General Terms and Conditions of Purchase (GTC) of q.beyond AG
As of September 2020
I. General Terms and Conditions
1. Scope
1.1 These General Terms and Conditions of Purchase (“GTC”) apply to all contracts of q.beyond AG and companies affiliated with it pursuant to Sections 15 et seq. of the German Stock Corporation Act (“q.beyond”), through which purchase, work or services as well as other services are procured from third parties (“Contractors”) (“Purchase Contracts”).
1.2 These General Terms and Conditions of Sale apply exclusively. Any conflicting or supplementary terms and conditions of the contractor shall not apply, even if q.beyond accepts the service without reservation despite being aware of such conflicting or deviating terms and conditions.
1.3 If a framework agreement exists between q.beyond and the contractor which contains provisions for the subject matter of the respective order, the respective framework agreement shall take precedence over these General Terms and Conditions of Purchase.
2. Conclusion of the purchase contract
2.1 A purchase agreement is concluded when q.beyond accepts an offer from the contractor in writing or when the contractor accepts an order from q.beyond in writing. Further details regarding the written form are set out in clause 17.
2.2 The contractor is bound by his offer for eight (8) weeks.
2.3 q.beyond is not obliged to accept any offer.
2.4 If q.beyond submits an offer to the contractor for the conclusion of a purchase contract, the contractor must, unless otherwise stated in the offer, declare in writing within 7 working days whether they accept the offer. Otherwise, q.beyond is no longer bound by the offer.
3. Scope of Services
3.1 The price agreed upon in the purchase contract is a fixed price and includes delivery "free to destination". Unless otherwise agreed, the price covers all transport, insurance, packaging, and other incidental costs and charges up to the point of delivery/installation in operational condition at the destination designated by q.beyond.
3.2 The destination designated by q.beyond is the legal place of performance for the service.
3.3 The price includes the costs for any installation, integration and transfer work that may be required, which the contractor must perform without disrupting q.beyond's ongoing operations, if necessary even outside normal business hours.
3.4 Instructions relevant for operation, handling, use and service or other documents must be supplied in German and are included in the price.
3.5 The Contractor undertakes to comply with the provisions of the German Electrical and Electronic Equipment Act (ElektroG) and to fulfill the obligations arising therefrom for q.beyond, and – insofar as these are not transferable – to support q.beyond in fulfilling them. In this regard, the Contractor undertakes in particular to affix the manufacturer's identification mark pursuant to Section 7 Sentence 1 ElektroG to the contractual item free of charge, according to q.beyond's specifications, and to mark the respective contractual item with the symbol pursuant to Section 7 Sentence 2 ElektroG in conjunction with Annex 2 of the ElektroG, according to q.beyond's specifications.
3.6 The contractor is obligated to take back packaging material free of charge and to collect and dispose of it properly. Proof of legally compliant disposal must be provided upon request. If the contractor fails to comply with this obligation, q.beyond is entitled to arrange for the collection and disposal at the contractor's expense.
3.7 The Contractor warrants that it will fulfill all obligations imposed on it and q.beyond within its scope by Regulation (EC) No. 1907/2006 of 18 December 2006 (Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals, “REACH Regulation”) in accordance with the provisions of the REACH Regulation and at its own expense. Insofar as the REACH Regulation precludes the transfer of obligations, the Contractor will inform q.beyond immediately and fully support q.beyond in fulfilling its obligations. If the Contractor is established outside the European Union, it shall appoint, at its own expense, a representative established within the European Union who fulfills the obligations under Article 8 of the REACH Regulation and inform q.beyond accordingly.
3.8 A delivery note must be included with every delivery. Delivery notes and, where agreed, shipping notifications must contain:
- Order number, reference number and date,
- Number of any partial delivery,
- Delivery note number and date,
- Date of dispatch,
- Information on the type and scope of the delivery as well as material numbers and item numbers noted in the order
- Shipping method and
- Manufacturer's serial number.
3.9 If the billing of services is agreed to be based on hourly rates, travel and waiting times as well as travel expenses will not be reimbursed separately.
4. Independent service provision
4.1 The contractor shall perform the services covered by the contract independently and on his own responsibility.
4.2 The use of third parties as subcontractors requires the prior written consent of q.beyond. Consent may only be refused for good cause.
4.3 The contractor has sole authority to issue instructions to its own employees. It is free to Organisation the provision of services and to allocate its working time as it sees fit. However, where necessary, it will coordinate working hours with other contractors or third parties involved in the project and adhere to agreed deadlines.
