General Terms and Conditions of Purchase
Dated 1 December 2020
I. Application, Changes, Amendments
1. All deliveries, services and offers made and provided to Beissbarth GmbH, Hanauerstr. 101, 80993 Munich, Germany (“Beissbarth”), are exclusively governed by these general terms and conditions of purchase (these “Terms and Conditions of Purchase”). They are part of all contracts concluded by Beissbarth and its suppliers for the deliveries or services offered by these suppliers.
2. These Terms and Conditions of Purchase apply exclusively. Any deviating, conflicting or supplementary terms of the supplier shall only become an integral part of the contract if and to the extent Beissbarth approved them in writing. Beissbarth’s approval is required in any case. Acceptance of contract items or payment does not constitute approval, even if acceptance or payment occurs or is made in knowledge of deviating, conflicting or supplementary terms of the supplier.
3. The Terms and Conditions of Purchase only apply if the supplier is an entrepreneur (Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, “BGB”)), a legal entity under public law or a special fund under public law.
4. Previously agreed terms of the supplier, if any, that are opposed to these Terms and Conditions of Purchase or supplement them do no longer apply.
5. Unless otherwise agreed, the version of these Terms and Conditions of Purchase applicable at the date of order or, in any case, last made available to the supplier in text form also applies to similar future contracts on the sale and/or delivery of goods and services, respectively, without Beissbarth being obligated to refer to them in each individual case.
6. Any individual agreements entered into with the supplier on a case-by-case basis (including collateral agreements, changes or amendments) take precedence over these Terms and Conditions of Purchase in any event. A written agreement or written acknowledgement of Beissbarth shall be decisive for the contents of such contracts subject to proof to the contrary.
7. Except for the managing directors or authorised signatories, employees of Beissbarth are not entitled to enter into individual agreements that deviate from these Terms and Conditions of Purchase.
II. Conclusion of and Amendments to Contract
1. Orders, the conclusion of contracts and call-offs as well as any changes and amendments must be made in text form.
2. The supplier shall notify Beissbarth of any obvious errors (e.g., typing and calculation errors) and incomplete information in the order, including the order documents, so that they can be corrected or completed before the order is accepted; otherwise the contract is deemed to have not been concluded.
3. Unless the offers aimed at the conclusion of a contract of Beissbarth expressly state a deadline, Beissbarth is bound to the offer for one (1) week upon its receipt. Beissbarth’s receipt of the notice of acceptance is decisive for the acceptance having occurred in due time.
4. The supplier must accept orders from Beissbarth that are not part of an existing framework contract within a period of one (1) week upon receipt. Beissbarth’s receipt of the notice of acceptance is decisive for the acceptance having occurred in due time. Late acceptance is deemed a new offer and must be accepted by Beissbarth.
5. Beissbarth is entitled to change the date and place of delivery as well as the kind of packaging at any time by written notice observing a notice period of at least four (4) calendar weeks before the agreed delivery date. This also applies to the change of product specifications if they can be realized in the course of the supplier’s usual production process without considerable expenditure of time; in these cases the notice period according to the preceding sentence shall be at least one (1) month. Beissbarth shall reimburse the supplier for any proven and reasonable additional costs incurred due to the change. If such changes cause delays in delivery which cannot be avoided in the supplier’s normal production process and operations making reasonable efforts, the originally agreed delivery date shall be extended accordingly. The supplier shall carefully estimate the expected additional costs or length of the delays in delivery and notify Beissbarth thereof in writing before the delivery date in due time, at the latest within seven (7) calendar days upon receipt of the notice from Beissbarth according to sentence 1.
III. Compliance with Specifications
1. The supplier undertakes to comply with the specifications at any time and not to change them without Beissbarth’s prior written consent. Beissbarth reserves the right to change the specifications at any time if required due to applicable statutory provisions.
2. Beissbarth also reserves the right to extend the specifications to storage, packaging and transport requirements. Beissbarth shall notify the supplier of such changes without undue delay.
IV. Time of Delivery, Delay in Delivery, Delivery by Instalments
1. The applicable time of delivery (deadline or period of delivery) stated by Beissbarth in its order or otherwise pursuant to these general Terms and Conditions of Purchase is binding. The time of delivery and the quantities to be delivered depend on the stipulations in the order and/or the call-offs. Agreed times of delivery and quantities to be delivered are binding and of essential importance for the performance of the contract. Receipt of the goods at the place of performance pursuant to section VI. 4. is decisive for the delivery being made in due time.
