General terms and conditions
STANDARD TERMS AND CONDITIONS OF SALE OF THE COMPANY GROUP OKE
1.1 Deliveries and services of companies of the company group OKE (“seller”) shall only be effective according to the following Standard Terms and Conditions of Sale unless the parties have provided otherwise in an individual contract (“Individualvertrag”). Our services and deliveries are provided exclusively on the basis of these General Terms of Delivery. We do not recognise conditions of the customer which contradict, differ from or are additional to our own, unless we have expressly consented to their validity in writing. These General Terms of Delivery also apply if we unreservedly conduct the delivery/service to the customer in the knowledge of conditions of the customer which contradict, differ from or are additional to our own.
1.2 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of an offer, invoice or other document of information issued by seller shall be subject to correction without any liability on the part of seller.
1.3 The provisions of these Standard Terms and Conditions of Sale shall exclusively apply to merchants in the course of business only.
2. Orders and specifications
2.1 Offers of seller shall not be binding and are merely invitations to place binding orders with seller.
2.2 A contract is only concluded if an order of buyer has been accepted by seller by issuing a corresponding confirmation of the order. A confirmation of the order which deviates from the order submitted by buyer is deemed to be a new offer of seller.
2.3 Any specification, sales literature, quotation etc. shall be strictly confidential and must not be made available to third parties.
2.4 Buyer shall be responsible for the accuracy of any order submitted by buyer. Buyer shall also be responsible for giving seller any necessary information relating to the goods within a sufficient time to enable seller to perform the contract in accordance with its terms.
2.5 In case the goods are to be manufactured or to be processed by seller in accordance with a specification submitted by buyer, buyer affirms that those specifications are free from any third parties’ rights. Any infringement of a copyright, design, trade mark, the right to use a name or any other infringement of third parties’ rights resulting from seller’s use of buyer’s specifications shall be borne by buyer. In case buyer is responsible for the breach of duty buyer shall indemnify seller from any claim or title. In this case buyer shall indemnify seller from the entire costs of defense or any other losses, damages, costs and expensesresulting from the claims asserted against seller by third parties as a result of the infringement of the above mentioned rights.
2.6 Seller reserves the right to make any changes in the specification of the goods which are required to conform to any applicable statutory requirements or, where the goods are to be supplied to buyer’s specification, which do not materially affect their quality or performance provided that these deviations are customary.
3. Price of the goods
3.1 Prices agreed for delivery within a certain delivery period or for a certain day shall only be valid for such delivery period or day.
3.2 Seller reserves the right, by giving notice to buyer at any time before delivery, to increase the price of the goods in order to reflect an increase in the costs due to any factor beyond the control of seller (such as foreign exchange fluctuation, currency regulation, alteration of duties).
3.3 Except as otherwise stated within the order confirmation of seller, and/or unless otherwise agreed in writing between buyer and seller, all prices are given by seller on an “ex works basis”. In case seller agrees to deliver the goods otherwise than at the seller’s premises, buyer shall be liable to pay seller’s charges for transport, packaging and insurance.
3.4 Prices are exclusive of any applicable value added tax (VAT). VAT will be charged additionally in accordance with the statutory VAT rate valid at the time of issuing an invoice.
4. Terms of payment
4.1 As far as seller’s invoice does not contain any provisions of the contrary the price of the goods shall be due within 30 days of the date of the seller’s invoice.
4.2 Payment shall be effected by interbank payment transaction only; no cheque or bill of exchange will be considered as fulfillment of the payment obligation.
4.3 It may be agreed between the parties that buyer has to deliver a letter of credit issued by his bank (or any bank acceptable to seller). In this individual case it is assumed that any letter of credit will be issued in accordance with the Uniform Customs and Practice for Documentary Credits, 2006 Revision, ICC Publication No. 600.
4.4 In case the payment term is exceeded seller shall be entitled to claim interest in the amount of nine (9) percentage points above the base rate set by the European Central Bank. The calculation and charging of interest will take place at the last trading day of each month.
4.5 Buyer may only set-off with counterclaims which are undisputed or have been affirmed by final and binding court ruling. Buyer may only exercise a right to retention if its counterclaim is based on the same contractual relationship.
