Conditions of Purchase

Deutsche Version unter Einkaufsbedingungen.

General Terms and Conditions of Purchase (GTCP) of mp services gmbh

1.1 The following General Terms and Conditions of Purchase (hereinafter: GTCP) shall apply to all contracts between mp services gmbh, registered in the Commercial Register of the Stuttgart District Court under HRB 206764 and the companies affiliated with it pursuant to §§ 15 et seq. of the German Stock Corporation Act (hereinafter: MP, list of companies available at and its suppliers and service providers (hereinafter: Supplier), insofar as the Supplier is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law. The following GTCP do not apply to consumers within the meaning of § 13 BGB.

1.2 The GTCP shall apply in particular to contracts for the sale and/or delivery of movable goods in the food and non-food sectors as well as livestock (hereinafter: goods), irrespective of whether the Supplier manufactures the goods itself or purchases them from suppliers (Sections 433, 650 of the German Civil Code) as well as to contracts for the manufacture and delivery of private label products for MP and other works or services of the Supplier. Unless otherwise agreed, the GTCP in the version valid at the time of MP’s order or in any case in the version last notified to the Supplier in text form shall also apply as a framework agreement for similar future contracts without MP having to refer to them again in each individual case.

1.3 These GTCP shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Supplier shall only become part of the contract if and to the extent that MP has expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if MP accepts the Supplier’s deliveries or services without reservation in the knowledge of the Supplier’s General Terms and Conditions.

1.4 Individual agreements made with the Supplier in individual cases (including framework agreements, ancillary agreements, supplements and amendments) shall in any case take precedence over these GTCP. Subject to proof to the contrary, a written contract or written confirmation from MP shall be authoritative for the content of such agreements.

1.5 Legally relevant declarations and notifications by the supplier with regard to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing, i.e. in written or text form (e.g. e-mail). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.

1.6 References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCP.

2. Order and order confirmations

2.1 Contracts shall always be concluded with the content of MP’s written orders, notwithstanding any offers made by the Supplier. Oral or telephone orders as well as supplements, amendments or deviations of any kind shall only become binding for MP if MP confirms them in writing.

2.2 MP’s order shall be deemed binding at the earliest upon written submission or confirmation. The supplier shall point out obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents to MP for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not concluded.

2.3 The Supplier is required to confirm MP’s order in text form or, in particular, to execute it without reservation by dispatching the goods (acceptance). A delayed acceptance shall be deemed a new offer and requires acceptance by MP. Deviations from MP’s orders are to be clearly highlighted in the supplier’s confirmation and, moreover, are only valid if MP expressly acknowledges them in writing; the unconditional acceptance of goods is not deemed to be such acceptance. If the order confirmation does not arrive in time, but the supplier delivers within the time limit, the contract is thereby concluded with the inclusion of these GTCP. By accepting MP’s order, the supplier guarantees its professional execution.

3. Delivery period and delay in delivery

3.1 The delivery time stated in MP’s order is binding. The delivery or performance period shall commence on the date of the order. If no deadline is agreed, delivery or performance shall be made without delay.

3.2 In case of imminent delay in delivery or performance, MP shall be notified of the expected duration of the delay, stating the reasons. A delivery or service before the agreed date to the central warehouse of MP is only permitted with the consent of MP. In any case, MP must not suffer any disadvantage from such a delivery or service, in particular the payment period (clause 6.3) does not start before the agreed date.

3.3 If the supplier does not perform or does not perform within the agreed delivery time or is in default, MP’s rights – in particular to withdraw from the contract and to claim damages – shall be determined in accordance with the statutory provisions. The regulations in section 3.4 remain unaffected.

3.4 If the Supplier is in default, MP may – in addition to further legal claims – demand lump-sum compensation for the damage caused by the delay in the amount of 1% of the net price per completed calendar week, but in total not more than 5% of the net price of the goods delivered late. MP reserves the right to prove that a higher damage has occurred. The supplier reserves the right to prove that no damage at all or only a significantly lower damage has been incurred.

4. Delivery, dispatch, acceptance, insurance and transfer of risk

4.1 The Supplier shall not be entitled to have the performance owed by MP rendered by third parties (e.g. subcontractors) without MP’s prior written consent. The Supplier shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).

