General Conditions of Purchase of Börlind Gesellschaft für kosmetische Erzeugnisse mbH
1. Scope of Application
1.1 These general conditions of purchase (GCP) shall apply exclusively to all contractual relations (also to all future contractual relations) in which we (Börlind Gesellschaft für kosmetische Erzeugnisse mbH, Lindenstraße 15, D-75365 Calw) procure goods or services from other companies, governmental entities, or special governmental estates (hereinafter “Supplier”). These GCP shall be an integral part of the contract between the Supplier and us, except if agreed otherwise for the according order. The statutory provisions shall apply complementary and subordinate to these GCP.
1.2 Differing or contrary terms of the Supplier shall not apply – except if we have expressly agreed upon in writing – even if we perform a contract or accept delivery or services without reservation despite our knowledge of eventually differing or contrary terms of the Supplier provided or referred to in its order confirmation, delivery documents, and/or invoice.
2. Performance and Delivery
2.1 Offers and price quotes shall not be remunerated and shall not create any obligations on our part. Only orders that we have issued in writing (including by fax and e-mail) shall be binding. This shall also apply to later side agreements, amendments and/or alterations.
2.2 We may revoke our order, without causing any obligations or liability, if the Supplier has not confirmed the order without alterations within two weeks upon receipt of the order. If the performance is due and already executed within this time period, the right of revocation shall expire.
2.3 The Supplier shall comply with our inquiry and shall inform us in case of deviations thereof explicitly. In case of errors upon conclusion of the contract below negligence (§ 276 BGB), for instance due to transmission errors, misunderstandings etc., we shall not be liable for compensation based on § 122 BGB. Premature or partial delivery/performance shall require our prior consent. The Supplier may also not make third parties provide the contractual performance without our prior consent in writing.
2.4 The performance shall be provided at the destination specified by us and at the delivery date stipulated in the order. If a certain destination has not been explicitly agreed, our headquarters in Calw/Altburg shall be the destination.
2.5 The delivery shall, if not agreed otherwise, be executed DDP (Incoterms 2020) at the destination. Delivery deadlines shall be calculated starting from the date of the order if not agreed otherwise explicitly and in writing.
2.6 Should the Supplier need information from us to perform the contract duly, Supplier shall request them from us in time and precise them sufficiently. The Supplier shall verify all information provided by us for its completeness in time.
2.7 In case of deliveries from a preference country or any other case of a preferential origin, Art.27 Customs Code, Regulation (EEC) No. 2913/92, the Supplier shall provide to every delivery a proof of preference (indisputable in all formal and material ways) concerning this origin. The Supplier shall bear the costs for acquiring and transferring the proof of preference which is required by law. In addition, the Supplier shall comply with all applicable export control provisions and shall provide us unrequested and in writing with the export control labeling of the delivered goods at the latest with delivery. In case of inquiries concerning customs, tax or export control laws focusing the Supplier’s performance, the Supplier shall provide us with detailed information and all requested documents and declarations, especially supplier declarations in the sense of Art. 61 ff DVO (EU) 2015/2447, immediately and without additional remuneration.
3. Breach of Contractual Obligations
3.1 Unless otherwise stipulated in these GCP, the Supplier shall be liable as per the statutory provisions.
3.2 If the Supplier recognizes that it will not be able to fulfill its contractual obligations either in full or in part, or not within the agreed time period, it must notify us thereof immediately without undue delay. The notice must state both the reason(s) for the delay and the predicted delay in delivery time. Our acceptance of a delayed or partial delivery of goods/provision of services shall by no means constitute a waiver of any our rights or claims due to late or partial delivery of goods / provision of services.
3.3 In case of any delay of performance or incomplete performance, we have the right to demand a contractual penalty for each commenced working day (Monday to Friday, except legal holidays of Baden-Württemberg and except December 24th and 31st) of default of 0,2%, but not more than 5% of the order value in total. The assertion of the contractual penalty does not relieve the Supplier from its performance obligation. The contractual penalty can be asserted until final payment following acceptance of the delayed delivery or acceptance of the delayed service without reservation. Our further or other claims or rights shall remain unaffected.
3.4 The Supplier warrants that its performance shall comply with the agreed specifications and – as far as not specified – with the nature and method customary in trade, furthermore warrants to have executed a comprehensive control of outgoing goods concerning the functionality and quality.
3.5 The statutory provisions on the commercial inspection and notification obligation (§§ 377, 381 HGB) shall apply with the following measures: Our obligation shall be limited to defects, which can be visually identified in our inspection tests of incoming goods, including the shipping documents (e.g. damages from transportation, false and short delivery). Our notification obligation concerning defects discovered later shall remain unaffected. Our notification shall be considered immediate and within due time, if it is made within one week after discovery or – in case of obvious defects – after receipt of delivery.
