| || |
| Home > Copyright |
©2023 Mitsubishi Chemical Europe
| || || |
| || |
| || || || || |
Mitsubishi Chemical Europe GmbH - General Terms and Conditions
Sales and Services | Purchasing
General Terms and Conditions for Sales and Services
1.1. These general terms and conditions of business (“GTC”) apply to all sales and services (collectively referred to as “Deliveries”) provided by Mitsubishi Chemical Europe GmbH (“MCE”) to Customer.
1.2. MCE hereby expressly objects to any other General Terms and Conditions of Business of the Customer, even without an express objection or in case orders are accepted without reservation. Any other Terms and Conditions of the Customer deviating from the GTC become part of the contract only if they are agreed by MCE in writing. The waiver of this requirement of written form must also be made in writing. For the sake of clarity and for the purpose of interpretation of these GTC, fax and email waivers are not considered to be in writing.
1.3. Any invalidity of individual clauses will not affect the validity of the remaining provisions. In case MCE and the Customer enter into a separate supply agreement, all conditions in these GTC shall remain valid if they are not expressly set aside by the separate supply agreement.
2. Offer and Order Confirmation
2.1. All orders are subject to written order confirmation by MCE. Without written order confirmation by MCE, the orders shall not be binding between the parties.
2.2. If orders of the Customer depend on a quotation by MCE, such quotation (a quotation being a price reference calculated based on product(s) and respective volume request of Customer), unless otherwise specifically stated in the quotation, is valid if the Customer issues an order within 14 days from the date of the quotation by MCE. With the expiration of the 14-days term, the quotation is not binding on MCE.
2.3. The orders and their modifications or supplements as well as side agreements become binding only and to the extent of the content of MCE’s written order confirmation.
2.4. The Customer is responsible for the correctness and timely procurement of the documents the Customer has to provide.
3. Prices and Payment Terms
3.1. Unless otherwise agreed in writing, MCE’s prices are quoted EXW (Incoterms in its respective valid version) and do not include delivery costs, VAT, other taxes and duties (if applicable), at the statutory rate.
3.2. The purchase price is immediately due upon the invoice date net without deduction, setoff or withholding, unless otherwise agreed in writing. A cash discount deduction is always excluded, unless otherwise agreed in writing between the Customer and MCE.
3.3. Bills of exchange and checks are accepted only as conditional payment and are subject to MCE’s prior written agreement.
3.4. If the Customer defaults on payment or its creditworthiness position changes, MCE is entitled to ask for immediate payment of all Deliveries irrespectively of any acceptance of bills of exchange or checks or granting of deferment of payment in another way. Further, MCE may request any Deliveries subject to payment in advance, and may cancel and withhold, either partially or entirely, Deliveries of confirmed orders.
3.5. Should the Customer delay payment beyond the due date in accordance to section 3.3 above, the Customer shall pay interest of 9 percent points above the respective basic interest rate from the due date. MCE is entitled to seek further damages.
4. Delivery and Delivery times
4.1. Time of delivery is indicative and it is not binding.
4.2. MCE’s obligations, including Deliveries, will be suspended in case of force majeure event(s) as for instance through wars, natural disasters, pandemics/epidemics, strikes, lockouts, operating troubles, shortage of manpower and raw material, transportation hold-ups as well as governmental directives (including embargoes or sanctions) that prevent or delay the production or transportation or delivery. This also applies when MCE’s suppliers or affiliates are affected by any of the above. If the delivery is permanently made impossible by foresaid events MCE is entitled to withdraw from the contract without any liability for damages. In particular, in the case of any Deliveries which are subject to the export licensing laws of Germany, the EU, the UK, Japan, USA or any other applicable country or state(s), any failure to obtain or any delay in obtaining such export license shall not render MCE liable to Customer.
4.3. The fulfilment of MCE’s delivery obligation is subject to the timely and properly fulfilment of the obligations of the Customer. Partial Deliveries are admitted and can be charged separately.
4.4. In case of multiple delivery contracts or blanket purchase orders, MCE may fix a reasonable deadline for the request or acceptance for the partial or total delivery. After the expiration of MCE’s deadline, MCE may terminate the contract and claim damages for non-performance in respect of the remaining quantity ordered.
4.5. If solely by MCE’s fault MCE does not keep a delivery time that was assured and confirmed in writing, the Customer shall be entitled to set a reasonable period of grace after the expiration of the delivery time and to terminate the accepted order after the expiration of the period of grace. Claims for damages caused by undue delay shall be excluded. Insofar as goods are delivered from overseas “reasonable” shall be a period of grace of at least 12 weeks.