5. Payment terms / Invoice / Taxes
5.1 Payment is due upon completion of the service. The payment term is 14 days with a 3% discount, 30 days with a 2% discount, or 60 days net. The payment term begins on the day after receipt of a verifiable invoice, but not before completion/acceptance of the service. The date on which q.beyond issues the payment order is decisive for compliance with the payment term.
5.2 The unconditional payment of the invoice amount by q.beyond does not imply acceptance of the service as being in accordance with the contract.
5.3 The contractor must provide verifiable invoices for its services. Interim, partial, partial final, and final invoices must be clearly identified as such, itemized, and numbered consecutively.
5.4 The invoice must comply with the requirements of Section 14 of the German VAT Act (UStG). Otherwise, q.beyond is not responsible for any payment delays. The invoice must be issued no earlier than the day on which the service has been rendered in accordance with the contract and sent to the billing address specified in the order.
5.5 The agreed prices are net prices. Value-added tax (VAT) at the legally prescribed rate will be added where applicable.
5.6 If the contractor is not based in the Federal Republic of Germany, the tax liability for other services and supplies of goods within the meaning of the German Value Added Tax Act (UStG) that are subject to VAT in Germany is transferred to q.beyond (§ 13a, b UStG). The contractor may not show VAT on invoices for these services and must expressly indicate the transfer of tax liability on the invoice. If, in providing the aforementioned services, the contractor brings goods from a third country to Germany and import VAT is incurred in this context, this VAT is borne by the contractor.
5.7 q.beyond is entitled to withhold any applicable withholding taxes from the gross price and remit them to the tax authorities on behalf of the contractor, unless a valid exemption certificate from the contractor is provided.
6. Delay
6.1 q.beyond will only be in default after receiving a reminder. Otherwise, the statutory provisions apply.
7. Performance time
7.1 Agreed performance dates are binding.
7.2 Early performance and/or partial performance not contractually agreed upon require the express written consent of q.beyond. Performance rendered before the agreed date does not affect the commencement of a payment period tied to that date.
7.3 The contractor is obliged to inform q.beyond immediately in writing if circumstances arise or become apparent that indicate the agreed deadlines may not be met.
7.4 The timeliness of services depends on their provision in an acceptable condition.
8. Resignation / Termination for good cause
A right to withdraw from the purchase contract or to terminate it without notice exists in particular if an application for the opening of insolvency proceedings against the assets of the contractor is filed with the court, the opening of insolvency proceedings is rejected due to a lack of insolvency assets to cover the costs of the proceedings, or the contractor ceases its business operations or the part of its business operations that relates to the services covered by the contract.
9. Transfer of risk / Acceptance / Defect inspection
9.1 The statutory provisions shall apply to the transfer of risk and ownership, unless otherwise agreed.
9.2 The delivery of movable goods to be manufactured or produced – as well as assembly services – requires written acceptance by q.beyond. The transfer of risk occurs upon acceptance. Implied acceptance by q.beyond, in particular through use of the delivered goods, is excluded.
9.3 Furthermore, in the case of deliveries, the risk passes to q.beyond upon arrival of the delivery at q.beyond and countersignature of the delivery note.
9.4 For defects in delivered hardware or software that are not normally discovered upon superficial inspection, the inspection period for q.beyond is six (6) weeks.
9.5 Discovered defects are only considered approved if they are not reported by q.beyond within five working days of discovery.
10. Claims for defects
10.1 q.beyond shall have the statutory warranty rights for the contractual and defect-free condition and the defect-free function of the service, beginning with the transfer of risk or, where acceptance is stipulated, with the acceptance of the service.
10.2 Claims for defects expire within three years from delivery or acceptance.
10.3 The limitation periods for claims relating to defects shall be extended by the period during which the defective service cannot be used as intended.
10.4 For defects arising during the limitation period, the statutory provisions apply. The contractor is obligated to bear all expenses incurred within the scope of liability for defects. Further statutory claims remain unaffected.
10.5 Notwithstanding clause 10.2, claims by q.beyond for defects of title shall become time-barred two years from the date on which a third party asserts claims against q.beyond arising from the infringement of intellectual property rights or other rights, or q.beyond otherwise becomes aware of the existence of the defect of title.
10.6 Retail t If the contractor acts fraudulently, the statutory regulations apply.
11. Third-party rights
11.1 The contractor shall be liable for ensuring that the services to be provided by him are free from third-party rights, in particular free from third-party intellectual property rights that could restrict or exclude the contractual use.
11.2 If q.beyond is held liable by third parties for infringement or alleged infringement of third-party rights, the contractor is obligated to fully indemnify q.beyond against these claims. This indemnification obligation also includes the assumption of all costs and expenses incurred by q.beyond in connection with the third-party claims.
