General Terms and Conditions of Purchase of GIZEH Raucherbedarf GmbH

Section 1 General Provisions - Scope

Our Terms and Conditions of Purchase shall apply exclusively; we do not accept any deviating, conflicting or supplementary General Terms and Conditions of Business stipulated by Supplier, unless we have explicitly approved their validity in writing. Our Terms and Conditions of Purchase shall also apply exclusively if we accept delivery from Supplier without reservation being aware of Supplier’s deviating, conflicting or supplementary general terms of business.
Our General Terms and Conditions of Purchase shall only apply to entrepreneurs according to Section 310 (4), Section 14 BGB [German Civil Code].
Our General Terms and Conditions of Purchase shall also apply to any future transactions with Supplier in the version as last amended and communicated to Supplier in text form on the date of our purchase order without the requirement to inform about them in each individual case.

Section 2 Order Confirmation

Supplier shall confirm our purchase order within 5 working days in writing.

Section 3 Prices – Terms of Payment

The price indicated in the purchase order shall be binding. In the absence of any deviating agreement made in writing the price shall include "free delivery” including packaging.
The statutory value added tax is not included in the price indicated in the purchase order.
We can only process invoices if they state the purchase order number indicated in our purchase order according to our specifications; Supplier shall be responsible for any consequences resulting from the breach of this obligation, unless Supplier proves that it is not liable for such breach.
Unless otherwise agreed in writing, we shall pay the purchase price within 14 days as of delivery and receipt of the invoice at a cash discount of 3% or net within 30 days after receipt of the invoice.
We are entitled to claim setoffs and the rights of retention as well as to raise the defence of non-performance to the legal extent.
Any payments are made subject to any correction and claim to refund if the calculation subsequently proves to be incorrect or if there are any objections. Any payment shall neither constitute acceptance nor acknowledgement of a proper delivery or a service as conforming to the contract.

Section 4 Period of Delivery

The period of delivery indicated in the purchase order shall be binding.
As soon as Supplier realizes that it is not able to effect delivery and perform the services as a whole or in part in due time Supplier shall inform us immediately stating the reasons and the anticipated period of delay, even if Supplier is not liable for such delay. Neither the notice nor any silence on our part shall constitute acceptance of a new due date or affect the right to enforce any claims.
In the event of any default in delivery we are entitled to assert the legal rights. We are in particular entitled to claim damages in lieu of performance and rescission after the expiry of a reasonable period without success. In the event of any default in delivery we are entitled, subject to further legal claims, to claim liquidated damages for default at a rate of 1% of the delivery value per week completed, however not more than 5% of the delivery value. We reserve the right to prove that we have suffered a higher damage. The Supplier reserves the right to prove that no damage at all or a considerably lower damage has been caused.
Deliveries or services provided in part are not admissible, unless we have given our explicit previous consent in writing. If we accept any partial delivery or delayed delivery this shall not constitute a waiver of any claims.

Section 5 Shipment – Packaging – Passing of Risks

Unless agreed otherwise in writing, the delivery shall be effected carriage paid to the place specified in the purchase order.
Supplier shall indicate our exact purchase order number and our material number, if provided, on any shipment documents and delivery slips; if it fails to do so we shall not be liable for any delay of processing.
Supplier is obliged to pack and ship the products appropriately. Supplier shall in any case pack and ship the products in such a way that damage to the products is excluded.
In choosing the product packaging, Supplier shall preferably choose environmentally friendly packaging allowing for reuse or a low-cost disposal. Supplier is obliged to act in accordance with the German Packaging Act (if applicable to the company) and to take back any packaging of the supplied products (transport, secondary packaging and sales packaging) without charge pursuant to the legal provisions. This involves the participation in the Dual System and the registration in the public producer register LUCID of the foundation “Zentrale Verpackungsregister Stelle (ZVSR)”. We reserve the right to return packaging material that does not comply with the German Packaging Act to Supplier at its expense.
The risk of accidental deterioration and accidental destruction of the products, including but not limited to loss or damage in the course of transit, shall pass to us upon delivery of the products to the incoming goods area at the place indicated in the purchase order.

