General Terms and Conditions of Purchase

These terms and conditions apply to all companies in the LKE Group:

LKE Gesellschaft für Logistik-und Kommunikationsequipment mbH
LKE Production GmbH
LKE (UK) Ltd
LKE Polska Sp. z o.o.

 

1. SCOPE OF APPLICATION

These General Terms and Conditions of Purchase apply to all business relationships with our suppliers and contractors ("Suppliers").

We do not recognize any conflicting or deviating general terms and conditions of the supplier unless we have expressly agreed to their validity in writing. Neither silence nor acceptance of the service or payment for it shall be deemed acceptance.

Our terms and conditions of purchase shall also apply to all future transactions with suppliers without us having to refer to them again in each individual case.

 

2. CONCLUSION OF THE CONTRACT

Our inquiries are non-binding until we place a binding order, either in the form of our own offer or in the form of acceptance of an offer from the supplier.

Orders may be canceled by us until they are confirmed in writing by the supplier.

If the order confirmation differs from our order, a contract shall only be concluded if we have expressly agreed to the order confirmation in writing. Without such prior written consent, our payments or our acceptance of deliveries and services shall not constitute consent.

The delivery contract and any amendments, subsidiary agreements, declarations regarding its termination, and other declarations and notifications must be made in writing, unless otherwise specified in these terms and conditions. A fax is sufficient to comply with the written form requirement. Delivery calls may also be made by remote data transmission.

 

3. SUBSEQUENT CHANGES, WITHDRAWAL

We may demand changes to the design and execution of the delivery item within the scope of what is reasonable for the supplier. In the event of such changes, the effects on delivery dates and any additional or reduced costs shall be regulated appropriately and by mutual agreement.

However, price increases and delivery time extensions shall only be recognized if the change actually and demonstrably results in additional costs or delivery time extensions and the supplier has notified us of this in writing immediately after our request for change.
In addition to the statutory rights of termination and withdrawal, we are entitled to withdraw from the contract in whole or in part until the delivery is dispatched if the following reasons require this:

• Labor disputes,
• Force majeure,
• Natural disasters,
• Opening of insolvency proceedings against the assets of the supplier or our customer for whom the order is intended,
or if there are other important reasons that were unforeseeable for us and for which we are not responsible, which exclude the use of the delivery intended by us (e.g., cancellation of the customer contract).

If we exercise this right of withdrawal, the supplier shall only be entitled to the price agreed with him for the items produced or procured, which may be pro rata, insofar as he hands them over to us. For semi-finished items, we shall pay a price that is reasonable in view of their value. However, we shall only be obliged to make payment in return for the handover of the items in question.

 

4. SCOPE OF DELIVERY/SPARE PARTS/SOFTWARE MAINTENANCE

The supplier shall ensure that it is informed in good time of all data and circumstances relevant to the fulfillment of its contractual obligations, as well as of our intended use of its deliveries. The supplier guarantees that its deliveries include all services necessary for proper, safe, and economical use, that they are suitable for the intended use, and that they correspond to the latest state of the art in science and technology.

Insofar as the Supplier's delivery includes software rights or other items whose use is only permitted on the basis of corresponding rights of use (licenses), the necessary rights of use shall be transferred to us upon delivery at no extra charge. The Supplier shall be liable for the existence, transferability, and enforceability of the rights of use.

The supplier shall ensure that it can continue to supply us with spare parts or substitutes for the delivery items at reasonable conditions for a period of 10 years after termination of the delivery relationship.
If the scope of delivery includes non-standardized software, the supplier agrees to make changes/improvements to the software in accordance with our specifications for a period of five years from delivery of the delivery item in return for reasonable reimbursement of costs. If the software originates from upstream suppliers, the supplier shall oblige them to do the same.

 

5. CONTRACT WORK

If the supplier carries out contract work for us, it must check the material provided by us for flawless quality before processing, unless otherwise agreed in writing. In the event of any defects, processing may only take place with our express written consent. The entire terms and conditions of purchase apply to contract work.

 

6. PRICES, TERMS OF PAYMENT

The agreed prices are fixed prices.

