General Terms and Conditions of Purchase from Kärcher Municipal GmbH
As of: January 2023
§ 1 Scope of application
1. Our General Purchasing Terms shall apply to all services purchased by us across all our fields of activity. These General Purchasing Terms shall, therefore, apply to the purchase of goods, charging of work, and charging of services.
2. They shall also apply to any future transactions, as well as to any business contacts with the service provider, such as commencement of contractual negotiations or initiation of a contract, even if not explicitly agreed or referred to again.
3. We do not recognise any terms and conditions of the service provider that deviate from or conflict with our purchasing terms. The service provider’s general terms and conditions are explicitly rejected.
4. Earlier agreements and earlier versions of our purchasing terms shall be replaced by these purchasing terms.
5. Execution of the ordered delivery/service as well as settlement of the agreed remuneration shall be deemed acceptance of the validity of these purchasing terms.
§ 2 Conclusion of a contract
1. We shall place our orders, change orders, and delivery call-offs in writing, by remote data transmission, fax, or email. In doubt, the content of any agreements made verbally or on the phone (discussions) shall only be binding if confirmed by us in writing. The service provider shall confirm any order, change order, or delivery call-off in writing without undue delay. If such confirmation is not submitted within seven working days of receipt of our order or change order, or if our order is not accepted within a period of seven working days, we shall no longer be bound by the order and shall have the right to withdraw from it. Delivery call-offs shall become binding if the service provider does not object to them within seven working days of receipt.
2. We retain title in any order documents, in particular any enclosed drawings or sketches. The service provider shall be obligated to quote the company codes specified in our non-binding enquiry or our written order in any correspondence. In any case, please state our order number, our item number, if we have already assigned one, as well as the name of the contact at our company.
3. Any reference to business relations with us in advertising materials or reference documents, or use of any trademarks and signs to which we are entitled shall require our prior written consent.
4. The quotation or cost estimate provided to us by the service provider shall be binding. The service provider shall prepare it free of charge.
§ 3 Contractual object
1. The service provider shall be obligated to deliver or perform the delivery/service ordered by us in accordance with the contractual agreements. Deviations shall only be permitted with our written consent. The service provider represents that the delivery/service will be provided using suitable materials and in compliance with the recognised rules of technology, the statutory and official safety regulations, and the environmental protection regulations that constitute applicable law or that have already been adopted with a transitional period and are certain to enter into effect.
2. If we order any parts manufactured by the service provider based on a drawing, sketch, or model provided by us, the service provider shall, at our request, submit a test log with the delivery of the object of the contract, indicating the product characteristics such as dimensions, etc. An initial sample test report shall be delivered free of charge for any initial samples.
3. If the service provider makes any changes in the type of composition of the processed material or in the constructive design of its products or services compared to similar deliveries or services previously provided to us, it shall inform us of this without undue delay. Changes shall generally require our consent.
4. The service provider shall perform the orders assigned to it in its own business. Transfer of orders to any third parties shall require our written consent. If the object of the contract with the service provider comprises advisory services or any other services that require personal performance by a specific person as the basis of the contract due to their content, the service provider shall be obligated to render the services personally through the respective person.
5. If we charge the service provider with provision of non-physical services such as design, consulting, or programming work, we shall acquire exclusive rights of use to the services created, unlimited in location or time, upon handover or performance of the contractual obligation. Any inventions in connection with provision of services shall be reported to us and the exclusive rights to such inventions shall be assigned to us. Personal rights of the inventor shall not be affected by this.
6. If we charge the service provider with provision of consulting, service, or work performances at our customers’ sites, the service provider shall observe our general instructions, in particular regarding quality management and documentation requirements.