5.1 Unless otherwise stated within the order confirmation delivery of the goods shall be made “ex works”.
5.2 The delivery time shall be agreed between the parties. Seller will indicate the delivery time in the order confirmation. The agreed delivery time shall begin with the receipt of the order confirmation, however, not prior to the production of the documents, authorizations and releases to be furnished by buyer. If an agreed delivery date is exceeded, buyer shall, in any case, set seller a reasonable grace period.
5.3 Occurrences beyond seller’s control, in particular cases of Force Majeure, through which the delivery or its transport becomes impossible or unreasonably difficult shall give seller the right to delay the delivery until the hindrance is ceased. These circumstances shall be communicated to buyer by seller without undue delay. Partial deliveries which have already been made shall be considered as an independent transaction; the settlement of the partial delivery may not be refused on account of the quantities still outstanding.In case delivery will be delayed in excess of one month buyer shall, excluding any claims for damages, be entitled to withdraw from the contract with respect to the quantity affected by the default of delivery. Under these circumstances also seller shall be entitled to withdraw from the contract.
5.4 Where delivery of the goods is to be made by seller in bulk, seller reserves the right to deliver up to more or less of 3 % of the quantity ordered without any adjustment in the price. The quantity so delivered shall be deemed to be in the quantity ordered.
5.5 If buyer fails to accept delivery on due date or if buyer culpably infringes other obligations to cooperate seller shall be entitled to claim for reimbursement of any additional expenses. In case of default of acceptance of the goods by buyer seller shall arrange for the storage of the goods at the risk and costs of buyer. If required by buyer seller shall insure the goods at the cost of the buyer.
6. Transfer of risks
6.1 Risk of damage to or loss of the goods shall pass to buyer as follows:- In the case of goods to be delivered otherwise than at seller’s premises, at the latest at the moment when seller handed over the goods to the forwarding agent, the shipper or to any other person instructed with the execution of dispatch.- In case of default of acceptance of the goods by buyer at the moment when seller had tendered delivery of the goods.- In the case of goods to be delivered at the seller’s premises (“ex works”, incoterms 2010) at that time when the seller notifies the buyer that the good are available for collection.
7. Retention of title
7.1 All goods delivered by seller shall remain property of seller (the “retained goods”) until all outstanding claims arising from the business relations including interest and costs have been fully settled.
7.2 Subject to Section 107 paragraph 2 of the German Insolvency Code seller shall be entitled to withdraw from the contract and to demand return of the item purchased in case of a behavior of buyer contrary to the contract, in particular in case of default of payment. After having retrieved the item purchased seller shall be entitled to dispose of the goods otherwise. The receipts shall be count against the account payable by buyer less reasonable realization costs.
7.3 As long as the goods have not been fully paid buyer shall hold the goods as the seller’s fiduciary agent, and shall keep the goods separate from its property and that of third parties, properly stored, protected an insured. Buyer shall also mark the goods as property of seller.
7.4 Buyer shall be revocably entitled to sell the retained goods in a proper course of business. All claims and rights of buyer resulting from the resale of the retained goods and business relations to subsequent buyers shall already now be assigned to seller, no matter whether the retained goods are resold, unprocessed or processed. In case the retained goods are sold by buyer together with other goods which are not seller’s property, the assignment of buyer’s purchase price claim shall only extend to the value of the retained goods.
7.5 Buyer shall be revocably entitled to collect all debts arising of the resale of the retained goods as long as buyer meets its payment obligations. The power to collect debts and the right to process the retained goods shall expire, even without an express revocation, if and at the time buyer stops its payments, becomes in default with its payment obligations, in the event of an executed attachment or if a petition for opening of insolvency proceedings has been filed. Any outstanding amounts assigned to seller which buyer will receive thereafter shall promptly be accrued in a special account with the separate designation to be indicated by seller. Upon request of seller, buyer shall inform seller without undue delay in writing of the debtors of the assigned claim(s) and notify the debtors of the assignment of the claims to seller. Seller shall be entitled to inform buyer’s purchaser about the assignment and to collect the accounts receivable.
