U. Kolb Vertriebs GmbH | Waldenbuch
§ 1 Scope
(1) All deliveries, services and offers of our suppliers shall be carried out exclusively in accordance with these General Purchasing Conditions. They are considered a component of all agreements we conclude with our suppliers for the services and deliveries they offer. They shall also apply to all future deliveries, services, or offers for U. Kolb Vertriebs GmbH (hereinafter referred to as “Kolb”), even if they are not separately agreed to.
(2) Any terms and conditions of our suppliers or third parties shall not apply, even if we do not object to their validity in an individual case. Even we refer to a document containing the terms and conditions of the supplier or a third party, this shall not be considered agreement with the validity of such terms and conditions.
§ 2 Orders and contracts
(1) Unless our orders contain an explicit binding period, we will consider such orders binding for one week after the order date. Our receipt of the acceptance declaration shall be used to determine whether acceptance is completed promptly. The supplier shall notify us of obvious errors (such as typos and calculation errors) or if the order and order documents are incomplete, so that we may correct or complete these before acceptance; otherwise, the agreement shall not be considered concluded.
(2) We are entitled to change the time and location of delivery and the type of packaging at any time through written notification, with a notice period of at least ten calendar days before the agreed delivery deadline. The same applies to changes to product specifications, if these can be implemented the supplier’s normal production process without significant additional work, whereby the notice period in accordance with the above clause is at least ten calendar days in such cases. We will reimburse the supplier for verified, reasonable additional costs resulting from the change in each case. If such changes result in delivery delays that cannot be avoided with a reasonable amount of effort in the supplier’s normal production and business operations, then the originally agreed delivery deadline shall be delayed accordingly. The supplier shall notify us in writing of its carefully estimated, expected additional costs or delivery delays promptly before the delivery deadline, and at least within three business days after receiving our notification according to clause 1.
(3) We are entitled to withdraw from the agreement at any time through written declaration by providing grounds, if
(a) we are no longer able to use the ordered products in our business operations due to circumstances which occurred after the contract was concluded and for which the supplier is responsible (such as failure to comply with statutory requirements), or if such use will result in significant expenses, or
(b) if the supplier’s financial circumstances worsen after the contract is concluded such that it is unlikely delivery will be completed in accordance with the contract.
§ 3 Prices, payment conditions, invoice information
(1) The price listed in the order is binding.
(2) Unless otherwise agreed in writing, the price includes delivery and transportation to the shipping address indicated in the agreement, as well as packaging.
(3) If the price does not include packaging according to the agreement and compensation for the packaging (excepting packaging provided on loan) is not expressly stipulated, then packaging materials shall be billed at the verified cost price. The supplier shall take back packaging materials at its own cost at our request.
(4) Unless otherwise agreed, we will pay the purchase price within 14 days of delivery of the goods and receipt of the invoice with a 3% discount, or within 30 days net.
(5) Receipt of our transfer order by our bank shall be considered sufficient for our payments to be made in a timely fashion.
(6) The supplier shall have rights of offsetting and retention only with respect to counter-claims that are undisputed or that have been established in a court of law.
(7) Our order number, the article no., delivered quantity and delivery address must be included in all order confirmations, delivery documents and invoices. If one or more of these pieces of information are missing, and if this delays our processing in the normal course of business, then the payment terms indicated in para. 4 shall be extended for the length of this delay.
(8) If we default on payment, we will be liable for default interest in the amount of five percentage points A.P.R. according to Sec. 247 BGB (German Civil Code).
§ 4 Delivery term and delivery, transfer of risk
(1) The delivery term (or deadline) indicated by us in the order or otherwise stipulated in these General Purchasing Conditions shall be binding. Early deliveries are not permitted.
(2) The supplier is obligated to inform us promptly in writing if any circumstances occur or are foreseeable that could interfere with delivery by the deadline.
(3) If the latest delivery date is determined pursuant to the agreement, then the supplier shall fall into default at the end of this day, without requiring any warning by us.
(4) In case of a default of delivery, we will be entitled to assert statutory claims without restriction, whereby we can only exercise our right to withdraw from the agreement or assert claims for damages instead of payment after we have provided a reasonable grace period.
(5) We are entitled to assert a contractual penalty for each full or partial week of 0.5%, and a maximum of 5% of the respective order value in case of delayed deliveries, following a written warning to the supplier. The contractual penalty shall be offset against default damages to be paid by the supplier.
(6) The supplier shall not be entitled to make partial deliveries without our prior written approval.
(7) The supplier shall bear the risk of procurement for its delivery, unless otherwise agreed in an individual case (such as limitation to stock on hand)
(8) Even if shipment is agreed, risk shall be transferred to us only once the goods are handed over at the intended destination.
§ 5 Retention of title
(1) We will reserve ownership and copyrights to orders and contracts provided to us, as well as drawings, images, calculations, descriptions and other documents provided to the supplier. The supplier may not disclose these to third parties, nor use these, allow third parties to use them, or duplicate them without our express approval. It shall return these documents to us at our request in full, if they are no longer needed in the normal course of business, or if negotiations between the parties do not result in the conclusion of a contract. Copies made by the supplier shall be destroyed in this case, except those stored in accordance with statutory retention periods and data stored in the course of regular back-ups.
(2) Tools and models we provide to the supplier or that are manufactured for contractual purposes and for which the supplier invoices us separately shall remain our property or be transferred to our ownership. The supplier shall label them as our property, store them carefully, insure them to a reasonable extent against damages of all kinds, and only use them for the purpose of the agreement. Each contractual partner shall bear half of the costs for their maintenance and repair, unless otherwise agreed. However, if these costs result from defects in objects manufactured by the supplier or improper use by the supplier, its employees or other agents, then they shall be borne solely by the supplier. The supplier shall notify us promptly of all significant damages to these tools and models. It shall be obligated upon request to return them to us in proper condition if they are no longer needed to fulfill the agreement concluded with us.