3.6 In case of defects, we may request subsequent performance according to the statutory provisions, whereas we may choose the kind of subsequent performance and whereas the Supplier shall act in pursuance with our operational needs. In case of goods, which are processed for consumer goods, we may exercise recourse rights according to §§ 478, 479 BGB even in case the delivered goods were not consumer goods. In case, a defect appears within 6 months after the passing of risk, this defect shall be deemed to have existed at the time of passing of risk already, except this assumption is incompatible with the kind of good or the defect.
3.7 Warranty rights may be claimed for 36 months starting with delivery/acceptance, except for cases in which the statutory provisions provide a longer term.
4.1 The Supplier warrants compliance of its delivered goods with the applicable legal provisions of European Regulation 907/2006/EC Registration, Evaluation, Authorisation and Restriction of Chemicals (REACh Regulation).
4.2 The substances in the goods delivered by the Supplier shall, as far as necessary under REACh, be pre-registered or after any transition periods be registered, unless the chemical is excluded from registration obligations.
4.3 The Supplier shall provide us with a safety data sheet according to Art.31 REACh as well as the necessary information according to Art.32 REACh. The safety data sheets must be provided to us in the language of the country recipient in all cases stipulated in Article 31 (1) to (3) REACh. Furthermore, Supplier shall provide us all information according to Art.33 REACh.
4.4 Suppliers with their headquarters outside the European Union shall apply for release from its registration obligations and shall appoint an “only representative” according to Art.8 REACh. If this representative has made a pre-registration or registration, which covers the delivery in question, the Supplier shall add the according certificate to the delivery and inform us about the name and address of the representative.
5. Supplementary Provision for Cosmetic-Related Performances
5.1 The Supplier warrants to comply with all provisions concerning the manufacturing and placing on the market of cosmetic products, especially arising from the EU Cosmetic Regulation 1223/2009, the German Cosmetic Regulation, the LFGB, the Verpackungsgesetz (German Packaging Act) and legal provisions on waste and recycling.
5.2 As far as the Supplier delivers cosmetic products as its manufacturer, the Supplier warrants compliance with good manufacturing practice according to Art.8 (1) EU Cosmetic Regulation, as well as warrants, that the products were produced according to DIN EN ISO 22716 (Good manufacturing practice of cosmetics-guideline) in the applicable version at the time of delivery. In addition, the Supplier warrants, not to have executed animal testing in the sense Art.18 (1) EU Cosmetic Regulation.
5.3 The Supplier of cosmetic products warrants product safety according to Art.3 EU Cosmetic Regulation and that all cosmetic products were subject to and have passed a safety assessment according to Art.10 EU Cosmetic Regulation. The Supplier shall provide to us the according safety report, Art.10 (1) EU Cosmetic Regulation, at the latest with the delivery of the products. Furthermore, the Supplier warrants to keep a product information file for it, Art.11 (1) EU Cosmetic Regulation and in case of an inquiry of the authorities made available to them and in case of a justified interest provide information being part of the product information file to us, too.
5.4 We may, during usual working times and subject to prior notice, on our own or by third parties inspect the relevant manufacturing processes and quality safety system of the Supplier for compliance with the contractually agreed provisions (including of theses GCP) as well as the minimum statutory requirements.
5.5 Our products follow the general principle of a sustainable way to operate the company and manufacturing processes. The Supplier shall provide to us the accordingly relevant information and evidence thereof, also to third parties appointed by us (e.g. certifying bodies). As fas as we agree with the Supplier that its performance shall comply with a certain certificate, the Supplier shall independently review and comply with the relevant provisions. Any non-conformity must be notified to us immediately.
6. Packaging, Shipping
6.1 The Supplier shall package the goods to be delivered as follows: A delivery note, a packing list and all test analysis certificates according to the agreed specifications or legal provisions must be added to each delivery. In all shipping documents and on the outer packaging, the order and product number, the brutto and net weight, the numbers of packages and the kind of packaging (one way/multiple way) must be noted. Suppliers from outside the European Union must state in writing, if the goods are delivered custom cleared or undeclared. In case of undeclared goods, the Supplier shall add the accompanying shipping documents T1, freight documents, customs bill, preferential certificates as Form A, EUR.1, A.TR as well as a certificate of origin.
6.2 The Supplier shall package, label and ship dangerous goods according to the applicable national and international provisions (especially REACh-Regulation).
