T&Cs Supplier - TIER

TIER SUPPLIER TERMS

FOR THE DELIVERY OF GOODS AND THE CREATION OF WORKS

§ 1 SUBJECT MATTER OF AGREEMENT

(1) These TIER Supplier Terms (the “Terms”) apply to all procurement of goods (Kaufgegenstände) and works (Werkleistungen) and any ancillary services relating to the foregoing (together, the “Deliverables”) by TIER Mobility SE (”TIER”) except to the extent agreed otherwise between TIER and the supplier (the “Supplier”, TIER and the Supplier each referred to in these Terms as a “Party” and together as the “Parties”).

(2) The written contract concluded between TIER and the Supplier, including these Terms and any agreed terms which deviate from or conflict with these Terms, will fully reflect the entire agreement between the Parties on the subject matter of the contract. To the extent that any agreed terms deviate from or conflict with these Terms, those agreed terms will take precedence. The Parties agree that there are no further verbal or written agreements, arrangements or promises regarding the subject matter of the contract. With the exception of the managing director(s) authorized to represent TIER, registered authorized signatories (Prokuristen), and any other persons who are nominated by TIER as its duly authorized representatives with regard to the respective business relationship with the Supplier, employees of TIER shall not be entitled to make verbal agreements with the Supplier or to make verbal promises to the Supplier that deviate from the agreements and promises made in writing, including these Terms.

(3) General terms of the Supplier or third parties shall not become part of the contract even if TIER does not expressly object to them. These Terms and any further terms referenced herein are the exclusive general terms that apply to all procurement by TIER. Deviating, conflicting or supplementary general terms and conditions of the Supplier or third parties shall only become part of a contract if and to the extent that TIER expressly agrees to their inclusion in writing. The acceptance of the Supplier’s good or works as well as payments made by TIER shall not imply any agreement with general terms of the Supplier or third parties, even if such general terms are referred to in offers, invoices, or similar documents of the Supplier.

(4) These Terms apply to each Order separately and individually in the version that is notified to the Supplier or published by TIER as current at the time an Order is made or confirmed by TIER. These Terms do not imply a framework agreement between TIER and the Supplier or any other promise, intent or obligation with regard to future contracts. TIER remains free to modify or amend these Terms from time to time with effect for future Orders in its sole discretion.

(5) The contract language for these Terms and any contract thereunder is English. For translations into other languages, the English version shall prevail.

§ 2 BINDING ORDERS; CONCLUSION OF CONTRACTS

(1) Offers, supplementary offers, proposals, cost estimates, etc. that are submitted by the Supplier (“Offers”) are considered to be binding. Offers will not be remunerated, and TIER shall not provide any compensation or remuneration for visits, planning and other preliminary work performed by the Supplier in connection with the submission of Offers.

(2) Orders, statement of works, etc. made by TIER ("Order(s)") shall only be deemed to be binding when submitted in writing. The Supplier shall notify TIER of any obvious errors (e.g., spelling and calculation errors) and/or incompleteness of any Order so that it can be corrected before a binding contract is entered into on its basis; if the Supplier does not notify TIER, any contract entered into on the basis of the erroneous Order will be deemed to be non-binding.

(3) A contract shall be concluded upon TIER’s receipt of a written confirmation of the respective Order by the Supplier (the “Contract”). Unless otherwise agreed, the Supplier shall provide such confirmation to TIER within one week from its receipt of the Order. If TIER does not receive a confirmation within that time, TIER shall be entitled to revoke its order. Any delayed confirmation by the Supplier shall then be deemed a new Offer and shall require written acceptance by TIER.

§ 3 CHANGE REQUESTS

If, after a Contract under these Terms was concluded, it becomes apparent to either Party that deviations from the originally agreed specifications or additional Deliverables are necessary or expedient for the purposes intended by TIER with the respective Order, that Party shall notify the other Party thereof without undue delay and, at the request of TIER, the Supplier shall suspend the performance in question until a decision is made on whether to make changes to the Deliverables. The Supplier shall immediately submit a written supplementary Offer to TIER for the changed or additional Deliverables, which shall also show the additional or reduced costs and effects on agreed delivery or completion dates, except in cases where the Supplier cannot reasonably be expected to provide the changed or additional Deliverables (e.g., if such changes are technically not feasible). Additional costs shall be calculated on the basis of the price calculation for the previously agreed Order, unless otherwise agreed between the Parties in each case. If TIER accepts the supplementary Offer in writing, the Contract shall continue as amended. If the Supplier does not submit a supplementary Offer in accordance with the foregoing sentence within 14 days, or if the Parties cannot agree on the necessary amendments to the Contract within 14 days from TIER’s receipt of such supplementary Offer, TIER may terminate the Contract in accordance with Section12 of these Terms.

