General Terms and Conditions of Purchase

These conditions apply to all companies of 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 conflicting or deviating general terms and conditions of the supplier unless we have expressly agreed to their validity in writing. Neither silence nor the acceptance of the service or its payment shall be deemed to constitute 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 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 can be revoked by us until they are confirmed in writing by the supplier.

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

The supply contract as well as any amendments, collateral agreements, declarations regarding its termination and other declarations and notifications must be made in writing, unless otherwise stipulated in these terms and conditions. A fax is sufficient to comply with the written form requirement. Delivery call-offs can 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 is actually and demonstrably associated with additional costs or delivery time extensions and the supplier has informed 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 make this necessary:

– Labor dispute,
– force majeure,
– Natural disaster,
– the 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 for which we could not have foreseen and for which we are not responsible, which preclude the use of the delivery as intended by us (e.g. cancellation of the customer contract).

If we make use of this right of withdrawal, the supplier shall only be entitled to the price agreed with him for the items produced or procured – if applicable on a pro rata basis – insofar as he surrenders these to us. We shall pay a reasonable price for semi-finished items, taking into account their value. However, we shall only be liable to pay concurrently with the return of the items in question.

 

4. SCOPE OF DELIVERY/SPARE PARTS/SOFTWARE MAINTENANCE

The supplier shall ensure that all data and circumstances relevant to the fulfillment of its contractual obligations and the use we intend to make of its deliveries are known to it in good time. He guarantees that his deliveries include all services that are necessary for proper, safe and economical use, that they are suitable for the intended use and that they correspond to the latest state of science and technology.

If 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 with the 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 supply us with spare parts or substitutes relating to the delivery items on reasonable terms for a period of 10 years after termination of the supply relationship.
Insofar as the scope of delivery includes non-standardized software, the supplier agrees for a period of five years from delivery of the delivery item to make changes/improvements to the software in accordance with our specifications against reasonable reimbursement of costs. Insofar as the software originates from upstream suppliers, he shall obligate them accordingly.

 

5. WAGE ORDERS

If the supplier carries out contract work for us, he must check the material provided by us for perfect quality before processing, unless otherwise agreed in writing. In the event of any errors, processing may only take place with our express written consent. The entire Terms and Conditions of Purchase apply to contract orders.

 

6. PRICES, TERMS OF PAYMENT

The agreed prices are fixed prices.

Unless otherwise agreed in writing, payment is conditional upon receipt of the invoice and the contractual provision of services, including the handover of the contractual documentation.
If this payment condition is met, payment shall be made with a 3% discount for all invoices/payment requests within 21 calendar days. If we do not make use of a discount, payment for all invoices/payment requests will be made after 45 working days to the end of the month.
If early 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, post the check, provided that the bank transfer or check reaches the supplier no later than five banking days after the deadline expires.
The supplier is not entitled to assign claims to which he is entitled against us or to have them collected by third parties. The regulation of § 354a HGB remains unaffected.

 

7. TERMS OF DELIVERY

Unless otherwise agreed, deliveries shall be made DAP (Incoterms in their current version) to the place designated by us, including packaging and preservation. Each consignment 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 bill in duplicate. The delivery bill must be provided with our order, article and supplier number. If delivery “ex works” is agreed, we and the recipient designated by us must be informed in good time of the dimensions and weight of the consignment. Transportation insurance shall be covered by us insofar as we are obliged to do so under the agreed delivery clause (Incoterms as amended from time to time).

The delivery items are to be packaged in a customary and appropriate manner. We are entitled to prescribe the type and manner of packaging to the supplier. If we return reusable packaging to the supplier carriage paid, we shall be entitled to reimbursement in the amount of the value of the packaging.

The supplier is only authorized to make partial deliveries if they were originally agreed or subsequently approved by us. If defects occur in a partial delivery which justify the assumption that agreed future partial deliveries will also be defective, we may reject the acceptance of further partial deliveries and withdraw from the contract in whole or in part if the supplier fails to dispel the justification for this assumption by objectively suitable means within a reasonable period set by us.

