General Terms and Conditions of Purchase

Loyalty Partner GmbH

General Terms and Conditions of Purchase

for Goods and Services, Last update: 08/2018

§ 1 General - Scope

The contractual partner of Loyalty Partner GmbH is hereinafter referred to as the contractual partner, and Loyalty Partner GmbH is hereinafter referred to as Loyalty Partner.
The General Terms and Conditions of Purchase of Loyalty Partner apply exclusively; any terms and conditions of the contractual partner which conflict with or deviate from or supplement these Terms and Conditions of Purchase do not apply even if Loyalty Partner, its vicarious agents or employees do not object to them or accept ordered goods without reservation in the knowledge of conflicting or deviating terms and conditions of purchase. Changes shall only apply if Loyalty Partner expressly consents in writing.
With the first delivery or performance of the services described in the contract under these terms and conditions of purchase, the contractual partner acknowledges their exclusive validity also for all further deliveries and services.
The General Terms and Conditions of Purchase apply only to companies, unless an extended scope of application is permitted by law.

§ 2 Contract conclusion

Orders, contracts and delivery schedules as well as amendments and supplements to these General Terms and Conditions of Purchase must be made in textform. All correspondence in connection with this must be addressed to the "Procurement" department of Loyalty Partner.
Loyalty Partner is entitled, after conclusion of the contract - at any rate until delivery - to amend the following contractual components, if applicable, within the framework of what is reasonable for the contractual partner:
- a) Packaging and transport
- b) Special handling, storage, insurance
- c) Place of delivery
- d) Quantity
The resulting effects, in particular with regard to additional and reduced costs and delivery dates, must be taken into account appropriately.
Loyalty Partner is entitled to revoke orders after a period of 2 weeks after received by the contractual partner if the contractual partner does not confirm them unchanged in writing.
The contractual partner undertakes not to give or promise gifts, directly or indirectly, to any person who has a contractual or quasi-contractual relationship with Loyalty Partner. A breach of this provision entitles Loyalty Partner to terminate existing contracts without notice.

§ 3 Performance of the contractual partner

The contractual partner owes the provision of the specifically commissioned service.
The contractual partner is not entitled to represent Loyalty Partner.
The contractual partner shall grant Loyalty Partner insight into the progress of the services to be provided. Loyalty Partner is entitled at any time to inform itself about the progress of the services by inspecting all relevant documents.
The contractual partner is free to conduct his own business in the execution of the order. Only the contractual partner is entitled to give instructions directly to the persons involved in the performance of the services. The contractual partner or his employees are not employees of Loyalty Partner in the sense of labour, tax or social security law; the contractual partner shall ensure that the personnel employed by him are not integrated into a Loyalty Partner company.
The contractual partner and Loyalty Partner shall each appoint a contact person before the start of the service. Communication within the scope of this contract shall be exclusively via these contact persons. Loyalty Partner must be notified in writing in advance of any change in the contact person of the contractual partner.
Loyalty Partner shall provide the contractual partner with the information and documents required for the provision of the services. If the contract partner considers the information to be insufficient, he will inform Loyalty Partner immediately in writing. Loyalty Partner shall provide further acts of cooperation, insofar as these are agreed in writing in the contract.
The contractual partner shall provide the services in its own business premises. In the case of services which the contractual partner provides outside its own business premises as agreed, the safety regulations and information guidelines applicable at the respective location must be observed.

§ 4 Change of Performance

Loyalty Partner can demand changes to the contractual services at any time. If the change in the service influences fundamental contractual provisions, the contractual partner can object to the request for change by notifying Loyalty Partner immediately in writing. If no objection is made by the contractual partner or if the contractual partner implements the changes, the changes are deemed to be accepted.
If the contractual partner objects, he will submit a new offer to Loyalty Partner in textform as soon as possible. If Loyalty Partner accepts the offer of the contractual partner, a new order is required in textform. If Loyalty Partner rejects the offer of the contractual partner or no agreement is reached on the change, Loyalty Partner can demand the implementation of the original service or terminate the contract extraordinarily if adherence to the contract without the requested change is unreasonable.

