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GENERAL TERMS & CONDITIONS OF DELIVERY HERO RELATING TO THE PURCHASE OF GOODS
Effective from 15.02.2022
I. General Provisions
1. Subject to subsection I.2. below, these General Terms & Conditions of
Delivery Hero relating to the Purchase of Goods ("T&Cs") shall govern
all business relations between (i) Delivery Hero SE, having its
registered address at Oranienburger Straße 70, 10117 Berlin, Germany
("DH SE") or its affiliates (according to Section 15 of the German
Stock Corporation Act (Aktiengesetz)) designated on the order
documents referencing these T&Cs (each individually "Delivery Hero")
and (ii) its business partners, sellers, and suppliers (each a
"Supplier" and together the "Suppliers"). Delivery Hero and
Supplier(s) may be referred to individually as a "Party" or
collectively as the "Parties". For each time these T&Cs are
applicable, either DH SE or the ordering affiliate of DH SE will be
the sole party to these T&Cs and shall be solely liable for the
particular transaction made by such entity under the T&Cs. For the
avoidance of doubt, DH SE has the possibility to conclude ordering
documents for the benefit of its affiliates.
2. These T&Cs only apply if the Supplier is (a) an entrepreneur, i.e., a
natural or legal person or a partnership with legal personality who
or which, when entering into a legal transaction with Delivery Hero,
acts in exercise of their trade, business, or profession, (b) a legal
entity under public law or (c) a special fund under public law.
3. These T&Cs shall apply to all supplies delivered to Delivery Hero, in
particular for contracts on the sale and/or delivery of products or
other deliverables (hereinafter also referred to as "Goods")
irrespective of whether the Supplier manufactures the Goods itself or
outsources them from any subcontractor.
4. These T&Cs apply both to sales contracts for standard off-the-shelf
products and work (supply) contracts for products specifically
manufactured or customised by Supplier for Delivery Hero. In doubt,
the Goods shall be considered individual work products.
5. The then-current version of the T&Cs shall also serve as a framework
agreement for future purchase and/or work (supply) contracts with the
same Supplier, without Delivery Hero having to refer to them again in
any individual case. Without limiting the foregoing, to the extent
there is an individual framework agreement on the purchase of Goods
in place between Delivery Hero and the Supplier, such framework
agreement shall prevail over these T&Cs.
6. The Supplier shall grant the same prices and conditions agreed with
Delivery Hero to every other of its affiliates for the same or
comparable Goods, unless significant and reasonable changes have
occurred that justify an adjustment of the prices and/or conditions.
7. These T&Cs shall apply exclusively. Deviating, contrary or
supplementary terms and conditions from the Supplier shall only
become part of the contract upon Delivery Hero's express written
consent.
8. Declarations and notices by the Supplier which are of legal relevance
must be made in writing and in English or German language in order to
be valid.
II. Conclusion of the Contract
1. Conclusion of the contract between Delivery Hero and the Supplier
requires the acceptance of an offer. In case the Supplier provides an
offer, Delivery Hero may accept such offer up to the time when
Supplier may reasonably expect to receive the reply from Delivery
Hero, unless the Supplier’s offer states a different time period for
the acceptance. The offer shall be considered accepted by Delivery
Hero upon written confirmation to the Supplier by its authorised
representatives.
2. In case Delivery Hero provides an offer to the Supplier by sending a
purchase order, Delivery Hero shall be bound by its offer for a
period of one (1) week ("Acceptance Period"), unless Delivery Hero
declares otherwise. The date on which Delivery Hero receives the
declaration of acceptance from the Supplier shall determine whether
or not the Delivery Hero's offer is accepted on time.
3. Any acceptance of the offer after the Acceptance Period has elapsed
shall be deemed as a rejection of Delivery Hero’s offer and shall be
considered as a new offer by the Supplier. The same shall also be
applicable for any acceptance with amendments, limitations, or other
alterations. Delivery Hero shall not be under any obligation to
accept the Supplier's new offer.
4. These T&Cs and any order documentation (in particular, offer and
acceptance or purchase order and order confirmation, any
specifications to the extent available and applicable) are an
integral part of any contract between the Parties that these T&Cs are
referred to.
5. With regard to continuing obligations there shall be no extension or
automatic renewal of the terms of the contract unless otherwise
agreed in writing by the Parties.