2. The supplier is obligated to promptly notify Beissbarth of any imminent failure to deliver in due time, its cause and the expected length of the delay. Any occurrence of a delay in delivery shall not be affected thereby.
3. Beissbarth is unrestrictedly entitled to legal claims in case of a delay in delivery. The provisions in para. 5 are not affected thereby. Damages and rescission of the contract can only be claimed in this case after a reasonable extension has been granted to no avail.
4. If the date, on which delivery must be made at the latest can be determined due to the contract, the supplier shall be in default at the end of such day without Beissbarth being required to send a reminder.
5. The unconditional acceptance of performance does not constitute a waiver of any claims for compensation to which Beissbarth is entitled due to late delivery or performance of service; this applies until full payment of the remuneration owed by Beissbarth for the relevant delivery or service.
6. The supplier is not entitled to make partial deliveries without Beissbarth’s prior written consent.
V. Supplementary Rights of Rescission and Termination
1. Apart from the statutory rights of rescission, Beissbarth is entitled to rescind the contract if the supplier’s financial situation deteriorates substantially or is expected to deteriorate substantially and if this threatens the fulfilment of any delivery obligation towards Beissbarth.
2. Beissbarth is also entitled to rescind the contract
- in the event of the supplier’s insolvency according to Section 17(1) of the German Insolvency Code (Insolvenzordnung,“InsO”);
- if the supplier stops payments according to sentence 2 of Section 17(2) InsO;
- in the event of the supplier’s imminent insolvency according to Section 18 InsO or overindebtedness according to Section 19 InsO;
- if the supplier files petition to commence insolvency proceedings against its assets or business or similar proceedings to settle debts; or
- if insolvency proceedings against the assets of the supplier are denied for lack of assets;
and if this threatens the fulfilment of any delivery obligation towards Beissbarth.
3. In case of a continuing obligation, clauses V. 1. and V. 2. apply accordingly subject to the proviso that an extraordinary right to terminate applies instead of the right of rescission.
4. In the event of partial performance by the supplier, Beissbarth shall only be entitled to rescind the entire contract if Beissbarth is not interested in the partial performance.
5. Insofar as Beissbarth is entitled to rescind or terminate the contract due to the aforementioned contractual rights of rescission and/or termination, the supplier must compensate any damage suffered by Beissbarth thereby unless the supplier is not liable for the cause of such rights of rescission or termination.
6. The provisions in this section V do not restrict any statutory rights or claims.
VI. Performance, Delivery, Passing of Risk, Default of Acceptance
1. The supplier is not entitled to have the owed service performed by third parties (e.g., subcontractors) without Beissbarth’s prior written consent. The supplier bears the risk of procurement for its services unless otherwise agreed in the individual case (e.g., limitation to stocks).
2. Unless otherwise agreed, the prices are “freight prepaid” to the place stated in the order (DAP or DDP pursuant to Incoterms® 2020). If no destination is specified and nothing else agreed, delivery shall be made to Beissbarth’s place of business in Munich, Germany. If no delivery “freight prepaid” to the place stated in the order (DAP or DDP pursuant to Incoterms® 2020) has been agreed, the supplier must provide the goods in due time having regard to the time to be agreed upon with the carrier for loading and shipment.
3. Beissbarth’s packaging instructions and logistics guide apply as last made available to the supplier in text form.
4. The respective place of destination is also the place of performance for the delivery and supplementary performance, if applicable (obligation to be performed at the obligee’s place of business).
5. The delivery must include a bill of delivery including date (issue and shipping), contents of delivery (item number and quantity) as well as Beissbarth’s order ID (date and number). If the delivery does not include a bill of delivery or if the bill of delivery is incomplete, Beissbarth shall not be responsible for any delay in processing and payment resulting therefrom. A corresponding dispatch note with the same content must be sent to Beissbarth separately from the delivery note.
6. The supplier bears the risk of accidental loss and accidental deterioration until the handover of the contract item to Beissbarth or its representative at the place of performance.
7. Even if shipment has been agreed, the risk only passes to Beissbarth when the goods are handed over to Beissbarth at the agreed place of performance.
8. Insofar as acceptance has been agreed, the risk passes upon acceptance. Apart from that, the statutory provisions under the law on contracts for work and services apply correspondingly in case of acceptance.Handover and/or acceptance are deemed to have been effected in the event that Beissbarth is in default of acceptance.