4.6. MCE is not liable for inability or delays regarding the Deliveries, if and to the extent that these are caused by circumstances in the responsibility of the Customer, in particular due to his fulfillment of public legal obligations under the valid version of Directive (EG) No. 1907/2006 (REACH Regulation).
4.7. Unless otherwise agreed in written form (in particular according to Incoterms in its respective valid version) the risk of loss and damage shall be transferred EXW.
4.8. If the Customer delays the acceptance of the Delivery or refuses the acceptance of Delivery for no apparent reason, MCE will charge the costs and additional expenses incurred to the Customer. MCE reserves the right to assert additional damages.
4.9. In the case of Deliveries in bulk for by weight, Customer shall accept normal manufacturing tolerances and quantities/weights varying by not more than 10% from the contract quantity, and shall pay pro rata for the actual quantity/weight delivered. The quantity stated on MCE’s dispatch order confirmation shall be conclusive evidence of the amount delivered, unless Customer can provide conclusive evidence proving the contrary. Nothing in the foregoing shall affect the rights of any party arising from any relevant specification.
4.10. For export of the goods or services, MCE agrees to comply with applicable export laws and regulations and undertakes to obtain, if applicable, any UK license(s) required for the export of the goods from the UK. Customer undertakes to comply with any such license(s). If Customer wishes to re-sell or reexport the goods it may do so only in accordance with section 9, on obtaining prior written consent from MCE and on obtaining and complying with all necessary licenses, permits and consents (including without limitation all export and import licenses) as required under applicable laws.
5. Retention of Title
5.1. The title to all Deliveries (“Conditional Goods”) remains with MCE upon full payment of all debts including future debts, arising from the business relationship with the Customer. This also applies if payments are made against specially designated debts. If an invoice is still outstanding the retained title shall serve as a security for the balance due to MCE.
5.2. Processing or conversion of the Conditional Goods is carried out on behalf of MCE without any obligation for MCE. MCE is considered the manufacturer in the meaning of section 950 of the German Civil Code, and MCE acquires ownership of the intermediate and end products, excluding the Customer as owner, in proportion to the invoice value of MCE’s Conditional Goods to the invoice values of the third-party goods. The same applies to combination or mixing of Conditional Goods with third-party goods in the sense of sections 947, 948 German Civil Code.
5.3. The Customer holds the Conditional Goods in custody for MCE and free of charge and undertakes to insure the Conditional Goods against the normal risks, such as but not limited to fire, water, theft etc. The Customer may sell, use for manufacture, mix or combine the Conditional Goods only in the course of his ordinary business and only as long as he is not in default of payment. The Customer is not entitled to otherwise dispose of the Conditional Goods, especially not to pledging and assignment by bill of sales as a security. The power of disposition shall end if the Customer stops payments, or if there is a risk of insolvency, and further at any time when MCE revokes this right.
5.4. In the event of resale, the Customer hereby assigns to MCE any claims together with all subsidiary rights arising from the resale of the Conditional Goods to third parties until full settlement of all claims arising from the business relationship with MCE. In the normal course of business, the Customer is entitled to collect claims arising from the further use of Conditional Goods. If facts come to MCE’s knowledge which indicate a significant deterioration in the Customer’s financial situation, then, upon MCE’s request, the Customer must inform its Customers of the assignment, refrain from disposing of the debts in any way, give MCE all the necessary information about the inventory of goods which are MCE’s property and the claims assigned to MCE, and shall provide MCE with the necessary documents to enforce the assigned claims. In case of levies of execution or seizure attachments by third parties the Customer must inform MCE immediately. The Customer shall bear costs caused by MCE’s intervention.
5.5. MCE shall release the securities at the request of the Customer, as far as their value exceeds the claim to be secured by more than 10 % of the value of the accepted order.
5.6. As far as the respective national law, where the goods are in custody of the Customer, requires further steps for the validity of the retention of title, for example, the registration with a registry, the Customer has to perform them on its own costs and has to deliver prove about this to MCE
6.1. MCE warrants that the Deliveries comply with MCE’s product or service specifications at the time of manufacturing or performance. MCE does not provide any further expressed or implied warranty on the Deliveries including but not limited to implied warranties of merchantability, fitness for any particular purpose and non-infringement of third-party rights. References to norms or similar regulations, information in safety data sheets, information on the applicability of the Deliveries and statements in advertisements are neither warranties nor guarantees. The same applies to conformity declarations. In particular, pertinent identified uses according to the REACH Regulation [EG.] No. 1907/2006 represent neither an agreement concerning a corresponding contractual property nor a contractually stipulated utilization.
