General Terms and Conditions (GTCs)of KPS AG
General Terms and Conditions of Business
As of 10 January 2025
1.
Validity of these Terms and Conditions
The services rendered by KPS to traders in the sense of Sec. 14 German Civil Code (Bürgerliches Gesetzbuch, “BGB”), public law entities and public law funds (hereinafter referred to as „Customer“) are governed exclusively by the terms and conditions („GTC“) set out below (including all future services in the case of continuous business relations) also if no express reference is made to them, except as expressly agreed otherwise in accordance with the GTC. KPS reserves the right to amend these GTP at any time; the amendments shall then apply automatically. Any deviating terms and conditions are subject to KPS´s express written aproval. This applies also if KPS performs services unconditionally with knowledge of the Customer’s terms and conditions.
2.
Scope of Duties
2.1
KPS undertakes to work as Consultant for the Customer. KPS will especially perform the following tasks:
- Strategy and Process Consultancy
- Organisational and Business Planning
- Transformational Consultancy
- Implementation Consultancy
- Technical Advice and Assistance
- Amendments and Additions to Standard Software and other Software or corresponding Assistance
- Installation of Standard Software and other Software and Programming of the necessary Interfaces of corresponding Assistance
- Training of Customer Employees
- Further KPS Services
2.2
Unless dictated otherwise by the circumstances (such as a mutual understanding, tacit or otherwise), the specific services of KPS are defined exclusively by KPS´s latest project proposal as applicable from time to time or a project agreement entered into by KPS and the Customer in writing („Individual Agreement“). Any change requests will be discussed and remain subject to a written agreement; both KPS and the Customer may submit change requests, which shall be sufficiently detailed to allow the other party to recognise and assess their implications for the project (especially in view of content, costs and time).
The activities of KPS are services; KPS owes no specific work results. Any agreement on specific work results must be set out in writing and include an express reference to this sec. 2.2. The Customer is responsible for the overall management of a project.
2.3
KPS is free to organise its work and shall not be bound by the instructions of the Customer. In particular, KPS shall be free to determine its working time as well as its working place. So far as meetings or the presence of KPS on the Customer´s premises are required, that is arranged from time to time with KPS. Both parties will avoid integration of KPS employees with Customer Businesses.
2.4
KPS shall perform its consultancy services on its own responsibility observing the generally recognised standard of the profession conscientiously and to the best of its abilities, in every respect and to safeguard the Customer´s interests.
2.5
The parties agree that KPS may employ its own employees or freelancers or even third parties to perform its services. If any KPS partners or employees are identified by name in an Individual Agreement, KPS shall seek to ensure their availability to the extent defined in the Individual Agreement. Where any changes in the designated KPS employees are deemed necessary by KPS, KPS shall give the Customer timely prior notice of such changes and provide the Customer with such information about the substitute as deemed necessary in KPS´s discretion.
3.
Duties of the Customer
3.1
The Customer agrees to provide KPS and its employees, at Customer’s expense, with the infrastructure as is reasonably required to duly fulfil the contract. In particular, the Customer shall provide working space, telephones and fax machines, computers, a state-of-the-art internet connection, secretarial services, and similar. It lies within the Customer´s responsibility to ensure the proper functioning of IT systems, if necessary by means of maintenance contracts with third parties. In particular, the Customer shall comply with instructions issued by KPS.
3.2
The Customer undertakes to provide KPS, at Customer´s expense, with all information and other material necessary for the performance of the contractual duties by KPS. The Customer shall ensure that the information and material necessary provided to KPS are true, accurate and not misleading in all material respects. KPS accepts no responsibility whatsoever for any loss, damage, or failure of services to comply with the contract, incurred by reason of inaccurate, incomplete or otherwise deficient information and/or material necessary provided by the Customer.
3.3
The Customer will also provide KPS with any cooperation and assistance required to enable KPS to perform its contractual duties. He shall grant KPS access directly or by means of data transmission to Software and to the IT Systems.
3.4
The Customer shall ensure that his employees are available and have the skills and expertise required to render the requested support services. Furthermore, the Customer shall nominate a contact person in writing for KPS and an address as well as a mail address at which the availability of the contact person is guaranteed. The contact person shall ensure good cooperation with KPS.
3.5
The Customer shall thoroughly test work results prior to commencing operative use.
3.6
The Customer shall take adequate measures in the event that the work results are faulty (e.g. through regular backups, fault diagnosis, regular checking of the results). In the absence of express written instructions, the employees of KPS can always assume that all data with which they come in contact with have been backed up.
3.7
Where the Customer employs the services of third parties in support of the project in which KPS renders services (other service providers, suppliers, or similar), the Customer will agree reasonable terms with such third parties which enable KPS to render its services in conformity with the contract. Unless agreed otherwise in writing in the Individual Agreement by reference to this sec. 3.7., the Customer remains responsible for directing the third parties employed by the Customer and for the quality of the work.
4.
Acceptance
The Customer will accept delivery of the KPS services in accordance with the Individual Agreement and the documentation laid down therein. In doing so the Customer confirms the conformity of the services with the contract; the same shall apply if the Customer uses the services for the Customer´s own purposes or pays for the services or fails to make a statement to the contrary, including reasons, within a time limit explicitly fixed by KPS (by reference to the consequences).
5.
