General Terms and Conditions of Purchase of MILEI GmbH and MILEI Protein GmbH & Co. KG

updated 10-2019


1.            Scope of Application of these Purchase Terms

The following General Terms and Conditions of Purchase (“Purchase Terms”) shall exclusively govern the entire legal relationship of MILEI GmbH and/or MILEI Protein GmbH & Co. KG (“MILEI”) and Supplier. Supplier accepts these Purchase Terms as binding upon acceptance of MILEI’s purchase order or, at the latest, upon delivery of the goods ordered. The applicability of Supplier’s conflicting, deviating or supplementary terms and conditions shall be excluded, even if MILEI does not expressly object to them or if Supplier indicates that he is only willing to deliver in accordance with his own terms and conditions. These Purchase Terms shall also apply to all future transactions with Supplier.

2.            Conclusion of Contract

2.1          MILEI’s purchase orders are only binding if made in writing. Oral purchase orders or orders placed by telephone are not binding and require a written confirmation in order to become binding. Amendments to and changes of the purchase orders or any supplements hereto shall only be binding if made in writing.

2.2          Supplier is obliged to declare in writing within 10 calendar days from receipt of the purchase order whether he accepts purchase orders placed by MILEI. An order confirmation that deviates from the purchase order constitutes a counter-proposal and shall be binding only if accepted by MILEI in writing. Under no circumstances shall silence on the part of MILEI be deemed as acceptance of an order confirmation that deviates from the original purchase order.

3.            Safety and Quality, Scope of Delivery / Service / Execution

3.1          Supplier’s deliveries and services must comply with the quality standards laid down in the relevant applicable statutory provisions (in particular the German Food, Commodities and Feed Code (Lebensmittel-, Bedarfsgegenstände- und Futtermittelgesetzbuch; LFGB) and its implementing provisions) as well as with the recognized rules of science and technology and all applicable safety regulations as amended from time to time.

3.2          Supplier is not entitled to pass any purchase order received from MILEI or services and / or deliveries agreed with MILEI or any part thereof to a third party without MILEI’s express prior written consent. This shall not affect the possibility to engage vicarious agents.

4.            Delivery / Shipment / Debtor’s Delay

4.1          Unless otherwise agreed upon, Supplier’s deliveries and services must be rendered at MILEI’s place of business, Leutkirch im Allgäu site.

4.2          Unless otherwise agreed upon, the time for delivery/service specified in MILEI’s purchase order (date or deadline for delivery/service) shall be binding; MILEI will not accept early deliveries and / or services. If the delivery time was neither agreed in the purchase order nor otherwise, it shall be no longer than four weeks as of conclusion of the contract. Unless expressly permitted in writing beforehand, Supplier is entitled to render any deliveries and / or services only during MILEI’s general acceptance times (Monday through Friday from 08:00 am to 12:00 am). When entering and driving on MILEI’s premises, the instructions of the skilled personnel shall be observed; the provisions of the German Road Traffic Ordinance (Straßenverkehrsordnung; StVO) shall apply accordingly.

4.3          Unless otherwise agreed upon, Supplier, in order to comply with his delivery obligation, has to package the goods to be delivered (Liefergegenstand) (“Goods”) for safe transport at his own expense and hand it over to MILEI at the Leutkirch im Allgäu site (DDP, Incoterms 2010).

4.4          Each delivery shall be accompanied by a bill of delivery containing, in particular, the date (of issuance and shipment), the content (article ID and number) as well as MILEI’s order identification (date and number).

4.5          The risk shall pass to MILEI only upon handover at the Leutkirch im Allgäu site and MILEI’s counter signing of the respective bill of delivery. Unless otherwise agreed upon, Supplier shall bear the risk in case of deliveries outside MILEI’s general acceptance times.

4.6          Unless otherwise agreed upon, Supplier is obliged to take back any packaging. If Supplier fails to comply with such obligation, MILEI shall be entitled to dispose of the packaging itself or to have the disposal performed by a third party at Supplier’s expense.

4.7          Supplier shall obtain sufficient insurance cover for the Goods against theft, breakage, transport, fire and water or other insurable risks at his own expense. This shall not apply to material deliveries rendered by Supplier at MILEI’s production facilities at the Leutkirch im Allgäu site.

4.8          Partial deliveries and / or services by Supplier shall not be permitted unless MILEI has given its express prior written consent. However, MILEI reserves the right to accept excess or short deliveries and / or services in the individual case. Furthermore, any changes to the scope of delivery/service are to be notified immediately in writing and require MILEI’s express prior written consent. In case of weight or quantity deviations, the respective weight or quantity determined by MILEI upon notification of receipt shall be relevant, unless Supplier is able to demonstrate that his weight or quantity calculation was duly conducted according to a generally recognized method and is correct.