VII. Force Majeure
1. In case of force majeure, the affected party shall be exempt from its obligations to deliver or accept for the duration and to the extent of the effects of force majeure. Force majeure means any event that occurs outside the scope of influence of the respective party and that prevents it from fulfilling its obligations, including pandemics, fire damage, flooding, industrial actions, as well as any disruption of operations or official decrees for which this party is not responsible. Supply difficulties or other defaults on the part of the supplier’s subsuppliers are only deemed force majeure if an event according to sentence 1 prevents the subsupplier from fulfilling its obligations.
2. The affected party shall notify the other party of the occurrence and end of the event of force majeure in writing without undue delay and use its best efforts to remedy the force majeure and limit its effects to the extent possible.
3. In case of force majeure, Beissbarth and the supplier shall agree on how to proceed and decide of whether the goods not delivered/not accepted during this time shall be delivered after the end of the event of force majeure. Notwithstanding the preceding sentence, Beissbarth and the supplier are entitled to withdraw the affected orders if the event of force majeure lasts for more than eight (8) weeks from the agreed time of delivery. Beissbarth’s right and the supplier’s right to terminate the contract for cause and/or rescind the contract if the event of force majeure lasts longer shall not be affected thereby.
VIII. Prices, Payment, Set-off and Retention
1. The price stated in the order and/or the call-off is binding. Estimates of costs from the supplier are binding and not to be reimbursed unless expressly agreed otherwise.
2. If sales tax is payable, the supplier shall state the sales tax in addition to the net prices when providing quotations. In case of doubt, any quotations are including statutory sales tax.
3. Unless otherwise agreed in the individual case, the prices include all services and supplementary work of the supplier (e.g., assembly, installation) and all ancillary expenses (e.g., proper packaging, shipping charges, including transport and liability insurance, if any).
4. If the contractual services include the erection or assembly of the contract item, the supplier bears all necessary expenses, such as travel expenses, provision of tools and allowances.
5. Unless otherwise agreed, the price agreed upon is due and payable within sixty (60) calendar days from complete delivery and performance (including acceptance, if agreed) and receipt of a proper invoice. In case of bank transfer, payment is deemed to have been made in due time if the bank received the transfer order from Beissbarth before expiration of the payment period; Beissbarth shall not be responsible for any delay on the part of the banks involved in the payment transaction.
6. The invoice shall be issued as a single copy stating the invoice number and other attributes, in particular Beissbarth’s order number, item number, quantity delivered and shipping address.
7. Insofar as Beissbarth makes payment within 14 calendar days, the supplier grants Beissbarth 3% cash discount on the invoiced net amount.
8. Payment is made subject to verification of the invoice.
9. All order confirmations, delivery documents and invoices must state Beissbarth’s order number, the item number, quantity delivered and shipping address. If any or several of such information is missing and if therefore the processing is delayed in the ordinary course of Beissbarth’s business, the payment periods mentioned in para. 5 and 7 shall extent for the period of delay.
10. In the event of default of payment, Beissbarth owes default interest at a rate of five (5) percentage points above the basic rate of interest pursuant to Section 247 BGB. Beissbarth does not owe any interest on maturity. Any default of payment is governed by the statutory provisions.
11. Beissbarth is entitled to any rights of set-off and retention as well as the defense of the unfulfilled contract to the extent permitted by law. Beissbarth is, in particular, entitled to withhold due payments as long as it has any claims from incomplete or defective deliveries against the supplier.
12. The supplier shall have a right of set-off or retention only if counter-claims have been found to be final and absolute or are undisputed.
IX. Documents and Confidentiality
1. Any business and technical information provided by Beissbarth, including any features that can been gathered from provided objects, documents or software and other knowledge or experience (the “Information”) must be kept secret from third parties as long as and to the extent this Information is demonstrably not publicly known, and also for a period of up to 24 months from the termination of the respective contractual relationship. The Information may only be made available in the supplier’s own business to those persons who must necessarily use it for the purpose of delivery to Beissbarth. These persons must be bound to secrecy by the supplier in the same way. Beissbarth reserves title to any of this Information. This Information must not be copied or commercially used without Beissbarth’s prior written consent, except for making deliveries to Beissbarth. All Information (including copies or records, if any) from Beissbarth and any objects handed over on loan must be completely returned or destroyed without undue delay at Beissbarth’s request. The supplier shall confirm in writing and adequately prove the destruction at Beissbarth’s request.