§ 5 Subcontractors and minimum wage law

Any transfer of the rights and obligations from the contract by the contractual partner requires the prior written consent of Loyalty Partner.
Loyalty Partner is entitled to reject subcontractors.
The contractual partner undertakes, in the case of a subcontracting approved by Loyalty Partner, to observe all labour, social and tax law regulations and to provide Loyalty Partner with proof of any necessary work permit or to present it if approval is required. The contractual partner indemnifies Loyalty Partner from all legal consequences that may arise from violations of the relevant regulations by him or his subcontractors, unless he or his subcontractors are not responsible for the violations.
The contractual partner shall obligate each subcontractor in accordance with its own obligations towards Loyalty Partner, in particular with regard to secrecy and data protection, and shall provide Loyalty Partner with evidence of this obligation on request.
The contractual partner is liable to Loyalty Partner for the fault of the subcontractors and vicarious agents used by him as for his own fault.
The contractual partner shall be obliged at all times to duly fulfil the legal requirements arising from the Mindestlohngesetz (Minimum Wage Act) with regard to subcontractors or other vicarious agents employed by it. The contractual partner also undertakes to ensure that subcontractors and their subcontractors appointed by him also meet these legal requirements.
The contractual partner shall indemnify Loyalty Partner in full against any financial claims arising from a violation of the regulations of the Minimum Wage Act, unless the contractual partner is not responsible for the violation.

§ 6 Prices and payment conditions

The price stated in the order is binding. Prices are net prices, if and insofar as nothing else is stated.
Unless otherwise agreed, the stated price includes delivery (free delivery) to the stated delivery address including packaging and all expenses in connection with the delivery.
Unless otherwise agreed in the contract, payment shall be made within 10 days after delivery and receipt of the invoice with a 3% discount or within 14 days with a 2% discount or within 30 days after receipt of the invoice. A reminder from the contractual partner is required for the occurrence of default; § 286 para. 2 no. 2, para. 3 BGB (German Civil Code) does not apply.
Loyalty Partner is entitled to rights of set-off and retention to the extent permitted by law. Claims of the contractual partner to Loyalty Partner may only be assigned to third parties with the consent of Loyalty Partner. Payments shall only be made to the contractual partner.

§ 7 Invoices

The invoices of the contractual partner are only to be issued on the basis of the receipted delivery note. A separate invoice shall be prepared for each place of delivery.
The invoice issued by the contractual partner must contain the same data as the receipted delivery note. The contractually agreed price and the total price must also be stated. If the invoice contains deviating or incomplete information, Loyalty Partner has the choice of either correcting or supplementing the incorrect or missing information or returning the invoice to the contractual partner for clarification. In any case, the terms of payment according to § 6 paragraph 3 are only valid from receipt of the clarified invoice by Loyalty Partner

§ 8 Payment for services

Payment for services shall only be made after complete performance of the service, unless otherwise agreed. If the parties agree on partial payments, partial payments shall only be made after the respective partial service has been rendered in full.
In the case of lump-sum remuneration, the remuneration agreed in the contract covers all services provided by the contractual partner and all ancillary costs. Insofar as the reimbursement of incidental costs is agreed in the contract, the incidental costs must be reasonable and must be settled in a verifiable manner. Subsequent claims are inadmissible.

