Allgemeine Einkaufsbedingungen

Stand: 02/2018

1. Applicable conditions

1. These terms of purchase apply exclusively. GIRA does not recognize contradictory conditions or conditions deviating from these conditions of purchase, unless GIRA explicitly approved their applicability in writing. These terms of purchase also apply when GIRA unconditionally accepts the delivery of the supplier while having knowledge of contradictory conditions of the supplier or conditions deviating from these terms and conditions of purchase.

2. If the supplier’s headquarters are based abroad, the respectively applicable version of the Incoterms DDP (currently the 2010 Incoterms version) is additionally deemed as agreed – as long as these terms of purchase do not include their own regulations.

3. These terms of purchase only apply towards contractors in accordance with § 310 Para. 4 of the German Civil Code (BGB).

2. Orders, electronic declaration of intent, declarations regarding export control

1. Orders are only binding when they are made with the properly signed ordering form from GIRA or electronically using GIRA’s computer-generated forms.

2. The supplier must completely fill out the required declarations regarding export control for GIRA and send them back signed with the required documentation. The order is only effective when the complete and signed declaration has been sent.

3. If the export or re-export of the delivered items requires official authorizations, the effectiveness of the delivery is subject to the issue of the effective export authorization by the responsible authority.

4. GIRA reserves ownership rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without GIRA’s explicit approval in writing. They are to be used exclusively for production purposes on the basis of GIRA’s order; after the processing of the order they are to be returned unsolicited to GIRA. They must be kept secret from third parties; thus the provision in accordance with No. 14, Para. 4 as well as any potentially concluded nondisclosure agreement (NDA) additionally applies.

3. Delivery deadlines

1. If delivery deadlines are set for the supplier in the order form, the indicated delivery deadlines are binding.

2. If the indicated delivery deadline is exceeded, the supplier is in default without a dunning letter from GIRA being required. The receipt of the items by GIRA is decisive for compliance with the delivery date or delivery deadline.

3. In the case of a delay in delivery, GIRA is entitled to make legal claims. In particular, the supplier is obligated to compensate for the damage caused by the delay, unless he/she proves that he/she is not responsible for the delay.

4. Due date of supplier invoice/Terms of payment

1.The supplier’s invoice is due to be paid upon receipt of the merchandise and the properly issued invoice by GiRA.

2. A proper invoice must comply with the formal requirements of the Value Added Tax Act (Umsatzsteuergesetz) and contain the order, item and supplier number. Invoices which do not comply with these formalities will be returned.

3. GIRA is authorized to deduct a discount amounting to 3% from the invoiced amount, if the invoiced amount invoiced amount is paid until the 25th of month following the receipt of goods and receipt of the properly issued invoice. If the receipt of goods and receipt of the properly issued invoice do not fall on the same date, the final occurrence is always definitive for the deadline.

4. The means of payment are chosen by GIRA. This also applies to check and payments by note as well as payments by acceptance.

5. GIRA has unconditional set-off and retention rights in accordance with legal provisions.

5. Prices

1. The price indicated in the order is a fixed and binding price. In the absence of a deviant written agreement the price includes delivery free of charge including packaging.

2. The supplier also bears the costs of transport insurance. Invoices for packaging material used for return delivery must be paid in full. The return delivery of packaging material is executed ex works.

3. GIRA is RVS/SVS self-insured.

6. Receipt of goods/Delivery location/Transfer of risk

1. Goods are only to be delivered during GIRA’s regular business hours: Monday to Friday from 6am to 4pm.

2. If outturn or release samples are requested from GIRA beforehand, the delivery of the serial delivery by the supplier may only begin after written approval of the sample by GIRA.

3. The risk is transferred to GIRA upon turnover of the delivered goods at the delivery location.

7. Ownership

The ownership of the delivered goods is transferred to GIRA upon turnover at the place of delivery and the payment of the purchase price.

8. Reprimand duties/Complaints

1. The goods delivered to GIRA are inspected with regard to any defects as part of the regular business procedure in accordance with GIRA’s general practices. If defects are determined during random inspections which exceed the agreed extent (AQL, PPM), GIRA is authorized to assert guarantee claims with regard to the entire delivery.

2. Notification of defects must be given in writing or by fax or email to the supplier in due time, that is within five days after the discovery of the defect by GIRA von GIRA. Clause 1 applies accordingly for hidden defects.

3. The previous provisions also apply to deliveries in excessive or insufficient quantities; they apply to the delivery of other goods as well. A tolerance of ±5% is permissible for goods in mass quantity.

4. If the supplier has concluded with GIRA a quality management agreement to ensure the quality of deliveries, the previous provisions 1 to 3 only apply to the extent that no deviant provision has been agreed in the quality management agreement.

