Beszállítási feltételek
General Purchase Conditions
Leviat GmbH
Last Updated: 1st January 2022
1. Definions
1.1. In these general terms and conditions for the purchase of goods and/or services the following definitions apply:
Affiliate/s
in relation to the Leviat Group, any company which is directly or indirectly controlled by, or under direct or indirect common control with CRH Plc at the relevant time and any other company as may be agreed between the Parties
Agreement
any agreement concluded between the Contracting Party and/or its Affiliate(s) relating to the purchase of Goods and/or Services, including, but not limited to, a framework agreement, a services agreement and/or a Purchase Order
Contracting Party
Leviat GmbH or any of its Affiliates belonging to the Leviat group, that is defined as such in a Purchase Order or other Agreement.
General Purchase Conditions or “GPCs”
These 2021 THE LEVIAT GROUP GENERAL PURCHASE CONDITIONS ("GPCs") FOR GOODS AND/OR SERVICES-GERMANY
Goods
Any tangible objects which the Supplier is to supply to the Contracting Party and/or Affiliate;
Intellectual Property rights
all rights of intellectual property, including but not limited to copyright, (un)registered trademarks, trade names and service marks, patents, sui generis database rights, domain names, rights to knowhow and all related rights
Parties
the Contracting Party and the Supplier
Personal Data
personal data as defined by applicable law relating to the Contracting Party’s employees and the employees of any third party engaged by the Contracting Party under the Agreement.
Purchase Order
The standard Contracting Party’s document which may include or have attached to it a statement of work describing the Goods and/or Services to be provided by the Supplier, the terms of payment and which provides a maximum value payable by the Contracting Party to the Supplier
Services
any work that is to be carried out by the Supplier for the Contracting Party
Supplier
any contracting party to the Contracting Party, as well as any of such Supplier’s employees and/or subcontractors or agents engaged by the Supplier for the purposes of supplying Goods and/or Services to the Contracting Party
2. Scope of application
2.1. These GPCs shall apply exclusively to the purchase of Goods and supply of Services and shall be incorporated into any Agreement, all requests, offers, order confirmations, Purchase Order, other legal relationships and any other acts to the Contracting Party by the Supplier.
2.2. All Agreements and/or Purchase Orders shall be subject to these GPCs. In the event of any conflict between the provisions of these GPCs and an Agreement and/or Purchase Order, the Agreement and/or Purchase Order including specific terms of payment or terms of delivery shall prevail over the GPCs.
2.3. The Supplier shall be deemed to have accepted these GPCs upon receipt by it of an Agreement and/or Purchase Order from the Contracting Party. Any additional terms proposed by the Supplier, whether orally or in writing shall be deemed rejected by the Contracting Party and shall not form part of any agreement between the Parties.
2.4. Any reference in these GPCs to:
- “Contracting Party”, shall also, where the context requires, (either by a signed Purchase Order or other Agreement), be a reference to Affiliate; and
- “Agreement”, shall also, where the context requires, be a reference to a Purchase Order (except for clause 3 and clause 4.1 and 4.2).
2.5. Any (general) terms and conditions of the Supplier are explicitly excluded and shall not apply between the Parties unless otherwise agreed by the Parties in writing.
3. Validity of offer and conclusion of Purchase Order
3.1. Any offer by the Supplier shall be accepted by the Contracting Party by means of a Purchase Order signed in writing by an authorised representative or via the purchaser’s digital ordering system of the Contracting Party.
3.2. In the event that the Supplier does not make an offer to the Contracting Party, a Purchase Order shall come into effect by virtue of the Contracting Party placing a Purchase Order with the Supplier in accordance with the framework agreement.
3.3. In the event that the Supplier discovers an error or discrepancy in a Purchase Order, it shall immediately notify the Contracting Party of such fact and request clarification before it proceeds with execution, production or supply of any Goods and/or Services.
4. Supplier Sustainability, Legal and Risk Requirements
4.1. The Supplier shall support and commit to the highest ethical, legal, and moral standards as set out in the “Supplier Code of Conduct” (click on link) and shall otherwise comply with the terms thereof.
4.2. Supplier shall comply and register with the relevant assurance processes as required by the Contracting Party before the first invoice, as set out in this link (www.beroeinc.com/kys/crh-enterprise/).
4.3. The Supplier shall comply with all relevant regulations, rules and laws relating to human rights (including section 1502 of the Dodd-Frank Act), health, safety and the environment and anti-bribery, anti-corruption, (including the UK Bribery Act and The US Foreign Corrupt Practices Act, where applicable) anti-slavery, economic sanctions, anti-money laundering and US, EU and UK trade sanctions requirements.
4.4. If the Supplier processes personal data under or in connection with the Agreement, the Supplier shall comply with all privacy and data protection laws and regulations applicable to its Goods and Services, such as, but not limited to, General Data Protection Regulation (EU) 2016/679 (GDPR), the EU e-Privacy Directive 2002/58/EC and the German Federal Data Protection Act (Bundesdatenschutzgesetz).
4.5. Supplier shall indemnify the Contracting Party for any costs, damages and/or loss arising out of an identified breach of this clause 4.
5. Supplier’s obligations
5.1. The Supplier’s obligations shall include, without limitation:
a. ensuring that Goods are delivered and Services are provided in accordance with the relevant Agreement and/or Purchase Order and any applicable specifications and using the best professional standards such as workmanship and proper materials;
b. keeping proper records in respect of every Purchase Order so that they are capable of being audited by the Contracting Party;
c. carrying out any directions, instructions and/or orders lawfully issued by the Contracting Party;
d. ensuring strict compliance with all laws applicable to the Supplier’s personnel who are employed and/or engaged for the purpose of the relevant Agreement and/or Purchase Order;
e. ensuring that the agreed work continues in the event that any personnel deployed by the Supplier are sick, on holiday leave or are absent for any other reason. The Supplier shall ensure sufficient personnel are deployed at all times for the purposes of carrying out all of the relevant work;
f. maintaining all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Agreement;
g. taking out required insurances and insuring the Supplier’s equipment and materials in its own name.
5.2. The Supplier shall familiarize itself with any policies and procedures provided by the Contracting Party and shall make sure all relevant employees, subcontractors and/or agents are made aware of the Supplier’s obligations under these GPCs.
5.3. Furthermore, the Supplier shall also have a duty to adopt all possible precautionary measures to prevent any injury to people and/or damage to property. In the event that the Supplier fails to comply with any directions and/or rules (concerning safety or otherwise), the Supplier shall indemnify the Contracting Party for any costs, damages and/or loss arising as a result of such failure and the Contracting Party may deny the relevant staff member further access to any of its premises.
6. Time of supply of Goods and provision of Services
6.1. Supply of Goods and/or the provision of the Services must commence at the time stipulated in the relevant Agreement, and must comply with an agreed schedule to be provided by the Contracting Party.
