General Conditions of Purchase
§ 1 Scope of application
(1) These General Terms and Conditions of Purchase (GTCP) apply to all business relationships with our business partners and suppliers (“Sellers”). The GTCP apply only if the Seller is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law.
(2) The GTCP apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), regardless of whether the seller manufactures the goods itself or purchases them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTC shall apply in the version valid at the time of the buyer's order as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
(3) The GTC apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the seller shall only become part of the contract if we have expressly agreed to their validity in writing. This requirement of consent applies in all cases, for example, even if we accept the seller's deliveries without reservation in the knowledge of the seller's general terms and conditions.
(4) Individual agreements made with the seller in individual cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications by the seller in relation to the contract (e.g., reminders, withdrawal) must be made in writing, i.e., in written or text form (e.g., letter, email). Legal formal requirements and further evidence, in particular in cases of doubt about the legitimacy of the declarant, remain unaffected.
(6) References to the validity 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 GTC.
§ 2 Conclusion of contract
(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. Telephone orders are not sufficient. The seller must notify us of any obvious errors (e.g., typing or calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion prior to acceptance. Otherwise, the contract shall be deemed not to have been concluded.
(2) The seller is required to confirm our order in writing within a period of 3 days. Late acceptance and transmission of the order confirmation shall be deemed a new offer and requires our written consent. Any confirmed and/or delivered order from the supplier shall be deemed full acceptance of these GTC.
(3) Offers must always be made in writing or in text form and are non-binding.
§ 3 Delivery time and delay in delivery
(1) The delivery time specified by us in the order is binding and is calculated from the date of the order. This must be confirmed in writing by the seller (see § 2 (2)). The seller is obliged to inform us immediately in writing if it is likely that it will not be able to meet the agreed delivery times. Otherwise, this circumstance shall be deemed a failure to perform, which may be punished with consequences (see § 3 (2)-(3)). The decisive factor for compliance with the delivery date is the arrival of the delivery at the delivery address specified in the order.
(2) If the seller does not perform its service or does not do so within the agreed delivery time, or if it is in default, our rights – in particular to withdrawal and compensation – shall be determined in accordance with the statutory provisions. The provisions in paragraph 3 remain unaffected. ELA shall issue delivery reminders for this purpose. The supplier undertakes to respond immediately upon receipt of such a reminder and to deliver the goods as confirmed. We reserve the right to charge additional reminder fees of €25 per order.
(3) If the seller is in default, we may – in addition to further legal claims – demand lump-sum compensation for our default damage in the amount of 1% of the net price of the order per completed calendar week, but not more than 5% of the net price of the entire order of the goods delivered late. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage or significantly less damage has been incurred.
§ 4 Delivery, transfer of risk, default of acceptance
(1) The seller is not entitled to have the service owed by him performed by third parties (e.g. subcontractors) without our prior written consent. The seller bears the procurement risk for his services, unless otherwise agreed in individual cases.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply accordingly in the event of acceptance. Delivery or acceptance shall be deemed to have taken place if we are in default of acceptance.
(3) The statutory provisions shall apply to the occurrence of our default in acceptance. However, the seller must expressly offer us its performance even if a determinable calendar time has been agreed for an action or cooperation on our part (e.g., provision of material). If we are in default of acceptance, the seller may demand compensation for his additional expenses in accordance with the statutory provisions (§ 304 BGB).
If the contract relates to a non-fungible item to be manufactured by the seller (custom-made item), the seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
(4) The delivery and packaging regulations in their currently valid version shall apply and hereby become part of the contract.
§ 5 Prices and terms of payment
(1) The price stated in the order is binding. All prices include statutory sales tax, unless this is shown separately.
(2) Unless otherwise agreed in individual cases, the price includes all services and ancillary services provided by the seller (e.g., assembly, installation) as well as all ancillary costs (e.g., proper packaging, transport costs, product-specific surcharges).
(3) The agreed price is due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before the expiry of the payment period; we shall not be responsible for delays caused by the banks involved in the payment process.
(4) We do not owe any interest on arrears. The statutory provisions apply to late payments.
(5) We are entitled to set-off and retention rights as well as the defense of non-performance of the contract to the extent permitted by law. In particular, we are entitled to withhold due payments as long as we still have claims against the seller for incomplete or defective services.
(6) The seller shall only have a right of set-off or retention on the basis of legally established or undisputed counterclaims.
(7) Price increases by the seller must be announced with at least 3 months' notice, otherwise any announcements shall be declared null and void.
§ 6 Confidentiality and retention of title
(1) We reserve ownership rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions, and other documents. Such documents are to be used exclusively for the contractual service and returned to us after completion of the contract. The documents must be kept confidential from third parties, even after the contract has ended. The confidentiality obligation shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.
