Tempris GmbH – General Terms of Purchase

Scope
1. These Conditions shall apply to all supplies, services and licenses of any kind, including the creation of tangible or intangible works (collectively “Deliverables“), which we, Tempris GmbH, Industriestraße 25, Gebäude 2, 83607 Holzkirchen, Germany (“Tempris” or “we“) receive from third parties (“Supplier(s)“). These Conditions shall apply and shall be deemed part of the contract of sale or the service, license or other agreement between Tempris and the Supplier (hereafter collectively referred to as “Contract“) except if and to the extent that the Contract provides otherwise.
2. We do not accept any terms or conditions, which deviate from these Conditions, except if such terms and conditions have been expressly accepted by us in writing. We hereby expressly object to any terms and conditions generally used by the Supplier or included or referenced in the Supplier’s order confirmation. Acceptance of order confirmations or Deliverables shall not constitute acceptance of such terms and conditions, even in the absence of an express objection.
Orders
The Supplier shall confirm our orders in writing without undue delay.
Delivery Dates and Delivery Periods, Acceptance
1. All services or Deliverables shall be provided on the date or within the deadline specified in the order.
2. In case of a default with respect to delivery, or submission for acceptance, of a Deliverable, the Supplier shall pay a contractual penalty in the amount of 0.5% of the aggregate consideration for the affected Deliverable per week, or part thereof, of such default, provided that the aggregate amount of shall not exceed 5% of such consideration. Where Tempris should accept the Deliverable without express reservation of claims, this shall affect neither Tempris’ claim to the penalty nor other claims based on the default. The penalty shall not be payable to the extent that the Supplier can establish that the respective delay was not due to negligence imputable to it. Payment of the penalty does not relieve the Supplier from its obligation to continue to consummate the respective obligations. The penalty shall be payable whether or not actual damage has been incurred. The Supplier may apply for a reduction of the amount of the penalty pursuant to Sec. 343 of the Civil Code if it is out of proportion to the breach and resulting damage, and Sec. 348 of the Commercial Code shall not apply. The penalty does not limit the right to claim indemnification for higher actual damage suffered as a consequence of the breach, provided that the penalty paid shall be offset against such indemnification.
3. Supplier shall promptly notify in writing the respective ordering department of Tempris when it becomes aware of circumstances, which will or may prevent it from complying with agreed delivery dates. If the parties later agree to amendments or additions of an order, these shall not affect agreed delivery dates, unless expressly agreed otherwise.
4. Premature deliveries or partial deliveries shall be admissible only with our prior consent.
Prices and Payment
1. Unless expressly otherwise agreed, the prices quoted in any order are fixed prices and agreed on an Delivered duty paid basis (DDP, Incoterms 2020) for delivery at our factory or office having issued the order. Further, such prices shall be deemed to include packaging. Prices shall not be deemed to include VAT.
2. Unless expressly otherwise agreed, payment will be made within fourteen days subject to a 3 % prepayment discount or within 30 days without discount, in each case calculated from receipt of the invoice and complete delivery, and, where required, acceptance, of the Deliverable. All payments shall be deemed made subject to the reservation of further review of the invoice.
Defects
1. All deliveries are taken subject to the reservation of later inspection with respect to the absence of defects and the correctness and completeness of delivery.
2. The Supplier will be notified of defects as soon as they are detected reasonably within the ordinary course of business. In any event, we shall have at least two weeks time for such notice. In this respect the Supplier waives the defense of delayed notice.
3. The Supplier is obligated to implement a quality control program in its production procedure and to subject all Deliverables to an outgoing goods inspection with respect to defects of material or workmanship, technical defects or other non-compliances, and shall therefore inspect all deliveries comprehensively as to their quality.
4. The Supplier shall be liable for defects in accordance with statutory law. The warranty period shall be no less than 36 months from delivery, or, where acceptance is required, acceptance, unless a different warranty period has been expressly agreed or applies under mandatory statutory law. We may avail ourselves of all statutory remedies. In any event, we are entitled to demand, at our option, either repair of the Deliverable or delivery of a new Deliverable. Where it is not reasonably possible to allow the Supplier to repair or replace the Deliverable in view of a particular urgency, we may repair or replace such Deliverable and invoice the cost to the Supplier to the extent that the costs are not out of proportion as provided in Sec. 439 of the German Civil Code.
