General Purchasing Terms and Conditions BioNTech SE, An der Goldgrube 12, 55131 Mainz, Germany; effective: May 17, 2021
All purchase orders (deliveries of goods and provision of services) of BioNTech SE and of the companies affiliated to it and domiciled in Germany ("BioNTech") are subject to the following general terms of purchase (“GTP”) only. These GTP shall apply to the exclusion of the general terms and conditions of our suppliers and subject to deviating written agreements for all present and future deliveries and services to BioNTech.
2. Conclusion of Agreement
Oral agreements prior to or upon conclusion of any contract require our written confirmation to be effective.
3.1 Deliveries shall be made DAP (Incoterms 2010) at the place designated by us, unless otherwise agreed. Each delivery shall be accompanied by a delivery bill.
3.2 Agreed dates and deadlines are binding. The receipt of the goods by us or at the place to which the goods are to be delivered in accordance with the order shall be decisive for compliance with the delivery date or delivery period. The unconditional acceptance of the delayed delivery or service shall not constitute a waiver of the claims for compensation to which we are entitled on account of the delayed delivery or service.
3.3 Goods can only be accepted at our above-mentioned business address in Mainz from Monday to Friday between 8.30 a.m. and 4 p.m. In the event of operational disruptions due to force majeure, in particular due to strike, lockout, riot, war, etc., our obligation to accept delivery shall be suspended for the duration of the hindrance.
4. Shipment Cost and Packaging
4.1 Shipping costs shall be borne by the supplier unless expressly agreed otherwise in writing. If the supplier has undertaken the installation or assembly and unless otherwise agreed, the supplier shall bear all necessary ancillary costs (e.g. travel costs, provision of tools).
4.2 Packaging costs may only be charged in the event of a special agreement confirmed in our order. Returnable packaging must be clearly marked as such and the number of items must be stated on the accompanying documents. There shall be no obligation on our part to return the packaging.
5. Risk of Loss
The supplier shall bear the risk of loss until acceptance of the goods by us or our agent at the place to which the goods are to be delivered in accordance with the order.
Invoices must be submitted immediately after delivery. Each invoice shall state all requirements of § 14 German VAT Act, in particular the correct company name as well as the tax statement, the invoice date and the order number. If this information is missing, the invoice shall be deemed not to have been issued until clarified.
7.1 Payments on account or other advance payments shall not be made.
7.2 Payments shall be made - unless otherwise agreed - within 45 days net after receipt of invoice by BioNTech SE or its affiliated companies, subject to invoice verification.
7.3 If claims for liability for defects are asserted within the payment period, the payment period shall be suspended until the defect has been remedied.
8. Inspection of Goods and Rejection
8.1 Delivered goods shall be inspected by us within a period of 14 days after receipt of the goods at the latest. If defects become apparent during the inspection, these shall be notified within a reasonable period.
8.2 We shall only be obliged to inspect and give notice of defects in the case of partial deliveries if this has been agreed in writing.
8.3 The decisive factor for the timeliness of the notice of defects shall be its dispatch to the supplier.
8.4 In all other respects, Section 377 (5) of the German Commercial Code (HGB) shall apply.
9. Warranty Claims
9.1 The statutory provisions on material defects and defects of title shall apply unless otherwise provided below.
9.2 We shall have the right to choose the type of subsequent performance. If the Supplier does not start to remedy the defect immediately after our request to do so, we shall be entitled, in urgent cases for which the supplier is responsible and after unsuccessful reminder, to remedy the defect ourselves or have it remedied by a third party or to procure a replacement at the supplier's expense. We shall also have the right to remedy the defect ourselves, have it remedied or procure a replacement at the supplier's expense if the supplier is in default with the fulfillment of the warranty obligation incumbent upon it.
9.3 The limitation period for claims for defects shall be three years from the transfer of risk, unless the item has been used for a building in accordance with its customary use and has caused its defectiveness.
9.4 If a material defect becomes apparent within three months of the transfer of risk, it shall be presumed that the defect was already present at the time of the transfer of risk, unless this presumption is incompatible with the nature of the item or the defect. For essential spare parts of the delivery delivered within the limitation period for the fulfillment of claims for defects recognized by the supplier, the limitation period for claims for defects shall start anew at the time when the rectification is completed.
10.1 If circumstances exist which justify the assumption that the order will not be carried out properly, in particular in the case of financial collapse, suspension of payments and cessation of operations on the part of the supplier, we may terminate the contract extraordinarily without setting a deadline.
10.2 Termination without notice for cause may also be effected if, in the case of a contractually agreed code of conduct for suppliers, the supplier fails to comply with the standards set out therein - in particular those relating to bribery and corruption, employee rights, health and safety, animal welfare, the environment, data protection, material compliance and conflict minerals - or recognized ethical principles - in particular the ten principles of the UN Global Compact - and there is a possibility that this could materially affect our business operations. This applies in particular if our public image - including relevant partial disclosures - could be affected.