2. Beissbarth reserves all rights to such Information (including copyrights and the right to apply for industrial property rights, such as patents, utility models, semiconductor protection, etc.). Insofar as Beissbarth obtained this Information from third parties, the reservation of rights shall also apply in favor of these third parties.
3. Any goods manufactured according to documents prepared by Beissbarth, such as drawings, designs and the like, or confidential information from Beissbarth or by using tools or copied tools from Beissbarth, must not be used by the supplier itself or offered or delivered to third parties. This applies accordingly to any print orders placed by Beissbarth.
4. The supplier is obligated to take appropriate measures to ensure confidentiality.
X. Provisions and Reservation of Title to Provisions
1. Any materials, parts, containers and special packaging provided by Beissbarth for a fee or for free (the “Provisions”) remain the property of Beissbarth. They may only be used properly as intended and must be separately stored at the supplier’s expense and adequately insured against destruction and loss as long as they are not processed. The processing and assembly of Provisions is made for Beissbarth.
2. It is understood and agreed that Beissbarth is co-owner of the goods manufactured using the materials and parts provided by Beissbarth, which are insofar stored by the supplier on behalf of Beissbarth, in proportion of the value of the provided materials and parts to the value of the entire product. Beissbarth reserves co-ownership to the goods manufactured using the Provisions from Beissbarth until full satisfaction of any claims arising from the Provisions.
3. The supplier hereby fully assigns to Beissbarth any claims including ancillary rights it has under the resale, if any, of these goods. Beissbarth hereby accepts such assignment. The assigned claims shall secure any claims of Beissbarth under the Provisions. The supplier is entitled to collect the assigned receivables. If the value of the securities provided to Beissbarth exceeds the value of Beissbarth’s claims by more than 10% in the aggregate, Beissbarth shall release any securities at its option upon the supplier’s request.
XI. Claims Based on Defects, Obligation to Inspect and Give Notice of Defects
1. Unless otherwise provided for hereinafter, the statutory provisions shall apply to Beissbarth’s rights in case of defects in quality and of title of the goods (including wrong and short delivery as well as improper assembly, imperfect instructions for assembly, use or operation), as well as in case of other breaches of duties on the part of the supplier.
2. In particular, the supplier shall be liable for ensuring that the contract item has the agreed quality at the time of passing of risk to Beissbarth. Any product specifications that – particularly by indication or reference in the order from Beissbarth – are a subject matter of the respective contract or that have been incorporated in the respective contract in the same way as these Terms and Conditions of Purchase are deemed as agreement on quality. In this respect, it is irrelevant whether the product specifications originate from Beissbarth, the supplier or the manufacturer.
3. Beissbarth is entitled to choose the kind of supplementary performance. The supplier may refuse the type of supplementary performance chosen by Beissbarth if it can only be completed at disproportionate cost.
4. If the supplier does not fulfil its obligation of supplementary performance – at Beissbarth’s option by way of removal of defects (repair) or by way of delivery of a defect-free item (substitute delivery) – within a reasonable time limit set by Beissbarth, Beissbarth may remove the defect itself and claim compensation from the supplier for the necessary expenses incurred in this respect and/or a corresponding advance payment. If supplementary performance by the supplier failed or if it is unreasonable for Beissbarth (e.g., due to particular urgency, risk to operational safety or imminent occurrence of unreasonable damage), no time limit needs to be set; Beissbarth will notify the supplier of such circumstances without undue delay and, if possible, in advance.
5. Supplementary performance shall also include the disassembly of the defective product and the new installation if the product has been installed or included in another object in accordance with its nature and intended use; Beissbarth’s legal claim for compensation of the respective expenses shall not be affected thereby. The supplier shall bear the expenses incurred in connection with the inspection and supplementary performance even if it turns out that no defect existed. Beissbarth’s liability to pay damages in case of an unjustified request to remedy remains unaffected towards the supplier; in this respect, Beissbarth shall, however, only be liable if Beissbarth has been aware or grossly negligently not aware that no defect existed.
6. In case of defects of title, the supplier shall indemnify Beissbarth against third party claims, if any, unless the supplier is not liable for the defect of title.
7. If the supplier fulfils its obligation of supplementary performance by replacement delivery, the limitation period for the goods delivered as replacement shall start anew after their delivery, unless the supplier has expressly and appropriately reserved the right to make the replacement delivery only as a gesture of goodwill, to avoid disputes or in the interest of the continuation of the supply relationship.
