General Terms and Conditions of Purchase of HKO Isolier- und Textiltechnik GmbH
As of:June 2024
Section 1 Scope
(1) All purchases and orders by the HKO Isolier- und Textiltechnik GmbH (“Buyer”) from commercial entities in the sense of Section 14 BGB (German Civil Code), a legal person under public law or a special asset under public law (“Seller”) (collectively “the Parties”) are subject exclusively to the Buyer’s General Terms and Conditions of Purchase (the “General Terms and Conditions of Purchase”).
(2) Regardless of whether the GTCP are explicitly agreed again, they shall also apply to all the Buyer’s future purchases and orders. The version current when the contract is concluded shall always apply. The Buyer shall immediately inform the Seller of new versions of the General Terms and Conditions of Purchase.
(3) The Buyer shall not recognise the Seller’s terms and conditions where these contradict or deviate from the General Terms and Conditions of Purchase, unless it has explicitly agreed that they should apply. The General Terms and Conditions shall apply even if the Buyer accepts a delivery or other service from the Seller without reservation or provides a contractually agreed service without reservation in full knowledge of terms and conditions on the part of the Seller which contradict or deviate from the General Terms and Conditions.
Section 2 Business preparation, conclusion of contact, other declarations
(1) Regardless of whether a contract comes into being or not, expenses incurred by the Seller for visits, drafts, samples, templates, cost estimates, offers etc. in the course of business preparation shall not justify a cost obligation or other liability on the Buyer’s part.
(2) The Buyer’s orders are always non-binding until submission or confirmation in text form by the Buyer. The Seller must inform the Buyer of any obvious errors (e.g. typing or mathematical errors) and gaps in the order, including the order documents, before accepting the order for the purposes of correction and/or completion; otherwise, the contract shall not count as concluded.
(3) Legally significant declarations and notices which the Seller has to submit to the Buyer or a third party require the written form.
(4) The Buyer and Seller may only use the business relationship for advertising (“referencing”) with the other business partner’s written consent.
Section 3 Delivery and performance period
The delivery and performance times specified in the order are binding. If it looks unlikely that the Seller will be able to comply with agreed delivery or performance times, it is obliged to inform the Buyer of this immediately in text form.
Section 4 Delivery, documents, transfer of ownership
(1) Unless otherwise agreed, deliveries shall be “Delivered At Place” (DAP; Incoterms 2020) to the location given in the order.
(2) All deliveries must be accompanied by a delivery note providing the date (date of issue and shipment), content of the delivery (item number and quantity) and the Buyer’s order ID (date and number). Separately to the delivery note, the Buyer must on request be sent a dispatch note with the same content. The Buyer is not responsible for delays in processing or payment resulting from breaches of the above conditions.
(3) Subcontracts for deliveries and services may only be awarded with the Buyer’s written consent, except for insignificant deliveries,
marketable parts or insignificant ancillary services.
(4) Devices must be delivered along with a technical description and user manual in German, and software products with the full documentation (especially the operating instructions). Programs tailor-made for the Buyer must also be delivered along with the source code for the program.
(5) Ownership of the goods shall be transferred to the Buyer on payment at the latest. Any extended or expanded reservation of title is excluded.
(6) Where deliveries and services are not provided by the Federal Republic of Germany, but rather from another EU Member State, the EU VAT ID no. should be given.
Section 5 Prices and terms of payment
(1) The price given in the order is binding and applies unless otherwise agreed for DAP deliveries. All prices include statutory VAT, even if this has not been separately indicated.
(2) Unless otherwise agreed, the price includes all the Seller’s services and ancillary services (e.g. assembly, installation) and all ancillary costs (e.g. proper packaging, transportation costs including any transport and liability insurance). The Seller must take packaging material back at the Buyer’s request.
(3) Unless otherwise agreed, the agreed price shall fall due for payment within thirty calendar days from the completion of the delivery and service (including any agreed discount) and receipt of a proper invoice. If the Buyer pays within fourteen days, it is entitled to deduct 3% from the net invoiced amount.
(4) The Buyer can only process invoices if they provide the order number given in the order; the Seller shall be responsible for any consequences of failure to comply with this obligation, unless it proves that it was not at fault.
(5) The Buyer shall not owe any interest on maturity. The Seller’s claim for the payment of default interest shall remain unaffected. Legal regulations apply to the beginning of default on payment. In every case, however, a reminder by the Seller shall be required.
