General Conditions of Purchase of OKS Otto Knauf GmbH
(Version Mai 2015)
I. Application
1. These General Purchase Conditions (Conditions) shall apply to all our present and future orders for merchandise and services and to the performance of such orders vis à vis entrepreneurs, governmental entities or special governmental estates in the meaning of sec. 310 para. 1 BGB (German Civil Code). In no case shall Seller’s conditions apply. Should we accept the merchandise not expressly objecting to these Conditions, Seller may never the less not assume our consent with his conditions.
2. Any oral agreements made by our em-ployees shall become binding only if and insofar as we confirm them in writing. This demand is being met also in cases of telefax and e-mail transmission. We are entitled to cancel any order until receipt of the respec-tive order confirmation.
3. Any offer made by Seller will be free of charge for and not binding to us.
4. Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time.
II. Prices
1. The contract price shall be regarded as a fixed price. Unless otherwise agreed, deliv-ery is effected “free house” (franco domicile).
2. In case of “free house” deliveries, deliver-ies “free place of destination” and other “free”-deliveries, the price shall include the costs for freight, packaging and cus-toms/duties. In case of “unfree” delivery, we shall bear the lowest possible freight rates only, unless we have requested a special kind of delivery.
III. Payment
1. Unless otherwise agreed the following terms of payment shall apply: Payment shall be made either within 14 days with 3 p.c. discount or within 30 days without discount.
2. Payment and discount periods shall begin with the receipt of the invoice but not before the receipt of the merchandise. In case of services, such periods shall begin only after the transaction has been approved by us. If the delivery includes documentation (e.g. test certificates) or similar written material, such periods shall begin only after receipt of the same as agreed upon in the contract. In-voices shall include the order reference number.
3. Payment shall be made by cheque or by bank remittance.
4. We shall be liable for interest only if and so far as we are in default for payments, not at their mere maturity date.. We are, in any case, entitled to prove a lower rate than claimed by the Seller.
5. We are entitled to all statutory rights as to the set-off and retention of our claims against the Seller. We are in particular entitled to refuse payment if and as long any inspection documents acc. to EN 10204 have not been supplied.
6. Our principal office shall be the place of performance for the payment.
IV. Delivery Times / Late Delivery
1. All contractual terms and dates of delivery shall be binding to the Seller. The Seller shall immediately inform us in case of imminent delays and submit adequate proposals to remedy the consequences of such delays.
2. Unless otherwise agreed in writing, any contractual terms and dates of delivery shall be considered to be met only if and in so far as the merchandise has been handed over to us at such dates.
3. The Seller may claim relief for his default by reason of lack of any documents to be submitted by us only in such cases where we have failed to deliver such documents to him, although the Seller has given written notice that he unconditionally requires the documents in order to be able to perform the delivery. The aforementioned provision does not apply, if the Parties have agreed on a date for the documents to be provided by the Purchaser.
V. Retention of Title
The Seller may claim return of the merchandise on the basis ofa retention of title clause only if he has previously withdrawn from the contract.
VI. Performance of Deliveries and Passing of Risks
1. The Seller shall bear the risks of accidental loss and accidental deterioration of the merchandise until it has been handed over to us at its place of delivery. This provision shall also apply in cases of “free delivery” (franco domicile)
2. We shall not accept partial deliveries unless we have given our prior express consent to them.
3. Excess or short deliveries will be accepted only in accordance with current trade practise.
4. Unless otherwise agreed in writing, the Seller shall bear the costs of packing. Should we, in a given case, agree to bear such costs, the Seller will charge us with the lowest possible costs only. Any obligations to take back packing material shall be governed by the Packaging Decree (Verpackungsverordnung) of 21.08.1998, as amended from time to time.
5. The Seller shall provide export and import licenses as well as any other authorisations issued by regulatory authorities required in order to perform the order. The Seller shall handle all customs formalities required for the export, import and transit of the merchandise through a third state.
6. Unless otherwise agreed, if the order provides for a delivery on call, the delivery shall be effected immediately after each call.
