General Terms and Conditions of Purchase (EKB)
Elkas Logistic Solutions GmbH
§ 1 Scope of application
(1) Unless otherwise agreed in writing, only the following terms and conditions shall apply to purchase, delivery and payment.
(2) The following General Terms and Conditions shall apply to the entire business relationship with the Seller, even if they are no longer referred to in subsequent transactions.
(3) They shall also apply if the Seller refers to other terms and conditions in his order or in a letter of confirmation, unless we have expressly agreed to them in writing. Any deviating terms and conditions of sale of the Seller are hereby expressly rejected. Conflicting terms and conditions of sale of the seller shall not be binding on us even if they are not expressly rejected again upon conclusion of the contract.
§ 2 Orders and conclusion of contract
(1) Orders, order confirmations, delivery contracts and delivery call-offs as well as their amendments and supplements must be made in writing.
(2) If the Contractor does not accept the order or the delivery call-off within 10 working days of receipt, we shall be entitled to cancel the order.
(3) We may demand changes to the design and execution of the delivery item at any time within the scope of what is reasonable for the Contractor. The effects, in particular with regard to additional and reduced costs as well as delivery dates, shall be regulated appropriately by mutual agreement.
§ 3 Payment
(1) Payment shall be made within 14 days of invoicing with a 2% discount, unless other terms of payment have been agreed in writing. If early deliveries are accepted, the due date shall be based on the agreed delivery date.
(2) Payment shall be made by bank transfer.
(3) In the event of defective delivery, we shall be entitled to withhold payment in proportion to the value until proper fulfillment.
(4) Without our prior written consent, which may not be unreasonably withheld, the Contractor shall not be entitled to assign its claims against us or have them collected by third parties. In the event of extended retention of title, consent shall be deemed to have been granted.
(5) If the Contractor assigns its claim against us to a third party contrary to sentence 1 without our consent, the assignment shall nevertheless be effective. However, we may, at our discretion, make payment to the contractor or the third party with discharging effect.
§ 4 Notification of defects
Notwithstanding § 377 HGB (German Commercial Code), we may assert claims for defects at any time without losing our rights.
§ 5 Secrecy
(1) The contracting parties undertake to treat all non-public commercial and technical details that become known to them through the business relationship as business secrets.
(2) Design data, drawings, samples and similar items may not be provided or otherwise made accessible to unauthorized third parties. The reproduction of such objects is only permitted within the scope of operational requirements and copyright regulations.
(3) Subcontractors shall be obligated accordingly.
§ 6 Delivery dates and deadlines
Agreed dates and deadlines are binding. Decisive for compliance with the delivery date or the delivery period is the receipt of the goods by us. If delivery "free works" has not been agreed, the contractor must make the goods available in good time, taking into account the usual time for loading and dispatch.
§ 7 Delay in delivery
(1) The Contractor shall be obliged to compensate us for damages caused by delay. This shall not apply to loss of profit.
(2) In the event of slight negligence, compensation shall be limited to additional freight costs, retrofitting costs and, after fruitless setting of a grace period or if the interest in the delivery ceases to exist, to the additional expenses for covering purchases.
§ 8 Force majeure
Force majeure, labor disputes, civil unrest, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected contractual partner is in default. The contractual partners are obliged to provide the necessary information without delay within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
§ 9 Quality
(1) The Contractor shall comply with the statutory provisions, the recognized rules of technology, the safety regulations, the relevant ordinances and directives as well as the agreed technical specifications (design data, drawings, etc.) for its deliveries.
(2) If sample deliveries have been agreed, the Contractor may only commence series production after prior written approval by us. Irrespective of this, the contractor must constantly check the quality of the delivery items.
(3) The Contractor is obliged to always adapt the quality of its products to be delivered to us to the latest state of the art and to point out possible improvements and/or technical changes. However, changes to the delivery item shall always require our prior written approval.
§ 10 Liability for defects
(1) Claims arising from the warranty for material defects shall expire 24 months after delivery to us.
(2) In the event of defective deliveries, our claims under the Product Liability Act, tortious acts and management without mandate shall remain unaffected by this § 10.
§ 11 Liability
If claims are asserted against us on the basis of strict liability towards third parties under non-mandatory law, the Contractor shall be obliged to indemnify us against such claims. The principles of § 254 BGB (German Civil Code) shall apply accordingly to the compensation of damages between us and the contractor. This shall also apply in the event of a direct claim against the Contractor.
§ Section 12 Property rights
(1) The Contractor shall be liable for claims arising from the infringement of industrial property rights and applications for industrial property rights (industrial property rights), at least one of which from the family of industrial property rights is published either in the Contractor's home country, by the European Patent Office or in one of the following countries: the Federal Republic of Germany, France, Great Britain, Austria or the USA.
(2) The Contractor shall indemnify us and our customers against all claims arising from the use of such industrial property rights.
(3) This shall not apply if the Contractor has manufactured the delivery items in accordance with drawings, samples or other equivalent descriptions or information provided by us and did not know or could not have known in connection with the products developed by him that this would infringe industrial property rights.
(4) The contracting parties undertake to inform each other immediately of any risks of infringement and alleged cases of infringement of which they become aware and to give each other the opportunity to counteract such claims by mutual agreement.
(5) At our request, the Contractor shall inform us of the use of published and unpublished own and licensed industrial property rights and applications for industrial property rights to the delivery item.
§ 13 Use of production resources and confidential information
Samples, tools, devices, test gauges and other production equipment, as well as confidential information provided to the contractor by us or paid for in full by us, may only be used for deliveries to third parties with our prior written consent.
§ 14 Retention of title
(1) If the Contractor has reserved title to the goods delivered by it until full payment has been made, all deliveries shall be deemed to be a single delivery transaction. In the case of a current account, the reserved title shall be deemed security for the contractor's balance claim.
(2) The Contractor shall release the securities held by it to the extent that their value exceeds the claims to be secured by more than 20% in total.
§ 15 Insolvency, change in the legal form of the Contractor
(1) If a contractual partner ceases to make payments or if insolvency proceedings are instituted against its assets or out-of-court composition proceedings are applied for, the other party shall be entitled to withdraw from the unfulfilled part of the contract.
(2) If the Contractor undergoes a significant change in its legal form, ownership structure or financial situation which is likely to have a material adverse effect on the expected results of the business relationship, we shall be entitled to withdraw from our order without incurring any costs.
§ 16 Place of jurisdiction, place of performance and applicable law
(1) The contracts concluded with the Contractor, including these Terms and Conditions of Purchase, are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The contract language is German.
(2) The place of performance under this contract is Gladenbach, unless expressly stated otherwise in the written order confirmation.
(3) The place of jurisdiction for all disputes arising from the business relationship is Marburg (Lahn).
(4) Insofar as these Terms and Conditions or a contract concluded with the Client require the written form for the conclusion, amendment, supplementation or termination of the contract, this shall also apply to the waiver of the written form requirement.
§ Section 17 Severability clause
Should individual clauses of this provision or individual provisions of a contract concluded with the Contractor be or become invalid or contain a loophole, this shall not affect the validity of the remaining provisions and/or contractual clauses. The parties undertake to replace an ineffective clause with a legally permissible provision that comes closest to the economic purpose of the ineffective provision or fills this gap.
Gladenbach, January 2024