Section 6 Assignment – Setoff – Retention

Any accounts receivable from us shall not be assigned effectively or be collected by third parties, unless we have given our prior consent in writing. Section 354a HGB [German Commercial Code] shall remain unaffected.
Supplier shall not offset its own claims or assert rights of retention against our accounts receivable from Supplier, unless its counterclaims are undisputed or have been declared by final judgment.

Section 7 Quality Standards

Any delivery and service must comply with the applicable legal provisions and regulations as amended on the date of the delivery and provision of the services, the relevant directives of authorities, employers’ liability insurance associations and professional associations, the generally acknowledged rules and other provisions reflecting the most recent prior art on the date of delivery and provision of the services and must be fit for the intended use or further processing as far as this is known to Supplier or is obvious from the circumstances. In case of doubt Supplier shall request information about the intended use or the type of further processing.
In case of any delivery or service that is based on drawings, plans or other specifications or order documents indicating performance features the specifications contained therein shall be strictly complied with in addition to the specifications set forth in Section 7(1) above.
Supplier shall not change the performance or quality of the delivered products or services as compared to the agreements made or the deliveries and services provided previously, unless we have sampled them previously and have given our prior approval in writing.
If our customer requests material data sheets or other product or manufacturing certificates, Supplier shall provide us with any information, data and document in respect of the products to be delivered by it to be able to fulfil the customer’s justified expectations.

Section 8 Incoming Goods Inspection

Supplier shall check the goods before delivery.
Notwithstanding the provisions of Section 377 HGB [German Commercial Code] we will check after receipt of the deliveries whether they correspond to the quantity or type ordered (identity) and whether there is any externally visible transport damage and we will also conduct a random quality control. Insofar, Supplier waives any further legal requirements (in particular Section 377 HGB) concerning the incoming goods inspection. Our obligation to notify defects detected subsequently shall remain unaffected.
Our complaint (notice of defects) shall be deemed to have been given without delay and in due time if it is send within 10 working days as of the receipt of the goods in case of obvious defects, and as of detection in case of any other defects.
If we detect defects in a delivery through a random check, we are entitled to reject the entire delivery without further checking and claim supplementary performance or to carry out a further check. Supplier shall bear any costs incurred for the further check.

Section 9 Claims for Defects - Warranty

We are fully entitled to the legal claims for defects; we are in any case entitled to claim that, at our choice, Supplier either remedies the defects or delivers a new item. We expressly reserve the right to claim damages, including but not limited to the right to claim damages in lieu of performance.
If Supplier fails to fulfil its obligation to make supplementary performance within a reasonable deadline fixed by us, the supplementary performance has failed or is unreasonable for us due to any imminent danger, the special urgency, or imminent unreasonable damage, we are entitled to remove the defects ourselves at Supplier’s expense. In these cases, Supplier shall reimburse the costs and expenditures required. Supplier shall in particular bear any costs and expenditures incurred in connection with the detection of the defects and their remedy.
The mandatory provisions of the recourse against suppliers shall remain unaffected. Our claims arising from any recourse against suppliers shall also apply if the defective goods have been integrated into another product or otherwise processed by us, our customer or a third party e.g. by assembly, mounting or installation.
Notwithstanding Section 438 (1) No. 3 or Section 445b BGB [German Civil Code] the limitation period shall be 36 months as of the passing of the risks, unless a longer statutory limitation period is provided by law. Any claims arising from deficiencies in title shall not be statute-barred as long as the third party may enforce the right against us according to the legal provisions – in particular in the absence of statutory limitation.

Section 10 Product Liability – Indemnity – Third Party Liability Insurance Cover

If Supplier is liable for any damage arising from a defective product it shall indemnify us from any third-party claims for damages upon first request to the extent to which the cause lies within its sphere of control and organisation and it is liable itself vis-à-vis third parties.
Within the scope of its liability for any damage within the meaning of sub-section (1) above, Supplier shall also be obliged to reimburse any expenditures according to Sections 683, 670 BGB and according to Sections 830, 840, 426 BGB which arise from or in connection with third-party claims including any recall carried out by us. We shall inform Supplier – if possible and reasonable – about the content and the extent of the recalls to be conducted and shall give it the opportunity to make a statement. Any other legal claims shall remain unaffected.
Supplier undertakes to maintain a product liability insurance with a blanket coverage of 10 million euros per personal injury/damage to property; if we are entitled to claim further damages these shall remain unaffected.

