AGB EK | Gebr. Kemper GmbH + Co. KG

General Terms and Conditions of Purchase

I. General provisions

Our orders shall be placed solely on the basis of the following terms and conditions. Any conflicting terms of delivery shall have no legal effect, even if we do not expressly oppose them. By accepting the order and/or delivery, the supplier shall acknowledge our terms and conditions. The acceptance of goods or payment by us shall in no case constitute an acknowledgement of the supplier's terms of sale. Any expressly agreed contractual provisions shall take precedence over the provisions in these terms and conditions of purchase.

II. Offer, conclusion of contract

Only orders placed in writing or in text form shall be legally binding. Orders placed orally or by telephone shall require subsequent confirmation in the above form to be effective. The same shall apply to alterations, additions or subsidiary agreements.
If our order is not accepted in writing or in text form within five working days or within the period specified in the order, we shall be entitled to cancel it. Obvious spelling or calculation errors in our order or in other declarations can be corrected by us at any time, even after the conclusion of the contract, without imposing any obligation on us.
Offers shall be submitted free of charge for us, they must reach us on time. Any visits, preparation of planning documents and similar services shall not be remunerated.
The supplier shall be bound by the terms of his offer; this shall also apply to drawings, illustrations, dimensions, weights and other performance data.
Within reasonable bounds, we can demand changes to the delivery item even after the contract has been concluded. Due account shall be taken of the consequences, in particular with regard to added or reduced costs as well as the delivery dates.
Without our consent giving in writing or in text form, the supplier shall not be entitled to pass on our orders or contracts to third parties; otherwise we shall be entitled to withdraw from the contract in whole or in part and to claim damages.

III. Delivery and performance terms, default

Agreed delivery and performance terms as well as delivery dates shall be binding. The receipt of the goods at the place of receipt or use specified by us shall be decisive for compliance with the dates or terms.
The acceptance of a delayed delivery or performance shall not imply a waiver of claims for compensation.
If the supplier realises that a delivery date or delivery term cannot be met, for whatever reason, he must inform us promptly in writing or in text form, stating the reasons and the expected duration of the delay.
If the supplier fails to deliver by the agreed time, he shall be liable for the damage caused by the delay. In addition, we can demand compensation for damages instead of performance and/or withdraw from the contract in whole or in part if we have unsuccessfully set the supplier a reasonable deadline for performance or subsequent performance of the service and the supplier fails to perform the due service or fails to perform as owed.
The supplier shall notify us promptly in writing or in text form of any reasons for which, in his opinion, we are responsible and which could lead to a failure to meet delivery/performance dates. If he does not notify us promptly, the supplier can no longer invoke these circumstances in the event of a delay in delivery/performance.
In cases where one party is affected by force majeure (including strike and lockout in third-party companies), each party shall be entitled to suspend the performance of their contractual obligations without being liable for damages and/or reimbursement of expenses. However, the above provisions shall not apply to claims for damages arising from injury to life, body or health or from intentional or grossly negligent breaches of obligations by the contracting party or their vicarious agents.
The other contracting party shall be notified of the impediment to performance promptly and without undue delay.
Force majeure within this meaning shall be deemed to have occurred in the case of an event external to the business, externally caused by elementary forces of nature or by actions of third parties, which is unforeseeable according to human insight and experience, cannot be prevented or rendered harmless by economically acceptable means, even by the utmost care reasonably to be expected under the circumstances, and is not to be accepted by the business operator even due to its frequency in the business.
If contractual performance is delayed by more than four (4) months for reasons of force majeure as defined above, and if the parties have not agreed on a new basis for continuing contractual performance at the end of the delay, either party may, after this period and if the cause of non-performance continues to exist, give written notice of termination of the contract to the other party or, if the legal requirements are met, withdraw from the contract.
However, our claim to the (pro-rata) contractual consideration (payment) for the deliveries and services rendered up to the occurrence of the impediment, plus expenses, shall remain effective, unless the partial performance already rendered is objectively no longer of economic interest to the principal due to the delay caused by force majeure. The procedural burden of proof for such a loss of interest shall be on the principal.
In this case, the principal can demand the reimbursement of payments already made to which we are not entitled according to the above provisions.
If the goods are delivered earlier than agreed, we reserve the right to return the goods at the supplier's expense. If the goods are not returned in the case of premature delivery, they shall be stored by us at the supplier's expense and risk until the delivery date. In the event of premature delivery, we reserve the right not to make payment until the agreed due date.
Partial deliveries shall only be accepted by express agreement. In the case of agreed partial shipments, the remaining quantity shall be listed in each case. In the case of excess deliveries that exceed the usual commercial measure, we reserve the right to return the excess goods delivered at the supplier's expense.