VII. Declarations of Origin
Where the Seller makes a declaration in regard to the preferential or non-preferential origin of the sold merchandise, the following terms shall apply:
1. The Seller will allow verification through customs authorities and submit all necessary information as well as any required certification.
2. The Seller shall compensate us for any damages and losses incurred to him, if and in so far as the competent authorities, due to any deficient certification or impossibility to verify, fail to acknowledge the declared origin, unless the Seller proves that he is not responsible for such consequences.
VIII. Warranty Provisions and Statute of Limitations
1. The Seller shall deliver the merchandise free of any material and legal defects. He will certify in particular that his deliveries and his services comply with the state of the art and with any contractual requirements and standards.
2. We shall externally examine the quality and quantity of the merchandise upon its receipt to the extent both reasonable and technically feasible for us. In the absence of specific evidence for defects of the goods the requirements of a reasonable and technically feasible inspection are met with the examination of the external quality of the goods visible to the naked eye. The internal quality of the goods shall in no case be subject of such inspection. Any notice of a defect will be deemed to be in time if it reaches the Seller within 12 days by letter, telefax, e-mail or by telephone. Periods for such notices shall not start before we – or in case of direct sales/deliveries our customers – have detected or should have detected the defect in accordance with sentence 1.
3. In the event that the merchandise shows a defect, we may exercise our statutory rights. If the Seller tries to repair the merchandise, such remedy is considered to have failed after the first unsuccessful attempt. We shall have the right to withdraw from the contract also in such cases where a breach of contract is not considered to be material.
4. Where the merchandise was already defective at the time the risk passed to us, we may claim from the Seller also those expenditures in connection with such defect which we must pay to our customer.
5. Any claims arising from defects of the merchandise shall become statute-barred in six years in relation to an item that has been used for a building in accordance with the normal way it is used and has resulted in the defectiveness of the building, and otherwise in three years.
6. The Seller hereby assigns to us – on account of performance – the benefit of any claims against his supplier arising from the delivery of deficient merchandise or of such merchandise not conforming with the guaranteed characteristics. We hereby accept the assignment. The Seller will supply us with any documents necessary to enforce suc claims. We are entitled, though not obliged to take action against the Seller’s supplier first. As soon as we decide not to take action against the Seller’s supplier, we shall immediately re-assign the claims to the Seller.
7. Considering the limits set forth by sec. 439 para. 3 of the German Civil Code (BGB) we are entitled to claim the costs for improvement from the Seller in such cases the demand for remedy of the defect by the Seller is unreasonable due to particular urgency.
IX. Place of Performance, Jurisdiction, Applicable Law
1. Unless otherwise agreed, our warehouse shall be the place of performance for the delivery.
2. Our principal office shall be the place of jurisdiction.
3. All legal relationships between us and Seller shall be governed by the laws of the Federal Republic of Germany supplementing these Purchase Conditions, including the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
X. Applicable Version
In cases of doubt, the German version of these General Conditions of Purchase shall apply.
General Conditions of Sale and Service of OKS Otto Knauf GmbH
(Version Juni 2015)
I. Application
1. These General Conditions of Sale and Service (Conditions) shall apply to all present and future contracts with commercial buyers, with public legal entities as well as public trusts in regard to deliveries and other services, including contracts relating to the provision of services (subcontract-ing) and the manufacture and supply of non fun-gible goods. In case of direct sales (“Streck-engeschäfte”), the producer’s conditions as laid down in its price list shall apply in addition to these conditions. Buyer’s purchase conditions shall not be binding even if we do not expressly object to them again after their receipt.
2. Our offers are not binding to us. All oral agreements, guaranties, assurances and any other made or given by our sales staff shall not be binding unless confirmed by us in writing, this demand being met also in cases of telefax and e-mail transmission.
3. Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time. Unless otherwise agreed, we deliver according FCA (free carrier).
II. Prices
1. Unless otherwise agreed to, our prices are based ex works or ex the place of warehouse plus freight, VAT and any import duties.
