Standard Terms and Conditions of Purchase
Ornua Deutschland GmbH
Last update: July 2021
I. Common Provisions
Sec. 1 Scope
- These Standard Terms and Conditions of Purchase (“Terms of Purchase”) apply to all business relationships with business partners and suppliers (“Suppliers”) of Ornua. This includes contracts of sale (Kaufvertrag, Sec. 433 of the German Civil Code (Bürgerliches Gesetzbuch, BGB)), contracts for works and materials (Werklieferungsvertrag, Sec. 650 BGB), contracts for the performance of work (Werkvertrag, Sec. 631 BGB) and contracts for the performance of services (Dienstvertrag, Sec. 611), without requiring a reference to the Terms of Purchase by Ornua in each individual case.
- The Terms of Purchase apply on an exclusive basis. Any conflicting, deviating or supplemental terms of business of the Supplier shall govern each Contract (defined below) only if and to the extent that Ornua expressly consents to their application in text form. Consent in text form is required without any exception, including in cases where Ornua accepts the delivery of goods or performance of services by the Supplier without reservation and with knowledge of the terms of business of the Supplier.
- The Terms of Purchase only apply if the Supplier is a business, a natural person that is not a consumer, corporate or unincorporated body (Sec. 14 BGB), a legal person under public law or a fund under public law.
- Individual agreements (subsidiary agreements, amendments and/or modifications) with the Supplier shall have priority over provisions of the Terms of Purchase. For such agreements, the text form is the deciding form.
- Any references to the applicability of statutory provisions are for clarification purposes only. The statutory provisions thus also apply without such clarification insofar as they are not directly changed or expressly excluded in these Terms.
Sec. 2 Offer and Acceptance
- Purchase orders (“POs”) placed by Ornua are non-binding (freibleibend).
- The Supplier shall notify Ornua of obvious errors and incomplete information in the PO before accepting the PO to allow for correction and/or completion.
- The Supplier shall have a period of 14 calendar days from the order date to accept the PO unless a different period is stated on the PO (“Acceptance Period”). The PO and the Supplier’s acceptance constitute the “Contract” and these Terms of Purchase shall apply to the Contract. The PO shall be deemed to be accepted by the Supplier on the earlier of (a) the Supplier issuing acceptance to Ornua in text form without reservation or (b) Ornua’s receipt of the goods and/or provision of the services without reservation.
- If no acceptance is deemed to have taken place pursuant to Sec. I.2 subsection 3 within the Acceptance Period, the Supplier’s declaration, delivery or performance shall be considered a new offer subject to acceptance by Ornua.
Sec. 3 Prices, Terms of Payment, Invoice Details
- The agreed prices are fixed prices including all related additional expenses (e.g. costs of packaging, freight costs including possible transport and liability insurance as well as travel costs) and statutory VAT, if applicable. The Supplier shall pay any applicable public charges and taxes.
- Invoicing must be in Euros unless another currency is specified in the PO.
- The agreed price is due for payment within 30 calendar days of full performance (and acceptance, if required) and receipt of an accurately issued invoice which meets the requirements of Sec. I.3, subsection 7 of the Terms of Purchase. If Ornua effects payment within 8 calendar days from receipt of the aforementioned invoice, the Supplier shall grant a 3% discount on the net amount. For payments within 14 calendar days, the Supplier shall grant a 2% discount on the net amount.
- Ornua is entitled to withhold payments that are due, as long as and to the extent that Ornua has any claims against the Supplier arising from incomplete or defective performance.
- Ornua may set-off claims and exercise retention rights at its discretion. The Supplier’s right to set-off claims and exercise retention rights is limited to legally established or uncontested counterclaims.
- If Ornua defaults on payment (Verzug), Ornua shall owe default interest of 9 percentage points above the base interest rate according to Sec. 247 BGB. The beginning of the default shall be determined according to statutory law, subject to the Supplier issuing a written notification of the default.
- The invoice shall include the name of the responsible individual and show the PO number, a subtotal per order/project, the approved timesheets and the period of time which is invoiced, if applicable. The Supplier shall ensure that all formal invoice layout requirements requested from the fiscal authorities appear on the invoice.