5. In addition to warranty claims under statutory law, we may also exercise our statutory rights of recourse within the supply chain (§§ 445a, 445b, 478 of the Civil Code). In particular, we shall be entitled to demand from the Supplier exactly the type of remedies (repair or replacement) that we owe to our own end customer. Our statutory option to select remedies (§ 439 par. 1 of the Civil Code) shall not be restricted hereby. Before we acknowledge or fulfill a claim in warranty asserted by our end customer (including claims for reimbursement of expenses pursuant to §§ 445a par. 1, 439 par. 2 and 3 of the Civil Code), we shall notify the Supplier, briefly setting out the facts of the case and allow the Supplier to submit a written statement. If no substantiated statement is received within a reasonable period of time and the matter is not otherwise settled amicably, the remedies for defects we grant our customer shall be deemed to be owed to our customer, and the Supplier shall have the burden of proof to the contrary. Our rights of recourse within the supply chain shall not be affected where the Deliverables have been further processed by us or another contractor, e.g. by incorporation into another product.
6. All claims for damages, in particular damages in lieu of performance, are expressly reserved.
Liability, Product Liability, Third Party Rights
1. The Supplier shall hold us harmless of any product liability claims which are asserted claiming that a Deliverable provided by the Supplier has been defective. Where the cause for the damage is within the Supplier’s sphere of responsibility, it shall be presumed that the Deliverable was defective, unless the Supplier can establish that it was not. Where the Supplier is obligated to hold us harmless, it shall also bear all costs and expenses, including the costs of legal defense.
2. The Supplier shall hold us harmless of any third party liability alleging an infringement of third party rights such as patents, copyrights or trademarks, to the extent that the Supplier or its agents have caused such liability negligently or willfully. The burden of proof for the absence of negligence shall be on the Supplier. Each party will promptly notify the respective other party in the event that allegations of third party right infringement are made.
3. The Supplier’s obligations under this Sec. 6 to hold Tempris harmless shall not apply if and to the extent that the cause of such liability is imputable to Tempris in accordance with this Sec. 6. Where such cause is imputable to both parties, the Supplier shall hold Tempris harmless proportionately.
4. The Supplier’s obligations under this Sec. 6 to hold Tempris harmless shall not lapse prior to the consummation of the third party claim
Specifications of Deliverables, Consummation of the Contract, Amendments
1. All Deliverables must comply with all applicable laws, regulations and standards. They shall also apply with the newest generally accepted rules of technology and science applicable as of the date of the passing of risk and all applicable standards (DEN, VDE, EN, CE) and regulations, even if this is not expressly required by the Contract. The Supplier shall further consummate the Contract in such a way that all regulations and standards for the protection of the environment, the prevention of accidents and/or safety at work (including standards published by the mutual insurance associations) and all generally accepted industrial safety and industrial medicine standards are complied with. Upon request, the Supplier shall submit at its own cost documentation on compliance with the aforementioned rules and regulations.
2. The Supplier shall be obligated to acquaint itself with all requirements of Tempris with respect to the application and/or use of the Deliverables, in particular the respective technical environment and complementary supplies or services of other suppliers and shall be responsible that all Deliverables are suitable for the agreed application or use or any other intended application or use of which the Supplier is aware. To the extent necessary, the Supplier shall be obligated to propose amendments to the prescribed or agreed specifications to Tempris for this purpose.
3. Tempris may at any time demand amendments to agreed specifications. Where Tempris demands such an amendment, the Supplier shall notify Tempris within two weeks, (a) whether the amendment is feasible, (b) whether the amendment would require an amendment of the Contract, in particular the specifications and/or the timetable and (c) how long the Supplier would require for preparing a specific quotation for the amendment and (d) the cost the Supplier would invoice to Tempris for the provision of the quotation.
Packaging, Spare Parts, Insurance
1. Unless expressly otherwise agreed, the Supplier shall be responsible, at its own cost, for adequate transportation packaging of all Deliverables
2. The Supplier shall ensure availability of spare and replacement parts for Deliverables for at least ten (10) years from expiry or termination of the relevant Contract.
3. The Supplier shall take out, and during the term of the Contract maintain, and upon request prove that it has taken out and/or maintained, adequate professional liability and product liability insurance and document this upon request.
Work Results
1. Except as expressly otherwise agreed in the Contract, all right and title worldwide, including any right of use or exploitation, in or to any of the following shall exclusively be owned by Tempris:
  1. a) all results individually developed or created for Tempris under the Contract;
  2. b) all results of development work funded by Tempris;
  3. c) all results discovered or created in connection with services to Tempris under a Contract, or based on information or documentation obtained from Tempris; and
  4. d) modifications, alterations or derivative works of any information, data, works or materials provided by Tempris, even if discovered, developed or created by or for the Supplier.
