General Terms and Conditions of Purchase of Kontron Solar GmbH

Status as of 11/2020, valid from 01.11.2020

1. General – Scope

1.1 These General Terms and Conditions of Purchasing shall apply to any delivery or service (hereinafter generally referred to as "Delivery" or "Deliveries") provid-ed to Kontron Solar GmbH and its affiliated companies acc. to Section 15 German Stock Companies Act (AktG) (i.e. Katek GmbH, Kontron Solar GmbH, Kontron Solar GmbH Mauerstetten GmbH, Kontron Solar GmbH Düsseldorf GmbH, Kontron Solar GmbH Frickenhausen GmbH, eSystems MTG GmbH) by any seller, work contractor, or party obligated to per-form services (hereinafter generally referred to as "Supplier").
1.2 Our Terms and Conditions of Purchasing shall be applicable on an exclusive basis; we shall not recognize any Supplier terms and conditions conflicting with or differing from our Terms and Conditions of Purchasing unless we have ex-pressly agreed in text form to the validity of any such Supplier terms and condi-tions. Our Terms and Conditions of Purchasing shall also be applicable when we accept delivery from the supplier without reservation while being aware of Supplier terms and conditions conflicting with or diverging from our Terms and Conditions of Purchasing.
1.3 Our Terms and Conditions shall not be applicable unless to entrepreneurs, legal entities under public law or special funds under public law as defined in Section 310, Subsection 1 of the German Civil Code (BGB).
1.4 Our Terms and Conditions of Purchasing shall also apply to any future contract on any delivery made by the same Supplier without requiring us to refer to such framework agreement in every single case again.
1.5 Any individual agreement made with the Supplier in a particular case (including any subsidiary agreement, supplement or modification) shall take precedence over these General Terms and Conditions of Purchasing in every case. The contents of any such agreement shall be subject to a contract in text form or a confirmation in text form issued by us.
1.6 No legally relevant representation or notification (e.g., notice to set deadlines, reminder, notice of rescission) to be furnished by the Supplier to us after the conclusion of the contract shall be effective unless made in text form.

2. Offers, quotations and tender documents

2.1 No order shall be brought about unless by our purchase order and/or delivery schedule, and by the Supplier's acceptance thereof in text form. If Supplier does not accept within five business days no contract takes effect. A later acceptance shall be considered as a new offer.
2.2 We are entitled to change usual quantity or quality tolerances, as long as prices or substantial technical parameters or delivery time will remain unaffected and these changes are reasonable for the Supplier.
2.3 We shall reserve title to ownership and, where any such document is eligible for copyright, the copyright in any illustrated matter, drawing, calculation or oth-er document; no such illustrated matter, drawing, calculation, sample, model, or other document may be made available to any third party without our express written consent. No such image, drawing or document shall be used unless ex-clusively for the purposes as defined in our purchase order; any such illustrated matter, drawing, calculation, sample, model, or other document shall be re-turned to us upon a written request but not later, and then without any request, after having processed the purchase order. Any such document shall be kept secret from any third party, and, in such respect, shall be subject to the sup-plementary provisions set forth in items 11.4 and 11.5 below. The Supplier shall have no retaining lien to any such document.

3. Prices – terms of payment

3.1 The delivery date indicated in the purchase order and/or delivery schedule shall be binding. Unless expressly agreed otherwise in writing, the price shall cover delivery DAP/DDP as per Incoterms 2010, including packaging, freight, assur-ance, unloading and taxes, toll and other fees. Packaging material shall be tak-en back by the supplier upon our request. Unless as otherwise agreed in text form and restricted to a particular case, the price shall also cover every service and incidental service to be provided by the Supplier (e.g., erection, installation) and every incidental expense (e.g., transport costs including any transport and liability insurance). In other respects, we are a customer having waived and prohibited shipping agents from taking out any forwarding, logistics and ware-housing insurance for our products ("RVS-/SVS-Verbotskunde").
3.2 No invoice may be processed by us unless such invoice shows, among other information, the purchase order number as specified in our corresponding pur-chase order and all information required by Section 14 para. 4 German sales tax act (UStG); the Supplier shall assume responsibility for every consequence resulting from any failure to comply with such obligation unless the Supplier proves that he or she is not responsible for such consequence. In the case of non-compliance with this obligation payment will not be due.
3.3 Unless as otherwise agreed in writing, we shall pay the price either applying a 3% cash discount within a period of 14 days after delivery and the receipt of a proper and verifiable invoice, or net within a period of 30 days after invoice re-ceipt.
3.4 We shall be entitled to setoff and to a retaining lien to the extent as defined by statutory provisions. We shall be entitled, in particular, to retain payments due as long as we still have any claim against the supplier resulting from any in-complete or unsatisfactory service.
3.5 No right to set-off and/or retention shall be available to the supplier unless for counterclaims which are recognized by declaratory judgment, uncontested or ready for a decision in any proceedings pending in court.
3.6 The Supplier shall not be entitled to assign any claim resulting from this con-tractual relationship to any third party. The foregoing shall not apply if and where monetary claims are concerned.

