T&C
General conditions of purchase
General terms and conditions of purchase for KHS GmbH as of July 2024
I. Applicability
1. These general terms and conditions of purchase (hereinafter “Purchasing Terms”) are valid for all orders in relation to contractual purchasing, work, work and materials or service goods and services (hereinafter “Contractual Supplies”) and are exclusively applicable to business transactions with businesses within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law (hereinafter “Contractor”). These Purchasing Terms shall apply for the entire duration of our business relationship with the Contractor even in the event that we make no explicit reference to these Purchasing Terms in future purchase orders to the Contractor.
2. These Purchasing Terms shall apply exclusively. Contradictory general terms and conditions of business and purchase of the Contractor or a third party or those that deviate from or supplement these Purchasing Terms or the statutory provisions are excluded and shall only apply if and insofar as we have explicitly agreed to their applicability in writing. This shall also apply in particular if we have not raised any explicit objection to the applicability of such contradictory or deviating general terms and conditions of business and purchase or have accepted or paid for the Contractual Supplies without reservation.
3. Individual agreements (such as master supply) shall take precedence over these Purchasing Terms. Our quality guideline for suppliers, which we have made available to the Contractor separately, shall additionally apply to these Purchasing Terms.
4. Standard trade terms shall be interpretated in accordance with version of the Incoterms as valid on conclusion of the contract.
II. Conclusion of a contract, subcontracting, reservation of consent
1. Conclusion of a contract between the Contractor and ourselves requires that a written purchase order or written order confirmation is issued by us. Purchase orders/call-off orders may also be placed electronically as an SAP order.
2. If our order is not preceded by a binding offer from the Contractor, we are entitled to cancel the order if we have not received a confirmation of order from the Contractor within five (5) days after receipt of an order. Insofar as the content of the Contractor’s order confirmation deviates from our order, the Contractor must specifically emphasize this in its order confirmation; such deviations shall only be deemed part of the contract if we expressly accept these in writing. A contract shall also be concluded between us and the Contractor if the Contractor provides the Contractual Supplies specified in an order without reservation.
3. Offers from the Contractor are binding declarations of intent unless otherwise stated therein. We can accept an offer from the Contractor for conclusion of a contract until the expiry of fourteen (14) days after its submission by issuing a written order, provided that the Contractor does not specify a longer acceptance period. The Contractor is obliged to honor its offer until the expiry of this period (period of offer validity). Our silence does not establish any reliance on a conclusion of a contract. Should our acceptance of an offer from the Contractor arrive late, the Contractor shall immediately notify us of this fact in writing.
4. Should we make reference to a specific intended use in an order, the Contractor is obliged to notify us in writing prior to conclusion of a contract should the Contractual Supplies specified in an order not be suitable without limitation for the intended use stipulated in the order.
5. Subsequent changes to an order require our written confirmation. Within the framework of what is reasonable to expect of the Contractor, we can request changes to the Contractual Supplies in design and workmanship after conclusion of a contract, whereby the effects, in particular with respect to additional and reduced costs as well as delivery dates, are to be regulated appropriately and in writing by mutual agreement.
6. The submission of offers, design studies, etc., to us shall be at no cost and without obligation to ourselves.
7. The Contractor may only subcontract a third party (“Subcontractor”) with our prior written consent. If we have given our consent, the Contractor must ensure that it imposes upon its Subcontractors the existing obligations pursuant to the contract and these Purchasing Terms.
III. Prices and terms of payment, ownership
1. Prices are binding. Prices include everything the Contractor must effect to fulfill its duty to deliver and/or perform to/at the agreed place of performance, in particular but not exclusively packaging, shipping, freight, unloading, insurance, customs duties, taxes, installation costs and other ancillary costs, unless otherwise agreed in writing.
2. Prices are fixed prices. The statutory value added tax valid at any given time is to be disclosed separately.
3. Irrespective of further statutory provisions, the Contractor’s claim to payment shall only be due for payment within thirty (30) days net (i) on full receipt of the Contractual Supplies by us or, if the Contractual Supplies is subject to Acceptance, following Acceptance, and (ii) after receipt of a properly issued, verifiable invoice. We are entitled to deduct a 3% discount on payment within fourteen (14) days net. Should, in exceptional cases, we accept partial deliveries or partial services, the discount periods shall not be initiated by the same. Payments via bank transfer shall be considered as having been made on time if our transfer order is received by our bank before the expiry of the period for payment; we shall not be responsible for delays that are caused by the banks involved in the payment transaction.