9. Quality, documentation, customs and export control declarations

1. With regard to the delivery, the supplier must comply with recognized technical provisions, security regulations and the agreed technical data, in particular the standards defined in the German Product Safety Act (ProdSG) of the Industrial Safety Regulation (Betriebssicherheitsverordnung), etc. Modifications to the delivered goods require prior written approval by GIRA. Irrespective of this the supplier must continuously inspect the quality of the delivered goods. The contractual partners will inform each other regarding possibilities for quality improvements.

2. If the authorities require information on the production procedure and inspection documents from GIRA in order to examine certain requirements, the supplier declares his/her willingness to grant GIRA the same rights in his firm and to provide any reasonable support during the process.

3. The supplier guarantees that the customs and export control provisions are complied with and that the information provided in the declaration on export is complete and correct. If any changes occur in the future regarding the delivered goods which impact the categorization of the goods on the basis of export control laws, the supplier will immediately inform GIRA about these changes.

10. Requirements for the delivered goods

1. The supplier ensures that the goods delivered by him/her comply with the applicable version of the Act Governing the Sale, Return and Environmentally Sound Disposal of Electrical and Electronic Equipment (ElektroG) as well as the Battery Law (BattG) insofar as and to the extent that the goods delivered by him/her fall under the applicability of these laws.

2. The supplier ensures that the goods delivered by him/her comply with the limits specified in the respectively applicable version of the Electric Material Regulation (ElektroStoffV).

3. The supplier ensures that the specifications of Regulation (EC) No. 1907/2006 Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH Regulation) are complied with. In particular, he/she ensures that substances contained in the goods he/she delivered were registered insofar as required by the specifications of the REACH regulation and that the information required in accordance with Article 32 of the REACH Regulation was made available to Gira. If the supplier delivers products as specified by Article 3 of the REACH Regulation, he/she ensures that the sufficient information is also turned over in accordance with Article 33 of the REACH Regulation.

4. The supplier also ensures that the goods delivered by him/her do not contain any materials mentioned in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 5 January 2010 (Dodd-Frank-Act), which originate from the specified conflict region specified there and that the supplier has implemented appropriate measures to ensure this.

5. Non-compliance with the abovementioned requirements substantiates a deficiency, which authorizes Gira to exert its rights specified in Item 11. The supplier indemnifies Gira from third-party claims due to non-compliance with the abovementioned requirements. Any potential further claims to compensation by Gira remain unaffected by this.

11. Guarantee

1. The guarantee period is two years (§ 438 Para. 1 no. 3 of the German Civil Code - BGB). The period begins with the receipt of goods by GIRA.

2. If the supplier has committed to assemble the goods or materials which he/she delivers to GIRA, the guarantee period begins in accordance with Para. 1 with the formal acceptance of the provided goods and services by GIRA.

3. In the case of a defect, GIRA may make use of its legal rights at its discretion. In particular, GIRA is authorized to:

a) send back the defective goods at the expense and hazard of the supplier and to demand flawless replacement (supplementary performance),

b) to refrain from requesting replacement of the goods and charge back the invoiced price of the goods (withdrawal from contract),

c) request compensation for damage instead of receiving the goods in accordance with legal provisions (§§ 437, 440, 280, 281, 283, 311 a of the German Civil Code -BGB).

d) to have the reprimanded defects removed by the supplier him/herself in urgent cases (correctable defect) or to have them removed by a third party.

12. Product liability/Exemption/Liability insurance

1. The supplier exempts GIRA from all claims addressed to GIRA, because GIRA or a third party suffered damage due to the proper or intended use of the goods. The same applies to damage, which GIRA directly or indirectly suffers due to the violation of official security regulations as a result of the improper delivery or due to any other circumstances which can be attributed to the supplier.

2. If claims are made to GIRA on the basis of liability without fault in accordance with non-modifiable law towards a third party, the supplier shall bear responsibility towards GIRA to the extent that he/she is directly liable.

3. The obligation to pay compensation is ruled out to the extent that GIRA has effectively limited liability towards its purchasers.

4. The supplier is liable for measures carried out by GIRA to prevent damage (e.g. product recall), unless he/she proves that the damage cannot be attributed to errors in the construction and/or production and/or a violation of the inspection and product observation obligations of the supplier (reversal of burden of proof). GIRA will instruct the supplier regarding the content and scope of the measures carried out to prevent damage to the greatest possible and reasonable extent and give him/her the opportunity to respond.