2. Should duties, taxes or other third-party charges expenses included in the agreed price change or newly incur later than 6 weeks after the conclusion of the contract, we shall be authorised to modify the price accordingly with regard to the goods not yet delivered to the Buyer. The same applies in case of direct sales if and, after conclusion of the covering transaction with the mill and before the delivery, to the extent that the mill in charge for the delivery should permissibly change its price or any part thereof for the goods. In the event that the modified price surpasses the originally agreed price by more than 15%, the Buyer may, within one week after receipt of our price modification notice, withdraw from the contract with respect to the goods af-fected by the price modification.
3. For alloy- , inflation- or scrap-surcharges the surcharges of the mills at the day of delivery shall be applicable.
III. Payment and Set-Off
1. Payment shall be made without any cash dis-counts so that we can dispose of the sum on the due date. The Buyer may retain or set off any counterclaims only in so far as such claims are undisputed or have become legally binding and as they are not based on the same contractual relation with the Buyer and as they would not entitle him to refuse the fulfilment his contractual duties under section 320 BGB.
2. Should the Buyer exceed the payment term or default in payment, he will be liable to pay inter-est at 9 %points above the basic interest rate, unless higher rates have been agreed upon. Ad-ditionally, we are entitled to charge a default fee of 40,00 €. We reserve the right to claim addi-tional damages resulting from late payment.
3. Should it become evident after the conclusion of the contract, that payment is jeopardised by the Buyer’s lack in financial means, or should the Buyer be in default with a not merely insignificant portion of the amount due or should other cir-cumstances arise which show a material deterio-ration in the Buyer’s financial position after the contract has been concluded, we shall be entitled to exercise the rights arising from § 321 BGB (German Civil Code), to refuse performance and to make due any and all of our not yet due ac-counts receivable resulting from the same legal relationship.
4. Any agreed upon cash discount always relates to the invoiced value excluding freight and will only be granted if and in so far as the Buyer has completely paid all payables due at the time of the discount. Unless otherwise agreed to dis-count periods shall begin with the date of the invoice.
IV. Delivery Times
1. Our commitment to deliver is subject to our own correct and timely self-delivery and, in cases of imported goods additionally to the receipt of any surveillance documents and import licenses, unless we are responsible for the deficient or late self-delivery.
the timely clarification of any details of the order as well as of the fulfilment of any of the Buyer’s obligations, e.g. to produce official certifi-cations, to provide letters of credit and payment guarantees or to pay agreed instalments. The same applies accordingly to delivery dates.
3. Any agreed delivery time or date shall be con-sidered to be met if the goods have left the works or the warehouse at such time or date. If and in so far the goods fail to be despatched at the agreed time for reasons not attributable to us, the agreed delivery time shall be considered to have been met at the day on which the goods are noti-fied to be ready for loading.
4. Within events of force majeure we shall be entitled to postpone deliveries for the period of the impediment and for a reasonable time neces-sary for adaptation. The same shall apply to such events which arise during prevailing delays. Force majeure shall include measures affecting currency, trade policy and other governmental acts, strikes, lockouts, operating shutdowns not caused by us (for example fire, machinery and rolls breakdown, deficiency in raw material or energy), obstruction of traffic routes, delay in customs/import clearance, as well as any other circumstance which, not due to our fault, either substantially jeopardises our deliveries and ser-vices or makes them impossible for us to fulfil, no difference whether such circumstances will affect us or our supplier(s). Should, in conse-quence of the aforementioned circumstances, the performance of the contract become unreason-able to fulfil to one of the contractual parties, such party may then declare withdrawal from the contractafter an additional time period of reason-able length fixed by such party has elapsed .
V. Retention of Title
1. Ownership of the goods is transferred subject to the condition precedent that the purchase price is paid in full. All goods delivered to the Buyer shall remain our property (Reserved Property) until all of the Buyer’s accounts resulting from the business relationship with him, in particular any account balances have been settled. This condi-tion shall apply to any future as well as any con-ditional claims including accepted notes and such cases where the Buyer will affect payments on specifically designated claims. As soon as the Buyer has settled his accounts with us in full, he shall obtain title to those goods which were deliv-ered to him before such payment was effected.
