General Terms and Conditions of Purchase of ALNO Aktiengesellschaft, Pfullendorf, pino Küchen GmbH Coswig/ Klieken, Gustav Wellmann GmbH + Co.KG, (as of 2009/04)1. General - Scope of Applicability
- Our Terms and Conditions of Purchase apply exclusively. We hereby object to any other conflicting or alternative terms of the Supplier, except such as are expressly approved in writing. Our Terms and Conditions of Purchase shall apply even if we, being aware of such conflicting or alternative terms of the Supplier, accept the goods delivered by the Supplier without any reservation.
- Any arrangements concluded between us and the Supplier concerning the performance of this Agreement must be set forth in a written agreement. This provision shall also apply to any waiver of this written form requirement. The written form requirement shall be deemed complied with only where the legal requirements of Art. 126 of the German Civil Code (BGB -Bürgerliches Gesetzbuch) have been fulfilled.
- Our Terms and Conditions of Purchase shall only apply to independent businessmen within the meaning of Art. 14 of the German Civil Code.
2. Offer - Offer Documents
- Our Terms and Conditions of Purchase shall also apply to any future transactions with the Supplier.
- If the Supplier does not confirm our purchase order within 5 business days from receipt, we shall not be bound to our purchase order. The acceptance made thereafter shall be deemed a new offer by the Supplier; we reserve the right to accept or reject it.
3. Prices - Termes of Payment
- We shall retain all proprietary rights and copyrights in the diagrams, drawings, calculations and other documents. The provisions contained in Clause 9. d. shall apply complementarily.
- All prices shall be as set forth in the purchase order. Unless otherwise agreed, the price shall be “delivered domicile” including packaging material. The return of packaging material shall be subject to a separate agreement.
- We can process only the invoices which, in accordance with the instructions given on our purchase order, indicate the relevant purchase order number. The Supplier shall be liable for any consequences arising from noncompliance with this requirement, unless the Supplier can demonstrate that it is not responsible for such noncompliance.
- The invoice must show the amount of VAT separately.
- Unless otherwise agreed in writing, we shall pay the purchase price within 30 days from delivery of the goods and receipt of invoice with a 3% discount or within 60 days without discount.
4. Delivery Date
- We shall be entitled to set-off and retention to the extent permitted by law.
- The delivery date shall be that specified in the purchase order.
- The Supplier shall inform us promptly, in writing, of any events occurring or coming to its attention which could lead to a delay in delivery.
- In case of delay in delivery, we shall be entitled to the remedies afforded by law.
- In case of delay in delivery, we shall be entitled to claim a penalty amounting to 1% of the net price of the purchase order for every full week of delay. The penalty shall be limited to 5 % of the net price. The Supplier may submit evidence to demonstrate that the damage has been minor. We shall be entitled to the penalty in addition to the right to demand performance.
5. Transfer of Risk - Documents
- This shall be without prejudice to any further compensation claims. However, the penalty shall be set off against such compensation claims.
- Unless otherwise agreed in writing, the goods shall be delivered free domicile at the Supplier’s risk.
6. Claims for Defects
- The Supplier shall state the correct purchase order number on all shipping papers and delivery notes. Should the Supplier omit to do so, delays in processing for which we will not be liable will be unavoidable.
- The Supplier represents and warrants that all goods delivered will meet the newest, state-of-the-art standards and comply with the applicable statutory provisions and the rules and regulations issued by the authorities and the trade associations. Should the Supplier find it necessary in a particular case not to comply with such regulations, the Supplier shall need to obtain our prior written consent to this effect. This consent shall not affect the Supplier’s liability for defects. The Supplier shall notify us promptly of any doubts it entertains concerning a design which we requested.
- We shall promptly notify the Supplier in writing of any obvious defects in the goods delivered as soon as they are detected in the normal course of business, however no later than 10 business days following delivery at our site. We shall notify the Supplier in writing of hidden defects no later than 10 business days after discovery.