6.2. Immediately after receipt the Customer shall examine the goods for defects in quality or errors in quantity and shall notify MCE in writing, no later than 5 days after receipt, pointing out the order data, invoice- and lot number. Other defects must be notified to MCE in writing immediately when they become visible and no later than 5 days. If MCE is not notified in time about the defects, the Deliveries are approved by the Customer. In any case, MCE must have the opportunity to verify the complaint.
6.3. If the notice of defects is made in time and MCE confirms that the Deliveries do not comply with the applicable specification, MCE undertakes, at MCE’s option, to rectify or replace the Deliveries.
6.4. Any advice in the mode of application is not binding on MCE and shall not release the Customer from its duty to check whether the goods are suitable for the procedures and technologies intended by it or its customers. Other than the warranty scenarios described in section 6.1 above, MCE does not assume any liability and all and any claims for damage against MCE related to advice, suggestions, recommendations and/or any other communication about the mode of application shall be excluded.
6.5. All warranty claims of Customer according to this section 6 are time-barred after 12 months upon the transfer of risk of the Deliveries. This section 6.5 does not apply to claims arising from (i) injury to life, body or health, (ii) willful or grossly negligent breaches of duty of MCE or its vicarious agents or (iii) the German Act on Product Liability (ProdHaftG) or any other mandatory liability, which shall in each case be time-barred in accordance with the statutory provisions.
6.6. Further claims are excluded in accordance with section 7 below.
7. General Liability Limitation
The liability of MCE under these GTC shall be limited as follows: MCE shall be fully liable for damages in the event of intent or gross negligence. In the event of slight negligence (einfache Fahrlässigkeit) MCE shall only be liable for damages to life, body and health resulting from a culpable breach of duty by MCE as well as for damages resulting from breach of an essential contractual obligation (i.e. an obligation the fulfilment of which is essential for the proper performance of the agreement and the observance of which the other party regularly relies on). In the event of a breach of an essential contractual obligation, MCE’s cumulative liability shall be limited to the foreseeable, typically occurring damages. The parties agree that the amount of the foreseeable, typically occurring damages does not exceed the amounts paid by Customer to MCE for the affected accepted order, but in no event less than the amount of the foreseeable, typically occurring damages. The limitations of liability set out herein shall also apply to any special, incidental, consequential or indirect damages arising from or in relation to any Deliveries. The limitations of liability set out herein shall also apply to damages resulting from a breach of duty by vicarious agents or legal representatives of MCE. Liability according to the German Product Liability Act, in case of maliciously concealed defects and in case of an accepted quality guarantee for the Deliveries remains unaffected.
If the Customer notifies MCE of a use according to Article 37.2 of the Regulation [EC] No. 1907/2006 of the European Parliament and the Council on registration, evaluation, authorization and restriction of chemical substances (“REACH Regulation”) which requires an updating of the registration or substance safety data report, or another obligation under the REACH Regulation, the Customer bears all verifiable expenditure. MCE is not liable for any delivery delays resulting from the notification of this use and the fulfilment of the corresponding obligations according to the REACH Regulation. In case, for reasons of health or environmental protection, it is not possible to include this use as an identified use, and should the Customer intend, contrary to MCE’s advice, to use the goods in a manner MCE discourages, MCE can immediately terminate the contract and any accepted orders. The Customer cannot claim damages against MCE from the above-mentioned regulations and process.
9. Export control
9.1. Unless otherwise agreed in writing, Customer shall be responsible for compliance with statutory and regulatory requirements for the import, transport, storage, use, distribution, and export of the Deliveries. In particular, but not limited to, the Customer shall not use, sell or otherwise dispose of any of the Deliveries (i) for the development or production of biological, chemical or nuclear weapons; (ii) for the unlawful manufacture of drugs; (iii) in violation of embargoes or sanctions imposed by Germany, the EU, Japan, or the USA or any other applicable country or state; (iv) in violation of any legal registration or notification requirement; or (v) without having obtained all relevant approvals required under applicable laws and regulations. The Customer shall indemnify MCE against, and hold MCE harmless from, any claims, damages, costs, expenses, liabilities, loss, claims or proceedings whatsoever arising out of, or in connection with, any breach by Customer of its obligations set in this section 9.
9.2. Where a statutory or regulatory approval requirement applies to the export of MCE’s Deliveries at the time of delivery/performance and such export approval is not granted upon request, MCE shall be entitled to terminate the agreement or accepted order without any liability for MCE. Delays in obtaining such approvals by responsible authorities will not result in the right of the Customer to claim damages.
9.3. MCE is also entitled to terminate any accepted orders in the event a trade prohibition applies at the time of delivery or in the event a product registration obligation applies and registration at the time of delivery/performance has not been applied for or granted. Besides section 9.1 to 9.3, the following conditions shall apply where the Deliveries are or include carbon fibers or any other dual use Deliveries.