4.2 Delivery (performance) and dispatch shall always be made in accordance with the agreed delivery conditions. If no delivery conditions have been agreed, they shall always be made DDP in accordance with INCOTERMS in the current version to the place of performance specified by MP (obligation to deliver). Surname consignments will not be accepted unless expressly agreed. The consignment shall be accompanied by a freight document and a packing slip and furthermore a separate delivery note for each order number. The delivered goods shall be handed over to MP’s authorised employees at the delivery address. The goods shall be accepted quantitatively upon their arrival at the delivery address, qualitatively only upon their use. The supplier has to insure deliveries properly against damages of all kinds at his own expense. Products subject to special product regulations shall be classified, packaged and labelled in accordance with the regulations. In case of delivery of technical systems and devices, the operating personnel of MP shall be trained free of charge at MP’s request. In the case of delivery of systems and devices that are to be installed by third parties, the necessary installation plans (including all connections, a possible base formation, etc.), maintenance instructions, etc. are to be attached to the order confirmation, but at the latest handed over with the delivery of goods. In the case of delivery from abroad, the inscriptions shall be in the national language; the operating instructions and instructions for use shall be in German and in the national language.

4.3 The risk shall only pass to MP when the Supplier has handed over the delivery (service) to MP’s authorised employees (Section 4.2), these have inspected the delivery (service) at the place of the delivery address and have accepted it as being in order and the Supplier has also fulfilled all ancillary obligations, such as the provision of the necessary test certificates, descriptions, operating instructions and the like without any problems.

4.4 The statutory provisions shall apply to the occurrence of MP’s default in acceptance. However, the Supplier must expressly offer MP its performance even if a specific or determinable calendar time has been agreed for an action or cooperation of MP (e.g. provision of material). If MP is in default of acceptance, the Supplier may claim compensation for its additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract concerns a non-representable item to be manufactured by the Supplier (individual production), the Supplier shall only be entitled to further rights if MP is obliged to cooperate and is responsible for the failure to cooperate.

5. Packaging, problematic materials

5.1 Risk and costs of packaging are generally included in the price of the goods. If MP should assume the costs of the packaging additionally by way of exception, MP shall be charged the cost price and these shall be shown separately in the invoice; also in this case, the supplier shall bear the risk for the consequences of defective packaging. Furthermore, MP is entitled to return the packaging material and to demand a credit note for it, unless the packaging material is pre-licensed according to the packaging law. Deposits are not accepted by MP.

5.2 The Supplier shall always dispose of packaging material, transport aids and the like as well as all delivery items to be judged as „special waste“ according to their intended use or residues of such delivery items at his risk and expense either himself or take them back for disposal. If the supplier does not comply with this obligation, MP shall be entitled to have the disposal carried out by third parties at its risk and expense.

6. Prices and terms of payment

6.1 The price stated in the order is binding and shall be understood as a fixed price. All prices are inclusive of statutory value added tax if this is not shown separately.

6.2 Unless otherwise agreed in the individual case, the price includes all services and ancillary services of the supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).

6.3 In the case of bank transfers, the payment shall be deemed to have been made on time if MP’s bank receives the transfer order before the expiry of the payment deadline; MP shall not be responsible for any delays caused by the banks involved in the payment process.

6.4 MP shall not owe any interest on arrears. The statutory provisions shall apply to default in payment.

6.5 MP shall be entitled to rights of set-off and retention as well as the defence of non-performance of the contract to the extent provided by law. In particular, MP is entitled to withhold due payments as long as it still has claims against the Supplier arising from incomplete or defective performance.

6.6 The Supplier shall have a right of set-off or retention only in respect of counterclaims which have been established by declaratory judgment or are undisputed.

7. Secrecy and retention of title

7.1 MP reserves all property rights and copyrights to illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents. Such documents are to be used exclusively for the contractual performance and are to be returned to MP after completion of the contract. The documents are to be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.

7.2 The transfer of ownership of the goods to MP shall be unconditional and without regard to the payment of the price. However, if MP accepts an offer of transfer of title from the Supplier conditional on payment of the purchase price in an individual case, the Supplier’s retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. MP remains authorised to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the resulting claim (alternatively validity of the simple reservation of title extended to the resale). In any case, all other forms of retention of title are excluded, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.

8. Warranty

8.1 The statutory provisions shall apply to MP’s rights in the event of material defects and defects of title of the goods (including wrong delivery and short delivery as well as defective assembly, operating or operating instructions) and in the event of other breaches of duty by the Supplier, unless otherwise stipulated below.

8.2 In accordance with the statutory provisions, the Supplier shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to MP. In any case, those product descriptions and specifications which – in particular by designation or reference in MP’s order – are the subject matter of the respective contract or have been included in the contract in the same way as these GTCP shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from MP, the supplier or the manufacturer.

