Terms and Conditions of Sales

1. Scope
1.1

ELP GmbH European Logistic Partners (hereinafter referred to as "ELP") provides its deliveries and services exclusively according to the following General Terms and Conditions of Sale. They are valid for all future business between the parties to the contract without special renewed reference. They shall also apply if ELP does not expressly refer to them in later contracts, in particular also if ELP provides deliveries or services to the customer without reservation in the knowledge that the customer's terms of business are contrary to or deviate from our General Terms and Conditions of Sale.
1.2
References of the customer to his terms and conditions are hereby contradicted. Any terms and conditions of the customer which are contrary to or deviate from the ELP terms and conditions will not be accepted, not even by unconditional execution of the contract.


2. Offers and conclusion of the contract, service content
2.1

ELP always quotes to the customer without engagement. If a binding period was specified in the offer, the offer is only subject to change after this period has expired. Only the order is considered a binding offer. The acceptance of this offer is made at the discretion of ELP by sending an order confirmation or by the unconditional provision of the ordered goods or services.
2.2
Information on quality and durability, technical data and descriptions in the product information, advertising material or technical data sheets, as well as information provided by the manufacturer or his assistants in the sense of § 434 Para. 1 No. 3 BGB (German Civil Code), are not guarantees of quality or durability of the goods to be delivered by ELP, unless the information is agreed in an individual contract.
2.3
Identified uses relevant to the goods according to the European Chemicals Regulation REACH do not constitute an agreement on a corresponding contractual quality of the goods or a use presupposed according to the contract.
2.4
In case of sales based on samples or specimens, these only describe professional sample conformity but do not constitute a guarantee for the quality or durability of the goods to be delivered by ELP.
2.5
ELP provides technical application advice to the best of its knowledge. All details and information about the suitability and application of goods do not release the customer from the obligation to carry out his own tests and trials to determine the suitability of the products for the purposes intended by the customer.

3. Prices, terms of payment, default in payment
3.1

The prices agreed upon at the conclusion of the respective contract, in particular those stated on the order form or order confirmation, shall apply. If a price has not been expressly determined, the prices according to the ELP price list valid at the time of the conclusion of the contract apply. The weights and quantities determined by ELP are decisive for the calculation of the prices if the customer does not object immediately after receipt of the goods. To these prices shall be added the value added tax at the statutory rate applicable on the day of delivery as well as the costs of the packaging necessary for proper dispatch, the transport costs ex works or ex warehouse, the cartage costs and - if agreed - the costs of transport insurance. In the case of deliveries abroad, other transport-, goods- and country-specific charges may be added.
3.2
ELP reserves the right to adjust the prices appropriately if, after the conclusion of the contract, cost changes occur due to collective agreements, price increases of the suppliers or exchange rate fluctuations. These price changes will be communicated in writing at least four weeks before the new prices come into effect. Unless the customer objects to the new prices within one week of notification, they shall be deemed to have been accepted. This shall not apply if a fixed price has been agreed.
3.3
Invoices are to be paid 30 days after receipt without deduction, unless a different term of payment has been agreed. After expiry of this period or the payment target or due date stated on the invoice, the customer is in default in accordance with §286 II No. 2 BGB.
3.4
If the credit rating is positive, payment by SEPA corporate direct debit is possible. The pre-notification (advance information) can also announce several direct debits. The period for the transmission of the pre-notification is reduced from 14 days to one day. This is done by showing the relevant details on the invoice or by transmitting the data (together with the invoice data) electronically.
3.5
The customer has a right of set-off or a right of retention only in the case of undisputed or legally established claims or demands.
3.6
If the customer does not pay due invoices, exceeds a granted period of payment or if the financial circumstances of the customer deteriorate after the conclusion of the contract or if ELP receives unfavourable information about the customer after the conclusion of the contract which calls into question the solvency or creditworthiness of the customer, ELP is entitled to make the entire remaining debt of the customer due and payable and to demand advance payment or provision of security or, after delivery has been made, immediate payment of all outstanding debts which are based on the same legal relationship. This shall apply in particular if the ordering party ceases payments, a cheque from the ordering party is not honoured, a bill of exchange given by the ordering party is not paid by the ordering party, insolvency proceedings have been applied for or opened against the assets of the ordering party or insolvency proceedings have not been opened due to lack of assets.
3.7
If there is reasonable doubt as to the solvency of the customer, in particular in the case of default of payment, ELP can, subject to further claims, revoke payment terms granted and make further deliveries dependent on the granting of other securities.
3.8
Non-payment of the purchase price on the due date constitutes a material breach of contractual obligations.
3.9
In the event of a delay in payment by the ordering party ELP shall be entitled to demand interest on arrears, namely in the case of invoicing in Euros at a rate of 9% points above the base interest rate valid at the time of the occurrence of the delay and announced by the Deutsche Bundesbank, and in the case of invoicing in another currency at a rate of 9% points above the discount rate valid at the time of the highest banking institution of the country in whose currency the invoice was issued. Furthermore, in the event of default by the debtor, the ELP is also entitled to the payment of a lump sum of € 40.00. This also applies if the claim for payment is a payment on account or other payment by instalments. The lump sum is to be offset against any damages owed, insofar as the damages are justified in costs of legal action.

