General Terms and Conditions of Purchase
1. General provisions, scope of application
1. The following terms and conditions of purchase apply to all business relationships between us, Kowsky GmbH, and the supplier concerning the supply of goods and services.
2. These terms and conditions of purchase apply exclusively. We do not recognise any terms and conditions of the supplier that conflict with or deviate from our terms and conditions of purchase unless we have expressly agreed to their validity in writing. Our terms and conditions of purchase shall also apply if, in the knowledge of conflicting or deviating terms and conditions of the supplier, we accept the supplier’s delivery without reservation.
3. These terms and conditions of purchase apply only to entrepreneurs and legal entities within the meaning of § 310 of the German Civil Code (BGB).
4. These terms and conditions of purchase, in their respective version, shall also apply as a framework agreement to all future transactions of the same kind with the supplier without the need for us to refer to them again in each individual case. In such cases, we shall inform the supplier of any changes without delay.
2. Order confirmation, conclusion of contract, tender documents
1. Only orders placed by us in writing are binding. We may revoke the order if the supplier does not confirm it in writing (order confirmation) within two weeks or within another period specified in the order.
2. Deviations in the order confirmation from the order, verbal agreements made before, at the time of or after conclusion of the contract, and deviations from these terms and conditions of purchase require our written consent and confirmation in order to be effective.
3. We retain all ownership rights and copyrights to drawings, descriptions, calculations and other technical documents concerning the purchased item or its manufacture that are made available to the supplier before or after conclusion of the contract. The documents may only be used for production on the basis of the order and may not be used or reproduced for any other purpose without our consent. They may not be made accessible or disclosed to third parties without our prior written consent. If the supplier does not accept our offer within the period specified in section 2.1, these documents must be returned to us without being requested. The same shall apply after completion of the order.
4. We shall only remunerate offers, planning, designs and similar services where this has been expressly agreed in writing.
3. Transfer of ownership, templates, samples and materials supplied
1. Templates, samples, tools, materials and similar items provided by us (hereinafter collectively referred to as “parts”) shall remain our property and may neither be passed on to third parties nor used or reproduced for purposes other than those agreed without our written consent. The supplier shall mark templates, samples, tools, materials and similar items as our property and store them carefully.
The supplier undertakes to insure the parts provided by us at its own expense against fire, water and theft damage and to assign the claims arising from such insurance to us. The parts shall be adequately protected at the supplier’s own expense against damage of any kind, such as unauthorised use or inspection, and, like the information made available to us, shall be treated as strictly confidential.
Any necessary maintenance and repair work on parts provided shall be carried out by the supplier in good time and at its own expense. The supplier shall notify us immediately of any damage that is more than insignificant. If the supplier culpably fails to do so, claims for damages shall remain unaffected. At our request, the supplier shall at any time be obliged to return templates, samples, tools, materials and similar items to us immediately and in proper condition if they are no longer required for fulfilment of the contractual purpose.
2. If the parts provided are transformed by the supplier or processed together with other items that are not our property, we shall acquire co-ownership of the newly created item in proportion to the value of the parts provided by us at the time of processing. The same shall apply if a part supplied by us is inseparably mixed with other items not belonging to us. If, after mixing, the supplier’s item is to be regarded as the principal item, the supplier undertakes to transfer proportionate co-ownership to us. The supplier shall hold our sole ownership and/or co-ownership on our behalf.
3. Ownership of templates, samples, tools, materials and similar items manufactured by the supplier by agreement, including all rights of use, shall pass to us upon payment of the agreed remuneration.
4. The supplier undertakes not to observe, examine, reverse engineer or test the templates, samples, tools, materials and similar items provided by us for the purpose of obtaining our trade secrets.
4. Delivery time, contractual penalties in the event of disruption of performance, procurement risk
1. The agreed delivery dates are binding and must be strictly observed. The timeliness of deliveries or services shall be determined by receipt at the place of receipt or unloading specified in the order or, in the case of contracts for work, deliveries involving installation and services, by their acceptance.
As soon as it becomes apparent to the supplier that delays in delivery, performance or subsequent performance may occur, the supplier shall notify us immediately, without prejudice to our claims. The notification shall also state the reason for and expected duration of the delay. Notification of a possible delivery delay shall not affect the binding nature of the agreed delivery date.