Time Schedules
Where any Individual Agreement provides for or refers to time schedules, KPS shall seek to comply with its contractual obligations in accordance with such time schedules. However, the defined time schedules only serve purposes of planning and estimation of the required timeframe; they are not binding, unless expressly agreed otherwise in writing by the parties in an Individual Agreement by reference to this sec. 5. Compliance with time schedules also expressly presupposes the timely and proper fulfilment of all duties of the Customer.
6.
Remuneration, Price Adjustment Clause, Reimbursement of Expenses
6.1
KPS will bill the fees based on the price conditions defined in the Individual Agreement (usually based on KPS´s price list for consulting and services valid at the time of the offer) provided or other fees have later been agreed on in writing in the Individual Agreement.
6.2
The agreed fee rates shall apply subject to adjustment in accordance with this Clause 6.2. If, after conclusion of contract, the wage and salary costs in the IT services sector, which are the sole decisive factor for the calculation of the fee rates, increase, the fee rates shall be adjusted as of 1 April of each calendar year by the percentage by the percentage of the increase in wage and salary costs indicated by the German Federal Statistical Office in its nominal wage index for the economic sector “provision of information technology services (Erbringung von Dienstleistungen der Informationstechnologie)” as an increase in wage and salary costs when balancing the quarterly reports for the same period of the previous year (nominal wage index in Germany, currently, as of September 2023, available at: (https://www.destatis.de/EN/Themes/Labour/Earnings/Real-Earnings-Net-Earnings/_node.html). The adjustment shall be made by increasing the nominal wage index by 0.1 % for each further adjustment by at least 0.1 % until the price adjustment since the beginning of the contract reaches the full original value of the fee rate. In the event that this value is reached, the parties will seek to agree a new base fee rate. If this fails, KPS has a special right of termination. KPS will inform the client with an appropriate lead time of the exact value by which the price adjustment will be realised due to the change in the relevant nominal wage index. Should the nominal wage index cease to apply, the index that replaces it will be used as a basis.
6.3
For services billed on a time and material basis, the fees will be billed on the basis of 8 working hours per day unless provided for otherwise in an Individual Agreement. An employee who works more than four hours a day is deemed to have worked a whole day. If KPS employees have to work on site for a longer period of time, KPS may flexibly arrange their working hours at the Customer sites and the normal place at work. Travel time shall be billed as working time, except the time spent travelling to Customer´s business premises from a local accommodation. Unless agreed otherwise in the Individual Agreement, overtime will be billed on a prorated basis; overtime accrues as soon as an employee works more than eight hours a day. KPS will monthly send the Customer a list of expenses included in the invoice. If the Customer does not raise a written objection to the findings contained in that list within two weeks, these shall be deemed accepted.
6.4
Cost estimates of any kind, be it for planning or other purposes, shall be without commitment.
6.5
Insofar as expenses accrue in connection with the consultancy services, these expenses are compensated with the fee under clause 6.1. This does not apply to postal charges, telephone cost and travel expenses (taxi, flight, train, hotel and rental car) against receipt. Unless otherwise agreed, travel- and subsistence expenses will be charged according to expenditure and depending on the residence of the KPS employee. Travel expenses arise from travel from the employee’s home to the respective place of performance of the Customer or between different places of performance of the Customer.
6.6
All fees and expenses are exclusive of taxes and duties. The Customer is obliged to pay to KPS or the relevant authority all taxes (especially VAT) and duties required by law, except those taxes and duties relating to KPS’s net earnings.
6.7
All invoices on a time and material basis will be raised monthly. Invoices based on other calculation methods will be issued in accordance with the payment schedule laid down in the Individual Agreement. Unless defined otherwise in the Individual Agreement in writing by reference to this sec. 6.6, (i) all invoices are in EURO and (ii) are payable in EURO. All invoices fall due and payable net, promptly on receipt. KPS shall be authorised to invoice partial performance.
6.8
Subject to 30 days prior written notice to Customer, KPS will have the right to adjust the time and material-based fees agreed in an Individual Agreement. Any such adjustment may be justified, for example, by the transportation of employees rendering services for Customer. The fees stated in the Individual Agreements with Customer refer to the site(s) agreed therein. Any changes to the site(s) may result in an adjustment of the fees.
6.9
Any setoff by the Customer against claims of KPS shall be excluded, except with counterclaims that are acknowledged, uncontested or established by final enforceable judgment; further, the Customer may assert rights of retention against KPS only on the basis of claims from the same contractual relationship that are acknowledged, uncontested, or established by final enforceable judgment.
7.
Rights of Use in Work Results
KPS retains the ownership and the entire rights on the the work results, materials, concepts and methods – in particular the copyrights, the rights on inventions as well as technical property rights. This also applies if such work results are based on instructions or cooperation by the Customer. With the payment of the agreed fee the Customer is granted with a simple right to use the work results, materials, concepts and methods only for his internal business events and those of companies affiliated with him in the sense of sec. 15 AktG (Stock Corporation Act) (“Corporations of a Group”), unless otherwise agreed.
8.
Restrictions on Competition
8.1
For the term of an Individual Agreement or within 12 months after the premature termination or expiry thereof, neither party is permitted to entice away employees of the other party who are or were involved in the performance of the contract, without the other party’s written consent. For any breach of the above obligations, the breaching party will, on the request of the other party, immediately pay a contractual penalty in the amount of one yearly salary of the employee who has been enticed away. Payment of the contractual penalty will not release the breaching party from the payment of further damages.
