The following terms and conditions of purchase shall apply to all purchase orders or other purchases by GEALAN Fenster-Systeme GmbH (hereinafter referred to as the Customer). In particular they shall also apply to all purchase orders, repeat purchase orders, etc. resulting from an ongoing business relationship.
Should general terms and conditions of the supplier contradict these terms and conditions of purchase in whole or in part, the general terms and conditions of purchase of the Customer shall apply without the need for any further explanation. This provision shall not apply if the Customer provides the supplier with written approval for express derogation from the following conditions. By executing the purchase order, the supplier otherwise expressly acknowledges the following terms and conditions of purchase. Should the supplier not agree with the previous statement, it must notify the Customer of this fact in writing without undue delay before executing the order. The Customer reserves the right to withdraw the purchase order in this case. The supplier shall not be entitled to claim compensation in this case.
2. Purchase order
The scope and content of a purchase order shall be solely derived from the order placed by the Customer. The supplier must expressly emphasize deviations, subsidiary agreements and additions in its order confirmation. In light of this, deviations, subsidiary agreements and additions on the part of the supplier shall only be effective if expressly confirmed in writing by the Customer. The supplier must confirm a purchase order without undue delay. For the purpose of these terms and conditions of purchase, without undue delay shall be understood to mean within 8 days from the date of receipt of a correspondence. Should the supplier not fulfil its obligation to confirm the order within the required deadline, the Customer shall have the right to withdraw from the purchase order without any further legal consequences.
Should the supplier deviate from the purchase order in terms of quality or quantity, these deviations shall only be legally binding for the Customer if it provides express written approval. Should the Customer not grant this approval, it shall be entitled to return unapproved deliveries or partial deliveries at the supplier's cost.
In the case of deviating weights or measurements, the measurement determined by the Customer shall be binding.
The supplier shall ensure that the goods and products supplied are free of third-party rights. In particular this shall also apply to reservations of title and security interests by third parties as well as entitlement to intellectual property.
Each purchase order and order shall be legally independent. The supplier shall therefore have no right of retention against the Customer resulting from other purchase orders. This provision shall not apply if the supplier is owed debts which have been legally established or acknowledged by the Customer.
Should the supplier also be the manufacturer of the ordered products, it shall not fulfil its obligation with products from other manufacturers or suppliers. Should the supplier not be able to fulfil its obligation with its own products for reasons for which the Customer is not liable, it shall offer suitable substitute products. This substitute delivery must be approved by the Customer. The Customer shall have the right to refuse approval in this case without giving any reason.
Should the supplier otherwise use a third party such as a forwarding agent to fulfil its obligations, this party shall be considered an employee of the supplier both under the agreement and tort law. An exclusion of liability for this third party in favour of the supplier shall be expressly excluded.
In addition to the supplied products, the supplier must also provide free of charge all documentation, drawings, etc. required to use the supplied objects as agreed. In particular the supplier must include the respective data sheet without having to be asked. This shall also include documentation required for proper installation, monitoring, repair, procurement of spare parts and maintenance. The aforementioned shall also extend to documents required by the Customer to obtain any permits from third parties or from government bodies.
The Customer shall retain ownership of any illustrations, drawings, calculations, tools, models and other resources, etc. provided to the supplier. In particular this shall apply to any intellectual property rights. The supplier may only use these resources for the purpose of fulfilling the purchase order.
The supplier shall be liable for any damage. Should the aforementioned resources merge with the product to be supplied in terms of ownership, the resources provided by the Customer shall be regarded as the main article in terms of ownership rights.
Should the aforementioned resources no longer be required after a purchase order has been processed, the supplier shall return them to the Customer without undue delay and at its own expense.
Should the supplier use one or more subcontractors for the aforementioned obligations with the Customer's approval, the supplier shall also be responsible for ensuring that its subcontractors adhere to the aforementioned obligations. The supplier shall be liable for any negative impacts resulting from a violation of these aforementioned obligations.
Should a delivery date be set for a specific date, this shall be considered a fixed date with the associated rights for the Customer. In particular no further notice of default shall be required in this case.
Should delivery periods be agreed, these shall be counted from the date when the written order is posted by the Customer. The delivery time shall be considered met if the ordered products reach the place of delivery before the period of time expires.
Deliveries must be made during the Customer's business hours (Monday – Thursday, 7.30 a.m. – 4.00 p.m.; Friday, 7.30 a.m. – 12.00 p.m.).
Early and/or late deliveries shall require the Customer's approval.
5. Further shipping terms
The place of delivery for purchase orders shall be Oberkotzau or Tanna, Thuringia. The shipping risk shall be borne by the supplier. All deliveries shall be free of charge to the Customer's address. Should a different place of delivery be agreed by way of exception, the deliveries shall be provided by the supplier there.
All services by the appointed party shall be rendered in accordance with the Incoterms 2000, in particular "DDP", i.e. Delivered Duty Paid.