6.2. As soon as the Supplier knows or anticipates that Goods will not be delivered punctually or in accordance with an agreed schedule and/or that it will not be possible to provide the Services in a timely fashion, it shall notify the Contracting Party of this in writing immediately, setting out the details relating to the delay. Such notice shall not affect the Supplier’s obligation to comply with the relevant Agreement.
7. Delivery of Goods
7.1. Delivery of Goods by the Supplier shall be DDP (Delivered Duty Paid based on Incoterms 2020) unless agreed otherwise in writing between the Parties.
7.2. The agreed delivery date shall be as stated in the relevant Agreement and time is of the essence for delivery. In the event that the Supplier fails to meet the delivery date, the Contracting Party shall be entitled to cancel the Agreement at any stage after having unsuccessfully granted the Supplier a grace period for performance or cure.
7.3. If the Contracting Party cancels the whole or part of the Agreement in accordance with clause 7.2, it shall be entitled to the statutory rights, in particular:
a. All sums payable by the Contracting Party in relation to the whole or part of the Agreement cancelled shall cease to become payable.
b. All sums paid by the Contracting Party in relation to the whole or part of the Agreement cancelled shall be repaid to the Contracting Party by the Supplier immediately;
c. The Contracting Party shall be entitled to recover damages from the Supplier for any loss caused as a result of the Supplier’s culpable failure to deliver the Goods or Services by the agreed delivery date and/or as a result of the cancellation of the whole or part of the Agreement (including, without limitation, the Contracting Party’s expenditure reasonably incurred in obtaining the Goods or Services from another supplier).
7.4. All Goods shall be delivered to the Contracting Party to the address specified in the relevant Agreement or Purchase Order. The Supplier shall comply with all delivery instructions notified to it by the Contracting Party.
7.5. The Supplier shall use all skill, care and diligence when using and/or maintaining any equipment belonging to the Contracting Party. Should the Supplier fail to exercise such skill, care and diligence, the Supplier shall be liable for any loss or cost which arise from damage to the Contracting Party’s equipment.
7.6. The Supplier shall arrange any storage space for the Goods that it requires at its own risk and expense. Unless otherwise agreed, the Supplier shall bear the costs of any transport required for such purpose.
8. Notices
8.1. Any notice required to be given by one Party under these GPCs to the other will be deemed delivered to the other Party when delivered by hand, e-mail or registered post to the email address or registered address of the other Party. This shall not apply to statements of particular significance. The Supplier shall nominate personnel to the Contracting Party that may be contacted at all hours in the event of an emergency.
9. Packaging
9.1. All Goods shall be securely packed for shipment to the delivery address with as little additional weight as possible and in the smallest appropriate cubicle bulk possible consistent with safe carriage by ocean vessel, railroad, road or aircraft (as specified by the Parties) and insurance requirements. The Supplier shall ensure that all Goods supplied are properly protected against damage and/or deterioration in transit and are properly labelled with the destination address, contents and name of the Contracting Party.
9.2. The Goods are accompanied by all requisite supporting documentation, all in full compliance with the specifications and applicable law and regulations and any other requirements as the Contracting Party may detail in the Purchase Order and approved by the Supplier in the Purchase Order’s acknowledgment.
9.3. All Goods shall be packaged and stowed in a safe manner so as to enable Goods to be off loaded (by either the Supplier or the Contracting Party) in a safe manner.
10. Transfer of ownership and risk
10.1. Title to the Goods shall pass to the Contracting Party, when the Goods are delivered to the delivery address stated in the relevant Agreement, unless payment is made to the Supplier prior to delivery, in which case title in the Goods shall pass to the Contracting Party, upon such payment being made. Immediately upon receipt of such payment, the Supplier shall appropriate the Goods in favour of the Contracting Party and keep them separate from all other goods in the possession of the Supplier and shall clearly mark the Goods as the property of the Contracting Party.
10.2. The passing of title to the Goods to the Contracting Party shall be unconditional and without regard to the payment of the price. However, if in individual cases the Contracting Party accepts an offer of the Supplier for transfer of title conditional on payment of the purchase price, the Supplier's retention of title shall expire at the latest upon payment of the purchase price for the Goods delivered. The Contracting Party shall remain authorized to resell the Goods in the ordinary course of business even prior to payment of the purchase price with advance assignment of the claim arising therefrom.
10.3. The passing of title in the Goods shall be without prejudice to the Contracting Party's right to reject the Goods, where such Goods do not conform with the relevant Agreement and/or the specifications contained therein.
10.4. Supplier shall bear the risk of Goods being lost, stolen and/or damaged until such time as the Goods have passed into the direct possession of the Contracting Party and, if an acceptance of the Goods has been agreed, have been accepted by the Contracting Party. Delivery or acceptance shall be deemed equivalent if the Contracting Party is in default of acceptance.
10.5. Any materials made available to the Supplier by the Contracting Party shall remain the latter’s property and the Supplier shall mark them as the Contracting Party’s property and keep them separate in a manner that ensures that this is recognizable to any third party.
10.6. Unless the Contracting Party gives its prior approval in writing, the Supplier shall not be permitted to use the aforementioned materials nor to allow or arrange for any other party to do so in connection with any purpose other than effecting supply to or carrying out work for the Contracting Party.
11. Inspections
11.1. The Contracting Party shall at all times be entitled to inspect, assess and/or test the Goods and/or Services (or arrange for this to be done) irrespective of the place where they are located.
11.2. The Supplier shall grant access to its grounds and buildings to the Contracting Party or its representatives in order to allow the Contracting Party to carry out audits of any kind including, but not limited to, audits relating to health and safety and Corporate Social Responsibility. The Supplier shall assist with any such inspections free of charge. The inspection shall be announced with adequate advance notice. The inspection shall generally be carried out during the Supplier's daily working operations.
11.3. If it is necessary to repeat an inspection due to the fault of the Supplier, the Supplier shall be liable to the Contracting Party for any costs incurred by the Contracting Party as a result.
11.4. The Contracting Party’s inspection, assessment and/or testing shall not amount to an acknowledgement on its part that the Goods and/or Services to be supplied are of good quality or accepted by the Contracting Party, nor shall it discharge the Supplier from any liability for failing to comply with its obligations.
12. Assignment and Subcontracting
12.1. Subcontracting by the Supplier shall require the written consent of the Contracting Party. This consent may only be withheld for reasonable grounds. The Supplier shall remain fully liable for any Goods and/or Services provided by any subcontractor or sub-subcontractor. The Supplier may not assign any claims other than monetary claims. In the event of assignment, the Contracting Party may make payment to the Supplier with discharging effect.
13. Prices
13.1. The price for the Goods and/or Services shall be as stated in the relevant Agreement and unless otherwise stated, shall be exclusive of value added tax.
13.2. No additional charges will be paid by the Contracting Party unless agreed in advance in writing by the Contracting Party.
