Conditions of Purchase of Kellner & Kunz AG

Conditions of Purchase

March 2019

Only the present conditions of purchase shall apply. K&K do not accept Supplier’s contradicting or deviating conditions unless K&K have expressly and in writing approved their validity. The present conditions of purchase shall also apply in case K&K accept Supplier’s deliveries unconditionally while being aware of Supplier’s contradicting or deviating conditions. The present conditions of purchase shall apply also for all future business with Supplier. Individual agreements that may be concluded with Supplier for individual cases (e.g.framework contracts and quality assurance agreements as well as collateral and complementary agreements and their amendments) will always have precedence over these General Conditions of Purchase.

1. Orders: Deliveries that are made without written order will
not be accepted. K&K waive order confirmations unless any
changes of amounts, prices or delivery dates are required. K&K
reserve the right to accept these changes. Supplier are obliged
to point out obvious mistakes (e.g. misprints and calculation
errors as well as incompleteness of orders and of the order
documents) so that these can be corrected and/or completed
before acceptance.

2. Compulsory information: Before changing production
processes, materials or supplied parts for products or services,
production locations, methods or appliances for testing the
parts or any other quality assurance measures Supplier must
inform K&K sufficiently in advance so that K&K can find out if
the changes may have a detrimental effect on the product.

3. Secrecy: All documents provided by K&K including
drawings, sketches and samples are exclusively property of
K&K. Supplier undertake not to make them accessible for third
parties; to use the documents and samples exclusively for
executing the orders; not to multiply the documents, to handle
and keep the documents and samples with care and to return
them to K&K immediately and completely after the orders have
been executed. In particular Supplier will continue treating the
production methods supplied by K&K as secret also after
completing the orders and not use them for their own
production or for supplies to competitors of K&K. K&K reserve
all rights in new features provided by K&K – in particular in case
any patent is granted or utility models are registered. Products
that are made on the basis of information (e.g. drawings,
models and similar) provided by K&K or on the basis of
confidential information supplied by K&K must not be used by
Supplier themselves; Supplier must neither offer or supply
them to third parties.

4. Passage of risk, place of performance: In all cases the
risk shall be borne by Supplier up to arrival of the goods at the
receiving agency determined by K&K. The risk shall pass to
K&K always upon transfer of the goods to the receiving agency
determined by K&K. Supply shall be made within Austria to the
place shown in the order. The destination shall in each case
also be the place of performance. In case a place of
performance has not expressly been determined Wels shall be
the place of performance.

5. Reservation of title: Upon transfer of the goods to K&K
title shall pass to K&K directly. K&K do not recognise any
reservation of title.

6. Pricing: The price shown in the order is binding. Unless
any other agreements have been concluded for individual
cases the price shall include all services and collateral services
provided by Supplier as well as all collateral cost (e.g.
appropriate packaging, transport cost inclusive of any transport
and liability insurance). Upon our request Supplier shall accept
packaging material for return.
Price demands have to be announced by the supplier in writing
at least three months before the beginning of the new quarter.
This announcement does not automatically imply the
acceptance of the demand.

7. Partial deliveries, short and excess deliveries: Partial
deliveries do not constitute performance unless K&K approve
them. Simple acceptance of a partial delivery does not
constitute such an approval. In case of deliveries that are max.
5 % short of the order K&K shall be entitled to accept the
respective delivery and cancel the missing rest of the delivery.
K&K reserve the right to return to Supplier at Supplier’s
expense goods delivered in excess.

8. Delivery date, penalty: The delivery date given by K&K in
the order is binding. Supplier undertake to perform at the
agreed delivery date. As soon as Supplier become aware of
delays Supplier must inform K&K of the delay, its causes and
probable duration. In case Supplier are not able to perform at
the agreed date, no matter for what reason, K&K shall be
entitled to withdraw from the contract and acquire substitute
deliveries from third parties and/or demand compensation for
non-performance according to K&K’s own choice. The above
shall apply without prejudice to any further legal claims by K&K.
K&K shall not have to set a period of grace. Supplier shall have
to reimburse to K&K any additional cost caused by delayed
delivery or service. Acceptance of the delayed delivery or
service does not constitute a waiver of claims for
compensation. In case delays occur repeatedly K&K shall be
entitled to withdraw from the contract also if Supplier are not
responsible for the delay. In the event that delivery is delayed
due to reasons that are attributable to the supplier, the supplier
waives the defense to consecutive violations of the same
provision and is obliged to pay a contract penalty of EUR
50.per customer back order and per delayed article to K&K.
K&K is also entitled to claim the contract penalty up to the final
invoice if K&K did not expressly reserve this right when
accepting the delayed delivery. The right to claim further
damages remains reserved. Deliveries before the agreed date
are permitted only with the consent of K&K. K&K reserve the
right to return goods that were sent before the agreed date or to state a value date for the respective invoice..

