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06. General Terms and Conditions of Purchase.pdf

Herstellung und Lieferung von 10 Power-Kopplern nach technischen Spezifikationen und Zeichnungen

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General Terms and Conditions of Purchase

European X-Ray Free-Electron Laser Facility GmbH

  1. General Information 4. In general, the Contractor shall be bound by its offer for a period of 30 calendar days, unless a longer period is
  2. These General Terms and Conditions of Purchase agreed. The contract shall be concluded in accordance (hereinafter referred to as “GCP”) shall apply, unless with the provisions of public procurement law by ac- otherwise agreed in writing between European X-Ray ceptance of the offer by the Client (hereinafter referred Free-Electron Laser Facility GmbH (hereinafter re- to as “Purchase order”). In order to be binding, the Pur- ferred to as “Client”) and the Contractor (hereinafter chase order must be in writing in accordance with Sec. both jointly referred to as “Contracting Parties”), to all 1 para. 3 GCP. deliveries and services ordered by the Client. These
  3. Verbal agreements shall only be valid if the Client con- GCP shall also apply in particular to contracts for the firms them in writing. Purchase orders shall be con- purchase and/or delivery of movable goods (hereinaf- firmed by the Contractor in writing without undue delay. ter referred to as “Goods”). Contracts for construction If the Contractor does not confirm the Purchase order services shall be excluded from the application of these in writing within 14 calendar days of receipt, the Client GCP. shall be entitled to revoke it.
  4. Any general terms and conditions of the Contractor de- viating from these GCP shall only apply if and to the
  5. Prices extent they have been expressly accepted in writing by the Client. This shall also apply if the Contractor refers 1. The agreed net prices shall be fixed prices and include to its general terms and conditions; in this case, no ob- delivery to the point of use (unloaded) as well as all jection by the Client is required. services and ancillary services of the Contractor (e.g. assembly, installation) as well as all ancillary costs
  6. With the exception of statutory written form require- (e.g. customs, proper packaging, freight including pot. ments, the written form within the meaning of these transport insurance). The statutory value added tax GCP shall also be deemed to have been complied with and pot. additional taxes incurred shall be specified if transmission is conducted by electronic means. In separately on the invoice. this respect, transmission by unencrypted email shall suffice, unless otherwise stipulated in the tender con- 2. Price escalation clauses are only be permitted in ex- ditions. ceptional cases, even in the case of longer deliv- ery/service periods. If a price clause is desired for de-
  7. The General Terms and Conditions of Contract for the livery/service periods of more than 18 months, the offer Execution of Services (VOL/B) shall apply in addition must include a percentage breakdown of the material, to these GCP in their currently valid version. wage and fixed components and the calculation basis
  8. These GCP shall only apply to companies within the for this. meaning of § 14 BGB (German Civil Code), legal enti-
  9. Unless otherwise agreed, a payment term of 30 calen- ties under public law and special funds under public dar days is agreed. If the invoice is paid within 14 cal- law (within the meaning of § 310 para. 1 BGB). endar days, a discount of 3% is permissible. For the
  10. The Client is a public contracting authority within the timeliness of payment, the receipt of the transfer order meaning of public procurement law. at the bank of the Client shall be sufficient
  11. Offers, order confirmations, delivery documents, and 4. The payment period shall run from the time at which invoices shall be submitted by the means of infor- both the proper invoice is received and the Supplies mation transmission provided for in the respective an- are accepted by the Client or the Services are fully per- nouncement or the award documents of the Client and, formed and accepted (Sec. 11 GCP). with the exception of the offer, shall state the Client’s
  12. If the absence of the information required under Sec. 1 order number, the article number, the delivery quantity, para. 7 GCP delays the processing of the invoice by and the delivery address. the Client, the payment periods specified in Sec. 3 para. 3 GCP shall be extended by the period of the de-
  13. Offer, Order, Order Confirmation lay.
  14. The offer shall be submitted free of charge and without obligation for the Client. 4. Contract execution, Compliance with Regulations
  15. The Contractor shall adhere to the inquiry or invitation to tender with regard to quantity, quality, and design in
  16. The Contractor assures that the relevant statutory and the offer and, in the event of a deviation, shall ex- official regulations and requirements (including occu- pressly refer to this. pational health and safety and accident prevention reg-
  17. Ancillary offers shall only be permitted if the Client ex- ulations) and technical standards (e.g. DIN, VDE) will pressly allows them and if they are explicitly desig- be complied with in the performance of the contract. nated as such.
  18. Moreover, the Contractor assures that all deliveries and services incorporate the latest state of technology.