4. Delivery period

4.1 The delivery date indicated in the purchase order and/or delivery call-off shall be binding
4.2 The Supplier shall agree to inform us in text form and with no delay whenever circumstances occur or become apparent to the Supplier, indicating that an agreed delivery time cannot be met. Nonetheless, the foregoing shall not affect the Supplier's responsibility to observe the agreed delivery period.
4.3 In the event of any delay in delivery, we shall be entitled to the statutory claims. The provision defined in item 4.4 shall remain unaffected.
4.4 The supplier shall be obligated to pay a penalty if the supplier exceeds the de-livery date. Such penalty shall amount to 0.3% per business day of delay but not exceed a total of 5% of the overall net remuneration amount affected by the delay. We shall be entitled to claim such penalty until the date of final payment even though we may not have expressly reserved such right at the time of re-ceiving any late delivery. Neither the foregoing agreement on penalty, nor the assertion of such penalty shall affect any statutory claim to which we may be entitled for delay.

5. Transfer of risk – documents – force majeure - termination

5.1 Delivery shall be made DDP as per Incoterms 2010 to the destination as indi-cated in our purchase order and/or delivery schedule, unless otherwise stipulat-ed in the order. If no destination is indicated and unless as agreed otherwise, delivery shall be made to the place of business of the ordering company. The corresponding ship-to location shall also be the place of performance. If ac-ceptance has been agreed, the transfer of risk shall be subject to such ac-ceptance.
5.2 The delivery shall be accompanied by a delivery note indicating, among other information, the date (issue and shipment), the contents shipped (article num-ber and quantity) and our purchase order identifier (date and number). If a de-livery note is either missing or incomplete, Supplier will compensate our efforts and the consequences of the delay, unless the Supplier is not responsible for the missing or the incompletion.
5.3 We shall be entitled to request that delivery be made, either fully or in part, at a reasonable later time without entitling the Supplier to raise any claim against us for such reason if and where any failure to take delivery or grant acceptance on our side is caused by force majeure, industrial action or by any other event be-yond our sphere of influence. Notwithstanding the foregoing, every contracting party shall be entitled to rescind the contract if such extension exceeds a period of six months. No contracting party may assert any claim whatsoever against the other contracting party in such an event either.
5.4 The underlying contract may be terminated for good cause by either contracting party without observing any period of notice. A good cause shall be deemed to exist but shall not be limited to any existing fact under which the party giving no-tice to terminate, considering all circumstances on a single-case basis and bal-ancing the interests of the contracting parties, may not be reasonably expected to continue such contract.

6. Liability for defects

6.1 Where applicable, the commercial duty to examine and object to defects shall be subject to the statutory provisions (§ 377 of the German Code of Commerce, HGB) with the following proviso: Our duty to examine shall be restricted to any deficiency which becomes openly evident in our company (e.g., damage in transit, wrong or short delivery). No duty to examine shall exist if and where ac-ceptance has been agreed upon. In other respects, such duty shall depend on whether an examination is expedient in the proper course of business when considering the circumstances of the individual case concerned. Our obligation to lodge complaints for any deficiency detected at a later time shall remain unaf-fected.
6.2 In every case, our complaint (defect notice) shall be deemed immediate and timely if issued within five (5) business days after delivery in the case of openly evident defects or five (5) business days after detection of the deficiency in cases of hidden defects.
6.3 We shall be entitled to the statutory claims based on defects without any reduc-tion; irrespectively of the foregoing, we shall be entitled to request the Supplier, at our option, to provide either defect correction or replacement. In such event, the supplier shall agree to bear every expenditure required to provide such de-fect correction or replacement. We shall expressly reserve the right to receive compensation in damages including but not limited to damages for non-performance.
6.4 The period of prescription applicable to any claim based on a defect shall be 36 months calculated from the transfer of risk.
6.5 The Supplier shall perform a pre-delivery inspection which serves the same purpose as the incoming inspection actually required by us in accordance with § 377 of the German Commercial Code.
6.6 The running of the period of prescription shall be suspended upon the receipt of our written notice of defect by the Supplier. In the event of replacement or de-fect correction, the period of prescription shall restart for any part replaced or reworked unless the Supplier's conduct makes us assume that the Supplier did not feel obligated to but rather made any such replacement or defect correction only as a gesture of good will or for any similar reason.
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