The supplier bears the unrestricted procurement risk, regardless of fault, with regard to the services required for delivery (full assumption of the procurement risk).
2. If the delivery date is exceeded for reasons for which the supplier is responsible, we shall be entitled to demand a contractual penalty of 0.2% of the order value for each commenced working day by which the delivery date is exceeded, but no more than 5% of the order value in total, unless the supplier proves that a lower amount of damage or no damage at all has occurred. Our further specific claims, including claims for damages and withdrawal, shall remain unaffected, although the contractual penalty shall be credited against them.
If the contractual penalty is not expressly reserved when deliveries, services or subsequent performance are accepted, the contractual penalty may nevertheless be asserted up to the final invoice.
3. If the delivery date is exceeded due to force majeure or acceptance of the delivery is prevented, we may, after an unsuccessful expiry of a deadline, at our discretion withdraw from the contract in whole or in part or extend the delivery date without the supplier having any claims for damages or similar claims in such cases.
5. Place of receipt, dispatch, transfer of risk, invoices
1. In the case of contracts for work, deliveries involving installation and services, risk shall pass to us upon acceptance; in the case of other deliveries, upon receipt at the place of receipt or unloading specified in the order. Unless otherwise agreed, delivery shall be deemed agreed as “Delivered Duty Paid” (DDP, Incoterm 2020) to the place of receipt or unloading specified in the order, including packaging.
2. At the same time as loading, the supplier shall send us a dispatch notification by email for each order or, if the order is called off in several partial deliveries, for each call-off. The email shall be sent to the employee named as recipient in our order and shall include, among other things, the framework agreement number, order number, item number, call-off number, quantity actually delivered and the time of delivery.
3. The delivery shall be accompanied by a delivery note, the necessary material certificates and, where applicable, the complete contractually required documentation.
4. Invoices shall state our order reference, framework agreement number, order number, item number and the numbers of the individual items and shall only become due for payment if this information is complete.
6. Prices, payments, rights of retention
1. The price stated by us in the order is binding. Unless otherwise agreed in writing, packaging and transport costs and the associated additional costs are included in the price.
2. Statutory VAT shall be shown separately.
3. Unless otherwise agreed, invoices shall be paid with a 3% discount within 14 days or net within 30 days after receipt of the invoice and the goods or services. The payment period shall commence as soon as the delivery or service has been completed in full and a correct and complete invoice has been received.
If the delivery is received later than the invoice or the invoice is incomplete, the date of receipt of the delivery or the date of receipt of the complete invoice shall be decisive for calculating the discount period. Payment shall be deemed to have been made when the payment instruction is issued.
We shall only be in default if we fail to make payment following a reminder from the supplier after payment has become due and no objections or defences exist.
4. Payments shall not constitute acknowledgement that the delivery or service is in accordance with the contract and shall be made subject to verification of the invoice.
5. The supplier shall only be entitled to rights of set-off and retention if its counterclaims have been legally established, are undisputed or have been recognised by us, or insofar as a counter-performance resulting from the contractual relationship is affected, in particular in the case of a counterclaim arising from a claim for performance in kind that entitles the supplier to refuse performance. The supplier shall only be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
6. Without our written consent, the supplier is not entitled to assign claims arising from the contractual relationship or have them collected by third parties.
7. Quality, occupational safety, environmental protection and documentation
1. The supplier shall comply with the current recognised rules of technology, safety, recycling and environmental regulations and the agreed technical data when providing its services. Changes to the delivery item require our prior written consent.
The supplier must establish and provide evidence of a management system that complies with recognised standards, e.g. DIN EN ISO 9000 ff., DIN EN ISO 45001, SCC, SCP or similar. The supplier shall also observe the recognised rules of technology, the applicable statutory and official regulations and our operational rules and regulations.
In particular, the supplier shall comply with the regulations and rules of the German Social Accident Insurance, the “Principles of Prevention” (DGUV Regulation 1) and the generally recognised rules of safety engineering and occupational medicine.
The supplier shall comply with the provisions of the German Occupational Safety and Health Act, the Ordinance on Industrial Safety and Health and the Supply Chain Act. This includes, in particular, carrying out risk assessments for risks within the supply chain, the activities to be performed and the work equipment used.