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

Without our prior written consent, the Supplier shall not be entitled to have the delivery/service owed by it performed by third parties (e.g. subcontractors). 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 reserved title to the delivered goods, this reservation shall only apply until actual payment of these goods, unless we have become the owner by processing, combining or mixing. We do not recognize extended or expanded reservations of title or group and current account reservations.

 

8. DELIVERY DATE, CONTRACTUAL PENALTY

Agreed dates and deadlines are binding. Decisive for compliance with the delivery date or the 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 required – the time of successful acceptance.

If delivery is made earlier 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 its performance, stating the reasons and the expected duration of the delay. The supplier may only invoke causes of delay for which he is not responsible if he has complied with the obligation to notify.

If the supplier does not provide the service owed or is in default with the delivery, we shall be entitled to the statutory claims without restriction. If the supplier is only partially in default, we may in any case exercise our rights to withdraw from the contract and claim damages for the entire contract.

If the supplier culpably exceeds the agreed delivery date, the supplier shall pay us a contractual penalty of 0.15% of the total gross order value for each calendar day on which the delivery date is culpably exceeded, up to a maximum of 5% of the total gross order value. The agreement of the contractual penalty or its assertion shall not affect the statutory claims to which we are entitled due to default. Any contractual penalties paid shall be offset against claims for damages. The contractual penalty may be claimed until payment of the goods/services delivered late.

 

9. QUALITY MANAGEMENT, OUTGOING AND INCOMING GOODS INSPECTION

The supplier must constantly monitor the quality of its delivery and performance. He is obliged to observe our quality assurance agreement for suppliers in the currently valid version. To this end, he shall set up 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 on request. Upstream suppliers must be obligated accordingly.

We have the right to check the production of delivery items at any time after prior notice. In particular, the supplier shall provide us with an insight into the test procedures carried out, including all test records and documents relating to these products. The exercise of this right does not limit the supplier’s responsibility for defective products.

The supplier is obliged to carry out a quality control during production and to carry out an outgoing goods inspection and must therefore comprehensively check the quality of the delivery items.

We therefore only carry out an incoming goods inspection with regard to externally recognizable damage and externally recognizable deviations in identity and quantity. We shall give notice of such defects without delay. We reserve the right to carry out a more extensive incoming goods inspection. Furthermore, we shall give notice of defects as soon as they are discovered in the ordinary 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 warrants that the delivery is of the agreed quality when the risk passes to us. The delivery/service must comply with the state of the art, the relevant legal provisions and the regulations and guidelines of authorities, employers’ liability insurance associations and trade associations. If deviations from these regulations are necessary in individual cases, the supplier must obtain our written consent. The Supplier’s liability for defects shall not be limited by this consent. If the supplier has reservations about the type of execution requested by us, he must inform us immediately in writing.

The Supplier undertakes to use environmentally friendly products and processes for its deliveries/services and also for supplies or ancillary services of third parties within the scope of economic and technical possibilities. The supplier shall ensure that the products and packaging materials supplied are environmentally friendly. He shall be liable for all damages caused by the culpable breach of his aforementioned obligation. The supplier is obliged to hand over the safety data sheets applicable to his delivery with the delivery. The supplier shall indemnify us against all recourse claims by third parties in the event that the supplier culpably fails to supply us with the safety data sheets or supplies 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 him fully comply with the requirements of Directive 2011/65/EU as amended on June 4, 2015 (RoHS 3) and all subsequent versions as well as the national regulations issued in the implementation of this directive within the European Union and are suitable for RoHS-compliant manufacturing processes. The supplier shall expressly indemnify us from any liability and responsibility in the external relationship, regardless of the legal basis, in the event of any culpable violations of the RoHS conformity provisions and shall bear all damages incurred by us as a result in the event of a violation.
If the delivered item does not correspond to the agreed quality or if the goods are not suitable for the use stipulated in the contract, we may, at our discretion, demand rectification of the defect or delivery of a defect-free item, withdraw from the contract in accordance with the statutory provisions or reduce the purchase price or demand compensation for damages or reimbursement of futile expenses. If the supplier has assumed a guarantee for the quality or durability of the delivery item, we may also assert claims under the guarantee. Notwithstanding § 442 para. 1 sentence 2 BGB, we shall be entitled to claims for defects without restriction even if the defect remained unknown to us at the time the contract was concluded as a result of gross negligence.
If the supplier does not fulfill his obligation to remedy the defect or to deliver a replacement within a reasonable period of time set by us, we may also remedy the defect ourselves and demand compensation from the supplier for the necessary expenses as well as a corresponding advance payment. The same shall apply if rectification by the supplier is unreasonable for us (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionately high damage), provided that we have informed the supplier accordingly in advance.