7. If we charge the service provider with creation of copyright-protected services, the service provider shall grant us an exclusive, worldwide, transferable right of use to the protected service, unlimited in terms of time and content. The right of use includes the right to reproduce the work in tangible form, to distribute it, to exhibit it, to transfer it to visual and audio carriers, to reproduce the work in intangible form and to make it publicly accessible. The granting of the right of use shall in particular include the right to
7.1. reproduction and distribution of the work in print media (e.g., in advertising brochures, business cards, company brochures, business letters, newspapers, journals, magazines, leaflets, books, on posters and signs);
7.2. storage, reproduction, and distribution of the work on sound or data carriers (e.g., magnetic, optical, magneto-optical, and electronic carrier media such as CD-ROM, CD-I, and other CD derivatives, DVD, floppy disks, hard disks, working memory, microfilm, video cassettes), no matter the transmission, carrier, and storage technologies;
7.3. making available to the public by wired or wireless means by way of digital or analogue electronic distribution, no matter the technology used, via telecommunications and data networks of any kinds (e.g., online services, internet, intranet, cable systems, satellite systems, via mobile services such as mobile phones, WAP services, teletext, or navigation systems), including the right to allow users to “download”;
7.4. public reproduction of the work, in particular public exhibition;
7.5. taking of photographs as well as recording of the work on video or other film carriers and reproduction and distribution as well as making available to the public and public reproduction of photographs and recordings thus produced in accordance with clauses 7.1 to 7.7;
7.6. using the work in ways not yet known;
7.7. transferring all rights of use individually or as a whole to any third parties or granting rights of use in the work to any third parties. The service provider hereby agrees to transfer of the rights of use to third parties.
§ 4 Models, tools, drawings, sketches, logo
1. We retain title in any models, samples, production facilities, tools, measuring and testing equipment, drawings, works standard sheets, printing templates, or other materials that we provide to the service provider within the scope of a delivery/service. The service provider shall keep these free of charge with the care of a prudent businessperson and separately from any other items in its possession, marked as our property, and shall use them only for performance of our delivery/service. The service provider shall insure any models and tools made available to it against disasters such as fire, water, theft, and loss at its expense.
2. The service provider is hereby informed that any drawings or sketches may be protected by copyright and that our logos may be protected by trademark law. The service provider, therefore, commits to not passing on our logo, the drawings or sketches, and data, as well as any tools and models made based on these to any third parties without our prior written consent and to not using them in a manner not covered by the contract. We shall be entitled to claim flat-rate damages in the amount of EUR 10,000 (in words: ten thousand euros) for each case of culpable infringement of our copyrights or trademark rights; the service provider shall have the right to prove that we have suffered no or a lesser damage. If proof is rendered successfully, the claim to compensation shall only extend to the damage actually incurred. We reserve the right to prove that we have incurred a higher damage and claim this instead of or in addition to the flat-rate damages.
3. Upon completion of its service or dispatch of its delivery, the service provider shall transfer any order-related production equipment, tools, and models produced by it at our expense to us. We accept the transfer of title. If the objects remain with the service provider, handover shall be replaced by the production equipment and tools being loaned to the service provider for execution of the order.
4. As far as the service provider produces any goods on our behalf and with our assistance – e.g., by providing models, drawings, etc. – the goods of the respective type may be produced exclusively for us and delivered and sold to us.
§ 5 Payment terms
1. Payment periods shall commence on the specified delivery or performance date, no earlier than on the date of receipt of the goods or the date of complete performance of the service, its acceptance – if agreed or required by law – and proper invoicing. If the issue of any further certificates or material test certificates has been agreed, payment periods shall not commence before receipt of such documents. The documents shall form an essential part of the delivery and must be submitted no later than five days after receipt of the goods or invoice.
2. Unless otherwise agreed between the parties, the service provider shall grant a 3% discount on any payments made within 14 days of receipt of the goods; otherwise, payment shall be made net within 45 days. If any defects in the delivery occur or are discovered during this period, we shall have a right of retention and the service provider’s claim shall not fall due until the defect has been finally remedied or until a defect-free replacement delivery has been made. In this case, we shall also have the right to deduct a discount.
3. We shall have the right to make payments by cheque or discountable bill of exchange, the discount charges and taxes of which shall be borne by the service provider.