Section 11 Compliance with Legal Provisions

Supplier shall be responsible for complying with any law, regulation and other legal provisions as amended and usages which are applicable to Supplier’s business area, including but not limited to the development, production, sales, transport, export, certification of its products, during and in executing a contract or a purchase order. This in particular applies to the legal provisions relating to the safety-related and environmental design and processes of technological products, the good engineering practices and the other provisions reflecting the state of the art on the date of the deliveries and the provision of services.
Supplier will confirm its compliance with the legal provisions upon our request. Supplier will reimburse us for any damage, costs and expenditures arising from Supplier’s failure to comply with the above provisions and will indemnify us against any third-party claims asserted against us in this connection. The provision according to sentence 2 above shall not apply if Supplier is not responsible for the breach of duty.
Supplier may not raise the defence of failure to pursue remedies [Einrede der Vorausklage] nor claim a right of retention nor object that the claim to be indemnified against does not exist against the obligation to indemnify us according to Section 11 (2) (indemnity upon first request). The right to claim indemnity will not be statute-barred as long as the third party continues to be entitled to assert its claims against us according to the legal provisions – in particular in the absence of statutory limitation.
Supplier moreover undertakes to comply with the requirements of the German Supply Chain Due Diligence Act. If required, we may request corresponding proofs for verification. Supplier will additionally ensure that any commissioned subcontractors comply with the requirements.

Section 12 Environmental and Social Standards, Human Rights

Supplier will provide its services complying with any applicable national and international environmental protection law, will minimise the emission of greenhouse gases and will avoid any action which might increase the vulnerability of the population and/or the eco-systems.
Supplier shall observe the following principles based on the Ten UN Global Compact Principles from the areas of human rights, labour, environment and anti-corruption, the Universal Declaration of Human Rights of the United Nations as well as the OECD Guidelines for Multinational Enterprises:
- Compliance with any applicable local, national and international laws and regulations;
- No tolerance for corruption and bribery;
- Respect for the human rights of employees, in particular equal rights of the employees irrespective of skin colour, race, nationality, social background, disability, sexual orientation, political opinion or religious beliefs, sex or age;
- No tolerance for child labour and forced labour;
- Assuming responsibility for the health and safety of its employees, and
- Compliance with any competition regulations including but not limited to anti-trust laws.
Supplier undertakes to implement business processes ensuring that the principles set forth in sub-section (2) above will be observed. Moreover, it will take reasonable measures to ensure that its own business partners, including but not limited to its suppliers, their sub-contractors and its services providers, observe the principles according to sub-section (2) as well.
The provisions of our Supplier Codex shall apply additionally.

Section 13 Sub-Contracting

Supplier shall inform us in writing if it intends to commission third-parties or sub-contractors within the scope of a contract or a purchase order. Contracts shall not be transferred to third parties to fulfil the existing obligations, unless we have given our consent in writing.

Section 12 Property Rights

Supplier shall be responsible for ensuring that third-party rights are not infringed in connection with its delivery.
If third-party claims are asserted against us for any infringement which is attributable to a delivery made by Supplier, Supplier shall indemnify us from these claims.
Supplier's obligation to indemnify us shall apply to any reasonable expenses arising from or in connection with the claims made by third parties.
Supplier may not raise the defence of failure to pursue remedies [Einrede der Vorausklage] nor claim a right of retention nor object that the claim to be indemnified does not exist against the obligation to indemnify us (indemnity upon first request).
The right to claim indemnity will not be statute-barred as long as the third party continues to be entitled to assert its claims against us according to the legal provisions – in particular in the absence of statutory limitation.