The Supplier warrants that its delivery does not infringe industrial property rights (e.g. patents, utility models, trademarks, trade names), copyrights and other rights of third parties. If claims are asserted against us by a third party due to an alleged infringement of rights, the supplier is obliged to indemnify us against these claims upon first request.

The warranty period shall be governed by the provisions under the section entitled WARRANTY.

 

11. PRODUCT LIABILITY, RECALL, LIABILITY INSURANCE

Insofar as the supplier is responsible for product damage, he is obliged to indemnify us against third-party claims, including the costs of the necessary legal defense, insofar as the cause lies within his 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, he shall bear the burden of proof in this respect.
Within the scope of its indemnification obligation, the supplier shall reimburse expenses arising from or in connection with claims asserted by third parties, including recall actions carried out by us. We will inform the supplier about the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further legal claims remain unaffected.

The supplier is obliged to maintain appropriate insurance cover for the risks arising from the product liability regulated above for the duration of the supply relationship. Proof must be provided at our request.

 

12. REJUVENATION

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

The limitation periods of the law on sales, 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 shall apply (§§ 195, 199 BGB); however, the special limitation periods of sales law shall apply if their application leads to a longer limitation period in individual cases.

The provision under 3. above also applies to all contractual and non-contractual claims arising from defects of title. Furthermore, such claims shall not become time-barred under any circumstances as long as the third party can still assert the right against us – in particular in the absence of a limitation period. The statutory limitation period for third-party claims in rem (Section 438 (1) No. 1 BGB) remains unaffected.

 

13. TRADE SECRETS

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

 

14. PROVISION, DRAWING, TOOLS

Material provided by us shall remain our property and shall be stored, labeled and managed separately free of charge. Their use is only permitted for our orders. In the event of depreciation or loss, the supplier must provide compensation and take out appropriate insurance cover at its own expense. This also applies to the invoiced provision of order-related material.

Processing or transformation of the material shall be carried out for us. We become the direct owner of the new and transformed item. If this is not possible for legal reasons, the supplier and we agree when 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 modified item for us free of charge with the due care 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 shall remain our property. They may neither be passed on to third parties nor used for purposes other than the fulfillment of 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 shall 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. The complete return must be confirmed in writing.

 

15. LIMITATION OF LIABILITY

We are liable for intent and gross negligence. We shall only be liable for slight negligence in the event of a breach of material contractual obligations which arise from the nature of the contract and the breach of which jeopardizes the achievement of the purpose of the contract. Even then, compensation shall be limited to the foreseeable damage. In all other cases of slight negligence, claims for damages by the supplier are excluded, regardless of the legal grounds. The above limitation of liability shall 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 shall be governed by German law with the express exception of the 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 its data required for us within the scope of the business relationship may be stored and used by us.
The invalidity of a provision or individual parts of a provision of these General Terms and Conditions of Purchase shall not affect the validity of the remaining Terms and Conditions of Purchase and/or other agreements made between the parties. If, in the event of ineffectiveness, no provision of dispositive statutory law exists, the parties undertake to replace the ineffective provision with an effective provision that corresponds as closely as possible to the economic purpose of the ineffective provision.

 

17. APPLICABLE VERSION

The German version of these “General Terms and Conditions of Purchase” shall prevail.