IV. Prices, dispatch, packaging, transfer of risk and ownership

The agreed prices are fixed prices and shall preclude additional charges of any kind. Costs for packaging and transport to the agreed place of receipt or goods acceptance as well as for customs formalities and customs duties are included in these prices. If no prices are stated in the order, the supplier's current list prices with the customary commercial deductions shall apply.
Within the framework of performance, the supplier shall observe all relevant statutory provisions and regulations, in particular environmental protection, hazardous goods and accident prevention regulations, and shall ensure the security of the supply chain in accordance with the relevant customs regulations and comply with the generally recognised technical safety rules.
Each delivery shall be announced to us promptly after execution by means of a dispatch note, which is precisely structured according to type, quantity and weight. Dispatch notes, bills of lading, invoices, delivery notes specifying the exact delivery address (Plant I or Plant II) and all correspondence shall contain our order number.
Unless otherwise agreed in writing or in text form, delivery shall be made at the risk and expense of the supplier, carriage paid to our factory, or the destination specified by us including packaging, insurance and customs (DDP Incoterms® 2020). The risk of accidental loss or accidental deterioration of the goods shall only pass to us after delivery of the goods at our incoming goods department (place of performance) or at the alternatively agreed place of receipt, e.g. the place of installation in a hall of a factory (then place of performance there).
All deliveries shall be covered by transport insurance on our part. We are therefore a customer who is exempt from forwarding insurance (“RVS/SVS-Verbotskunde”). The supplier shall notify the forwarding agent or carrier of this.
If, in exceptional cases, non-packaging-free delivery has been agreed, the supplier shall choose the type of packaging most favourable to us. We shall be entitled to reduce any packaging costs that are charged at too high a level in the invoice. Packaging that is in a good or reusable condition shall be returned by us promptly to the supplier carriage paid against a remuneration of 2/3 of the value stated in the invoice for this purpose.
In all other respects, the obligation to take back the packaging shall be governed by statutory provisions. Goods shall be packed in such a way that transport damages are avoided. Packaging materials shall only be used to the extent necessary to achieve this objective, in this context only environmentally friendly packaging materials shall be used. All damages caused by unsuitable packaging shall be borne by the supplier.

V. Invoice, payment, assignment. Reservation of title, right of retention and set-off and contractual penalty

Invoices shall be submitted to us by separate post in duplicate with all the relevant documents and data after delivery has been effected. Invoices shall be broken down according to the items of the order. In particular, our order number must be specified. We shall promptly submit a complaint for any invoices that are not in order. In this case, the invoice shall only become due for payment after proper correction.
Payments shall be made after receipt of the goods in full or performance of the services in full and after receipt of the invoice within the agreed terms of payment. If the invoice is received by us before receipt of the goods in full, the payment deadline shall start to run on the day of when the goods are received. If the invoice amount is paid before the goods are received, payment shall be made subject to receipt of the goods; the right to complain about defects shall not be affected by premature payment.
With the exception of an extended reservation of title, which is accepted by us in this respect, the supplier shall not be entitled to assign, pledge or have third parties collect his claims against us in whole or in part without our consent given in writing or text form.
The supplier shall be entitled to retain title to the delivered goods until payment by us, without this affecting our rights to process and resell the goods.
A reservation of title by the supplier shall only apply to the amount not paid by us or the balance existing in favour of the supplier.
Insofar as certificates for material inspections are agreed or customary, they shall form an essential part of the delivery and shall be attached to the goods. The payment deadline for invoices shall not start running before receipt of the certificate.
In the event of a defective delivery, we shall have a right of retention and be entitled to a set-off.