(6) The Buyer shall have rights of offsetting and retention as well as the defence of an unfulfilled contract within the statutory scope. The Buyer is in particular entitled to retain due payments while it has claims against the Seller arising from incomplete or defective services.
(7) The Seller is only entitled to offset or retain payments if and insofar as its counterclaims are uncontested or have been made legally enforceable, or its counterclaims are based on the same contractual relationship.
Section 6 Safety and environmental protection
(1) The Seller’s deliveries and services must comply with all statutory provisions which apply within the Federal Republic of Germany (especially those relating to safety and environmental protection, such as GefStoffV (Hazardous Substances Ordinance), ElektroG (Electrical Equipment Act) or GPSG (Product Safety Act), and the safety recommendations of the various responsible German professional bodies and associations (e.g. VDE, VDI, DIN). All relevant certificates, test certificates and evidence must be supplied free of charge without a request being made.
(2) In particular, the delivery of substances, concoctions or products which are banned from manufacture, use or sale by German law is prohibited. If the goods to be delivered are hazardous substances, this should be indicated in the Seller’s offer, whereby the corresponding safety data sheets (in German or English) should be sent to the Buyer when the offer is made.
(3) The Seller bears sole responsibility for compliance with statutory occupational safety and work safety provisions, applicable accident prevention regulations and the Buyer’s special safety regulations during the delivery process and provision of services, and must seek information from the Buyer in good time regarding the existence of any such safety regulations. If the manufacturer has issued safety instructions, these must be delivered free of charge along with the goods.
Section 7 Buyer documents
The Buyer shall retain right of ownership, copyrights and any commercial property rights to illustrations, drawings, templates and other documents (the “Documents”). This also applies to documents not explicitly marked as “confidential”. Before forwarding documents to third parties, the Seller must obtain the Buyer’s explicit written consent.
Section 8 Warranty for defects, liability of the seller for damages
(1) The Seller shall be liable for deliveries and services being free of defects, in particular for compliance with the agreed specifications and guaranteed properties. The deliveries and services shall be provided in accordance with the state of the art and safety regulations shall be complied with.
(2) In the event of a defect, the Buyer shall be entitled to the full extent of the statutory claims. In particular, the Buyer shall be entitled to demand that the Seller, at its discretion, remedy the defect or deliver a new item. The Buyer expressly reserves the right to claim damages, including damages in lieu of performance, for any degree of fault and in full.
(3) In any case, those product descriptions which – in particular by designation or reference in the Buyer’s order – have become the subject matter of the respective contract or have been included in the contract in the same way as the General Terms and Conditions of Purchase shall be deemed to be an agreement on the quality within the meaning of the law. It makes no difference whether the product description originates from the Buyer, the Seller or the manufacturer.
(4) In the case of goods with digital elements or other digital content, the Seller shall be responsible for providing and updating the digital content insofar as these results from a quality agreement pursuant to para. 3 or other product descriptions of the manufacturer or on his behalf, in particular on the Internet, in advertising or on the product label.
(5) Notwithstanding § 442 para. 1 sentence 2 BGB, the warranty rights for defects shall also apply without restriction if the Buyer was unaware of the defect at the time the contract was concluded due to gross negligence.
(6) The costs incurred by the seller for the purpose of inspection and rectification shall be borne by the seller even if it turns out that there was actually no defect. The Buyer’s liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected if the Buyer recognized or was grossly negligent in not recognizing that there was no defect.
(7) If the Seller fails to fulfill its obligation to provide subsequent performance within a reasonable period set by the Buyer, the Buyer shall be entitled to remedy the defect or procure a replacement itself or have it remedied by a third party at the Seller’s expense. If subsequent performance by the Seller has failed or is unreasonable for the Buyer (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damage) or is seriously and finally refused by the Seller, it is not necessary to set a deadline; however, the Buyer shall inform the Seller immediately, if possible in advance, of the self-performance or performance by a third party.
(8) The limitation period is 36 months, calculated from delivery in accordance with § 4 (1) or acceptance. Longer statutory limitation periods remain unaffected by this.
(9) The Seller shall be liable for damages for any degree of fault and in full in accordance with the statutory provisions.
(10) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial obligation to inspect and give notice of defects with the following proviso: The Buyer’s obligation to inspect shall be limited to defects which become apparent during the Buyer’s incoming goods inspection under external examination including the delivery documents (e.g. transport damage, incorrect and short delivery) or which are recognizable during the Buyer’s quality control in the random sampling procedure. If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The Buyer’s obligation to give notice of defects discovered later remains unaffected.