14. Invoicing and Payment
14.1. Detailed invoices shall be issued by the Supplier to the Contracting Party for Goods and/or Services that have been provided in accordance with the relevant Agreement.
14.2. The Contracting Party shall pay each invoice within the period stated in the Agreement after receipt of the relevant invoice, but not before delivery and, if an acceptance of the Goods and/or Services has been agreed, the acceptance of the Goods and/or Services. Delivery or acceptance shall be deemed equivalent if the Contracting Party is in default of acceptance.
14.3. All payments are contingent upon the Goods and/or performance of the Services conforming with the relevant Agreement and these GPCs to the satisfaction of the Contracting Party.
14.4. The Contracting Party shall be entitled to set off any amount it is owed by the Supplier against sums otherwise due to the Supplier in accordance with an invoice.
14.5. All payments shall be made without prejudice to the Contracting Party’s rights should the Goods and/or the Services provided prove unsatisfactory, defective or are not in accordance with the Agreement and/or these GPCs.
14.6. If the Parties agree that Supplier is to provide goods and/or services or resources in addition to those specified in the Agreement, then such agreement will be reflected in either an amended Agreement and/or Purchase Order.
14.7. Once an Agreement has been agreed by the Contracting Party, the price for the Goods and/or Services shall be fixed.
15. Termination
15.1. If and in so far as the Supplier fails to fulfil any obligation pursuant or in some other way related to the relevant Agreement or fails to do so properly or within the time specified, the Contracting Party shall be entitled to the statutory rights in case of material defects and defects of title and in case of other breaches of duty. The Contracting Party may, in particular, elect either to:
a. afford the Supplier the opportunity to comply with its obligations within a period that it stipulates; and/or
b. suspend its obligations under the Agreement; and/or
c. cancel all or part of that Agreement at any stage at a later date after having unsuccessfully granted the Supplier a grace period for performance or cure.
15.2. Such entitlement to cancel the whole or part of an Agreement shall be without prejudice to the Contracting Party’s right to seek full compensation for any loss suffered and expenditure incurred due to the Supplier’s non-compliance or to the latter’s failure to ensure proper and timely compliance.
15.3. Each Party shall be entitled to immediately cancel all or part of a relevant Agreement without any notice of default in the event that the other Party is or appears likely to be unable to pay its debts or becomes insolvent. The Contracting Party shall be entitled to immediately cancel all or part of a relevant Agreement if i) there is a breach of clause 4 by the Supplier; or ii) Supplier’s transfer or assignment of its business activity or material assets relating, in whole or in part, to the Goods without obtaining Contracting Party’s advance written consent.
15.4. In the event that the Contracting Party cancels an Agreement (or part of it), it shall not be liable to pay the Supplier any compensation in respect of such cancellation.
16. Force Majeure
16.1. If the performance of the Agreement is disrupted by external events caused by elementary forces of nature or by actions of third parties, which are unforeseeable according to human insight and experience, which cannot be prevented or rendered harmless by economically acceptable means even by the utmost care reasonably to be expected in the circumstances, and which are also not to be accepted because of their frequency ("Force Majeure", e.g. fire, explosion, flood, war, strike, pandemic, epidemic, riot or other events beyond control), the Parties shall be temporarily released from their performance obligations for the duration of the disruption and to the extent of its effect. Neither Party shall be responsible or liable for any failure to perform the Agreement, for any damage or delay caused by Force Majeure. This shall also apply if these events occur at a time when the respective Party is in default. The Parties shall continue performance of the Agreement with reasonable dispatch as soon as the event caused by Force Majeure is eliminated.
16.2. The Party that failed to perform will:
a. promptly notify the other Party of the failure to perform, the event that caused such failure and supporting evidence or material illustrating why the event has prevented the Party from performing the Agreement; and
b. use its best efforts to recommence performance of the obligations that it has failed to perform as soon as reasonably possible after the event has ended.
16.3. If a Force Majeure event has a material impact on a Party’s ability to perform its obligations in accordance with the Agreement for a period of more than thirty (30) consecutive calendar days, the other Party may immediately terminate the Agreement by written notification. Any consideration paid by the other Party shall be refunded immediately.
17. Warranties
17.1. The supply of the Goods and/or the Services must comply in full with what is stipulated in the relevant Agreement, any applicable specifications and any requirements of the Contracting Party. It does not matter whether the specifications are provided by the Contracting Party or the Supplier.
17.2. The Supplier warrants that the Goods and/or Services supplied comply with good industry practice and all relevant laws. The statutory provisions shall apply to the rights of the Contracting Party in the event of material defects and defects of title of the Goods (including wrong delivery and short delivery as well as improper assembly, defective assembly, operating or instruction manual) and in the event of other breaches of duty by the Supplier, unless otherwise stipulated below. These include the rights to demand cure – at the Contracting Party's choice by remedying the defect or by supplying a defect-free good –, to revoke the contract, to reduce the purchase price, to claim damages or compensation of futile expenditure.
17.3. Where an Agreement does not stipulate a warranty period, the statutory warranty period shall apply. If an acceptance of the Goods has been agreed, the warranty period shall commence upon acceptance.
17.4. The Contracting Party is not obliged to inspect the Goods at the time of conclusion of the contract or to make special inquiries about any defects. In partial deviation from section 442 paragraph 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch), the Contracting Party shall therefore also be entitled to the claims for defects without limitation if the defect remained unknown to it at the time of conclusion of the contract due to gross negligence.
17.5. For the commercial duty to inspect the Goods and to give notice of defects, the statutory provisions (section 377 of the German Commercial Code (Handelsgesetzbuch)) shall apply with the following provisions: The duty of the Contracting Party to inspect is limited to defects that are obvious during the incoming goods inspection by external inspection including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognizable during the quality control by random sampling. If acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered at a later date shall remain unaffected.
17.6. Cure shall also include the de-installation of the defective Goods and the re-installation, if the Goods have been installed in another item or attached to another item in accordance with their type and purpose of use; the statutory claim of the Contracting Party to compensation of corresponding expenses shall remain unaffected. The Supplier shall bear the expenses required for the purpose of inspection and cure even if it turns out that there was actually no defect. The liability of the Contracting Party for damages in the event of an unjustified request for remedy of defects shall remain unaffected; in this respect, however, the Contracting Party shall only be liable if it recognized or were grossly negligent in not recognizing that there was no defect.
17.7. If the Supplier is late in remedying a defect and fails to do so properly after the Contracting Party has issued a written reminder setting a reasonable deadline, or where such defect does not allow for any delay (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), the Contracting Party shall be entitled to remedy the defect itself and to demand compensation of the expenses required for this purpose or a corresponding advance payment from the Supplier. The right of the Contracting Party to make a covering purchase at the expense of the Supplier in the event of culpable conduct on the part of the Supplier shall remain unaffected.