9.4. The Customer has represented that it is purchasing the goods as a raw material to be used by the Customer in its own works in the country specified in the Customer’s order form for the manufacture of an article or articles, and to the extent that MCE is permitted by law to impose such restriction, (and subject always to section 4.10 above), the Customer shall not without the MCE’s written consent re-sell or re-deliver the goods or any part thereof to any other person, firm or company or transport any of the goods outside the said country until the Deliveries have been converted into such articles.
9.5. It is a condition of the contract that the Customer is contracting as principal and not as agent of another person, firm or company and the Customer shall not without MCE’s written consent assign all or any of its rights or obligations under the contract.
The Customer must keep secret and confidential all information received from MCE and/or its affiliated companies in the context of the business relationship and refrain from disclosing it to third parties.
11. Jurisdiction and Governing Law, Place of fulfillment
11.1. Place of fulfillment for payment and deliveries is Düsseldorf. Exclusive place of jurisdiction is Düsseldorf.
11.2. The contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany with the exclusion of the rules of conflict of laws of the German Private International Law. The application of the UN-Convention on International Sales of Goods of April 11, 1980 is excluded.
| || |
| Home > Copyright |
©2023 Mitsubishi Chemical Europe
| || || |
| || |
| || || || || |
Mitsubishi Chemical Europe GmbH - General Terms and Conditions
Sales and Services | Purchasing
General Terms and Conditions of Purchase
1. General Provisions; Scope of Application
1.1. All present and future legal relations between Mitsubishi Chemical Europe GmbH (hereinafter, the "Customer") and the Supplier shall comply with these Terms and Conditions unless the wording of the order or other enclosed special terms and conditions to the order contain provisions to the contrary. The Customer hereby expressly objects to any other General Terms and Conditions of Business of the Supplier. Neither the unconditional acceptance of deliveries or service performance nor the unconditional payment of the Supplier's invoices shall be considered as acknowledgement of the General Terms and Conditions of Business of the Supplier.
1.2. The INCOTERMS 2020 of the International Chamber of Commerce in Paris as effective on the date of delivery or performance shall apply additionally in cross-border business transactions.
1.3. All agreements concluded between the Supplier and the Customer under these GTCP must be made in writing; this shall also apply to any waiver of this requirement for the written form. All amendments of and supplements to the respective agreement shall be valid only if made in writing; this applies also to changes in the requirement for written form. Emails do not comply with this written form requirement.
2. Offer; Order
2.1. The Supplier must precisely adhere to the enquiry of the Customer in the offer and expressly point out any deviations. The offer must be made free of charge and shall not establish any obligation by the Customer. The complete order number, date of order and Customer reference are to be indicated in all correspondence. The Supplier shall be responsible for any consequences arising due to the nonobservance of this obligation unless the Supplier can prove that it is not responsible.
2.2. In the event the Supplier does not accept an order of the Customer within two weeks after having received it, the Customer shall be entitled to revoke the order.
2.3. Certain products consumed on a repetitive basis form the subject of an open order which defines the product, point of delivery, price, mode of transport and, purely as an indication only, the overall quantities anticipated for a given period. The dates of delivery and the quantities to be delivered will then be determined by calls or schedules for delivery. Calls for delivery will always mention the open order number to which they refer. In the scope of an open order, the Supplier shall, at the Supplier’s own expense, keep a standby stock permanently available and renew said stock in order to prevent breaks in delivery.
3. Prices; Terms and Conditions of Payment
3.1. Unless agreed otherwise in writing, the prices agreed shall constitute fixed prices. Such prices shall include the expenses for packaging, freight and transport to the receiving point specified by the Customer as well as the costs of transport insurance. The agreed prices shall not include the statutorily applicable value added tax.
3.2. Payments are rendered after the flawless delivery or acceptance, the receipt of the documents requested in the order as well as a proper and auditable invoice. Unless otherwise specified in the order, the payment shall be made within 30 days net from the receipt of the invoice or the products or services, whichever is last. If payments are rendered within 14 days from the latest of the receipt of (i) the invoice or (ii) the products or the services, as the case may be, the Customer is granted a 2% discount.
3.3. The Supplier is entitled to offset and/or retention according to statutory provisions, including if the applicable claim is undisputed or has been established by a court of law
4. Delivery Period; Delivery
4.1. The Supplier acknowledges that the nature of Customer’s activity is such that the delivery dates requested by Customer and accepted by the Supplier are of the essence for Customer. The delivery dates specified in the order shall be binding. The Customer is to be informed without delay in writing of all circumstances which render the observance of the delivery dates stipulated in the order form impossible and the likely duration of the delay. The Supplier shall be obligated to provide information regarding the state of the production upon the request of the Customer or its agent.