4. Delivery and performance time, delay in performance
4.1

Delivery times are only approximate, unless a firm deal has been expressly agreed in writing. The indication of delivery times is always subject to the contractual cooperation of the customer. If nevertheless agreed delivery times are exceeded due to circumstances for which ELP is responsible, the customer can withdraw from the contract after the fruitless expiry of a reasonable period of grace set by him. The withdrawal must be made in writing. Deliveries and services on Saturdays, Sundays and public holidays are only possible by special agreement and at extra cost.
4.2
ELP shall only be in default after the expiry of a reasonable period of grace set by the customer, which must be at least 15 working days. In the case of force majeure and other unforeseeable, exceptional circumstances for which ELP is not responsible, such as operational disruptions due to fire, water and similar circumstances, failure of production facilities and machinery, exceeding delivery deadlines or delivery failures by ELP's suppliers, as well as operational disruptions due to shortages of raw materials, energy or labour, strikes, lock-outs, pandemics, difficulties in procuring means of transport, traffic disruptions, official intervention, ELP is entitled - in so far as they are prevented from fulfilling their obligations to perform on time through no fault of their own by the circumstances mentioned - to postpone the delivery or performance for the duration of the hindrance plus a reasonable start-up period. If the delivery or service is delayed by more than one month as a result of this, both ELP and the customer are entitled, to the exclusion of any claims for compensation, to withdraw from the contract in writing under the conditions in accordance with clauses 8.1 to 8.6 of these terms and conditions with regard to the quantity affected by the delivery disruption.
4.3
In any case of delay the ELP's liability for damages is limited in accordance with the provisions in paragraphs 8.1 to 8.6 of these Terms and Conditions.
4.4
ELP is entitled to make partial deliveries and partial services within the agreed delivery and service times, if this is reasonable for the customer. 4.5 ELP's compliance with its delivery and performance obligations is subject to the timely and proper fulfilment of the obligations of the customer. The defence of non-performance of the contract is reserved to ELP.
4.6
If the customer is in default with the expiry, acceptance or collection of the goods or if a delay in dispatch or delivery is attributable to the customer, then ELP is entitled, without prejudice to further claims, to demand a flat-rate charge for costs to the amount of the usual local storage costs, irrespective of whether ELP stores the goods on its own premises or with a third party. The customer shall be entitled to prove that no damage or a lower damage has been incurred.

5. Transfer of risk, transport and shipping costs
5.1

Unless otherwise expressly agreed in writing between ELP and the customer, delivery shall be ex works ELP or ex warehouse ELP and must be collected there by the customer at his own risk and expense. In this case, the risk of accidental loss and accidental deterioration of the contractual delivery items shall pass to the customer after they have been made available for collection, with the receipt of the notification of readiness by the customer. In all other respects the risk of accidental loss and accidental deterioration of the goods shall pass to the customer when the goods are handed over to the carrier (also in the case of delivery carriage paid or insured by ELP). The customer shall be solely responsible for the safe loading for transport and operation.
5.2
If, at the request of the customer, packaging deviating from the standard is provided, this will be charged at cost.
5.3
If the goods are dispatched on pallets, these will be charged; if the pallets are returned carriage paid and in undamaged condition to a factory or distribution centre of ELP, they will be reimbursed by credit note. If ELP declares itself prepared to collect undamaged pallets from the customer in exceptional cases, the customer shall bear the transport costs incurred by ELP as a result; ELP expressly reserves the right to collect pallets, if necessary separately from the delivery of goods, or to have them collected by third parties.
5.4
Complaints due to transport damage must be made by the customer directly to the transport company with a copy to ELP within the applicable time limits.
5.5
Unless otherwise agreed in individual cases, the customer shall be responsible for compliance with statutory and official regulations on import, transport, storage and use of the goods.

6. Duties of the customer / Securing the reservation of title
6.1

The delivered goods remain the property of ELP until full payment of the purchase price and all other present or future claims to which ELP is entitled against the customer from the business relationship. The inclusion of the purchase price claim against the buyer in a current account and the recognition of a balance shall not affect the reservation of title.
6.2
The customer is obliged to treat the purchased item with care until complete acquisition of ownership; in particular, he is obliged to insure it sufficiently at his own expense against loss, damage and destruction, such as against fire, water and theft, at replacement value. The customer hereby assigns his claims from the insurance contracts to ELP.
The ELP hereby accepts this assignment.
6.3
The customer may neither pledge the goods, which are the property of ELP, nor assign them by way of security. However, he is entitled to resell the delivered goods in the normal course of business in accordance with the following provisions. The above-mentioned right does not apply if the buyer has assigned or pledged the claim against his contractual partner arising from the resale of the goods - in each case effectively - to a third party in advance or has agreed a prohibition of assignment with him.
6.4
In order to secure the fulfilment of all claims of ELP mentioned in Section 6.1 of these terms and conditions, the customer hereby assigns to ELP all claims - including future and conditional claims - arising from the resale of the goods supplied by ELP with all ancillary rights to the amount of 110% gross of the value of the goods supplied with priority over the remaining part of his claims.
The ELP hereby accepts this assignment.
6.5
As long as and in so far as the customer fulfils his payment obligations to ELP, he is authorised to collect the claims assigned to ELP against his customers within the framework of proper business management. However, he is not entitled to agree a current account relationship or prohibition of assignment with his customers with regard to these claims or to assign or pledge them to third parties. If, contrary to sentence 2, a current account relationship exists between the customer and the purchasers of goods which are subject to the reservation of title of ELP, the claim assigned in advance also refers to the recognised balance and in the case of insolvency of the purchaser also to the then existing balance.
6.6
At the request of ELP, the customer must provide individual proof of the claims assigned to ELP and inform his debtors of the assignment with the request to pay to ELP up to the amount of ELP's claims against the customer. ELP is also entitled at any time to inform the customer's debtors of the assignment and to collect the claims. However, ELP will not make use of these powers as long as the customer fulfils his payment obligations properly and without delay, an application for the opening of insolvency proceedings against the customer has not been made and the customer does not stop payments. If, however, one of the above-mentioned cases occurs, ELP can demand that the customer informs ELP of the assigned claims and their debtors, provides all the information necessary for the collection of the claim and hands over the relevant documents.
6.7
In the event of seizure or other interventions by third parties the customer must inform ELP immediately in writing.
6.8
If the goods supplied by ELP under reservation of title are processed, or mixed or combined with other objects which do not belong to ELP, ELP shall acquire co-ownership of the new object in the ratio of the value of the goods supplied by ELP (final invoice amount, including VAT) to the other objects at the time of the processing/mixing or combination). For the rest, the same shall apply to the object resulting from the processing as to the object of sale delivered under reservation of title. If the processing, mixing or combination is carried out in such a way that the customer's item is to be regarded as the main item, then it is agreed that the customer transfers proportional coownership to ELP. The ordering party is entitled to dispose of the new products which have come into existence as a result of processing or alteration or connection or mixing in the normal course of business without pledging or assignment as long as he fulfils his obligations from the business relationship with ELP in good time. The customer assigns his claims arising from the sale of these new products, to which ELP has ownership rights, to ELP as security in the amount of ELP's ownership share of the sold goods. If the customer combines or mixes the delivered goods with a main item, he hereby assigns his claims against the third party to ELP up to the value of our goods.
The ELP hereby accepts this assignment.
6.9
The customer also assigns to ELP the claims up to the value of the goods of ELP as security for claims on the part of ELP which arise against a third party through the connection of goods of ELP with a property.
6.10
ELP undertakes to release the securities to which ELP is entitled, at ELP's discretion and at the request of the customer, to the extent that the realisable value of ELP's own securities exceeds the claims of ELP against the customer to be secured by more than 20%.
6.11
If the customer acts in breach of contract, in particular if he is in arrears with more than 10% of the invoice amount for a not inconsiderable period of time, ELP is entitled - without prejudice to ELP's further (compensation) claims - to withdraw from the contract and to demand the return of the goods supplied by ELP. After taking back the goods supplied by ELP, ELP is authorised to sell them. The proceeds of the sale shall be offset against the customer's existing liabilities to ELP - less reasonable costs of sale.