4. Settlement of an invoice shall not be deemed a waiver of any notices of defects. If a delivery is defective, we shall have the right to withhold a prorated share of the payment until proper performance.
5. We shall otherwise be due rights of set-off and retention as stipulated by law.
6. The service provider shall not have the right to assign its claims for payment of its remuneration to any third parties without our advance written consent. We shall not unreasonably withhold this consent.
§ 6 Prices, shipping, packaging, delivery
1. The agreed prices shall generally be fixed prices. If no prices are stated in the order, the service provider’s list prices shall apply, subject to the customary deductions. If the service provider reduces the prices for the ordered products before delivery, such reduced prices shall apply. In the absence of any agreement to the contrary, goods shall always be shipped to our specified delivery address insured and freight prepaid: CIP (Incoterms 2010) if shipped domestically or insured and duty paid: DDP (Incoterms 2010) if delivered from abroad. Packaging costs shall be borne by the service provider.
2. Packing slips must be enclosed with all deliveries and the respective shipping documents must be submitted on the day of dispatch of the goods. Complete order and item numbers must be stated in dispatch notices, waybills, parcel addresses, delivery notes, and invoices. The service provider’s VAT ID must be stated. Invoices must have invoice numbers. Deliveries without sufficient accompanying documents shall be delayed in handling and payment until clarification and shall be stored by us exclusively at the service provider's expense and risk until the service provider has remedied the issue. The service provider shall be exclusively liable for any damage and costs arising from inadequate observance and non-compliance with these terms and conditions.
§ 7 Delivery and payment terms
1. Agreed dates and deadlines shall be binding. Receipt of the goods by or completion of the service for us shall be decisive for compliance with the delivery date or the performance period. The service provider shall be obligated to inform us in writing without undue delay of any circumstances that occur or become apparent that suggest that the agreed delivery or performance date cannot be complied with. This notification shall not exempt the service provider from its liability for default.
2. The service provider must only cite lack of necessary documents or information to be provided by us or materials to be provided by us as an obstacle to a service if it has submitted a written reminder to us regarding provision of such documents, information, and materials and has not received them – as far as we owe their provision – within a reasonable period of time.
3. Early deliveries shall not affect the agreed due date of the payment. Partial deliveries shall only be accepted by explicit agreement. The remaining delivery must be listed in the delivery documents. If no partial deliveries were agreed, the agreed due date for the payment shall be calculated at the earliest from the day of complete delivery.
4. The service provider shall enter default of delivery even without any reminder being issued as soon as the respective binding delivery date is exceeded.
5. If the service provider exceeds the contractually agreed delivery period, it shall pay a contractual penalty of 0.15% of the delivery price (excluding VAT) to us per working day by which the delivery period is culpably exceeded, up to a maximum of 5% of the total delivery price. Any forfeited contractual penalty may be claimed up to the final payment.
6. If the delay in delivery is due to the service provider’s fault, it shall be liable without limitation for any damage incurred by us as a result of the delayed delivery; the forfeited contractual penalty shall be offset against the default damage.
7. Acceptance of a delivery shall not imply any waiver of claims for damages arising from default of delivery.
§ 8 Warranty for defects, liability
1. We shall accept delivered goods subject to inspection for freedom from defects. We shall comply with our obligation to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (Handelsgesetzbuch; HGB) regarding any obvious defects in the delivery/service if we submit a notice of defects within 14 working days of receipt of the delivery by us. As far as inspection of the delivery is not feasible in the ordinary course of business during this period, we shall inform the service provider of any obvious defects without undue delay following inspection and recognition of the defect. The service provider waives the objection of late notification of defects in this context.
2. If the delivery made/service rendered by the service provider is subject to any defects of material, we shall have the right to assert the statutory liability for defects of material.
3. As far as we are due any statutory claim to subsequent performance, the service provider shall, at our discretion, either remedy the defect or deliver a defect-free item.
4. As far as the incoming goods inspection is performed by sampling as agreed, we shall have the right to make claims for subsequent performance with regard to the entire delivery if a defect is found.