9. Form of delivery: Deliveries must be made exclusively in
accordance with K&K’s separate regulations for transport and
packaging for suppliers. The transport and packaging
regulations in their respective applicable versions are part of
K&K’s conditions of purchase.

10. Payment: Unless any other agreements have been
concluded payments shall be made on the 25th of each month
that follows a delivery and performance as well as receipt of a
correct invoice minus 3 % discount or 90 days net.

11. Origin of goods, preferences, regulations in
international commodity traffic: Supplier undertake to
present for all items delivered to K&K a long-term supplier’s
declaration confirming the legal preferential status of the goods
(“Product having preferential origin status in the EU” or
“Product without preferential origin status in the EU”). In case
Supplier do not respect this obligation or in case of wrongly
issued declarations Supplier shall be liable for any damage
K&K suffers in consequence of this violation.
Supplier undertake to check if their products are subject to any
prohibitions, restrictions and/or duty to obtain permits in
international commodity traffic (e.g. with respect to the export
list, dual use regulation, US re-export regulations, etc.) and in
case that applies to mark the products with clear and
unequivocal information in their offers, order confirmations and
all documents accompanying the goods. In case Supplier do
not fulfil the above requirement Supplier shall be liable for any
damage suffered by K&K in consequence of this violation
inclusive of all claims for reimbursement for foreign customs
duties, levies, fines, etc. Decoding of designation of origin:
D = third country / E = EU / F = EFTA

12. Warranty: In case of material or legal defects of the goods
(incl. wrong or short delivery as well as faulty assembly, faulty
manuals for assembly, operation or handling) and other
violations by Supplier the legal regulations shall apply unless
any other stipulations are made below. In accordance with the
legal regulations Supplier shall be liable in particular for
assuring that the goods have the agreed quality upon passage
of risk to K&K. In each case shall apply the product
descriptions that are subject matter of the respective contract
in particular by inclusion or reference in the order – or that
have been included in the contract in the same way as these
conditions of purchase. In this respect it does not matter if the
product description has been provided by K&K, by the supplier
or by the manufacturer.
K&K shall be entitled to claims for damages without limitation
also if K&K did not become aware of the defect upon conclusion
of the contract due to gross negligence. For the requirement to
check the delivery and to make a complaint in respect of a
defect shall apply the legal regulations with the following
proviso: K&K’s obligation to check the goods shall be restricted
to defects that can be detected by the incoming goods control
by means of visual checks inclusive of the delivery documents
and by random checks of our quality control personnel (e.g.
damage in transit, wrong or short deliveries).

In case acceptance has been agreed K&K shall not be obliged
to check the goods. In general, the decisive aspect will be to
what extent a check will be feasible taking into account the
circumstances of the respective case.
The above does not affect the obligation to make complaints
about defects that are discovered at a later time. In all cases a
complaint (notice of defects) shall be considered to have been
made in time if Supplier receive it within two weeks. Supplier
shall pay the cost of testing and repair also if it is found that the
goods in question were not defective. K&K’s liability to provide
compensation for damages caused by unjustified claims for
repair of defects remains unaffected. However, K&K shall be
liable only if K&K found or in gross negligence did not find that
the goods in question were not defective.
In case Supplier do not fulfil their obligation to take remedial
measures (either by rectifying the defect or by delivery of a non-
defective product as chosen by K&K) within a reasonable
period determined by K&K the latter may rectify the defect
themselves and claim from Supplier compensation for the
expenses or respective advance payments. In case Supplier’s
remedial measures were not successful or are unacceptable
for K&K (e.g. because of special urgency, danger for safety of
operation or threatening disproportionate damage) no period
need be determined. Supplier must be informed without delay
– if possible in advance. Further, in case of material or legal
defects K&K shall be entitled to reduce the purchase price or
to withdraw from the contract as provided by law. In addition to
the above the legal regulations entitle K&K to claims for
damages and compensation of expenses.
Supplier respect the state of technology and the applicable
legal and government regulations (in particular DIN, VDE, VDI,
DVGW). On the day of delivery the goods must be in
accordance with all applicable legal and government
regulations including those of the law on safety of appliances
and of environmental protection and they must satisfy the
requirements of the safety regulations. In case Supplier deliver
hazardous substances in the sense of the respective ordinance
or products that may release such substances Supplier must
provide for K&K or their service providers the data that are
required for producing an EU-safety data sheet (Art. 14
GefStoffV (ordinance on hazardous substances) without being
requested to do so.

