These General Purchasing and Service Terms and Conditions (“GPC Terms”) apply for the procurement of, including but not limited to hardware, software and associated maintenance services, tooling, engineering, manufacturing, the commissioning of work and services by The Exploration Company GmbH and/or its group companies (“TEC”) from the Supplier.
§1 Essential Conditions
(1) These terms and conditions (“terms”) shall apply to all purchase orders issued by TEC.
(2) The order and these terms shall become binding upon acceptance of the order by the Supplier.
(3) General terms and conditions of the Supplier shall neither apply to, nor form any part, of the order.
§2 Ordering, Delivery and Acceptance
(1) The goods or services to be delivered shall be specified in the purchase order.
(2) The Supplier undertakes to notify TEC within 14 days in written form of the acceptance or rejection of an order.
(3) If the Supplier accepts the order, TEC shall not be bound by any new terms communicated by the Supplier.
(4) If the Supplier rejects the order, it shall be deemed withdrawn and the parties may negotiate new terms. TEC may withdraw from any negotiation prior to acceptance of an order without incurring any liability whatsoever.
(5) The goods shall be deemed accepted once they have been unloaded at the point of delivery specified in the order (“delivery location”) and accepted by TEC (“Delivery”).
(6) The goods shall be delivered on the date written in the order or communicated after the placement of the order by TEC (“Delivery date”).
(7) The Supplier shall undertake any necessary efforts within reason to comply with the delivery date.
(8) In case the supplier fails to comply with the delivery date, TEC shall allow the Supplier a reasonable cure period to deliver the goods.
(9) Failure to deliver within the cure period shall enable TEC to cancel all or part of the order, without prejudice to its rights and remedies under §4.
(10) Transfer of title and risk in the goods shall pass to TEC upon Delivery.
§3 Price and Payment Terms
(1) The price to be paid by TEC to the Supplier shall be specified in the order, exclusive of VAT, and inclusive of all other duties, taxes and charges.
(2) Payment will be made no later than the end of the calendar month following the month of receipt of an invoice from the supplier by TEC, or the month of delivery of the goods as per §2 above, whichever comes later.
§4 Delays and Non-Conformities
(1) In case a delay occurs or is expected to occur, the Supplier shall inform TEC of this delay within two business days of discovery by the Supplier, stating the remedial measures that are being taken in order to mitigate this delay.
(2) In case of delay of the Supplier in its obligations under these conditions, excluding excusable delays as defined below, TEC is entitled to liquidated damages of 0.3% per working day of the delayed goods price specified in the order, not exceeding 10% of the total value of the price as specified in the order.
(3) An excusable delay is a delay which occurs due to late provision of requirements, specifications or other important inputs by TEC to the supplier, or due to compelling, unavoidable and unpredictable events outside of the either party’s reasonable control (“Force Majeure”).
(4) In the event of a technical non-conformity (as defined by TEC) of goods delivered by the Supplier, the Supplier will reimburse TEC for any costs incurred through the non-conformity, including but not limited to:
a. The costs of any tests performed by TEC to determine the non-conformity, to the extent that these tests would not have been performed during a regular incoming inspection
b. The cost of any reversal of integration or assembly performed with the non-conforming good
c. The cost of any damage caused to other goods or personnel through the non-conformity of the good
(5) The liability arising from any reimbursement through §4 shall be capped at 10% of the total shipset value of the order. Such a liability shall be treated as independent from any obligation to repair or replace the goods arising from §6.
§5 Transport, Labeling and Packaging
(1) The Supplier shall pack, mark and protect the goods in a manner to protect from all potential damages during transport.
(2) The goods shall be marked with the order number, the net and gross weights, the Supplier name, details of the contents and all containers of any hazardous goods shall be so marked with adequate warnings.
(3) The Supplier shall ensure that the goods arrive at the delivery location in the condition specified in the order.