§ 4 PRICES

(1) Prices stated in an Order shall be binding. All prices are inclusive of statutory value-added tax, sales tax or similar transaction taxes unless such tax is stated separately or an explicit provision that such tax in the amount determined by applicable law will be added is made.

(2) Any agreed lump sum and unit prices are fixed prices unless otherwise agreed in the Order. Where a fixed price is agreed for a performance consisting of several components, the Supplier shall provide the performance in full at the agreed fixed price.

(3) Where remuneration at hourly rates or otherwise on a time and materials basis is agreed in the Order, the Supplier shall submit hourly rate sheets (broken down according to individual persons whose time is billed) in duplicate to TIER immediately after each work day for TIER to review sign off on that day’s time sheet.

(4) All ancillary costs incurred by the Supplier for the performance of the Contract (in particular, but without limiting generality, for insurance, governmental or administrative fees, travel and catering costs, personnel, planning, preparation, shipping, transport, installation, assembling, supervision and cleaning costs, etc.) that TIER has not explicitly agreed to assume shall be deemed to be included in the agreed fixed prices, hourly rates, or other prices.

(5) Surcharges for afterhours work, weekend work, or holiday work shall only be paid if this work and these surcharges have been agreed in writing between the Parties in advance.

§ 5 PAYMENT TERMS

(1) The agreed remuneration shall be due for payment in accordance with the payment terms agreed in the Order subject to the receipt by TIER of a proper, auditable invoice from Supplier including TIER’s purchase order number. In the absence of an agreement on payment terms, the remuneration shall be due within 30 days after (i) delivery or, for works (Werkleistungen), including agreed installation or assembling of delivered goods, after acceptance and (ii) the receipt by TIER of a proper, auditable invoice from Supplier including TIER’s purchase order number. If pre-payments before full delivery or acceptance are agreed based on KPIs, they shall each become due for payment within 30 days after the Supplier provides evidence of completion of the relevant KPI and receipt by TIER of an invoice from the Supplier in a form acceptable to TIER and including TIER’s purchase order number. TIER may refuse to pay and hold back an appropriate part of each payment or pre-payment to the extent that there are non-conformances or defects, until such non-conformances or defects are remedied. Invoices that include amounts billed for time and materials shall be submitted with time sheets, bills of materials, etc. in verifiable form.

(2) TIER shall not owe any interest open amounts that are not overdue. For overdue amounts, interest shall be calculated at the statutory rate in accordance with applicable law.

(3) TIER shall be entitled to retain up to five percent (5%) of the total Order volume as security for claims related to non-conformances and defects. This security shall cover all claims for non-conformances, defects, Damages of any kind, contractual penalties, overpayment, interest, as well as the performance of all other contractually agreed services and obligations of the Supplier. TIER shall surrender any unused security after the expiration of the last limitation period for the aforementioned claims, except where such claims are being actively asserted. The Supplier shall be entitled to replace the retention of security by a guarantee of a bank or insurance company with a seat in Germany, provided that such guarantee must be made (i) subject to waivers of the plea of contestability (Einrede der Anfechtbarkeit) (except for grounds for contestation of the Supplier pursuant to section 123 of the German Civil Code (BGB), set-off (Aufrechnung) (except for claims of the Supplier which are undisputed or have been finally determined by a court of law), and anticipatory action as well as (ii) excluding the possibility of deposit (Hinterlegung).

§ 6 PLACE AND TIME OF DELIVERY AND PERFORMANCE

(1) The Supplier shall bear the risks of issues with its own upstream supply (Beschaffungsrisiko) for its Deliverables unless otherwise agreed for each individual Contract. TIER shall only be responsible for providing assistance and provisions that are expressly agreed between the Parties in a Contract.

(2) The Supplier shall review all instructions and specifications regarding works (Werkleistungen) under a Contract. The Supplier shall ensure that it has all necessary information to create the works, and acknowledges that, unless otherwise agreed in writing, it bears all project management responsibility for the creation of the agreed works.