7.6 The retention of ownership shall also extend to any uniform item resulting from a combination or inseparable intermixture of the retained goods with other materials. If the retained goods are combined or inseparably intermixed with other materials not owned by seller, seller shall acquire co-ownership in the uniform item in the ratio of the invoice value of the retained goods to the invoice value of other materials not owned by seller. If the combination or intermixtures is effected in a way that any material of buyer is considered as the main thing, then buyer already now assigns to seller the co-ownership share specified in the previous sentence. Furthermore, the provisions of this section 7 concerning retained goods shall apply mutatis mutandis to the uniform item resulting from the combination or intermixture of the retained goods.
7.7 Any processing or transformation of the retained goods by the purchaser shall be deemed effected for seller with the consequence that seller shall directly acquire title to the newly manufactured items together with materials not owned by seller, seller shall acquire co-ownership in the newly manufactured items in the ratio of the invoice value of the retained goods to the invoice value of the other processed materials not owned by seller. Furthermore, the provisions of this section 7 concerning retained goods shall also apply mutatis mutandis to the newly manufactured items resulting from the processing or transformation of retained goods.
7.8 Buyer shall be considered as a depository for seller in respect of seller’s emerging property or coownership share, respectively.
7.9 If third parties take up steps to pledge or otherwise dispose of the goods – also after combination, intermixture, processing or transformation - as well as any other impairment of the property rights of seller in the retained goods - buyer shall immediately notify the seller in writing in order to enable the seller to seek a court injunction in accordance, with Section 771 of the German Code of Civil Procedure. If buyer fails to do so in due time he will be held liable for any damages caused.
7.10 The seller shall on demand of buyer release any part of the collateral if the realizable value of the collateral held in favor of seller exceeds the relevant total claim of seller to be secured by more than 10 %. It is to the seller’s decision to release those parts of the collateral suitable for him.
8. Warranties and exclusion clauses
8.1 Warranty claims may only be made if buyer has met his obligation to examine the goods and to give notification of defects as required by Section 377 of the German Commercial Code.
8.2 Seller warrants that all items delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications, and, to the extent that detailed designs have not been furnished by buyer, will be free from design defects and suitable for the purposes intended by the buyer.
8.3 Seller shall not be liable for the goods being fit for a particular purpose unless otherwise agreed upon, to which the buyer intends to put them.
8.4 Seller shall not be liable in respect of any defects in the goods arising from any design or specification supplied by buyer.
8.5 The warranty does not extend to parts, materials or equipment manufactured by or on behalf of buyer unless such warranty is given by the manufacturer of these parts to seller. The warranty of seller does not cover defects in or damage to the products which are due to improper installation or maintenance of buyer or any other misuse of buyer contrary to any directions given by seller.
8.6 Seller shall be liable in accordance with the statutory regulations for damages due to harm of life, bodily injury or harm to health, in case of intent or gross negligence of seller and/or its legal representatives and/or an auxiliary person of seller as well as for damages which are covered by a guarantee or assurance granted by seller. In case of slight negligence seller shall only be liable for typical foreseeable damages and only in case of a breach of a fundamental contractual duty by seller and/or its legal representatives and/or an auxiliary person of seller whose performance is required to achieve the aim of the contract and on which fulfillment the contractual partner could reasonably rely on. Any liability under the German Product Liability Act remains unaffected hereby.
8.7 The limitation of liability of this section 8 shall also apply in case buyer will claim for reimbursement of costs instead of compensation of damages.
8.8 All claims of buyer based on defects become time-barred one year from the date of delivery, unless longer periods are mandatorily prescribed by statute.
8.9 If a delivery is defective, seller shall, at its own discretion, either remedy the defect or make a new delivery which is free from defects (supplementary performance). Opportunity to make such supplementary performance within a reasonable grace period shall be given to seller in any case. The necessary costs and expenses incurred with the supplementary performance, in particular transportation costs, costs of materials and labor costs, are borne by seller, to the extent such costs and expenses have not increased due to a shipment of the delivery from the place of performance to another place.
