General terms and conditions (GT&C) of purchase of QSC AG
This version: January 2018
I. General terms and conditions
1. Scope of application
1.1 These general terms and conditions (hereinafter “GT&C”) of purchase shall apply to all agreements made with QSC AG and companies affiliated to it within the meaning of articles 15 et seq of AktG, the German law governing joint-stock corporations (hereinafter “QSC”), through which purchases, work or services, including third-party (hereinafter “supplier”) services might be obtained (hereinafter “purchase agreements”).
1.2 These GT&C shall apply exclusively. Conflicting or supplementary conditions of the supplier shall not apply, even if QSC unconditionally accepts a service with knowledge of conflicting or deviating conditions on the part of the supplier.
1.3 If there is a framework agreement between QSC and the supplier that regulates a particular order, this framework agreement shall take precedence over these GT&C.
2. Application of the purchase agreement
2.1 A purchase agreement shall come into force when QSC accepts an offer from the supplier in writing or when the supplier accepts an order from QSC, likewise in writing. See clause 17 for further details of this requirement for written form.
2.2 The supplier’s offer shall remain binding for eight (8) weeks.
2.3 QSC is not obliged to accept an offer.
2.4 If QSC submits an offer to the supplier to enter into a purchase agreement, the supplier shall, unless otherwise stated in the offer, declare in writing within seven working days whether it accepts the offer. QSC shall otherwise not be bound by its offer.
3. Scope of services
3.1 The price established in the purchase agreement is a fixed price which includes carriage-paid delivery to the final destination. The price shall include all transport, insurance, packing and other ancillary costs and charges up to the place of delivery/installation in operational condition and at the destination specified by QSC, unless otherwise agreed.
3.2 The destination specified by QSC is the legal place of performance for the service.
3.3 The price shall include the costs of any installation, integration and transfer work that the supplier might have to perform, without disrupting QSC’s ongoing operations and including, if necessary, work outside normal business hours.
3.4 All instruction manuals and other documents relevant to operation, use and servicing must be supplied in German-language versions and included in the price.
3.5 The supplier undertakes to comply with the provisions of the German law governing the marketing, return and environmentally sustainable disposal of electrical and electronic equipment (ElektroG) and to fulfil these obligations on QSC’s behalf and – insofar as such obligations are not transferable – to support QSC in its fulfilment of them. The supplier undertakes in particular and in this respect to apply, free of charge to QSC, manufacturer identification conforming to article 7, sect. 1 of ElektroG for the object of the agreement, and to label it with the symbol conforming to article 7, sect. 2 of ElektroG in conjunction with Appendix 2 of ElektroG and in accordance with QSC’s labelling specifications.
3.6 The supplier undertakes to collect and properly dispose of all packing and packaging material free of charge. It shall provide, upon request, proof of the legal disposal of such waste material. If the supplier fails to fulfil this obligation, QSC shall be entitled to arrange for collection and disposal to be carried out at the supplier’s expense.
3.7 The supplier undertakes to fulfil, at its own expense, all obligations arising from Regulation (EC) 1907/2006 of 18 December 2006 (Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals, “REACH”) which might apply to the supplier and QSC under the terms of REACH. If and insofar as REACH precludes such a transfer of obligations, the supplier shall notify QSC accordingly and without delay, and shall fully support QSC in its compliance with these obligations. If the supplier’s registered place of business is outside the European Union, it must appoint at its own expense a representative based within the EU in order to fulfil the obligations arising from article 8 of REACH, and inform QSC accordingly.
3.8 Each delivery shall be accompanied by a delivery note. Delivery notes and, insofar as agreed, despatch documents must include:
- The number, company reference and date of the order,
- The number of any partial delivery,
- The number and date of the delivery note,
- The date of despatch,
- Information on the type and contents of the delivery, along with the material and item numbers noted in the order
- The method of dispatch and
- the manufacturer’s serial number.
3.9 If the billing of services at hourly rates has been agreed, travel/waiting times and travel expenses shall not be remunerated separately.
4. Independent provision of services
4.1 The supplier provides its contractual services independently and under its own responsibility.
4.2 The engaging of third-party subcontractors shall require the prior written consent of QSC. This consent may only be refused if there are important grounds for doing so.
4.3 The supplier shall have sole authority to issue instructions to the persons that it employs. It shall be free to organise, as it sees fit, the provision of its services and the management of its time. It shall nevertheless, whenever necessary, coordinate its work with that of other suppliers or third parties who might be involved in the project, and shall do so throughout the period of activity, while adhering to agreed deadlines.