5. If subsequent performance fails or if the service provider refuses the chosen type of subsequent performance, we may withdraw from the concluded contract, reduce the remuneration claim against us, or, if the service provider does not prove that it was not at fault for the defects, claim damages instead of performance. This shall apply accordingly if subsequent performance by the service provider is unreasonable for us. This shall particularly be the case if the service provider does not comply with its obligation to remedy the defect without undue delay in spite of being asked to do so and if any acute danger or major damage are imminent. In such cases, we shall also have the right to remedy the defect on our own or to have it remedied by third parties at the service provider’s expense. This shall apply in particular if any major damage – in particular any claims of our customer due to default – can only be avoided by remedy of the defect by us or by third parties charged by us. We shall inform the service provider of this. Further legal claims – such as claims for reimbursement of expenses – shall not be affected by this.
6. Any limitation periods shall be suspended for the duration of the service provider’s attempts of subsequent performance. Suspension of the limitation periods shall commence at the time of our notification of defects. Suspension of the limitation period shall only end when the delivery object can be used without defects. The limitation period for any parts newly delivered within the limitation period in the scope of the warranty for defects shall recommence at the time when the service provider has fully satisfied our claims for new delivery, except if we had to assume based on the service provider’s behaviour that the service provider did not consider itself obligated to take the action, but only made the replacement delivery or remedied the defect as a gesture of goodwill or for similar reasons.
7. If any defect of material becomes apparent within six months of the transfer of risk, it shall be assumed that the item was already defective at the time of the transfer of risk, except if this assumption is incompatible with the nature of the item or the defect.
8. If the service/delivery received by us from the service provider is subject to any defect of title, the service provider shall indemnify us against any third-party claims, unless the service provider is not responsible for the defect of title.
9. The service provider shall be liable to us for damages without limitation in case of any form of culpable breach of obligations, no matter if direct or indirect damage, financial loss, or any other damage items are asserted. Apart from this, the service provider shall be liable under the Product Liability Act (Produkthaftungsgesetz) as far as its requirements are met.
10. If any claim is asserted against us due to a breach of domestic or foreign or official safety provisions or product liability rules or due to a defect of our products that is due to deliveries made or services rendered by the service provider, we may demand compensation from the service provider for the damage caused by its products and indemnification against corresponding third-party claims. In cases of fault-based liability, however, this shall only apply if the service provider is at fault. If the cause of the damage is within the area of responsibility of the service provider, it shall bear the burden of proof in this respect.
11. The costs to be reimbursed shall also include the costs of any necessary recall campaign, as well as any necessary costs of legal action. The service provider shall be informed of the content and scope of the recall campaign to be performed. The service provider shall be obligated to take out producer’s liability insurance for its obligations arising from its liability as producer of the delivery items.
§ 9 Rights of withdrawal in cases of force majeure
If the demand for the ordered goods is significantly reduced without any fault on our side due to events of force majeure, industrial disputes, operational disruptions not due to any fault on our side, unrest, authority measures, or any other unavoidable events that occur after conclusion of the contract, we may withdraw from the contract wholly or in part or request performance at a later date, without the service provider being entitled to any claims against us as a result, as far as the designated events are not insignificant in duration.
§ 10 Acceptance
1. If we owe acceptance of the service within the scope of the respective order, we shall declare in writing that the contractual services of the service provider have been rendered if the service has been rendered in accordance with the contract.
2. If we do not declare acceptance in time, the service provider may set a reasonable grace period for us for submission of such declaration. The service shall be deemed accepted upon expiry of this period if we neither declare acceptance in writing nor declare the defects still to be remedied in writing before then. The service provider must cite this as a legal consequence to us when setting the grace period.
3. There shall be no entitlement to partial acceptance.
§ 11 Property rights
1. The service provider shall be liable for ensuring that no third-party rights are infringed in connection with its delivery/service unless it is not at fault for the infringement.
