General Terms and Conditions of Purchase
1 General – Scope of application
1.1 These General Terms and Conditions of Purchase shall apply to all deliveries and services (hereinafter generally referred to as “Deliveries”) provided to KOKINETICS s.r.o. by a seller, contractor or service provider (hereinafter generally referred to as “Supplier”).
1.2 Our Terms and Conditions of Purchase shall apply exclusively; we do not recognize any terms and conditions of the Supplier that conflict with or deviate from our Terms and Conditions of Purchase, unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Purchase shall also apply if we accept the supplier’s delivery without reservation in the knowledge that the supplier’s terms and conditions conflict with or deviate from our Terms and Conditions of Purchase.
1.3 Our Terms and Conditions of Purchase shall also apply in their respective version as a framework agreement for all future contracts for the sale and delivery of movable goods with the same supplier, without us having to refer to them again in each individual case.
1.4 Individual agreements made with the supplier in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions of Purchase. A written contract or our written confirmation shall be decisive for the content of such agreements.
1.5 Legally relevant declarations and notifications to be made to us by the Supplier after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in writing to be effective.
1.6 KOKINETICS s.r.o. evaluates the procurement (both for new business and for current series), among other things, according to the impact on the essential energy use and the energy-related performance. These environmental criteria apply to the procurement of energy services, products, equipment and facilities.
1.7 These General Terms and Conditions of Purchase may be amended unilaterally by KOKINETICS at any time. The changes will be communicated to the supplier. If the supplier does not agree to the changes, the supplier is entitled to terminate the contractual relationship in writing with a notice period of 1 month. The amended General Terms and Conditions of Purchase shall apply to deliveries made after the amendments become effective.
2 Offer, offer documents, conclusion of contract
2.1 The submission of offers and the preparation of cost estimates shall be free of charge for us. We shall not assume any costs or pay any remuneration for visits, preparation, planning and other preliminary work in connection with the submission of offers, unless this has been agreed separately in writing in individual cases.
2.2 Orders, their amendments or supplements and other agreements made upon conclusion of the contract shall be binding if we declare or confirm them in writing. Declarations made by fax, remote data transmission or other electronic means in text form shall also be deemed to be in writing.
2.3 The order is concluded by our written order and by acceptance by the supplier. If the supplier does not accept an order within five working days, we shall be entitled to cancel the order.
2.4 We reserve the right of ownership to illustrations, drawings, calculations and other documents that we provide to the supplier; the same applies to our copyrights, insofar as the documents are copyrightable. They may not be made accessible to third parties without our express written consent and must be kept secret. They are to be used exclusively for the execution of our orders and are to be returned to us without request after termination of the contractual relationship. The supplier shall have no right of retention to these documents. In addition, the provisions of clause 11.1 below shall apply to third parties.
3 Terms of payment, invoicing
3.1 The price stated in the order is binding. All prices shall be quoted in euros. In the absence of any written agreement to the contrary, the price shall include deliveries DAP in accordance with ICC Incoterms ® 2010, including packaging. The supplier shall take back packaging material at our request. Unless otherwise agreed in individual cases, the price shall also include all services and ancillary services of the supplier (e.g. assembly, installation) as well as all ancillary costs (e.g. transportation costs including any transport and liability insurance).
3.2 Unless otherwise agreed, payment shall be made within 14 days with a 2% discount or within 60 days net from delivery and receipt of a properly verifiable invoice.
3.3 If, by way of exception, we have accepted partial deliveries, the payment periods for these shall nevertheless not begin to run before complete delivery.
3.4 The order data, material numbers, the requester, our cost center and the cost unit must always be stated in all invoices from the supplier.
3.5 We shall be entitled to set-off and retention rights to the extent permitted by law. Payments made by us shall not be deemed to be an acknowledgement that deliveries or services are free of defects. In particular, we are also entitled to withhold due payments as long as we are still entitled to claims against the supplier arising from incomplete or defective deliveries.
3.6 The supplier shall only have a right of set-off and/or retention on the basis of counterclaims that have been legally established or are undisputed or are ready for decision in pending legal proceedings.
4 Assignment, retention of title
4.1 The Supplier is not entitled to assign its claims arising from the contractual relationship to third parties. This shall not apply insofar as monetary claims are concerned. If the supplier is only in a position to deliver the ordered goods subject to retention of title, consent to the assignment shall be deemed to have been given.
4.2 The supplier is obliged to deliver the goods without defects of title and legal encumbrances (e.g. co-ownership rights, liens), unless otherwise agreed in a prior written agreement. Should it nevertheless occur that upstream suppliers assert ownership rights, co-ownership rights or liens against us or have enforcement measures carried out, the supplier shall be liable for all damages incurred as a result.
5 Deadlines, dates
5.1 The delivery date stated in the order is binding. Decisive for compliance is the receipt of the defect-free delivery at the delivery address specified in the order or the successfully completed acceptance, if such is agreed or provided for by law.
