for the fan frankenstolz Schlafkomfort H. Neumeyer gmbh & co. KG Steppdecken- u. Matratzenfabriken, Mainaschaff (hereinafter referred to as f.a.n.)
(as at: September 2017)
Validity of the f.a.n. Terms and Conditions of Purchase These Terms and Conditions shall apply to all contracts and orders concluded or placed by f.a.n. as purchaser or customer, unless expressly agreed otherwise in writing.
Delivery conditions of suppliers that deviate from these General Terms and Conditions of Purchase shall not become part of the contract, even if f.a.n. does not expressly object to them. These General Terms and Conditions of Purchase shall also apply if f.a.n. accepts a delivery from the Supplier without reservation, although f.a.n. is aware of terms and conditions of the Supplier that conflict with or deviate from these General Terms and Conditions of Purchase.
If the Supplier issues a written order confirmation, this shall only be valid to the extent that its terms and conditions do not conflict with these General Terms and Conditions of Purchase, even if f.a.n. does not object to it.
The acceptance of deliveries, services or their payment shall not constitute consent to the Contractor's terms and conditions.
These General Terms and Conditions of Purchase shall also apply in their currently valid version to future transactions with the Supplier. f.a.n. shall provide the Supplier with the updated version of these General Terms and Conditions of Purchase when subsequent orders are placed.
Conclusion of contract and contract amendments The contract is concluded by the order or the delivery call-off from f.a.n. if the Supplier does not object in writing within one week of receipt of the order or the delivery call-off. The date of receipt of the objection by f.a.n. is decisive for the timeliness of the objection. Subsequent amendments and additions to a contract or an order must be confirmed in writing to be effective.
Scope and content of the obligation to perform The scope and content of the obligation to perform are set out in the specifications and service descriptions provided when the contract is concluded or when the order is placed.
All deliveries must comply with the current DIN and other industry standards, such as Ökotex, or EU standards and German and European laws, such as the REACH Regulation, unless expressly agreed otherwise in writing.
f.a.n. shall only accept the quantities or numbers of items ordered. Over- or under-deliveries are only permitted after prior agreement with f.a.n..
If partial quantities have been agreed, the Supplier is obliged to inform f.a.n. of the remaining quantity for each partial delivery.
Retention of title, provision If the Supplier inseparably mixes the item provided by f.a.n. with other items not belonging to f.a.n., f.a.n. shall acquire co-ownership of the new item in the ratio of the value of the item subject to retention of title (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the Supplier's item is to be regarded as the main item, it is agreed that the Supplier shall transfer co-ownership to f.a.n. on a pro rata basis. The Supplier shall safeguard the sole ownership or co-ownership for f.a.n.
Delivery time Agreed dates and deadlines are binding and must be strictly adhered to. The date of receipt of the goods by f.a.n. or by the recipient designated by f.a.n. shall be decisive for compliance with the delivery date or delivery period. If a calendar week is agreed as the delivery date, the last delivery date shall be the Thursday of that week.
The Supplier shall make the goods available in good time, taking into account the time to be agreed with the carrier for loading and dispatch. The Supplier shall be liable for delays in delivery caused by the carrier.
If the Supplier anticipates difficulties in meeting the delivery date which may prevent him from delivering on time, he must inform f.a.n. immediately, stating the reasons and the expected duration of the delay. If the Supplier fails to comply with its obligation to notify f.a.n., it cannot claim that it is not responsible for the delay.
If the delivery deadline is not met, whether or not this is the fault of the Supplier, f.a.n. shall not be obliged to set a grace period, but shall be entitled to withdraw from the purchase contract immediately, either with regard to the entire order, returning any partial deliveries already made, or only with regard to an order that has not yet been delivered. The Supplier shall be liable for damages incurred by f.a.n. due to non-compliance with the agreed delivery date. If f.a.n. has to make other arrangements, the resulting additional costs shall be borne by the Supplier. Otherwise, f.a.n. shall be entitled to the statutory claims in the event of a delay in delivery.
In the event of force majeure, f.a.n. shall be entitled to postpone the acceptance date by a reasonable period of time. The Supplier is obliged to inform f.a.n. immediately of the reason for the force majeure as soon as it is foreseeable that the delivery deadline cannot be met. If the reason is not communicated immediately, f.a.n. may withdraw from the contract immediately. f.a.n. may also withdraw from the contract if the hindrance due to force majeure lasts longer than one month.
Transfer of risk Any risk shall only pass to f.a.n. after delivery and acceptance of the delivery item at the specified place of receipt. Until this point in time, the Supplier shall bear the risk.
Deliveries/documents A delivery bill must be enclosed with each delivery. Invoices must be sent to f.a.n. at the same time as the goods are dispatched. Invoices are not to be enclosed with the delivery of goods, but sent by separate post.
