GEKA GmbH General Delivery and Payment Conditions
§ 1 Validity
(1) All supplies, services and offers from GEKA GmbH (hereinafter also referred to as the “Vendor”) are provided exclusively on the basis of these General Supply and Payment Conditions. These form part of all contracts which we conclude with our contracting partner (hereinafter also referred to as the “Client”) on the supplies or services which we offer. They also apply to all future supplies, services or offers to the Client, even if they are not the subject of a further separate agreement. (2) The terms and conditions of the Client or of third parties do not apply, even if the Vendor does not expressly contract their validity in individual cases. Even if the Vendor refers to correspondence which contains terms and conditions of the Client or of third parties or makes mention of such, this does not suggest any agreement to the validity of such terms and conditions.
§ 2 Offer and contract conclusion
(1) All offers from GEKA GmbH are subject to change and non-binding, in so far as they are not expressly identified as binding or contain a specific term of acceptance. The Vendor may accept orders or commissions within fourteen days of their receipt.
(2) The sole authoritative document for the legal relations between vendor and purchaser is the purchase contract concluded in writing, including these General Supply and Payment Conditions. This fully reflects all agreements between the contracting parties on the object of the contract. Oral promises by the Vendor before the conclusion of this contract are not legally binding and oral agreements by the contracting parties are replaced by the written contract, unless it is expressly stated therein that they will continue to be binding in each case. Supplements and modifications to the agreements reached, including these terms and conditions, require the written form in order to be effective. With the exception of executives or authorised representatives, the Purchaser’s employees are not entitled to reach oral agreements which differ from this. To comply with the written form, transmission by fax is sufficient; otherwise transmission by means of telecommunications, in particular e-mail, is not sufficient.
(3) Information from the Vendor on the object of the supply or service (e.g. weight, dimensions, practical value, capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately applicable, unless its applicability for the purpose contractually envisaged requires precise conformity. These are not guaranteed characteristics but descriptions or identifications of the supply or service. Differences which are customary in the trade, which are the result of legal provisions or which represent technical improvements, as well as the replacement of components by parts of equivalent value, are permissible in so far as they do not detract from the applicability for the purpose contractually envisaged.
(4) The Vendor retains the ownership or copyright for all offers and cost estimates issued by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources made available to the Client. Without the express agreement of the Vendor, the Client may not make these objects, or the content of them, accessible to third parties or make them known to third parties, or have them used or reproduced, either by himself or by third parties. On request by the Vendor he must return these objects to him in their entirety and, where applicable, destroy any copies made of them, if they are no longer needed by him in the proper course of business or if negotiations do not result in the conclusion of a contract.
§ 3 Price and payment
(1) Prices are valid for the scope or services or supplies listed in the order confirmations. Additional or special services will be calculated separately. Prices are given in EUROS ex works plus packaging, legal value added tax, customs for export deliveries plus duties and other official charges
(2) In so far as the prices agreed are based on the Vendor’s list prices and delivery is not to be made until more than four months after the conclusion of the contract, the Vendor’s list prices valid at the time of delivery apply (in each case minus an agreed percentage or fixed discount).
(3) Amounts invoiced are basically to be paid within thirty days without any discount. However, if the Vendor’s price lists applicable in each case contain any other payment conditions, these apply. But if any other payment conditions are agreed in writing, the payment conditions thus agreed in each case apply.
(4) In each case payments are only considered as discharging the Client’s debt when the amount paid in is credited to the account. The acceptance of bills of exchange and cheques is subject to agreement. Bills of exchange and cheques will only be accepted for processing and are only valid as payment once they have been fully cleared. Discount charges and tax on bills of exchange are charged to the Client. When accepting bills of exchange and cheques, no guarantee will be undertaken for prompt submission or the production of claims.
(5) Payments will basically be offset against the oldest demands. If the Client does not pay by the due date, then interest will be charged on the outstanding amounts at a rate of 5% p. a. as from the due date; the application of higher interest rate and additional damages in case of late payment remains unaffected.
(6) Offsetting with counter-claims of the Client or the retention of payments on account of such claims is only permissible on so far as the counter-claims are undisputed or legally established.
(7) The Vendor is entitled only to make deliveries or provide services against prior payment or deposit if, after the conclusion of the contract, circumstances become known to him which are of a nature to considerably reduce the Client’s credit worthiness and on account of which the payment of the Vendor’s outstanding demands from the relevant contractual relations (including those from other individual orders for which the same framework contract applies) is put at risk.
§ 4 Supply and delivery times
(1) Supplies are provided ex works.
(2) Terms and deadlines announced by the Vendor in advance are always only approximate unless a fixed term or a fixed deadline is expressly promised or agreed. In so far as shipment has been agreed, delivery terms and delivery deadlines relate to the point of handover to the forwarding agent, freight carrier or other third party commissioned for the transport.
(3) Notwithstanding his rights with respect to defaulting on the Client’s part, the Vendor may ask the Client for an extension to terms for supplies and services or a postponement of delivery and completion deadlines by the period of time for which the Client fails to meet his contractual obligations with respect to the Vendor.