11.3 q.beyond is not entitled to enter into agreements with the third party – without the contractor's consent – to settle the legal dispute, in particular to conclude a settlement. The latter does not apply if the contractor fails to comply with q.beyond's request to indemnify against third-party claims within a reasonable period to be set by q.beyond.
12. Product Liability
12.1 Insofar as the contractor is responsible for damage due to product liability, he is obliged to indemnify q.beyond against any claims for damages by third parties.
12.2 Furthermore, q.beyond is entitled to reimbursement of all costs and expenses incurred in this context, in particular due to recall actions initiated by it. q.beyond will inform the contractor of the nature and scope of recall actions to the extent possible and reasonable.
12.3 q.beyond will inform the contractor immediately of any claims arising from product liability and will neither make payments nor acknowledge claims without consulting the contractor.
12.4 The contractor undertakes to maintain adequate product liability insurance.
12.5 Further legal claims remain unaffected.
13. Minimum wage
The contractor warrants that he and his subcontractors comply with the provisions of the Minimum Wage Act. Upon written request from q.beyond, the contractor will provide proof of payment of the minimum wage by him or his subcontractors. He indemnifies the client against all claims related to minimum wage violations; this also applies to any fines incurred.
14. Confidentiality / Data Protection
14.1 Both parties undertake to keep confidential all non-public information from the other party's sphere of business that becomes known to them through the business relationship, not to disclose it to third parties, and not to use it for their own purposes or for the purposes of third parties. For the purposes of this provision, third parties do not include companies affiliated with q.beyond pursuant to Sections 15 et seq. of the German Stock Corporation Act (AktG).
14.2 The contractor will not collect, process, or use personal data without authorisation (“data secrecy”). He will obligate his personnel accordingly.
14.3 All documents provided to the contractor by q.beyond for the performance of services remain the property of q.beyond and, together with all copies, duplicates, etc. made, must be returned to q.beyond or destroyed upon request.
14.4 These obligations shall continue to apply beyond the term of the purchase agreement.
14.5 The use of q.beyond as a reference requires prior express written approval. Approval granted remains valid until revoked. q.beyond may revoke this approval at any time without notice and without stating reasons.
15. Outdoor retail
15.1 The contractor is solely responsible for ensuring that it observes and complies with all customs and export regulations and legal requirements in this regard. q.beyond has no obligations in connection with the delivery of services relevant to customs and export law.
15.2 The Contractor undertakes, in particular, to obtain all necessary export licenses at its own expense for cross-border deliveries of goods. If the Contractor has sourced the products wholly or partly from third parties, it warrants that they have been exported or imported in compliance with the export regulations of the country of manufacture/shipment. Within the scope of contract execution, the Contractor undertakes, in particular, to comply with European legislation, German foreign retail law, and American re-export regulations.
15.3 All taxes, duties, levies, and tax charges that become due in connection with the conclusion and execution of the purchase contract – in particular in connection with the import of goods – shall be borne by the Contractor. This includes, in particular, import sales tax, value added tax, and directly comparable excise taxes such as "Goods and Sales" or "Use and Sales" taxes.
16. Assignment / Set-off / Retention
16.1 The contractor is not entitled to assign claims against q.beyond. Section 354a of the German Commercial Code (HGB) remains unaffected.
16.2 Offsetting or exercising a right of retention is only permissible with undisputed or legally established claims.
16.3 The exercise of the right of retention is only permissible if the contractor's counterclaim is based on the same contractual relationship.
17. Written form clause
17.1 Amendments and supplements to these General Terms and Conditions of Purchase (GTC) and other components of the purchase agreement must be in writing. This also applies to any waiver of this written form requirement. For the purposes of these GTC, written form—even where required elsewhere—requires a handwritten signature and the transmission of the signed document in original form or by fax.
18. Other
18.1 All claims arising from the purchase contract are governed exclusively by German law. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
18.2 The exclusive place of jurisdiction for all disputes arising from claims of both parties in connection with the purchase contract is Cologne.
II. Special Conditions for the Licensing of Software
1. Material scope
1.1 The provisions in this Section II apply (in addition to those in Section I) to the licensing of standard software (“programs”), including basic software already installed on systems or equipment. They do not apply to the development of custom software.
2. Usage rights
2.1 The programs covered by this agreement are provided to q.beyond for their intended use. The type and scope of this intended use are defined in the purchase agreement.
2.2 In the case of the transfer of programs against a one-time payment, the contractor grants q.beyond a non-exclusive right to use the programs to be transferred, without any spatial, content-related and temporal limitations.