8. If Beissbarth incurs costs as a result of the defective delivery of the contract item, in particular transport, travel, labor, installation, removal, material costs or costs for an incoming goods inspection exceeding the usual scope, the supplier shall bear these costs to the extent that it has to reimburse these costs in accordance with the statutory provisions. Any contributory negligence on the part of Beissbarth shall be taken into account when determining the recoverable costs.
9. The supplier shall be liable for any fault on the part of its subsuppliers as if it was its own fault.
10. Apart from that, Beissbarth is entitled to reduce the purchase price or rescind the contract in case of defects in quality or of title in accordance with the statutory provisions. In addition, Beissbarth is entitled to claim damages and compensation for expenses in accordance with the statutory provisions.
11. The statutory provisions (Sections 377, 381 of the German Commercial Code (Handelsgesetzbuch,“HGB”)) apply to the commercial obligation to inspect the goods and give notice of defects with the following proviso:
a) Beissbarth is not obligated to inspect the goods or to make particular inquiries about possible defects upon the conclusion of the contract. Partially contrary to sentence 2 of Section 442(1) BGB, Beissbarth thus shall have unlimited claims based on defects even if the defect remained unknown to Beissbarth due to gross negligence;
b) Beissbarth’s obligation to inspect the goods is limited to defects that become apparent upon visual check during the incoming goods inspection including of the delivery documents (e.g., transport damage, wrong or short delivery) or that become perceptible during the quality control by Beissbarth using a sampling procedure unless otherwise agreed upon with the supplier in a quality assurance agreement. There is no obligation to inspect the goods if acceptance is agreed. Apart from that, it depends on to what extent an inspection is practicable in the ordinary course of business in consideration of the individual circumstances. The obligation to give notice of defects detected at a later point in time remains unaffected;
c) Notwithstanding Beissbarth’s obligation to inspect the goods, Beissbarth’s complaint (notice of defects) shall be deemed to have been made without undue delay and in time if it is sent within seven (7) business days from discovery or from delivery in case of obvious defects. In this respect, the supplier waives the plea of late notification of defects;
d) For quantities, weights and measures, the values determined by Beissbarth during the incoming goods inspection are authoritative, subject to other proof.
12. Limitation of warranty claims shall be suspended upon receipt of the written notice of defects from Beissbarth by the supplier until the supplier rejects the claims or declares that the defect has been removed or otherwise refuses to continue negotiations about the claims. In the case of replacement and removal of defects, the warranty period for replaced and repaired parts shall commence again unless Beissbarth had to assume, based on the supplier’s behavior, that the supplier did not feel obligated to take such action, but only carried out the replacement or removal of defects as a gesture of goodwill or for similar reasons.
13. Beissbarth does not waive any warranty claims by accepting or approving submitted models or samples.
XII. Recourse against Supplier
1. In addition to claims based on defects, Beissbarth is entitled to its legally determined rights of recourse within a supply chain (recourse against supplier pursuant to Sections 445a, 445b, 478 BGB) without restriction. Beissbarth is, in particular, entitled to demand precisely such kind of supplementary performance (repair or replacement) from the supplier as Beissbarth owes its buyers in the individual case. The legal choice (Section 439(1) BGB) shall not be restricted by this.
2. Before Beissbarth acknowledges or satisfies a claim based on defects asserted by its buyer (including compensation for expenses pursuant to Sections 445a (1), 439(2) and (3) BGB), Beissbarth shall notify the supplier and ask for written comment by briefly describing the facts. If no substantiated comment is submitted within a reasonable period of time and if no amicable solution is found, the claim based on defects Beissbarth actually conceded shall be regarded as owed to Beissbarth’s buyer. In this case, the supplier is responsible to furnish evidence to the contrary.
3. These claims of Beissbarth under the recourse against the supplier shall also apply if the defective goods have been processed by Beissbarth or another entrepreneur, e.g., by fitting them in another product.
1. The supplier undertakes to indemnify Beissbarth (and any affiliated company of Beissbarth) against any liability against third parties and/or liability claims of third parties caused by the goods delivered or the services provided by the supplier. The supplier is obligated to reimburse Beissbarth for any payments made to satisfy justified claims. The obligation to indemnify and make a reimbursement does not apply if the underlying event is based upon grossly negligent or intentional misconduct on the part of Beissbarth or an employee, representative or vicarious agent of Beissbarth or an affiliated company of Beissbarth. The supplier is obligated to notify Beissbarth of any actions filed or claims asserted against the supplier in writing without undue delay and to provide any relevant documents at Beissbarth’s request.