(4) Upon dispatch of the goods, the Supplier shall send TEC written confirmation, including the means of transport, date of dispatch and tracking number if applicable.
(5) The Supplier shall provide TEC with full transparency on the breakdown on the cost of labeling, packaging, and transporting the goods.
(6) The Delivery of the goods shall be made DAP (delivered at place) in accordance with ICC Incoterms 2020 at the delivery location.
(7) In the event that goods have been damaged in transit or have been placed in transit and failed to be delivered to TEC, the Supplier shall, free of charge and as quickly as possible, repair or replace the goods at TEC’s discretion, provided that TEC notifies the Supplier of such damage or non-delivery within two business days of discovery by TEC.
§6 Warranties
(1) The Supplier warrants to TEC that the goods shall
a. Conform with all specifications set forth in the order,
b. Conform with all requirements and statutes or regulations in force at the time of the order,
c. Be of satisfactory quality and free from defects
d. Be fit and sufficient for the purpose for which such goods are ordinarily used for any purpose made known to the Supplier by TEC.
(2) This warranty shall be valid for a period of 24 months from the date of delivery.
(3) In case any warranties specified in (1) are not met, the Supplier shall repair or replace at TEC’s discretion the goods at its own costs no later than 14 days of notification of the defective good.
§7 Export and Import Licenses and Permits
(1) Suppliers ensure that their business practices are in accordance with all applicable foreign trade laws, directives, and regulations, including economic sanctions and embargoes, governing the export and/or transfer of any service, hardware, software, or technology to be delivered to TEC.
(2) The Supplier shall inform TEC whether any of the hardware or information involved in this agreement is export controlled. In particular, the Supplier shall identify any part of the goods or services that are subject to export regulations and notify TEC of the customs tariff number (HS code), the country of origin, as well as the export control classification number of the hardware, software, or technology to be delivered (as applicable from the national export list and/or EU Dual-Use List and/or Export Control Classification Number (ECCN) and/or the category of the United States Munitions List). The information shall be provided to TEC in accordance with the Supplier Information Questionnaire. For all agreements to be applied for, the Supplier shall ask TEC for relevant information before the submission of the application.
(3) The Supplier must obtain, in due time, at its own sole cost and expense, all import, export, re-export, retransfer, and re-import approvals, authorizations, licenses, or agreements required for the services, hardware, technology, and software to be purchased, licensed, or received by TEC from the Supplier, including the use of the goods. The scope of the applications for the necessary approvals, authorizations, and licenses shall reflect the information provided by TEC to the Supplier with regard to the end use and end user of the goods or services.
(4) The Supplier shall provide TEC with a copy of the export license certificate or the agreement and other documentation, including a copy of the scope of the license or the agreement and all provisos that are relevant or relate to TEC’s compliance obligations.
(5) Should the Supplier breach any of its above-mentioned duties, it shall reimburse TEC all expenses and damage incurred by TEC as a result thereof, unless the Supplier was not responsible for the breach of duty.
§8 Confidentiality
(1) The purchase order of TEC shall by treated confidential by the Supplier.
(2) In the event that the parties have concluded a non-disclosure agreement (“NDA”), it is hereby incorporated and forms an integral part of these terms.
§9 Miscellaneous
(1) The parties are both independent companies and shall remain so. Nothing contained in these terms shall be construed as constituting the parties as partners, joint venturers or co-owners.
(2) Any changes, supplements or amendments to these terms require the written consent of both parties. This applies also to the written form requirement itself.
(3) These terms shall be governed by the Laws of Germany (excluding conflict laws and principles).
(4) All disputes arising under or in connection with these terms shall be brought before the courts of Munich, Germany.
(5) In case any provision of these terms is found the be legally invalid or unenforceable, it will not affect the validity or enforceability of any other provision of these terms. In such cases, the parties will replace these invalid provisions with valid provisions which approximate the economic scope of the invalid provisions as closely as possible.