Sec. 4 Delivery Date, Default in Delivery
- The delivery date indicated in the PO is binding (“Delivery Date”).
- Goods to be supplied shall be handed over to Ornua, a person designated by Ornua or, after prior consent by Ornua, to an agreed forwarding agent, within the Delivery Date.
- If the Supplier is unable to meet the Delivery Date, the Supplier shall notify Ornua in writing immediately once the delay becomes evident, indicating the reasons and duration of the estimated delay. This does not affect the Supplier’s obligation to deliver at the Delivery Date.
- If the Supplier fails to observe the Delivery Date, Ornua shall set a reasonable grace period unless the Supplier disputes its obligation to deliver or if setting a grace period would justify an immediate withdrawal from the Contract.
- If the Supplier fails to fulfil the Contract or does not provide the applicable goods or services within the agreed Delivery Date according to Sec. I.4, subsection 3 or later Delivery Date according to Sec. I.4, subsection 4 of the Terms of Purchase, the applicable statutory provisions shall apply. In case of delayed delivery for which the Supplier is responsible (Vertretenmüssen), notwithstanding any further rights or damage claims that Ornua may have, Ornua shall be entitled to claim liquidated damages from Supplier in the amount of 0.5% of the net price of the delayed goods or services for each completed calendar week, with a maximum of 5% of the net price of the delayed goods or services. The Supplier has the right to dispute such amounts if it can demonstrate that Ornua incurred no damages or that they were lower than set out above.
- If Ornua and the Supplier have agreed that the delivery must take place at a certain date after which Ornua has no interest in the delivery anymore (Sec. 323 para. 2 no. 2 BGB), Ornua reserves the right to withdraw from the Contract without setting a grace period and, to claim liquidated damages as set out in Sec. I.4, subsection 5.
Sec. 5 Delivery and Passing of Risk
- Ornua is not obliged to accept partial deliveries unless agreed in advance. Where partial deliveries are agreed on, Ornua can determine their chronological order. The acceptance of a partial delivery shall not constitute an acknowledgement of the conformity of the entire delivery with the Contract.
- Ornua is entitled to reject excess and short deliveries outside the customary limits in the industry. Deliveries which deviate from the order volume by more than 5% must be approved beforehand by Ornua in writing in any case.
- Ornua is not obliged to accept early delivery and Ornua reserves the right to charge storage costs related to early delivery to the Supplier’s account until the actual delivery date. This shall not affect the time and consequences of the passing of risk.
- The goods shall be delivered DDP (Incoterms® 2020) to the place indicated in the PO or to the place of business of Ornua (i.e. Kerrygoldstraße 1, 47506 Neukirchen-Vluyn, Germany) (“Place of Destination”) during its regular business hours, provided that the Supplier shall also bear the costs and the risk of unloading. The Place of Destination shall be the place of performance (Erfüllungsort).
- The goods to be supplied shall be packaged in accordance with customary commercial practices, or, where requested by Ornua, be in Ornua’s packaging or other particular packaging materials. Each piece of external packaging shall be marked and labelled with details on the item, quantities and sizes.
- Risk passes at the moment the goods are handed over or service performance is completed at the Place of Destination, unless acknowledgement (Abnahme) was agreed on or is required by statutory law, in which case that shall be the decisive moment for the passing of the risk.
Sec. 6 Retention of Title
Retention of title by the Supplier shall be valid only to the extent that it relates to the payment obligation of Ornua for the goods concerned. Any other forms of retention of title are excluded, in particular an extended retention of title, transferred retention of title and retention of title extended to further processing.
Sec. 7 Quality Standards
- The quality of the Supplier’s goods and services shall of the highest quality and correspond with the written specifications in the event Ornua provides specifications to the Supplier or, where applicable, with the specifications agreed in textform between the parties (“Specifications”). If the Supplier manufactures goods or provides services on the basis of submitted samples, the Supplier warrants that the goods and services correspond with the relevant samples submitted and accepted by Ornua.