2. Unless otherwise provided for in these Terms and Conditions of Purchase, the supplier shall be liable towards Beissbarth in accordance with statutory provisions for all damage, including indirect damage, caused by the supplier.
3. Any persons who carry out works on Beissbarth’s factory premises to fulfil the contract must comply with the provisions of Beissbarth’s relevant working regulations. Liability for accidents occurring to these persons on the factory premises is excluded if these accidents are due to non-compliance with the respective working regulations.
XIV. Product Liability, Recall and Insurance
1. If the supplier is liable for a product damage, it shall indemnify Beissbarth against any third party claims insofar as the reason for this was within its domain and organizational area and it was personally liable in the external relationship. If the cause of damage is within the supplier’s area of responsibility, the supplier must prove that it was not its fault.
2. In the cases of clause XIV.1, the supplier bears any and all costs and expenses, including legal expenses related to possible proceedings. Any contributory negligence on the part of Beissbarth shall be taken into account when determining the amount of the costs to be borne by the supplier pursuant to Section 254 BGB.
3. As part of the obligation to indemnify, the supplier has to refund expenses in particular pursuant to Sections 683, 670 BGB as well as pursuant to Sections 840, 426 BGB incurring under or in connection with third party claims, including any recalls made by Beissbarth. Before making a recall that is fully or partially due to a defective contract item delivered by the supplier, Beissbarth shall notify the supplier, give the supplier the opportunity to cooperate and to exchange views with Beissbarth on efficient implementation if possible and reasonable.
4. Apart from that, the statutory provisions shall apply.
5. The supplier is obligated to always maintain product liability insurance with an appropriate minimum insured sum of [Euro 7.5 million] per personal injury or property damage. Further claims for damages, if any, remain unaffected.
XV. Statute of Limitations
1. The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions unless otherwise provided for in these Terms and Conditions of Purchase.
2. In deviation from Section 438(1) No. (3) BGB and except in cases of fraudulent intent claims for defects shall become statute-barred three (3) years after the passing of risk unless the item has been used for a building in accordance with its normal use and has caused defectiveness of the building. Insofar as acceptance has been agreed, the statute of limitations commences upon acceptance.
3. The limitation period of three (3) years applies correspondingly to claims based on defects of title, provided that the legal statute of limitations for third party claims to return a real thing (Section 438(1) No. (1) BGB) remains unaffected; claims based on defects of title shall, however, not expire under any circumstances as long as a third party may still assert such claim against Beissbarth particularly because the claim has not yet become statute-barred.
4. The statute of limitations under sales law, including the aforementioned extension, shall apply to all contractual claims based on defects to the extent permitted by law. If and to the extent Beissbarth has extra-contractual claims for damages due to a defect, the standard limitation period (Sections 195, 199 BGB) applies to these claims.
1. The supplier is obligated to comply with any statutory provisions applicable to it in connection with the contractual relationship. This refers particularly to anticorruption and money laundering laws, the German Law on the Protection of Trade Secrets, the German Act against Unfair Competition, as well as any antitrust, labor and environmental protection provisions.
2. The supplier shall comply with the relevant statutory provisions governing the treatment of employees, environmental protection and occupational safety, and work on reducing any adverse effects of its activities on human beings and environment. For this purpose, the supplier shall implement and further develop a management system in accordance with ISO 14001 to the extent feasible. The supplier shall also comply with the principles of the UN Global Compact initiative, which basically relate to the protection of internationally proclaimed human rights, the abolition of compulsory and child labor, the elimination of discrimination in respect of employment and occupation, as well as the promotion of greater environmental responsibility (www.unglobalcompact.org).
3. The supplier shall ensure that the goods delivered by it comply with all relevant requirements for placing them on the market in the European Union and the European Economic Area. The supplier shall prove conformity to Beissbarth upon request by submitting suitable documents.
4. The supplier shall make reasonable efforts to ensure that its subsuppliers comply with the supplier’s obligations set forth in this Section XVI.
5. If a breach of the obligations in clause XVI.1 through XVI.4 is suspected, the supplier must identify possible breaches without undue delay and notify Beissbarth of the awareness raising measures taken in this regard.
6. If the suspicion proves to be founded, the supplier must notify Beissbarth of the internal measures taken by the supplier to prevent future breaches within a reasonable period of time. Beissbarth reserves the right to rescind any contracts or terminate them with immediate effect if the supplier does not fulfil its obligations within a reasonable period of time.