5.2 If the supplier is unable to meet the deadlines or dates, it must inform us immediately in writing of the reason for the delay and its expected duration. The statutory claims and rights to which we are entitled in the event of default and the supplier’s responsibility to comply with the agreed delivery time shall remain unaffected by this.
5.3 Premature deliveries and services require our consent. If the supplier undertakes them without our consent, we shall be entitled to refuse acceptance or to invoice the supplier for any storage costs incurred by us as a result.
5.4 In the event of a delay in delivery, we shall be entitled to the statutory claims. The provision in Clause 5.5 shall remain unaffected.
5.5 If the Supplier exceeds the delivery date, it shall be obliged to pay a contractual penalty. This shall amount to 0.3 % per working day of delay, but not more than a total of 5 % of the total net remuneration amount. We are entitled to claim this contractual penalty up to the time of final payment, even if we do not expressly reserve the right to do so when accepting the delayed delivery. The contractual penalty shall be set off against any damage caused by delay to be compensated by the supplier. If the amount of the damage exceeds the amount of the contractual penalty paid by the supplier, the supplier shall be obliged to pay the contractual penalty as well as compensation for the damage exceeding the contractual penalty. The present agreement on the contractual penalty and its assertion shall not affect the statutory claims to which we are entitled due to default.
6 Transfer of risk, shipment, packaging
6.1 Shipment shall be made free of freight and ancillary costs at the risk of the supplier DAP in accordance with ICC Incoterms ® 2010 to the place of receipt specified by us in the order. If the place of destination is not specified and not otherwise agreed, delivery shall be made to our place of business. If acceptance is provided for or agreed by law, the supplier shall bear the risk until acceptance.
6.2 In all other respects, shipment shall be made in strict compliance with the shipping instructions stated in the order and with our order data stated on the shipping documents. The supplier shall bear any additional costs incurred due to non-compliance with the shipping instructions or due to expedited transportation in order to meet the agreed deadline.
6.3 The type and scope of packaging must be agreed between the supplier and us. Irrespective of this, the packaging must comply with the legally applicable requirements. In addition, it must be suitable for safe transportation to the delivery address stated in the order and for normal storage. At our request, the supplier must take back the transport packaging and the packaging of the goods at its own expense, insofar as it is legally obliged to do so.
6.4 The delivery must be accompanied by a delivery bill stating in particular the date (issue and dispatch), contents of the delivery (article number and quantity) and our order identification (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment.
6.5 If our failure to accept or take delivery is due to force majeure, labor disputes or other events beyond our control, we may demand delivery in whole or in part at a later reasonable date without the supplier being able to assert any claims against us as a result. However, if an extension of more than six months occurs, each contracting party shall be entitled to withdraw from the contract. In this case, neither contracting party may assert any claims against the other contracting party.
6.6 The underlying contract may be terminated by either contracting party for good cause – without observing a notice period. Good cause shall be deemed to exist if there are facts on the basis of which the terminating party can no longer reasonably be expected to continue the contract, taking into account all the circumstances of the individual case and weighing up the interests of the contracting parties.
7 Inspection for defects, rights in the event of defects, quality guarantee
7.1 The supplier is obliged to carry out the quality control and outgoing goods inspection customary in the industry. If a quality agreement has been concluded with him, he shall comply with the provisions contained therein.
7.2 Insofar as applicable, the statutory provisions shall apply to the commercial obligation to inspect and give notice of defects with the following proviso: KOKINETICS is not obliged to inspect incoming goods upon receipt. Our obligation to give notice of defects discovered later remains unaffected. In all cases, our complaint (notification of defects) shall be deemed immediate and timely if it is made within 10 working days of the discovery of the defect.
7.3 The supplier shall be liable for deliveries and services free of defects. In particular, these must have the agreed quality characteristics, correspond to the intended use, the current state of science and technology and generally recognized technical and occupational health and safety regulations of authorities and professional associations and comply with the current environmental protection regulations.
environmental protection regulations.
7.4 We shall be entitled to the full statutory warranty claims; irrespective of this, we shall be entitled to demand that the supplier rectify the defect or supply a replacement at our discretion. In this case, the supplier shall be obliged to bear all expenses necessary for the purpose of remedying the defect or delivering a replacement. We expressly reserve the right to claim damages, in particular damages for non-performance.
7.5 The limitation period for claims for defects shall be suspended upon receipt of our written notification of defects by the supplier. In the event of replacement delivery and rectification of defects, the limitation period for replaced and repaired parts shall recommence, unless we had to assume from the supplier’s conduct that he did not consider himself obliged to take the measure, but only carried out the replacement delivery or rectification of defects as a gesture of goodwill or for similar reasons.
7.6 In urgent cases, where there is a risk of disproportionately high damage, we shall have the right to remedy defects ourselves or have them remedied by third parties at the supplier’s expense and risk. We shall inform the supplier of such measures without delay. In such cases, the supplier’s obligation to remedy the defect shall continue to exist irrespective of this.
7.7 The limitation period for claims for defects is 36 months, calculated from the transfer of risk, unless a longer period is provided for by contract or law. Limitation periods for other claims shall remain unaffected by this.