8.10 In the event seller’s supplementary performance in form of a replacement delivery (“Ersatzlieferung”) fails or the supplementary performance in form of rectification of defects (“Nachbesserung”) fails after seller’s second attempt, buyer shall be entitled to withdraw from the contract or to reduce the purchase price.
9. Miscellaneous clauses
9.1 Seller reserves the right to improve or modify any of the products without prior notice, provided that these deviations are customary.
9.2 These Standard Terms and Conditions of Sale shall not be assigned or transferred by either party except with the written consent of seller.
9.3 Each party shall be responsible for all its legal, accountancy or other costs and expenses incurred in the performance of its obligation hereunder.
10. Choice of law; place of jurisdiction; final provisions
10.1 The relations between seller and buyer shall be subject exclusively to the law of the Federal Republic of Germany, with the exception of the conflict of law rules. Application of the UN Convention on Contracts for the International Sale of Goods is excluded.
10.2 Place of venue for any dispute in connection with the contractual relationship between seller and buyer shall be the place of business of seller, provided that the contractual partner is a merchant.
10.3 Seller shall have the right to bring a claim before a court at buyer’s principal place of business or at his discretion before any other court being competent according to any national or international law.
10.4 In case of any dispute in connection with the provisions of these Standard Terms and Conditions of Sale only the German version of the Standard Terms and Conditions of Sale shall be decisive and shall be the only version binding between the parties.
10.5 Should any of the provisions of these Standard Terms and Conditions of Sale be invalid or will become so, the remaining provisions shall stay effective.
General Terms and Conditions of Purchase of the OKE Group
1.1 These standard terms and conditions apply exclusively to the purchase or order of products or goods from the OKE Group (hereinafter referred to as OKE), unless they are amended with the express written consent of both parties. These conditions apply even if OKE receives deliveries of goods from the seller and the seller has conflicting conditions of sale that do not form the object of the contract.
1.2 Any agreement between the seller and OKE is only legally valid when agreed in writing by both parties. Any additional terms and conditions or contractual clauses introduced by the seller will be considered as rejected unless OKE agrees to the additional provisions in writing.
1.3 These terms and conditions will form the basis of all future individual contracts between OKE and the seller - with the exclusion of conflicting general contractual terms and conditions.
1.4 OKE places orders solely on the basis of its own order terms and conditions; OKE does not recognize conflicting, deviating or additional terms and conditions of the seller, unless OKE has expressly agreed to their validity in writing. Tacit acceptance of the seller's deliveries or services or payments by OKE does not imply acceptance of conflicting, deviating or additional terms and conditions of the seller.
1.5 Supply contracts or call-off orders and any other legal transactions concluded between OKE and the seller as well as any additions or changes to such documents must be in writing. Orders and the aforementioned legal transactions may take place via remote data transmission (RDT), insofar as this is customary practice between the parties. Otherwise, these General Terms and Conditions of Purchase only apply to companies within the meaning of Section 310 Paragraph 1 BGB (German Civil Code).
2. Conclusion of the Contract
2.1 A contract of sale is only considered to be concluded when OKE has made a written declaration of acceptance after receipt of an offer and within the period of validity of the offer.
2.2 Dimensions and weights, quantities, prices, other descriptions and other data as stated in catalogues, circulars, advertisements or price lists are only approximate and are not binding upon OKE unless explicitly included in the contract. OKE reserves ownership rights and copyrights to such data, as well as to illustrations, drawings, calculations and other documents; they may not be made available to third parties without OKE's express written consent. They are to be used exclusively for the purpose of producing OKE's order; after completion of the order they must be returned to OKE unprompted. They must not be disclosed or given to third parties.
2.3 OKE is entitled, within reason, to request changes to the design and execution of the item to be delivered. The consequences of such changes, in particular increased or reduced costs or changed delivery dates, must be determined appropriately by both parties. Any changes made by the seller require OKE’s prior written approval.
2.4 The seller must send OKE a written order confirmation within 10 working days after the order date. If the seller does not fulfill this obligation, OKE is entitled to cancel the order without giving reasons.