4. We do not owe any maturity interest. In the event of default in payment the statutory provisions shall apply.
5. All invoices issued by the Contractor must comply with the statutory provisions and include the following minimum information: (i) KHS order number, (ii) the responsible contact person with us and with the Contractor, (iii) order item, (iv) quantity and (v) shipping data. Should one or more of the above details be missing and should processing by us in the course of normal business transactions thus be delayed, the payment periods given in (3) shall be extended by the period of the delay.
6. Our payments neither constitute an Acceptance of the Contractual Supplies nor an acknowledgment of the invoice nor acknowledgment of the Contractual Supplies as being free of defects and/or punctual.
7. We are entitled to rights of offset and retention within the limits of statutory regulations. In particular, we are entitled to withhold payment as long as we still hold claims arising from incomplete or defective Contractual Supplies vis-à-vis the Contractor.
8. The Contractor may not transfer its contractual claims in whole or in part to third parties without our written approval. Section 354a of the German Commercial Code (HGB) shall remain unaffected thereby.
9. The Contractor is not authorized to refuse remedy of defects to which it is obligated until full payment.
10. The Contractor is only entitled to the right of offset or retention in the case of counterclaims which have been established with legal effect or which are undisputed.
11. We shall acquire ownership of the Contractual Supplies at the time of handover of the same at the contractually agreed place of delivery unless otherwise agreed. This shall also be the case if the Contractual Supplies requires an Acceptance by us. If, in the exceptional case, a retention of title in favor of the Contractor has been agreed, this has only the effect of a simple retention of title. We shall not accept a prolonged or extended retention of title. Ownership of the Contractual Supplies shall pass from the Contractor to us at the latest on payment of the price. We may, in the ordinary course of business and on our behalf, mix, process or combine the Contractual Supplies delivered under retention of title and also resell the same.
IV. Execution of the Contractual Supplies
1. The Contractor shall bear the risk of procurement for its Contractual Supplies unless otherwise agreed in writing in individual cases.
2. Delivery of the Contractual Supplies shall be made on the basis of DAP to the place of delivery (“Place of Delivery”) named in the contract unless otherwise agreed. If the Place of Delivery is not stipulated and if nothing else has been agreed, the Place of Delivery is the KHS World Logistics Center, c/o LFP Logistics for Filling and Packaging GmbH, Kaltbandstrasse 1, 44145 Dortmund, Germany. The Contractor shall include with its deliveries all documentation owed under the contract and other documents owed free of charge. For the provision of certificates of origin and (long-term) supplier declarations, the regulations in Section XIII (3–6) take precedence.
3. Deliveries and the corresponding delivery documents must include the KHS order number so that a clear identification of the delivery and allocation to the KHS order number is possible.
4. Deliveries must be securely packaged by the Contractor so as to avoid typical shipping damage. The Contractor is obliged to insure the deliveries for transport.
5. Partial deliveries of goods/partial rendering of services is not permitted unless we have expressly consented thereto. In the event we have given our consent, partial deliveries of goods/partial rendering of services must be identified as such.
6. The Contractor shall ensure, at its own cost and on its own responsibility, that the Contractual Supplies (particularly also with regard to their intended use) always comply with the requirements and obligations of the respective applicable laws, statues, ordinances, guidelines, administrative regulations and other pertinent statutory requirements and provisions, including technical directions for implementation and use, requirements of authorities, employers’ liability insurance associations and professional associations, and accident prevention, work, environmental and other safety and protection regulations that apply to the manufacture, import/export, circulation, sale and use of the Contractual Supplies at their final place of destination (“Applicable Regulations”). In addition to adhering to and complying with the Applicable Regulations, the Contractor is also responsible at its own expense, where required, for any approval, registration, classification and labeling of the Contractual Supplies, the creation of safety data sheets and declarations of conformity, communication of potential hazards and substance-related directions for use with its users, implementation of studies and toxicological examinations, assessment of substances and the like.
