Purchasing Conditions

1. Applicability of Conditions

1.1 Our orders are issued exclusively on the basis of these Purchasing Conditions.
1.2 The Supplier’s terms of business are deemed accepted only if they have been confirmed with contractually binding effect by ourselves as a supplement to our own Purchasing Conditions, or have been confirmed individually.The same applies in relation to the standard systems of clauses which are common to this field of business.
1.3 Any of the Supplier’s references or counter-confirmations citing its own terms of business are expressly rejected.
1.4 Unless otherwise indicated below, individual agreements and the provisions of law shall be applicable.

2. Orders

2.1 Only orders which are issued in writing and which have been signed by authorised signatories will be valid.Verbal orders or those issued by telephone, fax or email are binding on ourselves only subject to a subsequent written order correspondingto clause 1.
2.2 The acceptance of each order must be confirmed in writing by the Supplier – upon receiving the order – promptly, and at any rate no later than within 8 working days following the date of our order.If we do not receive confirmation of our order within the above-mentioned timeframe, then we are entitled to revoke the order.
2.3 The Supplier is obliged to secure all necessary information concerning our production conditions as they affect the Supplier’s product, before delivering it.The Supplier must notify ourselves if its products cannot be used in relation to the production media employed in our works.

3. Prices

3.1 The prices indicated in our order are binding.
3.2 If no separate agreement has been made, then prices are deemed to apply inclusive of packing and transportation to our site of use.
3.3 Invoices must be sent to our postal address.They should not be enclosed with the consignment itself.They must include all of the details stipulated by ourselves.

4. Payment conditions

Unless otherwise agreed, our payment will be made within 30 days net.If we settle payment within 14 days, then we will be entitled to apply a deduction of 3% from the amount of invoice.

5. Delivery deadlines; Delay in delivery

5.1 The deadlines and periods negotiated in our Order are binding.Fulfilment of the delivery deadlines or of the delivery period will be defined according to the time of arrival of the goods at the place of delivery stipulated by ourselves.
5.2 If we are entitled to compensation on the grounds of nonfulfilment, then we will be entitled to purchase the goods from a third party and to charge the Supplier the difference between the amount of the Supplier’s pricing and the cost of the alternative supply. In such cases, we are not subject to any payment obligation in relation to the Supplier.This does not exclude the option of filing further compensation claims.
5.3 Should the Supplier come to anticipate difficulties in materials purchasing, manufacture or transportation – to such an extent as to impede the Supplier from achieving prompt supply as agreed – then it must promptly notify ourselves.This does not affect our claims arising on the grounds of delay.
5.4 The acceptance of goods delivered late does not constitute any waiver of claims for compensation.
5.5 If we are impeded from accepting the goods due to the occurrence of unforeseeable, extraordinary circumstances which we are unable to prevent despite every reasonable precaution taken as the case requires, then our deadline for acceptance of and payment for the goods will be extended to a reasonable degree.If these circumstances make it unreasonable for ourselves to have to accept the consignment, then we will be exempt from the obligation for acceptance and for payment.
5.6 This provision will also apply as appropriate in the event of any strike or lockout in our works or in the works of any suppliers whose products are additionally needed by ourselves in order to process the products supplied by the Supplier.
5.7 This provision will apply as appropriate to any conversions of production media as required at short notice due to unforeseeable contingencies caused by technical production imperatives or legal directives.

6. Reservation of ownership / Confidentiality

6.1 The Supplier holds no reservation of ownership over and above “plain reservation of ownership”.In all cases, the reservation of ownership is applicable only to the specific supply.
6.2 Our orders must be treated confidentially.Samples, drafts etc which are intended for ourselves may not be made accessible to any third parties. Our express written consent is required before configuring and exhibiting – to any third parties – any items belonging to ourselves or made and/or intended for ourselves, and before making any reference to our order.

7. Quality and documentation

7.1 The Supplier assures us that it has complied, concerning the products which it supplies, with the recognised rules for the manufacture of the goods together with all foodstuffs-related provisions mandatory in the EU and in Germany.
7.2 If the Supplier has any reservations/objections to our product specifications, then the Supplier should promptly notify ourselves, specifically indicating the basis for any such reservations/objections.
7.3 The Supplier must keep on file the test documents concerning the product for 7 years, and must pass such documents to us on request.For that purpose, the Supplier may be obliged to secure the necessary documents from third parties (such as from its own suppliers, for example).Where we are directed by the authorities to allow access to our production cycle and to the production documents, for purposes of inspection, the Supplier hereby declares its willingness to allow the authorities to inspect the Supplier’s works.
7.4 The Supplier will attach the required certificate of origin to each order.

