Unless explicitly otherwise agreed from time
to time all of KBE’s orders are being made
solely according to these terms and
conditions of purchase. The Supplier’s terms
and conditions of sale, which deviate in
content, shall not become part of the
contract even if KBE does not explicitly
object to them in each individual case.
Changes, amendments and other subsidiary
agreements must be made in writing.
The Supplier shall deliver goods and provide
its services in full accordance with the
agreed specifications, drawings, descriptions
and other documents.
The Supplier shall provide its services by
applying a quality management system that
meets at least the requirements of ISO EN
9001.
More extensive obligations from an eventual
Quality Assurance Agreement shall remain
unaffected.
§ 2 Orders
Orders shall not become legally binding until
they have been placed in writing or text
form. Orders placed orally and subsequent
amendments shall only be effective if they
have been confirmed by KBE in writing or in
text form.
The Supplier must confirm individual orders
in writing immediately after their receipt.
If the Supplier ought to know on the basis of
its expertise that an order placed by KBE is
incomplete or that the purpose pursued by KBE with the ordered products cannot be
fulfilled, the Supplier must inform KBE
thereof promptly.
Unless otherwise stipulated KBE shall abide
by an order for 10 working days.
§ 3 Provided material
In the event that KBE provides the Supplier
with material such as metal provisions or
other items for the production of the
products to be supplied by the Supplier, the
following shall apply:
Materials and equipment provided free of
charge by KBE to the Supplier shall remain
the sole property of KBE. The Supplier shall
be obliged to examine the material in
respect of quantity, identity any visible
defects promptly. Any deviations must be
reported to KBE within three working days.
The Supplier is obliged to handle provided
materials with diligence and to store them
properly.
The processing of the materials provided by
KBE takes place always on behalf of KBE to
the effect that only KBE but not the Supplier
is to be regarded as the manufacturer in
accordance with § 950 BGB.
If the value of the materials provided by KBE
equals or exceeds the value of the
processing and – if applicable – of the other
components of the newly manufactured
objects, the newly manufactured objects
shall become the property of KBE and
otherwise they shall be jointly owned by KBE
and the Supplier in the ratio of the provided
material to the value of the processing and
the other components.
The Supplier’s obligation to confer upon KBE
the unrestricted and unencumbered
ownership in the goods to be delivered shall
remain unaffected.
In respect of provided material and other
items the Supplier shall keep reworking
accounts. In case that insolvency
proceedings be initiated against the
Supplier’s assets, the Supplier shall upon request and at any time, disclose to KBE the
identity of all other customers with positive
reworking accounts at the time of opening
the proceedings and also of the amount of
the respective balances.
KBE herewith revokes its consent to
continuous processing of the provided
material from the date on which either the
Supplier files an application for insolvency
proceedings or – in case this is earlier -
insolvency proceedings against the
Supplier’s assets are opened.
KBE shall be entitled instead of asserting its
claim to separating and returning its share of
the totality of the provided material by an
according written declaration, to set-off with
this claim wholly or partially against the
Supplier’s claims. The right to recover
possession shall at this time in the amount
of the declared set-off be converted into a
payment claim in accordance with Sec. 45
InsO (German Insolvency Code).
§ 4 Delivery, Time of delivery
All delivery dates the parties have agreed
upon – or in the absence of such agreement
– as set out in the order shall be binding.
The Supplier has to immediately inform KBE
of any delays as soon as they are
foreseeable.
Unless otherwise agreed in writing, all
deliveries are DDP by the Supplier to the
delivery address indicated in the purchase
order (INCOTERMS 2010).
A delivery note for KBE shall be enclosed to
each delivery.
§ 5 Certificate of Origin
The Supplier shall provide KBE prior to the
delivery of products, with a legally binding
Suppliers’ Declaration in accordance with the current EC-Regulation and to
immediately inform KBE of any changes of
the origin of the delivered products. The
Supplier shall be liable for any and all
damages that result from an improper or
delayed submission of the Suppliers´
Declaration.
§ 6 Payments, Payment Conditions
If not agreed otherwise the following
payment conditions shall apply: 10 days less
4 per cent cash discount, 30 days less 2 per
cent cash discount, for the rest 45 days net
from receipt of both, the delivery suitable
for performance and the invoice. Payment
shall be made by the means of payment of
KBE’s choice.