7. The Contractor and we are aware that the Contractual Supplies may be subject to export and import restrictions. In particular, authorization may be required or the use of the Contractual Supplies may be subject to restrictions outside Germany. The Contractor shall comply with applicable export and import control regulations, customs and foreign trade provisions and appropriate relevant laws, ordinances and requirements (“Foreign Trade Regulations”) and will ensure that all of the import and export licenses and/or approvals required for the performance of its obligations are obtained.
8. The Contractor must without delay and in writing provide us with all information and data that we or our customers require to satisfy all Foreign Trade Regulations.
9. Performance of the contract by us is subject to there being no impediment to its fulfillment owing to foreign trade law regulations or embargoes and/or other sanctions or statutory provisions comparable to the same that hinder performance.
10. Where necessary, the Contractual Supplies shall be marked with the CE mark and/or include an EU declaration of conformity or declaration of incorporation.
11. The provisions of Section XV shall also apply.
V. Delivery dates and periods
1. Agreed delivery dates and periods or completion dates and periods for the Contractual Supplies (“Delivery Dates”) are binding and an essential part of the contract. The decisive factor for compliance with the delivery date is the handover of the Contractual Supplies to us at the agreed Place of Delivery on the respective Delivery Date. Should the Contractual Supplies be subject to Acceptance, the respective Delivery Date is adhered to when the Contractor provides us with the Contractual Suppl iesin accordance with the contract and ready for acceptance on the Delivery Date. Early deliveries are not permitted unless we have agreed to an earlier delivery in writing in advance.
2. The Contractor is obligated to notify us immediately if it becomes evident that it cannot keep to the agreed Delivery Dates. In doing so, the Contractor must inform us of the grounds for the delay and the prospective duration of the delay.
3. We are entitled to request a partial delivery by the Contractor without additional shipping costs being charged should this reduce the extent of any delivery delays, unless such a partial delivery is unacceptable to the Contractor. The obligation to adhere to Delivery Dates shall remain unaffected.
4. If an agreed Delivery Date is not met, our rights – in particular to claim damages and to withdraw from the contract – shall be determined according to the statutory provisions.
5. If the Contractor fails to adhere to Delivery Dates or other periods and deadlines agreed upon in the contract and the Contractor is responsible for this, we are entitled to claim a contractual penalty amounting to 0.3% of the agreed net price for the delayed Contractual Supplies to a maximum of 5.0% of the same per commenced calendar week of the delay. Further claims for damages shall remain unaffected. However, contractual penalties already rendered shall be credited to the above.
6. The unconditional acceptance of the delayed delivery shall not be construed as a waiver of the contractual penalty or further claims to damages to which we are entitled; this e owed by the Contractor under a respective contract has been paid in full.
7. The Contractor may only claim the absence of necessary duties of cooperation to be fulfilled by us if it has sent an advance reminder to this effect and the duties have not been performed within a reasonable period.
8. Force majeure at our company, labor disputes, unrest or other circumstances beyond our sphere of influence that cause disruptions to our production processes or those of our customers shall release us for their duration and to the extent of their effects from the duties of acceptance or to pay damages.
VI. Acceptance, transfer of risk
1. Contractual Supplies only require acceptance if this has been expressly agreed between us and the Contractor or this requirement arises from statutory provisions (“Acceptance”).
2. Unless otherwise agreed, we can declare Acceptance – irrespective of further statutory provisions – up to fourteen (14) days after receipt of the Contractual Supplies pursuant to the contract. Commissioning on a trial basis or the use of the Contractual Supplies does not in itself constitute Acceptance. Partial Acceptance is categorically excluded. In all other respects, our rights and obligations during Acceptance are governed by the statutory regulations.
3. If Contractual Supplies include deliveries (i.e. without installation and assembly), the risk is transferred to us upon handover at the contractually agreed Place of Delivery. For Contractual Supplies that also include installation and assembly, the risk is transferred to us upon Acceptance of the Contractual Supplies or, if we are not obliged to declare Acceptance, upon handover following installation and assembly.
VII. Spare and wear parts
1. The Contractor undertakes to offer us any suitable spare and wear parts for its Contractual Supplies on customary market terms for a period of at least ten (10) years following delivery.