4.9          If Supplier does not comply with his obligation to render the deliveries and / or services in due form and in time, and if Supplier does not even remedy such breach within an appropriate time limit set by MILEI upon MILEI’s written request, MILEI’s rights – in particular to rescission and damages – shall be determined by the statutory provisions. The provisions in Section 4.10 shall remain unaffected. To the extent that Supplier becomes aware that he will be unable to fulfill his delivery and / or service obligation or a part thereof in due time, Supplier will notify MILEI in writing without undue delay and, to the extent necessary, support MILEI in procuring the goods to be delivered and / or services to be rendered from another source. Supplier may only invoke the absence of necessary documents of MILEI if such documents are essential for the delivery or service performance and Supplier has not received such documents within a reasonable time despite a written reminder.

4.10       If Supplier is in default, MILEI, after having sent a written reminder, may claim a contractual penalty of 1 % of the net price per completed calendar week, however, no more than 5 % of the net price of the delayed Goods and / or services. MILEI is entitled to claim the contractual penalty in addition to performance; the right to claim further damages shall remain unaffected. The contractual penalty shall be set off against any possible damage claim of MILEI due to a delay in delivery.

5.            Prices / Terms of Payment

5.1          The prices indicated in the purchase order shall be binding. All prices are inclusive of statutory VAT if VAT is not shown separately.

5.2          Unless otherwise agreed in the individual case, the prices shall include all services and ancillary services as well as all ancillary costs of Supplier (e. g. transport, packaging, insurance, customs duties).

5.3          Following full and proper delivery and / or service performance, the agreed price shall be payable within thirty (30) calendar days as of receipt of a proper invoice. If MILEI pays in advance or within twenty-one (21) calendar days, Supplier shall grant MILEI a discount of three (3) percent on the net amount of the invoice. MILEI’s payment made by bank transfer shall be deemed made in due time if MILEI’s bank receives the respective transfer order prior to the payment deadline; MILEI shall not be liable for any delays caused by the banks involved in the payment process.

5.4          In case MILEI is in default, the statutory provisions shall apply in general. In case of default, the default interest rate shall be five (5) percentage points above the basis interest rate per annum pursuant to section 247 German Civil Code (Bürgerliches Gesetzbuch; BGB). MILEI shall not owe any interests on maturity. MILEI shall be free to provide proof that the damages caused by default are lower than claimed by Supplier.

5.5          MILEI is entitled to rights to set-off and / or retention as well as to claim the non-performance of the contract within the statutory scope. In particular, MILEI is entitled to withhold or reduce (on a pro rata basis) due payments to the extent that MILEI still has claims against Supplier arising from incomplete and / or defective deliveries and / or services.

6.            Passage of Title

Supplier’s retention of title will only be accepted by MILEI if and to the extent Supplier retains title until it receives the purchase price to the respective delivered Goods. Any extended or expanded retention of title by Supplier shall be excluded.

7.            MILEI’s Rights in case of Defects

7.1          The quality of the Goods and Supplier’s responsibility for their quality shall be governed by the respective individual agreements of the parties and Section 3.1. Supplier shall deliver the Goods free from defects in quality and title.

7.2          MILEI shall inspect the Goods received without undue delay upon receipt to the extent this is reasonable within the scope of the ordinary course of business, and shall notify Supplier without undue delay about any defects discovered. If a defect is discovered at a later time (hidden defect), notice thereof must be given without undue delay upon discovery of the defect.

7.3          If Supplier is in breach of his obligations according to section 7.1 (in particular with respect to the obligation to deliver Goods without any defects in quality or title), MILEI’s rights (in particular to subsequent performance, rescission, reduction, damages or reimbursement of expenses) as well as the applicable statute of limitations shall be determined by the statutory provisions.

7.4          In addition to the statutory provisions (cf. section 7.3), MILEI shall be entitled at Supplier’s expense to remedy the defect of the Goods itself (or to exchange the defective Goods for a replacement procured otherwise) if, for particular reasons of urgency (e.g. if MILEI might suffer damages that are particularly high compared to the costs for remedying the defects), MILEI is not in the position (i) to notify Supplier of the defect and the imminent damages and (ii) to grant him a time limit for subsequent performance without occurrence of the damage.

7.5          If MILEI has notified Supplier of the defect in due time, the statute of limitations for claims based on defects is suspended until Supplier has finally rejected responsibility for the defect or has declared that the defect has been remedied. If Supplier recognizes his obligation for subsequent performance, the subsequent performance shall trigger the commencement of a new statute of limitation period. In the event of subsequent repairs, the new statute of limitation shall only apply to the remedied defect. In case of a replacement delivery, the new statute of limitations shall apply to the entire replacement.