18. Intellectual Property
18.1. The Agreement does not intend to change any of the Parties’ or third parties’ (pre-existing) entitlement to Intellectual Property rights, unless any agreement explicitly constitutes a (deed of) transfer of Intellectual Property rights. Save as set out in this Agreement neither party grants any rights (by license or otherwise) in respect of proprietary materials protected by Intellectual Property rights.
18.2. Both Parties acknowledge that each Party, in connection with the provision or receipt of the Services, may develop or acquire general knowledge, experience, skills and ideas. Notwithstanding anything to the contrary herein such Party may use such general knowledge, experience, skills and ideas to the extent that this does not result in disclosure of Confidential Information or unauthorized use of any Intellectual Property rights of the other Party or a third party.
18.3. If in the context of the Agreement the Supplier has developed, designed or provided specifically for the Contracting Party any Goods and/or Services (including any accompanying documents) the Intellectual Property and/or related rights which come into existence shall, if possible, automatically vest in the Contracting Party. The Supplier shall execute any document or deed necessary to vest such Intellectual Property in the Contracting Party. To the extent that the Intellectual Property rights do not vest automatically in the Contracting Party, the Supplier undertakes that it shall transfer to the Contracting Party all Intellectual Property rights in materials developed or designed for the Contracting Party which transfer shall be accepted by the Contracting Party.
18.4. Any drawings, illustrations, calculations, physical patterns methods and procedures which are supplied or have been purchased by the Contracting Party, shall remain the latter’s property and the Supplier shall not be permitted to reproduce, copy or publish them, place them at the disposal of some other party, or use them for any purpose other than the Agreement. Acting at its own expense the Supplier shall have a duty to return the aforementioned items to the Contracting Party, if the latter requests this in writing after the relevant delivery or handover.
18.5. Any goods or methods which the Supplier develops in conjunction with or at the behest of the Contracting Party may not be placed at the disposal of any other party unless the Contracting Party consents to this in writing. Any expertise which the Supplier acquires in the course of such development shall only be made available to the Contracting Party and the Supplier shall not disclose same to any other party or use it for its own benefit and/or that of such other party, other than with the Contracting Party’s prior written consent.
18.6. The Supplier shall not disclose to any third party any data, information, Intellectual Property or know-how that it obtains from the Contracting Party during the course of supplying the Goods and/or the Services.
18.7. The Supplier shall indemnify the Contracting Party against any claim arising pursuant to an infringement of industrial and/or intellectual property belonging to some other party in respect of any goods that the Supplier has delivered or work which it has performed, and shall compensate the Contracting Party for any loss that the latter suffers and/or could suffer as a result of action taken against it by the holders of those industrial and/or intellectual property rights.
19. Personal Data
19.1. If the Supplier in the performance of the Agreement processes Personal Data, the Supplier agrees and warrants that the Supplier shall:
a. process Personal Data only insofar necessary for the Services rendered to the Contracting Party and as permitted or required by law;
b. keep the Personal Data confidential and not sell any of such data to any third party in whatever form (“anonymized” or not);
c. take appropriate technical, physical and organizational security measures to protect the Personal Data against loss, unauthorized or unlawful processing; and
d. promptly inform the Contracting Party of any actual or suspected security incident involving the Personal Data.
19.2. To the extent that the Supplier allows a subcontractor to process the Personal Data, the Supplier shall ensure that it binds such subcontractor to obligations which provide a similar level of protection as this clause 19.
19.3. The Supplier shall, upon the termination of the Agreement, return and/or securely erase or destroy all records or documents containing the Personal Data (unless otherwise required to retain such Personal Data by law) and provide written confirmation and/or evidence following such action. The Supplier accepts and confirms that it is solely liable for any unauthorized or illegal processing or loss of the Personal Data, if the Supplier fails to erase or destroy the Personal Data upon termination of the Agreement.
19.4. The Supplier shall indemnify and hold harmless the Contracting Party, its officers, agents and personnel from any damages, fines, losses and claims from third parties arising out of a breach of this clause 19.
20. Liability and Insurance
20.1. The Supplier hereby indemnifies and agrees to hold harmless the Contracting Party in full against any claims, liability, loss, damages, costs or expenses (including legal expenses) whatsoever arising out of or in connection with any act or omission by the Supplier or any of its employees, agents or subcontractors in the supply of the Goods and/or the performance of the Services.
20.2. The Supplier shall take out and maintain adequate insurance coverage with a reputable insurer to cover the risks of supplying the Goods and/or performing the Services in accordance with each Agreement, e.g. public liability, employer's liability and product liability insurance. When requested to do so by the Contracting Party, the Supplier shall provide to it evidence of such insurance coverage.
21. Confidentiality, reputation and prohibition of disclosure
21.1. Each Party shall have a duty to treat any information and other details obtained directly and/or indirectly from the other Party as confidential. The Parties shall not provide such information and details to any other Party, except if and in so far as this is necessary for the purposes of executing an Agreement and the other Party consents to this in writing. The Parties shall not use such information and details for purposes other than the execution of the relevant Agreement.
21.2. Neither Party shall be permitted to use the name of the other Party in publications, advertisements or in any other way, unless it receives prior written consent from the other Party.
21.3. The Parties shall refrain from bringing each other and/or each other’s business associate(s) into disrepute.
21.4. Supplier shall keep Contracting Party’s company information, as defined in any applicable securities law, confidential and shall not use such information for its own or any third parties’ benefit.
22. Miscellaneous
22.1. The relationship of the Parties is that of independent contractors and nothing in this Agreement will be construed so as to constitute a partnership or joint venture or empower either Party to act for, bind or otherwise create or assume any obligation on behalf of the other and neither Party will hold itself out as entitled to do the same, unless expressly provided otherwise in this Agreement.
22.2. If any provision of the Agreement would be held to be illegal, unenforceable, or void, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. Parties will then mutually agree upon a new provision that will approximate the contents and scope of the original provision, without becoming illegal, unenforceable, or void itself.
22.3. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and cancels and supersedes any other understandings and agreements between the Parties with respect to the subject matter of the Agreement, whether written or oral.
22.4. Except as otherwise expressly permitted or specified herein, this Agreement will not be amended or supplemented except by a written addendum that is mutually signed by the authorized signing officers of each Party.
23. Governing law and disputes
23.1. Unless agreed otherwise in the Agreement, these GPCs and any accompanying agreement shall be governed by the laws of the Federal Republic of Germany. The agreement of the United Nations Convention on Contracts for the International Sale of Goods does not apply to these GPCs and/or any Agreement(s).
