General conditions of purchase

Version 10/2017

General purchasing conditions for supplies and services 
to a company in the KLS Martin Group hereinafter "User"

I. Validity of the GPCs

1. These GPCs apply to pre-contractual obligations, contracts and business relationships
of companies within the KLS Martin Group ("User")
with suppliers in as far as these are companies, legal entities according to public law or public special funds in the context of § 310 Section 1 BGB (German Civil Code) (hereinafter "Supplier").
2. The companies belonging to the KLS Martin Group are the companies mentioned on the KLS Martin Group website.
3. In the case of continuing obligations, changes in the purchasing conditions become valid for these contractual relationships if the User refers to the new purchasing conditions and the opportunity for gaining same knowledge and the Supplier does not object to the new conditions within six weeks. If the Supplier objects, the User is entitled to cancel the contract within six weeks after receipt of the objection.
4. These purchasing conditions also apply exclusively to all future business relationships even if not expressly agreed again. Deviating conditions of the Supplier which are not expressly acknowledged by the User are invalid, even if the User does not expressly object to them. The conditions of the User shall also apply if the User accepts deliveries unreservedly with the knowledge of contradictory conditions or conditions deviating from these conditions.

II. Offers and conclusions of contract

1. Offers from the Supplier are to be submitted non-binding and free of charge to the User. In his offer, the Supplier shall adhere to the non-binding inquiry or tender of the User in terms of quantity, quality and performance and point out any deviations explicitly. The acceptance deadline in the context of § 147 II BGB is three weeks unless otherwise agreed in writing.
2. In as far as the User and not the Supplier submits a binding offer, the User is bound to this offer for two weeks after receipt by the Supplier unless stated otherwise in the offer. The Supplier can only accept the offer of the User within these two weeks through a written order confirmation to the User. It is at the User's discretion to accept an order confirmation received after the passing of this deadline as acceptance of his offer.
3. In the case of call-off orders only the call-offs for delivery are binding issues orders.
4. Deviations from the orders are only permissible with prior consent of the User.

III. Termination

Each Party has the right to extraordinary termination for good cause.

IV. Performance

1. The Supplier shall be obliged to comply with the pertinent legal and regulatory requirements and rules in the fulfillment of the contract. The delivery or performance must be state-of-the-art. Standards such as DIN, VDE and other regulations and machine directives are to be complied with. Possibly required protective devices according to these regulations are to be provided at no extra charge by the Supplier.
2. If the Supplier has reservations about the type of design desired by the User, then he must inform the User immediately in writing.
3. If the specific legal requirements applicable to the contractual performance change during the course of the contractual relationship, the Supplier shall be obliged to inform the User immediately about the changed regulations and to forward corresponding proof and documents to the User.
4. All documents required for acceptance, operation, maintenance and repairs (test reports, works certificates, drawings, plans, operating instructions and similar) are to be supplied by the Supplier free of charge in reproducible form in German language.
5. Unless agreed otherwise, the User can make a back-up copy of software which is part of the scope of delivery without an express agreement.
6. If the goods supplied to the User are medical devices in the context of the relevant European regulations, the Supplier shall ensure that the supplied products comply with the relevant regulations as well as respective pertinent national regulations for medical devices in their respective current version. Expiry, revocation or withdrawal of a CE label for contractual products is to be notified immediately to the User in writing.

V. Delivery deadlines and delays in delivery

1. The delivery deadlines and delivery dates given by the User on the order are binding. The set delivery deadlines commence with conclusion of the contract. If delays are to be expected - regardless of reason - the Supplier shall inform the User immediately in writing stating the reasons and probable duration.
2. The unreserved acceptance of the delayed delivery or performance does not imply a waiver of the claims for damages the User is entitled to.
3. Partial deliveries are impermissible unless the User has expressly agreed.
4. If the Supplier is behind schedule, the User is entitled to the legal claims. The assertion of an individual contractually agreed delay penalty remains unaffected by this.