III. Right to Determine Performance
1. Delivery Hero reserves the right to change when and where the
delivery of the Goods is to take place, as well as the nature of the
packaging, at its discretion, by means of written notification (text
form suffices), at least five (5) Business Days (as defined below)
prior to the agreed delivery date. The same shall apply to changes to
product specifications for the Goods provided they can be implemented
within the scope of the Supplier's normal production process without
any considerable additional expense. "Business Day" means any day
(other than a day which is a Saturday, Sunday or legal or bank
holiday in Germany) on which retail banks are open to the public for
business in Germany.
2. Delivery Hero will reimburse the Supplier for any verified and
reasonable expense caused directly by the change/s mentioned above,
which was approved by Delivery Hero in advance, subject to subsection
III.3. below. Should these changes result in unavoidable delays in
delivery date(s) originally agreed shall be updated accordingly with
the mutual agreement of the Parties. For the purpose of this clause,
a delay shall be considered "unavoidable" if it cannot be avoided in
line with the the Supplier's normal production and trading
activities, provided that the Supplier has taken reasonable efforts
to avoid such delay.The Supplier shall undertake to inform Delivery
Hero of the likely additional costs and/or delays in delivery
forthwith, albeit not later than three (3) Business Days after
receipt of the change notification from Delivery Hero.
IV. Lead Time and Delay in Delivery
1. The agreed deadlines and dates are fixed dates ("Fixtermine"). In
the event of non-compliance, the Supplier shall be liable in
accordance with the terms agreed between the Parties, or in lack of
such terms, statutory regulations. Section III. shall remain
unaffected.
2. The Supplier shall undertake to immediately notify Delivery Hero of
likely delays in delivery, in text form, irrespective of the reasons
for such delays.
3. In case of a delay in delivery, The Supplier shall be automatically
in default without having received a reminder.
4. Deliveries before the agreed delivery dates will only be accepted
with prior written approval by Delivery Hero.
V. Performance, Delivery, Passing of Risk, Default in Acceptance
1. Unless otherwise agreed in writing, the Goods shall be delivered to
Delivery Hero's place of business. The place of performance shall be
the respective delivery address.
2. The consignment shall come complete with a delivery note specifying
the shipping date, the object being delivered, citing the item number
and the quantity of Goods, as well as Delivery Hero's order code
(date and number). If the delivery note is missing or incomplete,
Delivery Hero shall not be responsible for resulting delays in the
processing and settling of the invoice.
3. The Supplier shall inform Delivery Hero immediately as soon as the
delivery is available and ready for shipment. The shipment of the
delivery by the Supplier shall be reported to Delivery Hero
immediately in any case by stating the number of units, the
dimensions and the weights of the delivery so that Delivery Hero can
make the corresponding preparations for the acceptance of the
delivery. Delivery Hero is not obliged to accept or remunerate
surplus deliveries.
4. The Supplier shall bear all costs and the risk of accidental loss and
accidental deterioration of the Goods up to the time of handover at
the place of performance.
5. Notwithstanding any statutory regulations, a default of Delivery Hero
to accept the Goods will require the Supplier to expressly offer the
performance of any contributory action from Delivery Hero. This shall
be required even if a specific or defined timeframe has been set for
such contributory action of Delivery Hero.
VI. Prices and Payment Terms
1. The price specified in the order shall be binding; section III. shall
remain unaffected. All prices shall be quoted inclusive of the
statutory rate of value- added tax if this is not shown separately.
2. Unless otherwise agreed in any individual case, the price shall
include all services and additional services performed by the
Supplier (for example and without limitation, assembly, or
installation), as well as all ancillary costs (such as correct
packaging, transport costs, including any transport and third-party
liability insurance as well as banking fees). The Supplier shall be
required to take back packaging materials at Delivery Hero's request,
free of charge.
3. Unless agreed otherwise in text form, the agreed price shall be
payable by Delivery Hero within forty-five (45) calendar days of
complete delivery and performance (including any agreed acceptance
inspection), as well as receipt of a correct invoice, subject to
Section VI. 4. below.
4. Each invoice issued by the Supplier must: (i) state the name of the
department or of the individual from Delivery Hero who instructed the
Supplier. (ii) include an order number as provided by or on behalf of
Delivery Hero (order numbers shall be sent to the Supplier
automatically by Delivery Hero once an engagement is confirmed; (iii)
be in compliance with the applicable VAT law (iv) be emailed to the
department or of the individual from Delivery Hero who instructed the
Supplier, as well as the following mailbox:
invoices.1001@deliveryhero.com.
