Conditions of purchase
General terms and conditions of purchase of
KmB Technologie GmbH
Status: May 2007
1. Scope of the terms and conditions of purchase
1.1 Unless otherwise specified below, all orders placed by KmB Technology (KmB) shall be subject exclusively to these terms and conditions. These terms and conditions shall also apply to all future business relations without KmB having to make any further reference thereto.
1.2 The supplier's general terms and conditions of business or delivery are hereby expressly and completely rejected.
2. Conclusion of a contract
2.1. All orders and declarations of acceptance as well as delivery call-offs must be in writing in order to be legally effective. The written form is also guaranteed by transmission by telefax. This shall also apply to changes and additions in this regard. Only delivery call-offs can also be transmitted by e-mail.
2.2. KmB is entitled to cancel its orders until receipt of the declaration of acceptance. The supplier can only accept the offer within a period of two weeks after receipt of the offer.
2.3. . Delivery call-offs shall become binding at the latest if the supplier has not objected within two weeks of receipt. KmB shall inform the supplier of the significance of silence in the delivery call-off. The delivery periods and dates stated in the orders shall be understood to mean delivery to the specified place of delivery.
2.4. KmB may, within the bounds of reasonableness for the supplier, demand changes in the design and execution of the delivery item. This shall also apply to products already delivered. The resulting effects, in particular with regard to costs and delivery dates, shall be settled by mutual agreement.
3.1. The agreed prices are fixed prices. They apply to serial deliveries for at least one year, calculated from the date of the first serial delivery. This period shall be extended by a further full calendar year unless a price change is notified four weeks prior to expiry at the latest.
3.2. The product prices include costs for packaging, insurance, freight and transport to the specified shipping address or place of use, unless expressly agreed otherwise.
4. Terms of payment
4.1. Unless otherwise agreed, payment shall be made 14 days after receipt of invoice and goods with 3% discount, within 30 days after the end of the delivery month with 2% discount and within 90 days net. Payment settlement by cash on delivery is excluded.
4.2. If an early delivery is accepted, the due date shall be based on the agreed delivery date.
4.3. In the event of defective delivery, the customer shall be entitled to withhold payment pro rata to the value until proper fulfilment.
5.1. A delivery note and a separate invoice must be issued to KmB for each delivery. Both must contain the item number and order number, the number of items invoiced (listed separately in each type), as well as the gross and net weight. If the invoice relates to goods from different orders, the quantity belonging to each order must be listed separately. Each delivery must be accompanied by a packing slip with an exact table of contents and the order number.
5.2. Agreed dates and deadlines are binding. If the supplier is responsible for the delay in delivery, KmB shall be entitled to demand a flat-rate damage caused by the delay amounting to 0.5 % per completed week of delay, but in no case more than 5 % of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. The Supplier shall be entitled to furnish proof that no damage has occurred or that the damage has been considerably less than the lump sum. KmB reserves the right to assert further claims for damages caused by default. The unconditional acceptance of a delayed delivery does not mean a waiver of the assertion of damage caused by default.
5.3. KmB may claim damages for non-performance or withdraw from the contract if the supplier allows the grace period set by KmB to expire. KmB shall not be entitled to claim damages for non-fulfilment if the supplier is not responsible for the delayed delivery.
5.4. If KmB is unable to accept the ordered parts for reasons for which it is not responsible, KmB may postpone the delivery date by the duration of the hindrance to acceptance and a reasonable start-up period
6. Passing of risk
The risk of accidental loss and accidental deterioration of the goods shall remain until delivery to the shipping address specified by KmB.
7. Quality and acceptance
7.1. The supplier warrants that the delivered goods will be manufactured within the framework of a quality assurance system in accordance with DIN/ISO 9000 and that all items delivered and services rendered by him comply with the latest state of the art, the relevant legal provisions and the regulations and guidelines of authorities, professional associations and trade associations. Unless a special edition has been agreed for standards, the current edition on the order date shall be deemed to have been agreed.