(4) The Vendor is not liable for impossibility of delivery or for delays in delivery in so far as these have been caused by force majeure or other events which were not foreseeable at the time of concluding the contract (e.g. operating disruptions of all kinds, difficulties in procuring materials or power, transport delays, strikes, lawful lockouts, workforce, energy or raw materials shortages, difficulties in procuring necessary official approvals, official measures or non-delivery or incorrect or late delivery by suppliers), for which the Vendor is not responsible. In so far as such events make it considerably more difficult or impossible for the Vendor to provide his supplies or services and the obstacle is not merely of a temporary duration, the Vendor is entitled to withdraw from the contract. In case of obstacles of a temporary duration, the terms for supplies and services will be extended or the delivery and completion deadlines will be postponed by the period of the obstruction plus an appropriate run-in period. In so far as the Client cannot be expected to accept the supply or service as a result of the delay, he may withdraw from the contract by means of an immediate written notification to the Vendor.
(5) The Vendor is only entitled to make part deliveries if
– the part delivery is usable by the Client in the context of the contractual intended use,
– the delivery of the rest of the goods ordered is ensured and
– this does not means that the Client incurs any considerable extra expense or additional costs (unless the Client declares that he is prepared to accept these costs).
(6) The Vendor only has an obligation to deliver up to the level of a commercial credit limit granted to the Client by the commercial credit insurer or by the Vendor in accordance with commercial credit insurance conditions. The Client remains bound by the order given if this exceeds the limit described above and is obliged to make payment in advance in terms of the amount by which it exceeds this with reference to the purchase price to be provided by him.
(7) If the Vendor falls behind with a supply or service of if a supply or service is impossible for him, for whatever reason this may be, then the Vendor’s liability is limited to compensation in accordance with § 8 of these General Supply and Payment Conditions.
§ 5 Place of completion, dispatch, packaging, transfer of risks, acceptance
(1) The place of completion for all obligations arising out of the contractual relations is the registered office of the Vendor in Waizendorf, unless determined otherwise.
(2) The mode of dispatch and packaging are subject to the dutiful discretion of the Vendor.
(3) At the latest, the transfer of risks to the Client occurs with the handover of the object of delivery (whereby the commencement of the loading process is decisive) to the forwarding agent, freight carrier or other third party specified for carrying out the dispatch. This also applies if part deliveries are made or the Vendor has taken on other services (e.g. dispatch). If dispatch or handover is delayed dues to circumstances whose cause lies with the Client, the transfer of risks to the Client takes place on the day when the Vendor is ready for dispatch and has notified this to the Client.
(4) Storage costs after the transfer of risk will be borne by the Client. In case of storage by the Vendor, the storage costs amount to 0.25% of the invoice amount of the objects of supply to be stored per week of elapsed time. The right to claim for additional storage costs or request proof of lower storage costs remains reserved.
(5) The consignment will only be insured by the Vendor against theft, breakage and transport, fire and water damage, or other insurable risks, on the express wish of the Client and at his costs.
§ 6 Warranty
(1) The warranty period is one year as from delivery or, in so far as acceptance is necessary, as from acceptance.
(2) The items supplied are to be carefully inspected immediately after their delivery to the Client or to the third party specified by him. They are considered to have been approved if no notice of defects is received by the Vendor with respect to apparent
defects or other defects which were identifiable during an immediate, careful inspection within seven working days after delivery of the item supplied, or otherwise within seven working days of the discovery of the defect or the time when the defect was recognisable for the Client during normal use of the item supplied without closer inspection, using the form determined in § 2 (2) p. 6. On request by the Vendor, the item of supply to which the complaint relates is to be sent back to the Vendor carriage paid. If the notice of defects is justified, the Vendor will reimburse the costs of the cheapest method of dispatch; this does not apply in so far as the costs rise because the item of supply is located somewhere other than the place of use as determined.
(3) In case of material defects in the items supplied the Vendor is initially obliged and entitled to repair them or supply replacements according to his choice, which is to be made within an appropriate period. In the event of failure, i.e. repair or replacement supply is impossible or unreasonable or in case of refusal or inappropriate delay, the Client may withdraw from the contract or reduce the purchase price appropriately
(4) If the Vendor is to blame for a defect, the Client may demand compensation under the conditions stipulated in § 8.
(5) In case of defects in components from other manufacturers, which the Vendor cannot remedy for reasons of licensing law or for factual reasons, then, at his choice, the Vendor will make his warranty claims against the manufacturer and supplier on the Client’s account or transfer the title to this to the Client. Warranty claims against the Vendor only exist for defects of this kind under other conditions and in accordance with these General Supply Conditions if the legal enforcement of the abovementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example, because of insolvency. During the period of the legal dispute the period of limitation is suspended as regards the Client’s warranty claims in this matter against the Vendor.
(6) The warranty becomes invalid if the Client modifies the item supplied without the approval of the Vendor or allows this to be done by third parties and the remedying of the defect is made impossible or unreasonably harder because of this. In each case the Client must bear the additional costs of remedying defects caused by the modification.
(7) A supply of used items agreed in individual cases with the Client is done under exclusion of any warranty.
§ 7 Property rights
(1) In accordance with this § 7 the Vendor vouches for the fact that the item supplied is free of third party industrial property rights or copyrights. Each contracting partner will immediately inform the other contracting partner in writing in the event that claims are made against him due to the infringement of such rights.