5. If and to the extent that withholding taxes are due, they shall be
withheld by Delivery Hero and deducted from the payment of the
invoiced amount unless Supplier provides a valid tax exemption
certificate authorised by the appropriate taxing authority in
advance.
6. To the extent Delivery Hero owes interest under mandatory statutory
law, the interest rate shall be limited to the minimum amount
permissible under the applicable law. The Supplier must have issued a
written reminder before Delivery Hero can be considered to be in
default with its payment.
7. Delivery Hero reserves the right to withhold due payments if it has
outstanding claims against the Supplier for incomplete or defective
performance.
VII. Ownership; Reservation of Title
1. The Supplier shall grant Delivery Hero ownership of the Goods to be
transferred permanently to Delivery Hero upon their creation and in
their respective processing status. The Supplier is obliged to
transfer ownership of the Goods to Delivery Hero on the delivery date
free from all kinds of liens and third-party rights under any
applicable law.
2. Should the Supplier retain title to the Goods until such time as the
agreed price has been paid in full, this reservation of title shall
only apply until the price owed in connection with the delivery of
the Goods has been settled.
VIII. Acceptance
1. To the extent the Supplier shall create a work or if the acceptance
of the Goods is explicitly agreed upon between Delivery Hero and the
Supplier in an order document, the Goods are subject to formal
acceptance which must be declared by Delivery Hero in written form.
The Supplier may request partial acceptances only insofar these have
been agreed between the Parties in written form and the nature of the
Goods is suitable for partial acceptance.
2. To the extent that Delivery Hero does not accept the works, or the
Goods provided by the Supplier, the Supplier shall promptly remedy
any defects that prevent acceptance and shall resubmit its works or
the Goods for acceptance. The above acceptance provisions shall apply
accordingly to such resubmissions.
IX. Warranty and Defects
1. The Supplier warrants („gewährleistet") that (i) the Goods meet the
specifications agreed in the order or other document relating to the
contract, and (ii) the Goods comply with all applicable German and
European industry standards and safety or technical regulations, and
(iii) the Goods have been approved by the competent authorities at
the delivery destination. The Supplier shall be liable for any
incorrect or inaccurate advice or information given to Delivery Hero
relating to the Goods.
2. Delivery Hero's commercial duty to conduct inspections shall be
limited to defects which come to light during the incoming Goods
inspection by way of an external assessment, including a check of the
delivery notes, as well as in quality spot checks (such as damage in
transit, incorrect and short deliveries) and in quantity of the
Goods.
3. In case there is any deviation as instructed above and/or any hidden
defect found, the Supplier shall be obliged to rectify such
deviation/defect within a reasonable time period, both the method of
rectification and the time period shall be set by Delivery Hero at
its sole discretion (and in no event shall be unreasonable). If the
Supplier fails to discharge its duty to provide a rectification - be
it by repairing the defect (repair/Nachbesserung) or by supplying an
object which is free from defects (replacement/Ersatzlieferung),
Delivery Hero shall reserve the right to rectify the defect itself
and to demand reimbursement of the costs involved and/or of an
appropriate advance. Delivery Hero shall also be entitled to request
any out-of-pocket costs that it made to rectify such defects.
4. If the cure provided by the Supplier fails or is unacceptable to
Delivery Hero (for example, owing to particular urgency, risk to
operational reliability or to the threat that disproportionate damage
or loss may occur), Delivery Hero shall not be required to set a time
limit for rectification. Delivery Hero, however, may notify the
Supplier if Delivery Hero will rectify the defect itself and seek
payment of the costs incurred.
5. Delivery Hero may cancel individual or still outstanding partial
deliveries without any obligation if the Supplier breaches an
essential provision of the contract, including these T&Cs, in
particular in relation to any substantial changes in quality,
substantial delays in delivery, and/or Goods with substantial
defects.
6. The Supplier shall be liable for all consequences of such
cancellation, including any consequential damages („Folgeschäden").
Delivery Hero’s statutory rights for breach of contract or
performance defects remain unaffected.
X. Recourse in the Supply-Chain
1. In addition to warranty claims, Delivery Hero shall have the
unlimited right to assert claims for recourse within the supply
chain. Delivery Hero shall be entitled, in particular, to ask the
Supplier to provide the type of cure (repair or replacement) which
Delivery Hero owes to its customer in any individual case. This shall
not limit Delivery Hero’s right to choose the type of cure with
respect to subsequent performance (repair or replacement).