2. With regard to processing or manufacturing of the Reserved Property, we shall be deemed to be manufacturer within the meaning of § 950 BGB (German Civil Code) without committing us in any way. The processed or manufactured goods shall be regarded as Reserved Property within the meaning of clause V/1 of these Conditions. If the Buyer manufactures, combines or mixes the Re-served Property with other goods we shall obtain co-ownership in the new goods in proportion to the invoiced price of the Reserved Property to the invoiced price of the other goods. If, by such combining or mixing, our ownership expires, the Buyer herewith transfers to us any rights which the Buyer will have in the new stock or goods in proportion to the invoiced price of the Reserved Property, and he will keep them in safe custody free of charge. Such transfer is hereby accepted. Our co-ownership rights shall be regarded as Reserved Property within the meaning of clause No. 1 above.
3. The Buyer may resell the Reserved Property only within the normal course of his business in accordance with his normal business terms and provided he is not in default of payment and pro-vided also that any rights resulting from such resale will be transferred to us in accordance with clauses No. 4 through No. 6 above. The Buyer shall not be entitled to dispose of the Reserved Property in any other way.
4. The Buyer hereby assigns to us any claims resulting from the resale of the Reserved Prop-erty. Such assignment is hereby accepted. Such claims shall serve as our security to the same extent as the Reserved Property itself. If the Re-served Property is resold by the Buyer together with other goods not purchased from us, then any receivables resulting from such resale shall be assigned to us in the ratio of the invoiced value of the other goods sold by the Buyer. In the case of resale of goods in which we have co-ownership rights according to clause No. 2 above, the as-signment shall be limited to the part which corre-sponds to our co-ownership rights.
5. The Buyer shall be entitled to collect any re-ceivables assigned to which result from the re-sale of the Reserved Property. This right shall expire if withdrawn by us, at the latest if the Buyer defaults in payment; fails to honour a bill of exchange; or files for bankruptcy. We shall exert our right of revocation only if and in so far as it becomes evident after the conclusion of the con-tract that payment resulting from this contract or from other contracts is jeopardised by the lack of Buyer’s ability to pay. The Buyer shall – upon our request – immediately inform his customers of such assignment and to forward to us any infor-mation and documents necessary for collection.
6. The Buyer shall immediately inform us of any seizure or any other attachment of the Reserved Property by a third party. He shall bear any costs necessary to suspend such seizure or attach-ment or removal of the Reserved Property, if and in so far as such costs are not borne by a third party.
7. Should the Buyer default in payment or should he fail to honour a draft we shall be entitled to take back the Reserved Property and to enter, for this purpose, the Buyer’s premises. The same shall apply should, after the conclusion of the contract, it become evident that payment result-ing from this contract or from other contracts is jeopardised by the Buyer’s lack of ability to pay. If we take back the Reserved Property, this shall not be regarded as withdrawal from the contract.
8. Should the total invoiced value of our collateral exceed the amount of the secured receivables including additional claims for interest, costs etc. by more than 20 %, we shall – upon the Buyer’s request – release pro tanto collateral at our dis-cretion.
VI. Grades, Sizes and Weight
1. In case of doubt, agreed grades and sizes shall be determined in accordance with the DIN-/EN or mills’ standards. Any reference to such standards, mill’s standards or work-certificates as well as any indication with regard to grade, size, weight or usage of the goods shall not be re-garded as a description, a warranty or a guaran-tee. The same shall pertain to any declaration of origin or conformity, to mills’ confirmations and to any related marks such as „U”-marks, CE and GS.
2. The weight of the goods shall be determined on our, otherwise our suppliers’ scales and shall be proven by presentation of the pertinent weight check. We may also calculate the weight without weighing on the basis of the goods’ dimensions according to accepted statistical methods (“theo-retical weight”) and we may increase the theo-retical weight by 2 ½ % to compensate for thick-ness or rolling tolerances (“trade weight”). Devia-tions from the agreed weight up to 0.5 % shall not be subject to a claim.
3. Any indications given in the delivery notes as to the number of pieces, bundles etc. are not binding if and in so far as the goods are invoiced by weight. Where, according to the contract, the goods are not weighed piece by piece, the total weight of the delivery shall prevail. Any difference with regard to the calculated weight of the single pieces shall be proportionally allocated to them.