(3) In the absence of an agreement between the Parties, the contractual place of delivery and performance shall be the premises of TIER where goods are to be delivered to or works or ancillary services are to be provided.

(4) The Supplier shall deliver goods or, for works and ancillary services to be provided (Werkleistungen), transport the materials, equipment, machines, tools and other movable items required for the performance to the place of delivery and performance at its own risk and expense (Incoterms 2020 DDP), unless otherwise agreed in the Order.

(5) The Supplier shall inform TIER immediately in writing when circumstances occur or become apparent to the Supplier, which indicate that agreed delivery or completion dates cannot be met.

(6) Delivery or performance outside the regular business hours of TIER (Monday to Friday from 9:00h to 18.00h, except on public holidays at the agreed place of delivery and performance) require the prior written consent of TIER, which TIER can refuse in its sole discretion.

(7) If the Supplier does not deliver or perform, does not deliver or perform within the agreed timeframe, or is otherwise in default, TIER’s rights, including but not limited to with regard to revocation, termination, and Damages, shall be determined in accordance with the statutory defaults under applicable law.

§ 7 ACCEPTANCE

(1) For purchased goods (Kaufgegenstände), TIER shall make an inspection upon delivery only with regard to obvious defects (identity, completeness and shipping damage). In the case of large deliveries, TIER reserves the right to limit such inspections to a random sample. In all other respects, TIER shall be exempt from the obligation to inspect and give notice of defects pursuant to section 377 of the German Commercial Code (HGB).

(2) Any ordered works and custom goods (Werkleistungen und Werklieferungen) shall be subject to acceptance (Abnahme) by TIER, unless acceptance is excluded by nature of the work. This acceptance shall take place by express declaration of TIER in writing (förmliche Abnahme); any implied or deemed acceptance, in particular by TIER putting the Deliverables into use or operation, is excluded. Unless otherwise agreed (e.g., for components which are no longer accessible upon completion of the overall work), TIER shall not be required to declare partial acceptances.

(3) TIER shall carry out acceptance checks and, where applicable, testing within a reasonable period of time after receipt of the Supplier’s notice of completion and of all documents agreed to be provided by the Supplier in the Contract or otherwise pertaining to the work. Insofar as tests require commissioning or putting into use of the work to be accepted, at TIER’s request, the Supplier will reasonably support TIER with such testing. Unless agreed otherwise, a written record of the acceptance (Abnahmeprotokoll) that includes mention of any defects found during acceptance testing shall be prepared by TIER and provided to the Supplier upon request.

§ 8 WARRANTY RIGHTS AND CLAIMS

(1) Unless otherwise provided in these Terms or agreed by the Parties, TIER shall have all rights and claims under applicable law, including but not limited to any warranty rights (Gewährleistungsrechte), in the event of any non-conformance of goods (Kaufgegenstände) or works (Werkleistungen) or other defects in material, workmanship or title as well as any other breaches by the Supplier of its obligations under any Contract under these Terms.

(2) Payments made by TIER shall not imply any declaration to the effect that TIER accepts the Suppliers Deliverables as being in accordance with the underlying Contract or otherwise free of defects.

§ 9 SUBCONTRACTORS

The use of subcontractors requires the prior consent of TIER, provided that TIER shall not unreasonably refuse such consent. The Supplier shall be liable to TIER for the behavior of its subcontractors, employees and vicarious agents as for its own. The Supplier shall procure that each such subcontractor undertakes to comply with TIER’s Supplier Code of Conduct (referred to in §17(4). The Supplier shall, as a condition to TIER’s consent to the use of any subcontractor, procure that such subcontractor undertakes to comply with TIER’s Supplier Code of Conduct (referred to in §17(4).

§ 10 PROPERTY IN MATERIALS

(1) Any materials provided by TIER or procured by the Supplier for the account of TIER shall, as between the Parties, be the property of TIER and shall be marked, stored and managed separately and free of charge. Any processing, mixing or combining of such materials by the Supplier shall be carried out on behalf of TIER. If processing, mixing or combining takes place with other items not belonging to TIER, TIER shall acquire co-ownership of the resulting items in proportion to the value of TIER’s materials to that of the other items used in the processing, mixing or combining.