VI. Notice of defects, liability for material defects and defects of title as well as other breaches of obligations, liability periods, product liability

The supplier guarantees that all deliveries/services comply with state-of-the-art technical standards, statutory provisions and the regulations and guidelines of authorities, trade associations and professional associations. In particular, the deliveries/services shall comply with the German Product Safety Act (Produktsicherheitsgesetz) as well as the regulations issued for this act and the German Act on the Electromagnetic Compatibility of Operating Equipment (Gesetz über die Elektro-Magnetische-Verträglichkeit von Betriebsmitteln) including the regulations issued for this act. If deviations from these regulations are necessary and legally permissible in individual cases, our written consent must be obtained to this end. The supplier's liability for material defects and defects of title shall not be restricted by this consent. If the supplier raises concerns about the type of execution requested by us, they must be promptly communicated to us in writing.
The supplier shall undertake to use environmentally friendly products and processes in his deliveries/services and also in subcontracted deliveries or ancillary services of third parties within the scope of economic and technical possibilities. He shall be liable for the environmental safety of the delivered products and packaging materials and for all consequential damages resulting from the violation of statutory waste disposal obligations. At our request he shall issue a certificate of composition for the delivered goods. The supplier shall undertake to comply with and observe the REACH Regulation (Registration, Evaluation and Authorisation of Chemicals). The supplier shall provide us with all necessary information regarding the contractual products in good time.
We are not obliged to carry out a detailed inspection of the goods on receipt; we shall check random samples and for obvious defects. The values determined by us shall be decisive for quantities, dimensions and weights.
Notifications of defects shall be deemed to have been made in good time if the supplier is notified of obvious defects promptly (as a rule within five working days of their detection) after receipt of the goods. Non-obvious or concealed defects can also be notified by us at a later date, i.e. promptly (as a rule within five days) after detection and identification of such defects.
The supplier shall be obliged to grant us possession and ownership of the goods free of material defects and defects of title. A material defect shall be deemed to exist in particular if the goods do not have the agreed quality at the time of transfer of risk and/or are not suitable for the use specified in the contract and/or do not retain their quality and/or usability for the customary period of time.
If the supplier fails to meet his obligation to remedy defects within a reasonable grace period granted by us, we may carry out the rectification of defects ourselves or have it carried out by a third party at the supplier's expense, unless the supplier rightfully refuses such rectification. Section 323 paragraph (2) of the German Civil Code (BGB) shall apply mutatis mutandis; neither need a grace period of time granted by us if rectification has failed or would be unacceptable for us. If, in the case of rectification, work (e.g. sorting out, remedying of defects) is necessary at the place or in the factory where the goods are to be delivered as intended, the supplier shall be obliged to effect or arrange for rectification in this place at his own expense. In order to avoid production stoppages, this must be effected promptly, without a special deadline needing to be set in addition to the notification. Otherwise, we and/or those affected in the supply chain shall be entitled to perform this work or have it performed at the supplier's expense.
Our claims arising from material defects and defects of title and other breaches of obligations on the part of the supplier shall become statute-barred without prejudice to longer statutory periods or periods agreed in individual cases, and subject to the provision in clause 8, no earlier than three years after acceptance of the deliveries/services in full, unless longer periods apply by law, but no later than 10 years from the start of the statutory limitation period. If acceptance is delayed through no fault of the supplier, the warranty period shall begin after the delivery item has been made available for acceptance. The warranty period for spare parts shall start with the installation of the spare part free from defects and shall also amount to three years, unless longer periods apply by law. For delivery parts which are not put into operation and do not remain in operation during the inspection of the defect or rectification of the defect, the warranty period shall be extended by the time of the stoppage. Otherwise, the period shall be extended by the periods during which the limitation period is suspended.
If claims are asserted against us by third parties due to defects of the item or other breaches of obligations that are within the supplier’s sphere, the supplier shall indemnify us against all claims of our contract partners; in the case of claims for damages, however, only to the extent that the supplier is responsible for the defect of the item or other breach of obligations. Our claims for compensation and indemnification against all damages and expenses shall go beyond the liability and limitation periods stipulated in clause 7, but no longer than 10 years from the start of the statutory limitation period, as long as we are liable for the goods sourced from the supplier and for any damages and expenses resulting therefrom for reasons within the supplier's sphere of responsibility. Claims arising from breaches of obligations by the supplier regarding which we give notice of complaint within the liability and limitation period, shall become statute-barred no earlier than three months after notice of complaint.
Our approval of drawings, calculations or other technical documents shall not affect the supplier's liability obligations for material defects and defects of title. Any limitation of liability on the part of the supplier is hereby opposed. Limitations of liability shall only apply if and to the extent that they have been expressly acknowledged by us in writing.
Any further claims and longer periods of limitation according to the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG), due to unlawful acts, due to fraudulent conduct, and due to a guarantee shall not be affected. The supplier shall undertake to keep all design and production documents relating to the delivered goods for 11 years and to make them available to us at any time in the event of a product liability claim against us.
The supplier shall take out insurance providing adequate cover against all risks arising from product liability and other liability, including the risk of recall, and shall present the insurance policy to us for inspection upon request.