7. Rights of the purchaser in case of defects
7.1

Obvious material defects, wrong deliveries and deviations in quantity must be reported to ELP in writing by the customer immediately, but at the latest 3 days after receipt of the goods by the customer. Non-obvious defects of any kind and delivery of goods which are not obviously different from those ordered must be reported immediately by merchants within the meaning of the German Commercial Code (HGB), and by non-merchants at the latest within the warranty period from delivery. In order to safeguard claims for defects, the buyer must immediately inspect the goods for conformity with the contract, in particular deviations in type, quantity and weight as well as recognisable material defects, and must comply with the inspection obligations set out in the applicable DIN standards. This also applies if components are added which were not purchased from ELP. If any defects are only discovered during processing, the work must be stopped immediately and the unopened original containers, which have not yet been processed, must be secured. They must be made available to ELP for inspection on request. After 3 months from the transfer of risk to the customer in accordance with paragraph 5.1, complaints about hidden defects are excluded and are considered to be delayed if they should have been reasonably recognisable. In the event of a delayed or incorrectly made complaint in accordance with Clause 7.1, sentences 1 to 7, the customer loses his rights in respect of defects under the conditions of Clauses 8.1 to 8.5 of these Terms and Conditions, unless the defect was fraudulently concealed by ELP.
7.2
In the case of defects in goods delivered by ELP, ELP is only obliged to rectify the defects or to deliver defect-free goods (supplementary performance). If ELP is not prepared or not in a position to provide subsequent fulfilment, in particular if this is delayed beyond a reasonable period of time for reasons for which ELP is responsible or if subsequent fulfilment fails in any other way, the customer shall be entitled to withdraw from the contract or to demand a reduction in the purchase price at his own discretion. A rectification of defects shall be considered to have failed after the second attempt, unless the nature of the item or other circumstances indicate otherwise. Insofar as the customer has suffered damage or has spent money in vain because of defects in goods supplied by ELP, ELP's liability for this shall be in accordance with Clauses 7.1, 8.1 to 8.6 and Clause 9 of these Terms and Conditions of Sale.
7.3
Claims for defects by the merchant in the sense of the German Commercial Code (HGB) shall become time-barred at the latest one month after the rejection of the complaint by ELP.

8. Rights and obligations of ELP
8.1

ELP shall only be liable for damages or futile expenditure - irrespective of the legal basis - if the damage or futile expenditure a) were caused by ELP or one of its vicarious agents by culpable violation of an essential contractual obligation or b) is due to a grossly negligent or intentional breach of duty by ELP or one of its vicarious agents. In accordance with Clauses 8.1.a and 8.1.b of these Terms and Conditions ELP shall only be liable for damage or futile expenditure which has been caused by advice or information which is not to be paid for separately in the event of a deliberate or grossly negligent breach of duty, provided that this breach of duty does not constitute a material defect in accordance with §434 BGB of the goods supplied by ELP.
8.2
If ELP is liable for the breach of an essential contractual obligation according to paragraph 8.1.a of these Terms and Conditions of Sale without gross negligence or intent, ELP's liability for damages is limited to the foreseeable, typically occurring damage. In this case, ELP shall not be liable in particular for loss of profit by the customer and unforeseeable indirect consequential damages. The above limitations of liability in accordance with sentences 1 and 2 apply in the same way to damages which are caused by gross negligence or intent on the part of ELP employees or agents. ELP is not liable for indirect damages of the customer which are caused by the assertion of contractual penalty claims of third parties.
8.3
The limitations of liability mentioned in paragraphs 8.1 to 8.2 above do not apply if the liability of ELP is mandatory due to the provisions of the German Product Liability Act or if claims are made against ELP due to injury to life, body or health. If the goods supplied by ELP lack a guaranteed characteristic, ELP shall only be liable for such damages whose absence was the subject of the guarantee.
8.4
Any further liability for damages beyond that provided for in clauses 8.1 to 8.3 of these Terms and Conditions is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo pursuant to §311 Para. 3 BGB, positive breach of contract pursuant to §280 BGB or due to tortious claims pursuant to §823 BGB.
8.5
ELP shall not be liable in the event of impossibility or delay in the fulfilment of delivery obligations if the impossibility or delay is due to the customer's proper compliance with public law obligations in connection with the European Chemicals Regulation REACH.
8.6
As far as liability of the ELP is excluded or limited according to paragraphs 8.1 to 8.5, this also applies with regard to the personal liability for damages of employees, workers, staff, representatives and assistants as well as vicarious agents of the ELP.