(2) For works (Werkleistungen), to the extent that the ownership of works is not transferred to TIER through the combination with items owned by TIER, such works shall become the property of TIER at the latest upon their acceptance.

(3) To the extent that a retention of title (Eigentumsvorbehalt) is agreed in an Order, such retention of title shall expire at the latest upon payment of the remuneration for each respective goods or works, and shall only have the effect of a simple retention of title (einfacher Eigentumsvorbehalt). In such case, TIER shall always be entitled to dispose of the goods or works in the ordinary course of business even before payment of the remuneration, and to resell the goods or works.

(4) An extended or forwarded retention of title (erweiterter oder weitergeleiteter Eigentumsvorbehalt) is excluded.

§ 11 PROPERTY IN TOOLING AND BLUEPRINTS; THIRD PARTY RIGHTS

(1) Tools, drawings, plans, documentation, and other, similar items which are produced by the Supplier in connection with its performance of a Contract shall become the property of TIER as soon as they are produced, shall be marked by the Supplier as the property of TIER, and shall be returned to TIER at the latest upon completion of the performance of the respective Contract. Such items may be used exclusively for the performance of the Contract for TIER and shall be stored and managed free of charge by the Supplier.

(2) Insofar as works or any other items that are produced by the Supplier for TIER in connection with its performance of a Contract under these Terms are subject to any intellectual property rights (such as copyrights, neighboring rights to copyright, rights in designs, trademark, patents, utility models, or trade secrets) under any jurisdiction in the world, the Supplier hereby grants TIER the non-exclusive, worldwide and perpetual right, at the time of conclusion of the Contract, to use and exploit such intellectual property rights in connection with the use and exploitation of the work or other item in question in full, for all business purposes of TIER and the companies affiliated with TIER within the meaning of Sec 15 German Stock Corporation Act (AktG) (each a “TIER Affiliate”) without any limitation in scope and types of use. TIER shall also be entitled to modify these works and items and to combine them with other items and to use and exploit them in this combined form in the same scope as described above, and to transfer the granted rights of use to any third party acquirer to whom TIER may transfer these works or other items. TIER hereby accepts this grant of rights.

(3) The Supplier warrants that the Deliverables and their use for the intended purposes by TIER, TIER Affiliates, and its and their customers in accordance with the Contract do not infringe any third-party rights, in particular intellectual property rights. The Supplier shall indemnify TIER from claims for infringement of third party rights upon first written request and reimburse TIER any expenses incurred thereby (including reasonable attorneys’ fees).

§ 12 TERMINATION

(1) If a Contract concerns the provision of works (Werkleistung), TIER may terminate the Contract or any separable part of it at any time in accordance with section 649 of the German Civil Code (BGB).

(2) If the Supplier is responsible for the cause of termination, TIER will only remunerate the Supplier for parts of the works provided prior to termination, provided that, to the extent such parts are not usable for their intended purposes or their use would be unreasonable for TIER for other reasons, TIER may refuse or reduce remuneration for such parts in proportion with such limitations in usability. The Supplier shall, upon TIER’s request, immediately at its own cost return to TIER any materials provided by TIER in accordance with §10(1) to the extent that such materials have not been incorporated in Deliverables.

(3) If the Supplier is not responsible for the cause of termination, TIER shall (i) fully remunerate the Supplier for all parts of the works delivered prior to termination, and (ii) compensate the Supplier for any costs incurred for any further works that had not resulted in deliverable parts at the time of termination, including costs resulting from obligations under agreements with its own suppliers that the Supplier is unable to terminate, to the extent that Supplier can show evidence of such costs. The Supplier shall not be entitled to further compensation as a result of the termination.

(4) TIER shall be entitled to terminate the Contract if there is a change of Control of the Supplier; “Control” for these purposes being defined as the beneficial ownership of more than 50% of the issued share capital of the Supplier or the legal power to direct or cause the direction of the general management of the Supplier.

(5) Any intellectual property rights in and to work results or parts thereof completed at the time of termination shall be transferred or granted to TIER in accordance with the Parties’ agreement for the transfer or granting of rights in completed work results.