8.2
The Customer and KPS are obligated to reciprocal loyalty.
8.3
KPS shall be Preferred Supplier of the Customer, i.e. KPS will be preferred when requesting for a project which is similar to the one, falling under these GTC.
9.
Secrecy
9.1
Both parties agree to not disclose to third parties without the other party’s consent any confidential information brought to their knowledge for reason of or in connection with the acceptance or provision of services. This shall apply to information that has been designated confidential, to verbal information whose confidential nature was immediately confirmed in writing, and to any kind of information that is obviously confidential. Both parties undertake to use the confidential information received from the other party only for purposes of providing or accepting services in connection with an Individual Agreement between the parties. This confidentiality undertaking shall not extend to information (including know-how),
- That is or becomes public domain, except by a breach of the obligations set forth in this sec. 9.;
- Received by a party from a third party not subject to any confidentiality undertaking in respect of such information;
- That was developed independently by or known previously to the receiving party.
9.2
Notwithstanding sec. 9.1. above, both parties shall have the right to disclose information (including know-how) in either of the following cases: (i) to a third party as required by a decision of a court or authority of jurisdiction (including regulatory authorities) or by law (in which case the other party shall be given at least two working days prior written notice of the disclosure, as far as permitted by law and practicable), or (ii) to their respective insurers or legal counsel.
9.3
Notwithstanding the provisions of sec. 9.1. and 9.2., KPS may use the services rendered to the Customer as a reference for existing or prospective customers.
9.4
Both parties will comply with secrecy regulations and conclude a respective agreement in an Individual Agreement.
10.
Data protection
10.1
KPS will comply with all relevant laws and regulations for the protection of personal data in the course of providing services. Insofar as KPS processes personal data of the Customer as a processor within the meaning of Art. 28 GDPR in the course of providing services, the processing will be carried out exclusively on behalf of and in accordance with the instructions of the Customer. In this case, the parties will immediately enter into a contract for data processing on behalf of the Customer in accordance with Art. 28 GDPR.
10.2
For more information on how KPS processes data, please refer to the KPS data protection statement available at http://kps.com/be/en/data-protection.htm.
11.
Duration and Termination of the Contractual Relationship
11.1
An Individual Agreement commences on the day defined therein. If no such day has been stipulated, it shall commence either on the day KPS begins to render services for Customer or on the day of signature of the Agreement by both parties, whichever comes first. The contractual relationship shall remain in place until all services have been rendered unless it is terminated prematurely in accordance with the terms below.
11.2
Without prejudice to the provisions relating to a termination for cause, an Individual Agreement may be terminated by either party at any time, subject to 30 days prior written notice. If the Customer exercises this right of termination, the Customer will remunerate KPS on a time and material basis for all services rendered until the effective date of termination. If a different calculation basis is applied, the Customer will settle all partial invoices that are due by the effective date of termination and thereafter will remunerate, on a time and material basis, all services that are rendered by KPS for the Customer until the effective date of termination and were not billed in the final partial invoice. Further, the Customer shall bear the costs incurred by KPS as a result of the early termination. In particular, this includes the fees of subcontractors as well as any costs incurred by changing the arrangements. KPS shall undertake reasonable efforts to minimise such costs.
If KPS proves that the KPS staff intended to render the services cannot be assigned wholly or partly to other projects, the Customer must put KPS in the position that would have prevailed if the employees had been assigned to Customer’s project in accordance with the contract.
11.3
The right to terminate this agreement for cause remains unaffected. In particular, a cause for termination shall be deemed to exist for (i) the Customer if KPS acts in breach of material obligations under an Individual Agreement and fails to cure such breach within a reasonable respite of at least 20 days to be granted by the Customer, and for (ii) KPS if the Customer acts in breach of material obligations under an Individual Agreement or if insolvency proceedings are applied for or opened on the Customer’s assets or if the Customer’s financial situation deteriorates materially.
11.4
Upon termination of the contractual relationship each party shall return to the other party all items that are the property of the other party. KPS may retain a copy of every documentation or software product produced by KPS, and of every documentation serving as basis for KPS’s services.
12.
Liability
12.1
KPS is liable to the Customer from contractual or statutory claims as follows:
12.2
Unlimited liability: KPS shall be liable without limitation in the event of intent on the part of its executive bodies and senior employees, as well as in the event of their grossly negligent breach of “cardinal obligations” (i.e. those which are essential for achieving the purpose of the contract and on whose compliance the Customer as a contractual partner may regularly rely) and in the event of defects which KPS has fraudulently concealed or whose absence KPS has guaranteed or in the event of the assumption of the procurement risk, as well as if the health, body or life of people have been injured due to breaches of duty by KPS. In particular, KPS shall also be liable without limitation for claims under the Product Liability Act. KPS shall also be liable for vicarious agents in place of its organs and executive employees in the above cases if, in addition to liability for the vicarious agent according to the law, the selection of the vicarious agent by organs or executive employees was culpable – in other cases there shall be no liability after KPS has assigned claims against the vicarious agents to the Customer (in these cases the customer shall be obliged to accept the assignment).
12.3
Limited liability: In the event of a slightly negligent breach of a cardinal obligation by KPS’ executive bodies and senior employees and such a grossly negligent breach by vicarious agents, KPS shall only be liable for the foreseeable, typically occurring damage.