7.2. The dimensions, weights and quantities of the delivery determined during the incoming goods inspection are binding.
7.3. KmB will inspect the delivery immediately upon receipt for obvious defects. The period for making a complaint for any type of defect shall be two weeks. In the case of hidden defects, the complaint period shall commence at the time of detection. The delivery shall not be deemed to have been approved until expiry of the complaint period. In this respect, the supplier waives the objection of late notification of defects.
8. KmB's claims in the event of defects
8.1. KmB may, at its discretion, demand the remedy of the defect or the delivery of a defect-free item as subsequent performance. KmB shall set the supplier a reasonable deadline for subsequent performance.
8.2. KmB shall be entitled to exercise its right of rescission if the supplier has allowed the reasonable deadline for remedying the defect to expire, if subsequent performance has also failed on the second attempt, if the supplier refuses subsequent performance or if subsequent performance is unreasonable for KmB.
8.3. Instead of the right of withdrawal, KmB may reduce the purchase price.
8.4. The supplier shall be obliged to pay damages if he has allowed the reasonable period for remedying the defect to expire, if subsequent performance has also failed on the second attempt, if the supplier refuses subsequent performance or if subsequent performance is unreasonable for KmB.
8.5. The limitation period for warranty claims shall be 36 months from transfer of risk. For parts newly delivered or repaired by the supplier by way of subsequent performance, the limitation period shall start anew unless the Supplier performs the subsequent performance as a gesture of goodwill, to avoid legal disputes or to maintain the business relationship. The supplier must inform KmB of these reasons in writing when carrying out subsequent performance.
9.1. The supplier is liable for damages resulting from injury to life, limb and health as well as for other damages for which he, his legal representative or his vicarious agents are responsible. Liability for slightest and medium negligence is not excluded.
9.2. The scope of the compensation is not limited to the damage caused by the defect.
10. Assignment of claims, retention of title and offsetting
10.1. A retention of title shall only be effective if it has been expressly agreed separately.
10.2. An assignment of the supplier's claims against KmB is only permissible with the supplier's written consent.
10.3. The supplier is only entitled to set off undisputed or legally established claims.
11. Industrial property rights
The supplier must indemnify KmB against all claims asserted against it or its customers on account of an infringement of third-party industrial property rights for which the supplier is responsible.
12.1. The contracting parties undertake to treat all non-public commercial and technical details which become known to them through the business relationship as business secrets.
12.2. Drawings, templates, samples and similar objects as well as models, matrices, tools or other means of production may not be handed over or otherwise made accessible to unauthorised third parties. Furthermore, they may only be used for deliveries to third parties with the prior written consent of KmB. The aforementioned items shall remain the property of KmB and shall be returned to KmB after their intended use. A right of retention of these items is excluded. Reproduction is only permitted within the framework of operational requirements and in compliance with copyright provisions.
12.3. Subcontractors shall be obligated accordingly.
12.4. Advertising with the business relationship requires the prior written consent of the contractual partner.
13. Place of performance and jurisdiction
13.1. Place of performance for all contractual and legal claims is the registered office of KmB.
13.2. If the supplier is a merchant, the place of jurisdiction for all disputes arising from the delivery transaction shall be Dessau. KmB is entitled to appeal to any legally competent court.
13.3. The law of the Federal Republic of Germany shall apply. The Hague Conventions of 01.07.1964 concerning uniform laws on international sales and the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 are not applicable.
14. Final provisions
14.1. Amendments and supplements to these terms and conditions must be made in writing. The same applies to any waiver of this written form clause.
14.2. The conditions of purchase shall remain effective in their remaining parts even if individual conditions are ineffective. Should a provision be invalid in whole or in part, the parties to the contract shall immediately endeavour to achieve the economic success desired by the invalid provision in another, legally permissible manner.
14.3. If insolvency proceedings are instituted against the Supplier's assets or if insolvency proceedings are instituted, KmB shall be entitled to withdraw from the unfulfilled part of the contract.