Terms of conditions of purchase

1) Applicable conditions

a) The legal relationships between the supplier and ACLARIS GmbH, Wackerstraße 9, 88131 Lindau, Germany (represented by its Rebstein branch office, Balgacherstrasse 20, 9445 Rebstein, Switzerland), hereinafter referred to as “Purchaser,” are based on these Terms and Conditions of Purchase and any other written agreements, including any changes and additions made to them.

b) The supplier’s general terms and conditions and its conditions of sale do not apply, even when, in any given case, they are not expressly contradicted. Likewise, these Terms and Conditions of Purchase apply as a framework agreement for framework contracts, call-off contracts, delivery schedules, and orders, including their respective appendices.

2) Confidentiality

a) The contracting parties undertake to handle as trade secrets all commercial and technical details that are not publicly known and that they become aware of through their business relationship.

b) Tools, tool molds, drawings, quotations, correspondence, models, samples, or similar items remain the Purchaser’s legally protected property at all times, and it is forbidden to give or otherwise make them available to unauthorized third parties without the Purchaser’s written consent. Subsuppliers must be required to uphold the same obligations.

c) The contracting parties may use their business relations for advertising purposes only with prior written consent.

3) Ordering

a) Framework contracts, delivery contracts (call-off contracts or orders), and delivery schedules as well as any changes or additions made to them must be in writing, and the supplier must confirm them in writing within three working days after receiving them.

b) The costs for preparing quotations are not compensated unless agreed in writing.

c) Within the bounds of what is reasonable for the supplier, the Purchaser may request changes to the object of a contract. The supplier and the Purchaser are to mutually agree on how to appropriately handle the effects of such changes, especially with regard to higher and lower costs as well as delivery dates and amounts.

4) Invoicing and payment

a) As a rule, the Purchaser handles billing with its invoicing procedures. Preferably, suppliers should send their invoices electronically to Invoicing@aclaris.com. In exceptional and duly justified situations, a supplier may send a paper invoice to the Purchaser’s headquarters.

b) A condition for payment is the receipt of an auditable invoice in the proper form. Invoices must be submitted to the Purchaser and include the following information: ACLARIS supplier number, order number, delivery note number, ACLARIS material number, delivery address, country of origin, customs tariff number, and the name of the contact person at the Purchaser. Unless the contracting parties have expressly agreed otherwise, another condition for payment is the proper receipt of the good or the provision of the service at the Purchaser’s production facility. Invoices that do not fulfill these conditions are rejected.

c) Payment is made within 30 days net of invoice receipt unless the contracting parties have expressly agreed otherwise.

d) Payment is made via a bank transfer to the account indicated by the supplier. The Purchaser must be notified immediately of any discrepancies.

e) The Purchaser makes payments irrespective of an inspection of the delivery when it is received at its final destination. Therefore, the Purchaser’s payments or partial payments do not indicate any acknowledgement of price, quantity, or quality. The Purchaser retains all claims to warranty entitlements.

f) In the event of an incorrect delivery, the Purchaser is entitled to withhold payment pro rata or entirely until the delivery is properly completed and/or to set off the payment against other claims of the supplier.

5) Notification of defects

a) The Purchaser must notify the supplier in writing within 14 days after a delivery of any clearly noticeable defects to the delivery, of any damage that has occurred as a result of transportation, and of any discrepancies in the delivery’s identity or quantity. For all other types of defects, it is sufficient to notify the supplier of the defect within 30 days after discovering the defect.

6) Delivery deadlines and deliveries
a) The delivery deadlines and delivery periods agreed upon in the corresponding delivery contracts and delivery schedules and their corresponding appendices are binding. The date a good is received by or a service is rendered to the Purchaser determines compliance with its delivery deadline or delivery period. When supplying a good, the supplier must allow for the standard amount of time to load, dispatch, and transport it.

b) Deliveries must be processed according to the Purchaser’s instructions. International Commercial Terms 2010 (Incoterms 2020) apply to all commercial clauses. Unless other delivery conditions are agreed upon, delivery duty paid (DDP), Incoterms 2020 apply.

c) The supplier undertakes to enclose in every delivery a delivery note specifying the order number, article number, delivery note number, quantity, date of issue, and any other information stipulated by the Purchaser.

d) The supplier is responsible for transportation insurance coverage.