(6) Any rights of the Parties to extraordinary termination for good cause shall remain unaffected. It shall in particularly but without limitation to the generality of the foregoing be considered good cause for termination by TIER if

  • (a)  the Supplier or a subcontractor directly or indirectly engaged by the Supplier fails to comply with or breaches applicable law and, taking into account all circumstances and interests of both Parties, TIER can therefore not be reasonably expected to continue the business relationship with the Supplier; or
  • (b)  the Supplier becomes insolvent, defaults on its payments, or an application is made to open insolvency proceedings or winding-up proceedings against the assets of the Supplier or one or more of its owners.

§ 13 LIABILITY OF THE SUPPLIER; INSURANCE

(1) To the extent not agreed otherwise between the Parties, the Supplier shall be liable to TIER for all damages and futile expenditures (together referred to in these Terms as “Damages”) in accordance with applicable law.

(2) To the extent that the Supplier is responsible for Damages under the German Product Liability Act (Produkthaftungsgesetz) or any similar applicable law, it shall indemnify TIER upon first written request against any claims by third parties and associated costs and losses (including reasonable attorneys’ fees). This shall also apply if there is joint and several liability (gesamtschulderische Haftung) between TIER and the Supplier vis-à-vis the injured third party. In addition, TIER shall be entitled to reimbursement of all costs and expenses incurred by it in connection product liability, in particular due to product recalls initiated by TIER.

(3) The Supplier shall carry insurance covering all typical risks arising from Contracts under these Terms, with a coverage of no less than EUR 1 million per damaging event for personal injury, damage to property and financial loss. The Supplier shall provide evidence of this insurance coverage to TIER upon request.

§ 14 LIABILITY OF TIER

(1) TIER shall bear full liability in accordance with applicable law for Damages suffered by the Supplier in case of intent and gross negligence.

(2) In case of slight negligence (einfache Fahrlässigkeit), the liability of TIER shall be

  • (a) unlimited for Damages resulting from injury to life, body, and health;
  • (b) for Damages resulting from the breach of a material contractual obligation, limited to the Damages foreseeable by the Parties at the time of the conclusion of the Contract under which the obligation arose and which are typical for transactions of this nature. A material contractual obligation for this purpose is an obligation the fulfillment of which makes the proper execution of the respective contract possible in the first place, and on the fulfilment of which the Supplier may generally rely; and
  • (c) excluded for Damages resulting from a breach of non-material contractual obligations.

(3) The limitations of liability resulting from paragraph (2) also apply in favor of persons for whose fault TIER is responsible under statutory provisions. They shall not apply to the extent TIER has fraudulently concealed a defect or has expressly assumed a guarantee or procurement risk, or for claims arising from the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG).

§ 15 CONFIDENTIALITY

(1) “Confidential Information” means any and all information and data, however conveyed or presented and whether technical or commercial, disclosed by one Party (“Disclosing Party”) to the other Party (“Recipient”) or obtained or received by the other Party (also “Recipient”) as a result of entering into or performing its obligations under these Terms and any Contract, and including information relating to:

  • (a)  customers or potential customers, other suppliers or potential suppliers, employees or potential employees, or other partners, in each case of the Disclosing Party;

  • (b)  aspects of the Disclosing Party’s business strategy in relation to such customers and their business generally;

  • (c)  the products which may be offered or potentially offered by the Disclosing Party; and/or

  • (d)  details in relation to any transaction to which the Disclosing Party is a party or with which the Disclosing Party is involved or connected;

but excluding any information of which the Recipient can show that:

  • (a)  it is lawfully in the Recipient’s possession without an obligation restricting disclosure at the time of receipt from the Disclosing Party; or

  • (b)  it is or becomes part of the public domain other than through a breach of confidentiality obligations, including under this section 15; or

  • (c)  it has been developed by the Recipient independently and without reference to Confidential Information obtained from the Disclosing Party;

(2) Except to the extent set out in this section 15 or otherwise expressly permitted in these Terms or under any Contract, the Recipient shall:

  • (a)  treat Confidential Information as confidential;

  • (b)  use Confidential Information solely for the purpose of its performance and other obligations under the applicable Contract and/or the exercise of rights granted by this these Terms and the applicable Contract (the “Purpose”); and

  • (c) not publish or otherwise disclose to any person the Confidential Information or the fact that Confidential Information has been made available, other than for the Purpose, without the Disclosing Party’s prior written consent,

    and without limiting the generality of section 15 (2) of these Terms:

  • (d)  not disclose Confidential Information to or in the presence of any person other than:

    • its officers, directors, or employees having a need to know in connection with the Purpose;

    • its affiliates, and shareholders having a need to know in connection with the Purpose and/or the administration and operation of the Recipient ’s business and its shareholding in the Recipient (and in such cases the Recipient agrees to be liable to TIER if the affiliate, advisor, or shareholder uses the information for any purpose);

  • (e)  advise any officers, directors, employees, affiliates, or shareholders to whom Confidential Information is to be disclosed of their obligations with respect to the Confidential Information prior to such disclosure and to ensure their compliance with such obligation; and

  • (f)  take all action reasonably necessary to secure the Confidential Information against theft, loss or unauthorized disclosure.

(3) The Recipient may disclose Confidential Information that would otherwise be subject to section 15 (2) of these Terms but only if it can show that:

  • (a)  such disclosure is required by applicable law or by order of a court of competent jurisdiction or pursuant to a binding order or direction of a tax or fiscal authority or other competent regulator; or

  • (b)  disclosure to the Recipient’s professional advisors is necessary for the purposes of receiving professional advice in relation to these Terms or any Contract,

  • (c)  if the Recipient is required to make a disclosure in accordance with section 15 (3) (a) of these Terms, it shall, if it is not prohibited by applicable law or a competent regulator, provide the Disclosing Party with notice of any such requirement or request so that the Disclosing Party may seek an order that the Confidential Information does not have to be disclosed and/or an appropriate protection order or assurance that confidentiality is accorded to the information that the Supplier is required to disclose. The Recipient will, at the Disclosing Party's cost, provide the Disclosing Party with all reasonable assistance in any action taken by the Disclosing Party to obtain such order or assurance.

(4) With regard to any Confidential Information disclosed hereunder, the confidentiality obligations pursuant to this section 15 shall remain in force even after any Contracts and the business relationship between the Parties ends.

§ 16 DATA PROTECTION

(1) The Parties shall comply with all provisions of applicable data protection law, in particular and to the extent applicable the provisions of the EU General Data Protection Regulation (GDPR), the German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG), and the German Telemedia Act (Telemediengesetz – TMG), as amended from time to time.

(2) The Supplier shall instruct its employees in accordance with the relevant data protection provisions and obligate them to maintain the confidentiality of personal data. The Supplier shall monitor the compliance of its employees with applicable data protection law and shall ensure data protection and data security by means of suitable technical and organizational measures.

(3) To the extent required by applicable data protection law, the Parties shall enter into a market standard processing agreement (DPA) or a joint controllership agreement (JCA), in each case ensuring that such agreement will be entered into before the activity that requires such agreement commences. The Supplier shall notify TIER immediately upon becoming aware that changes or additional documentation in the contractual relationship between the Parties are necessary under applicable data protection law, particularly if a DPA, JCA, or any other additional agreement is legally required.

§ 17 COMPLIANCE

(1) In performing its services, the Supplier shall comply with the safety and occupational health and safety regulations prescribed by applicable law, supervisory authorities, and trade professional associations as well as any applicable environmental protection regimes. The Supplier will perform its obligations under these Terms and any Contracts thereunder in an energy and water efficient manner.

(2) The Supplier shall (i) not employ, either itself or through third parties (e.g., subcontractors), in connection with Contracts, any workers whose employment violates applicable law, such as, for example and to the extent applicable, provisions of the German Undeclared Workers Act (Schwarzarbeitergesetz), the German Personnel Leasing Act (Arbeitnehmerüberlassungsgesetz), the German Social Security Code (Sozialgesetzbuch), or the German Residence Act (Aufenthaltsgesetz), and (ii) to the extent applicable, grant to all workers (including those of third parties, e.g., subcontractors) the mandatory working conditions pursuant to section 2 et seq. of the German Employee Posting Act (Arbeitnehmer-Entsendegesetz). The Supplier shall, at the request of TIER, at any time and without undue delay, submit the necessary documents (e.g., social security cards, work and residence permits, secondment papers, qualification certificates, etc.) of the Supplier’s and its subcontractors' employees involved in the performance of Contracts to TIER for review by TIER an its advisors or by any supervisory authorities. The Supplier shall ensure that all employees carry valid identification documents at all times while at TIER’s premises. All payment obligations, including for social contributions, arising in connection with Contracts as a result of the employment of its personnel shall be fulfilled by the Supplier in a timely manner. The Supplier shall also ensure that its subcontractors fulfill their respective obligations. Any breach of the foregoing obligations by the Supplier, including outside the contractual relationship between TIER and the Supplier, shall be deemed a material breach entitling TIER to terminate all agreements with the Supplier without notice, for good cause. If any claim is made against TIER by third parties (including governmental authorities) in connection with such breach by the Supplier, the Supplier shall be obligated to compensate all costs and other Damages, including reasonable attorneys’ fees, incurred by TIER as a result thereof.