2.5 If insolvency proceedings or other judicial or extrajudicial proceedings are opened against the assets of the seller, OKE is entitled to withdraw from any part of the contract that has not yet been fulfilled without giving reasons.
3. Purchase Price
3.1 The price stated in the order is binding and is based on the "delivered duty paid" arrangement.
3.2 The agreed purchase price includes free delivery to premises including packaging, cargo insurance taken out by the seller and statutory VAT, which is listed separately on invoices.
3.3 Invoices can only be processed if they meet the invoice specifications in the order and include the order number stated there; the supplier is responsible for all consequences arising from non-compliance with this obligation unless the supplier can prove that it is not responsible.
3.4 The seller must send written notification of any price reductions and credit them to OKE. If OKE has already performed its service it can reclaim it, whereby the seller waives the right to make any objections or pleas of any kind.
4. Terms and Conditions of Payment
4.1 Payment and delivery must be made in the manner agreed by the parties in each individual case. If no payment method is agreed in an individual case, payment must be made within 30 days after delivery and receipt of the invoice for a 3% discount, or within 60 days at the full price. Payment deadlines for early deliveries are based on the actually agreed delivery date.
4.2 All payments made by OKE are expressly subject to proper delivery on the part of the seller and to correct calculations and pricing in the invoice.
4.3 We are entitled to offset or hold back the amount due to the extent permitted by law.
5. Delivery Terms and Conditions
5.1 Delivery must take place on the delivery date specified in the sales contract or order.
5.2 The seller must notify OKE immediately in writing if delivery will be delayed.
5.3 OKE's shipping instructions must be followed; in particular, all shipping documents, letters and invoices must include OKE's order and item numbers.
5.4 If the seller makes a delivery before the agreed delivery date, it bears all associated costs, including for storage by OKE. If OKE is unable to accept the early delivery, it is entitled to refuse to accept it.
5.5 If the seller is late with delivery, OKE is entitled to demand in writing delay compensation to cover any additional costs incurred (e.g. for transport, insurance, storage); however this cannot be more than 10% of the total contract value.
5.6 A contractual penalty for delayed delivery may be agreed between the parties for individual contracts. Explicit reference is hereby made to Point 7.3 of this agreement.
5.7 Any of the seller's agents and workers and other representatives who carry out work at OKE's factory premises for the purpose of fulfilling the object of the contract are obliged to observe OKE's current work regulations. Liability for accidents that befall the aforementioned persons at OKE's factory premises is excluded as long as such accidents are not caused by an intentional or grossly negligent breach of duty by the legal representatives of OKE or their agents and workers.
6. Transfer of Risk
6.1 Unless otherwise specified in the individual supply contract, the time of transfer of risk is determined in accordance with the Incoterms of the International Chamber of Commerce (Incoterms 2010).
6.2 If there is no agreement regarding the transfer of risk, the "Delivered Duty Paid" (Incoterms 2010) clause applies.
7.1 Subject to §377 HGB (German Commercial Code), OKE is entitled to inspect the delivery immediately upon receipt for any obvious or visible defects and to accept it only after inspection. The seller bears the costs of any justified complaints and of the delivery of replacements.
7.2 The dimensions, weights and quantities ascertained during the incoming goods inspection are binding upon both contracting parties. In the event of significant deviation, OKE will notify the seller within 14 days after the incoming goods inspection.
7.3 OKE reserves the right to claim an individually agreed contractual penalty even when such claim is not expressly asserted upon acceptance of the delivery.
8. Warranty for Defects
8.1 The seller warrants that the goods delivered are free of defects, have the promised characteristics and meet OKE's requirements.
8.2 OKE must inspect the goods for any deviations in quality or quantity within a reasonable period of time; complaints must be sent to the contractor in writing without delay as soon as problems are identified in the normal course of business. The contractor waives the right to object to delayed notification of defects.
8.3 OKE is entitled to statutory claims for defects without restriction; OKE is always entitled to demand either remedy of defects or delivery of a new item from the supplier at its discretion. OKE expressly reserves the right to claim damage compensation, in particular the right to claim damage compensation in lieu of performance.