Unless otherwise agreed in writing, payment shall be conditional upon receipt of the invoice and the provision of services in accordance with the contract, including the handover of the contractual documentation.
If this payment condition is met, payment shall be made within 21 calendar days with a 3% discount for all invoices/payment requests. If we do not claim a discount, payment for all invoices/payment requests shall be made after 45 working days at the end of the month.
If premature deliveries are accepted, the due date shall commence at the earliest on the agreed delivery date.

The payment deadline shall be deemed to have been met if we instruct our bank to make payment by the last day of the deadline or, in the case of payment by check, if we post the check, provided that the bank transfer or check reaches the supplier no later than five banking days after the deadline.
The supplier is not entitled to assign claims against us or to have them collected by third parties. The provision of § 354a HGB (German Commercial Code) remains unaffected.

 

7. DELIVERY TERMS

Unless otherwise specified, deliveries shall be made DAP (Incoterms in their current version) to the location designated by us, including packaging and preservation. Each shipment must be notified to us and to the recipient designated by us on the day of dispatch. Each delivery must be accompanied by a delivery note in duplicate. The delivery note must include our order, item, and supplier numbers. If delivery "ex works" has been agreed, we and the recipient designated by us must be notified of the dimensions and weight of the shipment in good time. We shall cover the transport insurance if we are obliged to do so under the agreed delivery clause (Incoterms in their current version).

The delivery items must be packaged in a standard and appropriate manner. We are entitled to specify the type of packaging to the supplier. If we return reusable packaging to the supplier carriage paid, we are entitled to a refund equal to the value of the packaging.

The supplier is only authorized to make partial deliveries if these were originally agreed or subsequently approved by us. If defects occur in a partial delivery that justify the assumption that agreed future partial deliveries will also be defective, we may refuse to accept further partial deliveries and withdraw from the contract in whole or in part if the supplier fails to remove the justification for this assumption by objective and appropriate means within a reasonable period set by us.

The risk of accidental loss and accidental deterioration of the goods shall pass to us upon delivery at the place of performance. If acceptance has been agreed or is required, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to acceptance.

The supplier is not entitled to have the delivery/service owed by him performed by third parties (e.g. subcontractors) without our prior written consent. If the supplier culpably violates this provision, we shall be entitled to withdraw from the contract. This shall not affect our right to claim damages.

If the supplier has retained title to the delivered goods, this reservation shall only apply until the goods have been paid for in full, unless we have become the owner through processing, combination, or mixing. We do not recognize extended or expanded reservations of title, nor do we recognize reservations of title for groups of companies or current accounts.

 

8. DELIVERY DATE, CONTRACTUAL PENALTY

Agreed dates and deadlines are binding. The decisive factor for compliance with the delivery date or delivery period is the receipt of the goods at the place of receipt or use specified by us or, if acceptance has been agreed or is necessary, the time of successful acceptance.

In the event of earlier delivery than agreed, we reserve the right to return the goods at the supplier's expense or to store the goods at the supplier's expense and risk until the agreed delivery date.

The supplier must notify us immediately in writing of any recognizable delay in performance, stating the reasons and the expected duration of the delay. The supplier may only invoke reasons for a delay for which he is not responsible if he has complied with his obligation to notify us.

If the supplier fails to perform the service owed or is in default with delivery, we shall be entitled to the full extent of our statutory claims. If the supplier is only partially in default, we may in any case exercise our rights of withdrawal and compensation with regard to the entire contract.

If the supplier culpably exceeds the agreed delivery date, it shall pay us a contractual penalty of 0.15% of the gross total order value per calendar day of the culpable exceeding of the delivery date, up to a maximum of 5% of the gross total order value. The agreement of the contractual penalty or its assertion shall not affect our statutory claims for delay. Any contractual penalties paid shall be offset against claims for damages. The contractual penalty may be asserted until payment for the delayed delivery of goods/services has been made.