(2) The above provision applies to substances and materials (e.g., software, finished and semi-finished products) as well as to tools, templates, and other items that we provide to the seller for production. Such items shall be stored at the seller's expense and insured to an appropriate extent against destruction and loss, as long as they are not processed.
(3) Any processing, mixing, or combining (further processing) of provided items by the seller shall be carried out on our behalf. The same shall apply to further processing of the delivered goods by us, so that we are considered the manufacturer and acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
(4) The transfer of ownership of the goods to us shall take place unconditionally and regardless of payment of the price. However, if, in individual cases, we accept an offer of transfer of ownership by the seller conditional upon payment of the purchase price, the seller's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we remain authorized to resell the goods even before payment of the purchase price, with advance assignment of the resulting claim (alternatively, simple retention of title extended to resale applies). This excludes all other forms of retention of title, in particular extended retention of title, transferred retention of title, and retention of title extended to further processing.
§ 7 Deployment of personnel and subcontractors
(1) The contractor is obliged to ensure that he and any subcontractors he commissions employ only employees from European Union countries or only employees from non-EU countries who are in possession of a valid work permit and a valid social security card.
(2) If no valid work permit is available or if an existing work permit expires due to a time limit, the affected workers must be removed from the workplace immediately at the contractor's expense and replaced by other workers.
(3) In order to prevent illegal employment, the contractor and any subcontractors commissioned are prohibited from employing unauthorized temporary workers.
(4) The transfer of services to subcontractors requires the consent of the client. The names of the companies commissioned must be specified for each transfer. In the event of a transfer to a foreign subcontractor, the contractor must also inform the client of the number and duration of employment of the foreign workers to be deployed.
(5) The contractor must impose on the subcontractors all obligations that it has assumed towards ELA Container and must ensure that they are complied with.
(6) Should the contractor violate one or more of the obligations under §12, the client shall be entitled, subject to any further rights, to set a reasonable grace period for the contractor to fulfill the obligations in question. Should this reasonable grace period expire without result, the client shall be entitled to terminate the contract without notice and to claim damages.
(7) If the contractor commissions subcontractors, it shall indemnify the client against all claims asserted against the client due to a breach of the provisions of the AEntG by these subcontractors. The contractor shall assume, internally vis-à-vis the client, the obligations which the client and contractor assume as joint guarantors pursuant to Section 14 AEntG, alone and in full. The same applies to the commissioning of temporary employment agencies in accordance with the AÜG.
§ 8 Defective delivery, performance of services, and invoicing
(1) The services actually rendered must be documented by means of a service record. These records must be confirmed in writing by ELA's authorized personnel and enclosed with the invoice.
(2) Invoices must be sent in electronic form, stating the order number, with all relevant data and in the proper form in accordance with the legal requirements, to the email address specified in the order. ELA reserves the right to reject invoices that are received without an order number or corresponding proof of performance.
(3) Unless otherwise specified below, the statutory provisions shall apply to our rights in the event of material defects and defects of title in the goods (including incorrect and short deliveries as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the seller.
(4) The properties and characteristics specified in the order or other agreements must be fulfilled by the purchased item as agreed procurement characteristics. If we have provided the supplier with drawings, samples, or other specifications for the order, these shall be decisive for the type, quality, and design of the goods to be delivered.
(5) In accordance with the statutory provisions, the seller is liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, the product descriptions that are the subject of the respective contract – in particular by designation or reference in our order – or that have been included in the contract in the same way as these GTC are deemed to be an agreement on quality. It makes no difference whether the product description originates from us, the seller, or the manufacturer.
(6) We are not obliged to inspect the goods or make special enquiries about any defects upon conclusion of the contract. In partial deviation from Section 442 (1) sentence 2 BGB, we are therefore entitled to claims for defects without restriction even if the defect remained unknown to us at the time of conclusion of the contract as a result of gross negligence.
(7) The seller is obliged to employ staff who are trained and instructed in accordance with the nature of the activity within the scope of the contractual service provision. At ELA's request, the seller must provide evidence of the employee training and instruction that has been carried out.
(8) The statutory provisions (§§ 377, 381 HGB) apply to the commercial obligation to inspect and give notice of defects, with the following proviso: Our obligation to inspect is limited to defects that become apparent during our incoming goods inspection upon external examination, including the delivery documents (e.g., transport damage, incorrect or short delivery), or that are detectable during our quality control in random sampling. If acceptance has been agreed, there is no obligation to inspect. In all other respects, 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. Our obligation to give notice of defects discovered later remains unaffected. Notwithstanding our obligation to inspect, our complaint (notification of defects) shall in any case be deemed to have been made immediately and in good time if it is sent within 8 working days of discovery or, in the case of obvious defects, of delivery.
