General Conditions of Purchase
General terms and conditions of purchase for fan frankenstolz Schlafkomfort H. Neumeyer gmbh & co. KG (Version: 09/2017)
1. validity of the f.a.n. conditions of purchase
These terms and conditions shall apply to all contracts and orders concluded or made by f.a.n. as buyer or purchaser, 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 contradict them. These General Terms and Conditions of Purchase shall also apply if f.a.n. accepts a delivery from the supplier without reservation even though 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 insofar as its conditions do not contradict these General Terms and Conditions of Purchase, even if f.a.n. does not object to it.
Acceptance of deliveries, services or their payment does not imply consent to the terms and conditions of the contractor.
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 respective updated version of these General Terms and Conditions of Purchase when placing follow-up orders.
2 Conclusion of the contract and amendments to the contract
The contract shall be 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 receipt of the objection by f.a.n. shall be decisive for the timeliness.
Subsequent amendments and supplements to a contract or an order require written confirmation to be effective.
3. scope and content of the obligation to perform
The scope and content of the obligation to perform shall be based on the specifications and service descriptions provided upon conclusion of the contract or upon placing the order.
All deliveries must comply with the current DIN standards and other standards customary in the industry, e.g. Ökotex, or EU standards and German and European laws, e.g. the REACH Regulation, unless expressly agreed otherwise in writing.
f.a.n. shall only accept the ordered quantities or numbers of items. Over- or under-deliveries are only permissible after prior agreement with f.a.n.
If partial quantities have been agreed, the supplier shall be obliged to inform f.a.n. of the remaining quantity for each partial delivery.
4 Retention of title, provision of materials
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 shall be deemed to be agreed that the supplier transfers co-ownership to f.a.n on a pro rata basis. The supplier shall keep the sole ownership or the co-ownership for f.a.n.
5. delivery time
Agreed dates and deadlines are binding and must be complied with. The receipt of the goods by f.a.n. or by the recipient specified 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 the said week.
The supplier shall make the goods available in good time, taking into account the time for loading and dispatch to be agreed with the forwarder. The supplier shall be liable for delays in delivery caused by the forwarder.
If the supplier foresees difficulties with regard to compliance with the delivery date which may prevent him from delivering on time, he must inform f.a.n. immediately of the delay, stating the reasons and the expected duration. If the supplier does not comply with his obligation to notify f.a.n., he cannot plead that he is not responsible for the delay.
If the delivery deadline is not met, whether this is the fault of the supplier or not, f.a.n. shall not be obliged to grant a period of grace but shall be entitled to withdraw immediately from the purchase contract, at its discretion, either with regard to the entire order, returning any partial deliveries already made, or only with regard to an order not yet 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. In other respects
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 with a reasonable period of grace. The supplier shall be 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 immediately withdraw from the contract. f.a.n. may also withdraw from the contract if the hindrance due to force majeure lasts longer than one month.
6. transfer of risk
Any risk shall only pass to f.a.n. after delivery and acceptance of the delivery item at the prescribed place of receipt. Until this point in time, the supplier shall bear the risk.
A delivery note must be enclosed with each delivery. Invoices must be sent to f.a.n. at the same time as the goods are dispatched. Invoices shall not be enclosed with the delivery of goods, but shall be sent by separate post.
The delivery note must show:
- Order number
- Article number
- Lot/Quantity/Number of pieces
- Material designation
- Date of departure of the goods
- Packaging unit
- Gross, net and calculation weights
It must be possible to remove the packages:
- Supplier name
- Name of the recipient
- Material designation
- Gross/net weight
If information is missing, illegible or too inaccurate, f.a.n. shall not be responsible for delays in processing.
The supplier undertakes to use the Europallet exchange procedure. If the supplier does not immediately take back the euro pallets on delivery, the euro pallets shall irrevocably pass into the ownership 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 violations of postal, railway or road traffic regulations.
In the case of deliveries from abroad, the supplier is obliged to deliver the goods duty paid, duty free and with all the necessary customs documents.
In the case of deliveries/dispatches of goods not intended for the federal territory 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 respective customs regulations.
The supplier must always ensure that the type and extent of the packaging of the goods is selected in such a way that the goods arrive at f.a.n. in perfect condition and undamaged.
A packaging disposal fee of 0.2% of the gross annual turnover shall be charged by the supplier. It shall be deemed to be firmly agreed and shall be due and payable to f.a.n. in February of the following year without being requested to do so.
The assumption of the costs of an incoming goods inspection by an independent testing laboratory for all deliveries is deemed to be firmly agreed.
In the case of dyed or printed articles, a test certificate from a recognised testing institute must be submitted with the invoice without being requested, stating that the material supplied complies with the latest version of the Consumer Goods Ordinance. The tests to be carried out by the testing institute must be carried out in accordance with the respective valid legal regulations or in accordance with the respective state of science and technology known in Germany. The test report shall be drawn up in accordance with DIN EN 450001.