 

9. QUALITY MANAGEMENT, OUTGOING AND INCOMING GOODS INSPECTION

The supplier must constantly monitor the quality of its deliveries and services. It is obliged to observe our quality assurance agreement for suppliers in its currently valid version. To this end, it shall establish and maintain a quality assurance system in accordance with DIN ISO 9000 ff. or another standard agreed with us. Changes to the delivery item require our prior written consent. The supplier must record in writing for all products delivered to us when, how, and by whom the defect-free manufacture of the delivery was ensured. The records must be kept for at least 12 years and presented to us upon request. Sub-suppliers must be obligated accordingly.

We have the right to inspect the production of delivery items at any time after giving prior notice. In particular, the supplier shall give us access to the inspection procedures carried out, including all inspection records and documents relating to these products. The exercise of this right does not limit the supplier's liability for defective products.

The supplier is obligated to carry out quality control during production and to perform an outgoing goods inspection, and must therefore thoroughly check the quality of the delivery items.

Therefore, we only inspect incoming goods for externally visible damage and externally visible deviations in identity and quantity. We will report such defects immediately. We reserve the right to carry out a more extensive inspection of incoming goods. Furthermore, we will report defects as soon as they are discovered in the normal course of business. In this respect, the supplier waives the objection of delayed notification of defects. If defects are found, we are entitled to return the entire delivery.

 

10. WARRANTY

The supplier guarantees that the delivery will be of the agreed quality when the risk is transferred to us. The delivery/service must comply with the latest state of the art, the relevant legal provisions, and the regulations and guidelines of authorities, professional associations, and trade associations. If deviations from these regulations are necessary in individual cases, the supplier must obtain our written consent. This consent does not limit the supplier's liability for defects. If the supplier has concerns about the type of execution we require, they must notify us immediately in writing.

The supplier undertakes to use environmentally friendly products and processes for its deliveries/services and also for subcontracted deliveries or ancillary services provided by third parties, within the scope of economic and technical possibilities. The supplier shall ensure that the delivered products and packaging materials are environmentally compatible. It shall be liable for all damage caused by culpable breach of its above obligation. The supplier is obliged to provide the safety data sheets applicable to its delivery together with the delivery. The supplier shall indemnify us against all recourse claims by third parties in the event that the supplier culpably fails to provide us with the safety data sheets or provides them late. The same applies to all subsequent changes.

The supplier is responsible for ensuring that the products or parts thereof to be supplied by them fully comply with the requirements of Directive 2011/65/EU, as amended on June 4, 2015 (RoHS 3) and all subsequent amendments, as well as the national regulations enacted within the European Union in implementation of this directive, and that they are suitable for RoHS-compliant manufacturing processes. The supplier expressly indemnifies us against any liability and responsibility in external relations, regardless of the legal basis, in the event of culpable violations of the RoHS compliance provisions and shall bear all damages incurred by us as a result of such violations.
If the delivery item does not correspond to the agreed quality or if the goods are not suitable for the use specified in the contract, we may, at our discretion, demand that the defect be remedied or that a defect-free item be delivered, withdraw from the contract in accordance with the statutory provisions, reduce the purchase price, or demand compensation for damages or reimbursement of futile expenses. If the supplier has given a guarantee for the quality or durability of the delivery item, we may also assert claims under the guarantee. Notwithstanding § 442 (1) sentence 2 BGB, we shall also be entitled to claims for defects without restriction if we were unaware of the defect at the time of conclusion of the contract as a result of gross negligence.
If the supplier fails to fulfill its obligation to remedy the defect or to provide a replacement delivery within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the supplier for the necessary expenses and a corresponding advance payment. The same shall apply if the repair by the supplier is unreasonable for us (e.g., due to particular urgency, endangerment of operational safety, or the threat of disproportionately high damage), provided that we have informed the supplier accordingly in advance.

The supplier guarantees that its delivery does not infringe any industrial property rights (e.g., patents, utility models, trademarks, trade names) or copyrights or other rights of third parties. If a third party asserts claims against us for an alleged infringement, the supplier is obligated to indemnify us against these claims upon first request.

The warranty period is governed by the provisions under the heading STATUTE OF LIMITATIONS.