7.8 The supplier shall grant the quality guarantee for a period of 36 months.
8 Non-contractual product liability
8.1 Insofar as the supplier is responsible for product damage, he shall indemnify us against claims for damages by third parties upon first request if the cause lies within his sphere of control and organization and he himself is liable in relation to third parties.
8.2 Within the scope of its liability for cases of damage within the meaning of clause 8.1, the supplier shall also be obliged to reimburse any expenses arising from or in connection with a recall campaign carried out by us or by our customer. We shall inform the supplier of the content and scope of the recall measures to be carried out – as far as possible and reasonable – and give him the opportunity to comment. Other statutory claims shall remain unaffected.
8.3 The supplier undertakes to maintain product liability insurance with an appropriate lump sum cover for personal injury/property damage. If we are entitled to further claims for damages, these shall remain unaffected. Upon request, the supplier shall send us a copy of the insurance policy at any time or, at our separate request, a current confirmation of insurance.
9 Industrial property rights
9.1 The supplier undertakes to ensure that no third-party rights are infringed in connection with his delivery.
9.2 If claims are asserted against us by a third party in this respect, the supplier shall be obliged to indemnify us against these claims upon first request; this shall not apply if the supplier is not responsible for the infringement of third-party rights. In the event of indemnification, we shall not be entitled to enter into any agreements with the third party, in particular to conclude a settlement, without the consent of the supplier.
9.3 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 Retention of title, provision of materials
10.1 Tools, devices and models which we make available to the supplier or which are manufactured for contractual purposes and charged to us separately by the supplier shall remain our property or shall become our property. The supplier shall mark them as our property, store them carefully, protect them against damage of any kind and use them only for the purposes of the contract. Upon request, the supplier shall be obliged to return these items to us in proper condition; the supplier shall have no right of retention in this respect.
10.2 If parts provided by us are 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 goods subject to retention of title (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier’s item is to be regarded as the main item, the supplier shall transfer co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership for us.
10.3 If the goods delivered by the supplier are mixed, processed, combined or otherwise transformed into a new item by us, the supplier shall not become the owner or co-owner of the new item if there is a reservation of title in his favor.
10.4 Insofar as the security rights to which we are entitled in accordance with this Clause 10 exceed the purchase price of all our goods subject to retention of title that have not yet been paid for by more than 10%, we shall be obliged to release the security rights at our discretion at the supplier’s request.
11 Confidentiality, advertising
11.1 The supplier is obliged to keep all our business and trade secrets strictly confidential. The supplier shall also be obliged to keep strictly confidential all illustrations, drawings, calculations and other documents and information provided to him, whether during the inquiry stage or on the occasion of the execution of contracts. He may only provide them to third parties with our express prior written consent and must return them to us immediately without request if they are not or no longer required for the execution of contracts. The confidentiality obligation shall also apply after termination of the business relationship with the supplier. It shall only expire if and to the extent that the knowledge contained in the documents and information or the documents have become public knowledge.
11.2 The supplier is obliged to treat all commercial and technical details relating to the contract concluded with us and all commercial and technical details relating to its execution as business or trade secrets. The supplier is also obliged to maintain secrecy about the business relationship with us. Exceptions require our prior written consent.
11.3 Sowohl der Lieferant als auch wir sind berechtigt, die Daten des jeweils anderen einschließlich des einzelnen Vertragsverhältnisses zu erfassen und zu speichern, wobei die jeweils gültigen Vorschriften des Datenschutzes zu beachten sind.
11.4 Der Lieferant ist ohne unsere vorherige schriftliche Zustimmung nicht berechtigt, die von ihm geschuldete Leistung durch Dritte (z. B. Subunternehmer) erbringen zu lassen. Im Falle der zulässigen Beauftragung solcher Dritter ist dieser vom Lieferanten schriftlich zur Geheimhaltung im Sinne der vorliegenden Ziffer 11 zu verpflichten; auf Anforderung hat der Lieferant uns diese Geheimhaltungsverpflichtung in Kopie zu übermitteln.
12.1 Falls nichts Abweichendes vereinbart, ist der Lieferant verpflichtet, Ersatzteile zu den an uns gelieferten Produkten für einen Zeitraum von 15 Jahren nach der Lieferung vorzuhalten und an uns zu wettbewerbsfähigen Preisen zu liefern.
12.2 If the supplier intends to discontinue the production of spare parts for the products delivered to us, it shall notify us in writing immediately after the decision on the discontinuation. This decision must be made at least 6 months before production is discontinued, notwithstanding clause 12.1.
13 Place of performance, place of jurisdiction, applicable law
13.1 The place of performance for all contractual obligations shall be the place of receipt specified by us in the order.
13.2 The exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office. At our discretion, we may also sue the supplier at the place of performance or at its general place of jurisdiction.
13.3 The law of the Czech Republic shall apply. The application of the Convention on Contracts for the International Sale of Goods of 11.04.1980 (UN Sales Convention) is excluded.
Status January 2020