5. Payment terms / invoicing / taxes
5.1 Invoices shall be settled after the corresponding service has been performed. The payment period is 14 days with a 3% discount, 30 days with a 2% discount or 60 days net. The payment period shall begin on the first day after receipt of the verifiable invoice, but not before performance/acceptance of the corresponding service. The date on which QSC issues the transfer order shall be decisive for compliance with the payment deadline.
5.2 The unconditional payment of an invoice amount by QSC shall not imply contractual acceptance of the service concerned.
5.3 The supplier must invoice its services in a verifiable manner. Partial, interim, provisional and final invoices are to be identified as such, listed individually and numbered consecutively.
5.4 Invoices must meet the requirements of article 14 of the German law governing value-added tax (UStG). QSC shall otherwise not be responsible for delayed payment. Invoices shall be issued no earlier than the day on which the service concerned is performed in accordance with the agreement. They are to be sent to the invoice address specified in the order.
5.5 The agreed prices are net prices. They may then be subject to value-added tax (VAT) at the statutory rate.
5.6 If the supplier’s registered place of business is outside the Federal Republic of Germany, tax liability for other services and work delivered within the meaning of the German law (UStG) governing VAT is transferred to QSC (article 13a, b, UStG). The supplier shall not include VAT in its invoices for these services, and must expressly indicate, in the invoice concerned, this transfer of tax liability. If the supplier imports items from a third country to Germany, while performing the aforementioned services, which are subject to import duties, the costs of such duties shall be borne by the supplier.
5.7 QSC shall be entitled to deduct applicable source/withholding taxes from the gross price and pay these to the tax authority on the supplier’s behalf, unless the supplier has a valid exemption certificate.
6.1 QSC shall be in default no earlier than after the issue of a reminder. The normal legislative provisions shall otherwise apply.
7. Delivery deadlines
7.1 Agreed delivery deadlines shall be binding.
7.2 The early and/or partial delivery of services not contractually agreed shall require the express written consent of QSC. The delivery of a service before the agreed date shall not affect the start of the payment period linked to its original date.
7.3 The supplier undertakes to notify QSC immediately and in writing of the occurrence or detection of any situation likely to jeopardise the observance of agreed deadlines.
7.4 The timely delivery of services shall be subject to their provision in an acceptable state.
8. Withdrawal / termination on extraordinary grounds
Entitlement to withdraw from the purchase contract or to terminate it on extraordinary grounds shall arise in particular if an application for the opening of insolvency proceedings against the supplier’s assets is submitted to court, if the opening of insolvency proceedings is refused due to a lack of insolvency assets sufficient to cover the costs of the proceedings, or if the supplier closes its business or discontinues the part of its business that relates to the provision of contractual services.
9. Transfer of risk / acceptance / detection of defects
9.1 Unless otherwise agreed, the transfer of risk and title shall be subject to the corresponding statutory provisions.
9.2 The delivery of movable items yet to be manufactured or produced requires – like installation services – written acceptance by QSC. Acceptance shall entail the transfer of risk. Implied acceptance by QSC, in particular through the use of the services delivered, is hereby excluded.
9.3 Risk shall otherwise be transferred when the service or item is delivered to QSC and QSC countersigns the corresponding delivery note.
9.4 In the event of defects affecting the hardware or software supplied, which are usually not detectable during superficial examination, QSC shall have six (6) weeks to examine the items concerned.
9.5 Detected defects shall only be considered approved if QSC fails to report them within five working days of their detection.
10. Claims for defects
10.1 QSC shall be entitled, starting with the transfer of risk or, if acceptance is already established, with the acceptance of the service, to make legal claims for defects affecting the contractual and error-free condition and faultless functioning of the service.
10.2 Claims for defects shall expire three years after delivery or acceptance.
10.3 The limitation periods covering claims for defects shall be extended by the period during which the defective service cannot be used for its intended purpose.
10.4 Defects arising during the limitation period shall be subject to corresponding statutory provisions. The supplier undertakes to meet all costs arising from its liability for defects. This shall not affect other legal rights to bring claims.
10.5 Notwithstanding clause 10.2, claims by QSC arising from legal defects shall expire two years from the moment in which a third party asserts a claim against QSC arising from breach of commercial and patent rights or other rights, or QSC becomes aware of the existence of any other legal defect.
10.6 Statutory regulations shall apply if the supplier acts fraudulently.
11. Third-party rights
11.1 The supplier shall be liable for ensuring that the services that it provides are free of third-party rights, with particular reference to third-party commercial and patent rights, which might restrict or exclude contractual usage.
11.2 If third parties bring claims against QSC as a result of a breach or alleged breach of third-party rights, the supplier undertakes to indemnify and hold QSC harmless for such claims without restriction. This indemnity obligation also covers the assumption of all costs and expenses that QSC might incur as a result of third-party claims.