9. Limitation of claims
9.1

Claims by the customer due to defects in goods delivered by ELP or due to services rendered by ELP in breach of their duties - including claims for damages and claims for compensation for futile expenditure - shall become timebarred within one year, unless otherwise stated in the following clauses 9.2 to 9.4 or unless the law stipulates longer periods in accordance with §439 Para. 1 No. 2, 445b BGB (right of recourse) and §634 a Para. 1 No. 2 BGB.
9.2
If the customer or another buyer in the supply chain has fulfilled claims against his buyer on account of defects in newly manufactured goods delivered by ELP, the limitation of claims of the ordering party against ELP from §437 BGB and §445a BGB shall come into effect at the earliest two months after the point in time at which the ordering party or the other buyer in the supply chain has fulfilled the claims of the consumer as an entrepreneur, unless the ordering party could have successfully invoked the defence of limitation against his customer/contractual partner. The limitation of the claims of the buyer against ELP due to defective goods delivered by ELP shall in any case occur insofar as the claims of the customer/contract partner of the buyer against the buyer due to defects in the goods delivered by ELP to the buyer have become statute-barred, at the latest, however, 5 years after the time at which ELP delivered the respective goods to our buyer.
9.3
If ELP has provided advice and/or information which is not to be paid for separately in breach of duty, without ELP having supplied goods in connection with the advice or information or without the advice or information in breach of duty constituting a material defect in accordance with §434 BGB of the goods supplied by ELP, any claims against ELP based on this shall become statute-barred within one year from the start of the statutory limitation period. Claims of the buyer/customer against ELP due to the violation of contractual, pre-contractual or legal obligations which do not represent a material defect according to §434 BGB of the goods to be delivered or supplied by ELP shall also become statute-barred within one year from the start of the legal limitation period. Insofar as the abovementioned breaches of duty represent a material defect in accordance with §434 BGB of the goods supplied by us in connection with the consultation or information, the regulations made in Clauses 9.1, 9.2 and 9.4 of these General Terms and Conditions of Business shall apply for the limitation of the claims based on this.
9.4
​​​​​​The provisions in the above clauses 9.1 to 9.3 shall not apply to the limitation of claims for injury to life, body or health unless they apply to the limitation of claims under the German Product Liability Act and for defects of title of the goods delivered by ELP which consist in a right in rem of a third party on the basis of which the return of the goods delivered by ELP can be demanded. Furthermore, they do not apply to the limitation of claims of ELP’s buyer/customer which are based on the fact that ELP has fraudulently concealed defects in goods delivered by ELP or that ELP has violated a duty intentionally or through gross negligence. In the cases mentioned in this clause 9.4 the statutory periods of limitation shall apply for the limitation of these claims.

10. Withdrawals
10.1

The taking back of goods delivered by ELP which are free of defects is excluded. If, in exceptional cases, ELP agrees to take back goods which are free of defects with a value of goods > 200 EUR, a credit note will only be issued to the extent that ELP determines that they can be reused without restriction. For the costs of testing, preparation, reworking and repackaging, the actual costs, at least 20 % of the invoice amount or at least EUR 30, will be deducted. Any freight charges for return freight will be deducted additionally. Such a credit note will not be paid out, but only serves as an offset against future deliveries.

11. Right of assignment
11.1

Without the express written consent of ELP, rights or claims against ELP, in particular due to defects in goods delivered by ELP or due to breaches of duty committed by ELP, may not be transferred to third parties, either in whole or in part, or pledged to third parties; §354 a HGB (German Commercial Code) shall remain unaffected by this.

12. Safety data sheets and declarations of performance
12.1

If the regulations (EC) No. 1907/2006 (REACH Regulation) and/or (EC) No. 305/2011 (EU Construction Products Regulation) in the currently valid version apply to the delivery item, the Purchaser agrees to retrieve the safety data sheet from the ELP website and/or the Declaration of Performance.

13. Place of performance, place of jurisdiction, applicable law, commercial clauses
13.1

The place of fulfilment and exclusive place of jurisdiction for all claims between ELP and merchants or legal entities under public law or special funds under public law is Wuppertal, or the location of the respective delivery works or distribution centre, for payments the paying agents named in the invoice, unless mandatory legal regulations dictate otherwise. However, ELP has the right to bring an action against a customer at his legal place of jurisdiction.
13.2
The legal relationship between ELP and the customer shall be governed exclusively by the law of the Federal Republic of Germany, as it applies between German merchants and as could be effectively agreed in the respective countries of delivery (see Part 1 of these Terms and Conditions of Sale). The application of the provisions on the international sale of goods (CISG-Vienna UN Sales Convention) and German international private law are expressly excluded.
13.3
Insofar as trade clauses are agreed in accordance with the International Commercial Terms (INCOTERMS), the INCOTERMS shall apply in the latest edition (currently INCOTERMS 2020).

