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General Terms of Purchase (GTP) of Germania Fluggesellschaft mbH

(As at: June 2017)

1. Scope of applicability, relationship with other provisions

1.1 These General Terms of Purchase apply for all business relationships of Germania Fluggesellschaft mbH (hereinafter referred to as “Germania”) with suppliers and contractors (hereinafter referred to as the “supplier”) in the area of purchasing, as well as for all agreements in which explicit reference is made to this document.

1.2 The contractual provisions agreed by the parties in writing take precedence over the provisions of these General Terms of Purchase.

1.3 Terms and conditions of business of the supplier and differing or supplementary agreements shall only apply if they have been explicitly acknowledged by Germania in writing. Neither silence nor a reference to offer documents of the supplier nor acceptance of deliveries or services of the supplier or payment for them shall signify acknowledgement of any general terms and conditions of business of the supplier.

1.4 In the event of contradictions or ambiguities between the different language versions of these General Terms of Purchase, the German version shall take precedence.

 

2. The conclusion of the contract

2.1 Offers of the supplier are free of charge and non-binding for Germania.

2.2 Orders of Germania and amendments or additions to orders shall only be binding if they are placed/carried out in writing. The supplier must promptly inform Germania of any obviously erroneous or incomplete information in the order to enable correction/completion.

2.3 The supplier must confirm orders within ten days after the receipt thereof either in writing or in text form. Germania will be able to cancel the order at any time up to the receipt of the supplier’s confirmation. A delayed confirmation or one whose content differs from the order shall be deemed to be a new offer, which shall be subject to explicit acceptance in writing by Germania.

2.4 Upon the confirmation of the order or the provision of the services, these Terms of Purchase shall be deemed to have been agreed.

 

3. Prices

3.1 Price information should be understood, subject to an explicit written agreement to the contrary, as fixed prices subject to the addition of statutory VAT.

3.2 Expenses for visits, offers, designs, specimens or samples of the supplier shall not be reimbursed by Germania even if a contract is not concluded.

3.3 If an order contains no price information, the supplier shall have to obtain a written confirmation of the price from Germania before performing the service.

3.4 The prices include, subject to a written contractual arrangement to the contrary, all additional costs and additional services of the supplier. These include, in particular, delivery, packing, assembly and storage costs, customs duties, wage costs, any pay supplements, travel and accommodation costs, costs for commissioning, trial operation and acceptance and any necessary transport and liability insurance.

 

4. Payment

4.1 Payments shall only be made based on an invoice sent to Germania by the supplier electronically or by post.

4.2 The supplier must attach to its invoice all signed delivery notes, service certificates, time sheets etc. upon which the invoice is based.

4.3 Subject to contractually agreed payment terms to the contrary, invoices shall be paid within 30 days. The time limit shall begin on the due date of the claim, but at the earliest upon the receipt of the invoice by Germania.

4.4 Germania shall have the right to deduct input tax.

4.5 Germania shall not be required to pay overdue payment interest.

 

5. Delivery

5.1 The supplier shall fulfil its delivery and service obligations to the point of delivery designated by Germania.

5.2 Subject to a written agreement to the contrary, the supplier shall bear all the packing costs necessary for the transportation of the goods. If Germania bears the costs of the packaging on the basis of a contractual arrangement, the supplier shall charge Germania for these costs at cost price.

5.3 The supplier must take back and professionally dispose of packing materials at its own expense. The place of performance for retrieving the packaging is the location where the goods were accepted or the service was performed.

5.4 The supplier shall notify Germania in good time before the arrival of the goods of the content and scope of the shipment and, at the same time, provide Germania with any special instructions regarding the handling of the goods, particularly regarding unloading, transport and storage.

5.5 Appropriate delivery notes, either in paper form in duplicate or in electronic form in advance, must be attached to each delivery/service, containing the information and markings required by Germania and by law. This includes, in particular, specifying the cost centre, the date and number of the order, position and product numbers, the quantity and unit of quantity and the shipping address. In the event of failure to comply with this provision, Germania shall have the right to refuse to accept the delivery/service and to send them back to the seller at the seller’s expense and risk.

5.6 The supplier must also deliver, free of charge, all the documents necessary for acceptance, operation, maintenance and any repairs, e.g. test reports, factory certifications, plans, operating instructions and manuals, as well as guarantee cards.

5.7 Partial deliveries are only permitted with the prior written consent of Germania and must be marked as such by the supplier on the delivery note, specifying the remaining outstanding quantity.

5.8 In the event of excess deliveries, Germania shall have the right to refuse to accept the excess amount of goods delivered and place the goods in storage at the supplier’s expense and risk until they are collected or send them back at its risk and expense. Excess deliveries shall only be deemed to have been accepted if this has been confirmed by Germania in writing.

 

6. Delivery period

6.1 The delivery/service dates specified in the order (receipt at the point of delivery designated by Germania) are binding. The delivery/service shall only be accepted during usual business hours and after an arrangement has been made with Germania.

6.2 In the event that an agreed delivery deadline cannot be complied with, the supplier must immediately inform Germania in writing of the expected duration of the delay, stating the reasons for it.

6.3 In the event of a delay by the supplier, Germania shall have the right to demand, for each calendar day by which the delivery date is exceeded, flat compensation for delay in the amount of 0.3% of the net value of the delivery/service. Irrespective of the amount of time by which the time limit is exceeded, the flat compensation for delay shall be limited to a maximum total of 5% of the net value of the delivery/service. The supplier’s right to provide proof that no losses or only significantly lower losses were incurred as a result of the delay is not affected by this.

6.4 The acceptance of a late delivery by Germania without reservations does not constitute a waiver of claims for compensation.