2.3 In the case of the provision of programs against recurring fees, the contractor grants q.beyond a non-exclusive right, unlimited in terms of territory and content and limited in time to the duration of the corresponding purchase contract, to use the programs to be provided for the duration of the purchase contract.
2.4 The right of use is irrevocable.
2.5 Unless otherwise stipulated, q.beyond may resell the programs that are the subject of the contract and transfer the rights of use to third parties in whole or in part for this purpose.
2.6 q.beyond is entitled to reproduce the programs covered by this agreement to the extent necessary for their intended use. q.beyond is entitled to make copies of the programs covered by this agreement for backup purposes.
2.7 At q.beyond's request, the contractor will deposit the source code with an independent third party. The parties' interests in this regard will be appropriately considered in a corresponding escrow agreement.
3. Program changes
3.1 If the contractor changes programs used by q.beyond, the contractor must notify q.beyond of these changes immediately.
3.2 q.beyond may require the contractor to provide it with new program versions at remuneration rates to be agreed upon in each individual case.
3.3 q.beyond is entitled to make changes to the programs. Changes by third parties require the contractor's consent. The contractor will grant consent to modifications unless they implement them themselves for a fee. q.beyond retains the rights of use to these changes. Upon request and by separate agreement, the contractor may be granted rights of use to the changes. Further rights of q.beyond under Section 69e of the German Copyright Act (UrhG) remain unaffected.
3.4 Unless agreements regarding the provision of the source code have been made in accordance with Section II 2.7, the contractor shall provide q.beyond with the source code, including any existing documentation, upon request. If this is not possible in justified exceptional cases, the contractor is obligated, within reasonable limits, to carry out the modification at q.beyond's request for remuneration. Details will be agreed upon separately.
3.5 The Contractor's obligations under this Clause 3 shall end for each program version five years after its delivery, but not before the expiry of the limitation period for warranty claims. Until the expiry of the limitation period, q.beyond may demand that the Contractor, at its discretion, either continue to retain the source code or transfer it to q.beyond. Provisions may be made for the transfer of the source code that preclude any use not in accordance with the contract.
4. Handling of the programs after the termination of usage rights
4.1 In the event of the termination of the usage rights, q.beyond is entitled to retain a copy of the program and complete program documentation for testing and archiving purposes. The contractor must be informed of this.
5. Program maintenance after the expiration of warranty claims
At q.beyond's request, the contractor will assume responsibility for program maintenance after the expiration of warranty claims for programs for which unlimited use has been agreed upon in exchange for a one-time license fee. Details will be agreed upon separately.
6. Usage restrictions / Virus-free
6.1 The programs do not contain any copy or usage restrictions.
6.2 The contractor will check the programs with an up-to-date virus scanner before delivery to q.beyond. The contractor warrants that the check revealed no evidence of malicious functions in the programs.
7. Third-party rights
7.1 Notwithstanding section I.11, the following provisions shall apply:
7.2 The Contractor shall indemnify q.beyond against all third-party claims arising from the infringement of intellectual property rights through the contractual use of the programs covered by this Agreement, without limitation. This indemnification obligation also includes the assumption of all costs and expenses incurred by q.beyond in connection with such third-party claims.
7.3 In order to enable continued use, the Contractor shall immediately either modify or replace the programs that are the subject of the contract in such a way that the intellectual property right is no longer infringed and the contractually agreed features are still retained, or procure the necessary licenses at its own expense. If the Contractor fails to do so, the Contractor shall, at q.beyond's option, either take back the services that are the subject of the contract and refund the payment made to the Contractor, or reduce the payment by the portion corresponding to the reduction in use suffered by q.beyond.
7.4 The Contractor retains the right to all defensive measures, including out-of-court settlements. This does not apply if (i) the Contractor fails to take appropriate defensive measures and/or the Contractor fails to inform q.beyond of such measures and/or (ii) fails to indemnify q.beyond.
7.5 In the case of the provision of programs against a one-time payment, claims for defects expire 36 months from the date of receipt of the service by q.beyond or from the date of acceptance, if such acceptance is required.
7.6 In the case of the provision of programs against recurring fees, the limitation period ends two years after the termination of the purchase contract.
7.7 The limitation period for claims relating to defects is suspended by the number of days during which q.beyond was unable to use the contractual services due to a defect.
7.8 The contractor shall remedy the defect immediately by subsequent performance (replacement delivery, repair, or replacement). If a defect cannot be remedied in the short term, the contractor shall provide a temporary solution, insofar as this is possible and reasonable in view of the effects of the defect. If the defect is not remedied even within a reasonable period set for the contractor to remedy the defect, q.beyond shall have the right to reduce the price or withdraw from the contract and claim damages in accordance with the statutory provisions.