(2) In the event that the item supplied infringes a third party industrial property right or copyright then, according to his choice and at his own costs, the Vendor will either alter or exchange the item supplied in such a way that it no longer infringes any third party rights, but so that the item supplied continues to fulfil its contractually agreed functions, or procure the right of use for the client by concluding a licence contract. If he does not manage to do this within an appropriate period, the Client is entitled to withdraw from the contract or reduce the purchase price appropriately. Any claims for damages by the Client are subject to the limitations in § 8 of these General Supply and Payment Conditions.
(3) In case of infringements of products from other manufacturers supplied by the Vendor then, according to his choice, the Client will make his claims against the manufacturer and previous supplier on the Vendor’s account or transfer this title to the Vendor. Claims against the Vendor only exist in this case in accordance with this § 7 if the legal enforcement of the abovementioned claims against the manufacturer and previous supplier was unsuccessful or is futile, for example, because of insolvency.
§ 8 Liability for damages in case of default
(1) The Vendor’s liability for damages, regardless of the legal grounds but in particular due to impossibility, delay, defective or incorrect delivery, contractual infringement, infringement of duties during contract negotiation and action in tort is, in so far as there is a question of blame in each case, limited in accordance with this § 8.
(2) The Vendor is not liable
a) in the event of simple negligence by his agents, legal representatives, employees or other servants;
b) in the event of gross negligence by his non-executive employees or other servants, in so far as this does not amount to an infringement of essential contractual obligations. Considered essential to the contract are the obligations for prompt supply free of defects and duties of consultation, protection and care, which will make the use of the supply item in accordance with the contract possible for the Client or which serve the purpose of protecting the life and limb of personnel of the Client or third parties or the Client’s property against considerable damage.
(3) In so far as the Vendor is liable for damages on the grounds of and in accordance with § 8 (2), this liability is limited to damage which the Vendor has foreseen when concluding the contract as a possible consequence of a contractual infringement or which, under consideration of the circumstances, were or should have been known to him or which, by applying due care and attention, he should have foreseen. Furthermore, indirect damage and consequential damage resulting from defects in the item supplied are only subject to compensation in so far as such damage is typically to be expected when using the item supplied as stipulated.
(4) In the event of liability for simple negligence, the Vendor’s obligation to make compensation for property damage and personal injury is limited to an amount of EUR 1.5 million per claim (corresponding to the current cover sum of his product liability insurance or third party insurance), even if this is a case of infringement of obligations essential to the contract.
(5) The above liability exclusions and limitations apply to the same extent in favour of the Vendor’s agents, legal representatives, employees and other servants
(6) In so far as the Vendor provides technical information or acts as an adviser and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and with the exclusion of any liability.
(7) The limitations of this § 8 do not apply to the Vendor’s liability on account of deliberate actions, for guaranteed characteristics, on account of injury to life, limb or health or according to the product liability law.
§ 9 Reservation of ownership
(1) The following agreed reservation of ownership serves as security for all and any demands of the Vendor against the Client, existing now and in the future, arising out of the supply relationship existing between the contracting partners (relevant supply relationship(s) is (are) marked off below)
Brushes and tools for applying cosmetic products – Vendor’s internal designation: “top with applicator” –
Plastic bottles with a volume of less than 2 l – Vendor’s internal designation: “bottles” –
Plastic parts – Vendor’s internal designation: “threaded parts and wipers“ –
(also including payment balance claims from a current account limited to this supply relationship).
(2) The goods delivered by the Vendor to the client remain the Vendor’s property until complete payment of all secured demands. The goods, as well as the goods included in the reservation of ownership to take their place in accordance with this clause, are referred to as reserved goods.
(3) The purchaser stores the reserved goods free of charge for the Vendor.
(4) The purchaser is entitled to process and sells the reserved goods in normal business dealings up to the point of instigation of recovery (paragraph 9). Pledging as collateral and transfer by way of security are not permissible.
(5) If the reserved goods are processed by the purchaser then it is agreed that the processing is done in the name and on behalf of the Vendor as manufacturer and the Vendor directly acquires the ownership or – if the processing is carried out with materials from a number of owners or the value of the processed objects is higher than the reserved goods – the co-ownership (fractional ownership) of the newly produced objects in relation of the value of the reserved goods to the value of the newly produced objects. In the event that no such acquisition of ownership should occur with the Vendor, the purchaser hereby transfers his future ownership or – in the above-mentioned relationship – co-ownership of the newly produced objects as security to the Vendor. If the reserved goods are combined or inseparably mixed with other objects to form an integral object and if one of the other objects is to be seen as the main object, then, in so far as the main object belongs to him, the Vendor transfers the proportional co-ownership of the integral object to the purchaser in the ratio stated in the 1st sentence.
(6) In the event that the reserved goods are sold on, the purchaser hereby transfers the resulting claim against the acquirer – or in case of co-ownership of the Vendor of the reserved goods in proportion to the proportion of co-ownership – to the Vendor by way of security. The same applies for other claims which take the place of the reserved goods or which arise with reference to the reserved goods, such as insurance claims or claims arising from actions in tort in case of loss or destruction. The Vendor empowers the purchaser, in a revocable manner, to collect the claims transferred to the Vendor in his own name on behalf of the Vendor. The Vendor may only revoke this power of collection in case of recovery.
