Terms and Conditions of Purchase

General Terms and Conditions of Purchase of EKK Anlagentechnik GmbH & Co. KG for entrepreneurs

1. Scope of the Terms and Conditions of Purchase

1.1. Orders and purchase orders placed by us shall be based exclusively on these Terms and Conditions of Purchase. We do not recognise any terms and conditions of the supplier that contradict or deviate from these, except in the case of our express written consent.
1.2. These Terms and Conditions of Purchase shall also apply if we accept delivery without reservation in the knowledge that the supplier's terms and conditions conflict with or deviate from the following.
1.3. These Terms and Conditions of Purchase shall only apply to entrepreneurs within the meaning of Section 310 para. 1 BGB.

2. Orders / order confirmation

2.1. Only orders placed in writing are binding. Verbal agreements made between us and the supplier for the purpose of executing the contract must be set out in writing in this contract. Further verbal agreements shall only become binding for us upon written confirmation.
2.2. The supplier is obliged to accept our order in writing within a period of 10 calendar days from the date of the order, stating the price and exact delivery time.

3. Prices/Terms of payment

3.1. The price stated in the order is binding. Unless otherwise agreed in writing, the price includes delivery "delivered free", including packaging. The statutory VAT is included in the price.
3.2. Unless otherwise agreed in writing, payments shall be made by us after complete delivery and performance within 14 days with a 2 % discount or within 30 days net, in each case calculated from receipt of the invoice.
3.3. We shall be entitled to offsetting rights and retention to the extent permitted by law.

4. Delivery time

4.1. The delivery time stated in the order is binding. The supplier is obliged to inform us immediately in writing if circumstances occur or become recognisable to it which indicate that the delivery time cannot be met.
4.2. In the event of delayed delivery, non-delivery and incorrect delivery, a contractual penalty of 10 % of the delivery value shall be deemed agreed in addition to fulfilment. We undertake to assert the reservation of the contractual penalty within 10 working days of receipt of the delayed delivery. Further legal claims (cancellation and compensation instead of fulfilment) remain reserved.

5. Acceptance and testing

In the case of deliveries under contracts for work and labour, written acceptance by us is mandatory. In case of doubt, silence shall be deemed a refusal of acceptance. This agreement can only be waived by mutual agreement in writing.

6. Transfer of risk

6.1. Unless otherwise agreed in writing, the risk of loss and deterioration of ordered goods shall only pass to us after delivery to the destination specified by us.
6.2. In the case of work and services contracts, the transfer of risk also requires written acceptance of the service. We shall send the confirmation of acceptance to the supplier without delay.

7. Packaging

7.1. The supplier shall be liable for all damage caused by inadequate, unsuitable packaging or packaging that does not comply with the regulations of the respective transport company.
7.2. Unless otherwise agreed, the reusable packaging returned by us must be compensated with two thirds of the amount invoiced by the supplier.

8. Liability for defects

8.1. We shall be entitled to the statutory claims for defects in full. In any case, we shall be entitled to demand that the supplier, at our discretion, remedy the defect or deliver a new item. The right to claim damages, in particular the right to claim damages in lieu of performance, is expressly reserved.
8.2. We are entitled to remedy the defect ourselves at the supplier's expense if there is imminent danger or particular urgency.
8.3. The supplier warrants that the items and services to be supplied comply with the samples approved by us, the relevant standards (DIN, EC standard, etc.) and all safety regulations.
8.4. If we provide the supplier with plans, drawings, material and/or accessories for execution, specify technical data, material qualities or give instructions for execution, the supplier is obliged to check these for completeness, correctness and suitability for the intended purpose. If the supplier does not raise any objections or carry out any inspection, it shall also be fully liable under the warranty if an error occurs due to the data and/or materials provided.
8.5. The warranty period is 2 years from acceptance of the system by our customers, but no longer than 3 years after delivery by our supplier, unless longer periods are stipulated by law or agreed by individual contract. If items of a system are newly delivered, the warranty periods shall begin anew.
8.6. Until expiry of the warranty period, we shall be entitled to a warranty retention amounting to 10 % of the contract price, which the supplier may redeem at any time after acceptance by means of a directly enforceable bank guarantee. If the supplier becomes insolvent before our final payment, we shall be entitled to an additional security retention of 20 % of the contract price to secure our warranty rights until expiry of the warranty period.