23.2. If the Supplier is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising out of the Agreement shall be the respective place of business of the Contracting Party to which or for which the Supplier delivers the Goods or provides the Services. However, the Contracting Party shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GPCs or a prior individual agreement or at the general place of jurisdiction of the Supplier. Prior statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
© Leviat Version December 2021
Leviat GmbH
Last Updated: 1st January 2022
1. Definions
1.1. In these general terms and conditions for the purchase of goods and/or services the following definitions apply:
Affiliate/s
in relation to the Leviat Group, any company which is directly or indirectly controlled by, or under direct or indirect common control with CRH Plc at the relevant time and any other company as may be agreed between the Parties
Agreement
any agreement concluded between the Contracting Party and/or its Affiliate(s) relating to the purchase of Goods and/or Services, including, but not limited to, a framework agreement, a services agreement and/or a Purchase Order
Contracting Party
Leviat GmbH or any of its Affiliates belonging to the Leviat group, that is defined as such in a Purchase Order or other Agreement.
General Purchase Conditions or “GPCs”
These 2021 THE LEVIAT GROUP GENERAL PURCHASE CONDITIONS ("GPCs") FOR GOODS AND/OR SERVICES-GERMANY
Goods
Any tangible objects which the Supplier is to supply to the Contracting Party and/or Affiliate;
Intellectual Property rights
all rights of intellectual property, including but not limited to copyright, (un)registered trademarks, trade names and service marks, patents, sui generis database rights, domain names, rights to knowhow and all related rights
Parties
the Contracting Party and the Supplier
Personal Data
personal data as defined by applicable law relating to the Contracting Party’s employees and the employees of any third party engaged by the Contracting Party under the Agreement.
Purchase Order
The standard Contracting Party’s document which may include or have attached to it a statement of work describing the Goods and/or Services to be provided by the Supplier, the terms of payment and which provides a maximum value payable by the Contracting Party to the Supplier
Services
any work that is to be carried out by the Supplier for the Contracting Party
Supplier
any contracting party to the Contracting Party, as well as any of such Supplier’s employees and/or subcontractors or agents engaged by the Supplier for the purposes of supplying Goods and/or Services to the Contracting Party
2. Scope of application
2.1. These GPCs shall apply exclusively to the purchase of Goods and supply of Services and shall be incorporated into any Agreement, all requests, offers, order confirmations, Purchase Order, other legal relationships and any other acts to the Contracting Party by the Supplier.
2.2. All Agreements and/or Purchase Orders shall be subject to these GPCs. In the event of any conflict between the provisions of these GPCs and an Agreement and/or Purchase Order, the Agreement and/or Purchase Order including specific terms of payment or terms of delivery shall prevail over the GPCs.
2.3. The Supplier shall be deemed to have accepted these GPCs upon receipt by it of an Agreement and/or Purchase Order from the Contracting Party. Any additional terms proposed by the Supplier, whether orally or in writing shall be deemed rejected by the Contracting Party and shall not form part of any agreement between the Parties.
2.4. Any reference in these GPCs to:
- “Contracting Party”, shall also, where the context requires, (either by a signed Purchase Order or other Agreement), be a reference to Affiliate; and
- “Agreement”, shall also, where the context requires, be a reference to a Purchase Order (except for clause 3 and clause 4.1 and 4.2).
2.5. Any (general) terms and conditions of the Supplier are explicitly excluded and shall not apply between the Parties unless otherwise agreed by the Parties in writing.
3. Validity of offer and conclusion of Purchase Order
3.1. Any offer by the Supplier shall be accepted by the Contracting Party by means of a Purchase Order signed in writing by an authorised representative or via the purchaser’s digital ordering system of the Contracting Party.
3.2. In the event that the Supplier does not make an offer to the Contracting Party, a Purchase Order shall come into effect by virtue of the Contracting Party placing a Purchase Order with the Supplier in accordance with the framework agreement.
3.3. In the event that the Supplier discovers an error or discrepancy in a Purchase Order, it shall immediately notify the Contracting Party of such fact and request clarification before it proceeds with execution, production or supply of any Goods and/or Services.
4. Supplier Sustainability, Legal and Risk Requirements
4.1. The Supplier shall support and commit to the highest ethical, legal, and moral standards as set out in the “Supplier Code of Conduct” (click on link) and shall otherwise comply with the terms thereof.
4.2. Supplier shall comply and register with the relevant assurance processes as required by the Contracting Party before the first invoice, as set out in this link (www.beroeinc.com/kys/crh-enterprise/).
4.3. The Supplier shall comply with all relevant regulations, rules and laws relating to human rights (including section 1502 of the Dodd-Frank Act), health, safety and the environment and anti-bribery, anti-corruption, (including the UK Bribery Act and The US Foreign Corrupt Practices Act, where applicable) anti-slavery, economic sanctions, anti-money laundering and US, EU and UK trade sanctions requirements.
4.4. If the Supplier processes personal data under or in connection with the Agreement, the Supplier shall comply with all privacy and data protection laws and regulations applicable to its Goods and Services, such as, but not limited to, General Data Protection Regulation (EU) 2016/679 (GDPR), the EU e-Privacy Directive 2002/58/EC and the German Federal Data Protection Act (Bundesdatenschutzgesetz).
4.5. Supplier shall indemnify the Contracting Party for any costs, damages and/or loss arising out of an identified breach of this clause 4.
5. Supplier’s obligations
5.1. The Supplier’s obligations shall include, without limitation:
a. ensuring that Goods are delivered and Services are provided in accordance with the relevant Agreement and/or Purchase Order and any applicable specifications and using the best professional standards such as workmanship and proper materials;
b. keeping proper records in respect of every Purchase Order so that they are capable of being audited by the Contracting Party;
c. carrying out any directions, instructions and/or orders lawfully issued by the Contracting Party;
d. ensuring strict compliance with all laws applicable to the Supplier’s personnel who are employed and/or engaged for the purpose of the relevant Agreement and/or Purchase Order;
e. ensuring that the agreed work continues in the event that any personnel deployed by the Supplier are sick, on holiday leave or are absent for any other reason. The Supplier shall ensure sufficient personnel are deployed at all times for the purposes of carrying out all of the relevant work;
f. maintaining all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Agreement;
g. taking out required insurances and insuring the Supplier’s equipment and materials in its own name.
5.2. The Supplier shall familiarize itself with any policies and procedures provided by the Contracting Party and shall make sure all relevant employees, subcontractors and/or agents are made aware of the Supplier’s obligations under these GPCs.
5.3. Furthermore, the Supplier shall also have a duty to adopt all possible precautionary measures to prevent any injury to people and/or damage to property. In the event that the Supplier fails to comply with any directions and/or rules (concerning safety or otherwise), the Supplier shall indemnify the Contracting Party for any costs, damages and/or loss arising as a result of such failure and the Contracting Party may deny the relevant staff member further access to any of its premises.
6. Time of supply of Goods and provision of Services
6.1. Supply of Goods and/or the provision of the Services must commence at the time stipulated in the relevant Agreement, and must comply with an agreed schedule to be provided by the Contracting Party.