7) Delivery delays

a) As soon as the supplier is aware the delivery of a good is delayed, it must immediately notify the Purchaser in writing and state the reasons for and the estimated duration of the delay.

b) The supplier must compensate the Purchaser for any damages incurred due to the delay. This applies for any lost profits and any losses resulting from interruptions to operations. If the supplier misses the delivery deadline agreed upon in the delivery contracts and delivery schedules or their corresponding appendices, the supplier is deemed in arrears, even in the absence of a reminder letter, unless the supplier is not responsible for the missed deadline.

8) Acts of nature

a) Acts of nature, unrest, measures taken by authorities, and other unforeseeable, unavoidable, and serious events release the contracting parties from their obligations for the duration of the events and to the extent such events effect affect the parties’ ability to fulfill their obligations. The contracting parties must make reasonable efforts to provide the necessary information as soon as possible and to adjust their obligations according to the altered circumstances in good faith.

9) Tools and models

a) All tools and models provided to the supplier by the Purchaser or paid for in part or in whole by the Purchaser may only be used for the purposes designated by the Purchaser. The supplier must properly store and maintain the tools and models.

b) During this time, tools and models must be covered by the supplier’s insurance unless otherwise agreed. This insurance must be presented to the Purchaser for review upon request. Tools, models, data storage devices, etc. may be destroyed only with the Purchaser’s written consent.

10) Provision of materials

a) For orders stipulating that the Purchaser provides materials, the supplier must place an order in a timely manner. The supplier may use the materials provided or sold by the Purchaser only for the agreed purpose.

11) Testing, quality, and documentation

a) The delivery items must comply with all statutory approval requirements, applicable safety requirements, testing regulations, environmental laws, environmental regulations, certification regulations, and the statutory duty of disclosure as well as labelling requirements that apply worldwide, especially those in Europe, Asia, and the United States.

b) For its deliveries, the supplier must adhere to generally accepted engineering practices and the agreed technical specifications. Quality may be defined according to drawings, defined specifications, samples, or relevant quality agreements.

c) The supplier must provide the Purchaser with the material composition and recipe for the delivery item in its entirety for the structure of even the smallest parts; this must be provided at an early stage before the begin of the testing process for the initial sampling and upon the Purchaser’s request at the latest. All changes to the delivery item require the Purchaser’s prior written consent.

d) The supplier must provide a certificate of analysis for the corresponding delivery or a declaration of conformity for up to three years following the end of the delivery relationship.

e) The contracting parties are to inform each other of any possibilities to improve quality.

f) If there is no fixed agreement between the supplier and Purchaser determining the manner and scope of testing, testing equipment, and testing methods, the Purchaser must be prepared, upon the supplier’s request and to the best of the Purchaser’s knowledge, experience, and abilities, to discuss the testing with the supplier in order to determine the required level of testing. For technical documentation or if stipulated in separate agreements, the supplier must also keep special records that indicate when, how, and by whom the delivery items are tested with respect to the features that are required to be documented and that indicate the results of the required quality testing. The supplier must retain the testing documentation and present it to the Purchaser when needed.

g) If the Purchaser or the authorities, for the purposes of reviewing certain requirements, request access to information related to the production process or the provision of services and the documentation and processes related to an order, the supplier must allow such a review or audit in that area and make all reasonable efforts to support it.

h) In addition, the provisions of the Quality Assurance Agreement (QAA) apply.

12) Warranty and claims for defects

a) The supplier guarantees that its product and/or services conform to the contract, including but not limited to the supplier’s responsibilities set forth in section 11 of these Terms and Conditions of Purchase.

b) The supplier guarantees that products are new and unused up to the time of delivery and that they remain free of defects during the warranty period.

c) The warranty period is thirty-six (36) months from the time of delivery and/or provision of a service unless otherwise stated in the contract.

d) In the event of non-fulfillment of a warranty that is not rectified within forty-eight (48) hours of notification by the Purchaser, or in the event of other breaches of contract, the Purchaser is entitled to assert one or all of the following claims or rights at its discretion and at the supplier’s expense:

I. Provide the supplier an opportunity to perform all additional work required to ensure fulfillment of the contract;

II. Obtain immediate repair or replacement of the defective products and/or services;

III. Perform all additional work needed to bring the products and/or services in compliance with the contract (or commission a third party to do so);

IV. Refuse all subsequent product deliveries and/or services;

V. Demand indemnification for the Purchaser (and its affected subsidiaries) and compensation for damages that the Purchaser (or one of its subsidiaries) incurs as the result of the supplier’s breach of contract;