14. Final provisions

Should any of the above provisions be invalid, partially invalid or excluded by a special agreement, the validity of the remaining provisions shall not be affected.

Issue: May 2020

Terms and Conditions of Purchase

1. Scope
1.1

These General Terms and Conditions of Purchase apply to all orders placed by ELP GmbH European Logistic Partners (hereinafter referred to as "ELP") with suppliers, service providers and other business partners (hereinafter referred to as "Supplier").
1.2
These Terms and Conditions shall also apply, if ELP accepts deliveries without reservation in the knowledge of conflicting or supplementary conditions of the supplier. General terms and conditions of the supplier that contradict or supplement these General Terms and Conditions of Purchase shall only become part of the contract insofar as ELP has expressly agreed in writing to their validity in advance.
1.3
Individual written agreements made with the supplier take precedence over these General Terms and Conditions of Purchase.

2. Contract
2.1

Offers from the supplier are provided free of charge and do not create any obligations for ELP. In his offer, the supplier will expressly point out any deviations from ELP's inquiry and additionally offer ELP alternatives that are technically and economically cheaper compared to the inquiry.
2.2
Orders from ELP must be in writing or text form. Deviations, amendments or additions to the order stated in the order confirmation only become part of the contract, if they are agreed to by ELP in written or text form.
2.3
ELP may revoke the order if the supplier does not accept it in writing or by direct delivery within two (2) weeks of receipt.
2.4
Cost estimates of the supplier are binding and not to be remunerated, unless otherwise expressly agreed to.
2.5
The use of subcontractors requires the prior written consent of the ELP. If consent is given, the supplier shall nevertheless remain fully responsible to ELP for the performance of the contract.


3. Prices
3.1

Only the prices and currencies mentioned in the order for ELP are applicable. All prices are inclusive of packaging, transport costs and insurance and are net prices plus VAT, which ELP must pay in the form of its respective statutory amount.
3.2
If the supplier has taken over the installation or assembly, the supplier bears all necessary expenses, in particular installation and assembly costs, travel costs, provision of the tool as well as ransoms.
3.3
Invoices must be submitted in a simple copy to the respective billing address specified in the order. Payments to suppliers are made exclusively in the weekly payment run following the due date. Only deliveries/services relating to from an order may be settled on an invoice. As long as ELP do not have an order- and legally compliant and verifiable invoice, there is no obligation for payment. Payment may be made with debt-relieving effect by the ELP itself, or a payment service provider explicitly authorized for this purpose by ELP.

4. Delivery and delivery times
4.1

Delivery of goods must be carried out freight-free (CPT according to INCOTERMS 2020) from the place of delivery specified in the order (if applicable), to the destination specified in the order.
4.2
The supplier is not permitted to make partial deliveries, unless expressly agreed to by ELP in advance or in case that they are reasonable for ELP to accept. For batch-dependent goods, partial deliveries must come from one batch and be labelled accordingly.
4.3
Agreed due dates or deadlines are binding. The receipt of the goods at the destination designated by ELP shall be decisive for compliance with the delivery dates or deadlines. If a delivery includes installation and/or assembly, acceptance of the installation or assembly is decisive for determination of the timeliness of the delivery.
4.4
If delivery dates or deadlines are not met, the statutory provisions shall apply. If the supplier recognizes that he is unable to fulfil all or parts of his contractual obligations or cannot fulfil them in due time, he must inform ELP immediately, stating the reasons and the expected duration of the delay. In particular, the supplier can only rely on the fact that he has not received the documents required for the delivery from ELP or has not received them in due time if he has previously requested the documents in writing from ELP and has not received them within a reasonable period of time.
4.5
The supplier is obliged to inform ELP immediately in writing, if circumstances arise or become apparent to him that are likely to make timely delivery or performance impossible. Operational disruptions, lack of energy or raw materials, traffic disruptions, insofar as such events were unforeseeable, as well as strikes, lockouts, official orders and cases of force majeure release the party concerned from the obligation to deliver or accept for the duration of the disruption and to the extent of its effect. In this case, the supplier will distribute all remaining goods among his customers proportionally in proportion to their orders. If the delivery or acceptance is delayed by more than one (1) month due to the circumstances listed in this paragraph, both the supplier and ELP shall be entitled to withdraw from the contract with regard to the quantity affected by the delivery and acceptance disruption, to the exclusion of all further claims.


5. Shipping and transfer of risk
5.1

The risk of accidental loss and accidental deterioration shall be transferred to ELP in accordance with the INCOTERMS agreed upon in the order. If the supplier has taken over the installation or assembly, the risk shall only pass to the ELP at the time of acceptance.
5.2
Each delivery shall be supplemented by a packing list that references the order number of ELP and denotes the contents of the delivery by type and quantity, as well as lot-, batch- or serial numbers. If the delivery note is missing or if it is incomplete, ELP is not responsible for any resulting delays in processing and payment.
5.3
The supplier must pack the goods with packaging materials approved at the point of destination and, where applicable, licensed in the Dual System in such a way, that transport damage is prevented, and transport specifications are met. The supplier is liable for damages resulting from improper packaging in accordance with the statutory provisions. If ELP exceptionally agrees to cover packaging costs, these must be calculated at a demonstrable cost price.