12.4
Exclusion of liability: KPS shall not be liable in the event of a slightly negligent breach of an obligation that is not a cardinal obligation. KPS shall only be liable for cases of impossibility if KPS is at least grossly negligent.
12.5
KPS shall only be liable for consequential damages and indirect damages, for loss of profit, loss of production, loss of use, expert’s fees, etc., in the event of at least grossly negligent breaches of cardinal obligations up to the amount of the foreseeable.
12.6
Under no circumstances will the liability of KPS exceed EUR 100,000 for gross negligence and EUR 10,000 for ordinary negligence.
12.7
Insofar the liability of KPS is excluded or limited, this shall apply equally with regard to a personal liability for damages of its organs, employees, workers, staff, representatives and vicarious agents towards the Customer.
12.8
This does not imply a change in the burden of proof to the detriment of the Customer.
12.9
The Customer’s claims for damages for which liability is limited under this clause shall become time-barred one year after the beginning of the occurrence of the damage. This does not apply for liability in the event of intent or gross negligence, personal injuries or liability under the Product Liability Act.
13.
Warranty
13.1
In principle, KPS renders services and owes no warranty.
13.2
Where the performance owed by KPS is a work result under a contract for work and services (Werkvertrag), the Customer will be entitled to warranty claims for defects only if the Customer reserved the right to such claims upon acceptance of the work results or refused to accept the work results to that extent. The Customer’s warranty claims are limited to remedial action, i.e. free of charge rectification of the defect; remedial action will be undertaken at the original place of performance. KPS may refuse to perform remedial action if it would incur unreasonable costs. If remedial action fails or is refused by KPS, the Customer may, at the Customer’s option, terminate (not withdraw from) the Individual Agreement or reduce the price. Remedial action shall be deemed failed at the earliest after three unsuccessful attempts. The Customer’s claims for damages are governed exclusively and exhaustively by sec. 12. hereof. Warranty claims become time-barred one year after delivery or acceptance, as the case may be; the limitation of claims for damages is governed by sec. 12. as well.
14.
Indemnifications
Unless agreed otherwise in the Individual Agreement, the services of KPS are rendered solely for the benefit of and usage by the Customer. For this reason, the Customer shall have no right to make copies of the work products for or transfer the benefit of the services to any third party. KPS accepts no responsibility or liability whatsoever to third parties that receive the benefits or make use of or gain access to the work products. The Customer indemnifies KPS with regard to any and all losses, damage, expenses and other costs as reasonably incurred by KPS in connection with third party claims raised against KPS (i) as a result of the Customer granting a third-party access to the work products and the benefits of the services, or (ii) in connection with the services. This shall apply mutatis mutandis in the event a third party takes recourse against KPS for any infringement of intellectual property rights or other rights in connection with information and/or operational resources provided to KPS by the Customer.
15.
Miscellaneous
15.1
Any assignment or other transfer of claims or rights by Customer with the exception of monetary claims in commercial transactions shall be subject to KPS written approval.
15.2
Subject to the provisions of this GTC hereof, any delay in the enforcement of individual provisions by KPS shall not affect or restrict the rights and powers of KPS laid down herein; any waiver of claims or rights must be set out in writing.
15.3
Where the Individual Agreement requires for the other party to be notified in writing (not only text), such notice must be delivered personally or by fax or registered letter to the other party’s address stated in the Individual Agreement or such other address as notified in writing during the term of the contract.
15.4
Any changes or amendments to services or conditions must be set out in writing with a reference to the relevant provision of the GTC or the Individual Agreement and be signed by both parties.
15.5
Any provisions of an Individual Agreement or these GTC which, by express or implied agreement, shall survive and remain valid after the termination of the Individual Agreement, shall remain binding on the parties thereafter.
15.6
Nothing in the Individual Agreement shall be deemed to restrict KPS in its right to also work for other Customers, except as agreed otherwise in writing by reference to this sec. 14.6.
15.7
The Individual Agreement, including all its schedules and other documents referenced therein, represents the agreement in respect of the services to be rendered by KPS. The Individual Agreement supersedes any and all previous offers, correspondence, letters of intent or other notices, whether written or verbal.
15.8
If any provision of the Individual Agreement or these GTC is or becomes invalid, nothing in this shall prejudice the validity of the remaining provisions of the Individual Agreement or these GTC. The parties shall construe and amend the agreement such that the purpose of the invalid provision is accomplished as closely as possible.
15.9
In the event of any discrepancy between these GTC and the Individual Agreement or any other document that forms integral part of the contract, these GTC shall prevail, except as expressly set forth otherwise in the Individual Agreement by reference to the relevant section of these GTC. In the event of any discrepancy between the Individual Agreement and a schedule or any other document forming integral part of the contract, to the exception of these GTC and only to the extent of such discrepancy, the Individual Agreement shall prevail.
15.10
The Individual Agreement and any other related contractual arrangement between KPS and the Customer as well as these GTC shall be governed exclusively by the laws of Germany to the exclusion of the UN Sales Convention.
15.11
Any and all disputes arising out of or in connection with an Individual Agreement shall be resolved by negotiations on the management level, wherever possible. Any such negotiations on the management level require a written invitation from the other party, indicating the negotiator authorised by the management and giving at least fifteen working days prior notice of the negotiation date; negotiations will be deemed failed if so declared by written notice of either party to the other party, which may also be given before negotiations upon the other party’s invitation take place. Unless negotiations have failed as described above, recourse to the ordinary courts of law shall be excluded, to the exception of proceedings for injunctive relief.