11.3 QSC shall not be entitled to enter into agreements designed to settle third-party legal disputes – with particular reference to amicable agreements – without the supplier’s consent. The latter shall not apply if the supplier fails to comply, within a reasonable period set by QSC, with a request from QSC regarding indemnity from third-party claims.
12. Product liability
12.1 If and insofar as the supplier is liable for loss or damage arising from product liability, it undertakes to indemnify and hold QSC harmless for all and any third-party claims for loss and damage.
12.2 QSC shall furthermore be entitled to reimbursement of all costs and expenses that it might incur in this respect, particularly as a result of any product recall that it initiates. QSC shall notify the supplier, insofar as it is possible and feasible, regarding the type and extent of any product recall.
12.3 QSC shall notify the supplier immediately regarding the assertion of claims arising from product liability, and it shall not make payments or recognise claims without consulting the supplier.
12.4 The supplier undertakes to maintain adequate product liability insurance.
12.5 The right to assert further legal claims remains unaffected.
13. Minimum wages
The supplier guarantees that both it and its subcontractors will comply with the requirements of minimum-wage legislation (Mindestlohngesetz). The supplier shall, upon written request from QSC, provide evidence that both it and its subcontractors are paying the minimum wage. The supplier shall indemnify and hold the customer harmless for all claims asserted, including any fines that might be imposed, in connection with minimum-wage payments.
14. Confidentiality / data protection
14.1 Both parties undertake to maintain the confidentiality of all non-public information belonging or pertaining to the other party which might become known to them in the course of the business relationship, and not to disclose it to third parties or use it for their own purposes or those of third parties. The term “third parties” within the meaning of this provision does not cover companies affiliated with QSC in accordance with articles 15 et seq AktG.
14.2 The supplier shall not collect, process or use personal data without authorisation (hereinafter “data secrecy”). It undertakes to pass this obligation on to persons employed and engaged by it.
14.3 QSC shall retain legal title to all documents made available to the supplier for the provision of its services. These items, together with all and any copies, backups, etc., must be returned to QSC or irretrievably destroyed upon request.
14.4 These obligations shall continue to apply after expiry or termination of the purchase agreement.
14.5 The citing of QSC for reference purposes shall require express previous permission in writing. Once issued, this permission shall be valid until it is revoked. QSC may cancel this permission at any time, without notice and without giving reasons.
15. Foreign trade
15.1 The supplier shall be responsible for ensuring that it observes and complies with customs and export regulations and their corresponding legal requirements. QSC shall have no obligations in connection with the delivery of services or items subject to customs and export legislation.
15.2 The supplier undertakes, in particular and at its own expense, to obtain all permits required under export law in the event of cross-border deliveries of goods. If and insofar as the supplier has obtained its products, in whole or in part, from third parties, it guarantees that they have been exported or imported in compliance and in accordance with the export legislation and regulations of the country of manufacture/despatch. The supplier undertakes, in the course of its fulfilment of the contract, to pay particular attention to compliance with European legislation, German foreign trade law and the re-export laws of the United States.
15.3 All taxes, duties, fees and tax liabilities arising from or in connection with the conclusion and implementation of the purchase agreement – with particular reference to the import of goods – are to be borne by the supplier. These shall in particular include import-sales, value-added and directly comparable consumption taxes, such as “goods and sales” or “use and sales” taxes.
16. Assignment / offsetting / retention
16.1 The supplier shall not be entitled to assign its claims against QSC. Article 437 of the German Commercial Code (HGB) shall remain unaffected.
16.2. The offsetting of counterclaims or right of retention is only permitted for undisputed or legally confirmed accounts payable.
16.3 The right of retention may only be exercised if the supplier’s counterclaim derives from the same contractual relationship.17. Clause requiring written form
17.1 All amendments and additions to these GT&C, and of any other part of the purchase agreement, must be made in writing. This likewise applies to all and any waiving of this requirement for written form. “Written form” within the meaning of these GT&C requires – even if otherwise requested – a handwritten signature and the despatch of the original document or its transmission by fax.
18. Other provisions
18.1 All claims arising from this purchase agreement shall be subject to the laws of Germany. Application of the United Nations Convention on the International Sale of Goods (CISG) is hereby excluded.
18.2 The place of jurisdiction for all disputes arising from claims of both parties in connection with this purchase agreement is the German city of Cologne.
II. Special terms and conditions applying to the provision of software
1. Material scope
1.1 The provisions of this Section II apply (in addition to those in Section I) to the provision of standard software (hereinafter “programs”) including basic operating software for systems or equipment. They do not apply to the creation of individual software programs.
2. Usage rights
2.1 The contractual programs are supplied to QSC for their intended use. The type and scope of intended use are established in the purchase agreement.
2.2 In the event of programs being provided against a one-off payment, the supplier shall grant QSC a non-exclusive right to use the programs so provided, unlimited in terms of space, content and time.