2. Should the Contractor realize that it cannot supply us with suitable spare and wear parts over a period of ten (10) years on the terms specified in (1), it must immediately notify us of this fact to enable us to place orders for spare and wear parts in good time.
VIII. Notice of defects
1. Our obligation to inspect the Contractual Supplies is limited to checking whether the delivered number of items corresponds with the quantities respectively ordered, whether the delivered items show any obvious, externally visible signs of shipping damage and whether the delivery and service item correspond to the order. We must notify the Contractor of any such defects as soon as these are discovered in the ordinary course of business. The Contractor thereby waives the right to object based on violation of the obligation to inspect according to Section 377 (1) HGB. A notice of defects shall therefore be deemed in time if it is dispatched within five (5) working days of delivery to us and is subsequently received by the Contractor. In the case of other obvious defects and concealed defects, this period shall commence from the discovery thereof. We have no obligation to inspect and give notice of defects above and beyond (1).
2. If the Contractual Supplies are subject to Acceptance, there is no obligation to inspect.
3. The Contractor will be charged a flat fee of net €75.00 per justifiable defect for processing costs. Reservation is made for assertion of further damages.
IX. Claims for defects
1. The Contractor shall guarantee that the Contractual Supplies are free of material defects and defects in title. In all respects, the Contractual Supplies must meet the contractually agreed properties, comply with the pertinent laws, guidelines and standards and the respective current state of technology and scientific progress, meet the specifications of our quality guidelines for suppliers, be of a high standard in their kind and quality, meet the requirements arising from the contract and be suitable for the respective application and place of operation.
2. Should the Contractual Supplies be defective, we are entitled without limitation to assert the statutory claims and rights for defects. The Contractor is obliged in particular to rectify all defects that arise during the warranty period at our option and within a reasonable period set by us by remedying the defect (rectification) or supplying an item that is free of defects (replacement).
3. Should the Contractor not meet its obligation to rectify the defect on our first notification thereof or should the remedy of the defect fail, we can remove the defect ourselves without further notification and without setting a further deadline and demand reimbursement of the costs required to do so or an appropriate advance payment from the Contractor.
4. A deadline does not have to be set pursuant to (2) if subsequent fulfillment by the Contractor is unreasonable for us (because of particular urgency, a threat to operational safety or the imminent risk of disproportionate damage, for example), if the defect is insignificant or the deadline is dispensable; we shall inform the Contractor immediately of such circumstances, if possible in advance.
5. The Contractor must bear the costs and expenses necessary for subsequent fulfillment, in particular shipping costs, travel costs, labor and material costs and retrofitting costs. The Contractor shall also bear these costs even if it transpires that there was in fact no defect. The place of subsequent fulfillment is the final place of destination of the Contractual Supplies.
6. In all other respects, we are entitled to reduce the purchase price or withdraw from the contract according to the statutory regulations in the event of material defects or defects in title. Pursuant to the statutory regulations, we also have the right to claim for damages and reimbursement of expenses.
7. The provisions given in Section XIV shall additionally apply to defects in title.
8. Our claims shall become time-barred thirty-six (36) months following delivery to us pursuant to the contract or on Acceptance, provided that the Contractual Supplies are subject to Acceptance; longer statutory prescription periods shall remain unaffected.
9. In the event of subsequent fulfillment by replacement and/or reengineering or rectification, the prescription period shall recommence from the delivery of the replacement and/or reengineering or completion of rectification work. A notice of defect issued by us within the prescription period shall suspend the period of prescription until we have reached an agreement with the Contractor on the remedy of the defect and any consequences thereof; however, this suspension shall terminate six (6) months after final rejection of the notice of defect by the Contractor. The prescription period for claims for defects shall come into effect at the earliest three (3) months after the end of suspension but in no case prior to expiry of the prescription period stated in this paragraph (9).
X. Manufacturer’s liability and indemnity
Without prejudice to other claims, the Contractor shall indemnify us against claims resulting from defective Contractual Supplies, in particular those resulting from product and manufacturer’s liability, insofar as the Contractor is responsible for the defect in the Contractual Supplies. In this respect, the Contractor is also bound to reimburse us for all costs and expenses caused by us being obliged, due to defective Contractual Supplies of the Contractor, to recall a product, carry out an activity in the field, issue a warning or inform our customers or a third party in any other manner owing to a defect in the Contractor’s Contractual Supplies, unless the Contractor is not responsible for the defect.