6. Quality assurance
The supplier is obliged to implement effective quality assurance measures and to maintain an appropriate, effective quality assurance- / quality management system and to prove this to ELP upon request. At the request of the ELP, the supplier will apply a quality assurance- / quality management system in accordance with DIN ISO 9001 and/or ISO 14001 and/or DIN EN ISO 13485 or equivalent in accordance with the recognised Rules on GMP and GLP ("Quality Assurance System"). The supplier accepts that ELP is entitled to review its quality assurance system. For this purpose, ELP or a third party commissioned by ELP, obliged to maintain confidentiality, carry out an audit at the supplier's premises during his normal business hours in order to verify the supplier's compliance with the quality specifications. Insofar as separately agreed between the parties, ELP may carry out regular audits at the supplier upon prior notice. For this purpose, the supplier will, amongst others, provide insight into the certification and audit reports as well as in the test or manufacturing procedures carried out, including all records and documents relating to the delivery. ELP, as well as the third party commissioned by ELP for an audit, will ensure that the audit is carried out in accordance with the applicable data protection and other legal regulations in a manner that interferes as little as possible with the supplier's business operations and that there is no breach of the supplier's confidentiality agreements with third parties. ELP and the supplier shall bear their respective costs incurred in carrying out the audit.


7. Characteristics of goods, REACH, CLP regulations
The supplier is owes for the absence of defects of the delivery and the maintenance of the agreed and/or guaranteed level of quality as well as the quality that ELP may expect from public statements of the supplier, the manufacturer or third parties commissioned with the distribution of the goods. The delivered goods must comply with the applicable legal provisions, regulations, directives, in particular with regards to environmental protection, occupational health and safety, CE regulations, legal and administrative regulations, tax and social security regulations and the recognised rules of science and technology (Current state of the art). The supplier warrants that all the substances contained in the delivered goods have been effectively pre-registered, registered and approved in accordance with Regulation EC No 1907/2006 dated 12-18-2006 ("REACH Regulation") and Regulation EC No. 1272/2008 dated 12-16-2008 ("CLP Regulation") including all additions, amendments, guidelines and all national laws in relation to the REACH- or CLP-Regulations, in combination with the relevant requirements arising from these regulations. The supplier warrants that with each delivery, he will provide up-to-date, complete safety data sheets that meet the requirements of the REACH or the CLP Regulations.

8. Terms of Payment
8.1

Invoices from suppliers are due within thirty (30) days. The payment period begins as soon as (i) the delivery has been made to ELP or an authorized representative of ELP at the named point of destination, (ii) all other services have been fully performed (including any agreed acceptance) and (iii) a duly issued invoice has been received.
8.2
If a payment is made within fourteen (14) days, ELP is entitled to a deduction of three (3) percent discount. A discount deduction is also permitted if ELP offsets or withholds payments of an appropriate amount due to defects.
8.3
The supplier must submit a verifiable invoice for each order, which must contain all required information required in accordance with German law. The invoice shall include the full purchase order number of ELP and, if any, the delivery note number(s) of the supplier. The invoice must be sent to the billing address of ELP specified in the order.
8.4
Payments made by ELP do not imply recognition of the supplies or services as being in conformity with the contract.
8.5
The offsetting or assertion of a right of retention by the supplier is excluded, unless the supplier reckons with an undisputed or legally established claim or makes a right of retention apply in this regard.

9. Investigation and reprimand
9.1.

ELP will immediately check the goods after receipt at the place of destination whether it corresponds to the quantity and the type ordered and whether there is externally recognizable transport damage or other externally recognizable defects. Insofar as a separate agreement has not been made for this purpose, the supplier undertakes to maintain a product liability insurance of at least EUR 1 million per personal injury/property damage – on a flat-rate basis. The amount of legal and contractual liability remains unaffected by the scope of the insurance cover.
9.2
If ELP finds a defect during the inbound goods inspection as per point 9.1 or at a later time, ELP will report it to the supplier.
9.3
The supplier waives the objection of late notification for all defects reported within ten (10) calendar days after delivery, externally recognizable defects and all other defects complained of within ten (10) calendar days after first discovery.

10. Claims
10.1

If a product is defective, ELP is entitled to the statutory rights in accordance with the following regulations.
10.2
ELP is entitled to choose the type of supplementary performance/remedy. The supplier may refuse the type of supplementary performance/remedy chosen by ELP, should it only be possible at disproportionate costs. In the event of subsequent performance/remedy, the supplier is obligated to bear all expenses necessary for the purpose of rectification of defects, in particular transport, travel, labour, material costs as well as import and expansion costs.
10.3
If the supplier fails to fulfil its obligation to provide subsequent performance/remedy within a reasonable period set by ELP, ELP may, at its option, withdraw from the contract in whole or in part in accordance with the statutory provisions, demand a reduction, at the expense of the Suppliers themselves rectify the defect or have it rectified by third parties and demand damages or compensation for futile expenses.
10.4
The rights referred to in clause 10.3 may be asserted without setting a time limit if ELP has a particular interest in immediate subsequent performance and an invitation to the supplier to remedy the defect within a reasonable period of time is not reasonable. This is particularly the case if ELP has to remedy the defect immediately in order to avoid its own delay in delivery, if there is a risk to operational safety or this is necessary to prevent exceptionally high damages. The statutory provisions on the dispensability of setting the deadline remain unaffected.
10.5
The limitation period for ELP's rights due to defects is thirty-six (36) months from the delivery of the goods at the place of destination or, if a delivery with installation or assembly is due, from the date of their acceptance, unless a longer legal period applies. Insofar as the supplier re-supplies a defect-free item (replacement delivery) within the scope of his supplementary performance obligation, the limitation period begins to run anew, unless the supplier has expressly and correctly reserved the right to make the replacement delivery only out of goodwill, for the avoidance of disputes or in the interest of the continuation of the delivery relationships.