Section 9 Supplier recourse
(1) The Buyer shall be entitled to the statutory rights of recourse within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 or §§ 445c, 327 para. 5, 327u BGB) in addition to the claims for defects without restriction. In particular, the Buyer is entitled to demand exactly the type of subsequent performance (rectification or replacement delivery) from the Seller that the Buyer owes its customer in the individual case; in the case of goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates. The Buyer’s statutory right of choice (Section 439 (1) BGB) is not restricted by this.
(2) The Buyer’s claims arising from supplier recourse shall also apply if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by installation in another product or attachment or installation with another product.
Section 10 Product liability, insurance
(1) Where the Seller is responsible for damage to a product, the cause lies within its domain and organisational area and it is externally liable itself, it is obliged to release the Buyer from any third-party compensation claims at the first time of asking.
(2) Within the scope of its release obligation, the Seller must also reimburse any expenses, according to Sections 683, 670 BGB or according to Sections 830, 840, 426 BGB, arising from or in connection with a recall action carried out by the Buyer. The Buyer shall, where this is possible and reasonable, inform the Seller if the content and scope of the recall measures to be carried out and give it the opportunity to take up a position. Other legal claims shall remain unaffected.
(3) The Seller is obliged to take out and maintain product liability insurance with a flat insured amount of at least 10m euros per personal/material damage event. Further compensation claims on the part of the Buyer shall remain unaffected.
Section 11 Property rights
(1) The Buyer shall ensure that no third-party rights are breached in connection with its delivery.
(2) If a suit is brought against the Buyer by a third party in connection with such rights, the Seller is obliged to release the Buyer from such claims at its first written request; the Buyer is not entitled to make agreements without the Seller’s consent, and in particular to reach a settlement.
(3) The Seller’s release obligation covers all expenses which the Buyer necessarily incurs due to or in connection with the third-party suit, unless the Seller can prove that it is not responsible for the breach of obligation on which the breach of property rights is based.
(4) The limitation period for these claims is 36 months, calculated from delivery according to Section 4 (1) and/or acceptance.
Section 12 Export control, Ethics and compliance clause
(1) The Seller must fulfil the applicable requirements of national and international export, customs and foreign trade law for all goods to be delivered and services to be rendered. The Seller must obtain any necessary movement or export permits, unless applicable export, customs and foreign trade law obliges not the Seller, but the Buyer or a third party to apply for these permits.
The Seller must provide the Buyer as soon as possible, but at the latest 10 days before the delivery deadline, with all information and data which the Buyer requires in order to comply with applicable export, customs and foreign trade law, movement and imports as well as in the case of resale of goods and services, especially for every good and service:
export list position, this should be indicated with “AL: N”);
foreign trade statistics and the HS (Harmonized System) Code;
In the event of changes to the origin or characteristics of the goods and services or the applicable export, customs and foreign trade law, the Seller must update the export control and foreign trade data and share them with the Buyer in writing as soon as possible, but at the latest ten days before the delivery date. The Seller shall bear all expenses and damages incurred by the Buyer due to missing or inaccurate export control and foreign trade data.
(2) As part of the fulfilment of the contract, the seller undertakes to comply with all applicable laws and regulations concerning him, in particular those relating to the following:
– Employee rights (including health and safety at work and prohibition of forced and child labour),
– environmental law,
– financial integrity (including the prohibition of all forms of corruption and the fight against money laundering),
– competition and antitrust law
(3) As part of the fulfilment of the contract, the Seller also undertakes to comply with the Buyer’s own “Code of Conduct” and the Supplier Charter. You will find these documents as an attachment to the GTC in PDF format as well as under the following link.
https://www.saint-gobain-glass.de/de/downloadbereich
(4) The Buyer reserves the right to temporarily or permanently refuse to fulfil its obligation under the contract or to withdraw from the contract if a new law or regulation makes the fulfilment of its contractual obligation unlawful or impossible or imposes sanctions on it, without the Buyer having to assume any liability for this.
The Buyer shall immediately inform the Seller in writing of the exercised right.
For continuing obligations, the right of cancellation shall be replaced by the right of termination without notice for good cause, which is regulated under § 12 (7) of these GTC.