(7) If a third party takes possession of the reserved goods, in particular by distraint, the purchaser will immediately point out the Vendor’s ownership to him and inform the Vendor of this, in order to allow him to implement his rights of ownership. In so far as the third party is not in a position to compensate the Vendor for legal or out-of-court costs incurred in this connection, the purchaser is liable with respect to the Vendor for this.
(8) On request and if he so chooses, the Vendor will release the reserved goods and/or the objects or claims standing in their stead, in so far as their value exceeds the amount of the secured claims by more than 50%
(9) If, in the event of behaviour by the purchaser contrary to the contract – in particular late payment – the Vendor withdraws from the contract (case of recovery) he is entitled to demand the reserved goods.
§ 10 Taking back packaging in accordance with the packaging ordinance
The Client releases us from the obligation as per § 6 paragraph 2 of the packaging ordinance to take back and recycle sales packaging of any kind.
§ 11 Concluding provisions
(1) The legal venue for all and any disputes arising out of the business relations between the Vendor and the Client is, according to our choice, D-91522 Ansbach or the head office of the Client. For claims against the Vendor, D-91522 Ansbach is the exclusive legal venue. Compelling legal provisions on exclusive legal venues remain unaffected by this ruling.
(2) The relations between the Vendor and the Client are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) does not apply.
(3) In so far as the contract or these General Supply Conditions contain any loopholes, those legally effective provisions which the contracting partners would have agreed according to the commercial aims of the contract and the purpose of these General Supply Conditions if they had been aware of the loopholes are considered to be agreed for filling these loopholes
The Client takes note of the fact that the Vendor stores data arising out of the contractual relations in accordance with § 28 of the Federal data protection law for the purposes of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) in so far as this is necessary for the execution of the contract.
Conditions of Purchase GEKA GmbH
§ 1 Applicable conditions
(1) Orders placed by GEKA GmbH will be exclusively on the basis of the GEKA GmbH Conditions of Purchase. The supplier's general terms and conditions of delivery or other different agreements will only apply if they are confirmed in writing by GEKA GmbH as an addition to the GEKA GmbH Conditions of Purchase.
(2) The GEKA GmbH Conditions of Purchase will also apply if we are aware of conditions of the supplier that conflict with or are different to the GEKA GmbH Conditions of Purchase yet accept a delivery without raising any objection. In the conditions set out here, we expressly oppose any reference or counter-acknowledgement by the supplier asserting his terms and conditions of delivery.
(3) The GEKA GmbH Conditions of Purchase will also apply to all future transactions with the supplier.
§ 2 Orders
(1) Only formal orders placed in writing will be valid. The written form will include e-mail and fax.
(2) The acceptance of every order will be acknowledged without delay by the supplier upon receipt but within two (2) weeks at the latest. If GEKA GmbH has not received the acknowledgement within two (2) weeks of the date of the order, GEKA GmbH will be entitled to cancel the order. Should GEKA GmbH not cancel in such cases, the order will be affected at the time the delivery items are delivered to GEKA GmbH.
(3) Within the limits of what is reasonable for the supplier, GEKA GmbH may request changes to the item to be supplied in respect to its construction and design. In this context, adequate provision must be made to take account of the implications, in particular in respect to additional and reduced costs and delivery dates.
§ 3 Prices
(1) Unless otherwise agreed, the prices indicated in GEKA GmbH order and confirmed by the supplier will be binding.
(2) If no special agreement has been reached, the prices for the delivery will be pursuant to Incoterms 2010 DAP.
§ 4 Invoices and supplier declarations
(1) The invoice will be sent to GEKA GmbH’ invoice address and may not be enclosed with the delivery. It must contain all the data specified by GEKA GmbH sand one copy of this invoice will be submitted to GEKA GmbH without delay but at the latest within 5 days of delivery. Receipt of the invoice will not render accounts receivable due for payment.
(2) The supplier is obligated, at the latest with the initial delivery, to submit a supplier’s declaration pursuant to EC Regulation 1207/2001 or a declaration pertaining to non-preferential origin pursuant to EC Regulation 2913/92 Art. 22-26 as well as, on request, carry out a test pursuant to German, European, as well as American export law (specifying the German/European export list number [EL] or the American ECCN).
(3) Until the formal requirements pursuant to items (1) and (2) have been met, the invoices will be deemed as unissued.
§ 5 Conditions of payment
(1) If no varying agreements have been made, net payment will be made GEKA GmbH within 75 days after receipt of invoice and goods.
(2) Default of payment will only occur 30 days after the due date and receipt of the invoice. The invoice will be due 30 days after further processing of the delivery items, but at the latest 75 days after the invoice has been received; at the earliest, however, following compliance with the written form requirements specified in para. 4, items (1) and (2) and receipt of the delivery.
(3) Payment will be made under reserve of invoice verification.
(4) In the case of the acceptance of early deliveries, the deadlines for determining the due dates will only commence following the agreed delivery date.
(5) Interest on arrears for payment claims will be limited to a maximum of 5 percentage points above the base lending rate. If the supplier pays lower interest on credit, such rates will be deemed authoritative. In the event that compensation claims are lodged for delayed performance, the supplier is to provide GEKA GmbH with proof of the interest on credits that the supplier pays.
(6) A renewed and/or extended reservation of title is excluded.
