The supplier and the customer \u2014 where the transaction is not merely a one-off purchase \u2014 enter into a framework supply agreement for repeated deliveries in order to regulate uniformly the fundamental issues arising during a long-term business relationship, in particular the type, quality and price of the goods, including the method of payment, the assurance of a specified quality, liability and the enforcement of claims. In this way, the customer seeks to secure supply, both in respect of raw materials and finished products, ideally at an unchanged or not significantly changing purchase price. The supplier, on the other hand, seeks to guarantee a constant or, in some cases, increasing quantity of products sold.<\/p>\n
Long-term exclusive purchase and supply obligations may also form part of general terms and conditions, provided that they do not have an anti-competitive effect, as the Higher Regional Court of D\u00fcsseldorf also held in its judgment of 17 May 2017 in case VI-U (Kart) 10\/16.<\/p>\n
A mandatory provision of the supply agreement read as follows:<\/p>\n
\u201cThe customer undertakes to purchase the products specified in Annex 1 and forming the subject matter of the agreement exclusively from the supplier for the duration of the agreement.\u201d
\nIf the agreement was concluded for a term of eight years and neither party terminates it within six months after the expiry of the fixed term, the agreement is extended by a further year by the tacit consent of the parties. If, after the third year of the agreement, the customer purchases goods falling within the scope of the agreement from a third party, the supplier may claim damages under Sections 280(1) and 241(1) of the German Civil Code (BGB). In previous proceedings, both the Regional Court and the Higher Regional Court ruled in favour of the supplier.<\/p>\n
An exclusive purchase and supply agreement is valid if it does not infringe the cartel prohibition under Section 1 of the German Act against Restraints of Competition (GWB). Such an agreement is void if it significantly restricts the opportunities of other market participants. If the exclusive purchase and supply agreement is not void, it is advantageous for both contracting parties, as it provides the supplier with a secure sales opportunity and the customer with a secure source of supply. In addition, the supplier had a market share of only 1%. Overall, the court considered the antitrust objections unfounded and the arguments incomplete, referring in particular to the lack of a precise market definition, evidence of market share and conditions of market access.<\/p>\n
Furthermore, an exclusive purchase and supply obligation may also be valid in the form of general terms and conditions under Section 307(1) and (2) BGB, since it does not place the customer at a disproportionate disadvantage (paras. 27 et seq., 35 et seq.). This must be the result of an overall assessment taking into account the interests of both contracting parties. In particular, the customer\u2019s long-term exclusive purchase obligation, or purchase guarantee, is counterbalanced by several substantial considerations provided by the supplier, including access to the market under favourable or customary market conditions together with a purchase acceptance guarantee, even where the supplier does not provide a long-term price guarantee. In addition, the supplier installs equipment free of charge for the use of the products and makes such equipment available for the entire duration of the agreement. The supplier also undertakes to provide various services. In return, the customer is obliged to purchase exclusively from the supplier and, if it fails to comply with its contractual obligations, must pay damages.<\/p>\n","protected":false},"excerpt":{"rendered":"
The supplier and the customer \u2014 where the transaction is not merely a one-off purchase \u2014 enter into a framework supply agreement for repeated deliveries in order to regulate uniformly the fundamental issues arising during a long-term business relationship, in particular the type, quality and price of the goods, including the method of payment, the […]<\/p>\n","protected":false},"author":29,"featured_media":55229,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[139],"tags":[],"class_list":["post-55228","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news-en"],"acf":[],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t