6.3 The risk of loss or damage to the goods shall pass to us only upon orderly and complete delivery at the agreed place of delivery. If a formal acceptance is stipulated by law or by the contract, the passing of risk shall take place upon acceptance. If formal acceptance is agreed, the risk of loss shall not pass before a successful acceptance has been confirmed by us in the acceptance certificate. Payment of invoice balances shall not replace a formal acceptance.
7. Manufacturer Liability
7.1 As far as the Supplier is responsible for a product defect, the Supplier shall indemnify and hold us harmless from any claims of third parties (including reasonable costs of legal proceedings and defense, expenses, fees, tax as well as reasonable advance payments), as far as the damages are caused by a defect attributable to the Supplier. In cases of liability dependent on negligence or fault (§ 276 BGB), this shall only apply if the negligence or fault is attributable to the Supplier. If the cause for the damage lies in the scope of the Supplier’s responsibilities, the Supplier shall bear the burden of proof. The Supplier shall bear and reimburse in such cases all costs and expenses, including the eventual legal costs.
7.2 The Supplier shall at all times during the term of our business relationship, conclude and maintain a product liability insurance with a minimum insurance amount of 5 million Euro for personal and property damages and shall provide us with the according documents at our request. The contractual and statutory liability shall remain unaffected from the extent and amount of protection provided by the insurance.
7.3 The Supplier shall implement and execute a state or the art quality safety system and a documentation of all relevant data in an appropriate way in terms of manner and extent. Should a product liability case occur, Supplier shall provide the according documentation and data, to prove the product to be free from defects.
8. Payment, Retention of Title
8.1 The agreed prices shall be net prices, plus the statutory VAT, as far as the Supplier’s performance is subject to VAT. If not agreed otherwise, all invoices shall be payable within 30 days with a 3% discount or net within 60 days, calculated from the receipt date of an invoice, complying with all statutory requirements, especially on input tax deduction.
8.2 Retention of title by the Supplier may only be accepted, as far as our payment obligation refers to the according performance, to which the Supplier retains title. We do not accept any extended retention of title. In case of goods, especially raw materials, which are intended for further processing, the Supplier hereby agrees, that we start processing such goods before complete payment, as long we are not in delay with such payment.
8.3 The payment of invoices shall not be deemed any acceptance of conditions or prices, nor any declaration of acceptance of the performance. All rights with regard to improper performance shall remain unaffected.
8.4 We reserve all rights to offset or retain payment provided by applicable law. The Supplier’s right to offset shall be limited to claims that are undisputed or finally substantiated by court judgment. Any rights of retention of the Supplier shall be limited to claims arising from the same contractual relationship.
9. Limitations of Liability
9.1 We shall be liable for wilful misconduct and gross negligence. In cases of slight negligence, we shall only be liable in case of breach of essential contractual obligations, which arise from the nature of the contract or where failure to comply or violation thereof would endanger the purpose of the contract. In such cases, our liability is limited to predictable damages. In other cases of slight negligence, all claims and damages of the Supplier, no matter on which legal ground, shall be excluded. The foregoing restrictions on liability shall not apply to damages of life, body or health.
10. General Provisions
10.1 All information that we provide with our inquiries for offers, with our orders or within the performance of a contract (especially data, templates, materials, plans, specification, formulas, and manufacturing methods) is subject to obligations of the Supplier to treat it confidential and only forward them to third parties after our prior consent in writing. This shall not apply to information which is publicly known. Upon performance, the Supplier shall return all provided information to us or destroy it and confirm it in writing, except concerning data that is subject to statutory storage obligations. The Supplier may not assert any rights of retention concerning the information provided by us.
10.2 Place of performance for all obligations arising from the contracts, especially concerning delivery and payment, shall be for both parties where our headquarters are located or the agreed destination.
10.3 Exclusive place of jurisdiction for all disputes arising out of or in connection with all contracts subject to these GCP shall be our , if the Supplier is a merchant (in the meaning of the HGB/German Commercial Code). We may also at our choice bring legal proceedings to the courts at the headquarters of the Supplier.
10.4 These GCP as well as the contracts concluded hereunder shall be governed exclusively by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods and the non-mandatory provisions of conflicts of laws). If the meaning of any English term or clause contained in these GCP differs from the meaning of the respective German term or clause, the German term or clause shall prevail.
10.5 We may modify these GCP. The new version shall apply, if we make them available to the Supplier. The availability may be executed by sending them or communicating the according URL address for the online download. New versions have effect on future contracts, additionally for running contracts, if the Supplier does not object the application of the new GCP within for weeks, but only if we have informed the Supplier about this objection deadline and the legal consequence of any omitted objection, at the time, we have made the new version of the GCP available.
10.6 Should any provision of these GCP be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions and the continuance of the according contract.