§ 9 Delivery, transfer of risk and default

The delivery time, periods and deadlines specified in the contract or order are binding.
The contractual partner is obliged to inform Loyalty Partner immediately in textform if circumstances occur or become apparent which indicate that agreed delivery times, periods or deadlines cannot be met.
In the event of a delay in delivery, Loyalty Partner is entitled to the statutory claims. In particular, Loyalty Partner is entitled to withdraw from the contract after the fruitless expiry of a reasonable grace period and to claim damages for non-performance. Transfer of risk occurs upon delivery at the place of destination.
The delivery shall be accompanied by the corresponding delivery notes in triplicate. Delivery notes as well as invoices must contain information such as delivery note number, quantity, article description, place of delivery as well as the contract and order number of Loyalty Partner - if available. A copy of the delivery note must be enclosed with the invoice. In case of incompleteness, the provision of sec. 7 paragraph 2 applies.
In case of delivery from abroad, an additional copy of the delivery note and, if necessary, the relevant import documents must be enclosed with the shipment.
At the request of Loyalty Partner, the contractual partner is obliged to enclose the desired documents free of charge, in particular a certificate of origin, a manufacturer's certificate and/or preference certificate.

§ 10 Delay of services

If the contractual partner is in default of performance, Loyalty Partner can withdraw from the contract after the expiry of a reasonable grace period and demand compensation instead of performance.
The contractual partner must reimburse Loyalty Partner for the additional expenditure arising from the delay. Further claims of Loyalty Partner due to delay remain unaffected.

§ 11 Acceptance, examination of defects and claims for defects

Acceptance of the contractual performance is made after an incoming inspection by Loyalty Partner following receipt of the performance at the agreed place of delivery. The issuing of receipts does not constitute a waiver of possible claims or rights arising from a breach of duty.
Loyalty Partner is obliged to check the contract goods within a reasonable period of time for any deviations in quality or quantity. The complaint is deemed to be in good time if it is sent by Loyalty Partner within a period of 10 working days from receipt of the goods, or in the case of hidden defects from their discovery.
Loyalty Partner is entitled to the statutory warranty claims in full with the following provisions:
- a) Before providing his services, the contractual partner is obliged to check that the plans, drawings, calculations and other implementation documents submitted by the contractual partner, which have been signed, released, approved, stamped or marked with a "Gesehen” (“Seen") note or similar by Loyalty Partner, correspond to the agreed service contents.
- b) Loyalty Partner is entitled to demand that the contractual partner remedy the defect or deliver a replacement at its discretion. In this case, the contractual partner is obliged to assume all expenses and costs necessary for the purpose of rectifying the defect or delivering a replacement. The right to claim damages, in particular the right to claim damages for non-performance, and the right of withdrawal are expressly reserved.
The period of limitation shall be in accordance with the statutory provisions.

§ 12 Warranty and product liability

The other party guarantees that all products delivered under the contract are free of material or manufacturing defects and meet the required specifications, which the other party has checked accordingly. Upon request, the other party shall provide evidence of compliance with relevant safety standards/norms.
The contractual partner is obliged to indemnify Loyalty Partner from claims for damages by third parties arising from product liability on first request, unless the direct reason for liability is due to gross negligence or wilful intent on the part of Loyalty Partner.
Loyalty Partner is entitled to terminate the contract without notice if and insofar as the contractual partner breaches its obligations under paragraph 1 or 2.

§ 13 Liability insurance

In order to cover the liability risks arising from the contractual relationships between the parties, the contractual partner will take out liability insurance at the latest from the entry into force of the first contract between the parties, maintain this until the expiry of the limitation period for claims for defects and, on request, prove to Loyalty Partner that this insurance has been taken out by presenting the insurance policy.

§ 14 Copyright, rights of use and exploitation

The contractual partner grants Loyalty Partner an exclusive, geographically, content-wise and temporally unlimited and transferable right of use and exploitation of all work results arising in connection with the contractual relationship and protected by copyright or other protective rights. The contractual partner also assigns to Loyalty Partner the rights to types of use which are still unknown at the time of conclusion of the contract.
The contractual partner shall also provide Loyalty Partner with these rights of use and exploitation of the work results of its employees, insofar as these were created for Loyalty Partner.
Loyalty Partner is entitled to apply for registrable rights, e.g. designs, registered designs, utility models and patents based on the work results and to use them in accordance with this paragraph 1.