8.3 The supplier further warrants that the deliveries and services have the usually assumed properties, that they correspond to his description, samples or specimens and that they can be used in accordance with the nature of the business or the agreement made. Public statements made by the supplier or the manufacturer, especially in advertising and in the information enclosed with the delivery or service, shall be used to assess this standard. This also applies to public statements made by the person who has imported the contractual goods and services into the European Economic Area or who designates himself as the manufacturer by affixing his name, trademark or other mark to the goods and services. Such statements shall not bind the supplier only if he neither knew nor could have known them, if they were corrected at the time of the conclusion of the contract or if they could not have influenced the conclusion of the contract. Furthermore, the deliveries and services shall comply with all general and special standards applicable in Germany (such as CE, declaration of conformity, etc.), but also with the recognised rules of science and technology.

8.5 The Supplier further warrants that the delivered products comply with all applicable environmental laws and standards. In particular, the Supplier shall comply with all requirements for the registration, evaluation, authorisation and restriction of chemical substances pursuant to Regulation (EC) 1907/2006 (REACH Regulation) as well as all other obligations of the REACH Regulation and shall immediately and without being requested indicate substances of very high concern.

8.6 In the event of an official order to declare the production identification number in accordance with Regulation (EC) 1774/2009, the Supplier undertakes to affix it in a suitable form to all sales containers without delay and at no cost to MP. 

8.7 In order to safeguard all rights of MP arising from defective and/or faulty services, it is sufficient to assert them within the agreed period, in the case of defences, the mere notification of defects within this period. If the supplier purchases pre-deliveries from third parties, he shall ensure the quality of such pre-deliveries either by his own means, in particular by his own corresponding inspection of the quality or by contractually including the pre-supplier in these conditions. Pre-suppliers shall be deemed to be vicarious agents of the supplier.

8.8 MP is not obliged to examine the goods or to make special enquiries about possible defects at the conclusion of the contract. Partially deviating from § 442 Abs. 1 S. 2 BGB MP is therefore entitled to claims for defects without restrictions even if MP remained unaware of the defect at the conclusion of the contract due to gross negligence.

8.9 The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to examine and give notice of defects with the following proviso: MP’s duty to examine shall be limited to defects which become apparent during its incoming goods inspection under external appraisal including the delivery papers (e.g. transport damage, wrong and short delivery) or which are recognisable during MP’s quality control in the random sampling procedure. Insofar as acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. MP’s obligation to give notice of defects discovered later remains unaffected. Notwithstanding MP’s duty to examine, the notice of defects shall be deemed to have been given without delay and in due time if it is sent within ten (10) working days of discovery or, in the case of obvious defects, of delivery.

8.10 Subsequent performance shall also include the removal of the defective goods and the re-installation, provided that the goods have been installed in another item or attached to another item in accordance with their type and intended use; MP’s statutory claim to reimbursement of corresponding expenses shall remain unaffected. The expenses necessary for the purpose of inspection and supplementary performance shall be borne by the supplier even if it turns out that there was actually no defect. MP’s liability for damages in the case of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, MP shall only be liable if MP recognised or was grossly negligent in not recognising that there was no defect.

8.11 Without prejudice to MP’s statutory rights and the provisions of Section 8.9, the following shall apply: If the Supplier fails to fulfil its obligation to remedy the defect – at MP’s option by remedying the defect (rectification) or by delivering a defect-free item (replacement) – within a reasonable period of time set by MP, MP may remedy the defect itself and demand reimbursement of the expenses required for this purpose or a corresponding advance payment from the Supplier. If the supplementary performance by the supplier fails or is unreasonable for MP (e.g. because of special urgency, endangerment of the operational safety or threatening occurrence of disproportionate damages), no deadline has to be set; MP will inform the supplier about such circumstances immediately, if possible in advance.

8.12 Apart from that MP is entitled to reduce the purchase price or to withdraw from the contract in case of a material defect or defect of title according to the legal regulations. In addition, MP shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

8.13 The warranty period for material defects and defects of title is 3 years, unless expressly agreed otherwise.

9. Supplier recourse

9.1 In addition to the claims for defects, MP shall be entitled to the legally determined recourse claims within a supply chain (supplier recourse according to §§ 445a, 445b, 478 BGB) without limitation. In particular, MP is entitled to demand exactly the type of supplementary performance (repair or replacement) from the supplier that it owes its customer in the individual case. MP’s statutory right of choice (§ 439 para. 1 BGB) shall not be restricted by this.

