EKB – Terms and Conditions of Purchase of Köttgen Service GmbH

1. General

  • 1.1. We place orders exclusively in accordance with these Terms and Conditions of Purchase ("EKB"). The GTP apply to all business relationships with our business partners and suppliers ("Sellers") concerning the sale and/or delivery of movable goods ("Goods"), regardless of whether the Seller manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 of the German Civil Code (BGB)).
  • 1.2. Deviating, conflicting or supplementary contractual terms and conditions of the seller shall only apply if we have expressly agreed to them in writing. Counter-confirmations by the seller with reference to contractual terms and conditions are hereby expressly rejected. The GTC shall also apply if we accept the delivery without reservation in the knowledge of deviating, conflicting or supplementary contractual terms and conditions of the seller.
  • 1.3. The GTC shall also apply to all future contracts with the seller without us having to refer to them again in each individual case.
  • 1.4. Individual agreements made with the seller in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
  • 1.5. These terms and conditions only apply if the seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

2. Offer/offer documents/conclusion of contract

  • 2.1. Offers made by the seller are free of charge and non-binding for us.
  • 2.2. Our employees are not authorised to make verbal side agreements that go beyond the content of the written contract.
  • 2.3. The seller must confirm each order immediately, stating the binding price and the binding delivery time. Delivery schedules become binding at the latest if the seller does not object to an order within one week of receipt.
  • 2.4. We are entitled to revoke the order until it is accepted by the seller. The seller must notify us of any obvious errors (e.g. typing and calculation errors) and incompleteness of the order, including the order documents, for the purpose of correction or completion before the contract is concluded.
  • 2.5. We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents; they may only be used for the processing of our order and may only be made available to third parties with our written consent, even after termination of the contract. The confidentiality obligation shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known. After completion of the order, they must be returned to us without request.

3. Delivery and delay in delivery

  • 3.1. The agreed delivery period is binding. Agreed delivery dates must therefore be strictly adhered to. The seller cannot invoke delivery difficulties due to a strike or lockout, regardless of whether they occur at the seller's premises or at one of its suppliers. The seller can only invoke the absence of necessary information and/or documents to be provided by us if it has not received the information and/or documents despite setting a reasonable deadline.
  • 3.2. Without prejudice to further claims, we shall be entitled in such cases and in cases of delay in delivery or performance due to force majeure to set a reasonable grace period at our discretion. The seller must confirm the new delivery date in writing.
  • 3.3. The date of receipt of the goods by us shall be decisive for compliance with a delivery date or delivery period. In the case of delivery "ex works", the seller must make the goods available in good time, taking into account the usual time required for loading and dispatch. If acceptance has been agreed, successful acceptance shall be decisive for compliance with a delivery date. Acceptance must be formal. Section 640 of the German Civil Code (BGB) remains unaffected.
  • 3.4. In the event of delayed delivery or performance, we shall be entitled to the statutory claims. The provisions in clause 3.7 remain unaffected. The seller shall be liable for intent and any kind of negligence in this respect. No limitation or reduction of the seller's liability has been agreed. Acceptance of the delayed delivery does not constitute a waiver of claims for compensation.
  • 3.5. The seller is not entitled to make partial deliveries. This shall only apply if we have agreed to a partial delivery in writing.
  • 3.6. As soon as the seller anticipates that it will not be able to meet the agreed delivery dates, it must notify us immediately, stating the reasons and the expected duration of the delay. In the event of a delay in delivery, the seller is obliged to pay lump-sum damages amounting to 0.3% of the net delivery value affected per working day, but not more than 5% of the net delivery value in question in total; further legal claims (in particular withdrawal and further compensation) remain reserved. We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage or only significantly less damage has been incurred.
  • 3.7. In the event of earlier delivery than specified, we reserve the right to return the goods at the seller's expense. If the goods are not returned in the event of early delivery, they shall be stored by us at the seller's expense and risk until the agreed delivery date.

4. Shipping and transfer of risk

  • 4.1. The seller bears the transport risk. This shall also apply if shipment is postponed at our request. The risk of accidental loss and accidental deterioration shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply accordingly in the event of acceptance.
  • 4.2. Unless otherwise agreed, the goods shall be transported at the seller's expense "free domicile" to the location specified in the order. The respective destination is also the place of performance for the delivery and any subsequent performance (obligation to deliver).
  • 4.3. If we bear the costs of shipping and/or transport in individual cases, we shall be entitled to determine the type and method of packaging and/or shipping. If we do not make use of this right, the seller shall choose the most favourable option from several options suitable for shipping and/or packaging.
  • 4.4. Shipping documents such as delivery notes, packing slips and the like must be enclosed with the shipments. All documents must state the order numbers and the markings required in the order. No later than the day of dispatch, a dispatch note and a delivery note must be sent to us for each individual shipment (in duplicate) for each individual shipment. A corresponding shipping notice with the same content must be sent to us separately from the delivery note.
  • 4.5. If, upon receipt of the delivery item, we do not have the proper shipping documents in accordance with Section 4.4, or if our order numbers are not correctly stated in the shipping documents, all additional costs and delays incurred as a result shall be borne by the seller; we shall not be responsible for any resulting delays in processing and payment. In such cases, we shall also be entitled to refuse acceptance of the delivery at the seller's expense.
  • 4.6. If we wish to have the transport and outer packaging used by the seller returned, the seller is obliged to collect this packaging at our discretion from our place of business in Kerpen or the destination within normal business hours within one week of our request. If the seller defaults on this obligation, it shall bear the additional costs incurred by us for disposal.