4.2. The Customer or its agent shall be entitled to convince itself of the state of production in the factory of the Supplier or its contractors during normal business hours. The delivery note and packing slip are to be enclosed in the delivery. The order number and information regarding the unloading point prescribed by the Customer are to be indicated in full in all dispatch notices, delivery notes, packing slips, consignment notes, invoices and on the outside of all packages. All shipments that cannot be accepted due to the non-observance of these provisions shall be stored at the expense and risk of the Supplier. In the case of a delayed delivery the Supplier is liable for all damages and Customer shall have all rights according to the German civil law.
4.3. The Supplier shall package, label and ship hazardous products according to the applicable national and international laws and regulations. The Supplier complies with all obligations for suppliers (pursuant to Article 3 (32) Regulation (EC) No. 1907/2006/EC (hereinafter "REACH")) under REACH with respect to the delivery of goods. The Supplier shall in particular provide the Customer with a safety data sheet according to Article 31 REACH in the national language of the recipient country in all cases stipulated in Article 31 (1) to (3) REACH. The Supplier guarantees that all materials contained in the goods have effectively been pre-registered, registered (or exempt from the obligation to register) and – if relevant – authorized in accordance with the applicable requirements of REACH for the uses disclosed by the Customer.
4.4. If the goods classified as an article according to Article 7 REACH the preceding subsection shall also apply to substances released from such goods. In addition, the Supplier shall forthwith notify the Customer if a component of the product contains a substance in a concentration exceeding 0.1 mass percent (W/W) if this substance fulfills the criteria of Article 57 and 59 REACH (so-called substances of very high concern). This also applies to packaging products
5. Transfer of risk and of ownership
Unless otherwise agreed in writing by the Customer, the risk of loss and deterioration of goods shall pass to the Customer in accordance with DDP (delivered duty paid; INCOTERMS 2020). Ownership of the goods transfers to the Customer upon delivery. If the parties have agreed a delivery inclusive of installation / assembly / service, the risk of loss or damage shall pass to the Customer after the installation / assembly / service has been duly completed in accordance with the contract and following the handover of the goods
6. Inspection and claims Based on Defects
6.1. The Supplier will deliver goods of highest quality and perform its services with the latest state of the art science and technology. The Supplier will perform a final inspection of the goods before they will be delivered to Customer. In connection with the obligation of Customer to inspect the delivered goods in accordance with sec. 377 of the German Commercial Code (HGB), this obligation shall be limited to a minimum inspection of obvious defects or defects which are easily recognizable in normal use. As far as a defect can only be determined upon initial use, the scope of the inspection obligation is initially limited to recognizable external defects.
6.2. Should tests or remarks made by Customer in the course of the manufacture, procurement and assembly of the goods and the performance of services indicate that the goods supplied or the services performed might not satisfy any one of the stipulations of the order or the safety requirements of the good or service, or the laws or regulations in force, Customer may reject the entire supply or the incriminated part thereof. The Supplier shall then replace said entire supply or part thereof at the Supplier’s expense as soon as possible without laying claim to any increase in price or any compensation. In the event of a partial rejection, Customer will defer payments to the Supplier in question until the order is completed in full. Rejection may also relate to goods or services already delivered to Customer should it prove that the shortcomings noted were already in existence when said goods were made or services provided. In this case, and if all of the goods or services are rejected for good, any payments already made by Customer to the Supplier will be reimbursed within fourteen days of notification of rejection. Rejected merchandise which has already been supplied will remain at the disposal of the Supplier, at the Supplier’s own expense and risk. Any transport costs incurred by Customer for said merchandise will be charged to the Supplier
6.3. In addition, the Customer is entitled to the statutory legal claims based on defects without limitation and in full. For instance, the Customer shall be entitled, in accordance with the statutory provisions, to request the remedy of the defect, either by repair or replacement of the goods at the Supplier's expense and/or to withhold payments due. If the Supplier has assumed a guarantee for the quality or durability of the defect goods, the Customer may also assert claims under the guarantee.
6.4. If (i) the Supplier does not fulfill its duty to rectify any defects as specified without having valid grounds to refuse to provide rectification, (ii) the Supplier seriously and irrevocably refuses to provide rectification, (iii) rectification has failed, (iv) there are fears of a loss of use of the goods, or (v) rectification may not be further postponed due to other reasons, the Customer has the right to remedy the defects itself at the cost and liability of the Supplier, or allow this work to be undertaken by third parties. The Customer is in this case entitled to demand compensation from the Supplier for the required measures.
6.5. Claims based on defects shall be time barred after 24 months of the performance of the service or delivery of the good to the Customer at the place of performance or the acceptance by the Customer (transfer of risk).