Only the actual quantity. KBE has taken
delivery of shall be payable in each case. The
weight as determined from the weighing
slips of the calibrated scales at the agreed
receiving location shall be decisive.
Notwithstanding the provisions in Article XII,
KBE shall be entitled in the event of
defective delivery to retain payment
equivalent to the value of missing or
defective goods until the order has been
properly completed.
The Supplier is not entitled to assign any
claims it may have against KBE to third
parties or to allow third parties to collect
amounts due from these claims without first
seeking the prior written consent of KBE.
Such consent may not be unreasonably
withheld. If the Supplier is supplied by its
own suppliers subject to an extended
retention of title (“verlängerter
Eigentumsvorbehalt”) KBE’s consent to the
assignment to the Supplier’s sub-suppliers
shall be deemed to having been granted.
Should the Supplier assign its claims against
KBE to third parties contrary to the above
provision without having obtained KBE’s
prior written consent, the assignment shall
nonetheless be effective. KBE may, however,
at its own choice effect the payment with discharging effect either to the Supplier or
the third party.
§ 7 Confidentiality
Drawings, drafts, samples, manufacturer's
instructions and tools and other Information
that is not publicly available, handed over to
the Supplier for submitting a quotation, for
executing an order or otherwise for
cooperation purposes, shall remain KBE’s
property and shall not be used for other
purposes, reproduced, or made available to
third parties.
Supplier must not advertise, publish or
disclose to any third party other than to
Seller’s professional advisors on a
confidential and need-to-know basis in any
manner the fact that Seller has contracted to
furnish KBE with Supplies or any terms of
business or prices, or use any of KBE’s
trademarks or trade names in any press
release, advertising or promotional materials
without having obtained KBE’s prior written
consent.
The Supplier must not offer to or
manufacture for third parties or make
available to third parties samples of
products, the Supplier manufactures in
accordance with plans, drawings or other
specifications provided by KBE and using
know-how that is not publicly available and
that KBE has made available for this
purpose.
§ 8 Social Responsibility, Protection of the Environment, REACH
The Supplier shall comply with all applicable
laws and regulations.
The Supplier shall set up and further develop
a management system in accordance with
ISO 14001 wherever possible.
In particular Supplier shall safeguard that it
or its subcontractors pre registers all
substances for use in products delivered to
KBE that are to be registered according to
the REACH directive and registered timely for the purported use.
Supplier warrants that neither it nor any of
its subcontractors shall engage in abusive
employment or corrupt business practices,
in the supply of goods or provision of
services to KBE.
The supplier is obligated to comply with the
relevant anti terrorist regulations of the
European Union, UNO or Germany, and
control all transactions concerning KBE with
regard to these provisions.
At KBE's request, Supplier shall certify in
writing its compliance with the foregoing.
§ 9 Changes to Specifications and Manufacturing Process
The Supplier shall inform KBE as soon as
possible, at the latest however 3 months
before its introduction, of any intended
technical changes to products that the
Supplier has undertaken to provide KBE with
according to a framework agreement or
based on any other long-term delivery
obligation.
The supply of products that have been
subject to technical changes requires in
every case the explicit written approval of
KBE.
The same shall apply accordingly to
substantial changes in the Supplier’s
manufacturing process.
§ 10 Default
If the Supplier does not meet the delivery
dates specified according to Article IV the
Supplier shall be obliged to indemnify KBE in
accordance to Sec. 280 para.2, 286, 288 BGB
(German Civil Code) for any damage caused
by the delayed delivery, unless the Supplier
can prove that it is not legally responsible for
the delay. It is not necessary that KBE gives
the Supplier a warning. If in default the Supplier is liable for performance in the case
of chance as well, unless he can prove that
the damage would have occurred even if
performance had been made in good time.
If the Supplier failed to deliver within a grace
period set by KBE, or if KBE is no longer
interested in the delivery at a later date, KBE
shall be entitled to cancel the respective
order and to demand compensation in lieu
of performance. Any of KBE’s eventual
claims to compensation for damage caused
by the Supplier’s default shall remain
unaffected.