8. prices/payment conditions
The agreed prices are fixed prices and therefore binding and obligatory. They apply duty paid, "free domicile", incl. 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 shall be sent in duplicate to the invoice recipient named in the order. This must contain:
- Order number
- Order number
- Article number
- Date of order
- Number and date of the delivery note
- Exact information Material designation, exact number, calculation weight
- Delivery plant Mode of dispatch (in the case of consolidated goods, also specify the forwarding agent)
- as well as all required legal information
- In the case of fibre deliveries, a bale list with gross, net and tare weights, as well as a condition note, if applicable.
If information is missing or too inaccurate, 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 on the basis of a decade payment after 10 days less 5% discount as follows:
- Invoices with invoice dates from the 01st to the 10th of a month on the 20th of the same month,
- Invoices with invoice dates from the 11th to the 20th of a month on the 30th of the same month,
- Invoices with invoice date from the 21st to the end of the month on the 10th of the next month, less 5% discount in each case.
f.a.n. shall be entitled to rights of set-off and retention. Settlement of the invoice shall not be deemed to be approval of the delivery or waiver of the notice of defects.
An invoice date shall only be recognised 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 recognised as the value date if there is a reasonable period of time until receipt of the delivery, i.e. if the goods are sent by carrier, 2 days after the invoice is issued, by express 1 day, by freight 4 days, at the latest.
If the supplier requests special payment conditions (flash transfer, etc.), the associated costs shall be borne by the supplier.
All payments are made with reservation until the goods have been inspected by an IDFB 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 authorisations granted shall lapse 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 shall be deemed to exist 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 not affect the supplier's warranty. Assignment of the supplier's claim arising from the business relationship with f.a.n. is only permissible with f.a.n.'s prior written consent.
9. quality assurance/warranty
f.a.n. inspects the goods for quality and quantity deviations from the time of delivery by the supplier. The signatures under the delivery note are always subject to verification. Notification of obvious defects shall be deemed to be in time if it is sent by us within four weeks after receipt of the goods by us and if it is subsequently received by the supplier. Notification of hidden defects shall be deemed to have been made in good time 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.
Goods returned by us are not to be replaced without a special order.
The supplier's warranty for the delivered goods is
36 months, unless a longer period has been agreed in writing.
The supplier shall carry out subsequent fulfilment, if necessary, 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 fulfilment. The supplier shall bear all costs of subsequent performance, including the costs incurred for inspection and determination of the defects and for dismantling.
Otherwise f.a.n. shall have the right to choose the type of subsequent performance. The supplier may refuse the type of subsequent performance chosen by f.a.n. if it is only possible at disproportionate cost. The right to compensation for damages, in particular compensation for damages instead of performance, is expressly reserved.
If the supplier does not begin to remedy the defect immediately and after being requested to do so by
f.a.n., f.a.n. shall be entitled to remedy the defect itself or to have it remedied by a third party at the supplier's expense in order to avert acute risks or to avoid greater damage. If it is foreseeable that it will not be possible for the supplier to rectify the defect or to do so completely by the start of the forthcoming advertising campaign for the goods concerned, f.a.n. shall be entitled to the aforementioned powers even without prior request.
If the supplier fulfils its obligation of subsequent performance by means of a replacement delivery, the limitation period shall start to run again for the goods delivered as replacement 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, labour, 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 accurate and that the products comply with all relevant legal provisions (laws, ordinances, administrative regulations and all other statutory and sub-legislative regulations).
10. property rights, secrecy
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 obligation to maintain secrecy shall also apply after completion of this contract. The documents are to be used exclusively for their intended purpose, namely for the execution of the purchase contract. After execution of the purchase contract, they shall be returned to f.a.n. at its request.
Insofar as the security interests 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, at the supplier's request, to release the security interests at f.a.n.'s discretion.
If a claim for damages is made against f.a.n. by third parties on the basis of product damage for which the supplier is responsible, the supplier shall indemnify f.a.n. on first demand against all claims by third parties including the costs necessary to defend against these costs.
If a recall action has to be carried out due to a case of damage, the supplier shall be 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.
12 Jurisdiction/Place of Performance/Applicable Law
The place of performance for deliveries and services shall be the place of destination specified by f.a.n.
German law shall apply exclusively to the contractual relationships existing between the suppliers and f.a.n., unless expressly agreed otherwise in writing. The place of jurisdiction shall be Aschaffenburg, Germany. f.a.n. shall, however, also be entitled to sue the supplier before the court having jurisdiction over him.
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.
13. third party rights
The supplier warrants that no third party rights are infringed in connection with its delivery.
If a third party asserts a claim against f.a.n. for infringement of property rights (including infringement of competition law provisions), the supplier shall be obliged to indemnify f.a.n. against such claims on first written request.
The supplier's obligation to indemnify shall also apply to all expenses necessarily incurred by f.a.n. as a result of 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.
14. partial ineffectiveness
In the event of the invalidity of individual contractual provisions, the remaining provisions shall remain fully effective. Invalid provisions shall be replaced without further ado by a provision which, as far as legally possible, comes as close as possible to what was economically intended according to the meaning and purpose of the invalid clause.