For any dispute that cannot be resolved amicably, Munich shall be the place of jurisdiction. However, we are also entitled to bring an action at any other statutory place of jurisdiction. Notwith-standing the foregoing, KPS as claimant may, instead of an ordinary court of law, appeal to an arbitration court in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS, Deutsche Institution für Schiedsgerichtsbarkeit e.V.); Munich shall be the forum of arbitration. the language of the arbitration shall be determined at KPS’ discretion (German or English).
15.12
In the event of any discrepancy between the English and the German version of this GTC or in case of doubt the German version of this GTC shall be the prevailing document.
GTCs Purchase
General Terms and Conditions of Purchase of KPS (1/2025)
§ 1
Scope, no other conditions
(1)
These General Terms and Conditions of Purchase (“GTCP”) apply to all enquiries, orders and contracts for deliveries and services (“transactions”) between KPS (hereinafter “we”, “us”) as a customer and with suppliers and contractors (“supplier”) who are professionals. Within the scope of ongoing business relationships, these GTP shall also apply to future Transactions. These GTCB shall also apply if no express reference is made to them. They can also be accessed at any time at [www.kps.com]. We reserve the right to amend these GTP at any time; the amendments shall then apply automatically.
(2)
These GTP shall always apply exclusively, i.e. we do not recognise the supplier’s terms and conditions (whether deviating from these GTP or not) (even if we perform unconditionally with knowledge of the supplier’s terms and conditions), unless we have expressly agreed to their validity in writing.
(3)
All agreements made between us and the supplier shall be in writing.
§ 2
Inquiries, offers, orders, order confirmations, changes
(1)
Our inquiries are non-binding and do not trigger any processing fees on the part of the supplier. The supplier shall also prepare cost estimates free of charge and shall be bound by them unless otherwise agreed in writing. Quotations from the supplier are binding (if they are not explicitly marked as non-binding) and must correspond exactly to our enquiries and information; any deviations must be marked. Alternatives may be offered separately. Advice and recommendations of the supplier are binding in case of doubt.
(2)
The contract shall be concluded by our order and acceptance by the supplier. The supplier is obliged to accept our order within a period of one week or to comment on our order in any other way; if the supplier does not accept the order within one week of receipt, we are no longer bound by it; in case of doubt, the nature and scope of the transactions are determined by our order, in particular if the supplier does not immediately object in writing. In the event of the provision of services, the services, tasks and duties owed by the supplier shall also include, in particular, all activities not listed in the order which are or will become necessary in the supplier’s scope of duties defined by the order in order to achieve the service objective defined in the order. The supplier shall confirm receipt and execution of our order without delay. We reserve the right to accept only parts of an offer. We can issue call-offs from framework agreements also informally and we are free in the decision to call-off.
(3)
We reserve the right to subsequently change our orders. In the event of changes, the supplier shall submit an offer to us that is in relation to the original offer and the change and shall take into account the effects on additional or reduced costs as well as the delivery dates, appropriately and in relation.
§ 3
Prices, invoices, terms of payment, termination (withdrawal), offsetting
(1)
Agreed prices are net prices and must be shown in EURO (plus VAT, if applicable). They are also binding fixed prices. Unless otherwise agreed, they shall apply DDP in accordance with Incoterms®2020 to our company location stated in the order.
(2)
If the prices are not yet fixed when the order is placed, they must be stated when the order is accepted and approved by us in writing before delivery.
(3)
Invoices shall be sent to the Purchaser in single copy. The invoice must contain in particular the VAT number/tax number of the supplier and of the purchaser, insofar as required by law, supplier number, reference number, order number and date of the order or delivery call-off, number and date of the delivery note, unloading point, customs number, article number, type and quantity of the goods to be invoiced and account assignment details, if and insofar as these are printed on our order; the supplier shall be responsible for all consequences arising from non-compliance with this obligation.
(4)
In the event of incorrectly or incompletely issued invoices, we reserve the right to request credit notes for the incorrect invoice amount together with new correct invoices from the supplier at the supplier’s expense.
(5)
The due date of the supplier’s claims shall only commence after complete receipt of delivery and inspection and after receipt of the properly prepared invoice. Unless otherwise agreed, payment shall be issued within 60 days without deduction; a 3% discount shall be granted for payment within 14 days.
(6)
We are entitled to terminate (or withdraw from) the transaction in whole or in part at any time without prejudice to the right of extraordinary termination. In this case, the supplier shall in principle be entitled to full remuneration for deliveries and services already provided as well as compensation for costs already incurred which can no longer be averted. The claim to pro rata profit shall be limited to a maximum of 3% of the remaining order value. The supplier may only terminate (or withdraw from) the contract for good cause for which we are responsible and under the additional statutory conditions; in this case the supplier shall be entitled to full remuneration for deliveries and services already provided as well as compensation for costs incurred which can no longer be averted. There shall be no further claims.
(7)
We shall be entitled to terminate the contract, in particular in the case of the provision of services, if the performance objective is not achieved. In the case of premature termination of the contract for reasons attributable to the supplier, the services actually rendered shall be invoiced in accordance with the progress of the project, notwithstanding paragraph (6), insofar as these are usable for us.