- The Supplier shall notify Ornua of possible improvements and technical modifications. Changes to the goods and services, also including the use of other upstream goods and services, are admissible only after the express prior approval of Ornua in writing.
- The Supplier shall perform state of the art quality control on its goods and services of appropriate type and scope.
Sec. 8 Warranty Claims
- The Supplier warrants to Ornua that the goods and services shall conform with the respective subjective and objective requirements and, if applicable, potential requirements for installation. Representations made about the product quality are deemed to be binding. The acceptance or approval of submitted prototypes or samples does not represent a waiver of warranty claims.
- Ornua’s inspection and notification obligations (Untersuchungs- und Rügepflichten) according to Sec. 377 and 381 of the German Commercial Code (Handelsgesetzbuch, HGB) are considered to be fulfilled in due time if the Supplier was notified of obvious defects within 5 calendar days from receipt of the goods or 5 calendar days from identification of any non-obvious (latent) defects.
- Delivery of a defective product entitles Ornua to subsequent performance (Nacherfüllung) by the Supplier at Ornua’s option either by repair (Nachbesserung) or replacement with non-defective goods (Nachlieferung). If the Supplier fails to meet this obligation within a reasonable period set by Ornua twice or if setting a period is unreasonable, Ornua may reduce the purchase price, rescind the Contract and/or claim damages according to the applicable statutory provisions.
- The warranty period is 3 years from the transfer of risk in the goods unless the product is perishable and has a shorter shelf life.
- The provisions of Sec. 478 BGB regarding the recourse Ornua may have towards the Supplier (Rückgriff des Unternehmers) remain unaffected.
Sec. 9 Liability and Insurance
- The Supplier is liable according to statutory law.
- Ornua’s liability is limited as set out below:
- Ornua is fully liable for loss or damage due to wilful intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit).
- If Ornua breaches in a slightly negligent manner (leichte Fahrlässigkeit) a contractual obligation that is essential for the purpose of the transaction and where the Supplier generally trusts that these obligations are fulfilled (Kardinalpflichten), Ornua is only liable for foreseeable damages that are typical for this kind of transaction. For other damages caused as a result of slight negligence (leichte Fahrlässigkeit), Ornua’s liability is excluded.
- The aforementioned exclusions and limitations do not apply in case of fraud or fraudulent misrepresentations of a defect, for the promise of a guarantee, for claims based on product liability law and in the event of death, personal injury or illness.
- Insofar as Ornua’s liability is excluded or limited, this also applies to the personal liability of its employees, representatives and agents.
- Unless not possible due to the nature of the goods and services to be provided, the Supplier is required to take out and maintain insurance policies, with a reputable insurance company, for product liability, commercial general liability (including employer’s liability) and professional liability with an appropriate minimum coverage. The Supplier shall provide Ornua with copies of the relevant insurance documentation upon Ornua’s request.
Sec. 10 Penalty for Violation of Provisions
For each individual case of a breach of the provisions of these Terms of Purchase, the Contract or the PO that the Supplier is responsible for (Vertretenmüssen), the Supplier shall pay Ornua a contractual penalty to be determined by Ornua at its reasonable discretion in accordance with Sec. 315 BGB and, in the event of a dispute, shall be determined by the competent court.
Sec. 11 Termination (Kündigung)
This paragraph applies to contracts for the ongoing or recurring supply of goods and services only:
- Where the term of the Contract is unlimited in time, either party may terminate the Contract by giving 3 months’ notice in writing to the other party.
- Where the Contract has a specified (fixed) term, the Contract may not be terminated earlier than the end of such specified term and the Contract shall automatically extend for a further year if no notice to terminate is given by either party in writing 3 months prior to the end of the initial term or each such applicable extended term.
- Notwithstanding paragraphs 1 and 2, the parties’ right to terminate the Contract for cause remains unaffected (Außerordentliche Kündigung).