8. Fault reports

8.1 The quantities, dimensions, weights, quality characteristics & specifications stipulated by ourselves have definitive effect with regard to the quantitative criteria, correctness and suitability of the products.
8.2 It will not be possible for a delayed fault report to be received and for acceptance to be issued without reservation if we are only able to detect the deficiency at the stage of processing of the goods and if we then issue the fault report within 7 days after processing.
8.3 The payment of the purchase price where settled prior to the detection of the fault does not constitute acknowledgement that the goods are free of faults and compliant with the requirements.

9. Guarantee of goods deliveries

9.1 The provisions of law will apply in the event of defective deliveries, unless ruled otherwise within these Purchasing Conditions.
9.2 If the product is faulty, then we are entitled to require fresh supply, a reduction in purchase price, the reversal of the Contract or compensation.
9.3 If we have decided in favour of fresh supply, and if we do not receive free of charge replacement supply from the Supplier within a reasonable timeframe, then we may exercise the further discretionary rights which are set out in Paragraph 2.
9.4 Any return of goods which have been the subject of complaint will be conducted at the Supplier’s expense & risk, irrespective of the location of the faulty goods.

10. Guarantee for supplied technical equipment

10.1 Unless longer guarantee periods are required by law, the guarantee in all cases will extend to 12 months as from delivery of the product.If any construction or assembly work is required in order for the product to be used for the designated purpose, then the guarantee obligation does not start to run until the date of acceptance as satisfactory.Commissioning cannot be held to replace acceptance.
10.2 The Supplier guarantees that its product is compliant with recognised leading standards, safety regulations and the agreed specifications together with the agreed performance characteristics and that it can be used, to the full extent, for the intended purpose which is known to the Supplier.Consequently the Supplier itself must find out about any legal requirements – especially environmental provisions – which apply in respect of its product.
10.3 If the product is faulty, then we are entitled to require free-of-charge replacement, free-of-charge rectification, a price discount, the reversal of the Contract or compensation.
10.4 If we have decided in favour of rectification and if the attempt at rectification should fail or if the Supplier incurs delay in rectification or in the free-of-charge supply of a replacement, then – at our own discretion – we are entitled to choose between reversal of the Contract or the reduction of the purchase price and the substantiation of compensation claims on the grounds of nonfulfilment.
10.5 The sending back of any products which have been the subject of complaint, and the carrying-out of rectification, will be conducted free of charge to ourselves and at the Supplier’s risk in all cases, irrespective of the location of the faulty item.
10.6 This provision does not exclude further compensation claims.

11. Liability

11.1 In the event that we are claimed against on the grounds of poor performance, manufacturer liability or the infringement of official safety and environmental regulations etc, the Supplier must compensate ourselves for the loss consequently arising to the extent that its product and/or its actions have been deficient and that they caused the loss.The Supplier’s culpability will be invoked only if the regulations on the basis of which we are claimed against include the stipulation of culpability. In such cases, the Supplier will be required to prove that it is free of culpability.
11.2 If we are obliged to conduct a recall campaign due to a fault which is attributable to the Supplier’s product, then the Supplier must also compensate ourselves for the costs of the recall campaign.
11.3 The Supplier undertakes to negotiate adequate liability & product liability insurance cover.Upon our request, the Supplier must be prepared to give us proof of having negotiated such insurance cover.

12. Transport risk

The Supplier bears the transport risk up to the stage of receipt of the product at the delivery address agreed in the corresponding case.

13. Place of fulfilment; Applicable law; Place of jurisdiction; Written form; Partial nullity

13.1 The delivery address stipulated by ourselves – Stimpfach --– is the place of fulfilment for supplies and services, unless otherwise indicated.
13.2 The Supplier undertakes in all cases to provide its supplies and services directly.Our express written approval is required for any subcontracted orders.
13.3 German law, to the exclusion of European commercial law (ROME 1 Directive) and of UN purchasing law (CISG), will apply in respect of these Purchasing Conditions and all dealings between ourselves and the Supplier.
13.4 The Court in Germany which is competent for the locality of our head office (Crailsheim Local Court/ Ellwangen Regional Court) will be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.The competence of any Court corresponding to EuGVVO (=European Convention on jurisdiction and the enforcement of judgements) is excluded.
13.5 Subsidiary agreements, reservations and amendments & supplements to our Contracts will require our written confirmation as the prerequisite for their validity.The same applies concerning the waiver of the written-form requirement.
13.6 Should any provision of these Purchasing Conditions or any provision in the context of other agreements be or become invalid, then this will not affect the validity of any other provisions or agreements.

HOSTA – Werk für Schokolade-Spezialitäten GmbH & Co. KG

Date: August 2020