5. Other legal claims by GIRA remain unaffected by this.

6. The supplier is obligated to maintain product liability insurance with a – blanket – coverage amount of € 5,000,000.00 for harm to persons/material damage; if GIRA is entitled to further claims for damage, these remain unaffected.

13. Violations of export control law/exemption

The supplier exempts GIRA from all claims made to GIRA due to violations of export control laws with regard to the delivered goods.

14. Property rights

1. The supplier guarantees that no third party rights in the Federal Republic of Germany will be violated with regard to and by means of the delivery.

2. If a third party makes claims to GIRA in this respect, the supplier is obligated to exempt GIRA from these claims upon its first written request; GIRA is not authorized to make any agreements with the third party without the consent of the supplier, in particular a compromise settlement.

3. The supplier’s list of exemptions refers to all expenditures necessarily incurred by GIRA as a result of or in relation to claims laid by a third party.

4. The statute of limitation for these claims is 10 years, beginning with the conclusion of the respective contract.

5. The previous provisions do not apply to the extent that the supplier has produced the delivered goods according to drawings, models or other equivalent descriptions or data turned over by GIRA and does not know or does not have to know with regard to the products produced by him/her that property rights are violated.

6. At GIRA’s request the supplier will report the usage of published and unpublished own and licensed property rights and property rights notifications regarding the delivered goods. The use of OpenSource software is to be reported in order to enable GIRA to meet its publication requirements etc.

15. Retention of title/Supply/Tools/Nondisclosure

1. If GIRA supplies parts to the supplier, GIRA reserves property rights to them. The parts may be processed or transformed by the supplier for GIRA. If goods reserved to GIRA are processed with other objects not belonging to GIRA, GIRA shall acquire co-ownership to the new objects in the proportion of the value of the object from GIRA (purchasing price plus value added tax) to other processed objects at the time of processing.

2. If the object provided by GIRA becomes inseparably combined with other objects not belonging to GIRA, GIRA acquires co-ownership to the new object in the proportion of the value of the reserved object (purchasing price plus value added tax) to the other combined objects at the time they are combined. If they are combined in such a way that the suppliers’ object is to be deemed the main object, the contractual parties agree that the supplier transfers proportionate co-ownership to GIRA; the supplier shall safeguard the sole property or the co-property for GIRA.

3. GIRA reserves the right to tools; the supplier is obligated to use the tools exclusively for producing the goods ordered by GIRA. The supplier is obligated to insure the tools belonging to GIRA at their original value against damage due to fire, water and theft. Simultaneously the supplier now also already transfers all claims for compensation from this insurance. GIRA hereby accepts the transfer. The supplier is obligated to carry out all required maintenance and inspection measures as well as all service and care measures for GIRAs tools at his/her own expense. Any malfunctions must be immediately reported; if he/she culpably fails to do so, claims to compensation remain unaffected.

4. The supplier is obligated to keep all obtained illustrations, drawings, calculations and other documents and information strictly secret. They only may be presented to third parties with the explicit approval of GIRA. The nondisclosure obligation also apples after the completion of this contract; it expires when and to the extent that the production knowledge contained in the transferred illustrations, drawings, calculations and other documents has become generally known. Any nondisclosure agreement (NDA) completed by the parties remains unaffected by this.

5. If the security rights in accordance with Para. 1 and/or Para. 2 exceed the purchase price of all not yet paid reserved goods from GIRA by more than 10 %, GIRA is obligated to turn over the security rights at the supplier’s request at GIRA’s discretion.

16. General regulations/Place of fulfillment/Jurisdiction

1. If one or several provisions of these terms of purchase are or become ineffective or void, this does not affect the effectiveness of the remaining provisions. In this case, GIRA and the supplier are obligated to agree on an effective provision instead of the ineffective or void provisions, which comes as close as possible to the economic intentions of the parties.

2. The contractual relationship is subject exclusively to German law. This also applies to the inclusion of the General Terms of Purchase. The application of the United Nations Convention on Contracts for the International Sale of Goods (UN-Purchase Rights Agreement, CISG) is explicitly ruled out.

3. If the headquarters of the supplier are located abroad, German is agreed as the language of the contract. This also applies when the supplier and GIRA exchange contractual documents which are written in a foreign language. If disputes arise regarding the content and interpretation of the contracts concluded by the supplier and GIRA, preference is given to the interpretation of contracts based on the conventional usage of the German language.

4. The place of fulfillment for all mutual obligations resulting from this contractual relationship is the headquarters of GIRA (Radevormwald), as long as not agreed otherwise in writing.

5. The jurisdiction is the locally responsible court at GIRA’s headquarters if the supplier is the agent. This also applies to claims from dunning procedures as well as for claims regarding checks and bills of exchange.

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