5. Performance obligations, defect inspection and liability for defects

  • 5.1. The seller must comply with the recognised rules of technology, safety regulations and the agreed technical standards and data for its deliveries.
  • 5.2. The seller guarantees that the goods delivered by him comply with the legal provisions of the country in which the goods are delivered and sold in accordance with their intended use in terms of their composition, quality, packaging, declaration and product specification.
  • 5.3. In any case, the product descriptions that are the subject of the respective contract – in particular by designation or reference in our order – or that have been included in the contract in the same way as these GTC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, the seller or third parties.
  • 5.4. If the delivery contract is based on a sample submitted to us by the seller, which we have checked and accepted, the seller must deliver all deliveries and partial deliveries in at least the same type and quality as the sample (purchase by sample).
  • 5.5. The seller waives its right under the deemed approval provision of Section 377 (2) of the German Commercial Code (HGB) insofar as the defect to be complained about is not obvious, i.e. our obligation to inspect is limited to defects that become apparent during our incoming goods inspection upon external examination, including the delivery documents (e.g. transport damage, incorrect or short deliveries) or are recognisable during our quality control in random sampling. In all other respects, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected.
  • 5.6. We are entitled without restriction to reject goods that have been overdelivered. All costs arising from an overdelivery shall be borne by the seller.
  • 5.7. The seller waives the defence that we were unaware of defects due to gross negligence (§ 442 (1) sentence 2 BGB).
  • 5.8. If we have notified the seller of a defect or sent the notification to him before the statutory or contractual claims for defects became time-barred, we may refuse to pay the purchase price even after the expiry of the limitation period to the extent that we are entitled to do so on the basis of our rights in respect of defects.
  • 5.9. The limitation period is 36 months from the transfer of risk, unless a longer limitation period applies by law. If acceptance has been agreed, the limitation period shall commence upon acceptance. Claims arising from legal defects shall in no case become time-barred as long as the third party can still assert the right against us, in particular in the absence of a limitation period.

6. Declaration of origin

  • 6.1. In the event that the seller makes declarations regarding the characteristics of origin of the goods, it shall be obliged to enable the customs administration to verify these proofs of origin and to provide both the necessary information and any necessary confirmations.
  • 6.2. The seller further undertakes to compensate for any damage resulting from the declared origin not being recognised by the competent authority due to missing certificates or a lack of verification options.

7. Substances and materials provided, transfer of ownership

  • 7.1. Substances and materials (e.g. software, finished and semi-finished products) as well as tools, templates, samples and other items that we provide for the purpose of manufacturing and/or processing/finishing shall remain our property regardless of the type and scope of the seller's services and shall be stored for us at the seller's expense and risk (separately, as long as they are not processed) and insured to an appropriate extent against destruction and loss. The provisions in clause 2.5 shall apply accordingly.
  • 7.2. Any processing, mixing or combining (further processing) of items provided by the seller shall be carried out on our behalf. The same shall apply to further processing of the delivered goods by us, so that we are deemed to be the manufacturer and acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
  • 7.3. The transfer of ownership of the goods to us must take place unconditionally and regardless of payment of the price. However, if, in individual cases, we accept an offer of transfer of ownership from the seller conditional upon payment of the purchase price, the seller's retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. In the ordinary course of business, we remain authorised to resell the goods even before payment of the purchase price, with advance assignment of the resulting claim (alternatively, simple retention of title extended to resale shall apply). This excludes all other forms of retention of title, in particular extended retention of title, transferred retention of title and retention of title extended to further processing.

8. Legal consequences of breaches of contract, liability and damages

  • 8.1. In the event of non-compliance with fixed dates, warranted characteristics and guarantees, as well as in the event of irremediable legal defects, we may withdraw from the contract and demand lump-sum damages amounting to 5% of the delivery price (any lump-sum damages pursuant to clause 3.6 shall be taken into account).This shall not affect our right to claim higher damages upon presentation of evidence. The seller reserves the right to prove that no damage or only minor damage has been incurred.
  • 8.2. Outside of essential contractual obligations, we shall not be liable for slight negligence. We shall only be liable for gross negligence on the part of simple vicarious agents for compensation for typical foreseeable damage. Further claims for damages are excluded.
  • 8.3. The seller is liable in accordance with the statutory provisions. Limitations of liability are expressly rejected.