6.2. As soon as the Supplier knows or anticipates that Goods will not be delivered punctually or in accordance with an agreed schedule and/or that it will not be possible to provide the Services in a timely fashion, it shall notify the Contracting Party of this in writing immediately, setting out the details relating to the delay. Such notice shall not affect the Supplier’s obligation to comply with the relevant Agreement.
7. Delivery of Goods
7.1. Delivery of Goods by the Supplier shall be DDP (Delivered Duty Paid based on Incoterms 2020) unless agreed otherwise in writing between the Parties.
7.2. The agreed delivery date shall be as stated in the relevant Agreement and time is of the essence for delivery. In the event that the Supplier fails to meet the delivery date, the Contracting Party shall be entitled to cancel the Agreement at any stage after having unsuccessfully granted the Supplier a grace period for performance or cure.
7.3. If the Contracting Party cancels the whole or part of the Agreement in accordance with clause 7.2, it shall be entitled to the statutory rights, in particular:
a. All sums payable by the Contracting Party in relation to the whole or part of the Agreement cancelled shall cease to become payable.
b. All sums paid by the Contracting Party in relation to the whole or part of the Agreement cancelled shall be repaid to the Contracting Party by the Supplier immediately;
c. The Contracting Party shall be entitled to recover damages from the Supplier for any loss caused as a result of the Supplier’s culpable failure to deliver the Goods or Services by the agreed delivery date and/or as a result of the cancellation of the whole or part of the Agreement (including, without limitation, the Contracting Party’s expenditure reasonably incurred in obtaining the Goods or Services from another supplier).
7.4. All Goods shall be delivered to the Contracting Party to the address specified in the relevant Agreement or Purchase Order. The Supplier shall comply with all delivery instructions notified to it by the Contracting Party.
7.5. The Supplier shall use all skill, care and diligence when using and/or maintaining any equipment belonging to the Contracting Party. Should the Supplier fail to exercise such skill, care and diligence, the Supplier shall be liable for any loss or cost which arise from damage to the Contracting Party’s equipment.
7.6. The Supplier shall arrange any storage space for the Goods that it requires at its own risk and expense. Unless otherwise agreed, the Supplier shall bear the costs of any transport required for such purpose.
8. Notices
8.1. Any notice required to be given by one Party under these GPCs to the other will be deemed delivered to the other Party when delivered by hand, e-mail or registered post to the email address or registered address of the other Party. This shall not apply to statements of particular significance. The Supplier shall nominate personnel to the Contracting Party that may be contacted at all hours in the event of an emergency.
9. Packaging
9.1. All Goods shall be securely packed for shipment to the delivery address with as little additional weight as possible and in the smallest appropriate cubicle bulk possible consistent with safe carriage by ocean vessel, railroad, road or aircraft (as specified by the Parties) and insurance requirements. The Supplier shall ensure that all Goods supplied are properly protected against damage and/or deterioration in transit and are properly labelled with the destination address, contents and name of the Contracting Party.
9.2. The Goods are accompanied by all requisite supporting documentation, all in full compliance with the specifications and applicable law and regulations and any other requirements as the Contracting Party may detail in the Purchase Order and approved by the Supplier in the Purchase Order’s acknowledgment.
9.3. All Goods shall be packaged and stowed in a safe manner so as to enable Goods to be off loaded (by either the Supplier or the Contracting Party) in a safe manner.
10. Transfer of ownership and risk
10.1. Title to the Goods shall pass to the Contracting Party, when the Goods are delivered to the delivery address stated in the relevant Agreement, unless payment is made to the Supplier prior to delivery, in which case title in the Goods shall pass to the Contracting Party, upon such payment being made. Immediately upon receipt of such payment, the Supplier shall appropriate the Goods in favour of the Contracting Party and keep them separate from all other goods in the possession of the Supplier and shall clearly mark the Goods as the property of the Contracting Party.
10.2. The passing of title to the Goods to the Contracting Party shall be unconditional and without regard to the payment of the price. However, if in individual cases the Contracting Party accepts an offer of the Supplier for transfer of title conditional on payment of the purchase price, the Supplier's retention of title shall expire at the latest upon payment of the purchase price for the Goods delivered. The Contracting Party shall remain authorized to resell the Goods in the ordinary course of business even prior to payment of the purchase price with advance assignment of the claim arising therefrom.
10.3. The passing of title in the Goods shall be without prejudice to the Contracting Party's right to reject the Goods, where such Goods do not conform with the relevant Agreement and/or the specifications contained therein.
10.4. Supplier shall bear the risk of Goods being lost, stolen and/or damaged until such time as the Goods have passed into the direct possession of the Contracting Party and, if an acceptance of the Goods has been agreed, have been accepted by the Contracting Party. Delivery or acceptance shall be deemed equivalent if the Contracting Party is in default of acceptance.
10.5. Any materials made available to the Supplier by the Contracting Party shall remain the latter’s property and the Supplier shall mark them as the Contracting Party’s property and keep them separate in a manner that ensures that this is recognizable to any third party.
10.6. Unless the Contracting Party gives its prior approval in writing, the Supplier shall not be permitted to use the aforementioned materials nor to allow or arrange for any other party to do so in connection with any purpose other than effecting supply to or carrying out work for the Contracting Party.
11. Inspections
11.1. The Contracting Party shall at all times be entitled to inspect, assess and/or test the Goods and/or Services (or arrange for this to be done) irrespective of the place where they are located.
11.2. The Supplier shall grant access to its grounds and buildings to the Contracting Party or its representatives in order to allow the Contracting Party to carry out audits of any kind including, but not limited to, audits relating to health and safety and Corporate Social Responsibility. The Supplier shall assist with any such inspections free of charge. The inspection shall be announced with adequate advance notice. The inspection shall generally be carried out during the Supplier's daily working operations.
11.3. If it is necessary to repeat an inspection due to the fault of the Supplier, the Supplier shall be liable to the Contracting Party for any costs incurred by the Contracting Party as a result.
11.4. The Contracting Party’s inspection, assessment and/or testing shall not amount to an acknowledgement on its part that the Goods and/or Services to be supplied are of good quality or accepted by the Contracting Party, nor shall it discharge the Supplier from any liability for failing to comply with its obligations.
12. Assignment and Subcontracting
12.1. Subcontracting by the Supplier shall require the written consent of the Contracting Party. This consent may only be withheld for reasonable grounds. The Supplier shall remain fully liable for any Goods and/or Services provided by any subcontractor or sub-subcontractor. The Supplier may not assign any claims other than monetary claims. In the event of assignment, the Contracting Party may make payment to the Supplier with discharging effect.
13. Prices
13.1. The price for the Goods and/or Services shall be as stated in the relevant Agreement and unless otherwise stated, shall be exclusive of value added tax.
13.2. No additional charges will be paid by the Contracting Party unless agreed in advance in writing by the Contracting Party.