Sec. 12 Audit Rights
- During regular business hours, the Supplier shall permit Ornua or, at Ornua’s discretion, professionally qualified independent auditors, access to its premises and to any of its personnel, systems and relevant records as may be reasonably required in order to verify that the Supplier complies with this Contract and all applicable laws and that the goods and services are provided in accordance with this Contract. The Supplier may refuse access to any information that is a trade secret.
- The Supplier will provide Ornua and its auditors, as applicable, with all reasonable co operation, access and assistance in relation to each audit.
Sec. 13 Intellectual Property Rights, Documents and Tooling
- In respect of the goods and any other works created by the Supplier or provision of services in furtherance of the Contract, the Supplier warrants and represents that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to Ornua, it will have full and unrestricted rights to sell and transfer all such items to Ornua.
- The Supplier warrants and represents that neither the goods nor any other works or services, nor Ornua’s use thereof for the purpose intended, will infringe any intellectual property rights.
- Ornua reserves the right to reject goods or services if they do not comply with Sec. I.13, subsections 1 and 2.
- Without prejudice to the accrued rights of Ornua, the Supplier shall use its reasonable endeavours to remedy any violation of intellectual property rights at the earliest possible moment either by securing, at its own expense, the right for Ornua to continue use or operation of the goods or services by procuring a licence in respect of the right infringed, or by modifying or replacing at its own expense such part or parts of the goods or services as is necessary to render them non-infringing and without any change in quality or performance.
- Where such goods or services are bespoke products designed, made or performed specially for Ornua, all intellectual property rights therein shall pass to Ornua upon the delivery of goods or performance of the services or upon termination of the Contract, including the right on the part of Ornua to protect the same by any intellectual property right, and the Supplier warrants and represents that it has full right and power to grant or assign all such rights to Ornua without limitation as to the manner of use thereof. In the event that all intellectual property rights cannot be transferred to Ornua, the Supplier grants Ornua or shall procure an exclusive, transferrable, sublicenseable, royalty-free right of use and exploitation unlimited in time, place and content.
- Where such goods are not bespoke products, the Supplier grants to Ornua, or shall procure a non-exclusive, transferrable, sublicenseable, royalty-free right of use and exploitation unlimited in time and place to sell or use the goods in its business and/or to use any other works or services for the purpose of the Contract.
- The Supplier shall, promptly at Ornua’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as Ornua may from time to time require for the purpose of securing for Ornua the full benefit of the Contract, including any right, title and interest in and to the intellectual property rights assigned or licensed to Ornua.
- All Ornua materials that may have been provided to the Supplier shall remain the exclusive property of Ornua. Ornua grants the Supplier a non-exclusive, royalty-free, non-transferable licence to use any Ornua materials provided to the Supplier for the term of the Contract for the purpose of providing the goods and/or services to Ornua. Any such Ornua materials shall not be made available to third parties. If the Supplier no longer needs the materials for the purpose of the fulfilment of the Contract, the Supplier shall return the materials to Ornua immediately or, in any case at the latest upon termination of the Contract or contract negotiations.
Sec. 14 Personnel and Subcontractors
- The Supplier may not subcontract its obligations under the Contract without the prior written consent of Ornua, Ornua may withhold its consent for good reason.
- If personnel or subcontractors are deployed by the Supplier, they shall be under the direction and control of the Supplier at all times and shall not be subject to Ornua’s direct authority. This shall, in particular, apply to the extent that individuals deployed by the Supplier provide any services on the premises of Ornua and/or any of its affiliates. Notwithstanding the aforementioned, the personnel or subcontractors shall work and co-operate with personnel from Ornua.
- The Supplier acts as, and assumes the responsibility of an employer in relation to its personnel for all purposes including, but not limited to, the payment of wages, (such wages must be sufficient to at least comply with the Minimum Wage Act (Mindestlohngesetz, MiLoG), deduction and payment of all statutory contributions in respect of earnings, related insurance and the administration of income tax.
Sec. 15 Confidentiality
- The Supplier shall keep the terms of the Contract as well as all information and content of documents regarding Ornua’s trade, products and business secrets confidential (“Confidential Information”) during the term of and for a period of 5 years after termination of the business relationship.
