General Purchasing Terms and Conditions

1.1 These General Purchasing Conditions (hereinafter “GPCs”) apply for all present and future business relationships between NTT DATA Business Solutions AG and, in accordance with Sections 15 et seq. AktG (German Stock Corporation Act), affiliated enterprises (hereinafter “NDBS”) and the supplier of goods and services (hereinafter “Supplier”) for the ordering and procurement of said goods and services by NDBS. They do not apply for natural persons who conclude a legal transaction solely for a purpose that is not attributable to their professional activities as employees or self-employed individuals.

1.2. By accepting and carrying out an assignment and/or an order, the Supplier recognizes the version of these GPCs that is valid at the time of order placement. Contrary and/or differing GTCs issued by the Supplier are not recognized and shall not become a component of the contract, unless NDBS accepts their validity in writing when the contract is concluded; in this case, as well as in the event of separate agreement on special conditions for certain orders, the GPCs apply in a subordinate and supplemental manner. The GPCs apply even if the Supplier executes the contract unconditionally and with knowledge of Supplier conditions that are contrary to or differ from the GTCs. Acceptance by NDBS of a delivery or service from the Supplier does not imply agreement to general business or purchasing terms or conditions issued by the Supplier. Even non-acknowledgement of an order confirmation by the Supplier with contrary explanations by the Supplier does not constitute agreement thereto.

1.3. The GPCs apply for all future business and contracts with the Supplier, even if NDBS does not further expressly mention them to the Supplier.

2. Components of the Contract

The components of the contract are in the following order:

a. The order
b. The statement of work
c. These GPCs
d. The respectively valid version of the Code of Conduct for Suppliers

3. Conclusion of the Contract

3.1 Both the contract itself and all agreements that are made by and between NDBS and the Supplier for the purpose of executing said contract must be concluded in writing.

3.2 Only purchase orders, call-off orders, contracts, etc. (hereinafter referred to as “Orders”) or other statements of intent that are issued in writing by the purchasing office of NDBS or an affiliated enterprise shall be legally effective. Statements transmitted electronically in text form also fulfill the written-form requirement.

3.3 If NDBS has concluded a framework agreement that provides for the applicability of these GPCs, then enterprises affiliated with NDBS worldwide shall, in accordance with Sections 15 et seq. AktG, be favored and thus authorized to purchase by said framework agreement.

3.4 The Supplier must properly review any Order and confirm it in writing to NDBS. The Supplier is obligated to indicate expressly and in writing any relevant deviations from the inquiry documents.

4. Scope of Services

4.1 The content of services is defined in each particular purchase order. Documents, reports, ideas, drafts, models, samples and all other results arising from the provision of services are part of the work performance.

4.2 The Supplier shall provide its services with the utmost care, taking into consideration the scientific and technical state of the art, safety regulations issued by authorities and professional associations, and its own existing knowledge and experience, as well as knowledge and experience obtained while performing the work. It guarantees adherence to statutory regulations, the agreed-upon technical specifications and other provisions.

4.3 Third parties may only perform the ordered deliveries and services with prior written consent from NDBS.

4.4 The Supplier shall prepare drawings, data and other documentation in accordance with NDBS’s requirements, regulations and guidelines. In the event of ambiguities, the Supplier is obligated to obtain all necessary information before commencing the work. NDBS shall stipulate the computer systems and programs to be used for documentation. The Supplier is obligated to obtain relevant information prior to beginning or executing the work.

4.5 Upon request from NDBS, the Supplier shall provide information regarding the composition of the item being delivered, if said information is needed in order to meet the requirements of domestic or overseas authorities.

4.6 As long as the Supplier has not yet completely fulfilled its obligations, NDBS is entitled to request reasonable changes to the order with regard to design, specifications, quantity and delivery time. The effects of such changes (e.g. increase or decrease in costs, delivery deadlines, etc.) shall be determined mutually. NDBS can request changes to the item being delivered even after the conclusion of the contract, provided it is objectively reasonable to expect the Supplier to make such changes. In the event of such changes to the contract, the effects for both parties, especially with regard to increased or decreased costs and delivery deadlines, shall be determined by mutual agreement. 3.7 The Supplier is obligated to immediately convey in writing to NDBS any objections it may have to the nature and type of specifications for the service/delivery and to propose to NDBS any changes that it considers necessary in order to fulfill the agreed-upon specifications or statutory requirements.

4.7 If the Supplier intends to cease production and/or delivery of replacement parts, NDBS must be informed and given the opportunity to place a final purchase order prior to cessation.