(5) The Seller shall comply with the obligations set out in § 12 (2) and (3) and ensure that the employees, temporary workers or other third parties engaged by the Seller to fulfil the order also strictly adhere to these obligations.
Otherwise, the Buyer reserves the right to terminate the contract without notice for good cause in accordance with § 12 (7) of these GTC, without the Buyer having to assume any liability for this.
(6) Furthermore, the Seller undertakes to take all reasonable measures and procedures to comply with the aforementioned obligations and to inform the Buyer of these upon request.
Otherwise, the Buyer reserves the right to terminate the contract without notice for good cause in accordance with § 12 (7) of these GTC without the Buyer having to assume any liability for this.
(7) The Buyer may suspend the contract or an order after written notification to the Buyer and/or terminate it without notice for good cause. Good cause in this sense shall be deemed to exist in particular if one or more of the obligations listed under § 12 (2), (3), (4), (5) and (6) of these GTC have been culpably breached by the Buyer.
The notice of cancellation shall contain the essential reasons which led to the assumption of the existence of good cause.
The Buyer may claim damages under applicable law if the Seller culpably breaches the aforementioned obligations. In no event shall the Buyer be liable for any damages incurred by the Seller as a result of the suspension or cancellation of the contract or an order. The Seller undertakes to bear its own costs resulting from the suspension or cancellation and to mitigate the consequences of the resulting damage.
(8) The seller confirms that he has been informed about the buyer’s professional whistleblower system, which is accessible at the following address:
https://www.bkms-system.com/saint-gobain
Section 13 The Act on Corporate Due Diligence Obligations in Supply Chains
(1) As part of the fulfilment of the contract, the Buyer further undertakes to comply with all legal obligations concerning him to comply with the due diligence obligations under the German “Act on Corporate Due Diligence Obligations in Supply Chains (“LkSG”). Further information is available under the following link:
Our obligation in this regard pursuant to § 3 para. 1 no. 4 i.V.m. § Section 6 (2) of the LkSG to issue a declaration of principles has been fulfilled.You will find this document as an attachment to the GTC in PDF format as well as under the following link:
https://www.saint-gobain-glass.de/de/downloadbereich
(2) The seller as a supplier fulfils the human rights and environmental due diligence obligations of the LkSG in compliance with the definitions of “human rights risk” and “environmental risk” (“human rights and environmental standards”) listed in Section 2 (2) and (3) of the LkSG.
(3) The Seller as a supplier shall ensure that its employees receive training and further education on human rights and environmental standards upon request.
(4) Upon request, the Seller as a supplier shall provide the Buyer with information that is suitable for verifying the Seller’s compliance with human rights and environmental obligations.
(5) In the event of actual violations of human rights and environmental standards in the Seller’s own business area, the Seller as a supplier shall take appropriate remedial measures to prevent, end or minimise the violations. If the seller cannot remedy the violation of human rights and environmental standards in its own business area in the foreseeable future, the buyer may demand that the seller as a supplier actively participates in the joint development and implementation of an action plan to remedy the violation. During the implementation of the action plan to remedy the violation of human rights and environmental standards, the Buyer may temporarily suspend this contract.
(6) If the seller as a supplier violates material human rights and environmental standards and this violation is classified as very serious or if the seller does not remedy violations of human rights and environmental standards within a period of time set by the buyer or in the action plan, the buyer may terminate the contract or the business relationship as a last resort if the buyer has no other, less serious means at its disposal and an increase in the possibilities of influencing the seller as a supplier has no prospect of success.
(7) The Seller as a supplier shall pass on the human rights and environmental standards, in particular the obligations specified in sections 2-6 of this clause, in the contracts, orders, purchase orders or comparable agreements with its upstream and downstream suppliers. The Seller as a supplier shall oblige its upstream and downstream suppliers to pass on the human rights and environmental obligations in the orders, contracts or comparable agreements with their own upstream and downstream suppliers, in particular the regulations specified in sections 2-6 of this clause.
Section14 Data protection, choice of law and place of jurisdiction
(1) You can find information on data protection at https://www.hko.de/general-conditions-of-purchase/?lang=en
(2) The law of the Federal Republic of Germany shall apply, to the exclusion of International Uniform Law, in particular the UN Sales Law (CISG).
(3) The place of performance is the Buyer’s seat of business.
(4) The place of jurisdiction -also internationally- is the Buyer’s seat of business; the Buyer, however, reserves the right to bring a suit against the Seller at its general place of jurisdiction.