptance of service.
4. Passing of Risks and Dispatch
Pickenpack Seafoods GmbH and the Supplier determine the mode of transport in reference to an ICC Incoterms® 2010-clause in the order records. In any case we have the right, however, to specify a certain mode of transport. If no individual case agreement is made the “delivery duty paid” clause (delivered duty paid, Incoterms® 2010) shall generally apply.
Additional costs that might occur due to the necessity of an accelerated transport in order to adhere to a delivery date shall not be covered by us.
Every delivery has to be accompanied by delivery notes with detailed specification of content and complete order tag. As long as these details are missing or are incomplete goods shall be stored at buyer’s risk and expense. The arrival of deep frozen goods has to be advised until 12:00 hrs the day before arrival.
5. Acceptance, Default of Acceptance
We shall be entitled to suspend take-over resp. acceptance and exclude default of acceptance owing to unforeseen events beyond our control, e.g. war, war risk, riot, assault on people and objects by third parties, sovereign acts, industrial conflicts at our place, at our supplier or our customer, fire, interruption of the intended transport link as well as shortage of raw material and shortage of energy.
6. Prices, Terms of Payment
The price stated in the order is binding. Failing express written agreement price includes “free at domicile”, packaging included. Return of packaging requires a special agreement.
Prices do not include legal VAT.
Supplier’s invoices have to specify the order identification marks as well as the numbers of every individual order item. As long as these particulars are missing, invoices are not considered as due.
Payments are made – if no other special agreements exist – with deduction of 2 % discount within 14 days or within one month net/net by cheque or bank transfer. Periods for payment begin provided that the following conditions are fulfilled:
a) full performance on the contractor’s part
b) receipt of an orderly issued delivery note
c) receipt of an orderly issued invoice
Payment shall not be deemed to constitute acceptance of delivery/service as specified in the contract. We are entitled to the right of retention/the right to withhold payment in accordance with the law.
7. Warranty – General Provisions
In case of a warranty claim we are entitled to assert the legal warranty claims without limitation; in any case we shall be free to demand a remedy of the defect or the supply of new, defect-free goods. The right to compensation of damages – particularly claim for damages instead of performance delivery – shall remain expressly reserved. The Supplier takes the responsibility for compliance of foodstuffs with German Food Law.
In case of imminent danger or in urgent cases we are entitled to eliminate the defect at Supplier’s expense.
Statutory warranty period is 36 months, counted from passage of risk.
Costs and risks of return consignment of defective delivery items shall be borne by the Supplier. The terms as aforesaid are also applicable for deliveries and services performed by the Supplier in line with warranty.
Apparent defects shall be notified within 5 working days after receipt at the point of delivery stipulated by us. Without exception defects are defined as apparent that can be detected by examination of outer condition of the packaging and do not compulsory refer to the goods or foodstuffs itself.
Obvious defects shall be notified within 20 working days, as long as they can be identified within the scope of a sampling plan and interval testing by means of spot checking procedures. Obvious defects are defined as detectable by means of a basic functional ret and visual examination and, in case of foodstuffs, by means of basic sensory testing.
Hidden defects can also be claimed at a later stage, however, immediately following their detection. Hidden defects are defined as defects that either do not apply to the total quantity delivered but only to a partial quantity and/or can only be detected by analytical and/or microbiological testing and/or emerge during further use only.
Technical features that are published in a datasheet, specification, technical leaflet or similar document are considered contractually guaranteed features of the subject-matter of the Supplier’s delivery/service.
In case of supply contracts or recurrent supplies of same goods, we reserve the right to examine deliveries in a determined interval as well as the right to claim non-examined deliveries until expiry of the warranty period and/or in case of foodstuffs until expiry of the best before date except, the defect is caused by ourselves or by improper storage within our responsibility.
The Supplier ensures that delivery/service does not cause any infringement, particularly with regard to compliance with laws, regulations or any other official provisions. Supplier is obliged to immediately inform us in case the goods to be delivered by him are subject to the obligation for export authorisation.
8. Special Responsibilities to be met by Suppliers of Foodstuffs
8.1 Food Regulatory Duties of Care
Supplier shall examine the goods to be supplied prior to delivery to us in terms of compliance with regulations of the specifications, with the LMBG (= Foods and Other Commodity Goods Law) and other food regulatory and competition laws, regulations and guidelines. Inter alia necessary are chemical-biological, sensory and other testings for each batch as well as any other common testing of the product. Records of the testings shall be made and have to be made available to us upon request for a period of up to 5 years following delivery.
On the same lines as the Lot Identification Directive the Supplier shall mark each lot by means of an adequate mark allowing verification of the particular raw material supply and shall ensure that the relevant testing records can be related to each lot.
The Supplier guarantees that only approved additives, raw material, auxiliary materials, preservatives, colouring agents etc. get used and that manufacturing methods, markings and equipment’s – identification of additives and foreign materials included – are in line with legal regulations. Supplier shall hold us and our customers harmless from any claims subject to private and criminal law which might assert one’s claim in case of violation of these provisions.