7. Product Liability and insurance
7.1. In the event that the Supplier is responsible for defective products it shall be obligated to release the Customer from third-party claims for damages upon its first request inasmuch as the cause lies within the scope of control and organization of the Supplier and it is liable for damages to third parties.
7.2. The Supplier shall maintain product and business liability insurance with reasonable insured sums, as is customary in the industry, which shall be proven to the Customer upon request. The Supplier’s contractual and legal liability remains unaffected by the extent and amount of its insurance coverage.
8. Compliance with laws, export control and hazardous material
8.1. The goods and services provided by the Supplier must comply with the European Union, German and other applicable laws, and any other law expressly stated in the order issued by the Customer.
8.2. The Supplier must provide correct and upto date information on export control status for German, EU and/or US laws for the products and/or services sold to the Customer. If applicable, the Supplier must provide the Customer with the chemical status under German and/or EU chemical legislation for the products sold to the Customer.
9. Quality management system
9.1. The Supplier shall maintain a quality management system and related documented procedures, at least in accordance with DIN ISO 9001. This system must ensure that the goods and services comply with (a) applicable statutory and legal requirements; (b) the applicable warranties; (c) applicable industry practices; and (d) standards and any other requirements specified in the Customer’s orders.
9.2. The Customer, directly or through third parties, is entitled to audit the Supplier to verify the quality management system.
10. Rights to Documents; Secrecy
10.1. The Customer hereby reserves the title and copyright to designs, internal standards or guidelines of the Customer, analysis methods, formulas, models, calculations and other documents sent to the Supplier occasionally or within the framework of the performance of the agreement or the development of the contractual relation or of which the Supplier becomes aware otherwise.
10.2. The Supplier shall treat all documents received by Customer as well as all other technical and business information entrusted in it during the term of the business relationship and thereinafter as strictly confidential, only use such documents and information for the purpose of the respective agreement and also impose corresponding obligations on its employees on a need-to-know basis.
10.3. The Supplier shall return all designs, standards, guidelines, analysis methods, formulas, figures, patterns, calculations and other documents sent to the Supplier and any copies thereof to the Customer without delay after the order has been processed or at any time upon request by the Customer.
10.4. The above obligations shall not apply to that information of which the Supplier was already aware or which are state of the art generally accessible by the public or which becomes such without the fault of the Supplier, which was legitimately obtained by the Supplier from other legitimated third parties or was produced by the Supplier within the framework of its own, independent development.
10.5. The Supplier must provide the Customer all documents necessary for the discussion of the delivered goods. Such discussions or other participation of the Customer shall be in the Supplier's scope of responsibility and shall not release the Supplier from any warranty or other obligations. The Customer is to be provided with documents of any type necessary for the use, setup, installation, processing, storage, operation, servicing, inspection, maintenance and repair of the item delivered in good time without being requested to do so and free of charge.
11. Data Protection
11.1. The Supplier must comply with all relevant data protection laws and regulations. The Supplier shall inform its employees of the applicable data protection laws and policies. At Customer‘s request, the Supplier must provide Customer with the relevant statements of compliance and/or access to verify compliance with data protection laws.
11.2. In case the Supplier, in the course of the performance of the respective contract, receives from the Customer or otherwise obtains personal data related to employees of Customer (hereinafter referred to as “Personal Data”) the following provisions shall apply. If processing of Personal Data disclosed in the aforementioned manner is not carried out on behalf of the Customer, Supplier shall only be entitled to process Personal Data for the performance of the respective contract. Supplier shall not, except as permitted by applicable laws, process Personal Data otherwise, in particular disclose Personal Data to third parties and/or analyze such data for its own purposes and/or form a profile.
11.3. If and to the extent permitted by applicable laws, Supplier is entitled to further process the Personal Data, in particular to transmit Personal Data to its affiliated companies for the purpose of performing the respective contract Supplier shall ensure that Personal Data is only accessible by its employees, if and to the extent such employees require access for the performance of the respective contract (need-toknow-principle).
11.4. Supplier shall structure its internal organization in a way that ensures compliance with the requirements of data protection laws. In particular, Supplier shall take technical and organizational measures to ensure a level of security appropriate to the risk of misuse and loss of Personal Data. Supplier will not acquire ownership of or other proprietary rights to the Personal Data and is obliged, according to applicable laws, to rectify, erase and/or restrict the processing of the Personal Data. Any right of retention of Supplier with regards to Personal Data shall be excluded.
11.5. In addition to its statutory obligations, Supplier shall inform Customer in case of a Personal Data breach, in particular in case of loss, without undue delay, however not later than 24 hours after having become aware of it. Upon termination or expiration of the respective contract Supplier shall, according to applicable laws, erase the Personal Data including any and all copies thereof.