§ 6 Delivery dates and periods
(1) The dates, quantities and periods listed in the order and/or delivery schedule are binding and must be satisfied/complied with in full. GEKA GmbH is not under obligation to accept partial performance. In the event that the supplier brings about partial performance, GEKA GmbH may, following a reasonable period to perform services in full, which has been proven unsuccessful, reject the partial deliveries as not due. Receipt of the goods at the agreed GEKA GmbH unloading point, or insofar as no unloading point has been agreed on, at GEKA GmbH’ registered office, will be deemed authoritative as regards complying with the delivery dates.
(2) In the case of delivery call-ups, the supplier is to make the delivery available as follows:
• The demand, which will be described as immediate demand, is to be delivered by the supplier without delay to the unloading point specified in the call-up following receipt;
• Future demand is to be kept available by the supplier for the dates stated in the call-up. Delivery is to be carried out at the time at which we call up such delivery quantities/parts of such delivery quantities as immediate demand;
• Insofar as notice has been given for a demand which has not, however, been called up as immediate demand, such a backlog is only to be delivered at the time at which the backlog is called up as immediate demand.
This will not affect varying agreements/allocation of deliveries.
§ 7 Dispatch/place of performance/passing of risk
(1) In each case, the delivery will be made to the address specified on the order. The goods are to be accompanied by a delivery note in duplicate.
(2) Unless GEKA GmbH has undertaken dispatch itself and/or specified the freight forwarding company, the place of performance will always be the address stipulated on the order and, if no address is specified, the GEKA GmbH registered office.
(3) Unless it has been agreed otherwise, GEKA GmbH will take out transport insurance. This will not affect the risk borne by the supplier.
(4) The passing of risk will take place according to Incoterms 2000, as specified in para. 3, item 2.
§ 8 Delay in delivery
(1) The supplier will bear the supply risk for the delivery items ordered by GEKA GmbH.
(2) The date stated in written orders by GEKA GmbH or in other declarations by GEKA GmbH in conjunction with the order will be authoritative as regards the delivery date determined according to the calendar. Date specifications on the part of the supplier are irrelevant regarding the time of the service rendered by the supplier, unless such dates correspond with those stated by GEKA GmbH.
(3) As soon as the supplier foresees difficulties in the procurement of materials, manufacture, etc., which could prevent him from supplying the contractual goods within the stipulated period, he will inform GEKA GmbH of this immediately. This will not affect the supplier’s obligation to supply the goods on schedule or to assume the supply risk.
(4) The acceptance of a delayed delivery or performance does not in any way constitute a relinquishment of claims against the supplier to which GEKA GmbH is entitled due to the delayed delivery and, in particular, does not constitute a relinquishment of any claims to contractual fines. GEKA GmbH may reject partial performance at any time as non-performance of the supplier’s delivery obligation.
(5) If the supplier is under obligation to supply GEKA GmbH with delivery items on several occasions, and if the supplier exceeds the agreed delivery dates for two deliveries/partial deliveries, GEKA GmbH will then be entitled to cancel any existing outline agreement between the parties pertaining to the delivery due to serious reasons. In this respect, the objection raised by GEKA GmbH regarding initial non-compliance with the time limit will be deemed a warning that has been unsuccessful on the grounds of additional non- compliance with time limits. This does not affect GEKA GmbH’ right to assert all claims to which GEKA GmbH is entitled as regards non-compliance with the time limit of the respective supply of single items. If no outline agreement is in place between GEKA GmbH sand the supplier in the above-mentioned cases, GEKA GmbH will, in the case of non-compliance with time limits on two occasions, be entitled to withdraw from the deliveries/parts of deliveries that remain outstanding. This will also apply if the supplier was not responsible for the delay. This does not affect further-reaching rights on the part of GEKA GmbH, even in the event that a withdrawal is declared.
(6) If the supplier is delayed in his deliveries and services through his own fault, he will be obligated to compensate GEKA GmbH for resulting damages. Insofar as no other damages can be proven, the supplier will be obligated to pay GEKA GmbH1% of the backlogged delivery value per week or part thereof, up to a maximum of 10% of the backlogged delivery value.
§ 9 Force majeure
(1) Incidents, force majeure, strikes and lock-outs at GEKA GmbH or at GEKA GmbH’ suppliers, which result in production being stopped or restricted at GEKA GmbH sand which could not be avoided, in spite of taking reasonable care under the circumstances, entitle GEKA GmbH to postpone acceptance and payment for the duration of the impediment and a reasonable start-up period.
(2) Should acceptance be deferred in the above-mentioned cases and the time fixed for payment extended, any possible claims for compensation on the part of the supplier will not apply. However, GEKA GmbH may only claim relief by reason of such circumstances if GEKA GmbH has informed the supplier of these events within a period appropriate for the circumstances.
(3) If these impediments last for less than two months, the supplier is not entitled to withdraw from the contract, as long as GEKA GmbH accepts the delivery items following the expiration of the 2-month deadline. If these impediments last longer than two months and after a reasonable additional period has been granted, the supplier will be entitled to withdraw from the contract in respect of the part that has not yet been completed and not paid for by GEKA GmbH.
§ 10 Quality and documentation
(1) The goods or services delivered by the supplier will comply with the generally accepted rules of technology, safety regulations and the agreed technical data. Changes to the delivery item or a released production process will be subject to prior, written approval by GEKA GmbH.