The supplier shall send the Customer a copy of the shipping notices by separate post on the date of shipping. These notices shall break down the purchase order date; purchase order, delivery and item numbers; weight; if applicable, production and model numbers; product descriptions; type of packaging as well as shipping method and shipping address. The delivery note and packing slip shall be enclosed with the respective shipments. The order number and unloading area specified by the Customer must be included in all accompanying documents (consignment note, parcel counterfoil, etc.)
Should the supplier not be able to meet agreed delivery deadlines, it must inform the Customer of this in writing without undue delay. This notification must reach the Customer before the end of the agreed delivery time in each case. The delivery time specified in the purchase order shall remain binding.
The supplier shall be responsible for any extra costs or damages incurred by the Customer as a result of the supplier's failure to comply with the shipping conditions.
Version: March 2006
6. Receipt and notification of defects
The agreed plant shall be the place of delivery unless otherwise agreed. The deliveries shall be received by GEALAN there. GEALAN shall have 14 days from receipt to perform a defect and/or quality inspection. A notification of a defect during this time shall be considered as having been made in good time.
The Customer shall also have the right to undertake a qualitative and quantitative inspection directly upon delivery with suitable deliveries. The supplier shall ensure that its delivery staff are prepared for this, both in terms of their expertise and the time available to them.
If products requiring further work or assembly are supplied, the period allowed for notification of defects and quality inspection shall only start once the additional work or assembly has been completed.
The acceptance and delivery periods shall be extended accordingly if the Customer is temporarily unable to receive the delivery item due to circumstances beyond its control or reasons over which it has no influence.
It shall be expressly stated that payments made in respect of a purchase order shall not constitute unconditional acceptance of the goods.
7. Prices and payment
All agreed prices are fixed prices to which the statutory value added tax must be added. All other charges and costs, etc. shall be borne by the supplier.
Other agreements shall require an express written agreement.
Invoices showing the Customer's order number must be issued in duplicate and sent by separate post. Under no circumstances shall invoices be enclosed with the goods. The supplier shall be obliged to separately indicate the value added tax.
Where units, weights, dimensions and so on are relevant, the Customer shall make payments based on its calculations.
Unless otherwise agreed in writing, payment shall be made within 45 days of delivery and receipt of the invoice with a 3% discount or net within 60 days of receipt of the invoice.
The Customer shall be entitled to rights of setting off and retention to the extent laid down by law. These rights cannot be excluded.
Should deliveries involve cross-border import transactions, either from third countries or countries within the EU, the supplier shall bear sole responsibility for proper customs clearance, payment of customs duties and VAT returns. Suppliers from the EU shall always specify their VAT number.
By derogation from § 284 of the German Civil Code, default on the part of the Customer shall require an express notice of default by the supplier.
Regarding the scope of the warranty, the supplier shall comply with the regulations of the German Civil Code and German Commercial Code. It shall also observe regulations for the prevention of accidents as well as the latest versions of the standards, regulations and rules of the professional associations and the German Employers' Liability Insurance Association.
9. Product liability and exemption
Should the supplier be responsible for a product defect, it shall be obliged to exempt the Customer from third-party claims for damages at first request insofar as the cause of the fault is within the supplier's field of control and organisation and if the supplier is liable externally.
The supplier shall be obliged to take out product liability insurance with a minimum sum insured of EUR 2.5 million (lump sum) per personal injury/case of damage to property. Appropriate proof shall be furnished to the Customer at any time upon request. Should the Customer be entitled to further claims for damages, they shall not be affected by the aforementioned provision.
Should the business relationship result in the supplier coming into contact with documents or objects embodying trade secrets belonging to the Customer, they shall be kept secret and may only be used and made accessible insofar as absolutely necessary to execute the order. Should it be necessary to reveal these secrets to a third party, the supplier shall extend its duty of confidentiality to this third party also and take appropriate measures to ensure that it is respected.
Should the Customer order objects or goods from the supplier that the supplier exclusively supplies for the Customer, delivery of the same objects or goods to a third party shall require express written approval from the Customer.
Should a violation of the duty of confidentiality result in losses for the Customer for which the supplier is responsible, the liability for damages shall also extend to consequential damages.
11. Miscellaneous, place of performance, place of jurisdiction
The supplier may only confer rights and obligations resulting from the agreement with the prior written approval of the Customer; this shall apply in particular to the assignment of receivables.
The place of jurisdiction shall be D-95030 Hof/Saale. The Customer shall, however, be entitled to appeal to any other court having jurisdiction for the supplier's place of business.
All business relations between the Customer and supplier shall be exclusively subject to German law.
Should provisions of this agreement or these terms and conditions be or become ineffective, the validity of the remaining provisions of this agreement or these terms and conditions shall not be affected. The parties to the agreement shall be obliged to make all reasonable efforts in good faith to replace ineffective provisions with other provisions that shall achieve the best economic result in a legally effective manner. Amendments or changes to the above terms must be in writing to be effective. This shall also apply to any changes to the requirement for written form.