(3) Any reservations of ownership by the supplier shall apply only if they refer to our payment obligations for the respective products to which the supplier is reserving ownership. Extended or expanded retentions of ownership shall, in particular, be prohibited.
§ 6 Warranty claims
(1) We are entitled to assert all claims under the law in case of defects, without restrictions. However, in deviation from the law, the warranty term shall be 30 months.
(2) The statutory regulations apply to merchants’ duties of investigation and complaint (Sections 377, 381 HGB (German Commercial Code)), with the following caveat: our duty of investigation shall be restricted to defects that are obvious during an external visual inspection, including delivery documents, in our incoming goods (such as damage in transit, incorrect or incomplete deliveries) or during random testing in our quality controlling. If acceptance is agreed upon, then there is no duty of investigation. Otherwise, our duty shall be based on the extent to which an investigation is feasible in consideration of the circumstances of the individual case, in the normal course of business. Our obligation to submit complaints for defects discovered at a later date shall remain unaffected. regardless of our duty of investigation, our complaint (defect notification) shall be considered prompt and timely if it is sent within five business days after the defect is discovered, or from the time of delivery for obvious defects.
(3) Our acceptance or approval of samples or templates provided to us shall not be considered a waiver of any warranty claims.
(4) When the supplier receives our written defect notification, the expiration terms of any warranty claims shall be suspended until the supplier rejects our claims, declares the defects to be corrected, or otherwise denies to continue negotiations regarding our claims. If a replacement delivery is provided or a defect is corrected, the warranty term shall be restarted for replaced or repaired parts, unless we assume based on the conduct of the supplier that it did not consider itself obligated to take the measure, but rather provided the replacement delivery or corrected the defect only as a goodwill measure or similar.
§ 7 Product liability
(1) The supplier is responsible for all claims asserted by third parties due to personal injury or property damage that are the result of a faulty product delivered by it, and is obligated to release us from the resulting liability. If we are obligated to carry out a recall campaign involving third parties due to a fault in a product delivered by the supplier, the supplier shall bear all costs associated with the recall.
(2) The supplier shall maintain product liability insurance at its own cost with a sum insured of at least 25,000,000.00 EUR for the product liability risk, which does not need to cover the recall risk, criminal risks or similar damages unless otherwise agreed in the individual case. The supplier shall provide a copy of the liability policy upon request at any time.
§ 8 Industrial property rights
(1) The supplier shall ensure, in accordance with this para. 1, that the products it delivers do not violate any property rights of third parties in European Union countries or any other countries in which it manufactures the products or has them manufactured. It is obligated to release us from all claims third parties assert against us due to such violations of industrial property rights, and to reimburse us for all necessary expenses in conjunction with such claims. This shall not apply if the supplier proves that it was neither responsible for this violation of property rights, nor should have been aware of it at the time of delivery with proper due diligence.
(2) Our further statutory claims due to defects in title of the products delivered to us shall remain unaffected.
§ 9 Replacement parts
(1) The supplier is obligated to have replacement parts available for products delivered to us for at least ten years after the last delivery.
(2) If the supplier intends to stop production of replacement parts for products delivered to us at or after the end of the time period indicated in para. 1, then it
§ 10 Confidentiality
(1) The supplier is obligated to keep the conditions of the order and all information and documents it provides to us for this purpose (with the exception of publicly accessible information) confidential for three years after the time of delivery, and to use it only to carry out the order. It shall promptly return the documents indicated used to handle the order or any relevant inquiries to us upon request.
(2) The supplier may not refer to the business relationship in advertising materials, brochures, etc. without our prior written approval, and may not exhibit any delivered objects manufactured for us.
(3) The supplier shall obligate its subcontractors accordingly pursuant to this Sec. 10.
§ 11 Assignment
The supplier is not entitled to assign its claims resulting from the contractual relationship to third parties. This shall not apply with respect to monetary claims.
§ 12 Compliance with the law
(1) The supplier is obligated to comply with the statutory provisions applicable to it in conjunction with the contractual relationship. This applies, in particular, to anti-corruption and money laundering laws, as well as antitrust, labor, and environmental protection regulations.
(2) The supplier shall ensure that the products delivered by it fulfill all applicable requirements for marketing in the European Union and European Economic Area. It shall submit suitable documents to us upon request to verify this conformity.
(3) The supplier shall take all reasonable measures to ensure that all of the obligations in this Sec. 12 that apply to the supplier are complied with by its subcontractors as well.
§ 13 Place of fulfillment, jurisdiction, applicable law, miscellaneous
(1) The place of fulfillment for both parties is Waldenbuch.
(2) If the supplier is a merchant, legal entity under public law or a public law special fund, or if it does not have its general place of jurisdiction in the Federal Republic of Germany, then the place of jurisdiction for any disputes arising from the business relationship between Kolb and the supplier shall be either Waldenbuch or the supplier’s headquarters, at Kolb’s discretion. The exclusive place of jurisdiction for suits against Kolb shall, however, be Waldenbuch. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(3) The relationships between Kolb and the supplier are governed only by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 4/11/1980 (CISG) shall not apply.
(4) If the agreement or these General Purchasing Conditions contain any loopholes, the legally valid regulations that the contractual partners would have agreed on based on the economic objectives of this agreement and the purpose of these General Purchasing Conditions had they been aware of the loophole shall apply.