General Terms & Conditions of Procurement of Steigenberger Hotels AG and its subsidiaries

Status: 09/2017

§1 General provisions and scope of application
1.1 Legal relationships between Steigenberger Hotels AG or its subsidiaries (hereinafter referred to as “STAG”) and its contractual partners (hereinafter referred to as the “Supplier”) are exclusively governed by the present General Terms and Conditions of Procurement in so far as the Supplier is a legal entity under public law or a special fund as defined by public law within the meaning of § 14 Paragraph 1 German Civil Code (BGB).

1.2 The present General Terms and Conditions of Procurement apply exclusively as amended at the time when an order is placed. Divergent, conflicting or supplementary General Terms and Conditions of the Supplier shall not be recognised unless the application of such divergent, conflicting or supplementary terms has been expressly agreed in writing.

1.3 Upon receipt of the present General Terms and Conditions of Procurement, the Supplier shall accept their application for all future contracts.

§2 Requirement for the written form
2.1 Orders and other declarations shall only be binding if given or confirmed in writing by STAG. Transmission of orders by STAG to the Supplier via e-mail shall be deemed sufficient insofar as nothing to the contrary has been expressly agreed.

2.2 Orders may be rescinded by STAG up until the time when written confirmation of order is received from the Supplier. Confirmation shall take place within two weeks of receipt of the order. STAG shall no longer be bound by the order in the event that no such confirmation is forthcoming.

§3 Terms and Conditions of Delivery
3.1 The contents, nature and scope of the delivery are governed by the order placed by STAG.

3.2 In the case of fresh produce and frozen foods, delivery shall take place in accordance with the following conditions.

- Fresh produce must be chilled to a temperature between 0° and 5° C.

- Frozen foods must be frozen to a core temperature of at least -18° C and must be maintained at this temperature.

- The temperatures stated above must be maintained throughout the entire transport process (uninterrupted cold chain).

3.3 STAG shall be entitled to refuse acceptance in the event of any ground for assuming that goods are not or have not been sufficiently and continuously chilled. Burden of proof for uninterrupted compliance with any minimum temperature up until acceptance of goods shall rest with the Supplier including in circumstances where goods have been accepted. The Supplier shall be liable for any consequences resulting from non-compliance with the cold chain.

3.4 All deliveries must be accompanied by two copies of a delivery note stating quantities, the delivery note number, place of performance, order number, date, article designation and article number. The relevant import documentation relating to the delivery shall be included with deliveries from abroad insofar as necessary.

3.5 STAG shall sign a written acknowledgement when goods are handed over. Responsibility for obtaining this so-called confirmation of receipt rests with the Supplier.

§4 Delivery and delay
4.1 Agreed delivery dates are binding, and adherence to such dates is essential. STAG shall be notified in writing as soon as it becomes apparent that a delay may ensue. Said notification shall include the reasons causing the delay or rendering a delay likely. Partial deliveries are only permissible with the consent of STAG.

4.2 The Supplier shall be required to act in a timely manner and in advance to ascertain the goods acceptance times of the receiving sites to which deliveries are to be made. Deliveries of goods outside these acceptance periods may be refused and shall not be deemed to be compliant in terms of meeting any deadline.

4.3 The Supplier shall bear the procurement risk for services rendered unless a custom-made item is involved. The rights of STAG – in particular with regard to withdrawal and compensation – shall be governed by the statutory stipulations in the event that the Supplier fails to fulfil performance, fails to fulfil performance within the agreed delivery time or is in default of delivery.

§5 Quality
5.1 The Supplier shall be required to provide merchantable goods which are in compliance with the relevant laws and regulations of the Federal Republic of Germany and of the European Union and which meet requirements of any kind set out in the product specification.

5.2 Goods delivered must be in accordance with agreements concluded with the Supplier and must correspond to the respective orders.