 

11. PRODUCT LIABILITY, RECALL, LIABILITY INSURANCE

Insofar as the supplier is responsible for product damage, it shall be obliged to indemnify us against third-party claims, including the costs of the necessary legal defense, insofar as the cause lies within its manufacturing and organizational area. In cases of fault-based liability, however, this shall only apply if the supplier is at fault. If the cause of the damage lies within the supplier's area of responsibility, the supplier shall bear the burden of proof in this respect.
As part of its indemnification obligation, the supplier shall reimburse expenses arising from or in connection with claims by third parties, including recall campaigns carried out by us. We shall inform the supplier of the content and scope of recall measures—as far as possible and reasonable—and give it the opportunity to comment. Further legal claims remain unaffected.

The supplier is obligated to maintain adequate insurance coverage for the risks arising from the product liability regulated above for the duration of the supply relationship. Proof of this must be provided at our request.

 

12. STATUTE OF LIMITATIONS

The mutual claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise specified below.
Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims for defects shall be 36 months from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

The limitation periods under sales law, including the above extensions, apply – to the extent permitted by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) applies; however, the special limitation periods under sales law apply if their application leads to a longer limitation period in individual cases.

The provision in section 3 above also applies to all claims—both contractual and non-contractual—arising from legal defects. Furthermore, such claims shall not become time-barred as long as the third party can still assert the right against us, in particular due to the absence of a statute of limitations. The statutory limitation period for third-party claims for surrender of property (§ 438 (1) No. 1 BGB) remains unaffected.

 

13. TRADE SECRETS

The supplier is obligated to treat our order and the associated commercial and technical details as trade secrets and to instruct and monitor its employees accordingly.

 

14. PROVISION, SIGNING, TOOLS

Any materials provided by us remain our property and must be stored, labeled, and managed separately free of charge. They may only be used for our orders. In the event of depreciation or loss, the supplier must provide compensation and take out appropriate insurance at its own expense. This also applies to the invoiced provision of order-related materials.

Processing or transformation of the material shall be carried out on our behalf. We shall immediately become the owner of the new and transformed item. If this is not possible for legal reasons, the supplier and we shall agree upon placing the order that ownership of the new or transformed item shall pass to us at the time of its creation. The supplier shall store the new or transformed item for us free of charge with the diligence of a prudent businessman.

Drawings, models, molds, samples, profiles, standard sheets, print templates, gauges, data carriers, other documents, or tools provided by us or produced at our expense remain our property. They may not be passed on to third parties or used for purposes other than fulfilling the order. They must be secured against unauthorized access or use.

This applies accordingly to reproductions. Such reproductions may only be made with our prior consent. The reproductions become our property upon their production.
Subject to further rights, we may at any time demand the return of the drawings and other items mentioned in the first paragraph, including reproductions. The supplier shall not be entitled to a right of retention for any reason whatsoever. Complete return must be confirmed in writing.

 

15. LIMITATION OF LIABILITY

We are liable for intent and gross negligence. We are only liable for slight negligence if it concerns the breach of essential contractual obligations arising from the nature of the contract and whose breach jeopardizes the achievement of the purpose of the contract. Even then, compensation is limited to the foreseeable damage. Otherwise, claims for damages by the supplier for slight negligence, regardless of the legal basis, are excluded. The above limitation of liability does not apply in the event of injury to life, limb, or health.

 

16. GENERAL PROVISIONS

The place of performance for deliveries and services is the destination specified by us.

The contractual relationship is governed by German law, with the express exception of conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

The place of jurisdiction is the registered office of the company, subject to a different exclusive place of jurisdiction. However, we are also entitled to sue the supplier at another competent court.
The supplier agrees that the data required by us within the scope of the business relationship may be stored and used by us.
The invalidity of any provision or individual parts of a provision of these General Terms and Conditions of Purchase shall not affect the validity of the remaining provisions and/or other agreements made between the parties. If, in the event of invalidity, there is no provision in the dispositive law, the parties undertake to replace the invalid provision with a valid provision that corresponds as closely as possible to the economic purpose of the invalid provision.

 

17. APPLICABLE VERSION

The German version of these "General Terms and Conditions of Purchase" is authoritative.