14. Invoicing and Payment
14.1. Detailed invoices shall be issued by the Supplier to the Contracting Party for Goods and/or Services that have been provided in accordance with the relevant Agreement.
14.2. The Contracting Party shall pay each invoice within the period stated in the Agreement after receipt of the relevant invoice, but not before delivery and, if an acceptance of the Goods and/or Services has been agreed, the acceptance of the Goods and/or Services. Delivery or acceptance shall be deemed equivalent if the Contracting Party is in default of acceptance.
14.3. All payments are contingent upon the Goods and/or performance of the Services conforming with the relevant Agreement and these GPCs to the satisfaction of the Contracting Party.
14.4. The Contracting Party shall be entitled to set off any amount it is owed by the Supplier against sums otherwise due to the Supplier in accordance with an invoice.
14.5. All payments shall be made without prejudice to the Contracting Party’s rights should the Goods and/or the Services provided prove unsatisfactory, defective or are not in accordance with the Agreement and/or these GPCs.
14.6. If the Parties agree that Supplier is to provide goods and/or services or resources in addition to those specified in the Agreement, then such agreement will be reflected in either an amended Agreement and/or Purchase Order.
14.7. Once an Agreement has been agreed by the Contracting Party, the price for the Goods and/or Services shall be fixed.
15. Termination
15.1. If and in so far as the Supplier fails to fulfil any obligation pursuant or in some other way related to the relevant Agreement or fails to do so properly or within the time specified, the Contracting Party shall be entitled to the statutory rights in case of material defects and defects of title and in case of other breaches of duty. The Contracting Party may, in particular, elect either to:
a. afford the Supplier the opportunity to comply with its obligations within a period that it stipulates; and/or
b. suspend its obligations under the Agreement; and/or
c. cancel all or part of that Agreement at any stage at a later date after having unsuccessfully granted the Supplier a grace period for performance or cure.
15.2. Such entitlement to cancel the whole or part of an Agreement shall be without prejudice to the Contracting Party’s right to seek full compensation for any loss suffered and expenditure incurred due to the Supplier’s non-compliance or to the latter’s failure to ensure proper and timely compliance.
15.3. Each Party shall be entitled to immediately cancel all or part of a relevant Agreement without any notice of default in the event that the other Party is or appears likely to be unable to pay its debts or becomes insolvent. The Contracting Party shall be entitled to immediately cancel all or part of a relevant Agreement if i) there is a breach of clause 4 by the Supplier; or ii) Supplier’s transfer or assignment of its business activity or material assets relating, in whole or in part, to the Goods without obtaining Contracting Party’s advance written consent.
15.4. In the event that the Contracting Party cancels an Agreement (or part of it), it shall not be liable to pay the Supplier any compensation in respect of such cancellation.
16. Force Majeure
16.1. If the performance of the Agreement is disrupted by external events caused by elementary forces of nature or by actions of third parties, which are unforeseeable according to human insight and experience, which cannot be prevented or rendered harmless by economically acceptable means even by the utmost care reasonably to be expected in the circumstances, and which are also not to be accepted because of their frequency ("Force Majeure", e.g. fire, explosion, flood, war, strike, pandemic, epidemic, riot or other events beyond control), the Parties shall be temporarily released from their performance obligations for the duration of the disruption and to the extent of its effect. Neither Party shall be responsible or liable for any failure to perform the Agreement, for any damage or delay caused by Force Majeure. This shall also apply if these events occur at a time when the respective Party is in default. The Parties shall continue performance of the Agreement with reasonable dispatch as soon as the event caused by Force Majeure is eliminated.
16.2. The Party that failed to perform will:
a. promptly notify the other Party of the failure to perform, the event that caused such failure and supporting evidence or material illustrating why the event has prevented the Party from performing the Agreement; and
b. use its best efforts to recommence performance of the obligations that it has failed to perform as soon as reasonably possible after the event has ended.
16.3. If a Force Majeure event has a material impact on a Party’s ability to perform its obligations in accordance with the Agreement for a period of more than thirty (30) consecutive calendar days, the other Party may immediately terminate the Agreement by written notification. Any consideration paid by the other Party shall be refunded immediately.
17. Warranties
17.1. The supply of the Goods and/or the Services must comply in full with what is stipulated in the relevant Agreement, any applicable specifications and any requirements of the Contracting Party. It does not matter whether the specifications are provided by the Contracting Party or the Supplier.
17.2. The Supplier warrants that the Goods and/or Services supplied comply with good industry practice and all relevant laws. The statutory provisions shall apply to the rights of the Contracting Party in the event of material defects and defects of title of the Goods (including wrong delivery and short delivery as well as improper assembly, defective assembly, operating or instruction manual) and in the event of other breaches of duty by the Supplier, unless otherwise stipulated below. These include the rights to demand cure – at the Contracting Party's choice by remedying the defect or by supplying a defect-free good –, to revoke the contract, to reduce the purchase price, to claim damages or compensation of futile expenditure.
17.3. Where an Agreement does not stipulate a warranty period, the statutory warranty period shall apply. If an acceptance of the Goods has been agreed, the warranty period shall commence upon acceptance.
17.4. The Contracting Party is not obliged to inspect the Goods at the time of conclusion of the contract or to make special inquiries about any defects. In partial deviation from section 442 paragraph 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch), the Contracting Party shall therefore also be entitled to the claims for defects without limitation if the defect remained unknown to it at the time of conclusion of the contract due to gross negligence.
17.5. For the commercial duty to inspect the Goods and to give notice of defects, the statutory provisions (section 377 of the German Commercial Code (Handelsgesetzbuch)) shall apply with the following provisions: The duty of the Contracting Party to inspect is limited to defects that are obvious during the incoming goods inspection by external inspection including the delivery documents (e.g. transport damage, wrong and short delivery) or which are recognizable during the quality control by random sampling. If acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered at a later date shall remain unaffected.
17.6. Cure shall also include the de-installation of the defective Goods and the re-installation, if the Goods have been installed in another item or attached to another item in accordance with their type and purpose of use; the statutory claim of the Contracting Party to compensation of corresponding expenses shall remain unaffected. The Supplier shall bear the expenses required for the purpose of inspection and cure even if it turns out that there was actually no defect. The liability of the Contracting Party for damages in the event of an unjustified request for remedy of defects shall remain unaffected; in this respect, however, the Contracting Party shall only be liable if it recognized or were grossly negligent in not recognizing that there was no defect.
17.7. If the Supplier is late in remedying a defect and fails to do so properly after the Contracting Party has issued a written reminder setting a reasonable deadline, or where such defect does not allow for any delay (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), the Contracting Party shall be entitled to remedy the defect itself and to demand compensation of the expenses required for this purpose or a corresponding advance payment from the Supplier. The right of the Contracting Party to make a covering purchase at the expense of the Supplier in the event of culpable conduct on the part of the Supplier shall remain unaffected.