11.6. Each party is responsible for Personal Data for which it is considered data controller. In case that personal data is being processed by one party as data processor for which the other party is the data controller, the parties will enter into a data processing agreement provided for by Customer for this purpose as mandatory under the relevant data protection regulations.
12. Rights to Manufacturing Equipment and Work Results
12.1. Moulds, models, tools, film, etc. produced by the Supplier for the performance of the order shall be transferred to the ownership of the Customer upon their payment, even if such items remain in the possession of the Supplier. The Parties hereby agree that from now on the Supplier shall possess the moulds, models, tools, film, etc., on behalf of the Customer in the context of a loan free of charge for the Supplier. The Customer may request the surrender of such items at any time. Retention rights of the Supplier are excluded unless such claims are asserted due to finally adjudged counterclaims or recognized by the Customer. The Supplier shall be obligated to use the moulds, models, tools, film, etc. exclusively for the manufacturing of the goods ordered by the Customer. The Supplier shall be obligated to insure the moulds, models, tools, film etc. belonging to the Customer against damage due to fire, water and theft at its own cost at the replacement value. At the same time, the Supplier hereby assigns all compensation claims from these insurance policies to the Customer in advance and the Customer hereby accepts such assignment. The Supplier shall be obligated to perform any necessary servicing and inspection work as well as any maintenance and repair to the said moulds, models, tools, film, etc. at its own expense in good time and to document this for each item in a separate manual.
12.2. The Supplier shall grant the Customer freely transferable rights of use free from any restrictions as to area, content or time for all plans, drawings, graphics, calculations and other documents related to the contract in all known media formats including electronic media, Internet and online media saved to all imaging, audio and data storage devices (hereinafter “Work Results”). These Work Results may have either been prepared by the Supplier itself or by third parties The Customer has the right in particular to exploit, duplicate and distribute such Work Results wholly or in part as well as to modify them, revise them, or have the aforementioned activities carried out by third parties. The Customer also has the right to grant third parties the same complete rights to use such Work Results wholly or in part inclusive of any intermediate changes and/or revisions. The Supplier shall grant the Customer the right of use for Work Results of the aforementioned scope including for all types of use whatsoever whether or not known at the time of Contract award. The applicable legal regulations shall apply in this regard. In acquiring licenses and Work Results from intellectual services, especially studies, specifications, user requirement and functional design specifications, specific developments in and customization of software, the Customer has the absolute and irrevocable right to use all such Work Results at the Customer's premises and at the premises of all of its affiliated companies.
13. Installation, Servicing, Inspection, Repairs
In the event installation, servicing, inspection, repair, etc. is performed by the Supplier at the Customer’s premises, the Customer’s safety and administration regulations for external companies shall apply. In the event the Customer does not hand out such regulations prior to the commencement of the work, the Supplier must request these from the Customer’s work safety department. The Customer shall bear no risk for the property used by the Supplier or its employees.
14. Third-Party Rights
14.1. The Supplier hereby guarantees that no patents, copyrights, trademark rights or any other third-party proprietary rights are infringed or competition claims of third parties are justified upon in connection with its deliveries or performances. In the event recourse is nevertheless taken against the Customer by a third party for damage compensation due to an infringement of any third party rights, the Supplier shall be obligated to release the Customer and its sublicensee or customer from such claims upon first written demand and to reimburse the Customer and its sublicensee or customer for any expenses or damage incurred in the fulfillment of the claims which can only be fulfilled by the Customer in person. The Supplier will amend the items of its delivery or performance in a way that future infringements of third-party rights or competition claims are excluded or will provide the Customer with a respective license without any additional costs to be incurred for the Customer.
14.2. The Customer shall not be entitled to conclude any agreements with the third party to resolve its claims due to the infringement of third party rights without the approval of the Supplier; in particular, the Customer may not reach a settlement. The Supplier's duty to release the Customer shall refer to all expenses necessarily incurred by the Customer or a sublicense from or in connection with a third party's assertion against the Customer.
Subcontractors may not be employed or replaced by the Supplier, unless agreed in writing by the Customer. If the Supplier intends to use subcontractors to perform the contract, the Supplier must inform the Customer in writing at the time of submission of its offer. The Supplier shall be responsible for the performance of the contract by its subcontractors vis-a-vis the Customer.
16.1. If the agreement is a continuous obligation, Customer is entitled to terminate the agreement at any time without notice period. Customer is also entitled to partial termination, if it can reasonably be expected of Supplier.