The delivery bill must show: Order number Article number Batch/quantity/number of items Material description Date of dispatch Packaging unit Dimensions Gross, net and calculated weights Consignor Consignee
The following must be visible on the packages: Name of the supplier Name of the consignee Description of contents, material Gross/net weight
If information is missing, illegible or too imprecise, f. a.n. is not responsible for delays in processing.a.n. shall not be responsible for any delays in processing.
The supplier undertakes to process the goods using the Euro pallet exchange procedure. If the Supplier does not take back the Euro pallets immediately upon delivery, the Euro pallets shall irrevocably become the property of f.a.n.. All deliveries to f.a.n. must be notified by telephone one week in advance.
Shipping documents must be completed in accordance with the regulations. The Supplier shall be responsible for any violations of postal, rail or road traffic regulations.
In the case of deliveries from abroad, the Supplier shall be obliged to deliver the goods duty paid, free of customs duties and with all necessary customs documents. In the case of deliveries/shipments of goods not destined for Germany by the Supplier or his agent, the Supplier must provide f.a.n. with the export documents required for tax purposes and in accordance with the relevant customs regulations.
The Supplier must always ensure that the type and scope of packaging of the goods is selected in such a way that the goods arrive at f.a.n. in perfect condition and undamaged.
The Supplier shall charge a flat-rate packaging disposal fee of 0.2% of the gross annual turnover. It shall be deemed to be firmly agreed and shall be due in February of the following year and payable to f.a.n. without being requested to do so.
The assumption of the costs of an incoming goods inspection by an independent testing laboratory for all deliveries shall be deemed to be firmly agreed.
In the case of dyed or printed articles, a test certificate from a recognized testing institute stating that the material supplied complies with the latest version of the Consumer Goods Ordinance must be submitted with the invoice without being requested to do so. The tests to be carried out by the testing institute must be carried out in accordance with the respective valid statutory regulations or in accordance with the respective state of science and technology known in Germany. The test report must be drawn up in accordance with DIN EN 450001.
Prices/payment terms The agreed prices are fixed prices and are therefore binding. They apply duty paid, "free domicile", including ancillary costs on Euro pallets, unless otherwise agreed in writing between the parties. Packaging costs are included in the price. The price is exclusive of the applicable value added tax.
The invoice must be sent in duplicate to the invoice recipient named in the order. It must contain
Order number Order number Article number Date of order Recipient Supplier Number and date of delivery bill Exact details Material designation, exact quantity, Calculation weight Delivery plant Shipping method (in the case of groupage freight also details of the forwarding agent) and all necessary legal details In the case of fiber deliveries, also a bale list with gross, net and tare weights and, if applicable, a conditions bill.
If information is missing or too imprecise, f.a.n. shall not be responsible for delays in processing. Unless otherwise agreed, f.a.n. shall pay after receipt of the goods and receipt of the invoice after 10 days less 5% discount on the basis of a decade payment as follows:
* Invoices with an invoice date from the 1st to the 10th of a month on the 20th of the same month,
of the same month, *invoices with an invoice date from the 11th to the 20th of a month on the 30th of the same month, *invoices with an invoice date from the 21st to the end of the month on the 10th of the next month, in each case less 5% discount.
f.a.n. is entitled to set-off and retention rights. Payment of the invoice shall not be deemed as approval of the delivery or waiver of the notice of defects.
An invoice date shall only be recognized as the value date if the goods have already arrived on this date. If the goods arrive later than the invoice date, the value date shall be the date of receipt of the goods.
An invoice date can only be recognized as a value date if there is a reasonable period of time until receipt of the delivery, i.e. 2 days after the invoice is issued in the case of shipments by forwarding agent, 1 day in the case of express shipments and 4 days in the case of freight shipments.
If the Supplier requests special terms of payment (express bank transfer, etc.), the associated costs shall be borne by the Supplier.
All payments are made under reserve until the goods have been inspected by IDFB's approved laboratory.
Payment of the invoice does not constitute an acknowledgement, in particular with regard to the quality, price or other characteristics of the goods. Any collection authorizations granted expire in the event of a significant deterioration in the financial circumstances of the Supplier. A significant deterioration in the financial circumstances of the supplier in the aforementioned sense exists in particular if seizures or other enforcement measures are taken against the supplier or if insolvency proceedings have been initiated against the supplier.
The Supplier shall be liable for all consequences incurred by f.a.n. due to missing or incorrect VAT identification and/or VAT identification numbers.
The time of payment shall have no influence on the Supplier's warranty. An assignment of the Supplier's claim arising from the business relationship with f.a.n. is only permitted with the prior written consent of f.a.n..
Quality assurance/warranty f.a.n. inspects the goods for deviations in quality and quantity from the time of delivery by the supplier. The signatures on the delivery bill are always subject to verification.