11. Product liability and liability insurance
11.1
In the event that claims of product liability are made to ELP, the supplier is obliged to indemnify ELP from such claims in so far as the damage was caused by a fault of the goods supplied by the supplier. In cases of liability based on fault, however, this only applies if the supplier is at fault. If the cause of the damage is the responsibility of the supplier, he must prove that he is not at fault.
11.2
The supplier will provide the ELP with adequate support in the investigation and defense of claims of third parties upon request.
11.3
As part of his indemnification obligation under clause 11.1, the supplier is also obliged to bear all costs and expenses arising from or in connection with a damage prevention measure lawfully carried out by ELP (e.g. recall action). ELP will inform the supplier of the content and scope of such a measure in advance, as far as possible and reasonable, and will give it the opportunity to comment.
11.4
The supplier undertakes to provide adequate insurance cover with regards to product liability. On request, the supplier ELP must prove the insurance cover.
11.5
Unless a separate agreement has been made, the supplier undertakes to maintain a product liability insurance of at least EUR 1 million per personal injury/property damage – on a flat-rate basis. The amount of legal and contractual liability remains unaffected by the scope of the insurance cover.

12. General safety and protection regulation
If the supplier does not comply with the applicable statutory and contractual regulations during performance of the contract, within a reasonable amount of time, despite a written notice, ELP is entitled to terminate the contract due to important reasons without prior notice. Termination for important reasons may also take place if the supplier fails to comply with environmental regulations, health and safety regulations, ethical principles (see http://www.unglobalcompact.org) or provisions to combat corruption and money laundering and illegal employment (collectively, "security and protection rules") and there is a possibility that ELP may be significantly affected in its business. This is particularly the case when the public appearance of ELP if affected. The supplier accepts the requirements of the ELP's own "Code of Conduct for Suppliers" (see http://www.elpgmbh.de/ComplianceSupplier) in its current version and shall comply with them. It is the supplier's responsibility to check it regularly for changes. The supplier accepts that ELP is entitled to check and assess its compliance with safety and protection regulations based upon our corporate social responsibility. This assessment can be made by means of a questionnaire provided by ELP. If there is a reasonable suspicion that the supplier is in breach of safety and protection regulations, a third party commissioned by ELP and obliged to maintain confidentiality may carry out audits at the Supplier's premises during its normal business hours in order to verify the supplier's compliance with said regulations. ELP, as well as the third party commissioned by ELP for such an audit, will ensure that the audit is carried out in compliance with applicable data protection and other legal regulations in a manner that minimizes disturbance the supplier's business operations and ensures that there is no breach of supplier confidentiality agreements with third parties. If the inspection shows that the supplier is in breach of safety and protection regulations, he shall bear the costs of the audit. Otherwise, ELP will bear these costs. The supplier shall inform ELP without delay of the nature and extent of circumstances, which, in the context of the fulfilment of a purchase or supply contract concluded with us, may result in ELP being in the public interest, such as an accident during transport or in the handling of our products and waste.

13. Intellectual property rights and other intellectual property rights of third parties
13.1

The supplier must ensure that the delivered goods as well as the manufacturing process do not infringe any industrial property rights or other rights of third parties.
13.2
The supplier shall be liable for the expenses and damages incurred as a result of the infringement of industrial property rights or other rights of third parties (including legal costs), unless the supplier is not responsible for the infringement. To this extent, the supplier is obliged to release ELP from claims of third parties due to the violation of such rights.
13.3
The supplier is responsible for ensuring that no patents, licences or other copyrights and intellectual property rights of third parties are infringed domestically as well as abroad, in connection with the intended use of the delivered goods. The supplier shall release to ELP from any claims of third parties that exist or may arise. The limitation period for this is ten (10) years, calculated from the conclusion of the contract. The supplier assigns to ELP the exclusive, time-unlimited right to publish, distribute, duplicate, process and otherwise exploit all ideas, concepts and designs provided by the supplier and commissioned by ELP. Constructions created on behalf of ELP are the intellectual property of ELP. Design and manufacturing documents (construction drawings, schematics, source codes, etc.) of such contracted works are the property of ELP and are to be handed over to ELP as part of the delivery. The rights granted above cover all types of use, in particular print advertising and multimedia exploitation (e.g. website, social media, print-on-demand, e-book, online publishing). The transfer of rights of this provision expressly includes the right to transfer to third parties. The supplier undertakes to inform ELP directly about inventions that have been made. The supplier undertakes to take the necessary steps to transfer the rights to ELP. The acquisition of the aforementioned rights is compensated with the remuneration in accordance with the respective assignment.

14. Special rights of withdrawal and termination
ELP is entitled to withdraw from the contract in whole or in part or to terminate it for important reasons, if the supplier has ceased to make payments, has filed for insolvency proceedings, or the opening of such proceedings has been refused due to lack of mass or if a further deterioration in the supplier's financial situation is imminent and thereby the fulfilment of a delivery or performance obligation to ELP is endangered.

15. Material supplies
15.1

Material provided by ELP remains the property of ELP and must be stored by the supplier free of charge and with the care of a regular merchant, separately from his other inventory and property and must be marked as the property of ELP. Provided material may only be used as intended.
15.2
A processing or conversion of the supplied material by the supplier is always carried out free of charge for ELP. However, where the provided material is processed with other items not belonging to ELP, ELP acquires only co-ownership of the new item in proportion to the invoice value of the enacted material to the value of the other processed items. The supplier shall keep the new item, appropriately marked, free of charge for ELP with the care of a proper merchant.

16. Product/process changeover/execution documents
Suppliers with whom ELP has permanent business relations are obliged to inform ELP at an early stage if they intend to make product or process changes as well as changes to the analysis method in relation to products purchased from ELP. The supplier may not use, reproduce or make available to third parties, execution documents which have been provided to him by ELP for the production of the deliverables, for purposes other than those contracted with ELP. ELP maintains all the rights to do so. Upon request by ELP, the supplier must immediately return the documents provided to him or prove the timely destruction of these documents.