  All of the results, modifications, alterations and derivative works specified in lit. a) through d) above (collectively “Work Product(s)”) shall be considered „work for hire“ in jurisdictions where this concept applies.
2. To the extent legally possible, the Supplier hereby assigns to Tempris all of its worldwide right, title and interest in and with respect to any Work Products, and Tempris accepts such assignment, provided that:
  - Tempris shall receive only non-exclusive rights in accordance with Sec. 9.4 with respect to any works or inventions embedded in the Work Results specified in Sec. 9.1 lit. a) through c), which have not specifically been developed for Tempris (“Standard Product(s)“); and
  - Tempris’ right or title with respect to the Work Products specified in Sec. 9.1 lit. d) shall not extend to the any improvements independently developed by Supplier to the extent that such improvements are separable, i.e. can be exploited without infringing upon Tempris’ rights in the respective data, information, works or materials, and such improvements are not results within the scope of Sec. 9.1 lit. a) through c).
3. Tempris shall thereby, without any further consent of Supplier being required, exclusively be entitled to use and exploit Work Products (and any products or results derived therefrom) perpetually on a worldwide basis for all types of use currently known, by all methods, in any form and for any purpose, subject only to Sec. 9.2. The foregoing shall include in particular the right to adapt, and/or to modify, create derivative works of, copy, disseminate, publish, transfer and/or broadcast Work Products or derivative works thereof. Such rights shall be fully transferable, licensable and sublicensable to third parties, in whole or in part, including exclusive licenses, and we shall be entitled to lease or loan Work Products or derivative works thereof to third parties, in each case without any further consent of the Supplier being required. The Supplier waives any statutory requirements to exploit the rights or licenses granted herein and/or any statutory right to withdraw or recall the rights. Where an assignment is legally not possible, the Supplier guarantees that Tempris will receive a fully paid, exclusive, perpetual, worldwide, transferable and sub-licensable license for all known methods of use.
4. Tempris’ rights in and to Standard Products shall be limited to the non-exclusive right to use and exploit such Standard Products to the extent necessary or useful for the use or exploitation of the result.
5. The Supplier hereby grants all of the rights set forth hereinabove to Tempris who accepts such grant. The transfer or license shall have effect when the Work Product comes into existence.
6. The Parties agree as follows with respect to the scope of exclusivity of Tempris’ rights in and with respect to Work Products: The Supplier shall have no right to exploit Work Products beside Tempris with respect to computer programs (§ 69a par. 5 of the Copyright Act), with respect to subordinate contributions to other works, products or services (§ 40a par. 3 no. 1 of the Copyright Act), or with respect to Work Products for which a trademark, mark, design right or community design is intended to be registered, or which are not intended for publication (§ 40a par. 3 no. 3 and 4 of the Copyright Act). Where a Work Product should not fall within one of the foregoing categories and where it should be subject to a statutory right to exploit it beside Tempris under § 40a of the Copyright Act, such exploitation shall not be limited by the agreed exclusivity.
7. In any event, Tempris reserves all right and title to any data, information, works or materials it may provide to Supplier and to any of its confidential information. Where such data, information, works and/or materials have been provided by third parties, such reservation shall also apply for the benefit of such third party. Products, which have been developed based on drawings or other materials provided by Tempris or Tempris’ confidential information may not be used by the Supplier except for consummation of the Contract and may not be offered or made available to third parties.
Confidentiality
1. The parties mutually agree to keep all confidential technical or commercial information received from the respective other party strictly confidential and to refrain from using any such confidential information except as strictly required to perform the Contract. Only information which the recipient can show was already published or known to it at the time of disclosure or that was published later without the fault of the recipient, shall be exempted from this clause. The parties guarantee that their respective employees, consultants and subcontractors are bound by, and shall comply with, a secrecy obligation corresponding to or exceeding the standards set by this clause, which secrecy obligation shall remain in force even after the end of the relationship between the party concerned and its employees, consultants and subcontractors. The recipient shall notify the respective other party in the event that it becomes aware that information which the respective other party regards as confidential has become publicly known, or if notes or media containing such confidential information are lost, or if it deems itself legally obligated to provide such confidential information to any third party, including courts of law or government entities.
2. In any event that Supplier shall refrain from any disclosures which may impede or prevent the registration of intellectual property rights for Work Results.
3. The foregoing confidentiality obligations shall survive termination or expiry of the Contract and remain in force indefinitely for as long as the respective information remains reasonably confidential.
4. The Supplier may publish its business relationship with Tempris in its marketing materials only with Tempris’ prior written consent.