8.7. The supplier shall be liable for any kind of negligence on its part as well as on the part of its vicarious agents. It shall compensate for direct and indirect damage caused by defective or faulty goods, incorrect delivery or late delivery. The supplier shall indemnify us against claims for damages by third parties against us due to such defective or non-fulfilment.

9. Product liability – Indemnification – Liability insurance coverage

9.1. Insofar as the supplier is responsible for product damage, it shall be obliged to indemnify us against claims for damages by third parties on first demand insofar as the cause lies within its sphere of control and organisation and it is liable itself in relation to third parties.
9.2. Within the scope of its liability for cases of damage within the meaning of paragraph (1), the supplier is also obliged to reimburse any expenses pursuant to Sections 683, 670 BGB and pursuant to Sections 830, 840, 426 BGB which arise from or in connection with a recall action carried out by us. We will inform the supplier of the content and scope of the recall measures to be carried out – as far as possible and reasonable – and give it the opportunity to comment. Other statutory claims remain unaffected.
9.3. The supplier undertakes to maintain product liability insurance with a lump sum coverage of at least € 5 million per personal injury/property damage; if we are entitled to further claims for damages, these shall remain unaffected.

10. Proprietary rights

10.1. The supplier guarantees that no rights of third parties within the Federal Republic of Germany are infringed in connection with its delivery. If we inform the supplier to which country its delivery will be exported, it is obliged to check whether the patents existing for this country prevent unrestricted utilisation.
10.2. If claims are asserted against us by a third party for this reason, the supplier is obliged to indemnify us against these claims upon first written request; we are not authorised to make any agreements with the third party – without the supplier's consent – in particular to conclude a settlement.
10.3. The supplier's obligation to indemnify relates to all expenses necessarily incurred by us from or in connection with the claim by a third party.
10.4. The limitation period is ten years, calculated from the conclusion of the contract.

11. Retention of title – Provision – Tools – Confidentiality

11.1. If we provide parts to the supplier, we reserve the right of ownership of these parts. Processing or refitting by the supplier shall be carried out on our behalf. If our reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item (purchase price plus VAT) to the other processed items at the time of processing.
11.2. If the item provided by us is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the supplier's item is to be regarded as the main item, it is agreed that the supplier shall transfer co-ownership to us on a pro rata basis; the supplier shall maintain the sole ownership or co-ownership for us.
11.3. The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. These are to be returned to us by the supplier free of charge. They may only be disclosed to third parties with our express consent. The obligation to confidentiality shall also apply after the fulfilment of this contract;
11.4. Insofar as the security interests to which we are entitled in accordance with paragraph (1) and/or paragraph (2) exceed the purchase price of all our reserved goods not yet paid for by more than 10 %, we shall be obliged to release the security interests at our discretion at the request of the supplier.

12. Assignment and offsetting

12.1. All claims that exist or arise on the basis of pre-contractual and ongoing business relationships with the supplier are assignable by us to third parties. With the exception of the advance assignment from an extended reservation of title, the assignment of claims of the supplier from our business relationships requires our express written consent.
12.2. Offsetting against our claims arising from this or future business relationships is only possible with recognised or legally established counter-claims.

13. Withdrawal from the contract in the event of insolvency

If insolvency proceedings are opened against the supplier's assets, an application for the opening of insolvency proceedings is filed or the opening of insolvency proceedings is rejected for lack of assets, this shall entitle us to withdraw from the contract.

14. Place of jurisdiction and place of fulfilment

14.1. If the supplier is a merchant, a legal entity under public law or a special fund under public law, Aichach shall be the agreed place of jurisdiction. However, we shall also be entitled to sue the supplier at the court of its place of residence.
The law of the Federal Republic of Germany shall apply without exception, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of law rules of private international law, even if the supplier is domiciled abroad.
14.2. Unless otherwise stated in the order confirmation, our place of business shall be the place of fulfilment.

14.3. Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision or closes this loophole.