§ 15 Third-party rights

The contractual partner guarantees that all services rendered and work results handed over are free of third-party industrial property rights and are suitable for use in accordance with the contract.
The contractual partner is obliged to indemnify Loyalty Partner from all claims which third parties make against Loyalty Partner due to the infringement of industrial property rights and will reimburse Loyalty Partner for all necessary and reasonable expenses in connection with this claim. The claim does not exist if the contractual partner proves that it is not responsible for the infringement of industrial property rights. Loyalty Partner will inform the contractual partner within 4 weeks of becoming aware of corresponding claims by a third party.
Further legal claims of Loyalty Partner due to legal defects in the services provided for Loyalty Partner and delivered work results remain unaffected.

§ 16 Confidentiality

The contracting party will come into contact with confidential information in the course of its activities. Confidential information means: All information in connection with the activity of the Contractor as well as all other information which Loyalty Partner or a company affiliated with Loyalty Partner according to §§ 15 ff. AktG (German Stock Corporation Act) has designated as confidential or similar to the contractual partner or to which Loyalty Partner or a company affiliated with Loyalty Partner according to §§ 15 ff. AktG has an obvious interest in secrecy, in particular customer data, tariff structures and other information about the business operations of Loyalty Partner or the Loyalty Partner Ordering Party.
Non-confidential information is information that can be proven to
- a) be or become generally known, without the contractual partner being responsible for this or
- b) be lawfully disclosed or handed over to the contracting party by a third party without violation of a secrecy obligation or
- c) have previously been released in writing by Loyalty Partner for publication or
- d) have been demonstrably developed independently by the contractual partner or
must be disclosed by the contractual partner due to statutory information obligations, legal provisions, official regulations or orders or legally binding court decisions; in such a case the contractual partner is obliged to inform Loyalty Partner immediately of the disclosure.
The contractual partner is obliged to keep secret all confidential information that becomes known to him in direct or indirect connection with the contractual cooperation during and also after the end of the contractual cooperation. In particular, the contractual partner is obliged to take all necessary steps to prevent disclosure of the confidential information and not to make it available to third parties either directly or indirectly.
The obligation of secrecy of the contractual partner refers to any form of embodiment of the confidential information, in particular documents, files and copies thereof, as well as to oral statements of any kind.

§ 17 Data protection

Before commencing work, the contractual partner will obligate its personnel employed to fulfil the contract in writing to keep the data confidential and will provide Loyalty Partner with proof of fulfilment of this obligation on request by sending copies of the declarations of obligation.
If the contractual partner processes personal data of Loyalty Partner or a customer of Loyalty Partner during the execution of the contract, an agreement on order processing (Art. 28 DSGVO) must be concluded in advance.
The obligation to confidentiality and data protection remains unchanged after termination of this contract.

§ 18 Release of documents

Documents or other means made available to the contractual partner by Loyalty Partner remain the property of Loyalty Partner or the holder of the rights and may be used exclusively for the execution of the contract and may not be made accessible to third parties. The contractual partner undertakes to return them to Loyalty Partner after termination of the contract or to destroy them safely.
The contractual partner also undertakes to either return to Loyalty Partner all data and information received in connection with the execution of the contract, including all reproductions, or to delete the reproductions in such a way that reconstruction is excluded. Loyalty Partner is entitled to demand a corresponding declaration of completeness.

§ 19 Miscellaneous provisions

Munich is agreed as the place of jurisdiction; however, Loyalty Partner is also entitled to sue the contractual partner at his place of residence or business.
Unless otherwise stated in the contract, Munich is the place of performance.
German substantive law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
If individual provisions of these General Terms and Conditions of Purchase are or become invalid, the validity of the remaining provisions shall not be affected.

As of: 08/2018