9.2 Before MP acknowledges or fulfils a claim for defects asserted by its customer (including reimbursement of expenses according to §§ 445a para. 1, 439 para. 2 and 3 BGB), it shall notify the supplier and ask for a written statement with a brief description of the facts. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by MP shall be deemed to be owed to its customer. In this case, the supplier has the burden of proof to the contrary.

9.3 MP’s claims from supplier recourse shall also apply if the defective goods have been further processed by MP or another entrepreneur, e.g. by installation in another product.

10. Product liability

10.1 In the event that the delivered goods have defects within the meaning of the Product Liability Act and MP is therefore held liable, the Supplier shall indemnify and hold MP harmless. Within the scope of his indemnification obligation, the Supplier shall reimburse expenses pursuant to §§ 683, 670 of the German Civil Code (BGB), which result from or in connection with a third party claim including recall actions carried out by MP. MP shall inform the supplier about the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further legal claims remain unaffected.

10.2 For a period of 11 years from the last delivery, the Supplier undertakes, with regard to the products delivered by it, to name the respective manufacturer, importer or upstream supplier to MP without delay upon request, and to provide MP without delay with useful evidence, in particular manufacturing documents and documents showing production and delivery batches and/or production and delivery slips, for the defence against product liability claims by third parties. The Supplier undertakes to keep this risk of a claim as described above sufficiently insured and to provide MP with suitable proof thereof upon request. 

11. Property rights

The agreed price shall cover the acquisition of the statutory industrial property rights, in particular patents, to the extent that their acquisition is necessary for us to freely use and resell the delivery item. If licences are necessary, the supplier shall procure them at his own expense. Inventions of the supplier during the execution of the contract may be used by MP free of charge. The supplier shall indemnify and hold MP harmless in case of infringement of third party property rights in connection with the ordered delivery or service.

12. Assumption of contract, assignment and set-off

The Supplier may not pass on the order in whole or in part to other contractors for execution without MP’s written consent. The supplier may only assign his claims against MP with the latter’s written consent. MP is entitled at any time to set off claims to which MP itself or companies affiliated with MP within the meaning of §§ 15 ff of the German Stock Corporation Act (AktG) are entitled against claims of the Supplier. The legal prohibitions of set-off, in particular §§ 390 and 393 BGB remain unaffected. 

13. Confidentiality and data protection

13.1 The Supplier undertakes to keep confidential any information coming to its knowledge in connection with the contract concerning MP or the subject matter of the contract, insofar as it is not generally or otherwise lawfully known to it, or the results or partial results produced by it.

13.2 This also applies to MP or third parties concerning personal data which come to the Supplier’s knowledge in connection with the contract. When processing personal data, the Supplier shall comply with all provisions of the GDPR and shall in particular protect such data from access by third parties and shall likewise cause its employees involved in such processing to maintain appropriate confidentiality.

13.3 Furthermore, the Supplier gives its consent that personal data from this business case may also be transmitted to other companies affiliated with MP pursuant to §§ 15 et seq. AktG (German Stock Corporation Act).

14. Compliance

14.1 In connection with the contractual relationship, the Supplier shall be obliged to comply with the relevant statutory provisions applicable to it. This applies in particular to anti-corruption and money laundering laws as well as antitrust, labour and environmental protection regulations.

14.2 The Supplier shall ensure that the products delivered by him comply with all relevant requirements for placing on the market in the European Union and the European Economic Area. He shall prove conformity to MP on request by submitting suitable documents.

14.3 The Supplier shall use reasonable endeavours to ensure compliance by its subcontractors with the obligations incumbent on the Supplier under this Clause 14.

14.4 If the Supplier has demonstrably entered into an agreement that constitutes an impermissible restriction of competition and leads to a claim for damages by MP pursuant to Section 33a GWB, it shall pay 15% of the settlement amount to MP, unless damages in a different amount are proven. This also applies if the contract is terminated or has already been fulfilled. Other contractual or legal claims of MP remain unaffected.

15. Place of performance, jurisdiction and applicable law

15.1 The place of performance shall be the delivery address specified by MP in the order or the place where the service is to be provided.

15.2 These GTCP and the contractual relationship between MP and the Supplier shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

15.3 The exclusive place of jurisdiction shall be Schwieberdingen; MP shall, however, also be entitled, at its discretion, to bring actions arising from the contract before the court which has subject-matter and local jurisdiction for this purpose under the legal provisions applicable to the state in which the Supplier has its place of business or residence.

16. Severability clause

Should individual provisions of these regulations be or become invalid, this shall not affect the validity of the remaining provisions.