4. We may transmit Inspection Documents („Mill Test Certificates“) acc. to EN 10204 as ano-nymized copies and/or may issue inspection cer-tificates regarding the material properties our-selves. In case the price for such documents has not been agreed within the contract, we will cal-culate it on the basis of our price list resp. the issuer’s (manufacturer’s) price list.
VII. Testing and Inspection
1. Where testing and inspection of the goods have been agreed upon, the goods must be in-spected in the mill or in our warehouse immedi-ately after the Buyer has been informed that the goods are ready for dispatch. The Buyer shall bear his personal inspection costs, whereas the costs of inspection will be invoiced to him in ac-cordance with our price list.
2. Should, through no fault of ours, an agreed upon inspection of the goods fail or be delayed or be incomplete, we shall be authorised to dispatch the goods without prior inspection or to store them at the Buyer’s expense and risk and to in-voice the goods to him.
VIII. Dispatch, Passing of Risk, Packaging, Partial and Continuous Delivery
1. We shall be entitled to choose the route and mode of dispatch as well as the forwarding agent and the carrier.
2. Otherwise we are entitled, upon our reminder and after a reasonably fixed additional time pe-riod has elapsed, to ship such goods at the Buyer’s cost and risk or to store them at our dis-cretion and to invoice them to the Buyer.
3. Can, by reasons not attributable to us, the goods not be shipped or shall it become substan-tially difficult to ship them via the designated route or to the designated place within the desig-nated time, we reserve the right to ship them via a different route or to a different place. Any addi-tional costs will be borne by the Buyer. In such cases we will ask the Buyer for his prior com-ments.
4. In all transactions, including freight prepaid and freight-free deliveries, the risk of loss or damage to the goods shall pass to the Buyer at the time where we hand them over to the for-warding agent or to the carrier, at the latest with their departure from our warehouse. We will buy insurance only if and in so far as requested to by the Buyer and at his cost. The Buyer shall unload the goods at his cost.
5. The goods will be delivered unpacked and not be protected against rust. Only where so pro-vided by trade usage will the goods be packed. Any package, protection and/or transport device will be supplied according to our experience and at the Buyer’s cost. We will take back such de-vices only at our warehouse. We will not bear any costs for their re-transport or disposal.
6. We shall be entitled to make partial deliveries with reasonable quantities. Where and in so far as allowed by trade usage, we may exceed or reduce the agreed quantities up to 10 % of the contractual quantity. This applies in particular where approximate (“circa”) quantities have been indicated.
7. Where the contract provides for continuous deliveries, the Buyer shall divide the quantities and grades of the goods into approximately equal monthly shipments. Otherwise we shall be enti-tled to specify them at our own fair and just dis-cretion.
8. Where the individual calls for delivery exceed the total contractual quantity, we shall be entitled, yet not committed, to deliver the surplus quantity and invoice it at the prices applicable at the time of the call or the delivery.
9. Unless otherwise agreed, callable deliveries shall be completed in full within 365 days from conclusion of the contract. Monthly calls must be effected at the latest 3 weeks before the respec-tive month of delivery. If the Buyer should not call the delivery in time, we may, after an additionally fixed reasonable period of time has elapsed, fix the monthly deliveries at our reasonably exer-cised discretion and invoice the purchase price and demand immediate payment. Upon expiry of this period, we may store the uncalled goods at the Buyer’s cost and risk. Our statutory rights for non-performance shall remain unaffected hereof.
IX. Warranty Provisions
1. The Buyer shall immediately, at the latest seven days after delivery, notify us in writing of any defects of the goods. Defects which, even upon most careful inspection, cannot be discov-ered within this period must be notified to us in writing immediately upon their discovery. In such cases the Buyer must suspend any processing or manufacturing of the goods. After the discovery of a defect Buyer shall keep the goods in un-changed condition for our inspection. If Buyer should violate his notification obligation or if he should work on the goods after the discovery of a defect or if he should not provide the goods for our inspection, the goods shall be deemed to be accepted. The aforementioned provisions shall apply accordingly to the manufacture of goods.