2. If any third party asserts any claims against us due to alleged infringement of property rights, the service provider shall be obligated to indemnify us against such claims unless it is not responsible for the infringement of property rights. The indemnification obligation shall refer to any expenses necessarily arising from or in connection with the claim by a third party.
3. If the service provider already owns any industrial property rights in the ordered deliveries or services or the processes for their production, it shall inform us of these upon request, including the relevant registration numbers, and we shall receive an unlimited, free, non-exclusive right of use in them.
§ 12 Spare parts, price guarantee for the first three years after completion of serial production
1. The service provider commits to delivering spare parts for delivery items for the period of the anticipated technical use of such delivery items, but for no less than a period of fifteen years following delivery, at reasonable prices and on the terms of the underlying order. The service provider shall supply us at the last prices applicable during serial production for the first three years after serial production of the delivery items has ceased in general or towards us.
2. If the service provider discontinues delivery of spare parts after the expiry of this period of fifteen years, it shall inform us of this and give us the opportunity to place a final order. If an agreement on the terms or price cannot be reached or if the service provider discontinues delivery of spare parts without notification, it shall be obligated to provide us with the documents required for manufacture of the spare parts without undue delay upon request. We shall have the right to use the documents free of charge.
§ 13 CE declaration of conformity/manufacturer’s declaration/certificates
Delivery items must comply with all provisions, directives, and standards referring to the respective goods and be delivered with the stipulated certificates and confirmations. If any manufacturer’s declaration or declaration of conformity (CE) is required for the goods, the service provider must draw it up and make it available at its own expense without undue delay upon request.
§ 14 Non-disclosure
1. The service provider and we (“the Parties”) commit to keeping all information that becomes accessible to the Parties in connection with the contract and that is designated as confidential or recognisable as business or trade secrets based on any other circumstances, in particular any technical and commercial information, secret during the term of the contract and to not recording it or passing it on to any third parties or exploiting it in any manner – except if explicitly approved in writing in advance or required to achieve the purpose of the contract. This non-disclosure obligation shall remain in force for another further five years after complete performance or termination of the contract.
2. This shall not include any information
2.1. that was already known to a party before commencement of the contractual negotiations or that is communicated to it by any third parties without obligation of confidentiality, provided that this is not done in breach of confidentiality obligations in turn;
2.2. that the parties have each developed independently;
2.3. that is or becomes public knowledge through no fault or action of the parties; or
2.4. that must be disclosed due to legal obligations or official or court orders.
3. In the latter case, the disclosing party shall inform the respective other party without undue delay prior to disclosure. Further legal obligations of confidentiality shall not be affected.
4. We shall be entitled to claim flat-rate damages in the amount of EUR 10,000 (in words: ten thousand euros) for each case of culpable breach of this non-disclosure obligation by the service provider; the service provider shall have the right to prove that we have suffered no or a lesser damage. If proof is rendered successfully, the claim to compensation shall only extend to the damage actually incurred.
5. We reserve the right to prove that we have incurred a higher damage and claim this instead of or in addition to the flat-rate damages.
§ 15 Compliance
1. The service provider shall fulfil the due diligence obligations of the Supply Chain Due Diligence Act (LkSG) as amended from time to time (current version available here). This shall apply even if the service provider itself is not subject to the scope of the LkSG.
a) The due diligence obligations include, but are not limited to, establishing a risk management system, performing risk analyses, taking preventive measures and remedial action and establishing a complaints procedure.
b) The due diligence obligations refer to human rights-related and environment-related risks, in particular child labor, forced labor, failure to comply with occupational health and safety obligations, disregarding the freedom of association, unequal treatment in employment, withholding an adequate living wage, as well as usage of mercury, persistent organic pollutants and hazardous waste.
2. The service provider shall endeavour to oblige its sub-suppliers and subcontractors to the same extent.
3. The service provider grants us the right to carry out, once a year and additionally in case of a relevant cause, initial and further training measures for the employees of the service provider to implement the obligations under § 15 clauses 1 and 2. The service provider shall ensure that its employees will participate in the initial and further training measures. We may perform the training itself or via a third party.