2. We reserve the right to verify the effectiveness of the quality management system on site. In such cases, the supplier shall grant us access to the relevant areas and permit inspection of the corresponding documents. Changes to specified product characteristics or to the manufacturing process influencing them shall be reported to or agreed with us.
3. The supplier shall continuously monitor the quality of the delivery items. The contracting parties shall mutually inform each other about possibilities for improving quality in the system, processes and products.
4. If the type and scope of inspections as well as the inspection equipment and methods have not been firmly agreed between the supplier and us, we are prepared, at the supplier’s request and within the scope of our knowledge and experience, to discuss the inspections with the supplier.
5. For characteristics specifically identified in the technical documentation, the supplier shall additionally record when, how and by whom the delivery items were inspected with regard to these characteristics and the results of these inspections.
The supplier shall continuously ensure compliance with the required specifications by means of suitable measures, such as product inspections and process safeguards. The product and process characteristics to be monitored, the safeguarding measures, inspection equipment and methods and the associated quality records shall be independently defined by the supplier. Any requirements specified by us, for example regarding characteristics, safeguarding measures, inspection equipment and inspection methods, shall be observed by the supplier.
6. At our request, the supplier shall include appropriate quality records with the deliveries as evidence of compliance with the required specifications.
7. The supplier is responsible for protecting its products by means of suitable packaging. Upon delivery, the outer packaging, inner packaging and the products themselves must be marked in accordance with the agreements made with us and our applicable packaging regulations. All deliveries must be marked in such a way that all products can be identified at all times.
8. Traceability with regard to the material used and the manufacturing process for specially identified characteristics shall be ensured by suitable identification.
9. Inspection documents shall be retained for ten years and submitted to us if required. This applies in particular to characteristics requiring documentation in order to comply with applicable statutory provisions. The supplier shall, within the limits permitted by law, impose equivalent obligations on its sub-suppliers.
8. Product liability, insurance cover
1. If the supplier is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause falls within its sphere of control and organisation.
2. As part of its indemnification obligation, the supplier shall reimburse expenses pursuant to §§ 683 and 670 BGB arising from or in connection with claims by third parties, including recall campaigns carried out by us. We shall inform the supplier of the content and scope of recall measures, insofar as possible and reasonable, and give the supplier an opportunity to comment. Further statutory claims on our part shall remain unaffected.
3. The supplier shall maintain product liability insurance with coverage of at least EUR 5 million per case of personal injury/property damage or provide evidence of such insurance at our request. Further claims for damages on our part shall remain unaffected.
9. Incoming inspection, liability for defects
1. § 377 of the German Commercial Code (HGB) shall apply with the proviso that we must give notice of externally recognisable defects or transport damage within five working days of delivery and hidden defects within five working days of discovery.
In the event of onward dispatch or redirection of the goods, commencement of the inspection shall be deemed postponed until arrival at the new destination. The supplier shall bear the costs of justified returns, replacement deliveries and rectification.
2. The supplier guarantees that the goods to be supplied comply with German and EU law as well as all statutory provisions applicable at the place of delivery for the protection of life, health and safety, insofar as applicable.
3. We shall be entitled to the full statutory warranty claims against the supplier. In the event of imminent danger or particular urgency, we shall be entitled to rectify defects caused by the supplier ourselves, have them rectified or procure replacements at the supplier’s expense. In all cases, the supplier shall be informed by us of the defect and the potential claim for damages.
4. By way of derogation from § 438 para. 1 no. 3 BGB, the limitation period for our claims for defects pursuant to § 437 nos. 1 and 3 BGB shall be three years; otherwise the statutory limitation periods and provisions shall apply.
5. We shall choose the type of subsequent performance; the supplier’s right under § 439 para. 4 BGB shall remain unaffected.
6. If the supplier has given a guarantee and the item or service is defective in breach of this guarantee, the supplier shall always be liable for damages irrespective of fault.
If the item is defective without the supplier having given a guarantee, the supplier may exonerate itself from our claim for damages or reimbursement of futile expenses only if it proves:
- that the failure to fulfil its obligations is due to an impediment beyond its control, and
- that it could not reasonably have been expected to take the impediment into account at the time of conclusion of the contract or to avoid or overcome the impediment or its consequences.
If the supplier used a third party, it may only be exonerated if both the supplier itself and the third party would be exempt under the aforementioned conditions.