5.3 Compliance with all provisions under food law and hygiene law, with other legal provisions, with government authority requirements and with any other statutory stipulations that may apply is mandatorily incumbent on the Supplier. The above compliance requirement further encompasses the statutorily stipulated duty of declaration with regard to products which contain foreign substances, additives and colourants and in respect of allergens. Within this context, the Supplier shall also accord due consideration to the points set out below.

- The Supplier shall ensure that products delivered do not contain any objectionable components or components not typical of the product and that products delivered have not come into contact with any substances prohibited by law.

- The period of time between any best-before date that may have been stated by a sub-supplier and the day of delivery may not be shorter than the customary best-before date period for the product in question.

5.4 The Supplier shall act within the scope of its technical and economic capabilities to ensure that environmentally products and procedures are deployed across all process stages. The Supplier shall accept responsibility for the environmental compatibility of products and packaging materials delivered and for any consequential damages incurred as a result of a breach of the Supplier’s statutory duties of waste disposal.

5.5 Packaging and labelling of the products by the Supplier shall conform with the relevant statutory provisions as amended and with government authority requirements. The Supplier must provide all written instructions, information and warning notices together with the products in order to ensure safe usage and to safeguard adherence with any statutory or other duties that may be incumbent upon STAG.

5.6 Duty of the Supplier to take back packaging shall be governed by the statutory provisions. Goods shall be packaged in such a way so as to avoid damage during transport.

5.7 The Supplier shall ensure the transference to STAG of all benefits afforded by any warranties, guarantees and similar rights granted by third party manufacturers which may apply to products delivered.

§6 Prices and Terms and Conditions of Payment
6.1 The prices agreed in the respective order are fixed prices and are thus binding. Notwithstanding this, the Supplier shall be required to reduce the price insofar as the Supplier decreases list prices prior to or subsequent to receipt of order and before delivery to STAG takes place. Price increases shall require the express written consent of STAG. The same applies in respect of additional charges made by the Supplier.

6.2 All agreed prices are net of Value Added Tax at the respective statutory rate. Prices are inclusive of all services and ancillary services such as packaging, transport, incidental customs charges, return and disposal of outer packaging insofar as nothing to the contrary has been expressly agreed.

6.3 The agreed prices shall fall due for payment within 45 calendar days of provision of full delivery and performance and receipt of a proper and correct invoice. The Supplier shall grant STAG a 3% cash discount if STAG makes payment within 14 calendar days. STAG shall be granted a 2% cash discount for payment within 30 calendar days.

§7 Invoice and assignment of claims
7.1 Invoices shall contain the information provided on the relevant delivery notes and shall be drawn up after dispatch of goods.

7.2 Statutory Value Added Tax shall be shown separately on the invoices.

7.3 Payment is made under the proviso of delivery in accordance with the contractual terms and is subject to factual and arithmetical correctness of the invoice. In the event of discovery of a defect that is subject to a duty of guarantee or warranty, STAG shall be entitled to reserve payment until such time as said duty of guarantee or warranty is fulfilled.

7.4 The Supplier is not permitted to assign contractual claims to third parties either in whole or in part without the written consent of STAG.

§8 Defects
8.1 The statutory provisions shall apply in the event of quality or legal defects in respect of goods and in the case of other breaches of contract by the Supplier insofar as nothing to the contrary is stipulated below.

8.2 STAG is required to inspect products and provide notice of any defects within two weeks of delivery of the goods to the respective receiving site. Refusal of acceptance because of obvious defects which are clearly discernible when delivery takes place, such as non-compliance with transport regulations or with other hygiene or shelf life requirements, shall also be deemed to constitute provision of notice of defect.

8.3 In the event that a defect is ascertained in an individual product forming part of an overall delivery and if said defect restricts or prevents the marketability of products under food law, STAG shall be required to conduct appropriate sample tests in order to investigate whether such a circumstance is an individual case or whether there are indications of production or treatment errors that may affect the whole of the delivery. The whole of the delivery shall be considered to be defective in the event that such indications of production or treatment errors are discovered. Restrictions to and exclusions of liability on the part of the Supplier shall not apply.