5. Prices and Delivery Conditions

5.1 For the provision of the contractually agreed services, the Supplier shall receive the agreed remuneration as defined by the rules set forth in the purchase order. The prices or maximum prices (total net amount) indicated in the purchase order are definitive and binding.

5.2. Unless a different place of fulfillment is agreed in the contract, the deliveries shall occur at NDBS’ business site (performance due at creditor’s domicile) and shall be insured by and at the expense of the Supplier against damage from transport, incorrect loading or unloading, and theft. Unless otherwise agreed in writing, delivery shall in all cases occur free of charge at the agreed destination; for deliveries from abroad, the “DDP excl. VAT” delivery clause applies (Incoterms 2020) at the agreed destination, Incoterms 2020. The import sales tax shall be paid by NDBS.

5.3 Each delivery shall include a delivery slip or documentation of service containing the following information:

– Number and date of Order
– Number and date of delivery slip/documentation of service
– Date sent/date service performed
– Information on the type and scope of delivery/service
– Type of shipping

5.4 Goods shall be packed in such a way that damage from transport and loading processes is avoided. Only the amount of packaging materials necessary to fulfill the purpose shall be used. The Supplier’s obligations to accept returns, including with regard to transport and product packaging, are defined by the statutory regulations. The Supplier shall provide assurance that all packaging is licensed and reported with an appropriate system provider in accordance with the law, and that the fees associated with this have been paid properly and in full.

5.5 The Supplier shall bear the costs for return shipments within the warranty period. NDBS shall send return goods freight forward to the Supplier.

5.6 The price includes the costs for any installation, integration and transfer work that may be needed, unless differing rules have been agreed upon in this regard.

5.7 Unless previously agreed in writing, no remuneration is owed for demonstrations, presentations, negotiations and/or the elaboration of offers and projects.

5.8 If invoicing based on hourly or daily rates is agreed for any of the services to be provided, neither travel and waiting times nor travel costs shall be compensated separately, unless otherwise agreed in writing.

5.9 The Supplier shall in each case offer NDBS and affiliated enterprises pursuant to Sections 15 et seq. AktG its services at the most favorable conditions that it provides to NDBS itself and/or an enterprise affiliated with NDBS for services that are comparable with regard to amount, quality and market conditions.

6. Billing and Payment Terms

6.1 Invoices shall be submitted after the services have been provided in full.

6.2 The agreed prices are net prices. Sales taxes in the statutorily stipulated amount may be incurred in addition.

6.3 Invoices shall be sent exclusively to the invoicing address indicated on the purchase order. The Supplier must invoice its services in a verifiable manner. Invoices must meet the statutory requirements, in particular those of the UStG (German Value Added Tax Act). As a rule, one invoice must be prepared for each purchase order. The purchase order number and items must be indicated on the invoice in all cases. Accounting documentation (e.g. delivery slips, documentation of service, bills of quantity) shall be enclosed with the relevant invoice.

6.4 NDBS cannot process invoices if the aforementioned information and/or documents are missing. In such cases, the Supplier is not authorized to assert an associated claim against NDBS. NDBS reserves the right to send the invoice back unpaid to be completed or corrected. In such cases, the payment term shall not begin until after the completed or corrected invoice has been received. Even if NDBS does not make use of the proviso above, it need not justify any delay in payment that may occur.

6.5 Unless agreed otherwise, the payment term begins on the first day after the verifiable invoice is received, but not before the date of contract fulfillment. The payment term shall be 60 calendar days. The Supplier shall offer a 2% discount on payments received within 30 days and 3% on those received within 14 days, unless otherwise stipulated. Receipt of the transfer order at NDBS’ payment institution shall be authoritative for timeliness of payment. Payment shall be made to the Supplier’s business account. The Supplier must provide the relevant banking information for this purpose. The same shall apply for changes to the banking information. If an agreement is made that services are to be delivered in multiple parts, payment shall not be due until the last delivery has been made. This shall not apply for successive delivery contracts.

6.6 If the Supplier is required to provide samples of materials, test reports, quality documents or other contractually agreed documents, the ability of NDBS to access these documents at its own premises shall constitute a prerequisite for completeness of delivery and service.

6.7 NDBS reserves rights of offsetting and retention within the scope permitted by law. The Supplier’s rights of offsetting and retention apply only if they have been asserted without dispute or legally confirmed. NDBS is entitled to reduce invoice amounts by the value of any returned goods as well as any expenses or indemnification claims.

6.8 Supplier claims against NDBS can only be assigned with express written consent from the NDBS office that concluded the contract. NDBS is entitled to assign, in whole or in part, its rights and obligations under the contract to its affiliated enterprises (cf. Section 1). It does not need consent from the Supplier in order to do so.