7. If the supplier seriously violates any laws and in case of any infringement of the provisions in clauses XVI.1 through XVI.4, Beissbarth reserves the right to rescind any existing contracts or terminate them without notice.
XVII. Export Control and Customs
1. The supplier is obligated to inform Beissbarth of any licensing requirements or restrictions under German, European and US American export and customs regulations and the export and customs regulations of the country of origin of the contract item with regard to any (re-)exports of the contract item in its commercial documents (in particular offers, order confirmations and all shipping documents) and, in particular, to send the following information to Beissbarth in due time before the first delivery of goods subject to licensing
- item number of Beissbarth,
- description of goods,
- all applicable export list numbers, including export control classification number pursuant to the US Commerce Control List (ECCN),
- commercial origin of goods,
- statistical goods number (HS code),
- contact person in its business for possible queries.
2. The supplier is obligated to promptly notify Beissbarth of any changes in the licensing requirements applicable to the contract item delivered to Beissbarth, particularly those that are due to technical, legal changes or official determinations.
XVIII. Spare Parts
1. The supplier is obligated to stock spare parts for the products delivered to Beissbarth for a period of at least two (2) years from delivery.
2. If the supplier plans to stop the production of spare parts for the products delivered to Beissbarth, the supplier shall notify Beissbarth of its decision to stop production without undue delay. This decision must be made – subject to clause XVIII.1 – at least three (3) months before the production of the spare parts is stopped.
XIX. Open Source Software (OSS)
1. Scope of Application
The provisions of Section XIX (“Open Source Software (OSS)”) apply to the purchase of software or embedded hardware (total the “Contract Products”) by Beissbarth, insofar as the license terms of the software permit its processing and/or passing on only under the condition that (a) the source code of this software and of a software based on an OSS and constituting an extension, further development, adaptation or other processing, modification or alteration of the same (“Derived Work” or “Derivation”) and, if applicable, the source code of other software used or connected with it is disclosed or distributed together with it, and/or (b) in the event of a transfer of this software or a Derived Work therefrom, and further processing of the software or Derived Work is permitted and/or (c) this software or Derived Work is typically transferred to third parties free of charge. OSS as used in these terms and conditions include so-called freeware and so-called public domain software.
2. OSS-related Obligations of Supplier
2.1 If Contract Products include OSS or if OSS is necessary for their intended use according to the contract, the supplier shall inform Beissbarth thereof and highlight this fact as early as possible, but at the latest in its offer as follows:
(a) Description of the OSS and the license terms applicable to it (including name and version number, e.g., “GPLv3”) so that the applicable license terms can be related to each OSS they refer to. In addition, the supplier shall provide Beissbarth with the relevant license terms;
(b) List and description of the obligations Beissbarth is subject to with regard to the use, processing, editing, combining and transfer of the OSS included in the Contract Products or required for the intended use of the Contract Products according to the contract;
(c) Should the proprietary software included in the Contract Products be subject to special license terms, which prohibit or restrict the use together or in connection with OSS, the supplier must provide a complete list and full description of such OSS-related restrictions;
(d) List of all OSS the license terms of which provide that their source code and the source code of any Derivations of the OSS, the software embedded in an OSS and/or software used together with an OSS are also subject to the license terms applicable to the relevant OSS in accordance with their provisions (“Viral Effect”);
(e) List of all software that is affected by a Viral Effect and therefore may only be passed on to a third party under the same or, if applicable, compatible license terms (“Copyleft”) with full details of the respective license terms to which the software in question is subject.
2.2 Clause XIX.2.1 applies accordingly if a change in the Contract Products requires the use of OSS in, together with or for the Contract Products.
2.3 Upon written request, but no later than thirty (30) days after the final delivery of the Contract Products, the supplier shall make available to Beissbarth all software which Beissbarth is required to provide in source or object code in the event of resale thereof (alone or as part of other products), in the appropriate code form on a medium to be agreed upon for this purpose.
3. OSS-related Warranties of Supplier
3.1 The supplier warrants that the lists, information and software compilations provided to Beissbarth according to clause XVIII.2 inform Beissbarth fully and correctly of all OSS and the software affected by a Viral Effect, included in the Contract Products or necessary for their intended use according to the contract.
3.2 The supplier warrants that the license terms of all OSS included in the Contract Products or necessary for their intended use according to the contract are compatible with each other to the extent required for the intended use of the Contract Products according to the contract, as well as with the license terms of any other software of the Contract Products to the extent the OSS is used together with such software for the intended use according to the contract or combined or interacts with it.