(8)
In the event of improper performance (e.g. defective delivery, delay, etc.) by the supplier or in the event of counterclaims to which we are entitled, we shall be entitled to withhold or offset payment until proper performance. We are also entitled to offset claims of the supplier also against claims of companies affiliated with us. Offsetting is also permissible if the claim or counterclaim is not yet due; in this case, settlement shall be made with value date. In particular, we are entitled to set off any counterclaims in full against claims of the supplier, notwithstanding contractual set-off prohibitions.
(9)
The supplier is not entitled to assign claims against us to third parties or to have them collected by third parties.
§ 4
Transfer of risk, delivery, delivery note, packaging, insurance, delivery date, default and delay, force majeure, impossibility, quality, product requirements, identification and traceability of products
(1)
Unless otherwise agreed, DDP shall be delivered in accordance with Incoterms®2020 to our company location specified in the order and the risk shall only pass to us upon fulfilment of all obligations of the supplier arising therefrom and from the order and from these GTCP.
(2)
Each delivery must be accompanied by a delivery note in which the delivery is to be precisely broken down according to type, quantity and weight. Delivery notes, waybills, invoices and all correspondence must contain our order number and, if applicable, object designation. Data sheets, operating instructions, test certificates, approvals and other documentation must always be enclosed with the invoice or delivery note in the agreed formats and languages. The supplier must also provide us with all documents required for export, import and transit or transport. Otherwise, we do not have to accept the delivery.
(3)
Unless otherwise agreed, the deliveries shall be packed in such a way that transport damage is avoided. Packaging materials shall only be used to the extent necessary to achieve this purpose. The supplier shall take back the packaging at its own expense.
(4)
Unless expressly agreed otherwise, transport insurance is covered by us. The supplier cannot charge RVS/SVS.
(5)
The supplier is aware of the importance of meeting the agreed delivery dates. Agreed delivery dates are therefore binding for the supplier. If a delay in delivery occurs or becomes apparent, we must be notified of this immediately in writing, stating the reasons.
(6)
The supplier can only plead force majeure if he is absolutely not responsible for the event in question and had also taken appropriate precautions (selection and establishment of several suitable sub-suppliers, sufficient storage, alternative production resources, fast and safe and alternative transport routes, etc.), which do not succeed for unforeseeable reasons. Only objective impossibility comes into consideration, the supplier cannot object to disproportionate costs, unless there is force majeure in the aforementioned sense; then the supplier must leave it to us to decide whether we withdraw from the contract. In the event that we are temporarily or generally prevented from accepting or taking delivery of the supplies and services and this is due to force majeure or impossibility (which may also be due to disproportionate costs on our part), we may invoke impossibility and withdraw from the contract. We shall then not provide any compensation.
(7)
Early deliveries, as well as partial deliveries or over- and/or under-deliveries are not permitted; we are entitled to decline and to return such deliveries or to store them at our premises until the delivery date at the supplier’s expense and risk.
(8)
The decisive factor for compliance with the delivery date is the fulfilment of all obligations by the supplier on time. Otherwise, the supplier shall be in default even without fault and, if the legal requirements are met, shall also be in default.
(9)
In the event of delay, the supplier shall be obliged to compensate us for any damage caused by the delay; this shall apply in particular to consequential damage, such as loss of profit, downtime costs, retooling costs, additional costs from covering purchases as well as increased costs for an accelerated shipping method, which become necessary due to exceeding the deadline due to the delay. If we claim damages, the supplier shall have the right to prove that he is not responsible for the breach of duty.
(10)
In the event of default, we shall also be entitled to demand a contractual penalty from the supplier in the amount of 0.5% of the order value of the affected transactions for each commenced working day of default, but not more than a total of 5% of the value of the respective delayed part. We may also claim such a contractual penalty if a corresponding reservation was not made when the delivery was accepted. In the event of a claim for damages due to delay, the contractual penalty for the delay shall be offset against the claim for damages.
(11)
If the supplier does not perform in time, we may – after a period of time to be determined by us (which is dispensable if the supplier refuses or if there is imminent danger or if setting a period of time is unreasonable for us) – withdraw from the transaction (also for other related deliveries and services or other transactions in which there is no longer any interest). We reserve the right to assert further statutory rights.
(12)
For the content, type and scope of the deliveries and services, in particular for quality, dimensions and quantities as well as packaging and means of transport, the following must be complied with in any case – in the absence of agreements to the contrary: the customary type and quality and the latest state of science and technology, as well as DIN, EN, ISO, VDE, VDI or equivalent standards and industry standards. This also includes UL/CSA/UR requirements or other international requirements. All deliveries and services must comply with statutory and public-law provisions, in particular also those of the German Product Safety Act and the EC Machinery Directive and the standards on accident prevention and environmental protection at the place of delivery.
(13)
The supplier shall ensure that the goods have a CE marking and are accompanied by an EC declaration of conformity if this is required for the goods in Europe. The supplier shall also make all other markings required by German law and EU law on the goods and their components as well as on the packaging and means of transport. The supplier shall also ensure compliance with EU regulations or other legal requirements and shall also provide us with comprehensive support in this respect (e.g. EAN, RoHs, REACH, CLP, RED, ecodesign, WEEE, product safety, market surveillance regulation, conflict raw materials, deforestation regulation supply chain due dilligence, anti-money laundering, transparency, packaging laws, etc.).
(14)
The supplier shall ensure that deliveries can be allocated to delivery notes and invoices so that the product can be traced back to delivery and batch.