XI. Insurance
Irrespective of any further claims for damages, the Contractor is also obliged to take out employer’s and product liability insurance within reasonable bounds. The Contractor shall be required to produce a corresponding cover note from the insurance company at our request.
XII. Confidentiality
1. The Contractor is obliged to keep secret from third parties all information received from us in the context of or in conjunction with the performance of Contractual Supplies, in particular technical, operational and commercial information, know-how and trade secrets (“Confidential Information”), unless the Confidential Information (i) is or shall become generally known without the Contractor having violated these duties of confidentiality, (ii) was verifiably and lawfully known to the Contractor prior to its receipt and without a duty of confidentiality, (iii) is lawfully made known to the Contractor by third parties without a duty of confidentiality or (iv) we have consented in writing to the disclosure of the Confidential Information in advance. The duty of confidentiality shall apply irrespective of how the Confidential Information was made accessible, whether orally, in writing or in any other manner. The duty of confidentiality also applies to designs, drawings, descriptions, specifications, electronic media, software and corresponding documentation, samples and prototypes.
2. Confidential Information may only be used, duplicated and exploited by the Contractor in conjunction with and for the purpose of performance of Contractual Supplies to us and only made accessible to those persons in the course of the Contractor’s business operations who essentially need to be involved in its use for the purpose of performance of Contractual Supplies to us and who have been obliged to maintain secrecy in a manner comparable to these provisions prior to disclosure of the Confidential Information. The Contractor pledges to take all necessary measures to prevent Confidential Information being made accessible to third parties without our express prior written consent. At our request, all Confidential Information obtained from us shall be returned to us immediately and completely or, insofar as this is technically feasible, destroyed.
3. The Contractor may disclose Confidential Information insofar as it is obliged to do so by an administrative or court order or mandatory statutory regulations or if we have given our written consent to do so. If the Contractor is obliged to disclose Confidential Information, it must inform us of this immediately so that we are able to take suitable steps, together with the Contractor if necessary, to maintain the secrecy of the Confidential Information to be disclosed. In all cases, the Contractor shall make reasonable efforts to obtain assurance that the Confidential Information will be handled with due secrecy.
4. The duty of confidentiality pursuant to this Section XII shall continue in effect for a period of three (3) years after termination of the contractual relationship, irrespective of the reason for termination.
5. Subcontractors are to be obligated accordingly.
XIII. Documentation and origin of goods
1. The Contractor is obliged in particular to comply with all testing, declaration and labeling obligations according to the statutory provisions and to provide us with full technical documentation pursuant to the contractual agreement so that the Contractual Supplies can be used for the intended purpose.
2. The Contractor undertakes to provide us with all drawings, files and other documents for the Contractual Supplies pursuant to the contractual agreement. In particular, this shall include all necessary instructions and documents for the use, assembly/installation, maintenance, cleaning and repair of the Contractual Supplies as well as spare parts lists and purchasing sources. We shall obtain the right of use of these documents which shall include the right to issue sublicenses hereto to the final users.
3. The Contractor must declare the origin of the goods (country of origin) in the commercial documents (particularly on the delivery note and invoice) and produce free of charge a long-term supplier declaration (preferable) (“LSD”) or an individual supplier declaration for goods with preferential origin status (“SD”). If legal grounds prevent the issuance of an LSD or SD, the Contractor is obliged to produce a certificate of origin issued by the chamber of industry of commerce (“CIC”) or a declaration of non-preferential origin issued by the CIC free of charge. The Contractor is required to inform us immediately in writing of any changes in relation to the long-term or individual supplier declaration.
4. In order to ensure fast processing of the Contractual Supplies, the Contractor shall send an advance scanned copy of the LSD/SD or CIC certificate of origin or CIC declaration of non-preferential origin to us by email to wup@khs.com immediately, at the latest, however, on commencement of the delivery of the goods. If the document sent is an SD or a CIC certificate of origin or CIC declaration of non-preferential origin, the Contractor shall enter the KHS order number in the email subject line.
5. In the following cases, the Contractor is further obliged to send us the original document in addition immediately after having sent the scanned copy:
- The document in question is a CIC certificate of origin.