8.4 STAG shall have a full right to assert statutory claims in the event that the Supplier is in default of delivery or if goods delivered do not comply with the provisions of the present Agreement in terms of quality, quantity or properties. STAG shall additionally be entitled to impose a contractual penalty in the amount of 1% per day of the net price of the delivery or service which is in default. Notwithstanding this, such a contractual penalty may not exceed 5% of the total value of the order. STAG shall in particular be entitled to act at its discretion in choosing rectification of defects or a new delivery. Following the expiry of an appropriate subsequent deadline to no avail, STAG shall further be entitled to require compensation instead of performance. In the event of a new delivery, the Supplier shall be required to deliver the same quantity of products in an acceptable quality and at the same price after reaching prior agreement with STAG. This shall also apply in circumstances where a price increase has occurred in the interim and in the event that the replacement delivery can only be procured for a higher price.

8.5 The Supplier shall bear any costs incurred for the purpose of inspection and subsequent performance, even in circumstances where it emerges that no defect was actually present. The above is without prejudice to STAG’s requirement to provide compensation in the event of unjustified requests to rectify defects. Notwithstanding this, liability in such a case shall only exist if STAG has recognised that no defect was present or has acted in a grossly negligent manner in failing to recognise that no defect was present.

8.6 In the event that the Supplier fails to act within an appropriate deadline set by STAG in fulfilling a duty of subsequent performance, either by rectification of defects or by delivery of a product which is free from defects, STAG shall be entitled to remedy the defect itself and require the Supplier to reimburse the necessary expenditure incurred in this regard or else to effect replacement procurement and require the Supplier to pay for the additional expense involved. No deadline shall need to be set if subsequent performance by the Supplier has failed or if said subsequent performance is unreasonable for STAG. The Supplier shall be notified without delay in such a case.

§9 Transfer of risk and ownership
9.1 Material and price risk shall be transferred to STAG following proper delivery of goods to the receiving site stated by STAG and after acceptance of goods by said receiving site.

9.2 Goods ordered directly become the property of STAG upon acceptance.

§10 Guarantee
STAG has entitlement to the statutory guarantee claims, whereby the following measures shall apply.

The guarantee period commences at the time when transfer of risk takes place. In the event that deliveries made by the Supplier constitute onward deliveries of STAG to third parties, then the guarantee period shall commence at the time when STAG executes delivery to such a third party.

§11 Indemnification, liability, insurance
11.1 The Supplier shall be responsible for ensuring that deliveries and services do not impair or infringe industrial property rights of third parties, such as copyright, patents, trademarks or other proprietary rights. The Supplier shall act in a timely manner to obtain or update all necessary licences and permits for this purpose and shall bear the costs of so doing. The Supplier shall be further required to adhere to safety regulations as amended and to comply with relevant accident prevention, environmental protection and health and safety at work regulations in respect of deliveries and services rendered. The order shall be deemed not to have been properly fulfilled in the event of failure to observe these regulations. In such a circumstance, the Supplier shall fully indemnify STAG against any claims that may be asserted by third parties with regard to rights of this kind.

11.2 STAG shall be entitled to withdraw from an individual agreement in the event that the Supplier is in breach of the duties stated in Clause 11.1 above. In the case of an agreement which has been concluded for a fixed or indefinite term and which includes stipulated quantities and/or prices,  repeated infringements of said above duties shall entitle STAG to give extraordinary notification of termination for cause without requirement to give notice. STAG shall further be entitled to assert claims for compensation.

11.3. Insofar as the Supplier is responsible for a product defect, the Supplier shall indemnify STAG in respect of claims asserted by third parties to the extent that the cause of the product defect is attributable to the management or organisational division of the Supplier and the Supplier is thus directly liable in relations to third parties.

11.4 Within the scope of such a duty to indemnify, the Supplier shall be required to reimburse expenditure incurred by STAG as a result of or in connection with assertion of claims by third parties including with regard to any product recall actions that may have been instigated by STAG. Insofar as possible and reasonable, STAG will notify the Supplier of the content and scope of the recall to be carried out and will afford the Supplier an opportunity to respond. The above is without prejudice to further statutory claims.