(3) The Supplier shall not to tolerate or engage in any form of corruption or bribery, including in its own supply chain. Any breach of this obligation by the Supplier, including outside the contractual relationship between TIER and the Supplier, shall be deemed a material breach entitling TIER to terminate all agreements with the Supplier without notice, for good cause.

(4) The Supplier shall comply with TIER’s Supplier Code of Conduct as attached to these Terms and as amended from time to time by notice to the Supplier. Any breach of this obligation by the Supplier, or of applicable customs, sanctions, or export control law, including outside the contractual relationship between TIER and the Supplier, shall be deemed a material breach entitling TIER to terminate all agreements with the Supplier without notice, for good cause. The Supplier shall inform TIER (i) of any export control applicable to any contractual relationship under these Terms (e.g., under dual-use regulations), (ii) of any export or re-export license requirement under U.S. law, and (iii) of the relevant classification numbers applicable (e.g., ECCN Export Control Classification Number).

§18 AUDIT RIGHT

(1) TIER shall have the right to audit, at its discretion and expense, the Supplier’s compliance with applicable law, these Terms, and any Contract, particularly but not limited to compliance with section 15 (Confidentiality), section 16 (Data Protection) and section 17 (Compliance) of these Terms. The Supplier shall reasonably contribute to such audits, e.g., by providing related information and documentation. To the extent necessary for the purpose of an audit, particularly where a Contract includes the performance of works (Werkleistungen) that are not performed on premises that are under the control of otherwise freely accessible by TIER, the Supplier shall also, upon written request and during the applicable business hours, give TIER access to any business premises under its control where activities related to any Contract are taking place, and particularly provide access any unfinished works for inspection.

(2) Any breach by the Supplier of the foregoing paragraph 1, or any other attempt by the Supplier to hinder or mislead an audit shall be deemed a material breach entitling TIER to terminate all agreements with the Supplier without notice, for good cause.

§19 GOVERNING LAW; VENUE

(1) These Terms, the Contracts, and all claims and rights of the Parties resulting therefrom or in connection therewith (irrespective of the legal grounds, including claims in tort and claims under competition and antitrust law) shall be governed exclusively by the laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) If the Supplier is a merchant (Kaufmann), a corporate entity under public law, or a special fund under public law (öffentlich-rechtliches Sondervermögen), the exclusive place of jurisdiction for all legal disputes arising between the Parties from Contracts (irrespective of the legal grounds, including claims in tort and claims under competition and antitrust law), provided that TIER, at its options, may also bring actions at the seat of the Supplier. Exclusive jurisdiction under applicable law shall remain unaffected by the foregoing sentence.

§ 20 MISCELLANEOUS

(1) The Supplier shall not make reference to the business relationship between TIER and the Supplier, e.g., for advertising purposes, without the prior written consent of TIER.

(2) The Parties are independent contractors and, except to the extent explicitly agreed between the Parties, no Party shall derive the right to legally represent or otherwise act on behalf of the other Party from these Terms or the Contracts.

(3) Legally relevant declarations and notifications by the Supplier with regard to the performance of a Contract after its conclusion be made in writing or in text form (e.g., by letter or e-mail). Legal form requirements and requirements for further evidence, in particular in case of doubts about the legitimacy of the person making the declaration, shall remain unaffected. Insofar as the written form is agreed for certain declarations in these Terms, the transmission of the declaration signed by an authorized representative of the notifying Party by fax or as a scan in PDF format by e-mail shall be sufficient to comply with the written form.

(4) Should any provision of these Terms or any agreement made under or otherwise in connection with these Terms be or become invalid, such invalidity shall not affect the validity of the remaining agreements. The invalid provision shall be replaced by the statutory default under applicable law.

Last updated: 10 May 2022