VI. Terminate the contract. In the event the contract is terminated:
– the Purchaser is not obligated to compensate or make any further payments to the supplier (including payments for products and/or services that have been refused); and
– at the Purchaser’s discretion, the supplier refunds all payments it has received from the Purchaser for products and/or services and takes back the products at the supplier’s expense and risk; and
– the Purchaser may procure equivalent products and/or services from another supplier as replacements (any additional costs incurred as a result are at supplier’s expense and risk); and
– in the event of non-fulfillment of the warranty, the entire warranty period begins anew from the time the situation is remedied to Purchaser’s satisfaction.

e) All rights and legal remedies available to the Purchaser that are set forth in the contract are cumulative and do not exclude any rights or legal remedies the Purchaser is entitled to by law.

13) Liability and indemnification

a) Irrespective of applicable mandatory law, the supplier must indemnify or hold harmless the Purchaser and each of the Purchaser’s affected subsidiaries for all liabilities, compensation, costs, losses, or expenditures the Purchaser (or one of the Purchaser’s subsidiaries) incurs as the result of the supplier’s breach of contract. The supplier must completely indemnify or hold harmless the Purchaser (and the Purchaser’s relevant subsidiary) for all claims made by a third party vis-à-vis the Purchaser (or one of the Purchaser’s subsidiaries) in connection to the products and/or services, including – but not limited to – claims that the products and/or services violate a third party’s intellectual property rights. At the Purchaser’s request, the supplier defends the Purchaser (or the Purchaser’s relevant subsidiary) against all claims made by third parties.

b) The supplier is responsible for monitoring and instructing all its employees, suppliers, and/or subcontractors and is liable for their actions or failure to act as if they were the supplier’s own actions or failure to act.

c) The supplier must maintain, and upon request provide evidence of, suitable professional insurance, general business insurance, product liability insurance, and mandatory accident insurance/occupational insurance through a professional association from a reputable and financially sound insurance company; this, however, does not release the supplier from liability to the customer (or one of the Purchaser’s subsidiaries). Stating the insured amount does not limit liability in any way.

d) The Purchaser reserves the right to offset claims under the terms of a contract with amounts owed to the supplier.

14) Intellectual property rights

a) The supplier is liable for claims that, in connection with the contractually compliant use of the delivered items, arise from an infringement of intellectual property rights (IPRs) and of applications for IPRs for which at least one IPR within the IPR family is published either in the supplier’s home country, by the European Parliament, or in Switzerland, Germany, China, or the USA; the supplier is also liable when the rights of a third party hinders the Purchaser from having uninterrupted use of the delivered items.

b) The supplier completely indemnifies the Purchaser and its customers for all claims arising from the use of such rights.

c) The indemnification obligation does not apply if the supplier manufactured the delivered items in accordance with drawings, models, or other equivalent descriptions or specifications provided by the Purchaser and is unaware, or in connection to the products the supplier manufactured is not required to be aware, that industrial property rights were thereby infringed.

d) The contracting parties undertake to inform each other immediately of any known infringement risks and alleged cases of infringement and to give themselves the opportunity to amicably respond to the corresponding claims.

e) The supplier informs the Purchaser upon request about the use of any published and unpublished industrial property rights and applications for industrial property rights that are owned by or licensed to the supplier for the delivery item.

15) Retention of ownership

a) The supplier retains ownership of all goods it delivers until payment for the delivery concerned is made in full. The Purchaser does not recognize any other forms of ownership retention.

16) Engagement of employees and minimum wage

a) The supplier must require all individuals whom it has employed to perform the agreed services at ACLARIS’s factory premises to undergo a so-called terror screening before they begin performing these services. This involves checking an individual’s last name, first name, date of birth, and place of birth against the sanctions lists of Council Regulations (EC) No. 2580/2001, No. 881/2002, and No. 753/2011 and against the European Commission’s lists of names added and to be added thereto; this check must be repeated regularly, at least once a year. At any time, the Purchaser may request that the supplier provides suitable proof or confirmation of this check.

b) The supplier undertakes to pay its employees at least the statutory minimum wage or the contractually agreed minimum wage. Subcontractors commissioned by the supplier must be required to assume the same obligation.

c) If provisions of minimum wage legislation are violated, the supplier undertakes to completely release the Purchaser from all obligations related to such a violation; moreover, the supplier undertakes to compensate the Purchaser for any possible damages resulting from a culpable violation. The same obligation applies to the supplier when a subcontractor commissioned by the supplier violates provisions of minimum wage legislation.