2. The right of Delivery Hero to take recourse against the Supplier
shall not be waived if the Goods have been further processed by
Delivery Hero or by a purchaser of Delivery Hero, e.g., by
incorporation into another product, prior to their sale to a consumer
of Delivery Hero.
XI. Liability
1. Supplier is liable for all damages of DH SE and its affiliates caused
by the Supplier and/or its subcontractors, organs, employees and
other personnel, representatives, agents and other third parties
engaged by the Supplier, provided that such damage is due to the
breach of a guarantee ("Garantie") or a warranty ("Gewährleistung")
or a breach of a contractual or statutory duty by the Supplier
(including, in particular, consequential damages („Folgeschäden")
caused by a defect and financial loss). If the damages are based on a
breach of a contractual or statutory duty, the Supplier shall not be
liable if the Supplier can prove that the Supplier is not responsible
for such breach of duty.
2. Without limiting the foregoing, the Supplier shall assume liability
for all claims asserted by third parties due to injury to people and
damage to property and shall hold D H SE and its affiliates harmless
from any such claims unless the Supplier and/or its subcontractors,
organs, employees and other personnel, representatives, agents and
other third parties engaged by the Supplier does not bear
responsibility for the damage or loss.
3. The Supplier further shall bear all costs incurred by DH SE and/or
its affiliates in connection with a goods recall required under
statutory laws on product liability.
4. The Supplier shall be required to take out and maintain a commercial
general liability insurance which covers property damage, bodily
injury, and product liability with a flat-rate cover of at least one
(1) million Euros per injury/damage claim. On request, the Supplier
shall send Delivery Hero a copy of the liability insurance policy.
XII. Intellectual Property Rights; Indemnification
1. D H SE and its affiliates reserve all intellectual property and other
property rights, including ownership and copyrights, to the technical
specifications, figures, drawings, calculations, samples, and other
documents made available to the Supplier; these may not be made
available to third parties without the prior express written consent
of DH SE and/or its affiliates. Such documents and information shall
be used exclusively for the manufacturing and delivery of the Goods
and shall be returned to DH and/or its affiliates after completion of
delivery, in any event no later than after termination of the
contract, and any copies shall be destroyed or deleted.
2. To the extent the Goods are manufactured for DH and/or its affiliates
and are protected by copyrights of the Supplier, the Supplier hereby
grants DH SE and/or its affiliates the exclusive, irrevocable,
transferable, and sub-licensable unrestricted right to use and
exploit the Goods, unlimited in time, territory and content, in any
type of use, including the right to edit, translate, duplicate,
distribute broadcast and make available to the public.
3. Rights of use for works that have been granted remain unaffected by
cancellation, rescission, or termination of the contract. In the
event of rescission, the Supplier is entitled to reasonable
remuneration for the usage rights remaining with DH SE to works
already created, insofar as Delivery Hero does not waive the use of
these rights. The same shall apply in the case of termination,
insofar as the Supplier has not yet received a corresponding pro rata
remuneration.
4. The Supplier guarantees ("garantiert") that the Goods do not infringe
upon third-party intellectual property or other property rights and
that the use or sale of the Goods by Delivery Hero do not infringe
upon such third-party rights.
5. The Supplier shall fully indemnify and hold harmless DH SE and its
affiliates against any claims asserted by third parties in connection
with an infringement of intellectual property or other property
rights, including any fees and costs incurred by DH SE and any other
DH SE affiliate in connection with mounting a defence against a
third-party claim (in particular, prosecution and litigation costs
and fees).
6. Delivery Hero will notify the Supplier forthwith if Delivery Hero
becomes aware of any claims by third parties.
7. The Supplier shall do its utmost to support Delivery Hero in
defending against claims by third parties.
XIII. Confidentiality and Data Protection
1. The Supplier shall treat as confidential the terms and conditions of
the contractual details agreed between Supplier and Delivery Hero, as
well as information and documentation received in connection with the
execution of the contract (apart from information in the public
domain), including after the end of the contract and shall only use
the same for the execution of the contract.
2. The Supplier shall undertake to return or dispose of the confidential
information and documentation to Delivery Hero without delay when
asked to do so, as soon as it no longer requires this for the
execution of the contract.
3. The Supplier shall commit its subcontractors to observe
confidentiality in accordance with this Section XIII.