13. Recourse: K&K are unlimitedly entitled to the legal
recourse within the supply chain in addition to the claims for
damages. In particular K&K are entitled in each case to
demand that Supplier provide for K&K exactly the kind of
remedial measure (rectification of defects or substitute
delivery) that K&K owe their customers. This does not limit the
legal right of choice. Before K&K recognise or fulfil a claim for
damages raised by their customers (including reimbursement
of expenses) they will notify Supplier and request a brief
description of the matter and a written statement. In case the
statement is not delivered within a reasonable period of time
and no solution can be agreed the compensation that was
actually provided by K&K shall be considered to be owed by
K&K vis-à-vis the customer. In such a case it shall be
Supplier’s responsibility to prove the contrary.

K&K’s claims under recourse to Supplier shall also apply in
case the goods have been further processed by K&K or one of
our customers (e.g. by being integrated into another product)
before they were sold by K&K to a consumer.

14. Product liability: Supplier keep K&K free from all claims
resulting from product liability outside the contract to the extent
to which these claims arise due a defect of the product
delivered by Supplier. Further, Supplier shall be liable for
damage that K&K suffer because they have to take reasonable
precautions against liability claims outside the contract that are
to be attributed to Supplier (e.g. public advertisement).
Supplier must be sufficiently insured against claims that may
be raised against them in cases of product liability and they
must be able to prove this insurance to K&K by presenting a
respective insurance policy.

15. Service providers: Service providers that come to work
on K&K’s premises are obliged to sign K&K’s external
company agreement.

16. Use of brand names of K&K: In case K&K return any goods
that bear a brand name or logo of K&K or do not accept such
goods these goods must not be sold to third parties. In each
case of violation shall be charged a penalty amounting to twice
the value of the goods, but no less than € 15,000.00.

17. Force majeure: Strike, lock-out, disturbance of
operation, orders by authorities and other cases outside the
sphere of influence of K&K that may reduce the demand shall
be considered to be force majeure and entitle K&K to withdraw
from the contract.

18. Industrial property rights: In case of an intentional
violation of industrial property rights Supplier shall keep K&K
and their customers free from any claims of third parties
resulting from the violation of copy rights, commodity rights
and patents unless the design of the respective commodity
has been provided by K&K.

19. Prohibition of child labour: The supplier commits himself
to observe the minimum standards specified in the ILO core
labor standards and to commit his own suppliers to observe
said minimum standards with the help of specific contractual
provisions. The supplier particularly commits himself to refrain
from employing children. The supplier guarantees that his own
suppliers do not employ children either. The term “children”
covers all people under 15 years of age. In exceptional cases,
children may be employed at 14 years of age if legislation in
the country of production permits employment from the age of
14.

20. Environmental Protection: Protection of the environment
plays an important role in K&K’s comprehension of quality.
K&K expects therefore from its suppliers an environmental
consciousness corresponding to these guidelines.

21. Regulation (EG) Nr. 1907/2006 (REACH): The products
delivered by the Supplier must comply with the provisions of
the Regulation (EG) 1907/06 concerning the registration,
evaluation, authorization and restriction of chemicals
(REACH). If necessary under the Reach Regulation the
substances of products must be pre-registered or respectively
after ending of the transition period registered, if the
substances are not excluded from registration.
Suppliers with their corporate seat in Non-EU countries are
obliged to nominate an Only Representative according to Art.
8 Reach Regulation who has its corporate seat within the EU
and who needs to be notified to K&K. The OR takes over all
registration and all other obligations due to the Reach
Regulation of the Supplier. In case OR has performed a pre-
registration or a registration, OR needs to inform K&K stating
the registration number respectively. K&K has to be informed
immediately when another OR is nominated or OR terminates
his actions.

The supplier insures that none of the products delivered by
him contains any substances of the Candidate list according
to the Reach Regulation Art 59 (1, 10).