We are entitled to request the Supplier to provide objective evidence of origin, product characteristics, processing and quality controls to such extent as Supplier on his part is entitled to request same from its suppliers. Supplier shall commit its suppliers to maintain adequate records. Insofar the Supplier transfers the own title to request to us. Where testing records for a specific lot cannot be provided/presented upon our request or same cannot be clearly assigned to supplier commits himself to payment of a contractual penalty in the amount of Euro 1,250.00 for each case, but not exceeding 5% of the value of good delivered.
8.2 Measures to further a sustainable fishery
Support the sustainable fishery only those fish raw materials get used by us for which the measures mentioned hereafter are confirmed by the Supplier. The monitoring is assured by the relevant raw material specifications as well as by means of our corresponding supplier audits.
- The raw material Supplier confirms that it is neither directly nor indirectly involved in the processing of or trading in fish species that are threatened with extinction and are legally protected.
- The raw material Supplier confirms that the fish delivered is originating from catch areas for which TACs or similar international catching rules exist.
- The raw material Supplier confirms that during catch of the fish delivered the relevant legal requirements have been applied.
- The raw material Supplier quotes to the buyer catch area and catching method per each lot.
- The raw material Supplier confirms and assures that the raw materials bought and used by itself solely originate from catches, transports and processing by registered and authorised vessels/factories and that raw material does not come from illegal fishing operations.
- By means of appropriate systems and facilities the raw material Supplier guarantees the traceability of all preceding production steps of the used raw material back to the respective fishing vessel, incl. the relevant registration and IMO-number.
- The raw material Supplier informs itself at regular intervals without further request and independently on the “Black Lists” informing about illegally operating fishing vessels published by NAFO, NEAFC and other relevant organisations. Supplier verifiably ensures not to source any materials from these vessels.
8.3 Compliance of ETI-Base Code and the BSCI-Code of conduct
Supplier undertakes to comply with the applicable local laws. Supplier is aware of his social responsibility towards his employees and agrees to comply with the principles and objectives of the ETI Base Code as well as the BSCI Code of Conduct, both in their valid versions. Supplier shall take measures to ensure that all business partners involved in the production processes along the supply chain comply with these requirements in the same way
8.4 Quality Management/Product Safety
The Supplier commits itself to establish a quality management system with appropriate documentation, i.e. in dependence on the International Food Standard, BRC Global Standard (Food) or DIN EN ISO 9001:2000.
The Supplier commits itself to implementation of a HACCP concept and to documentation of traceability in accordance with the requirements of the decree 178/2002 of the European Parliament and the Council, dated 28.01.2002, and the decrees 852/2004 and 853/2004 of the European Parliament and the Council, dated 29.02.2004. We are entitled to control adherence to the HACCP concept by means of random sampling at any time.
We ourselves or an official expert (auditor) authorized by us has the right of access to the documentation within 2 weeks following prior notice. Moreover, the supplier and/or producer will grant unrestricted access to the production site to an auditor authorized and assigned by ourselves and shall support actively the execution of such audits.
Insofar the Supplier is obliged to present corresponding documents to the auditor at the latter’s request.
8.5 Producer’s Liability
Supplier is obliged to hold us harmless on first request from any third party product liability claim if the defect giving rise to the claim is supplier’s responsibility as proximate cause lies in its territory and organisation area; legal relationship to third parties is Supplier’s liability.
Within the frame of his responsibility for damage events in terms of the previous paragraph the Supplier is also obliged to compensate possible expenses pursuant to §§ 683, 670 BGB (German Civil Code) or §§ 830, 840, 426 BGB arising from or in connection with a possible product recall. As soon as possible and reasonable we shall inform the Supplier as to extent and manner of a product recall and shall give him the opportunity to make statements. Other legal titles remain unaffected.
The Supplier warrants that it will at all times during the continuance of this agreement and thereafter, i.e. until expiration of liability for defects, maintain product and public liability insurance in an amount of 10 million Euros – lump-sum – for each damage to persons/damage to property. In case we should be entitled to further compensatory damages they will remain unaffected.
9. Samples, Random Sampling
At our sole discretion we are entitled to demand Supplier for samples of the manufactures produced from current productions, but also to have them bought by its field service at sequencing trading levels and to have them tested by assigned institutes resp. chemical laboratories. Should the case of complaint arise charges are for the account of the Supplier. Pickenpack Seafoods GmbH shall in each case provide the Supplier with copies of the findings. Such samples might be requested four times a year maximum.
The goods shall be packed in a way that transport damage is avoided. Packaging materials shall only be used to the extent necessary to achieve this purpose and must correspond in composition to the legal regulations. Only environmentally friendly packaging materials may be used. The obligation of the contractor to take back packaging complies with legal provisions.
Unless deviating agreements have been reached the Supplier shall bear the disposal costs for sales and transport packaging.
11. Supplier’s Retention of Title
For supplies and/or services paid any retention of title of the Suppliers is no longer applicable.
12. Place of Performance and Jurisdiction
Place of performance for the delivery obligation of the contractor is the place of delivery specified. Should any legal dispute arise from the contractual relationship and/or formation of the contract and its validity mutually agreed place of jurisdiction for contractors being registered merchants is Lüneburg. The contractual relationship is construed in accordance with the laws of the Federal Republic of Germany – excluding the United Nations Convention on Contracts for the International Sale of Goods from 11.04.1980.
13. Final Clauses
Should individual sections of these provisions be legally ineffective, or will become ineffective, shall this not affect the validity of other sections.