7. Release from Obligation to Perform, Withdrawal from Contract

7.1 Force majeure releases the contractual partners, for the duration of the disruption and within the scope of its effects, from their obligations to perform. The contractual partners are obligated, within a reasonable scope, to convey the required information without delay and to adapt their obligations in good faith to the change in circumstances.

7.2 NDBS shall be released in whole or in part from the obligation to accept the ordered delivery, and thus entitled to withdraw from the contract, if the delivery has become unusable for NDBS as a result of a delay occurring due to the force majeure.

7.3 NDBS is entitled to withdraw from the contract if the Supplier petitions to open insolvency proceedings, opens insolvency proceedings, or if opening of proceedings on the Supplier’s part is rejected due to a lack of sufficient assets.

7.4 NDBS also has a right to withdraw if individual enforcement measures are taken against the Supplier.

7.5 NDBS may also withdraw from the contract if the Supplier implies, promises, offers or grants advantages of any kind to an NDBS employee or agent involved in preparation, conclusion or execution of the contract, or to a third party in the interest of such an employee or agent.

7.6 NDBS may likewise withdraw from the contract with immediate effect if the Supplier violates the Code of Conduct or other statutory provisions.

7.7 In all other respects, the statutory regulations concerning withdrawal shall remain unaffected.

8. Transfer of Risk, Documents

8.1. The transfer of risk shall occur when NDBS accepts the delivery at its site of business (at the company). Acceptance of deliveries shall occur during NDBS’s business hours.

8.2. If services are used in practical operations without problems or errors, then the services in question shall be considered to have been acceptance-ready. This assumes that all deliveries and services provided by the Supplier are handed over acceptance-ready and that this has been communicated to NDBS in writing by the Supplier, that all components of the deliveries and services can be used in their entirety and without functional limitations in accordance with the contractual requirements or other agreements, that all the necessary tests have been conducted by NDBS, and that interoperability (including interfaces) with the system environment has been ensured by NDBS or the respective customer.

8.3 Prior to acceptance, the Supplier must grant NDBS a chance to test the services (including individual functions) for at least eight weeks, e.g. integration test, user acceptance test.

8.4 Acceptance shall always be issued in the form of a written confirmation or an acceptance report or instruction report to be signed by the parties. No notional acceptance shall occur.

8.5 Documents, reports, ideas, drafts, models, samples, etc. that NDBS provides to the Supplier shall remain the property of NDBS. The Supplier must hand them over to NDBS without special request immediately after performance of its services. The Supplier may use such documents only to fulfill its contractual obligations vis-à-vis NDBS.

9. Service and Delivery Dates

The dates agreed in the purchase order shall apply. Unless expressly agreed otherwise in the purchase order, all dates indicated shall be fixed dates.

10. Liability for Defects and Warranty

10.1 NDBS is entitled to the statutory claims in the event of material defects and defects of title (“Defects”) in the goods or in the services provided and also in the event of other violations of obligations by the Supplier, unless otherwise provided below.

10.2 In particular, the Supplier shall be liable pursuant to the statutory provisions for ensuring that the quality of its deliveries or services is, at the time of transfer of risk to NDBS, as agreed in the purchase order. In all cases, descriptions that have become part of the relevant purchase order – especially through being named or referenced in said purchase order – shall be deemed to constitute an agreement concerning quality. This is true regardless of whether the description is provided by NDBS, the Supplier or a third party/manufacturer.

10.3 If Defects are found prior to or at the time of the transfer of risk, or if they occur during the respectively valid statutes of limitations, then the Supplier must either, at the discretion of NDBS, rectify the Defects within an appropriate period to be determined by NDBS (rectification) or provide a new delivery or service that is free of Defects (subsequent delivery).

10.4 If the Supplier does not comply with its obligation to subsequent performance, NDBS is entitled to withdraw from the contract in whole or in part, to request a reduction in the agreed price, or to rectify the Defect itself and request compensation from the Supplier.

10.5 If subsequent performance by the Supplier is unsatisfactory or unreasonable for NDBS (e.g. due to particular urgency, risks to operating safety or the threat of disproportionate damages occurring), no deadline is required; NDBS shall inform the recipient of such circumstances without delay and prior to the start of subsequent performance if at all possible.

10.6 The statute of limitations for claims for Defects begins upon transfer of risk and is based on the legal provisions.