4. We are entitled to verify once a year and additionally in case of a relevant cause, by our own employees or third parties, by way of an on-site audit and/or other suitable measures, whether the service provider fulfils the obligations under § 15 clauses 1 and 2. The service provider shall bear the cost for the respective audit. The service provider shall grant reasonable access to the relevant areas and documents. Except to the extent agreed otherwise, such verification may only take place during the business hours of the service provider and must not affect the business operations of the service provider. We shall give reasonable advance notice to the service provider of the respective audit.
5. A relevant cause in the sense of § 15 clause 3 or clause 4 occurs when we must expect a significantly changed or significantly expanded risk situation at the service provider or at the service provider's sub-suppliers or subcontractors.
6. Except to the extent statutory disclosure obligations exist, the Parties shall protect the trade and business secrets of the respective disclosing Party and comply with the data protection provisions applicable in the particular case as well as oblige accordingly third parties which the respective receiving Party engages.
7. If the service provider breaches an obligation under § 15 clause 1 and/or clause 2, we may set a reasonable deadline for the service provider to end the breach and/or otherwise remedy the breach. The period shall be at least four weeks, unless a shorter period is required to protect the life, body or health of a person. If the service provider does not end or otherwise remedy the breach within the deadline and provides us with corresponding evidence thereof, we may terminate the contract with immediate effect. This shall also apply if the service provider refuses, frustrates or obstructs initial or further training under § 15 clause 3 or an inspection under § 15 clause 4 and does not make the training or inspection possible to full extent without undue delay after being requested to do so by us. The service provider shall not be entitled to any remuneration, damages or other claims resulting from or in connection with such termination.
8. Notwithstanding the provision in § 15 clause 7, we may, with immediate effect, terminate the contract and the entire business relationship with the service provider if
a) the violation of a protected legal position or an environment-related obligation is assessed as serious,
b) the implementation of the measures developed in the concept does not remedy the situation after the time specified in the concept has elapsed,
c) we have no other less severe means at our disposal and
d) increasing the ability to exert influence has no prospect of success
(Sec. 7 para. 3 of the German Supply Chain Due Diligence Act (LkSG)). The service provider shall not be entitled to any remuneration, damages or other claims resulting from or in connection with such termination.
9. If the service provider breaches an obligation stipulated in § 15 clause 1 and/or § 15 clause 2, we may claim compensation for the resulting damage and expenses, unless the breach and the resulting damage was not caused by the service provider's fault.
10. The service provider warrants that its business activities are in accordance with the (i) statutory law, (ii) other legal provisions applicable to the service provider and (iii) the contractual agreements entered into with us. The service provider also warrants that it has taken sufficient organizational measures in its company to ensure compliance with the requirements described in sentence 1 above.
§ 16 Final provisions
1. The place of performance and exclusive place of jurisdiction for any disputes arising between the Parties from the contractual relationship shall be Metzingen, as far as the service provider is a merchant, a legal entity under public law, or a special fund under public law or if the service provider has no general place of jurisdiction in the Federal Republic of Germany or transfers its place of jurisdiction abroad. As an exception from this, we shall also have the right to sue the service provider at its general place of jurisdiction.
2. A merchant shall be any entrepreneur entered in the commercial register or operating a commercial business and requiring a business operation set up in a commercial manner. The service provider shall be deemed to have its general place of jurisdiction abroad if it has its place of business abroad.
3. If any provision in these purchasing terms or any provision within the scope of any other agreements is or becomes invalid, this shall not affect the validity of any other provisions or agreements.
4. The service provider is aware that data from business transactions, including personal data, may be stored and processed and transmitted to third parties as required for business. The service provider agrees to such data collection and processing.
5. The contractual language shall be German. If the parties also use another language, the German wording shall take precedence in accordance with the agreement.
6. The contractual and any other legal relationships with the service provider shall be subject to German law, subject to exclusion of the UN Convention on Contracts for the International Sale of Goods.