Section 15 Export Control – Customs – Origin of Goods

Supplier is obliged to inform us about any licensing requirements for (re-)exports of its goods according to German, European, US export and customs provisions as well as the export and customs provisions applicable in the country of origin of its goods in its business documents. In this respect, Supplier will indicate the following information in its quotes, order confirmations and invoices for the relevant goods:
- the Export List Number according to Annex AL of the German Foreign Trade Regulation or comparable list items of relevant export lists;
- the ECCN (Export Control Classification Number) for US goods according to US Export Administration Regulations (EAR);
- the trade origin of its goods and the components of its goods, including technology and software;
- the statistical commodity code (HS Code) of its goods;
- a contact person within its enterprise for clarifying any further inquiry.
Upon request Supplier shall inform us about any other foreign trade data relating to its goods and their components in writing and shall notify us immediately of any changes of the above data in writing (before delivering the affected goods).
Supplier undertakes to issue a supplier’s declaration according to Council Regulation (EC) No 1207/2001 on the origin of the supplied products. This shall also apply to added new articles during the validity of the supplier’s declaration. Supplier shall be liable for any disadvantage which we might suffer from any culpable, improper or belated issue of the supplier’s declaration. If required, Supplier shall prove its information provided on the origin of goods by means of an information sheet certified by its customs office.
If the legal requirements for the issue of a supplier’s declaration are not met, Supplier shall inform us in writing and state the relevant reasons.

Section 16 Reservation of Title – Provided Materials - Tools – Confidentiality

If we provide Supplier with materials or otherwise with components, we reserve the title thereto. Any processing or transformation made by Supplier shall be performed on our behalf. If our goods subject to the reservation of title are processed with other items not owned by us we will acquire the co-ownership of the new product in relation of the value of our goods (purchase price plus value added tax) to the other processed items at the time of processing.
If the items provided by us are inseparably mixed with other items not owned by us, we will acquire the co-ownership of the new product in relation of the value of the goods subject to the reservation of title (purchase price plus value added tax) to the other mixed items at the time of mixing. If the goods are mixed in a way that Supplier’s item has to be considered as the main item, it shall be deemed agreed that Supplier will transfer the proportional co-ownership to us; Supplier shall keep the solely owned or co-owned item for us safe.
The title to the goods shall be transferred to us unconditionally and regardless of the payment of the price. If in an individual case we accept Supplier’s offer to transfer the title which is conditional on payment of the purchase price Supplier’s reservation of title shall expire at the latest upon payment of the purchase price for the delivered goods. Even before payment of the purchase price we shall remain authorized to resell the goods in the ordinary course of business, assigning the resulting account receivable in advance. Hence, any other form of reservation of title shall in any case be excluded.
We reserve the title to tools which we provide to Supplier for manufacturing purposes; Supplier shall use the tools exclusively for the manufacture of the goods ordered by us. Supplier shall take out a replacement value insurance policy covering any damage caused by fire, water and theft for the tools owned by us at its own expense. At the same time, Supplier shall already now assign any claims for damages arising from this insurance to us; we hereby accept the assignment. Supplier shall carry out any required maintenance and inspection work on our tools as well as any repairs and upkeep work in due time at its own expense. It shall immediately notify us of any incident.
We reserve the property rights and copyrights to any pictures, drawings, calculations, implementing instructions, product descriptions and other documents which we provide to Supplier for manufacturing purposes; they shall not be made accessible to third parties, unless we have given our explicit consent in writing. They shall be used exclusively for the production based on our purchase order; after the execution of the purchase order they shall be returned to us without request.
Supplier shall treat any documents received within the meaning of Section 16 (5) of these General Terms and Conditions of Purchase as strictly confidential. They shall not be disclosed to third parties, unless we have given our explicit consent. The obligation to maintain confidentiality shall also survive the termination of the contract; it will expire if and when the manufacturing knowhow provided in the documents has become generally known. Special Non-Disclosure Agreements and legal provisions relating to secrecy shall remain unaffected.

Section 17 Jurisdiction - Place of Performance

If Supplier is a merchant within the meaning of the German Commercial Code, the exclusive – including international - place of jurisdiction for any disputes arising from this contractual relationship shall be our registered office; however, we are entitled to bring an action against Supplier also at its general place of jurisdiction. Legal provisions taking precedence, including but not limited to legal provisions relating to exclusive jurisdiction, shall remain unaffected.
Unless otherwise agreed our registered office shall be the place of performance.
The General Terms and Conditions of Purchase and the contractual relationship between us and Supplier shall be governed by the law of the Federal Republic of Germany; the UN Sales Convention and the private international law shall be excluded.

As amended in January 2025

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