(9) Subsequent performance also includes the removal of the defective goods and their reinstallation, provided that the goods have been installed in or attached to another item in accordance with their nature and intended use; our statutory claim for reimbursement of corresponding expenses remains unaffected. The seller shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was in fact no defect. Our liability for damages in the event of an unjustified request for rectification of defects remains unaffected; however, we shall only be liable in this respect if we recognized or failed to recognize through gross negligence that there was no defect.
(10) Notwithstanding our statutory rights and the provisions in paragraph 6, the following shall apply: If the seller fails to fulfill its obligation to remedy the defect—at our discretion, either by repairing the defect (rectification) or by delivering a defect-free item (replacement delivery)—within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the seller for the necessary expenses or a corresponding advance payment. If the subsequent performance by the seller has failed or is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or the threat of disproportionate damage), no deadline needs to be set; we shall inform the seller of such circumstances immediately, if possible in advance.
(11) In all other respects, we shall be entitled to reduce the purchase price or withdraw from the contract in accordance with the statutory provisions in the event of a material defect or defect of title. In addition, we shall be entitled to compensation for damages and expenses in accordance with the statutory provisions.
§ 9 Rights of withdrawal and termination
(1) In addition to the statutory rights of withdrawal, we shall be entitled to withdraw from the contract if there is a significant deterioration in the supplier's financial circumstances or if such a deterioration is imminent and this threatens to prevent the supplier from fulfilling its obligations to us.
(2) Furthermore, we shall be entitled to withdraw from the contract without observing a period of notice if
- the supplier becomes insolvent,
- the supplier suspends payments
- the conditions for insolvency pursuant to Section 18 In-sO are met or over-indebtedness is imminent,
- the opening of insolvency proceedings against the supplier's assets is rejected due to lack of assets.
This applies accordingly to continuing obligations.
(3) The supplier shall compensate us for any damage incurred as a result of the contractual or statutory rights of withdrawal. This shall not apply if the supplier is not responsible for the occurrence of the rights of withdrawal.
§ 10 Supplier recourse
(1) We shall be entitled to our statutory recourse claims within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) shall be available to us without restriction in addition to our claims for defects. In particular, we shall be entitled to demand from the seller precisely the type of subsequent performance (repair or replacement delivery) that we owe to our customer in the individual case. Our statutory right of choice (§ 439 (1) BGB) shall not be restricted by this.
(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to §§ 445a (1), 439 (2) and (3) BGB), we shall notify the seller and request a written statement, briefly explaining the facts of the case. If a substantiated statement is not provided within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the seller shall be responsible for providing evidence to the contrary.
(3) Our claims for supplier recourse shall also apply if the defective goods have been further processed by us or another entrepreneur, e.g., by installation in another product.
§ 11 Product liability
(1) If the seller is responsible for product damage, they shall indemnify us against third-party claims to the extent that the cause lies within their sphere of control and organization and they are liable in relation to third parties.
(2) As part of its indemnification obligation, the seller shall reimburse expenses in accordance with Sections 683 and 670 of the German Civil Code (BGB) arising from or in connection with claims by third parties, including recall campaigns carried out by us. We shall inform the seller of 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.
(3) The seller must take out and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage.
§ 12 Limitation period
(1) The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise specified below.
(2) Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims for defects shall be 3 years from the transfer of risk. If acceptance has been agreed, the limitation period shall commence upon acceptance. The three-year limitation period shall also apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for third-party claims for surrender of property (Section 438 (1) No. 1 BGB) shall remain unaffected. Claims arising from defects of title shall not become time-barred in any case as long as the third party can still assert the right against us, in particular due to the absence of a limitation period.
(3) The limitation periods under sales law, including the above extension, shall apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply, unless the application of the limitation periods under sales law leads to a longer limitation period in individual cases.
§ 13 Choice of law and place of jurisdiction
(1) These GTC and the contractual relationship between us and the seller are governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – – for all disputes arising from the contractual relationship shall be our registered office in Haren (Ems). The same shall apply if the seller is an entrepreneur within the meaning of § 14 BGB. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the seller's general place of jurisdiction. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.
§ 14 Environmental management and sustainability
(1) The seller/supplier is aware of its social, economic, and ecological responsibility and undertakes, when executing an order, to comply with the state of the art and the applicable legal requirements as minimum requirements with regard to energy design.