11.1 All business or technical information which the supplier receives from us must be kept secret from third parties and may only be made available in the supplier's own business to those persons who are also obliged to maintain secrecy.
11.2 Such information may not be reproduced or used commercially without our prior written consent. This shall not apply insofar as the information is demonstrably public knowledge.
11.3 At our request, all information originating from us, including any copies that may have been made, shall be returned to us immediately and in full or destroyed.
12. Intellectual Property Rights
12.1 The supplier warrants that no patent rights or other intellectual property rights of any third party are infringed by or in connection with the supplier’s delivery of goods or provision of services, and the supplier will, upon first written request, indemnify and hold BioNTech harmless from and against any and all claims which are asserted or entered against BioNTech by any third party on account of the infringement of a patent or other property right. The supplier will reimburse BioNTech for all necessary costs and expenses arising to BioNTech out of or in connection with such third party claims. Irrespective of the foregoing, BioNTech shall be entitled to enter with any third party into agreements on the alleged infringement of property rights, especially compromise settlement agreements, also without the consent of the supplier.
12.2 All right, title and interest in and to any models, samples, drawings, software, documentations and other records as well as all right, title and interest in and to any materials, tools, production and testing equipment and know-how disclosed or released by BioNTech to the supplier shall remain vested solely in BioNTech. Any such items, information and documents must be treated as confidential and may not be transmitted to any third party, unless with the express prior written consent of BioNTech and unless such third party is bound by the same obligations of confidentiality.
12.3 All items, information and documents set forth in clause 12.2 must be returned to BioNTech, without request, immediately upon performance of the contractual obligation or when they are no longer required by the supplier. Any other use or disposal, whether in fact or in law, and/or any direct or indirect exploitation of such rights, items and documents by the supplier or any third party is expressly prohibited.
12.4 If the supplier owns any intellectual property rights that cover the application of the products or the results of work delivered, or which are necessary for the use of such products or results of work, the supplier shall grant to BioNTech a corresponding irrevocable, worldwide, royalty-free license, whereby the agreed remuneration for the delivery concerned shall fully settle all and any fee that might be due for such shared usage in the course of use or exploitation of such products or results of work, or of important parts thereof to the extent required. This license shall expressly include BioNTech’s right to grant sub-licenses to third parties, to the extent to allow the use and exploitation of the products and/or results of work delivered.
12.5 In the case of research, development, construction, engineering or other contracts covering the elaboration of a solution to a technical problem, BioNTech shall be assigned, with respect to the results of such work in whole or to a substantial extent, an exclusive, irrevocable, worldwide and royalty-free right to exploit such work, which shall be transferable and covered by the remuneration paid for delivery. If the results of such work are wholly or partly protected by copyright, the supplier shall grant BioNTech exclusive, irrevocable, transferable rights, unlimited by time, place or content, to use these results of work in any manner whatsoever, with particular reference to the right to copy, amend and alter/edit the items concerned. BioNTech shall have the right of first refusal to acquire any intellectual property rights relating to all and any inventions made in the course of such work carried out by the supplier and/or its employees, or carried out jointly with employees of the supplier. The supplier shall notify BioNTech immediately of all and any inventions that are disclosed or which otherwise come to its notice, and offer their transfer to BioNTech free of charge. The supplier shall be solely responsible for remunerating its own employees in accordance with corresponding legislation covering inventions made by employees. The supplier agrees, at its own expense, to provide assistance and submit any declarations that may be necessary for the obtaining or granting of such intellectual property rights. If BioNTech is not interested in acquiring such rights, the supplier may apply for such legal protection on its own behalf and at its own expense, while granting BioNTech a non-exclusive, irrevocable, worldwide, royalty-free license to all intellectual property rights that are based on the invention concerned. If the supplier intends to drop any of such intellectual property rights, it shall previously contact BioNTech in writing to offer a corresponding free transfer of rights.
12.6 If the supplier makes use of a subcontractor, it must likewise ensure that this party recognises BioNTech’s rights as defined in sections 12.4 and 12.5
13. Compliance and Anti-Corruption
The supplier shall ensure that all applicable laws are observed, in particular those that criminalize bribery and corruption as well as the acceptance and granting of advantages.
14. Place of Performance
The place of performance is the place to which the goods are to be delivered according to the order.
15. Applicable Law
The contractual relations shall be governed exclusively by German law to the exclusion of the provisions of conflict of laws and the "United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980" (UN Sales Convention).
16. Place of Jurisdiction
The place of jurisdiction for all disputes relating to the conclusion or performance of the contractual relationship shall be Mainz, Germany.