Supplier undertakes to inform K&K immediately in writing if –
for whatever reason – any of the products delivered contain a
substance of the Candidate list; especially in the case of
extension/amendment of the Candidate list. Supplier’s
information must be send via Email to einkauf@reca.co.at.
Information on the product, delivery note, order confirmation
or invoice is not sufficient. Supplier will notify the substances
by name and inform about percentage of mass as accurately
as possible.

Supplier further confirms that all products delivered fulfill the
requirements of Regulation (EG) Nr 1272/2008 (CLP
Regulation). Especially Non-EU Suppliers are responsible for
the notification of the delivered products in the classification
and labeling directory by the OR according to Art 39-42 CLP
Regulation.

In case the Supplier breaches the obligations written above,
K&K is entitled to cancel the respective order any time and to
reject the delivery with any costs. K&K’s claims for damages
will remain unaffected; the cancelation or rejection does not
constitute any waiver of these claims.

22. Contractual Language, applicable law and place of
jurisdiction: The contractual language is German. On the
contract Austrian law under exclusion of UN Convention on
Contracts for the International Sale of Goods is applicable.
Place of jurisdiction for any disputes out of the contract is Wels.
K&K is entitled to sue also at the registered office of the
Supplier.

23. Severability clause: If one or more of the provisions above
should be in whole or partially invalid, the validity of the
remaining provisions shall not be affected thereby. The Parties
agree that in such a case the provision shall be supplemented
by valid provisions corresponding to the purpose of the invalid
provision as far as possible.

 

 

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Kellner & Kunz  AG
Kellner & Kunz AG
Boschstraße 37, 4600 Wels
Specialist store Vienna
Specialist store Graz Graz
Specialist store  Wels
Specialist store Wels
Mag. Roland Sperrer
Mag. Roland Sperrer
Head of Purchasing
DI Gerold Mai
DI Gerold Mai
Head of Quality Assurance
Mag. Astrid Siegel
Management Board and Group Compliance Officer
Tanja Hable
Tanja Hable
Social Welfare Service (Diakoniewerk)
Mag. Laetitia Asamer
Mag. Laetitia Asamer
Head of Human Resources
Iris  Fürnhammer, BSc
Iris Fürnhammer, BSc
Human Resources Management
Team RECA E-Business-Days
Team RECA E-Business-Days
Mag. Astrid Siegel
Vorstand und Group Compliance Officer
BSc Iris  Fürnhammer
BSc Iris Fürnhammer
Personalmanagement
Andreas Hopfensperger
Andreas Hopfensperger
Normfest Regional Sales Manager
Thomas Neustifter
Thomas Neustifter
Normfest Regional Sales Manager
Compliance RECA Group Kellner & Kunz AG
Compliance RECA Group Kellner & Kunz AG
Boschstraße 37, 4600 Wels
Gerald Weißenbrunner
Gerald Weißenbrunner
Sales Manager Skilled Trades Business Unit Austria
DI Gerold Mai
DI Gerold Mai
Leitung Qualitätssicherung
Dominic Walchshofer
Dominic Walchshofer
SECO Systems Sales
Gernot Auer
Gernot Auer
Regional Sales Manager Construction Austria
Günther Altenburger
Günther Altenburger
Sales Manager Industry Business Unit Austria
Fachmarkt  Wien
Fachmarkt Wien
Fachmarkt  Graz
Fachmarkt Graz
Fachmarkt  Wels
Fachmarkt Wels
Mag.  Roland  Sperrer
Mag. Roland Sperrer
Einkaufsleitung
Tanja  Hable
Tanja Hable
Diakoniewerk
Mag. Laetitia Asamer
Mag. Laetitia Asamer
Leitung Personalmanagement
Iris  Fürnhammer, BSc
Iris Fürnhammer, BSc
Personalmanagement
Ing. Andreas Gruber, BA
Ing. Andreas Gruber, BA
Head of e-Commerce / e-Business
RECA MAXMOBIL Fahrzeugeinrichtung
RECA MAXMOBIL Fahrzeugeinrichtung
Willibald  Harrer
Willibald Harrer
SECO Manager
Harald Dobesberger-Hofer
Harald Dobesberger-Hofer
Systems Engineering Manager, Assistant Sales Manager Industry Business Unit Austria
Mag. Sieglinde Puß-Inreiter
Mag. Sieglinde Puß-Inreiter
Head of Marketing
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