§ 5
Obligations, commitments, guarantees, retention, willingness to perform, indemnification
(1)
All obligations of the Supplier under these GTCP are contractual obligations and not mere obligations. The Supplier warrants that it will comply with its contractual obligations and obligations to cooperate under these GTCP. The same applies to duties and obligations of the Supplier in other respects.
(2)
The supplier may only assert rights of retention against us insofar as they are based on claims from the same contractual relationship that are undisputed, ready for a decision or legally established. Offsetting by the supplier is excluded insofar as the counterclaim is not legally established, ready for decision or undisputed.
(3)
Compliance with our obligations requires the proper fulfilment of all relevant obligations under these GTCP and other possible obligations and duties by the supplier. We shall also be entitled to withhold our performance until the supplier has made advance performance if it is evident that the supplier’s readiness to perform or performance capacity is at risk; after setting a corresponding deadline for concurrent performance or provision of security, we may also withdraw from the contract and demand compensation for damages.
(4)
The supplier shall indemnify us upon first request against all claims of third parties, which are based on a breach of duty or malfunction of the supplier. This includes in particular the defence against direct claims or also official measures against the supplier or us, the defence against indirect claims or official measures against us, the provision of all necessary information and the assumption of legal costs and all other necessary expenses for defence. The supplier may not conclude any agreements to our disadvantage with third parties or authorities without our prior consent.
§ 6
Defects, notice of defects and liability for defects (warranty)
(1)
The supplier’s deliveries and services must be absolutely free of defects and also free of third-party rights at the place of use, if known to the supplier, or at least at the place of delivery; there is no irrelevance threshold. If individual parts of the deliveries and services are defective, we may consider the entire transaction to be defective if there are corresponding indications, unless the supplier proves to us that the remainder is free of defects.
(2)
In the case of purchase contracts and contracts for work and materials, we shall notify open defects in the deliveries in writing without delay as soon as they are discovered in the ordinary course of business. Our notification shall in any case be deemed to be immediate if it is made within two weeks of receipt of the delivery by us. We shall notify the supplier of defects that can be detected later within 2 weeks. If we discover defects with timely notification within three months after receipt of the deliveries, these defects shall be deemed to have already existed upon receipt.
(3)
If an acceptance takes place, the supplier shall notify us of the readiness for acceptance 10 days in advance and a period of notice must be at least 14 days; the acceptance shall take place by means of an acceptance protocol drawn up by us in consultation with the supplier, in which any open defects are recorded. An unconditional acceptance can only be assumed for open but deliberately not recorded defects.
(4)
If the supplier does not begin to remedy a defect immediately after our request (subsequent delivery or rectification at our discretion) or if there is imminent danger or if there is particular urgency for other important reasons, we shall be entitled to carry out the necessary measures ourselves or have them carried out by third parties at the supplier’s expense without setting a further deadline. In addition, we shall be entitled to the statutory rights to withdraw from the transaction (also for other related deliveries and services or other transactions in which there is no longer any interest) or to a reduction in price in full and irrespective of the materiality. The same shall apply if an attempt to remedy the defect by the supplier fails and a second request within a reasonable period of time is not acceptable to us. Other rights and claims for damages due to poor or non-performance are expressly reserved and are not limited.
(5)
Deliveries and services, which the supplier has subsequently delivered or subsequently performed shall again be subject to liability for defects.
(6)
In the case of service purchases for machinery, which are made directly by the customer and are only invoiced by us, the supplier warrants to us and our customers that the services are free of defects.
(7)
All costs of remedying defects at the place where the defective delivery or service is located and all installation and removal costs in the event of defects shall be borne by the supplier irrespective of proportionality; the supplier shall owe recourse (in accordance with § 445a BGB) in full, even if it has only delivered parts.
(8)
The warranty period is 36 months. This begins 12 months after complete delivery by the supplier at the place of delivery or accepted performance by us.
§ 7
Liability for Damages, Product Liability, Compliance, Code of Conduct, Data Protection
(1)
Irrespective of the degree of fault, the supplier is obliged to compensate us for the complete damage incurred directly or indirectly as a result of its breach of duty, in particular in the event of defective delivery and performance, delay, non-delivery or breach of secondary obligations or due to breaches of official safety regulations or for other reasons attributable to the supplier. The supplier shall also be liable in particular for all consequential damages and pure financial losses. There are no limitations of liability.
(2)
Insofar as the supplier has at least partly caused a product liability case, it shall be obliged to indemnify us against claims for damages by injured third parties upon first request insofar as the cause lies within its sphere of control and organisation. Within the scope of this liability, the supplier is also obliged to reimburse us for all expenses arising from or in connection with a recall campaign carried out by us. Such a recall action shall be deemed to exist in particular if it is necessary due to a request issued to us or another company involved in the distribution of the products by an authority authorised for this purpose or due to the need to prevent possible personal injury and/or damage to property at our discretion.
(3)
The supplier undertakes to maintain product liability insurance with a sum insured of EUR 5 million per personal injury or property damage until the respective expiry of the limitation period for defects or product liability; we may be entitled to claims for damages in excess of the insurance benefit, which the supplier must fulfil.
(4)
In connection with the services governed by this contract, the Supplier undertakes to comply with all applicable laws, legal norms and standards, in particular the applicable anti-corruption laws.