17. Secrecy
The supplier undertakes to maintain confidentiality for all information which is either marked as confidential or which can reasonably be assumed to be confidential and which is known to him through the contractual relationship with ELP, including illustrations, plans, drawings, source codes, calculations, instructions for execution, product-descriptions and other information relating to inventions, ideas, concepts, drafts and to keep designs (collectively"information") strictly secret and not to pass them on to third parties, even under a corresponding non-disclosure agreement with these third parties. The supplier shall ensure by means of appropriate contractual agreements that his employees and agents affected by the contractual relationship with ELP are also obliged to maintain confidentiality in accordance with the provisions of this No. 17. The supplier will also prove this in writing at the request of ELP. The supplier undertakes to use information only for the purposes of his respective contractual relationship with ELP, not to use it commercially and not to make it the object of industrial property rights. The foregoing obligations shall be waived for such information for which the supplier proves that it was lawfully known to him prior to receipt of ELP, which was accessible to the public prior to receipt of ELP, which was accessible to the public after ELP was received, without the supplier being responsible for it and for such information which the supplier may have received at any time from the supplier to the best of its knowledge. be made available to authorised third parties. Finally, the above obligations are also waived if the supplier is legally obliged to disclose information in judicial, administrative or other proceedings. References of the supplier in regard to existing business relations with ELP or the use of the name "ELP GmbH European Logistic Partners" for advertising purposes require an express, written consent by ELP. This obligation of confidentiality, with its restrictions, shall apply beyond the date of reciprocal fulfilment of the respective purchase or delivery contract concluded between us and a supplier for a further ten (10) years, provided that a further obligation of confidentiality does not result from statutory provisions. After termination of the contract, the supplier will destroy or delete all information stored on his computer systems and in his databases. In so far as the supplier has received documents from ELP, he will return them to ELP at our request or demonstrably destroy them. To the extent required by law, the supplier may retain a copy for documentation purposes.

18. Export control and customs
The supplier must comply with all the requirements of applicable national, European and international export and customs regulations. The supplier must inform ELP in writing in good time before delivery of the ordered goods of all details, documents and information that ELP needs to comply with the applicable export and customs regulations for export, import and re-export, in particular all applicable export list numbers (including Export Control Classification Number in accordance with the U.S. Commerce Control List (ECCN), the place/country of origin as per commercial policy and the statistical product number (HS code), EU customs tariff number and binding customs tariff number (vZTA) named by ELP).

19. Data storage
ELP is entitled to process and store supplier details received in connection with the business relations in conformance with the General Data Protection Regulations ("GDPR") and the German Federal Data Protection Act, insofar as this seems appropriate in the context of the implementation of the contract. The supplier undertakes to comply with the applicable provisions of data protection, in particular DSVGO. The supplier agrees that ELP also processes its personal data using "instant messaging" services such as "WhatsApp".

20. Force majeure
20.1.

In the event that one of the contracting parties is unable to fulfil its contractual obligations on the basis of acts, events or circumstances which, in a reasonable way of assessment are beyond its control (force majeure), this is free from its obligations to perform for the duration of the impediment. Force majeure is defined in particular war, terrorism, natural disasters, strikes or industrial action, general scarcity of raw materials and restrictions on energy consumption.
20.2
If one of the contracting parties is unable to fulfil its contractual obligations for more than six (6) months due to force majeure, the other party shall be entitled to withdraw from the contract. There are no claims for damages in this respect.

21. Minimum wage
The supplier undertakes to fulfil its obligations to pay the statutory minimum wage, taxes and social security contributions and to provide appropriate proof at the request of ELP. The supplier is only entitled to use a third-party entrepreneur (sub-contractor) to fulfil its contractual obligations after explicit written consent on the part of ELP. However, he remains responsible for the proper performance of the contractual performance towards ELP. In so far as the supplier, with the consent of the ELP, uses a third-party company, the supplier must comply with its legal obligations to pay the statutory minimum wage, taxes and social security contributions and fulfil the business conditions necessary for the performance of the activity. The supplier must inform the ELP in writing in advance of the assignment of the respective third-party company’s name, address and the responsible trade association (including membership number) in advance for the purpose of approving the use. In doing so, the supplier must inform ELP in writing of the nature and scope of the service to be provided by the third-party contractor before using the respective third-party company. ELP is entitled at any time to demand proof of the expertise, performance and reliability of the intended third-party entrepreneur.

22. Other
22.1

The supplier may not assign his claims against ELP to third parties without the written consent of ELP.
22.2
Should any provision of these General Terms and Conditions of Purchase and the further agreements made between ELP and the Supplier be or become ineffective or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision is replaced by another effective and enforceable provision which the contracting parties would have agreed with regard to the meaning and purpose of their contractual relationship if they had the ineffectiveness or the impracticability of the relevant provision and which corresponds to the intentions of the contracting parties with regard to the meaning and purpose of their contractual relationship. The same applies in the event of a contract gap.
22.3
Changes in contractual provisions between the parties as well as the waiver of rights under these provisions shall be in writing, unless a stricter formal requirement is in place. This also applies to a waiver of this written form clause.
22.4
The place of performance for the delivery and any subsequent performance is the destination specified in the order.
22.5
The law of the Federal Republic of Germany applies. The Vienna UN Convention on Contracts for the International Sale of Goods (CISG) does not apply.
22.6
The exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship is Wuppertal. Deviating mandatory legal responsibilities remain unaffected.

Issue: May 2020