3.3 The supplier warrants that the Contract Products do not include or require for their intended use according to the contract any software the license terms of which provide that its source code, the source code of Derivations and/or the source code of other software used or combined with it must be disclosed or made available to third parties or their further processing must be permitted as a result of the distribution of the Contract Products (alone or as part of other products). The software disclosed according to clause XIX.2.1(c) and (d) is excluded from this. In addition, the supplier warrants that no development tools or other software has been used during the production or development of the Contract Products that fully or partially impose such license terms on these Contract Products.
3.4 The supplier warrants that it completely complied with any and all license terms it is subject to with regard to the use, processing, editing and transfer of OSS included in the Contract Products or necessary for their intended use according to the contract in due time.
3.5 The supplier warrants that it implemented any requirements that serve to protect Beissbarth software, third party software provided by Beissbarth and/or proprietary third party software used in or together with the Contract Products in such a way that the aim of these requirements is reliably achieved. This particularly means to protect Beissbarth software and/or proprietary third party software against Viral Effects.
4. OSS-related Obligations of Supplier to Remedy
If the supplier breaches its obligations under clauses XIX.2 and 3., the following provisions shall apply in addition to the statutory provisions and Section XI of these Terms and Conditions of Purchase:
(a) The supplier shall correct and/or complete any wrong or incomplete information according to clauses XIX.2.1 and 2.2 without undue delay after it obtained knowledge of such circumstance;
(b) The supplier shall deliver to Beissbarth any software that was not delivered contrary to clause XIX.2.3 without undue delay after it obtained knowledge of such circumstance;
(c) The supplier shall correct any breach of the warranties in clauses XIX.3.2 through 3.4 without undue delay after it obtained knowledge thereof. The supplier shall remedy any breach of the warranties in clauses XIX.3.5 without undue delay after it obtained knowledge thereof.
5. Breach of Property Rights of Third Parties
In the event of a breach of property rights of third parties, in particular patents, utility models and other technical property rights, including their application, copyrights and other intellectual property rights, due to the intended use of the Contract Products according to the contract, including the OSS included therein, as a result of the supplier’s fault, the supplier shall indemnify Beissbarth against any and all resulting claims for information, damages and other claims, as well as against any and all expenses, costs and losses. Beissbarth shall promptly notify the supplier of the assertion of the respective claims, leave any and all decisions about the material defensive measures to the supplier and not make an acknowledgement without the supplier’s consent or agree upon a settlement of the asserted claims. In this respect, the supplier shall reasonably take the interests of Beissbarth into account.
6. Reimbursement of Costs and Damages
The supplier shall bear and reimburse Beissbarth for any and all costs, expenses and losses caused by the negligent non-compliance with the supplier’s obligations under clause XIX.2 or the negligent breach of the warranties agreed upon in clause XIX.3 or the elimination of their consequences.
Insofar as the concluded contract, including these Terms and Conditions of Purchase, provide for written form, transmission by telecommunication is sufficient, particularly by telefax or e-mail, provided that the copy of the signed declaration is transmitted. The supplier is not entitled to assign any claims it has against Beissbarth to third parties. The foregoing does not apply if the claim is a monetary claim. Any reservations of title by the supplier only apply if they concern payment obligations referring to the respective product with regard to which the supplier reserves title. Any expanded or extended reservations of title are impermissible in particular. The relationship between the supplier and Beissbarth is exclusively subject to the laws of the Federal Republic of Germany to the exclusion of the conflict of laws provisions and the UN Sales Convention (CISG). If the supplier is an merchant, a legal entity under public law or a special fund under public law or if the supplier has no general place of jurisdiction in the Federal Republic of Germany, place of jurisdiction for all disputes arising under the business relationship between Beissbarth and the supplier shall be Munich, Germany, or, at Beissbarth’s option, the place of the permanent establishment having placed the order. Exclusive place of jurisdiction for any actions filed against Beissbarth shall, however, be Munich, Germany. Beissbarth is also entitled to sue in the court having jurisdiction over the supplier’s place of business or establishment. Mandatory statutory provisions regarding the exclusive place of jurisdiction are not affected thereby. Should these Terms and Conditions of Purchase have not become part of the contract or are invalid in whole or in part, the remaining provisions of the relevant contract shall remain valid otherwise. In the event any provision of these Terms and Conditions of Purchase and the other agreements entered into is or becomes totally or partially invalid, the validity of the remaining provisions hereof shall not be affected thereby.