16.2. Any agreement may be terminated without notice for good cause. Grounds for good cause shall, in particular but without limitation, include: (i) serious breach of duty by the Supplier which is not remedied within a reasonable period of time stipulated by the Customer after the written complaint is received; or (ii) a considerable deterioration of a party's financial situation which threatens to impact such party' s ability to perform its obligations under the agreement and / or to discharge of its tax and / or social security liabilities; or (iii) the purchase or use of the goods or the service is or will be either entirely or partly impermissible due to legal or official regulations.
16.3. If the Supplier has acquired from the Customer any documents, records, plans or drawings within the scope of or for the purposes of fulfilling the agreement the Supplier must forthwith hand them over to the Customer in the event of termination of the agreement. These requirements apply likewise in the event of rescission.
16.4. Any termination notice must be made in writing.
| || |
17. Code of Conduct principles
17.1. The Supplier has the duty within the scope of its entrepreneurial responsibility to ensure that the applicable laws and regulations are fulfilled in the manufacture of products and the provision of services. In addition, the Supplier will comply with principles of responsible corporate governance.
17.2. In particular, the Supplier will not participate in any form of bribery, whether active or passive, direct or indirect. It shall comply with all fundamental applicable standards of occupational health, safety, labor and human rights, including not tolerating child labor or the violation of the fundamental rights of employees. The Supplier shall take responsibility for the occupational safety and health of employees. Environmental resources are to be managed carefully and responsibly. It shall comply with fundamental enviornmental protection standards and endeavor to use energy saving, efficient production processes and environmentally sound materials. The Supplier is obliged to comply with the standards and requirements of Customer’s Business Partner Code of Conduct and shall demand and support as best possible that its suppliers fulfill these principles as well, in particular, that its suppliers comply with human rights and environmental due diligence obligations in order to avoid or minimise human rights or environmental risks or to end the violation of human rights or environmental obligations in accordance with the German Supply Chain Due Diligence Act ("LKSG").
17.3. The Supplier undertakes to comply with the human rights and environment related obligations described in the LKSG and to avoid or minimise such risks and put an end to violations of the human rights and environment-related obligations. Furthermore, the Supplier undertakes to instruct its officers and employees to comply with the human rights and environment-related obligations and to conduct training for its officers and employees regarding compliance with these obligations. At the request of the Customer, the Supplier's employees shall participate in appropriate training organised by the Customer.
17.4. The Customer reserves the right, upon prior written notice, to conduct audits at the Supplier's premises, either itself and/or through appointed third parties, in order to verify and ensure the Supplier's compliance with its obligations under this Section 17. The Supplier shall provide the Customer and/or the appointed third party with all data, documents and other information in written, oral and/or electronic form that the Customer and/or the appointed third party reasonably requests for the audit.
17.5. In the event that the Customer identifies or the Customer reasonably suspects or has evidence of a breach by the Supplier or any of its contractors or suppliers of any level of any human rights or environmental obligation, the Supplier shall take and implement appropriate corrective action or require its contractors or suppliers to take and implement such action as reasonably requested by the Customer.
17.6. The Customer shall have the right to require that the Supplier shall promptly (i) develop with the Customer a remedy plan to end the breach of a human rights or environmental obligation, including a specific timetable for such remedy plan, and (ii) implement such measures as the Customer may reasonably request to implement such remedy plan.
17.7. The Customer expressly reserves the right to terminate the contract with the Supplier with immediate effect or to withdraw from the contract if (i) the Supplier fails to comply with its obligations under this Section 17, or (ii) the human rights or environmental obligations are materially breached by the Supplier, or (iii) the implementation of the remedy plan has not remedied the breach of a human rights or environmental obligation within a time schedule specified in the remedy plan.
18. Minimum-Wage Law (Mindestlohngesetz) and the Employee-Deployment Law (Arbeitnehmer-Entsendegesetz)
The supplier is obliged to follow the Minimum-Wage Law (Mindestlohngesetz) and the EmployeeDeployment Law (Arbeitnehmer-Entsendegesetz) in their actual versions. Supplier pays his employees a salary which fits to these laws and makes sure that his suppliers do the same with their employees and follow the above mentioned laws.
19. Severability clause
The invalidity or unenforceability of any provision or part of a provision of these GTCP shall not affect the validity of the entire GTCP. The Parties agree to replace possibly invalid clauses by valid clauses which come as close as possible to the commercial purpose of the invalid clause. The same applies to potential contractual gaps.
20. Place of Performance and Jurisdiction
20.1. The place of performance shall be the receiving center specified by the Customer unless specified otherwise in the order.
20.2. Exclusively the law of the Federal Republic of Germany shall apply with the exclusion of the rules of conflict of laws of the German Private International Law. The application of the UN-Convention on International Sales of Goods of April 11, 1980 is excluded. Exclusive place of jurisdiction shall be Düsseldorf.