11.5 In the event that a claim is asserted against STAG by a third party in connection with guarantees offered or advertising statements made by the Supplier, the Supplier shall be obliged to indemnify STAG against both alleged and existing claims. The above duty to indemnify relates to all expenses and costs incurred by STAG from or in connection with the claim asserted by the third party. This also includes the costs of legal defence and of pursuing legal action.

11.6 The above is without prejudice to liability of the Supplier pursuant to the statutory stipulations.

11.7 The Supplier is required to take out insurance against all risks in connection with execution of the Supplier’s business, including product liability and possible recall actions. Coverage sum shall be €10,000,000 in respect of each claim for damage to persons/property.

§12 Confidentiality
12.1 The Supplier shall be required to maintain strict confidentiality with regard to all information provided (whether in written, oral or any other form). Said duty of strict confidentiality extends to encompass all illustrations, diagrams, drawings, calculations and other documentation received and shall further apply in circumstances where information is not specifically designated as being confidential. The Supplier shall be liable for all damages incurred by STAG as a result of breach of this duty.

12.2 Such information and data may only be disclosed to third parties with the express written consent of STAG. The use of business relations with STAG as a means of advertising shall also require prior written approval.

12.3 Documents and other paperwork made available to the Supplier shall remain in the ownership of STAG and shall be returned no later than the time at which the relevant agreement ends.

12.4 Both contractual parties shall commit to maintaining confidentiality in respect of all orders placed by STAG and all agreements concluded. Both parties particularly agree that, without the express consent of the respective other contractual party, no third parties shall be afforded knowledge of the scope and/or type of goods delivered and services rendered, of the composition of such goods and services and of the use to which such goods and services are put. Said duty applies in the same way to vicarious agents, The above does not apply to enquiries made by government bodies or courts in cases under product safety or product liability law.

12.5 Duty to maintain confidentiality shall continue to apply after fulfilment of the agreement.

§13 Place of fulfilment and place of jurisdiction
13.1 Place of fulfilment for all deliveries and services is the receiving site designated by STAG. Place of fulfilment for payments is the location of the Registered Office of STAG.

13.2 Place of jurisdiction is the location of the Registered Office of STAG. Notwithstanding the above, STAG shall be entitled to choose to assert a claim against the Supplier at a court located at the Supplier’s place of residence.

§14 Severability clause
In the event that any provisions, terms or partial terms contained within the present General Terms and Conditions of Procurement shall be or shall become invalid, this shall be without prejudice to the overall validity of said General Terms and Conditions of Procurement and to the validity of the agreement as a whole.  An invalid provision shall be replaced by a valid provision that as most closely as possible reflects the economic objective pursued whilst according due consideration to lawfulness.

§15 Other provisions
15.1 The Supplier shall commit to compliance with statutory stipulations relating to the combating of corruption. The Supplier provides a particular assurance that no impermissible benefits will be offered, promised or granted to employees of STAG or to affiliated persons. The same prohibition applies to employees and vicarious agents of the Supplier and to third parties acting upon the instructions of the Supplier.

15.2 Suppliers and service providers to STAG shall comply with all laws which are applicable to their companies. Suppliers and service providers to STAG support the basic principles of the “Global Compact” of the United Nations, the basic principles of the Universal Declaration of Human Rights of the United Nations and the basic principles of the “Declaration on Fundamental Principles and Rights” of the International Labour Organization and act in accordance with national laws and customs. The above particularly applies to the aspects of “child labour”, “forced labour”, “remuneration and working times” and ”discrimination”.

15.3 The contractual relationship between the Supplier and STAG and any resultant claims are solely governed by German law. Application of the UN Convention on Contracts for the International Sale of Goods is excluded.

15.4 In the event that both contractual parties agree that one or more provisions of the present General Terms and Conditions of Procurement should be replaced by individual arrangements, this shall be without prejudice to the continuing validity of the remaining provisions herein contained.

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