4. Personal data processing shall be carried out in accordance with the
applicable data protection laws, in particular the General Data
Protection Regulation (EU) 2016/679 ("GDPR"). Whereas processing
activities are carried out on behalf of Delivery Hero and such
processing activities fall within the scope of Art. 28 GDPR, a
separate contract (Data Processing Agreement) for processing on
behalf of Delivery Hero must be attached to this contract in
accordance with Art. 28 GDPR. If the parties jointly determine the
purposes and means of processing personal data, a separate agreement
must be concluded in accordance with Art. 26 GDPR.
XIV. Subcontractors
The Supplier may only engage subcontractors upon prior written approval
of Delivery Hero at its sole discretion. The Supplier must pass on the
obligations imposed on it to the subcontractor in written form and shall
provide proof thereof to Delivery Hero upon request. The Supplier shall
carefully select, instruct and monitor the subcontractors; the Supplier
shall be fully liable for the subcontractors, i.e., to the same extent
as for his own fault. The Supplier shall have the sole right to issue
instructions to the subcontractors; the Supplier shall independently
organise the latter’s deployment. The Supplier is obliged to immediately
terminate the use of subcontractors at Delivery Hero’s request, in
particular if the subcontractor does not have the necessary
qualifications or has violated safety regulations. The Supplier shall
hold harmless and indemnify Delivery Hero against all claims asserted
against it by third parties arising as a result of the Supplier failing
to comply with this provision, unless the Supplier is not responsible
for this.
XV. Assignment
The Supplier shall not assign its rights or obligations under the
contractual relationship to third parties without the prior written
approval of Delivery Hero.
XVI. Limitation of Actions
1. The Parties' claims against each other shall elapse in accordance
with statutory regulations unless otherwise agreed below.
2. Claims for defects shall become time-barred after three (3) years.
3. The period of limitation for claims arising from recourse to
subcontractors of the Supplier in accordance with Section IX above
shall be at least two (2) months after the end of the period of
limitation for corresponding third-party claims asserted against
Delivery Hero.
4. Extra-contractual claims for compensation, including claims based on
tort, shall be subject to the statutory limitation of claims under
applicable law, unless a longer period arises from the application of
the extended period of limitation according to subsection XIV above.
XVII. Code of Conduct
1. Delivery Hero conducts its business in a socially responsible manner,
to protect the labor rights and safety of persons involved in the
production, manufacturing, and provision of services, and to
eradicate and/or prevent any form of slavery or human trafficking in
the supply chain. Delivery Hero expects the Supplier to conduct its
business in a similar manner. Delivery Hero has adopted the Supplier
Code of Conduct available at
http://www.deliveryhero.com/supplier-code-of-conduct (the "Code")
which is incorporated by this reference into these T&C, The Supplier
agrees to comply with the Code at all times or warrants to comply and
abide by their own code of conduct based on the standards at least
equivalent to the Code.
XVIII. Final Provisions
1. Delivery Hero may grant the Supplier its written permission to use
its name and logo in its marketing materials upon the prior written
request of the Supplier. Delivery Hero, at its sole discretion, is
entitled to revoke the permission at any time without justification.
2. These T&Cs and all legal relations between Delivery Hero and the
Supplier shall be solely governed by the law of the Federal Republic
of Germany, excluding the United Nations Convention on Contracts for
the International Sales of Goods (CISG).
3. The exclusive place of jurisdiction, both nationally and
internationally, for all disputes arising out of the contractual
relationship shall be the commercial domicile of Delivery Hero.
However, Delivery Hero reserves the right to take legal action at the
Supplier's commercial domicile.
4. Ancillary verbal agreements have not been made and shall be
considered invalid. Addenda and amendments to the contract shall be
put in writing. This shall also apply to waiving the requirement to
use the written form.
5. The Supplier may only exercise a right to offset where its claim is
legally established or undisputed. The same shall apply to the right
to withhold which may also only be exercised effectively if the
counterclaim by the Supplier is based on the same supply contract.
6. Delivery Hero reserves the right to change these T&Cs regarding
continuing obligations. In case of an amendment of these T&Cs,
Delivery Hero will notify the Supplier of the amendments in text form
(e.g., by email) ("Amendment Notification"). The amendment shall
become effective, and the contractual relationship shall continue
under the amended terms and conditions if the Supplier does not
object to the amendment within two (2) weeks after receipt of the
Amendment Notification in written form. The timely dispatch of the
objection to Delivery Hero shall be sufficient to meet this deadline.
The amendment in the T&Cs shall become effective if the Supplier does
not object in writing or by email within the period of two (2) weeks
(beginning with the receipt of the Amendment Notice) and Delivery
Hero has informed the Supplier of this legal consequence in the
Amendment Notice.
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