18. Intellectual Property
18.1. The Agreement does not intend to change any of the Parties’ or third parties’ (pre-existing) entitlement to Intellectual Property rights, unless any agreement explicitly constitutes a (deed of) transfer of Intellectual Property rights. Save as set out in this Agreement neither party grants any rights (by license or otherwise) in respect of proprietary materials protected by Intellectual Property rights.
18.2. Both Parties acknowledge that each Party, in connection with the provision or receipt of the Services, may develop or acquire general knowledge, experience, skills and ideas. Notwithstanding anything to the contrary herein such Party may use such general knowledge, experience, skills and ideas to the extent that this does not result in disclosure of Confidential Information or unauthorized use of any Intellectual Property rights of the other Party or a third party.
18.3. If in the context of the Agreement the Supplier has developed, designed or provided specifically for the Contracting Party any Goods and/or Services (including any accompanying documents) the Intellectual Property and/or related rights which come into existence shall, if possible, automatically vest in the Contracting Party. The Supplier shall execute any document or deed necessary to vest such Intellectual Property in the Contracting Party. To the extent that the Intellectual Property rights do not vest automatically in the Contracting Party, the Supplier undertakes that it shall transfer to the Contracting Party all Intellectual Property rights in materials developed or designed for the Contracting Party which transfer shall be accepted by the Contracting Party.
18.4. Any drawings, illustrations, calculations, physical patterns methods and procedures which are supplied or have been purchased by the Contracting Party, shall remain the latter’s property and the Supplier shall not be permitted to reproduce, copy or publish them, place them at the disposal of some other party, or use them for any purpose other than the Agreement. Acting at its own expense the Supplier shall have a duty to return the aforementioned items to the Contracting Party, if the latter requests this in writing after the relevant delivery or handover.
18.5. Any goods or methods which the Supplier develops in conjunction with or at the behest of the Contracting Party may not be placed at the disposal of any other party unless the Contracting Party consents to this in writing. Any expertise which the Supplier acquires in the course of such development shall only be made available to the Contracting Party and the Supplier shall not disclose same to any other party or use it for its own benefit and/or that of such other party, other than with the Contracting Party’s prior written consent.
18.6. The Supplier shall not disclose to any third party any data, information, Intellectual Property or know-how that it obtains from the Contracting Party during the course of supplying the Goods and/or the Services.
18.7. The Supplier shall indemnify the Contracting Party against any claim arising pursuant to an infringement of industrial and/or intellectual property belonging to some other party in respect of any goods that the Supplier has delivered or work which it has performed, and shall compensate the Contracting Party for any loss that the latter suffers and/or could suffer as a result of action taken against it by the holders of those industrial and/or intellectual property rights.
19. Personal Data
19.1. If the Supplier in the performance of the Agreement processes Personal Data, the Supplier agrees and warrants that the Supplier shall:
a. process Personal Data only insofar necessary for the Services rendered to the Contracting Party and as permitted or required by law;
b. keep the Personal Data confidential and not sell any of such data to any third party in whatever form (“anonymized” or not);
c. take appropriate technical, physical and organizational security measures to protect the Personal Data against loss, unauthorized or unlawful processing; and
d. promptly inform the Contracting Party of any actual or suspected security incident involving the Personal Data.
19.2. To the extent that the Supplier allows a subcontractor to process the Personal Data, the Supplier shall ensure that it binds such subcontractor to obligations which provide a similar level of protection as this clause 19.
19.3. The Supplier shall, upon the termination of the Agreement, return and/or securely erase or destroy all records or documents containing the Personal Data (unless otherwise required to retain such Personal Data by law) and provide written confirmation and/or evidence following such action. The Supplier accepts and confirms that it is solely liable for any unauthorized or illegal processing or loss of the Personal Data, if the Supplier fails to erase or destroy the Personal Data upon termination of the Agreement.
19.4. The Supplier shall indemnify and hold harmless the Contracting Party, its officers, agents and personnel from any damages, fines, losses and claims from third parties arising out of a breach of this clause 19.
20. Liability and Insurance
20.1. The Supplier hereby indemnifies and agrees to hold harmless the Contracting Party in full against any claims, liability, loss, damages, costs or expenses (including legal expenses) whatsoever arising out of or in connection with any act or omission by the Supplier or any of its employees, agents or subcontractors in the supply of the Goods and/or the performance of the Services.
20.2. The Supplier shall take out and maintain adequate insurance coverage with a reputable insurer to cover the risks of supplying the Goods and/or performing the Services in accordance with each Agreement, e.g. public liability, employer's liability and product liability insurance. When requested to do so by the Contracting Party, the Supplier shall provide to it evidence of such insurance coverage.
21. Confidentiality, reputation and prohibition of disclosure
21.1. Each Party shall have a duty to treat any information and other details obtained directly and/or indirectly from the other Party as confidential. The Parties shall not provide such information and details to any other Party, except if and in so far as this is necessary for the purposes of executing an Agreement and the other Party consents to this in writing. The Parties shall not use such information and details for purposes other than the execution of the relevant Agreement.
21.2. Neither Party shall be permitted to use the name of the other Party in publications, advertisements or in any other way, unless it receives prior written consent from the other Party.
21.3. The Parties shall refrain from bringing each other and/or each other’s business associate(s) into disrepute.
21.4. Supplier shall keep Contracting Party’s company information, as defined in any applicable securities law, confidential and shall not use such information for its own or any third parties’ benefit.
22. Miscellaneous
22.1. The relationship of the Parties is that of independent contractors and nothing in this Agreement will be construed so as to constitute a partnership or joint venture or empower either Party to act for, bind or otherwise create or assume any obligation on behalf of the other and neither Party will hold itself out as entitled to do the same, unless expressly provided otherwise in this Agreement.
22.2. If any provision of the Agreement would be held to be illegal, unenforceable, or void, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. Parties will then mutually agree upon a new provision that will approximate the contents and scope of the original provision, without becoming illegal, unenforceable, or void itself.
22.3. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and cancels and supersedes any other understandings and agreements between the Parties with respect to the subject matter of the Agreement, whether written or oral.
22.4. Except as otherwise expressly permitted or specified herein, this Agreement will not be amended or supplemented except by a written addendum that is mutually signed by the authorized signing officers of each Party.
23. Governing law and disputes
23.1. Unless agreed otherwise in the Agreement, these GPCs and any accompanying agreement shall be governed by the laws of the Federal Republic of Germany. The agreement of the United Nations Convention on Contracts for the International Sale of Goods does not apply to these GPCs and/or any Agreement(s).
23.2. If the Supplier is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising out of the Agreement shall be the respective place of business of the Contracting Party to which or for which the Supplier delivers the Goods or provides the Services. However, the Contracting Party shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GPCs or a prior individual agreement or at the general place of jurisdiction of the Supplier. Prior statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
© Leviat Version December 2021