If it is agreed that in respect of a delivery
time is of the essence, KBE’s right to demand
delivery shall only lapse if KBE does not
demand delivery within a period of 15
working days from the delivery date.
If the Supplier repeatedly is in default of
delivery, KBE shall be entitled, after having
issued at no avail a formal warning to the
supplier, to cancel with immediate effect any
purchase orders which at that time have not
yet been performed.
§ 11 Obligation to notify about defects, Notice of defects
KBE will promptly notify the Supplier of any
defects of the delivered products, as soon as
they are discovered within the course of a
proper business procedure.
KBE’s incoming inspection is limited to a
check of identity, quantity and a visual
inspection of the transport packaging with
regard to damages during shipment that are
visible without unboxing. The identification
check may be based on an inspection of the
delivery documents. Defects that are not
detectable in the course of the incoming
inspection are usually only discovered in the
course of further processing. The Supplier
waives insofar any objections on the basis of
late notice of defects.
§ 12 Liability for defects
The Supplier warrants that the Products are
free of defects and are in compliance with
the agreed specifications and the generally accepted requirements followed by the
members of the industry (“anerkannte
Regeln der Technik”) have been complied
with. Neither KBE’s approval of any
specifications, drawings, calculations or
other documents the Supplier may produce
nor opinions or recommendations given by
KBE shall affect the Supplier’s sole
responsibility for the products being free of
defects.
If defective products are supplied, KBE shall
be entitled to demand immediate cure at
KBE’s discretion by either delivery of a
replacement or rectification of the defective
delivery.
If the defective delivery results in increased
costs on KBE’s side that are necessary for
meeting KBE’s own delivery deadlines (e.g.
for sorting, special transports, etc.), Supplier
shall indemnify KBE for such costs.
If the Supplier fails to cure the defective
delivery within a reasonable period of time
or stipulated by KBE, KBE shall be entitled to
cancel the order and return the products to
the Supplier at the Supplier’s risk and cost or
to reduce the purchase price. In addition,
KBE shall have the right to compensation for
damages. It shall not be necessary for KBE to
specify a period of time if it is practically or
economically impossible to cure the defects.
A rectification is deemed to have failed after
the second unsuccessful attempt, unless in
particular the nature of the thing or of the
defect or the other circumstances leads to a
different conclusion.
In urgent cases KBE shall be entitled , where
feasible after prior notice to the Supplier, to
carry out rectification of defects on its own
or to let it be carried out by third parties and
to procure a replacement delivery free of
defects from third parties in order to meet
its own supply obligations. The Supplier shall
carry the necessary appropriate and
evidenced costs thereof.
Should a defect only be discovered after
further processing of the Products despite
observance of the provisions in Article XI of
these terms and conditions of purchase, the
Supplier shall be obliged to bear all the costs
in connection with the exchange or
rectification of defective Products, in
particular the costs of inspection,
transportation, labor and material,
regardless of whether these costs are
incurred at the Supplier, at KBE or at third
parties. These costs shall also include all
costs of any exchange or repair of products
into which KBE has fitted defective Products.
Should an epidemic defect make it necessary
to replace a whole series of Products or KBE
products into which the Products have been
assembled, for instance because an analysis
of defects in each individual case is not
economical, not possible or not reasonable,
the Supplier must also bear the abovementioned
costs also to the part of the
affected series that does not show any
technical defects.
Unless the parties have explicitly stipulated
otherwise in writing, KBE’s claims arising
from liability for defects shall be time barred
after a period of 24 months after delivery to
KBE. KBE’s claims to reimbursement of
expenses (in particular but not limited to
according to Article XII para.6 and Article XIII
para.2, 3) against the Supplier for a defect in
a newly manufactured product sold by KBE
in which products supplied by the Supplier
were used or in which a Supplier’s Product
was fitted shall become time-barred,
however, at the earliest two months after
the date on which KBE satisfies the claims of
its customer.
Unless otherwise provided in the preceding
provisions the liability for defects shall be
governed by the applicable statutory
regulations.