 

7. Transfer of risk

The risk of the accidental loss or accidental deterioration of the goods or service shall transfer to Germania upon acceptance at the point of delivery designated by it. The supplier shall bear that risk up to that moment.

 

8. Inspection for defects and warranty

8.1 Germania shall only inspect the goods upon their receipt for externally identifiable damage and differences in the type and quantity of the ordered goods or services. Germania shall promptly report such defects in writing, as soon as they have been established during the course of normal business operations, but no later than within five business days after the receipt of the delivery/service by Germania. Any further defects established during the course of normal business operations shall be reported by Germania without delay after they are discovered.

8.2 Article 442 par. 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch) is waived insofar as Germania can also assert warranty claims without limitation if a defect remained undetected upon the conclusion of the contract as a result of gross negligence.

8.3 The supplier shall be obliged, in the event that defects are reported in good time, to promptly render at Germania’s request the necessary supplementary performance by eliminating the defect or providing a replacement delivery, according to Germania’s choice. The supplier shall bear the necessary costs for the inspection and supplementary performance.

8.4 In the event of supplementary performance by the supplier, the time limitation period for the warranty rights shall begin to run again unless the supplier explicitly and correctly stipulates upon supplementary performance that it is only rendering the supplementary performance out of goodwill, in order to avoid disputes or in the interests of the continuance of the supplier relationship.

8.5 In the event that goods are taken back, the supplier shall be prohibited from reselling products bearing Germania’s company marks to third parties.

 

9. Protective rights of third parties

9.1 The supplier is responsible for ensuring that no domestic or foreign industrial property rights of third parties are infringed in connection with its delivery or service.
9.2 In the event of an infringement of industrial property rights of third parties, the supplier shall have to pay compensation to Germania for all the resulting losses.
9.3 In such a situation, Germania shall have the right to obtain from the holder of such protective rights, at the supplier’s expense, the necessary approval for the use of the subject of the delivery/service.

 

10. Export

The supplier shall promptly inform Germania of any import/export restrictions or approval requirements to which the ordered goods are subject under currently applicable German or international export, customs or foreign trade laws.

 

11. Minimum wage, subcontractors and extraordinary termination

11.1 The supplier warrants that it will pay its employees the legally prescribed minimum wage and also obligates its subcontractors to do so.

11.2 Insofar as personal performance is not agreed, the supplier shall have the right to make use of third parties to fulfil its contractual obligations unless a valid reason is opposed to this, particularly if, based on an objective assessment, the third party cannot guarantee performance in accordance with the contract because, for example, it does not possess the necessary know-how or hold an official approval which is necessary for the provision of the service or if the performance of the service by the third party would constitute a violation of safety regulations.

11.3 In the event that services or work are to be performed in the economic sectors or branches of industry specified in Article 2a of the Act on Combating Undeclared Work and Illegal Employment (Gesetz zur Bekämpfung der Schwarzarbeit und der illegalen Beschäftigung) or on the basis of marginal employment under Article 8 par. 1 of the German Social Code (Sozialgesetzbuch), Book IV, the following applies:

The supplier must, at the request of Germania made at any time, provide proof of payment of the minimum wage by the supplier and, as the case may be, by its subcontractors for the last two years applicable for the record-keeping obligation under Article 17 of the German Minimum Wage Act (Gesetz zur Regelung eines allgemeinen Mindestlohns – MiLoG). Such proof must be provided by submitting appropriate records of hours worked and the remuneration paid for them.
The supplier must also allow Germania, at its request made at any time, to inspect the relevant (anonymised) payrolls.

The supplier shall indemnify Germania, at its first written request, against all claims and costs (including the costs of a legal defence) which it incurs in the event that third parties take legal action against Germania on the basis of Article 13 MiLoG/Article 14 of the Employee Secondment Act (Arbeitnehmer-Entsendegesetz).

If the supplier breaches the provisions of this section, Germania shall have the right to terminate the contractual relationship by way of extraordinary termination without observing a notice period.

 

12. Assignment

The supplier shall only have the right to assign claims against Germania or have them collected by third parties with Germania’s prior written consent.

 

13. Confidentiality, ownership and copyrights

13.1 The supplier must treat confidentially all information made available to it by Germania which is to be considered confidential based on its designation or content, including after the end of the business relationship. In particular, it must keep such information secret from third parties and take all necessary measures to protect it against theft or unauthorised access. An exception to this is information which at the moment of disclosure is or will be generally known or published or is part of common general knowledge or the general state of the art of technology. The permission to disclose the information to be kept confidential to subcontractors for the purposes of the performance of the contract remains unaffected by sentence 1. The supplier warrants that it shall impose a corresponding obligation on its subcontractors.

13.2 Germania reserves ownership and copyrights to any documents and resources provided to the supplier, such as models, samples, drawings, plans, designs, data sheets, data carriers and other materials. Such documents and resources shall be carefully stored by the supplier and returned to Germania whenever it makes a request to that effect.

 

14. Data protection

The supplier warrants that its employees and subcontractors commissioned by it will comply with the provisions on data protection and telecommunications secrecy.

 

15. Partial ineffectiveness

Should one or more provisions of these Terms of Purchase be or become ineffective, the effectiveness of the other provisions hereof shall not be affected. Instead of the ineffective provisions, the statutory provisions shall apply.

 

16. Governing law and place of jurisdiction

16.1 These General Terms of Purchase and all legal relationships between Germania and the supplier are subject to the laws of the Federal Republic of Germany, to the exclusion of the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods.

16.2 The exclusive place of jurisdiction for disputes arising from the contract concluded between the parties is Berlin, subject to a contractual agreement to the contrary.

General Terms of Purchase of Germania Fluggesellschaft mbH

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