2.3 In the event of programs being provided against recurring fees, the supplier shall grant QSC a non-exclusive right to use the programs so provided for the duration of the purchase agreement, unlimited in terms of space and content, but limited in time to the duration of the corresponding purchase agreement.
2.4 The right of use is irrevocable.
2.5 Unless otherwise stipulated, QSC may market the contractual programs and pass on the usage rights to third parties, in whole or in part, for this purpose.
2.6 QSC shall be entitled to reproduce the contractual programs to the extent necessary for their intended use. QSC shall be entitled to make backup copies of the contractual programs concerned.
2.7 The supplier shall, at QSC’s request, deposit the source programs with an independent third party. The respective interests of the parties in this regard shall be appropriately taken into account within the framework of a corresponding escrow agreement.
3. Program updates
3.1 If the supplier updates programs used by QSC, the supplier shall immediately notify QSC accordingly.
3.2 QSC may request that the supplier provides new versions of programs against payment to be agreed in individual cases.
3.3 QSC shall be entitled to make changes to these programs. Changes by third parties shall require the supplier’s approval. It shall grant this approval to make changes if it does not do so itself against payment. QSC shall be granted usage rights to these updates. The supplier may be granted usage rights to these updates on request and subject to a separate agreement. QSC’s further rights under the terms of article 69e UrhG remain unaffected.
3.4 Unless agreements regarding the transfer of source programs have been established in accordance with clause II 2.7, the supplier shall, on request, provide QSC with the source programs, including any explanations that might be required, for these updates. If this is not possible in justified exceptional cases, the supplier undertakes to carry out reasonably feasible updates against payment and at QSC’s request. The individual details shall be subject to separate agreement.
3.5 The supplier’s obligations arising from this clause 3 shall expire, for each program version, five years after delivery, but not earlier than the expiry date of claims for defects. QSC may demand, up until the expiry date, that the supplier, at its discretion, either maintains the source program or hands it over to QSC. Provisions may be made, for the transfer of source programs, which preclude their non-contractual use.
4. Treatment of programs after usage rights cease to exist
4.1 QSC shall be entitled, once the usage rights cease to exist, to retain a copy of the program and a full set of program documentation for testing and archiving purposes. The supplier shall be notified accordingly.
5. Program maintenance after the expiry of defect claims
The supplier shall, at QSC’s request and after the expiry of defect claims, take over the maintenance of programs for which unlimited use has been agreed on against payment of a one-off licence fee. The individual details shall be subject to separate agreement.
6. Blocking of use / absence of viruses
6.1 The programs shall not be copy- or usage-protected.
6.2 The supplier shall scan the programs with updated antivirus software before delivering them to QSC. The supplier shall assure that this verification has not revealed any malware or similar defects in the programs concerned.
7. Third-party rights
7.1 Notwithstanding clause I.11, the following provisions shall apply:
7.2 The supplier shall indemnify and hold QSC harmless for all third-party claims, to an unlimited extent, in the event of any breach of commercial and patent rights arising from the use for their intended purpose of the contractual programs. This indemnity obligation also covers the assumption of all costs and expenses that QSC might incur as a result of third-party claims.
7.3 In order to permit their further use, the supplier shall either (i) immediately amend or replace the contractual programs in such a way that commercial and patent rights are no longer violated, but without affecting their contractually agreed properties, or (ii) obtain the necessary licenses at his own expense. If the supplier cannot do so, it shall, at QSC’s discretion, withdraw the contractual services and refund the fees paid to it, or reduce them in a proportion that corresponds to the impairment of use on QSC’s part.
7.4 The supplier shall retain all rights to countermeasures, including out-of-court settlements. This shall not apply if (i) the supplier fails to take appropriate countermeasures and / or the supplier does not inform QSC of such measures and / or (ii) it fails to indemnify QSC.
7.5 If programs are provided against a one-off payment, claims for defects shall expire thirty-six (36) months after the service is first supplied to QSC or, if applicable, from the date of its acceptance.
7.6 If programs are supplied against recurring fees, the limitation period shall expire two years after termination of the purchase agreement.
7.7 The limitation period for claims for defects shall be subject to the number of days during which QSC was unable, as a result of a defect, to use the contractual services concerned.
7.8 The supplier shall immediately remedy the defect accordingly (by means of replacement, rectification or a new version). If a defect cannot be remedied at short notice, the supplier shall – as far as it is possible and appropriate to the consequences of the defect concerned – provide a temporary solution. If the defect is not remedied within a reasonable period of time established for the supplier to do so, QSC shall be entitled to reduce the scope of or withdraw from the agreement and demand compensation for loss and damage in accordance with statutory provisions.