VI. Prices and invoices

1. If no special agreement has been made, the prices are DDP as per Incoterms 2010 including packaging and the respective applicable legal value added tax.
2. The invoice is to be sent to the respective address quoting the invoice number and other assignment characteristics, it may not be included in the deliveries.
3. If the Supplier has taken on installation and/or assembly and if nothing has been agreed otherwise, the Supplier shall bear all occurring additional costs in connection with installation and/or assembly. 

VII. Conditions of payment

1. Unless agreed otherwise in writing, the User shall pay the invoice within 14 days with a 3% cash discount or net within 30 days. Payment is made subject to invoice verification.
2. The User is entitled to the full scope of the legal offset and retention rights. The User shall be entitled to assign all claims from contracts with the Supplier without his consent.

VIII. Guarantee and liability

1. The Supplier vouches for the freedom from technical deficiencies and absence of defects of title of all supplied products. The products must comply with the agreed specifications and demonstrate agreed or guaranteed quality characteristics. Notwithstanding, the Supplier shall continuously endeavor to reduce so-called rejects.
Compliance with the test regulations and specifications as well as any releases of initial samples by the User do not absolve the Supplier from his obligations to supply faultless products.
2. In the case of deficiencies of the supplied products, the User is entitled to the legal claims for defects in their entirety.
3. In case faulty goods are supplied, the following shall also apply unless agreed otherwise in writing:
a) Prior to the start of manufacturing (processing or installation) the User, at his choice, shall give the Supplier the opportunity for sorting, reworking or resup-plying, unless this is regarded unreasonable for the User. If the Supplier does not comply with his obligation to sorting or subsequent fulfillment immediately, the User can withdraw from the contract without setting a further deadline as well as returning the faulty goods at the risk of the Supplier. Further legal claims remain unaffected by this.
b) If the fault is only discovered after manufacturing has commenced, the User can demand subsequent fulfillment and reimbursement of the costs for the purpose of subsequent fulfillment, in particular these include shipping costs as well as deinstallation and installation costs (labor costs, material costs) or reduce the purchase price.  Further legal claims remain unaffected by this.
4. In case of a breach of duty beyond the delivery of faulty goods (for example, information, advisory or investigational duties), the User can demand compen-sation for the resulting damages as well as consequential damages, unless the Supplier is not responsible for the breach of duties.
5. If faults are detected in 5 % or more parts of a batch, the entire batch is to be regarded as faulty (serial damage). According to his own judgement and under appropriate consideration of the Supplier's interests, the User shall decide which actions are suitable and necessary for rectification.

IX. Self-help

If the Supplier does not comply with the demand of the User to rectify the faults within the deadline specified by the User or if the assertion of subse-quent fulfillment claims is unreasonable for the User due to reasons of urgency, in particular to prevent acute hazards and avoid damage (e.g. impending delayed delivery to the User's customers), then the User is entitled to rectify the faults either himself or by third parties at the Supplier's costs. Further legal claims remain unaffected by this.

X. Serial damages

In the case of serial damage, the Supplier shall indemnify the User from the costs incurred in the rectification of the serial damage. In particular, these costs include:

  • Replacement costs for the lost amounts in production
  • Country-specific labor costs, e.g. for deinstalla-tion/installation or new programming, etc.
  • Country-specific customs, handling, packaging and freight costs
  • Pro rata internal processing and handling costs (at a flat rate of 5% of the above mentioned replacement costs) as well as the costs for commissioning third parties

XI. Statute of limitations

The statute of limitations for any claims arising from the supply of faulty products is three years after risk transfer in as far as no other agreements were made. 
§ 199 I BGB shall apply accordingly.