7.6          Acceptance of delivery and the payment shall not be deemed to constitute an acknowledgement of correct delivery.

8.            Product Liability, Product Recall

8.1          To the extent Supplier bears responsibility for a product defect whose cause lies within his sphere of control and organization, he shall be obliged to indemnify MILEI upon first demand against all damage claims of third parties. Supplier shall reimburse all of MILEI’s necessary expenses in connection with these claims.

8.2          Supplier is obliged to obtain insurance, in a reasonable amount, against the risks of product liability for the Goods delivered by him. Upon written request, Supplier shall provide MILEI with proof of the insurance coverage within two weeks from receipt thereof.

8.3          If MILEI is obliged to recall Goods due to a defect, Supplier shall bear all necessary expenses in connection with the recall to the extent such expenses stem from the Goods being defective.

8.4          If the Supplier's employees provide services on the MILEI factory premises using electrical equipment they have brought with them (with a power consumption of more than 400 watts), the total power consumption of these devices must be recorded and documented using a calibrated electricity meter (objective: delimitation of electricity quantities subject to EEG apportionment).  In this case, the supplier's employee must proactively request such a meter at the gate of MILEI when entering the factory premises.  MILEI reserves the right to take recourse against the Supplier in the event of additional claims by the network operator with regard to the EEG levy, which were caused by the Supplier's misconduct. The Supplier shall also be liable for ensuring that employees of any subcontractors commissioned by the Supplier behave accordingly.

9.            Confidentiality of Documents and Information

9.1          MILEI shall retain all ownership rights and copyrights to its illustrations, drawings, plans, calculations, materials, samples, models, drafts, prototypes, tools, equipment and other devices, items or documents (jointly “Items”). Without MILEI’s express written consent, the Items shall not be made available to third parties nor reproduced or used for purposes other than those determined. Unless provided otherwise, the Items of MILEI may be used exclusively for executing the purchase orders of MILEI. After execution of the purchase order the Items must be returned to MILEI on request without undue delay. Supplier shall treat the Items of MILEI with care and shall store them separately.

9.2          The parties undertake to keep  the trade  secrets of the respective other party confidential during the parties’ business relationship and  thereafter; this shall not apply to information that is part of the public domain. Trade secrets means in particular all information that in this sense is not generally known such as customer lists, price lists, drawings, process instructions, formula, recipes and inventions. This duty of confidentiality shall not apply to information that had already been known to the receiving party prior to receipt, that the receiving party lawfully received or will receive from a third party without a concomitant confidentiality obligation or that are subject to mandatory disclosure pursuant to applicable law or a governmental or court order (e. g. disclosures to licensing authorities, regulatory authorities, government authorities or advisors bound to professional secrecy).

9.3          The information, data, documents and other records provided to Supplier by MILEI may exclusively be used for the purposes of the business relationship with MILEI.

9.4          In its dealings with third parties, Supplier must not make reference to the business relationship with MILEI without MILEI’s express written consent.

9.5          Supplier undertakes to oblige any sub-suppliers used by him to comply with the provisions set forth in Sections 9.1 to 9.4.

10.          Intellectual Property Rights

10.1       Supplier shall ensure that (i) the Goods, (ii) the delivery of the Goods by Supplier and (iii) the use of the Goods by MILEI in accordance with the contract do not violate any industrial property rights of third parties.

10.2       Supplier shall be obliged to indemnify MILEI upon first demand against all claims by third parties due to the infringement of such industrial property rights according to Section 10.1 and to reimburse all necessary expenses in connection with these claims.

10.3       The obligation according to Section 10.2 shall not apply if Supplier does not bear any responsibility for the breach of obligation according to Section 10.1.

10.4       Any other warranty claims of MILEI according to Section 7 shall remain unaffected.

11.          Compliance

MILEI and Supplier will comply with the anti-corruption laws applicable to them.

12.          Miscellaneous

12.1       The transfer of the purchase order to third parties, including the assignment of the rights and claims pertaining thereto, require MILEI’s prior written consent. Sec. 354 a HGB shall remain unaffected hereby.

12.2       The invalidity of single provisions of these Purchase Terms shall not affect the validity of the remaining provisions or the contract.

12.3       Any changes of and amendments to the contract and/or these Purchase Terms and any side agreements shall require written form in order to be effective. The same shall apply to any amendment of this written form requirement.

12.4       The laws of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

12.5       Exclusive venue for any and all disputes arising from or in connection with the parties’ contractual relationship and these Purchase Terms shall be the registered seat of MILEI. MILEI shall be entitled, however, to sue Supplier at any other court having statutory jurisdiction.