7. If the delivery or service is defective, exercise of our rights due to the defects shall not require the setting of a deadline, in particular if the supplier delivers after default has already occurred or if we have a particular interest in exercising our rights immediately in order to avoid our own default towards our customers or due to other urgency.
If the supplier, as part of subsequent performance, makes a completely or substantially new delivery or carries out substantial rectification, the limitation periods for claims for defects shall begin to run again.
8. The supplier undertakes to use only persons who have the necessary official permits when carrying out our orders and further undertakes to indemnify us against all claims in the event of a violation.
10. Third-party intellectual property rights, compliance with statutory provisions
1. The supplier guarantees that its delivery/service and its utilisation do not infringe any patents or other intellectual property rights of third parties in Germany or abroad. Insofar as the delivery or service performed by the supplier infringes third-party intellectual property rights, the supplier shall indemnify us against claims by the rights holders, provided that the supplier is responsible for the infringement.
2. If utilisation of the delivery/service is impaired by existing third-party intellectual property rights, the supplier shall, at its own expense, either obtain the necessary authorisation or modify or replace the affected parts of the delivery/service so that no third-party intellectual property rights prevent their utilisation and the delivery/service nevertheless complies with the contractual agreements.
11. Confidentiality
1. The supplier is obliged to keep confidential all information provided to it by us within the scope of the order relationship and to use such information exclusively for the purposes of processing the respective order.
The supplier may not pass on or make this information accessible to third parties, with the exception of employees, agents and advisers involved in the relevant processes who strictly require the confidential information for their activities. The supplier warrants and shall ensure that these persons also comply with this agreement and shall impose equivalent obligations upon them.
2. Confidential information within the meaning of these terms and conditions of purchase includes all information, notes, documents, data carriers, drawings, samples and other records, regardless of whether transmitted orally, in writing, electronically or otherwise, which the supplier receives in connection with the business relationship with us, its initiation and the processing of the respective order.
It also includes all written or other information, documents and records containing information about our principles, working methods, manufacturing processes, new developments, improvements, ideas, objectives, customer data and other details and information concerning us. Confidential information also includes information about the business relationship between the parties, its scope and its specific arrangement.
3. If the supplier is legally obliged to disclose confidential information to third parties, it shall notify us in advance and without delay after becoming aware of this obligation. The supplier shall disclose or publish only that part of the confidential information which it is legally obliged to disclose or publish under the applicable statutory provisions.
The confidentiality obligation shall not apply to information which:
a. at the time of disclosure
- is generally known;
- has been published;
- forms part of general specialist knowledge;
- represents the general state of the art;
- is already individually known to the supplier. The supplier shall inform us in writing of such prior individual knowledge.
b. after the time of disclosure
- becomes generally known without any action by the supplier that breaches the confidentiality agreement;
- is disclosed individually to the supplier by third parties without such third parties breaching a confidentiality obligation in respect of the confidential information;
- is independently identified or developed by the supplier without reference to the confidential information;
- is released by us in writing for disclosure to the public;
- must be disclosed in accordance with mandatory statutory provisions.
4. Documents and other records containing confidential information handed over to the supplier shall be returned upon first request. This shall also apply to copies of any kind. Documents containing such confidential information created or further processed by the supplier shall be destroyed upon request and the completeness of the return and destruction shall be confirmed in writing.
5. The confidentiality obligation shall continue to apply after termination of the cooperation or order for as long as the information received has not become publicly known without fault on the part of the supplier, its employees, advisers or other persons commissioned by the supplier in any way. The supplier shall bear the burden of proof in this respect.
For each culpable breach of the above confidentiality obligations, the supplier undertakes to pay a contractual penalty to be determined by us at our reasonable discretion and, in the event of a dispute, subject to review by the competent court. The right to claim further damages, with the contractual penalty being credited in full, shall remain unaffected.
12. Choice of law, place of jurisdiction, place of performance, language
1. The contract and its performance shall be governed exclusively by the law of the Federal Republic of Germany, excluding the conflict-of-law provisions of German private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. The exclusive place of jurisdiction for all disputes involving merchants shall be 48432 Rheine, Germany. However, we shall also be entitled to bring an action against the supplier at the supplier’s place of residence and/or registered office.
3. Unless otherwise agreed, order confirmations, dispatch notifications, delivery notes, invoices and other documents to be provided by the supplier shall be submitted in German.