17) Data privacy and data allocation

a) If the supplier receives access to personal data when providing the contractually agreed services, it must comply with the applicable data protection regulations, process personal data in particular only in order to provide the service agreed upon in the contract (intended purpose), and ensure that its employees receive access to data only to the extent that is absolutely necessary. The supplier must also obtain its employees’ written commitment to data secrecy, instruct its employees on the data protection regulations to be observed, and provide evidence of this to the Purchaser upon request.

18) Code of conduct and compliance

a) As part of our commitment to adhere to the principles set forth in our Code of Conduct, we also expect our suppliers and business partners to adhere to comparable principles of conduct and to have their subsuppliers make the same commitment. Our expectations are set forth in the following declaration, which our supplier and business partner commit to fulfilling.

b) The supplier undertakes to:

– Comply with all applicable laws and regulations, including applicable anti-corruption legislation, and act in accordance with generally accepted principles and standards related to social and environmental responsibility and to internationally recognized human rights, including existing laws against modern forms of slavery.
– Take no part in any form of bribery or corruption and ensure that business decisions are not influenced by any inappropriate or illegal reciprocal arrangements in the form of cash, gifts, trips, or other items of value or in the form of intangible services. The supplier also undertakes to give no invitations, gifts, or other items of value to the Purchaser’s employees with the intention of influencing them.
– Avoid situations that bring or could bring the supplier’s interests into conflict with the Purchaser’s interests.
– Engage in no activities that could be interpreted and demonstrated to be anticompetitive, improper, or unfair and comply with applicable legislation and regulations governing cartels and competition and to comply with laws and regulations governing the export and import of goods, products, and services, including those related to economic and trade sanctions.
– Provide a safe workplace that is in line with international labor standards, ensure fair working conditions, and avoid all types of unethical or illegal working conditions (e.g. harassment, physical violence, all forms of slavery, forced or compulsory labor, undeclared work, and child labor). The supplier undertakes to not discriminate against employees on the basis of their origin, gender, sexual orientation, religion, ideology, disability, or age. The supplier undertakes to ensure that the wages, working hours, vacation, and leave of employees and external commissioned subcontractors are in line with applicable laws and/or contracts.
– Minimize the environmental impact of the supplier’s activities and comply with applicable environmental laws and environmental permits.

c) In the event of a breach of these obligations or if a duly justified suspicion of such a breach arises in connection with fulfilling the obligation entered into under this agreement, the supplier must notify the Purchaser immediately and explain what corrective measures are being taking to remedy the breach and prevent future breaches. If the supplier fails to immediate notify the supplier or fails to take appropriate corrective measures within 60 days of becoming aware of the breach, the Purchaser is entitled to terminate the corresponding contract without notice or to terminate the entire business relationship with immediate effect. The supplier indemnifies the Purchaser, the Purchaser’s legal representatives, organs, and employees for all claims, damages, costs, expenditures, and, among other things, legal fees incurred as the result of a breach of the obligation in this clause provided that the Purchaser or a third-party commissioned by the purchaser is not responsible for this breach.

19) General provisions

a) If one contracting party stops payment or if bankruptcy or insolvency proceedings of any kind are initiated against its assets (e.g. an additional deferment of payment or an exceptional settlement procedure), the other contracting party is entitled to withdraw from the unfulfilled part of the contract. This also applies when the economic situation of one of the contracting parties changes in such a way as to seriously risk fulfillment of the contract.

b) If a provision of these Terms and Conditions and any additional relevant agreements is or becomes invalid, the validity of the remainder of the contract is not affected as a result. The contract is executed as if the provision that is invalid or unenforceable were replaced by a provision with a similar economic effect.

c) The legal relationship is subject to Swiss substantive law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG, Vienna Convention 1980) and with the exclusion of all conflict-of-law provisions.

d) The place of performance is the Purchaser’s registered address. Another alternative may be agreed upon for delivery.

e) The sole place of jurisdiction for all disputes arising from or in connection with the legal relations between the supplier and the Purchaser is Rebstein, Switzerland; however, the Purchaser reserves the right to assert claims against the supplier at the court of the supplier’s registered address.

f) These Terms and Conditions of Purchase have been drawn up in German and English. If there are any contradictions and/or discrepancies between the German and English versions, the German version prevails.