VII. Models, drawings, samples, tools

All tools, models, samples, moulds, templates and drawings as well as similar objects which we make available to the supplier shall be treated confidentially and may only be used for the execution of our orders and may not be duplicated or made available to third parties. The documents shall remain our property. The goods and services produced according to this may not be handed over to third parties either in a raw condition or as semi-finished or finished products. The same shall apply to parts which the supplier has developed according to our specifications.
If the supplier produces tools, models, samples, drawings or similar items in the context of our order, they must be treated confidentially in the same way. The items shall become our property as soon as we have paid the agreed remuneration, or become our joint property as soon as we have made a down payment, in the ratio of the agreed remuneration to the down payment. If no remuneration is owed, the items shall become our property on conclusion of the contract, but at the latest on being produced. The supplier shall store the items for us free of charge. We shall be entitled to take possession if the supplier is threatened by enforcement proceedings, or if a petition for insolvency is filed against the supplier, or in all other cases of termination of the contractual relationship. After completion of the order, these items shall be handed over to us.
The same obligation shall be imposed on subcontractors.

VIII. Property rights

The supplier shall notify us in writing of all and any industrial property rights or applications for industrial property rights the contents of which are used in the deliveries/services, specifying all necessary data on delivery of the parts or, in the case of services, on handing over the technical documents. The supplier shall be liable for ensuring that industrial property rights of third parties are not violated.
We shall be entitled to obtain, at the supplier's expense, permission to use, deliver, put into operation, resell etc. the delivery items and services from the beneficiaries of the property rights.
If claims are asserted against us or third parties in connection with the production and use of the deliveries/services as well as the procurement of spare and wear parts due to the infringement of industrial property rights, the supplier shall be obliged to indemnify us or third parties engaged by us and to compensate us for all damages resulting from this, including judicial and extrajudicial costs. The supplier can only hold us accountable for contributory negligence due to the infringement of industrial property rights if he can prove intent or gross negligence on our part or on the part of third parties engaged by us.

IX. Secrecy

The supplier undertakes to treat the conclusion of contracts and all negotiations to this end confidentially, unless we have expressly agreed to their disclosure in writing.
All commercial and technical details which are not public knowledge and which are necessary for the execution of the order, as well as all work methods, procedures, facilities, equipment, plans, drawings and documents that we make available to the supplier or his representatives during the execution of the order or which are absolutely necessary for the execution of the order, shall be deemed confidential and subject to an obligation of secrecy.
The same obligation shall be imposed on subcontractors.
If one of the contract partners realises that confidential information has come to the knowledge of an unauthorised third party or that a confidential document has been lost, that party must inform the other contract partner promptly.
The supplier may not use the knowledge gained in the course of processing our order and the order itself for advertising purposes or publications unless we have given our express prior written consent.

X. Place of performance, legal venue. governing law

The place of performance for deliveries shall be the agreed place of receipt, for other services Olpe.
The place of jurisdiction in the case of contracts with merchants and legal entities under public law or special funds under public law shall be the competent court at our registered place of business. This shall not apply if another national law is applicable in accordance with clause 3 below; in this case the court at our foreign company’s registered place of business shall have jurisdiction. We shall also be entitled to bring an action before the courts at the registered place of business of our respective contract partner.
It is agreed that German law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG) and the UN Statute of Limitations. German law shall only be replaced by the respective national law in conjunction with the following terms and conditions, if the orders are domestic orders of our foreign companies and deliveries to them that are not cross-border deliveries, the contract partners therefore have their registered place of business in the same country where our foreign company places the order and receives the delivery.

XI. Final provisions

1. Personal data of the supplier shall be stored by us in accordance with the provisions of the General Data Protection Regulation (GDPR).
2. The contractual language shall be German. Insofar as the contract partners additionally use another language, the German wording shall take precedence. For domestic orders of our foreign companies that do not include cross-border deliveries, the contractual language shall be the respective national language, where applicable also English, if both contract partners so agree.

Last updated: September 2021