(2) Initial sampling will ensue according to the concluded quality assurance agreement. The necessary documents are to be submitted in German or English. No other language is permitted. If GEKA GmbH requests initial samples, series production may not commence until written confirmation has been given that the samples have been passed as good. Irrespective of this, the supplier will constantly inspect the quality of the goods supplied and design his quality assurance system so that it always incorporates state-of-the-art technology, in particular in respect to DIN ISO 9000:2008.
(3) If the type and scope of testing, as well as test equipment and methods, have not been firmly agreed on between the supplier and GEKA GmbH, the supplier will make an appropriate suggestion. At the supplier’s request, GEKA GmbH will be prepared, within the scope of its knowledge, experience and possibilities, to discuss testing with the supplier and determine the level of required test technology. If the parties do not reach an agreement on this, the test equipment and methods will be bindingly determined for both parties by GEKA GmbH sat its reasonable discretion.
(4) If the supplier has received from GEKA GmbH drawings, samples or other specifications, he will undertake to comply with these with reference to the type, quality and design of the delivery item. The supplier may not refer to documents, advertising statements or drawings that contain statements on the quality of the delivery item, unless the requirements reflected therein comply with GEKA GmbH requirements in the above documents. In other respects, the supplier is, however, bound by such statements insofar as these exceed the GEKA GmbH quality requirements.
In the case of components marked in the technical documentation or where it has been specifically agreed, the supplier will also keep special records indicating when, in which way and by whom these delivery items have been tested with regard to the characteristics subject to mandatory documentation and what the result of the required quality tests were. The test documentation is to be kept for 20 years and, if required, submitted to GEKA GmbH. If the supplier discontinues business operations prior to the expiration of the 20-year period, he will surrender the documents at that time to GEKA GmbH free of charge. The supplier will place his sub-contractors under the same obligation within the scope of the available legal means.
(5) Should the authorities or GEKA GmbH’ customers require GEKA GmbH to allow them to inspect production procedures or production documentation for specific requirements, the supplier declares that he is willing to grant them the same rights in his company and to give any reasonable assistance required in this context. In addition, the supplier will also ensure that these rights will be granted to the authorities, GEKA GmbH, or customers of GEKA GmbH in respect to his sub-contractors.
(6) In the case of materials, which, for reasons of legislation, regulations, and other provisions, or their composition or effect on the environment, require special treatment in respect to packaging, transport, storage, handling and/or waste disposal, the supplier will submit a safety data sheet with the quotation to GEKA GmbH, completed in full, as well as any data sheet that may be required for further distribution abroad and a relevant accident data sheet (transport). If changes in the materials or legal position occur, the supplier will submit revised data sheets to GEKA GmbH.
§ 11 Hazardous Substances and Preparations
(1) The supplier shall fulfill the legal regulations of the countries of manufacture and distribution relating to goods, materials and procedures that are subject to special treatment, inter alia regarding their transportation, packaging, labeling, storage, handling, manufacture and disposal on account of laws, ordinances and other regulations or on account of their composition and their impact on the environment.
(2) In this case, the supplier shall provide GEKA GmbH with the necessary papers and documents before the order is confirmed. In particular, all hazardous substances and water-endangering materials may be delivered only after presentation of an EC safety data sheet and after approval has been given by GEKA GmbH. Should the requirements in accordance with lit. (1) change during the delivery relations, the supplier shall immediately forward to GEKA GmbH the papers and documents relating to the changed requirements.
(3) GEKA GmbH shall be entitled to return hazardous sub-stances and water-endangering materials that were supplied for test purposes to the supplier free of charge.
(4) The supplier shall be liable to GEKA GmbH for any damage arising as a result of negligent non-compliance with the existing legal regulations.
(5) Solely for information purposes, and excluding any responsibility for their accuracy and completeness, GEKA GmbH provides a ”Prescription List/List of Substances Subject to Declaration” on the GEKA GmbH homepage (www.geka-world.com).
(6) The supplier shall ensure that the requirements of the EU chemical legislation REACH (Regulation (EC) No. 1907/2006, Official Journal of the European Union dated 30.12.2006) – hereafter referred to as ”REACH” – are complied with within the specified time, in particular preregistration and registration. GEKA GmbH shall not be obliged in any way to carry out the (pre)registration. The supplier is aware that the Products cannot be used if the requirements of REACH are not completely and properly complied with.
(7) In fulfilling its contractual obligations, the supplier shall also comply with all legal and official regulations with regard to environmental protection.
(8) The supplier shall indemnify GEKA GmbH in full against all consequences, in particular damages suffered by GEKA GmbH sand any claims of third parties against GEKA GmbH, that result from the supplier negligently not, partially, or belatedly complying with or fulfilling the above provisions in lit. (6)–(7).
§ 12 Notice of defects
(1) Insofar as GEKA GmbH is obligated to provide notice of defects in quality, this will ensue at the latest 14 days following receipt of the goods in the case of obvious defects.
(2) In the case of goods where the defect can only be detected during processing by GEKA GmbH and/or installation on the part of GEKA GmbH’ customers, the notice of defects will be deemed to have been given in good time if it is made within one week after the defect has been detected at GEKA GmbH or following receipt of the notice of defects in quality issued by GEKA GmbH’ customer.