- Only with Ornua Deutschland’s express written approval may the Supplier disclose Confidential Information to third parties, except for (a) its employees and professional advisors who need to know the Confidential Information for the purpose of the Contract and who are subject to statutory professional confidentiality and (b) public authorities within the scope of statutory disclosure obligations. The Supplier shall be entitled to disclose Confidential Information to authorized subcontractors provided it binds such subcontractors to the same level of confidentiality as set out in this Sec. I.15, subsection 1.
- The confidentiality obligations as set out in Sec. I.15, subsections 1 and 2 do not apply to information that is or becomes generally known or available to the public through no fault of the Supplier, was in the Supplier’s possession before receipt from Ornua, is lawfully obtained from a third party who has the right to make such disclosure; or has been independently developed without reference to any of Ornua’s Confidential Information.
Sec. 16 Assignment
- The Supplier is not entitled to assign its claims arising from the contractual relationship to any third party. This does not apply if monetary claims are concerned.
- Ornua is entitled to assign individual rights under the Contract or to assign or transfer the entire Contract to third parties and shall inform the Supplier thereof in textform.
Sec. 17 Data Privacy Protection
Pursuant to Art. 13, and/or Art. 14 of the General Data Protection Regulation (GDPR), Ornua informs the Supplier that it is handling the Supplier’s personal data (contact data etc.) which Ornua receives within the framework of the business relationship. The controller is Ornua Deutschland GmbH, firstname.lastname@example.org. The legal basis for the processing of this personal data is specified in Art. 6(1) para. 1 lit. b) and lit. f) GDPR. The purpose of the data processing and Ornua’s legitimate interest is the performance of the business relationship between Ornua and the Supplier. The Supplier’s data will be kept for the duration of this business relationship (including electronically in Ornua’s systems) and will subsequently be erased, subject, however, to any applicable statutory retention periods and unless Ornua requires the data for asserting, exercising or protecting Ornua against any legal claims. If the Supplier consented to any other type of use, Ornua will delete the data as soon as the Supplier revokes its consent. Only Ornua’s employees and service providers have access to the data, provided that they require the data for the fulfilment of their agreed responsibilities. The data may be transmitted to public bodies on the basis of applicable statutory provisions (e.g. investigative authorities). If certain prerequisites pursuant to Art. 15 to Art. 18 GDPR are fulfilled, the Supplier has an access right, a right for correction or deletion of the Supplier’s personal data and a right for limitation of Ornua’s processing of the Supplier’s data. Furthermore, the Supplier can object to the further processing of the Supplier’s personal data pursuant to Art. 21 para. (1) GDPR. Pursuant to Art. 77 para. (1) GDPR, the Supplier also has the right to file a complaint with a supervisory authority if the Supplier are of the opinion that the processing of the Supplier’s personal data infringes the GDPR. For further information regarding the processing of the Supplier’s data, please refer to the „data protection“ section under www.kerrygold.de.
Sec. 18 Compliance with laws and policies including re modern slavery and anti-bribery
- The Supplier shall comply with Ornua’s codes of practice, standard operating procedures and other policies for suppliers (“Mandatory Policies”) and all applicable laws in carrying out its obligations under the Contract. This applies in particular to Ornua’s Business Partner Code of Conduct available on request or at Ornua-Business-Partner-Code-of-Conduct-v.23.04.2021.pdf . An infringement thereof shall be reason for a withdrawal or for termination for cause, as applicable. In addition, the Supplier shall be liable for any damages caused to Ornua due to the infringement committed with at least slight negligence.
- The Supplier represents, warrants and undertakes to Ornua that:
(a) it follows fair employment practices and its employees, personnel and other workers have safe working conditions and are paid at least the higher of the applicable legal minimum wage or a living wage; and
(b) neither it nor any other person in its supply chain uses trafficked, bonded, child or forced labour or has attempted to use trafficked, bonded, child or forced labour.