§ 13 Liability
The Supplier shall be liable in full for any and
all damages resulting from a culpable
(negligence, gross negligence and purpose)
breach of its contractual or statutory
obligations vis-à-vis KBE within the limits of
statutory Law.
If KBE is obliged to settle third party claims
for damages resulting from the Supplier’s
breach of its obligations, KBE shall be
entitled to recover its respective costs in full
from the Supplier and Supplier shall be
obliged to exempt KBE from such
obligations.
Notwithstanding further reaching rights of
KBE the Supplier shall be obliged to exempt
KBE, upon its initial request, from claims for
compensation for damages asserted by third
parties, to the extent that the cause is
located within its sphere of authority and
organizational area, and it is individually
liable to third parties. In this context, the
Supplier shall also be obliged to reimburse
any expenditure resulting from, or in
connection with a recall campaign
conducted by KBE. KBE shall inform the
Supplier of the content and extent of the
recall measures to be carried out - insofar as
this is possible and feasible - and give the
Supplier the opportunity to comment. Any
further claims of KBE shall remain unaffected
by the foregoing.
The Supplier undertakes to maintain a
sufficient product liability insurance policy
with insurance coverage appropriate for the
risks resulting from the intended use of the
delivered products that is known to the
Supplier or of which KBE has informed the
Supplier.
§ 14 Intellectual property rights of third parties, rights to inventions
The Supplier shall be responsible for
ensuring that protective rights of third
parties are not infringed in connection with
the delivery. Should, in connection with the
delivered products, KBE be held liable for infringing protective rights of third parties,
the Supplier shall be obliged to exempt KBE
from any such claims. The Supplier's
indemnification obligation shall also include
all expenses that KBE may thereby have
necessarily incurred connection with the
claim asserted by a third party. KBE shall
inform the Supplier immediately of any claim
asserted by third parties. Insofar as the
Supplier has indemnified KBE or exempted
KBE from its liability, the Supplier shall be
entitled, at its own sole discretion, to take
appropriate measures to take up legal
defense against the third party or for
obtaining the necessary rights of use. All
statutory claims of KBE, particularly claims
for compensation, shall remain unaffected
thereby.
The liability is not applicable if the Supplier
has manufactured the Product pursuant to
mandatory instructions from KBE.
If KBE has contributed to the development
of the delivered products - notwithstanding
any further-reaching rights - KBE shall be
entitled to the non-exclusive right of use for
all purposes, unrestricted in time and
geographically and including the right to
sublicense the inventions used in the
products or the intellectual property
pertaining to such inventions.
§ 15 Set-off, Retention, Assignment
KBE shall be entitled to rights of setoff and
retention to the extent provided by law. The
Supplier shall only be entitled to set-off with
own claims if these have been established as
final and absolute, are legally uncontested or
have been acknowledged by KBE. The
Supplier shall only be entitled to exercise a
right of retention insofar as his counterclaim
arises from the same contractual
relationship.
Supplier may not, without KBE’s prior written consent assign or delegate (including
without limitation by subcontract) its
obligations under the order. In the event of
any assignment or delegation (including
without limitation subcontract) authorized
by KBE Supplier shall retain all responsibility
for supplies, including all related warranties,
guarantees and other claims, unless
otherwise expressly agreed in writing by
KBE.
If the Supplier assigns own claims against
KBE to a third party, KBE’s payments to
Supplier shall still have discharging effect
unless the Supplier informed KBE of the
assignment and assignee in writing or the
assignee has provided KBE with evidence of
the assignment.
§ 16 Final Provisions
Should any provision of these terms and
conditions of purchase be or become void or
unenforceable, the validity of the remaining
provisions shall not be affected.
The place of performance shall be the
registered office of KBE or -if different - the
location KBE designates for receiving the
goods.
For this contractual relationship and all
disputes arising there from or in connection
therewith, German substantive Law shall be
applicable with the exclusion of the uniform
United Nations Convention on Contracts for
the International Sale of Goods (CISG).
The exclusive place of jurisdiction for all
disputes from or in connection with any
order, delivery or other transaction under or
in connection with these terms and
conditions of purchase shall be Berlin.
However, KBE shall also be entitled to file
legal action at the court having jurisdiction
for the principle place of business of the
Supplier.