8.4 OKE is entitled to remedy defects itself at the supplier's expense if the supplier is late with rectification.
• All replacement deliveries or repairs are also covered by the warranty for defects as set out in the General Terms and Conditions of Purchase.
• The seller is liable without restriction for transportation, travel and labour costs for replacement deliveries, repairs and rectifications to the same extent as for the original delivery item.
• The seller agrees to indemnify OKE against third-party claims that a third party may have against OKE due to product liability and that arise from a defect or error in the delivered product. This indemnification also explicitly applies to reasonable costs associated with a recall. In that regard, the seller commits to have appropriate product liability insurance.
• If, following the test procedure specified in the order, OKE determines that the maximum permissible number of defects has been exceeded, OKE is entitled to assert claims for defects in respect of the entire delivery or to inspect the entire delivery for defects and errors at the seller's expense.
8.5 The statute of limitation is 36 months from the transfer of risk, unless the mandatory provision of Sections 445b, 478 Paragraph 2 BGB intervenes.
8.6 Other mandatory provisions of delivery recourse remain unaffected.
8.7 No Violation of Legal Norms
The seller warrants that the performance of individual purchase contracts will not result in any legal violations, in particular with regard to compliance with laws, regulations or other provisions of any official authority.
8.8 Warranty for Defects of Title
The seller warrants that all objects subject to purchase contracts are in its full ownership and that there are no conflicting third-party rights (such as liens, other creditors' rights based on the assignment of claims or other credit securities, sale of claims, hire purchase, conditional sale, etc.).
9. Product Liability – Indeminifcation – Third Party Liability Insurance Coverage
9.1 Insofar as the supplier is responsible for product damage, the supplier must indemnify OKE against any third-party claims upon first request to the extent that the cause is within the scope of the supplier's control and organisation and the supplier is liable to third parties.
9.2 Within the context of the supplier's liability for claims in the sense of paragraph (1), the supplier must also reimburse any costs arising from or associated with a recall initiated by OKE in accordance with Sections 683, 670 BGB or Sections 830, 840, 426 BGB. OKE will - as far as possible and reasonable - inform the supplier in advance of the content and scope of any such recall and give the supplier the opportunity to make comments.
9.3 OKE is responsible for providing the relevant competent authority with the necessary information in accordance with the regulations of the German Product Safety Act and in coordination with the supplier.
9.4 The supplier commits to take out and provide evidence of a public liability insurance policy that covers damages due to extended product liability as well as recall costs, with coverage of €10 million - lump sum - per personal injury/property damage incident for the duration of this contract, i.e. until the expiry of the statute of limitations for defects; if OKE is entitled to any other claims for damages, these remain unaffected.
10. Retention of Title - Provision - Tools - Confidentiality
10.1 If OKE provides parts to the supplier, OKE reserves ownership of the parts. Any processing or remodeling carried out by the supplier is done on OKE's behalf. If the goods subject to retention of title are processed together with other objects not belonging to OKE, OKE acquires joint ownership of the new item in proportion with the value of the item belonging to OKE (purchase price plus VAT) compared to the value of the other processed objects at the time of processing.
10.2 If the item provided by OKE is irreversibly combined with other objects not belonging to OKE, OKE acquires joint ownership of the new item in proportion with the value of the item subject to retention of title (purchase price plus VAT) compared to the value of the other combined objects at the time of combination. If the combination takes place in such a way that the supplier's item is regarded as the principal item, the supplier hereby agrees to transfer joint ownership to OKE in proportion with the value of the item provided; the supplier holds the sole or joint ownership for us.
10.3 OKE reserves ownership of tools; the supplier must use the tools exclusively for the production of the goods ordered by OKE. The supplier must also, at its own expense, insure the tools belonging to OKE at their replacement value against fire, water damage and theft. The supplier simultaneously assigns all claims for compensation under this insurance policy to OKE and OKE hereby accepts the assignment. The supplier must carry out any required maintenance and inspection work and all repairs of OKE's tools at its own expense and in a timely manner. The supplier must notify OKE of any malfunctions immediately. If the supplier culpably fails to do so, damage claims remain unaffected.