- In case of defects, we shall be entitled to the legal remedies without any limitation. At our discretion, we may require that the defects be corrected or the goods be replaced. In such case, the Supplier shall be responsible for all expenses incurred in correcting the defects or replacing the goods. We expressly reserve the right to claim compensation pursuant to the statutory provisions. In particular, the Supplier agrees to compensate for any damages, including consequential damages, arising from the absence of a warranted characteristic and/or from any other defects for which the Supplier is responsible. After giving notification to this effect to the Supplier, we may correct the defects at the Supplier’s expense in cases of imminent danger or of particular urgency.
7. Product Liability - Indemnification - Third-Party Insurance Cover - Compensation for Expenses
- The term of limitation for claims for defects shall be 5 years, commencing from the date of transfer of risk.
- Should the Supplier be responsible for a defect in a product, the Supplier agrees to indemnify and hold us harmless on first demand from any third-party claims for damages, provided that the cause is to be found in the Supplier’s sphere of control and organization, and further provided that the Supplier is liable vis-à-vis third parties.
- The Supplier agrees to maintain a comprehensive product liability insurance in the appropriate amount and upon request, submit the insurance police for inspection. This shall be without prejudice to any claims for damages to which we are eventually entitled.
8. Intellectual Property Rights
- In this context, the Supplier agrees in addition to compensate for any expenses pursuant to Art. 683, 670 and Art. 830, 840, 426 of the German Civil Code, arising from or in connection with any recall action which we may have to perform. To the extent possible and reasonable, we shall notify the Supplier of the content and extent of the recall operations performed and give the Supplier the opportunity to express an opinion in this respect. This shall be without prejudice to any further legal remedies.
- The Supplier warrants that the products delivered do not infringe any third-party intellectual property rights in Europe.
- Should a third party claim infringement, the Supplier agrees, upon first written demand, to indemnify and hold us harmless from such claims.
9. Reservation of Title - Provision of Parts - Confidentiality
- The Supplier’s obligation of indemnification shall cover all necessary expenses arising out of or in connection with such a claim of infringement by a third party.
- We shall retain title in any parts eventually delivered to the Supplier. Processing or modification by the Supplier shall be carried out on our behalf. If the goods under retention of title are processed together with other goods not belonging to us, we shall acquire joint title to the new objects in proportion to the value of our goods (purchase price plus VAT) to the value of the other goods processed at the time of processing.
- If the goods which we provided are mingled inseparably with other goods not belonging to us, we shall hold joint title to the new objects in proportion of the value of our goods (purchase price plus VAT) to the value of the other goods mingled at the time of processing. If the goods are mingled in such a way that the Supplier’s part is to be considered the main part, the Parties agree that the Supplier shall assign a joint ownership proportionally. The Supplier shall keep in custody the exclusive or joint ownership on our behalf.
- If the amount of the security interests to which we are entitled pursuant to Clauses 9. a. and b. exceeds the purchase price of all our unpaid goods under retention of title by more than 20 %, we shall be obligated upon request by the Supplier to surrender the security interests at our option.
10. Data Protection
- The Supplier agrees to keep in strict secrecy all diagrams, drawings, calculations and other documents and information provided and to use them exclusively to perform our purchase orders. They may not be disclosed to any third party without our written consent. Upon completion of the purchase order, the Supplier must, of its own accord, return promptly these confidential documents. The obligation of confidentiality shall survive the completion of the purchase order and shall expire when and to the extent that the manufacturing know-how contained in the diagrams, drawings, calculations and other documents provided has become part of the public domain.
We shall treat the Supplier’s personal data in compliance with the German Data Protection Act.
11. Governing law
The law of the Federal Republic of Germany shall exclusively govern all legal aspects of the relationship between us and the Supplier. The application of the UN Sales Convention of April 11, 1980 is excluded.
12. Final Provisions
- The invalidity of any provision of these General Terms and Conditions of Purchase shall not affect the validity of the other provisions.
- Should the Supplier discontinue its payments, or should bankruptcy proceedings be initiated over its assets, we may withdraw from the Agreement.
- If the Supplier is a merchant. the venue shall be the court having jurisdiction over our principal place of business. However, we reserve the right to file an action against the Supplier before any other competent court.
- Unless otherwise stated on our purchase order, the place of performance shall be our principal place of business.