No Assignment, Subcontractors
1. The Supplier shall not be entitled to assign its rights under the Contract – except for claims for payment – to any third party without our prior written consent, which consent shall not be unreasonably withheld.
2. The Supplier may not make use of any subcontractors to perform any of its obligations under the Contract or these Conditions except with our prior consent. Such consent shall not limit or restrict the Supplier’s obligations towards Tempris under the Contract.
Export Control and Customs, Compliance, Supply Chain
1. The Supplier shall notify Tempris in its business documents of any obligations to obtain permits or any other limitations with respect to the export or re-export of Deliverables under German, European or US export or customs regulations and/or the export or customs regulations applicable in the country of origin of the Deliverable. For this purpose, the Supplier shall as a minimum provide the following information in its quotations, order confirmations, shipping notes and invoices with respect to each item:
  - the export list number in accordance with Schedule AL to the German Export Regulation or similar list numbers of similar export lists,
  - for US goods the ECCN (Export Control Classification Number) or respectively basket number EAQ 99 in accordance with the US Export Administration Regulations (EAR),
  - the legal origin of goods (handelspolitischer Warenursprung) with respect to its goods and their respective parts including technology and software,
  - whether or not goods have been transported through the US, manufactured or stored in the USA or manufactured using US technology,
  - the statistical product number (HS-Code) of goods, and
  - a contact person in its business for questions we may have in this respect.
2. Upon request, the Supplier shall provide any other export related data with respect to its goods and their parts in writing. The Supplier shall further be obligated to notify us promptly (prior to delivery of affected goods) of any amendments of the aforementioned data in writing.
3. The Supplier shall ensure with respect to all Deliverables, with respect to the manufacturing, processing, delivery and quality insurance process, with respect to itself and the complete supply chain (i.e. all steps, domestically and abroad, required fir the manufacturing of the Deliverables or provision of the services in question, beginning with the raw material extraction and ending with delivery to Us) as well as all of its direct or indirect suppliers as defined in the Supply Chain Diligence Act, compliance with the following:
  1. a) compliance with all statutory requirements with respect to the Deliverables, and their manufacturing, processing, delivery and disposal (such as „RoHS“-Directive 2002/95/EG oder die „REACH“-Regulation (EG) No. 1907/2006);
  2. b) compliance with the requirements with respect to conflict minerals under Section 1502 of the „Wall Street Reform and Consumer Protection Act“ („Dodd-Frank Act“);
  3. c) absence of human rights risks and/or environmental risks and consummation of all environmental obligations as defined in the Supply Chain Diligence Act;
  4. d) compliance will all supplier requirements communicated by Tempris from time to time
  (collectively the “Supply Chain Compliance Requirement(s)”)
4. Supplier shall ensure compliance with the Supply Chain Compliance Requirements through contracts with its direct suppliers and by maintaining a compliance and risk management system which actively monitors compliance with the Supply Chain Compliance Requirements.
5. Supplier shall at any time upon request provide without charge any information or document which Tempris may reasonably require to monitor and document compliance with the Supply Chain Compliance Requirements and shall enable Tempris to conduct audits in accordance with Ziff. 12.6. through contractual arrangements with its direct suppliers.
6. Tempris may, at any time, verify the Supplier’s compliance with the Contract and in particular the compliance with the Supply Chain Compliance Requirements by appointing a third party auditor to audit the offices, IT equipment, and the books and records of the Supplier and/or its direct and indirect suppliers Such auditor shall be under an obligation not to disclose confidential information of the audited entity to Tempris and to report to Tempris only on issues relevant to the consummation of the Contract. Tempris shall bear the cost related to such audit but the Supplier shall, at its own cost, reasonably cooperate in such audits.
Place of Performance, Written Form, Venue and Applicable Law, Severability
1. Place of performance for all rights and obligations under the Contract shall, unless otherwise agreed in the order, be at our corporate domicile.
2. All disputes arising under and in connection with a Contract and/or these Conditions shall be submitted exclusively to the courts having general jurisdiction over Tempris to the extent that the Supplier is a commercial entity or a public law corporation, or a public law fund or trust. Tempris shall in any event be entitled, at its discretion, alternatively to take legal action against the Supplier in the courts having general personal jurisdiction of the Supplier.
3. The Contract and these Conditions shall be subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
4. Should one or more of the provisions of the Contract or these Conditions be or become valid or unenforceable, the validity and enforceability of the other provisions hereof shall not be affected.
Languages
The English text version of these Conditions is for information purposes only. Only the German version of these Conditions is legally binding.

Version 07/2023

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Tempris GmbH – General Terms of Purchase

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