10.4 If the security rights arising from paragraph (1) and/or paragraph (2) exceed the purchase price of all unpaid goods subject to retention of title by OKE by more than 10%, OKE must release the security rights of its choice at the supplier's request.
10.5 The supplier must keep all illustrations, drawings, calculations, and other documents and information strictly confidential. They may only be disclosed to third parties with the express consent of OKE. This confidentiality obligation remains valid after the fulfilment of this contract. However, it expires if and to the extent that the manufacturing know-how contained in the illustrations, drawings, calculations and other documents provided becomes generally known, or the supplier was demonstrably already aware of it at the time it was shared in the sense of clause 1.
11. Property Rights
11.1 The supplier warrants that no third-party rights within the Federal Republic of Germany are infringed upon in connection with or due to the delivery.
11.2 If OKE is held liable by a third party for rights infringement, the supplier must indemnify OKE against such claims upon first written request.
11.3 In the event of third-party damage claims, the supplier is entitled to prove that it is not to blame for the infringement of the rights of the third party. OKE is not entitled to enter into any agreements with third parties without the supplier's consent, and in particular to agree on a settlement.
11.4 The supplier's obligation to indemnify OKE applies to all unavoidable expenses arising from or in connection with the third-party claim, unless the supplier proves that it is not responsible for the breach of duty underlying the breach of property rights.
11.5 The statute of limitations for such claims is three years, starting from the transfer of risk.
12. Place of Jurisdiction, Place of Performance
12.1 If the contractual partner is a merchant, the place of jurisdiction is the registered office of OKE in Hörstel.
12.2 OKE is, however, also entitled to sue the contractual partner at its general place of jurisdiction.
12.3 Unless otherwise stated in the order, the place of fulfillment and performance is OKE's registered office or the delivery address.
12.4 German law applies to the exclusion of CISG.
13.1 In the event that force majeure in accordance with Clause 2 renders a contracting party unable to fulfill its obligations, it is released from those obligations. The other contracting party will be released from its counter-performance obligations to the extent that and for as long as the first contracting party is prevented from fulfilling its obligations by force majeure.
13.2 Force majeure is an unforeseeable external event which cannot be averted at all or cannot be averted in good time even when taking reasonably expected care and using technically and economically reasonable methods. Such events include in particular natural disasters, terrorist attacks, power outages, telecommunications failures, strikes and lockouts - insofar as the lockout is legal - or legal provisions or measures enforced by the government or courts or authorities (irrespective of their legality).
13.3 The affected contractual partner must notify the other contractual partner immediately and provide information regarding the reasons for and expected duration of the force majeure. The affected contractual partner must endeavour to ensure that it can fulfill its obligations again as quickly as possible using all technically and economically reasonable means.
13.4 The contracting parties shall cooperate as much as possible in the rectification of errors and malfunctions.
14.1 This agreement replaces all previous verbal or written agreements between the parties regarding these business areas; previous agreements become invalid upon the signing of these General Terms and Conditions of Purchase.
14.2 The rights to this relationship may not be assigned by either party without the prior written consent of the other party.
14.3 Each party bears its own costs incurred in connection with the performance of this contract.
14.4 Requests, orders, order confirmations and any other correspondence from OKE to the seller may not be used for promotional purposes. This does not apply if OKE has given prior written consent to the promotional use and the form of the promotional material has been presented clearly by the seller and approved in writing by OKE.
15. Severability Clause
15.1 Should individual provisions of this agreement be wholly or partly invalid or void, or should they become wholly or partly invalid or void due to a change in legislation or the adjudication of a supreme court or otherwise, or should this agreement prove to contain loopholes, the parties agree that the other provisions of this agreement will remain unaffected and valid.
15.2 In such cases, the parties undertake, in good faith , to replace the invalid provision with a valid one which comes as close as possible to the meaning and purpose of the invalid provision, whereby it can be assumed that the parties would have agreed such a provision at the time of conclusion of the agreement if they had known or foreseen the invalidity or nullity of the original provision. The same applies if this agreement contains a loophole.
Updated: April 2018