2. If and in so far as Buyer’s claim for defects is justified and has been made in time, we may, upon our discretion, remedy the defect (“im-provement”) or deliver non-defective goods (im-provement and replacement hereinafter: “cure”). Should we fail or decline the cure, the Buyer may, upon the elapse of an adequate additional period of time set by him, withdraw from the con-tract or reduce the purchase price. In cases where the defect is minor, where the goods have already been processed or transformed, he may only reduce the purchase price. The aforemen-tioned provisions shall apply accordingly for sub-contracting and to the manufacture of goods.
3. We will reimburse the Buyer for his expendi-tures in connection with the substitution only in so far as such expenditures are reasonable and proportional to the purchase price of the goods resp. the remuneration agreed upon, in no case more than 150 pct of the purchase price resp. the remuneration agreed upon for subcontracting or the manufacture of goods. We will bear any fur-ther expenses such as for the mantling and dis-mantling of the defective goods only in accor-dance with the rules of Section X of these Conditions.
4. If and in so far as the goods are subject to contractually agreed testing and inspection by the Buyer, such testing and inspection shall bar any claims for such defects which might have been determined by the agreed type of testing and inspection.
5. No warranty shall be given to goods sold as declassified material with regard to such defects either specified in the contract or to those nor-mally to be expected. Goods classified as “IIa-Ware” (“secondaries”) are not subject to any warranty.
6. Our further liability is subject to Section X. Any of the Buyer’s rights of recourse according to §§ 478, 479 BGB shall remain unaffected.
X. Liability and Limitation Periods
1. Our liability for breach of contractual or extra-contractual obligations, in particular for non-performed or deferred deliveries, for breach of duties prior to the contract (“culpa in contra-hendo”) as well as for tortuous acts – including our responsibility for our managerial staff and any other person employed in performing our obliga-tions – shall be restricted to damages caused by our wrongful intent or by our gross negligence and shall in the latter case not exceed the fore-seeable losses and damages characteristic for the type of contract in question. Apart from that, our liability for damages resulting from defects including consequential damages shall be excluded.
2. The aforesaid restrictions in section X.1 shall not apply to such cases where we breach our fundamental contractual obligations and where such a breach of contract will endanger the con-tractual purpose; it shall neither pertain to dam-ages to life, to the body or to health caused by our fault nor to any cases where we have guaran-teed certain characteristics of the goods. Nor shall such clause affect our statutory liability laid down in the German Product Liability Act. Our contractual obligations shall be considered to be fundamental if they are required to safeguard the due performance of the contract and on which Buyer typically may rely on. Any statutory rules regarding the burden of proof shall remain unaf-fected by the aforesaid.
3. Unless otherwise agreed to any contractual claims which the Buyer is entitled to in connec-tion with the delivery of the goods shall fall under the statute of limitations within a period of one year after the goods have been delivered to the Buyer. This limitation shall also apply to such goods which, according to their normal purpose of use, have been used for constructional works related to real estate property and which have caused damage within this construction, unless this purpose of use has been agreed upon in writing. This restriction shall not apply to our li-ability resulting from breaches of contract caused by our wrongful intent or by our gross negligence; neither to damages to life, to the body and to health caused by our fault nor to any statutory recourse claims.
XI. Export Clearance
Should any Buyer resident outside the Federal Republic of Germany (extraterritorial customer) or a person authorised by him collect goods and transport or ship them to that foreign country, the Buyer shall provide us with the export clearance documents required for fiscal purposes. Without provision of this certification the Buyer is obliged to pay the turnover tax applicable for deliveries within the Federal Republic of Germany on the invoiced amount.
XII. Place of Performance / Jurisdiction / Ap-plicable Law, Language Version
1. The place of performance for our deliveries shall be the supplying work in cases of ex-work deliveries, in all other cases it shall be our ware-house. The place of performance for Buyer’s obligation to pay and jurisdiction for both parties shall be at our seat.
2. All legal relationships between us and the Buyer shall be governed by the laws of the Fed-eral Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
3. In cases of doubt, the German version of these General Conditions of Sale shall apply.