XII. Recourse and insurance cover

1. If the User is held liable for damages by third parties due to a product fault for which the Supplier is responsible, the User is to be indemnified by the Supplier against all claims from third parties upon first demand, including the costs necessary to defend against these claims if the Supplier has determined the cause to lie in his domain of control and organization. Further legal claims by the User remain unaffected by this.
2. If the User is required to perform a recall and / or other field safety corrective actions due to a claim for damages in the context of Paragraph 1, the Supplier shall be obliged to reimburse the User for all expenditures resulting or in connection with the recall and the performed field safety corrective actions. Further legal claims by the User remain unaffected by this.
3. If the User is held liable for damages by third parties because the delivery infringes on legal protection rights of a third party, the Supplier shall be obliged to indemnify the User against all claims from third parties upon first demand, including the costs necessary to defend against these claims, unless the Suppli-er has not acted culpably. The statute of limitations for the exemption claim is three years as of knowledge or gross negligent lack of knowledge of the User of the claim-based circumstances.
4. The Supplier shall be obliged to take out and maintain a business liability, product liability and recall cost insurance for a cover sum commensurate with the goods and the scope of delivery and to provide the User with proof upon request.

XIII. Retention of title and material provisions

1. Provided materials of any kind remain the property of the User. They are to be marked as such and stored, designated and managed separately.
2. Processing or transforming, connecting or mixing the provided materials is performed by the Supplier on the behalf of the User. If the provided goods are processed, connected or inseparably mixed with other objects not belonging to the User, the User shall acquire co-ownership of the new objects on a pro rata basis of the value of the provided goods in relation to the other processed, connected or mixed objects at the point of time of processing, connection or mixing.
3. If mixing is performed in a manner that the goods of the Supplier are to be regarded as the main object, then it is deemed to be agreed that the Supplier shall transfer pro rata co-ownership to the User. The Supplier shall act as custodian of the sole or joint ownership for the User.

XIV. Tools

1. Tools of the User which were provided to the Supplier to manufacture the goods ordered by the User are the property of the User. The Supplier shall be obliged to use the tools exclusively for manufacturing the goods ordered by the User, unless agreed otherwise. The Supplier shall be obliged to insure the tools of the User at their mint value at his own costs against fire, material damage and theft, and at the same time assign all claims for damages arising from this insurance to the User. The User herewith accepts the assignment.
2. Unless agreed otherwise, the Supplier shall be obliged to perform the necessary service and inspection work as well as all maintenance and repair work at his own costs.

XV. Documents and confidentiality

1. All business or technical information (including characteristics, even if they result indirectly from the handed over objects, documents or software, and other knowledge and experience) given access to by the User are to be kept confidential from third parties as long and in as far as they are not proven public knowledge, and may only be provided to such persons in the own company of the Supplier who require these by necessity and who are also obliged to confidentiality. Such information also includes information from or about third parties which the User has provided to the Supplier.
2. Such information may not be reproduced or used commercially without prior approval – except for deliveries to the User. Upon request by the User, all information provided by the User (if applicable including all copies or records) and loaned objects are to be returned to the User by the Supplier at his costs immediately and completely or to be destroyed, whereby this applies in as far as these documents are not required for asserting justified claims. The User retains all rights for such information (including copyrights and the right for applying for commercial protective rights, such as patents, registered designs, semiconductor protection, etc.).
3. Goods which are manufactured according to documents drafted by the User, such as drawings, models and the like or which have been manufactured according to confidential information or with tools or copied tools of the User may not be used by the Supplier himself nor offered or supplied to third parties.
4. The Supplier may only refer to business relationships with the User with his express permission.
5. The obligation to confidentiality shall continue for a further five years after termination of the contractual relationship.

XVI. Place of jurisdiction, applicable law

1. Changes and supplements to these General Purchasing Conditions, including those to the written form requirement, are only effective in writing. 
2. If the Supplier is a registered trader the sole place of jurisdiction is Tuttlingen for all disputes arising directly or indirectly from the contractual relationship. However, it remains at the discretion of the User to sue the Supplier at his domicile.
3. German law shall apply to the contractual relationship under express exclu-sion of the United Nations agreement on contracts for international purchasing of goods (UN Sales Convention) unless agreed otherwise in writing.