(5)
Our Code of Conduct also applies to the supplier.
(6)
The Supplier will comply with all relevant laws and regulations for the protection of personal data in the course of providing services. Insofar as the Supplier processes personal data of KPS or KPS’s customer as a processor within the meaning of Art. 28 GDPR in the course of providing services, the processing will be carried out exclusively on behalf of and in accordance with the instructions of KPS. In this case, the parties will immediately enter into a contract for data processing on behalf of the Customer in accordance with Art. 28 GDPR.
§ 8
Copyright, secrecy, tools
(1)
We exclusively reserve our unrestricted ownership and our comprehensive rights as well as all exploitation rights to our drawings, illustrations, matrices, models, templates, plans and other documents as well as information in tangible and intangible, in particular electronic form, as well as to all data, experience, know-how, inventions, industrial property rights, designs, samples and trademarks (all of the above “Information”).
(2)
All Information not already in the public domain must be treated confidentially and may not be made accessible to third parties. They are to be used expressly for the order placed and may only be reproduced with our express consent. Upon request, but at the latest after completion of the order, they are to be returned to us without being asked or, after consultation, destroyed or – in case of electronic storage – deleted.
(3)
Model facilities, tools and similar equipment handed over by us to the supplier are also subject to confidentiality and remain our sole property and the supplier is obliged to store them professionally and to mark them in such a way that they are clearly recognisable as our property. The facilities, tools and equipment may neither be passed on to third parties nor used by the supplier or its legal successor for the production of the same or similar items. They must be protected against any misuse, kept secret from unauthorised persons and returned to us immediately upon our request or upon termination of the contract. The supplier shall not be entitled to any counterclaims against this obligation to surrender.
(4)
Production equipment (including tools or similar devices) which is manufactured by the supplier and paid for by us shall be our property and shall be returned to us immediately upon our request or upon termination of the contract. The supplier shall not be entitled to any counterclaims against this obligation to surrender. Modifications to the production equipment may only be carried out with our approval; they are to be checked regularly for their functional capability or dimensional accuracy. If the supplier detects defects, they must be reported to us immediately and the further procedure must be clarified.
(5)
The supplier is obliged to bear replacement costs or repair costs incurred due to improper handling of our production equipment. Replacement costs or repair costs of production equipment due to normal wear and tear must be notified immediately and require a written declaration of cost assumption.
(6)
Production equipment is stored for at least 5 years after the last use (e.g. casting). Scrapping or return of the production equipment can only take place with our written consent. The costs for scrapping shall be borne by the supplier.
(7)
In the event of foreclosure measures against our property or other production facilities, the supplier is obliged to inform us immediately so that we can protect our rights.
§ 9
Taking back and disposing of the goods after the end of use
(1)
German Electrical and Electronic Equipment Act: The supplier assumes the obligation to properly take back and dispose of delivered goods that fall under the German Electrical and Electronic Equipment Act at the end of their use by our customers and/or their other customers at the supplier’s own expense in accordance with the statutory provisions. The supplier shall indemnify us against the obligations under Sec. 10 (2) of the German Electrical and Electronic Equipment Act (manufacturers’ obligation to take back electrical and electronic equipment) and any related claims by third parties. Our claim for takeover/release by the supplier shall not become statute-barred before the expiry of two years after the final termination of the use of the device. This period shall commence at the earliest upon receipt by us of written notification of the termination of use from the customer and/or its purchaser.
(2)
EU Directive on Batteries and Battery Law and Regulation: The supplier is obliged to comply with all obligations and to take back and dispose of all batteries sold to us at his own expense. However, the supplier shall optionally grant us the right to have batteries disposed of via our own officially approved disposal channels and to pass on to him the actual costs associated with this up to the amount of the customary disposal costs.
(3)
Other take-back and disposal regulations: The supplier shall take back and dispose of goods and/or their components as well as their packaging and, if applicable, their means of transport at its own expense in accordance with other German law or EU law, unless the parties have agreed otherwise. Paragraph (2) sentence 2 shall apply accordingly.
(4)
The supplier shall release us from the take-back or disposal claims of our customers or their customers pursuant to paragraphs (2) or (3) as soon as we request him to do so. Our claim for takeover/release by the supplier shall not become time-barred before the expiry of two years after the final termination of the use of the goods. This period shall commence at the earliest upon receipt by us of a written notification from our customer and/or its customer of the termination of use.
§ 10
Place of jurisdiction, applicable law, place of performance
(1)
German law is exclusively applicable to the transaction between us and the supplier. The UN Convention on Contracts for the International Sale of Goods is excluded.
(2)
For all disputes arising from the business relationship, the place of jurisdiction is the court responsible for the purchaser. However, we are also entitled to bring an action at any other statutory place of jurisdiction. Instead of bringing an action before an ordinary court, we may at our discretion – as plaintiff – settle a dispute arising in connection with the business relationship in accordance with the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V.). (DIS) to the exclusion of the ordinary legal process; the place of arbitration shall be the place where our registered office is located, the language of the arbitration shall be determined at our discretion (German or English).
(3)
Unless otherwise agreed, our registered office shall be the place of performance.
(4)
Should individual provisions of these GTCP be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a legally valid provision which comes as close as possible to the recognisably intended economic purpose of the invalid provision. The same shall apply in the event of a loophole in these GTCP.
(5)
Should several language versions of these GTCP exist and be used, the German language version shall prevail.