(2) The seller/supplier shall ensure that packaging materials are as resource-efficient, recyclable, or reusable as possible and shall inform ELA Container unsolicited about available sustainable product alternatives.
(3) The seller/supplier undertakes to comply with the applicable national laws in all business activities and decisions and supports the relevant internationally recognized standards, guidelines, and principles. Furthermore, they shall comply with all applicable legal requirements regarding product conformity for the materials, components, or products supplied by the seller/supplier, taking into account environmental and sustainability-related requirements.
§ 15 Code of Conduct
The Code of Conduct for Business Partners established by us applies to both contracting parties. The guidelines for conduct listed therein are mutually recognized and can be found on our website.
§ 16 External Company Regulations
The current version of our external company regulations applies to the provision of services. The regulations listed therein are recognized by the seller/supplier. The external company regulations must be signed in advance by the seller/supplier and brought to the agreed appointment.
Download external company regulations
Further documents
The policy statement pursuant to Section 6 (2) sentence 2 LkSG, which describes the corporate due diligence obligations along the supply chain, is available at the following link:
Terms of Delivery
Preface
The following Terms of Delivery specify the requirements that ELA places on its suppliers with regard to the methods and procedures for material delivery, labeling, packaging, and transportation options. They also apply to all business relationships with our business partners/suppliers and are an integral part of every order or call-off, irrespective of the stipulated delivery conditions.
By complying with these terms, you as a supplier support us not only in protecting the environment, but also in ensuring smooth processes.
(1) Packaging
Sufficient packaging that is appropriate for the goods and secure for transportation must be selected for all types of shipment. Damage in transit caused by inadequate packaging shall be paid for by the supplier.
Unless otherwise agreed, the supplier shall be responsible for the selection and design of the packaging and shall bear all costs incurred for this.
The goods shall be delivered in a clean condition and be capable of serving their full service life at the time of delivery. Contamination (grease, oil, dust, chips, other impurities) that results in reworking or cleaning before further processing shall be removed at the supplier’s expense and not be accepted. Furthermore, ELA reserves the right to return damaged, soiled or nonconforming goods at the supplier’s expense.
Regardless of the type of packaging, the goods must always be labeled and thus clearly marked upon delivery. The contents of the individual packaging must correspond to the labeling.
(2) Markings and Accompanying Documents
All statutory markings must be adhered to, for example, ADR and the Hazardous Substances Ordinance markings.
In addition, each package must be labeled in such a way that the goods inside can be clearly identified at any time. This shall include at least the order number and the item’s ELA item number. If a consignment consists of several packages or pallets, this must be clearly indicated.
Furthermore, proper accompanying documents must be handed over to the forwarding agent, carrier, or logistics contractor. The order number, supplier number, our item number, the gross and net weights, number of packages, type of packaging (disposable/reusable), date of dispatch or provision, and destination must be stated on all shipping documents and on the external packaging.
The delivery must also be accompanied by a delivery bill stating the date, content of the delivery (item number and quantity), and our order identification (order number, storage location code, location). If the delivery bill is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment.
(3) Shipping and Transportation
Shipping within Germany shall be “free domicile” to the delivery destination specified in the order. Other delivery conditions shall only be valid if explicitly stated in the order. If the destination is not specified and nothing else has been agreed, delivery shall be to our head office at Zeppelinstrasse 19-21 in Haren. The respective destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver). As ELA Container GmbH has various locations for which orders are sent centrally, the correct place of performance must be checked separately by the supplier for each order.
Additional costs arising from over-, short, or incorrect deliveries shall be borne by the supplier. Excess deliveries shall not be accepted unless agreed in writing in advance.
The supplier is free to insure the consignments at its own expense. Insurance costs billed to ELA shall not be recognized unless this has been explicitly agreed in advance.
The usual times for receiving goods shall apply:
Mon.–Thurs.: 6:00 a.m.–2:30 p.m.
Fri.: 6:00 a.m.–11:30 a.m.
The times for receiving goods may differ from the standard times at some locations. The corresponding variations shall be listed on the order document.
Goods shall not be accepted on public holidays. Deliveries outside these times shall result in rejection of the consignment, as shall the absence of shipping documents. If multiple deliveries are shipped on a dispatch date, they must be combined into one shipment.
(4) Delivery and Acceptance of Goods
In order to unload the trucks promptly, the supplier must notify us by e-mail of each delivery of 5 pallets or more at least one day before delivery and of 10 pallets or more at least three days before delivery. Deliveries for which notification has not been provided may be refused acceptance.
The supplier shall be obliged to have the receipt of each consignment of goods confirmed in writing by an employee of ELA Container GmbH.
The supplier shall be liable for any loss of goods.