1. Conclusion of Contract
1.1 The contract between the Contractor and GOK is based exclusively on these general Purchasing Conditions of GOK. The General Terms and Conditions of the Contractor are hereby vetoed, especially if they contradict these general Purchasing Conditions of GOK. The general Purchasing Conditions of GOK also apply for all future supplies and services of the Contractor to GOK up to the validity of new general Purchasing Conditions of GOK.
1.2 Orders, agreements and alterations are only binding, if they are issued or confirmed by GOK in writing, via fax or in electronic form. Correspondence is to be conducted exclusively with the purchasing division. Arrangements with other divisions of GOK, if they involve the entering into agreements, which alter the issues determined in the contract, require the explicit written confirmation via the purchasing division in form of an amendment to the contract.
1.3 Orders and delivery schedules are deemed accepted, if the Contractor does not object to them in writing within one week from receipt. However, within a further week, GOK is entitled to withdraw its order or delivery schedule, unless the Contractor prior accepted them in writing.
1.4 The Contractor is to treat all information made available to him in connection with the execution of the contract as strictly confidential.
1.5 Quotes, first samples and samples are generally binding and not to be paid, unless otherwise agreed upon in writing.
2.1 The agreed prices are fixed prices and are - plus the applicable VAT - free application site, duty paid including freight and packaging costs. If ex works or ex storage has been agreed upon, GOK will only bear the most economical freight costs. All expenses up to the handover to the freighter, including loading and excluding cartage, are borne by the Contractor. The agreement regarding the place of deliver is not affected by this method of price agreement and price determination.
3. Proof of origin, proof regarding turnover tax
3.1 The Contractor will furnish all necessary information regarding proof of origin requested by GOK and provide those immediately and properly signed. The appropriate also applies for proof regarding turnover tax in case of abroad or inter-community deliveries.
4. Delivery, dates, delays
4.1 Any departure from GOK’s agreements and orders are only permitted upon prior written approval.
4.2 Agreed dates and terms are binding. The arrival of the goods at GOK is relevant for the fulfilment of delivery date or delivery term. If the delivery is ex works, the Contractor is to make the goods available in time, under consideration of the time of loading and dispatch to be agreed upon with the freighter.
4.3 If the Contractor has taken over the erection or the assembly, and if nothing is agreed to the contrary, the Contractor bears - subject to differing arrangements - all necessary ancillary costs such as travel expenses, provision of tools and releases.
4.4 Fundamentally, legal regulations apply, if agreed dates are not adhered to. As soon as the Contractor recognises difficulties regarding manufacture, material supply, adherence to dates or other circumstances, which may impede the timely delivery or influence the agreed quality of the delivery, he is to notify the purchasing division of GOK immediately. The obligation to adhere to the agreed dates remains unaffected.
4.5 In case of default by the Contractors, GOK may, after fruitless expiry of an appropriate period of grace determined by GOK, cause the unperformed services of the Contractor to be executed by a third party at the expense of the Contractor. After the fruitless expiration of the grace period determined by GOK, GOK may also withdraw from the Contract.
4.6 The unconditional acceptance of a delayed delivery or service does not constitute a waiver of compensation claims due to GOK due to the delayed delivery or service. This applies up to the total payment owed by GOK for the delivery or service concerned.
4.7 Subject to alternate proof, the values determined by GOK’s incoming goods inspection are relevant for amounts, weights and measurements.
4.8 Partial deliveries are basically not permitted, unless GOK has explicitly agreed to them or they are reasonable for GOK.
4.9 The Contractor bears the risk of accidental loss, destruction or deterioration up to the point of acceptance of the goods by GOK or GOK’s assignee at the place, where the goods are to be delivered according to the agreement.
4.10 Force majeure, industrial actions, non-culpable business disruptions, unrests, official measures and other inevitable events entitle GOK, irrespective of its other rights, to withdraw from the contract in total or in part, if they are not of an insignificant term and may cause a significant reduction of GOK’s demand.
5.1 The delivery must conform to the agreed specifications.
5.2 The Contractor has to constantly adjust the quality of products to be delivered to GOK to the latest state of technology and notify GOK of the possibility for improvements and technical changes.
5.3 The Contractor has to establish and maintain a suitable, documented quality management complying with the latest state of technology. He has to establish records, especially regarding his quality control, and make them available to GOK.
5.4 At GOK’s request, the Contractor is obligated to execute a Quality Control Agreement with GOK.
6. Claims of defect and regress
6.1 Acceptance always occurs subject to an inspection regarding faultlessness, especially also regarding correctness, completeness and suitability. GOK is entitled to inspect the subject matter of the contract as soon and as far as possible within the proper course of business; discovered defects will be reprimanded by GOK immediately upon notice. In this respect, the Contractor foregoes the objection to a belated notice of defect.
6.2 GOK principally has the right to choose the manner of rectification. The Contractor has the right to refuse the manner of rectification chosen by GOK under the regulations of § 439 sub paragraph 3 German Civil Code.