(3) In the event that a claim is asserted by GEKA GmbH’ customer as a result of a defect - irrespective of non-compliance with the regulation pertaining to proper notice of defects - the notice of defects from GEKA GmbH will be considered to have been made in good time if the notice of defects on the part of GEKA GmbH is made 7 days after notice is given of the defect by GEKA GmbH’ customer.
(4) If a claim can be asserted against GEKA GmbH as a result of a defect that is attributable to the fact that the supplier and/or his agents made inaccurate statements to the GEKA GmbH customer regarding the quality of the delivery item, the notice of defect will be considered to have been made in good time if GEKA GmbH notifies the supplier of this defect 14 days after receiving the notice of defect from the GEKA GmbH customer.
(5) If the facts provided for in accordance with items (1) to (4) constitute a restriction of the rights of the supplier pursuant to § 377 of the German Commercial Code (HGB), the supplier will waive his objection to a delayed notice of defects.
(6) Any payments of the purchase price that may have been made before the defect was detected will not constitute recognition that the goods are free from defects and were delivered according to regulations.
§ 13 Material defects
(1) In the case of a defective delivery, the statutory provisions valid at the time of the delivery by the supplier will apply, unless there are agreements deviating from these Conditions of Purchase.
(2) Unless otherwise stated below, the statute of limitations for claims for material defects, which do not apply to a structure, and which are not objects normally used in a structure, will be 36 months from the time when the delivery item is accepted by the GEKA GmbH customer, at the latest, however, 40 months from the delivery of the items to GEKA GmbH.
(3) A widespread defect is present if at least 10% of the same type of delivery items have a comparable defect.
(4) The suspension of the statute of limitations is based on the statutory provisions subject to the proviso that the suspension of the statute of limitations commences at the time of receipt of the notice of defects at the supplier's premises. In the case of several attempts to remedy the defect, the statute of limitations will be suspended for at least 3 additional months, calculated from the last attempt to remedy the defect.
§ 14 Producer’s liability
(1) Unless otherwise stipulated, the materials and parts to be delivered to GEKA GmbH are intended for installation in packaging systems for the cosmetic industry. These products are used throughout the world.
(2) The supplier must carry out all inspections of the products manufactured and/or supplied by him, irrespective of any incoming goods inspections that may be undertaken by GEKA GmbH. The supplier will be responsible for the perfect quality of the delivery item. Inspections carried out by GEKA GmbH will not release the supplier from this obligation.
(3) The statutory provisions will be deemed applicable as regards claims lodged by GEKA GmbH against the supplier pertaining to producer's liability. Insofar as the statutory provisions include no regulation for circumstances by which a claim can nevertheless be asserted against GEKA GmbH due to product liability or a breach of safety regulations imposed by the authorities in Germany or other
countries, the supplier will reimburse GEKA GmbH for any losses incurred as a result of this, including the costs for legal action, providing the supplier is the manufacturer of the defective delivery part that caused the defect, and/or exempt GEKA GmbH from claims for damages. This liability of the supplier will also exist even in the case of non-culpability/non-responsibility of the supplier, if a claim is made against GEKA GmbH under German or foreign law on the grounds of liability without fault due to this defective part of the delivery. The same rules governing the burden of proof will apply to the relationship between GEKA GmbH and the supplier as between the claimant and GEKA GmbH. Should several parties be liable for damages covering the same loss, § 5 of the Law of Product Liability will apply in this case. If GEKA GmbH is also liable, § 6 of this law will apply.
If GEKA GmbH or the GEKA GmbH customer is obligated to carry out a recall campaign on account of a defect caused by the goods delivered by the supplier or if the performance of such a recall campaign constitutes a reasonable action and/or if GEKA GmbH is obligated to assume the costs of such a recall, the supplier will be obligated to cover the costs. If the costs are to be apportioned among several responsible parties, the provisions set out in §§ 5 and 6 of the Law on Product Liability will apply accordingly
(4) The supplier will take out appropriate third party liability insurance, in particular take out product liability insurance with adequate coverage that also includes recall costs. At GEKA GmbH’ request, the supplier is to immediately furnish proof of the conclusion of such insurance.
§ 15 Property rights
(1) The supplier will be liable for claims that arise as a result of the infringement of property rights and applications for property rights when the delivery items are used as specified in the contract, insofar as at least one of these series of property rights has been published either in the home country of the supplier or by the European Patent Office in one of the EU states, Japan, the USA, Brazil or Switzerland.
(2) The statute of limitations as a result of the liability for violation of property rights will commence as soon as the claim arises and GEKA GmbH has been made aware of the underlying circumstances to the claim or GEKA GmbH should gain such knowledge without gross negligence. At most, it will amount to 10 years from the delivery of the item.
§ 16 Manufacturing equipment
(1) Materials or parts supplied by GEKA GmbH will remain GEKA GmbH’ property and must be marked "GEKA GmbH Reichenbach". Such items may only be used for the intended purpose. Materials will be processed and components assembled for GEKA GmbH. It is agreed that GEKA GmbH will have joint ownership of the items produced using materials and components supplied by GEKA GmbH, the value being in proportion to the value of the items supplied in relation to the overall value. Transfer will be replaced by an agreement that the goods will remain in the supplier's possession until the agreed delivery date for processing and will be kept separately for GEKA GmbH.