- The Supplier agrees with Ornua that it shall, and that it shall ensure that its personnel and any other person who performs activities for it within its supply chain in relation to the Contract shall:
(a) comply with all applicable laws, statutes, regulations and codes relating to employment, labour, anti-slavery and anti-human trafficking;
(b) not take or knowingly permit any action to be taken that would or might cause or lead Ornua to be in violation of any anti-slavery requirements; and
(c) at Ornua’s request and cost, provide Ornua with any reasonable assistance to enable it to perform any activity required by any regulatory body for the purpose of complying with anti-slavery requirements.
- The Supplier shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption. The Supplier shall:
(a) have and shall maintain in place throughout the term of the Contract its own policies and procedures to ensure compliance with anti-bribery and anti-corruption requirements and Ornua’s Mandatory Policies and shall enforce them where appropriate;
(b) promptly report to Ornua any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of the Contract subject to the limitation set out for audits; and
(c) immediately notify Ornua in writing if a foreign public official becomes an officer or employee of it and warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of the Contract.
Sec. 19 Final Provisions
- The laws of the Federal Republic of Germany shall apply to these Terms or Purchase, the Contract and the entire business relationship (contractual and non-contractual) between Ornua and the Supplier. The United Nation Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
- The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Moers, Germany.
- In case of conflict between the German and the English language version of these Terms of Purchase, the German language version shall take precedence and be the binding version.
II. Specific provisions for contracts for works and materials (Sec. 650 BGB) and contracts for the performance of work (Sec. 631 BGB)
Sec. 1 Scope
If the Supplier’s obligation is to manufacture a good or perform, install, repair or carry out other works (“Work”), the following provisions apply in addition to Sec. I of the Terms of Purchase.
Sec. 2 Terms of Payment
In addition to the requirements set out in Sec. I.3, subsection 3, payment shall not become due prior to the declaration of an acknowledgement, unless Ornua did not reject the declaration of acknowledgement within the reasonable deadline set by the Supplier based on a defect.
Sec. 3 Acknowledgement (Abnahme)
- The Supplier shall notify Ornua of the completion of the Work and deliver all associated documents.
- Ornua shall declare the acknowledgement of the work or its refusal within 15 calendar days after receiving notice of completion of the work.
- In case the acknowledgement requires the start-up of the Work for testing purposes, acknowledgement will only be declared upon successful completion of the test.
- The Supplier shall draft an acknowledgement protocol to be signed by Ornua.
- The mere use of the Work by Ornua or any third party shall not replace the formal acknowledgement declaration as required by Sec. II.3, subsection 4.
Sec. 4 Delivery, Passing of Risk, Reservation of Title
Sec. I.5, subsections 1, 2, 6 and Sec. I.6 do not apply to contracts for the performance of work (Sec. 631 BGB).
Sec. 5 Warranty, Statute of Limitation
- Sec. I.8, subsection 2, 3 und 5 do not apply to contracts for the performance of work (Sec. 631 BGB).
- In case of the delivery of a defective Work, Ornua is entitled to subsequent performance (Nacherfüllung) at Ornua’s option either by repair of the defect (Nachbesserung) or by delivery of an object which is free from defects (Nachlieferung). If the Supplier fails to meet this obligation within a reasonable period set by Ornua twice or if setting a period is unreasonable, Ornua may rectify the situation on its own (Selbstvornahme), and demand reimbursement, reduce the purchase price, rescind from the Contract and/or claim damages according to the applicable statutory provisions.
- Changes of either nature or composition of the materials or the construction, in comparison to similar prior works of the Supplier, require prior notice to and written consent of Ornua.
- In addition, warranty claims shall be governed by the applicable statutory provisions.
Sec. 6 Termination
Ornua may terminate the Contract at any time up to completion of the Work. If Ornua terminates the Contract, the Supplier is entitled to request reimbursement for the costs it incurred in the fulfilment of the Contract as well as the amount of profit not made that would be allocated to the already performed portion of the Work.
III. Specific provisions for service contracts (Sec. 611)
If the Supplier’s obligation under the Contract is to perform services, Sec. I.4, subsection 2, Sec. I.5, subsections 1, 2, 4, 6, Sec. I.6 and Sec. I.8 and Section II do not apply.