9. Invoicing and terms of payment

  • 9.1. Invoices must be submitted separately from the shipment of goods in duplicate, stating the order and purchase order number. The seller is responsible for any delays arising from non-compliance with these obligations, without us being responsible for this.
  • 9.2. Unless otherwise agreed, payments for invoices received between the 1st and 15th of the month shall be made on the 30th of the calendar month, and payments for invoices received between the 16th and the end of the month shall be made on the 15th of the following month, less a 3% discount.
  • 9.3. Payment periods shall commence upon receipt of the invoice, but not before receipt of the goods or, in the case of services requiring acceptance, not before their acceptance and, if accompanying documents, test certificates (e.g. factory certificates) or similar documents are part of the scope of services, not before their contractual handover to us.
  • 9.4. The timeliness of payments depends on the completion of the payment transaction by us and not on the receipt of payment by the seller.
  • 9.5. We shall not owe any interest on arrears. The statutory provisions shall apply in the event of default in payment.

10. Offsetting, assignment and right of retention

  • 10.1. We are entitled to offset any counterclaims against claims of the seller.
  • 10.2. Offsetting by the seller with counterclaims is excluded, unless the claims are undisputed or have been legally established.
  • 10.3. The seller is only entitled to exercise the right of retention insofar as his counterclaim is based on the same contractual relationship.
  • 10.4. The transfer of a claim against us to third parties is excluded unless we have expressly agreed to this in writing.

11. Prices – Price increases

  • 11.1. The price stated in the order is binding. Unless otherwise agreed in individual cases, the price includes all services and ancillary services provided by the seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including transport and liability insurance).
  • 11.2. Unless otherwise stated, statutory value added tax is included in the price.
  • 11.3. Price increases after conclusion of the contract are excluded.

12. Property rights

  • 12.1. The seller warrants that the goods are free from third-party rights, in particular that there are no third-party property rights or domestic or foreign industrial property rights to the goods that could be infringed by delivery to us or by resale or further processing of the goods by us or third parties.
  • 12.2. In the event that third parties assert such rights to the goods, the seller shall be obliged – without prejudice to further rights on our part – to clarify the validity of the asserted claims in consultation with us without delay.
  • 12.3. If a third party asserts claims against us in this regard, the seller is obliged to indemnify us against these claims upon first written request; we can only assert claims of the third party arising from agreements or settlements against the seller if the seller has agreed to them or if statutory claims of the third party are covered.
  • 12.4. The seller's obligation to indemnify also applies to all expenses that we necessarily incur as a result of or in connection with the claim by a third party.

13. Supplementary provisions for the purchase of machinery and equipment

  • 13.1. If machinery or equipment is delivered, the scope of delivery must include the following EC Machinery Directive conformity or manufacturer's declaration:
    • Machinery Directive 2006/42/EC
    • EMC Directive 2014/30/EU
    • Low Voltage Directive 2014/35/EU
    in the version valid at the time of delivery.
  • 13.2. The declaration of conformity or manufacturer's declaration and instructions for the proper operation of the unit are part of the documentation to be delivered.
  • 13.3. Machines and systems must be fully suitable for 3-shift operation.
  • 13.4. The seller is obliged to ensure the availability of the components required for the operation of the machine or system for a period of ten years. If this is unreasonable for the seller, they may fulfil this obligation by naming a suitable supplier who will ensure the availability of the components.

14. Self-execution of the order

The seller is obliged to execute the order in its own business. It is only entitled to transfer the order to third parties with our prior written consent. The seller bears the procurement risk for its services, unless otherwise agreed in individual cases (e.g. restriction to stock).

15. Place of jurisdiction, place of performance, choice of law

  • 15.1. If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Cologne, Germany, shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship. The same applies if the seller is an entrepreneur (§ 14 BGB).
  • 15.2. Unless otherwise specified in the order, our place of business in Kerpen shall be the place of performance.
  • 15.3. These terms and conditions, as well as all legal relationships between the seller and us, are governed by the law of the Federal Republic of Germany, excluding international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).

16. Final provision

All provisions contained in the General Terms and Conditions of Purchase are severable and shall be assessed separately from the other provisions if one or more provisions are invalid or unenforceable. Should one of the above provisions be invalid or not become part of the contract, this shall not affect the validity of the remaining provisions. In this case, the contracting parties hereby undertake to enter into negotiations with the aim of replacing the invalid provision with a clause that comes as close as possible to what the parties intended economically with the previous provision.

(Revision status: 01/2023)