- The document in question is a CIC declaration of origin that has been authenticated by the CIC.
- The document in question is an LSD/SD that has been signed by hand.
6. Should the Contractor fail to meet the requirements of (2) to (4) or not do so in time and should processing by us be delayed as a result, the payment periods given in Section III (3) shall be extended by the period of the delay.
XIV. Industrial property rights
1. The Contractor shall grant us a transferable, non-exclusive, irrevocable right of use without any restriction in time and place to the Contractual Supplies covered by the contract and to the industrial property rights related to the Contractual Supplies.
2. The Contractor shall be responsible for ensuring that the Contractual Supplies to be provided does not infringe any rights of third parties. In the event of an infringement of third-party industrial property rights, the Contractor shall, at our discretion, obtain the right to use the Contractual Supplies to the extent described in (1) or make modifications so that the Contractual Supplies are free of protective rights.
3. Should we or our customer(s) be held liable for an infringement of industrial property rights, the Contractor is further obliged to indemnify us against any costs, damages and expenses incurred as a result, if and provided that these are caused by the Contractual Supplies provided by the Contractor. Further claims and rights to which we are legally entitled in this context shall remain unaffected. The Contractor must inform us in writing without undue delay of any defects in title.
4. On request, the Contractor will inform us of the use of its own and of licensed – published and unpublished – industrial property rights and applications thereto in the Contractual Supplies.
XV. Rights to files, documents and production equipment
1. Illustrations, molds, models, dies, templates, patterns/samples, designs or design proposals, know-how, commercial or technical documents, software, calculations or other files and documentation that we make available to the Contractor must only be used by the Contractor for the provision of Contractual Supplies to us and are to be returned to us without being asked to do so once the contract has been completed. We reserve all property and industrial property rights, such as patent, trademark, utility model and design rights and copyrights. Reproduction is permissible only within the scope of the operational requirements for the provision of Contractual Supplies to us and copyright provisions. Documents may not be made accessible to third parties and not be used for deliveries to third parties. KHS-specific parts may not be sold, made available or provided to third parties.
2. Tools and other production equipment that we provide to the Contractor shall remain our property. Such objects shall be kept separate from other materials by the Contractor, marked as our property, used only for the provision of Contractual Supplies us and stored free of charge with the due care of a prudent businessman. The Contractor shall be required to prevent access by third parties, to immediately inform us of changes in the quantity (such as through theft or loss) and condition (such as restriction in usability) of the provided materials and to adequately insure the objects against destruction and loss.
XVI. Data privacy statement
The Contractor is obliged to observe the legal provisions governing data privacy, in particular the General Data Protection Regulation (GDPR). If personal data is processed in the order, the Contractor shall only process personal data within the scope of the agreement made and according to our instructions. In the event of data processing, a separate agreement shall be reached. The Contractor undertakes to protect the personal data it receives from us from access by unauthorized third parties using suitable technical and organizational measures in the sense of Article 32 GDPR.
XVII. Supplier code of conduct
1. The Contractor guarantees that it will adhere to our supplier code of conduct in its currently valid version during the provision or execution of the Contractual Supplies. The current version can be downloaded at any time from our website (www.khs.com). The Contractor is obliged to promote and demand compliance with our supplier code of conduct as best as possible from its suppliers and those third parties whom it uses to provide the Contractual Supplies in compliance with Section II Paragraph 7.
2. If the Contractor culpably violates these obligations under Section VVII, we are entitled, without prejudice to further claims, to withdraw from the contract or terminate the contract. If it is possible to remedy the breach of duty, this right may only be executed after a reasonable period of time to remedy the breach of duty has expired.
XVIII. Place of fulfillment, place of jurisdiction, applicable law
1. The place of fulfillment is the Place of Delivery specified in the purchase order. If the Contractor is a businessman, the sole place of jurisdiction for all disputes is Dortmund, Germany. However, we are also entitled to file legal action against the Contractor at its general place of jurisdiction and at any other court of competent jurisdiction.
2. The contracts concluded or to be concluded on inclusion of these Purchasing Terms and the interpretation of these Purchasing Terms are subject to German law, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the regulations of the Conflict of Laws that refer to the CISG.