10.7 Upon receipt of written notification of Defects by the Supplier, the statute of limitations for warranty claims shall be paused until the Supplier rejects the claims, states that the Defect has been rectified, or otherwise refuses to continue negotiations with NDBS regarding the claims. In the event of replacement delivery and subsequent rectification, the warranty period for replaced and repaired parts begins anew unless NDBS had to assume, based on the Supplier’s conduct, that the Supplier did not consider itself obligated to take the measure and instead carried out the subsequent delivery or rectification purely out of goodwill or for similar reasons.

10.8 The costs incurred by the Supplier for the purposes of inspection and subsequent performance (including any de-installation and installation costs) shall be borne by the Supplier, even if it turns out that there was in fact no Defect. Liability on the part of NDBS for indemnification in the event of an unjustified request for rectification of Defects is hereby unaffected; however, NDBS shall incur such liability only if NDBS recognized or was grossly negligent in failing to recognize that there was no Defect.

10.9. NDBS may accept or approve templates or samples that are presented without thereby waiving warranty claims.

10.10 More extensive or differing legal claims remain hereby unaffected.

10.11 The Supplier provides assurance that no third-party rights are violated in connection with its delivery. If a third party asserts claims against NDBS in this regard, the Supplier is obligated to immediately, upon first request, indemnify NDBS from all resulting claims and defend NDBS from same. The indemnity obligation relates to all expenses that necessarily arise for NDBS from or in connection with a third-party claim. This also includes the costs of representation by an attorney. The Supplier shall take out sufficient insurance against these risks in accordance with standard practice.

11. Rights of Use

11.1. The Supplier grants to NDBS the non-exclusive, irrevocable, unrestricted, transferrable right, compensated by the agreed remuneration, to fully use the software included in its scope of services in order to fulfill its functions in accordance with the contract.

11.2. The Supplier guarantees that no third-party rights, including but not limited to copyrights or patents, are violated by means of the provision of the service or the use of said service and/or the manufactured item. The Supplier shall defend against all third-party claims brought against NDBS or against customers of NDBS in connection with violations of rights (including but not limited to copyrights and patents). In this regard, the Supplier shall indemnify NDBS and/or customers of NDBS from all such compensation for damages or obligations that are imposed, as well as any other expenditures associated therewith.

11.3. Both parties further undertake to inform each other right away of any third-party claims based on ownership or other violations of rights due to the use of results of work that have arisen in the context of this contract.

11.4. To the extent that the service is an individual service for the Supplier, the Supplier shall receive the exclusive, irrevocable, transferrable right of use, unrestricted with regard to time, space and content, and fully compensated by means of the remuneration. The right of use also includes, in particular, the right to complete or partial publication, reproduction, redesigning or editing of documents, including further use thereof for subsequent contracts with third parties.

11.5. The Supplier must be certain that relevant contracts with its employees and/or sub-contractors ensure that the assignment and granting of rights or the waiver thereof, as described above, neither contradict the proprietary rights of such employees or sub-contractors nor hinder or prevent such rights. Upon request by NDBS, the Supplier is obligated to prove the conclusion of such contracts.

11.6. If NDBS also makes open-source software (hereinafter called “OSS”) available to the Supplier in the context of the provision of services, the Supplier must communicate the OSS components as well as the relevant applicable licensing provisions in writing to NDBS as soon as possible, but no later than at the time of performance or delivery.

11.7. Other contractual or statutory claims by NDBS in connection with violations of third-party rights shall remain unaffected by the preceding provisions.

12. Limitation of Liability

12.1. In all cases of contractual or non-contractual liability, NDBS shall only be liable for damages or reimbursement of futile expenditures to the extent of the expenditures as specified in the following provisions:

(a) NDBS is fully liable for intent, gross negligence or the absence of a characteristic for which NDBS has provided a guarantee, but only equal to the amount of foreseeable damages that should have been prevented by the breached obligation or guarantee;

(b) in other cases: only in the event of violation of an essential obligation (cardinal obligation) and up to the liability limits indicated in the following subparagraph. Violation of a cardinal obligation in the context of this Section 12.1(b) is defined as the violation of an obligation that must be fulfilled in order for the proper execution of the contract to be at all possible, or the violation of which jeopardizes the achievement of the purpose that the partner can regularly expect to be observed.

12.2 The option of a plea of comparative negligence remains open. The limitations of liability shall not apply to liability for personal damages, injury to life, limb and health, or liability in accordance with the Produkthaftungsgesetz (German Product Liability Act).