6.3 If the Contractor does not commence with the rectification of defects immediately upon notice of the defect by GOK, then, in urgent cases especially to prevent acute danger or larger damage, GOK is entitled to rectify the defects themselves or commission a third party at the expense of the Contractor.
6.4 Claims of material defects expire 24 months from raising of claim, unless the object, in accordance with its normal usage, was used for a building and has caused the defectiveness of same. The limitation period for claims of material defects commences with the handover of the subject matter of the contract (transfer of risk). The limitation period of § 479 German Civil Code remains unaffected.
6.5 GOK is especially entitled to claims of regress against the Contractor according to § 478, 479 German Civil Code, if GOK is carrying such claims toward a third party. This also applies in case the subject matter was installed or processed by GOK or a third party. Furthermore, GOK retains those rights also if the third party or end customer is not a consumer, but an entrepreneur.
6.6 In case of defect of title, the Contractor exempts GOK from possible claims by third parties. The limitation period for defect of title is 10 years.
6.7 For any parts of the delivery, which were restored or repaired within the limitation period of GOK’s claims of defect, the limitation period will commence anew from the point in time, at which the contractor has completely fulfilled GOK’s claims for rectification.
6.8 If GOK incurs any costs due to the defective delivery, especially transport-, shipping-, handling- or material costs or cost, which exceed the normal extend of a receiving inspection, the Contractor will bear these costs.
6.9 If GOK takes back goods, which it produced and/or sold itself, due to defaults of subject matters of the contract delivered by the Contractor or if GOK’s purchase price was reduced due to this defect or if GOK is enlisted in any other manner in this cause, GOK reserves the right of regress toward the Contractor, whereby an otherwise necessary deadline does not apply for GOK’s claims of defect.
6.10 GOK is entitled to demand compensation from the Contractor for expenses, which GOK had to bear in the relationship with its customers for claims, which the customer had against GOK due to compensation for the purpose of rectification, especially transport-, shipping-, handling- or material costs.
6.11 Regardless of the regulation under Nr. 6.6, the limitation period under Nr. 6.9 and 6.10 commences at the earliest 2 months from the time at which GOK has fulfilled the claims raised by its customer, however, at the latest 5 years after handover by the Contractor.
6.12 If a material defect becomes evident within 18 months from transfer of risk, it will be assumed that the defect was present at the time of transfer of risk, unless this assumption is incompatible with the kind of the subject matter and the defect.
6.13 The Contractor is liable for the guarantied quality of deliveries, independent of fault. The limitation period of § 479 German Civil Code applies for those violations of duty.
7. Product liability
7.1 If GOK is enlisted in accordance with German or any other law regarding product liability, the Contractor will enlist toward GOK to the extent, as if he were directly liable. The contractual liability of the Contractor remains unaffected. The Contractor is obligated to exempt GOK from such claims, if and in as far the damage was caused by a subject matter delivered by the Contractor. However, in cases of a liability dependent on fault, this only applies, if the Contractor is at fault. If the cause of damage falls within the responsibility of the Contractor, the Contractor has the onus of proof. In those cases, the Contractor bears all costs and expenses, including the costs of a possible legal action or recall.
7.2 GOK will notify the Contractor immediately, if GOK wants to enlist the Contractor according the above paragraph. If it is reasonable for GOK, GOK will afford the Contractor the opportunity to examine the damage and to coordinate any actions with GOK, such as settlement negotiations.
8. Provision and Co-ownership
8.1 Material, parts, containers and special packaging provided by GOK remain property of GOK. They may only be used in accordance with their purpose. The processing of materials and the assembly of parts occurs on behalf of GOK. It is agreed that GOK is the co-owner of the products resulting from the usage of the materials provided by GOK, and which are stored by the Contractor on behalf of GOK, at the ratio of the value of the provided material to the value of the total product.
9. Drawings, design documents, tools and confidentiality
9.1 Drawings and other documents, devices, models, tools and other manufacturing equipment, which were entrusted to the Contractor, remain the property of GOK.
10.1 GOK pays either 14 days from receipt of invoice and complete receipt of product with a 3 % discount or 30 days with a 2 % discount or 60 days net.
10.2 Payments by GOK do not constitute acceptance of the accounting and are made under reservation of an audit.
10.3 GOK may offset any claims, which the Contractor my have against GOK, with any claims, which GOK has against the Contractor.
11. Place of delivery, partial ineffectiveness, jurisdiction, applicable law
11.1 Place of delivery is the location of GOK, for payments it is the registered office of GOK.
11.2 Court of jurisdiction is the court generally appropriate for the registered office of GOK. However, GOK may sue the Contractor also at his general court of jurisdiction.
11.3 Supplementary to the contractual regulations, only the law of the Federal Republic of Germany regarding the legal relationship of national parties applies.
As of: April 2009