Notification of obvious defects shall be deemed timely if it is sent by us within four weeks of receipt of the goods by us and is subsequently received by the supplier. Notification of hidden defects shall be deemed timely if it is sent within two weeks of their discovery and is subsequently received by the supplier.
f.a.n. shall be entitled to the statutory claims for defects against the supplier and the supplier shall be liable to f.a.n. to the statutory extent.
The goods returned by us shall not be replaced without a special order.
The Supplier's warranty for the delivered goods shall be 36 months, unless a longer period has been agreed in writing.
The Supplier shall, if necessary, carry out subsequent performance in multiple shifts or overtime or on public holidays if this is necessary for urgent operational reasons at f.a.n.. The Supplier shall bear all costs of subsequent performance, including the costs incurred for the inspection and determination of defects and for dismantling.
Otherwise, f.a.n. shall be entitled to choose the type of subsequent performance. The Supplier may refuse the type of supplementary performance chosen by f.a.n. if it is only possible at disproportionate cost. The right to compensation for damages, in particular the right to compensation for damages instead of performance, is expressly reserved.
If the Supplier does not immediately and after being requested by f.a.n. to remedy the defect, f.a.n. shall be entitled to remedy the defect itself or have it remedied by a third party at the Supplier's expense in order to avert acute danger or avoid major damage. If it is foreseeable that the Supplier will not be able to remedy the defect or not be able to remedy it completely before the start of the forthcoming advertising campaign for the goods in question, f.a.n. shall be entitled to the aforementioned powers even without prior request.
If the Supplier fulfills its obligation of subsequent performance by delivering a replacement, the limitation period for the goods delivered as a replacement shall begin to run again after their delivery.
If f.a.n. incurs costs due to the defective delivery of the subject matter of the contract, in particular transport, travel, labor, material costs or costs for an incoming goods inspection exceeding the usual scope, the Supplier shall bear these costs.
At the request of f.a.n., the Supplier undertakes to provide all necessary evidence (independent test reports, quality control certificates, market research results, etc.) showing that the advertising claims made about the products are correct and that the products comply with all relevant legal provisions (laws, ordinances, administrative regulations and all other statutory and sub-statutory regulations).
Property rights, confidentiality f.a.n. reserves the property rights and copyrights to illustrations, drawings, calculations and other documents in the order documents or other f.a.n. documents. They must be kept strictly confidential. The documents may not be made accessible to third parties without the express written consent of f.a.n..
The confidentiality obligation shall also apply after the completion of this contract. The documents are to be used exclusively for their intended purpose, namely for the execution of the purchase contract. They shall be returned to f.a.n. at the Supplier's request after execution of the purchase contract.
If the security rights to which f.a.n. is entitled in accordance with clause 13 exceed the purchase price of all goods subject to retention of title not yet paid for by f.a.n. by more than 10%, f.a.n. shall be obliged to release the security rights at f.a.n.'s discretion at the Supplier's request.
Liability If a claim for damages is asserted against f.a.n. by a third party due to product damage for which the Supplier is responsible, the Supplier shall indemnify f.a.n. on first demand against all third-party claims, including the costs necessary to defend against these costs.
If a recall action must be carried out due to a case of damage, the Supplier is obliged to reimburse f.a.n. for all expenses arising from or in connection with the recall action carried out by f.a.n.
The Supplier undertakes to maintain product liability insurance with a lump sum cover of € 10 million per personal injury/property damage. If f.a.n. is entitled to further claims for damages, these shall remain unaffected.
Place of jurisdiction/place of performance/applicable law The place of performance for deliveries and services is the destination specified by f.a.n..
The contractual relationship between the Supplier and f.a.n. shall be governed exclusively by German law, unless expressly agreed otherwise in writing. The place of jurisdiction is Aschaffenburg, Germany. However, f.a.n. is also entitled to sue the Supplier before the court responsible for the Supplier.
The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
Third-party rights The Supplier warrants that no third-party rights are infringed in connection with its delivery.
If claims are asserted against f.a.n. by a third party due to infringements of property rights (including the infringement of competition law regulations), the Supplier shall be obliged to indemnify f.a.n. against these claims upon first written request.
The Supplier's obligation to indemnify shall also apply to all expenses necessarily incurred by f.a.n. from or in connection with the claim by a third party.
The limitation period for claims by f.a.n. against the Supplier due to the infringement of third-party rights is ten years, calculated from the conclusion of the contract.
Partial ineffectiveness In the event that individual contractual provisions are ineffective, the remaining provisions shall remain fully effective. The invalid provision shall be replaced without further ado by a provision that comes as close as possible to the economic intent of the invalid provision in terms of the meaning and purpose of the invalid clause.