12.3 The statute of limitations for all claims brought against NDBS for compensation for damages or compensation for futile expenditures in the context of contractual or extra-contractual liability is one year. The statute of limitations begins at the time stipulated in Section 199(1) of the German Civil Code (BGB). The provisions of this Section 12.3 do not apply to liability in the case of intent or gross negligence, nor in the case of personal injury, injury to life, limb and health or liability in accordance with the Produkthaftungsgesetz.

13. Confidentiality and Data Protection

13.1 In accordance with the Geschäftsgeheimnisgesetz (German Business Secrets Act), the parties undertake to protect any protected information belonging to the other party that is acquired before or during performance of the contract, just as they would protect comparable internal information within their own enterprises, and at least with an appropriate level of care. The receiving party is only entitled to disclose this information to third parties if such disclosure necessary for the receiving party to exercise its rights or to execute the contract, and only if the persons in question are subject to confidentiality obligations similar to those that have been set forth in the present contract. Copies of protected information relating to the other party must – to the extent technically possible – contain all of the same references or remarks regarding its confidential or secret nature that were included on the original document.

13.2 The secrecy obligation shall apply indefinitely even after the Order has been completed.

13.3 The Supplier undertakes to treat with confidentiality all information, documents, drawings, plans, parts, etc. that it receives directly or indirectly from NDBS or its customers while working together with same, irrespective of whether said information is obtained in a physical, electronic, oral or other manner, and to only use this information in conjunction with the relevant Order. The Supplier undertakes to return all documents, data, tables, etc. promptly after completion or termination of the contract and without being requested to do so.

13.4 The Supplier must observe the respectively applicable provisions of data protection law. The Supplier shall treat personal data in accordance with the application data protection provisions and other applicable protective stipulations. A data processing agreement to be entered into between the parties shall conclusively govern the contractual parties’ data protection obligations in the context of any data processing carried out by the Supplier as part of its work for NDBS.

14. Audit Rights

14.1 NDBS is entitled to arrange suitable audits to ensure the Supplier’s compliance with obligations arising from a purchase order, including the obligations under these GPCs («Audit»), if

a) NDBS has factual reasons to believe that the Supplier is violating essential obligations arising from these GPCs, or

b) an end customer requests an audit of the Supplier.

14.2 Any audit carried out on the Supplier’s business premises shall take place under constant supervision by competent employees of the Supplier. In the event of an audit, the Supplier shall ensure that the relevant employees are available at the time of the audit. If NDBS wishes to carry out such an audit, the Supplier shall immediately make available to NDBS the information required and requested for the scope of the audit. NDBS will make every effort to avoid disruptions to the Supplier’s business operations.

14.3 The Supplier shall ensure that NDBS is also granted the right to audit the Supplier’s sub-contractors.

14.4 NDBS is entitled to assign performance of the audit to an independent service provider that is not a competitor of the provider and that is obligated to secrecy.

14.5 NDBS shall bear the costs of any audit, unless said audit proves that the Supplier has violated its contractually agreed obligations.

15. Obligation to Take Out a Pecuniary Damage Liability Insurance Policy

During the course of carrying out a purchase order, the Supplier must maintain public liability insurance and pecuniary damage liability insurance with an insurance company that has adequate financial stability, and must provide NDBS with evidence of the existence of such insurance coverage upon request at any time. The amount of the insurance coverage must be appropriate for the Order in question, and must at least cover the level of damages to be typically expected.

16. Entry into Force

Unless otherwise provided, the contract enters into force on the date it is signed or the date the offer is accepted, but no later than at the time the software is made available and/or the service is provided by the Supplier on the basis of a purchase order placed by NDBS.

17. Completion and Termination

17.1 The individual contract shall end when the service described therein has been performed, if applicable via its acceptance by NDBS or its customers, or when the contractually agreed term is over.

17.2 Unless otherwise agreed, NDBS has the right to terminate an Order in writing with a notice period of 2 weeks.

18. Final Provisions

18.1 The laws of the Federal Republic of Germany apply. The provisions of the UN Convention on Contracts for the International Sale of Goods, and legal standards that refer to a different legal system, do not apply. If copies of these GPCs are prepared in languages other than German, solely the German version shall be binding for NDBS and the Supplier.

18.2 Secondary agreements, changes or supplements must be in writing in order to be effective, as must any waiver of the written-form requirement. For the purposes of these GPCs, email and fax are also considered to constitute written form.

18.3 The place of execution is Bielefeld. Bielefeld is the place of jurisdiction for disputes arising from or in connection with the contractual relationship that exists between NDBS and the Supplier, provided the contractual partner is a business person, a legal entity under public law or a special fund under public law.

18.4 Should any provision of these GPCs be or become invalid, this shall not affect the validity of the remaining provisions.