(2) Documentation of whatever kind, which GEKA GmbH has provided to the supplier, such as samples, drawings, masters and similar will be returned free of charge to GEKA GmbH upon request.
(3) The supplier will be obligated to sufficiently insure the provided materials and parts against all risks, in particular fire and theft, at his own expense and, on request, furnish proof that such insurance has been taken out.
(4) Molds, masters and equipment, etc. may only be destroyed if written permission has been obtained from GEKA GmbH. The supplier will submit at regular intervals and whenever requested to do so a list of manufacturing equipment owned or jointly owned by GEKA GmbH.
(5) If requested to do so by GEKA GmbH, the supplier will immediately hand over, within one day at the latest, materials, components, molds, masters, equipment or other manufacturing equipment provided by GEKA GmbH. If the manufacturer is the joint owner, the goods will be handed over gradually against payment of the manufacturer's share of the goods. In the event of a dispute concerning the amount of the joint ownership share, GEKA GmbH can avoid the right of retention being exercised due to this joint ownership by issuing a guarantee for the amount in dispute. In other respects, the right of the supplier to retain manufacturing equipment is excluded, provided the account receivable on which the right of retention is based is disputed or has not been legally determined.
(6) Where the security rights to which GEKA GmbH is entitled in accordance with item (1) exceed the purchase price of all the reserved goods for GEKA GmbH that have not yet been paid for by more than 10%, GEKA GmbH will undertake to release the security rights at the request of the supplier, at GEKA GmbH’ discretion.
§ 17 Business secrets
(1) The supplier undertakes to treat GEKA GmbH’ order and all commercial and technical details associated with this as business secrets. This obligation will also apply after the end of the delivery contract, until this business secret has become public without any involvement on the part of the supplier.
(2) Products that have been manufactured on the basis of documentation produced by GEKA GmbH such as drawings, masters and similar, using confidential information provided by GEKA GmbH, or using GEKA GmbH’ tools or tools copied from GEKA GmbH may not be used by the supplier himself or be offered or supplied to third parties.
(3) Parts that have been developed or further developed by GEKA GmbH in conjunction with the supplier may only be supplied to third parties with GEKA GmbH’ written authorization.
(4) Where the supplier has involved sub-contractors in the performance of his delivery obligation to GEKA GmbH, he will ensure that they are also placed under obligation to maintain confidentiality as listed under § 17 items (1) and (2). When requested to do so by GEKA GmbH, the supplier will provide GEKA GmbH with proof of an appropriate written agreement with his sub-contractor.
§ 18 Special processing
Delivery schedules will only apply in conjunction with a corresponding price agreement.
The following regulations will only apply to the processing of orders which result from delivery schedules. Unless otherwise noted below, these Conditions of Purchase will also apply.
(1) Backlogs for which notice has been given are to be delivered without delay as immediate demand and apply to previous delivery allocations. Insofar as differences apply regarding the amount of such backlogs, the backlog for which GEKA GmbH has given notice will be deemed authoritative.
(2) If any other shipments are en route to GEKA GmbH other than the listed last deliveries, these quantities will be added to the next due delivery installment.
(3) Unrequested advance deliveries will be returned and freight charged to the supplier.
(4) GEKA GmbH will provide production release data for the first calendar month of the order releases. Once the first month has passed, the second month will automatically be assigned fixed call-off criteria, etc. Primary materials may be made available for a further month. The figures provided for planning purposes are unbinding. GEKA GmbH is entitled to modify the scope of the order in accordance with its requirements.
(5) If GEKA GmbH has not received a communication refusing the order within three working days, the order will be considered to have been accepted.
§ 19 Cessation of payment, insolvency
If you discontinue your payments, or if a provisional insolvency administrator is appointed, if insolvency proceedings are opened against your assets, or if bills of exchange or checks issued by you have not been honored, then we have the right to withdraw from the contract or, effective immediately, terminate the contract fully or partially, without it being possible for any claims against us to be derived from that. If we terminate a contract, the performances rendered up to that point will be invoiced at the contractual prices only to the extent that we can make use of them according to the terms of the contract. Any damage arising to us will be taken into account during invoicing
§ 20 Final provisions
(1) The law of the Federal Republic of Germany will apply to these Conditions of Purchase and the entire legal relationship between GEKA GmbH and the supplier. Application of the agreement of the United Nations Convention on Contracts for the Sale of Goods (CSG) is excluded.
(2) The exclusive place of jurisdiction for all disputes arising directly or indirectly from this agreement will be Ansbach, Germany and, if selected by GEKA GmbH, also the place of jurisdiction of the supplier.
(3) If one party to this contract suspends payments, insolvency proceedings are instituted against the assets of the contracting party, or in-court or out-of-court settlement proceedings have been initiated, the other party will be entitled to withdraw from the part of the contract that has not been fulfilled. This will not affect further-reaching claims.
(4) Should any provision of these Conditions of Purchase or any provision within the scope of other agreements be or become invalid, the validity of all other provisions or agreements will not be affected. If the invalid agreement in question does not amount to the General Terms and Conditions of Business, the parties will be obligated to replace the invalid agreement with a valid agreement which comes closest to the economic purpose of the invalid agreement in a manner that is deemed legally valid.
(5) These Conditions of Purchase are valid for the following GEKA companies: GEKA GmbH, GEKA Holding GmbH, Black Holding GmbH