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  1. In addition, the Goods to be delivered must comply with 3. The Client can assert claims for forfeited contractual the applicable safety regulations (e.g. EU Directive penalties up to the final payment. 2006/42 on machinery, EU Directive 2014/35 on the market of electrical equipment designed for use within 7. Right to information and inspection certain voltage limits, EU Directive 2014/30 relating to electromagnetic compatibility, EU Directive 2014/68 on 1. The Client and its representatives shall be entitled to the market of pressure equipment, EU Directive obtain information from the Contractor within the Con- 2011/65 on the restriction of the use of certain hazard- tractor’s operating hours regarding the contractual ex- ous substances in electrical and electronic equipment, ecution of the delivery or service, to participate in fac- German Product Safety Act (ProdSG - Act on making tory inspections and to carry out their own inspections. products available on the Market)and be provided with The Client may require the Contractor to carry out tests all prescribed markings (e.g. CE mark), declarations to a reasonable extent. (e.g. declaration of conformity, declaration of incorpo-

  2. The costs for own personnel and material as well for ration) and documents (e.g. operating instructions, as- tests initiated by the Client shall be borne by the Client. sembly instructions, safety data sheets). Protective de- If the agreed test is negative for reasons for which the vices, markings, declarations, and documents required Contractor is responsible and therefore has to be re- according to such regulations shall be taken into ac- peated, the entire costs of the new test shall be borne count in the Contractor’s calculation and shall be part by the Contractor. of the scope of delivery, even if they are not requested separately by the Client. 3. The Contractor will make reasonable efforts to obligate its suppliers and subcontractors in writing that the in-

  3. If the Contractor has any concerns regarding the type spection rights, stipulated in this Sec. 7, can also be of execution described by the Client, the Contractor exercised by the Client with said suppliers and subcon- shall notify the Client thereof in writing without undue tractors. delay.

  4. The inspections do not release the Contractor from its

  5. All documents required for acceptance, operation, liability for material defects and its general liability. maintenance, and repair (plans, test reports, works certificates, drawings, operating instructions, etc.) shall

  6. Amendment of contract, Set-off, Right of be supplied by the Contractor free of charge, if neces- sary in reproducible form. retention

  7. The engagement of a subcontractor by the Contractor 1. The Client can request amendments to the delivery shall require the prior written consent of the Client. This item or the service even after conclusion of the con- consent may not be unreasonably refused or delayed tract, provided that this is within the scope of the Con- by the Client. tractor’s capabilities and is reasonable for the Contrac- tor. Amendments and their implications for prices, de-

  8. Delivery or Service deadlines, Delays livery or performance times, or other conditions must be made in writing in accordance with Sec. 1 para. 3

  9. The agreed delivery or service times (dates or dead- GCP. lines) are binding. The receipt of defect-free Goods at

  10. The Client is entitled to rights of set-off (Aufrechnung) the place of receipt or use specified by the Client or the and retention (Zurückbehaltungsrecht) as well as the acceptance of the delivery or service by the Client shall defense of non-performance of the contract (Einrede be decisive for compliance with the delivery or service des nicht erfüllten Vertrages) to the extent provided by time. law. In particular, the Client shall be entitled to withhold

  11. If delays are to be expected, the Contractor shall notify payments due as long as the Client is still entitled to the Client thereof in writing without undue delay, stating claims against the Contractor arising from incomplete the reasons and the expected duration. or defective services.

  12. If the Contractor does not provide its delivery or service 3. The Contractor shall have a right of set-off and reten- or does not do so within the agreed delivery or service tion only in respect of counterclaims that have become time or if the Contractor is in default, the statutory or res judicata or are undisputed. contractually agreed rules shall apply. The acceptance of the delayed delivery/service shall not constitute a waiver of the right to assert such claims. A special res- ervation is not required for this.

  13. Premature deliveries or services shall not be permitted.

  14. Contractual penalty

  15. If delivery or performance deadlines are exceeded, the Client shall be entitled to demand a contractual penalty of 0.5 percent of the value of the part of the delivery or performance that cannot be used for each full week, but no more than 5% of the total order price excluding value added tax.

  16. The Client is entitled to claim the contractual penalty in addition to fulfilment and other claims. However, a paid contractual penalty shall be offset against claims for damages.

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  1. Foreign Trade Law 5. Only for those goods supplied by the Client (like mate- rials acc. to Sec. 12 para. 3 GCP) to the Contractor
  2. In accordance with the intergovernmental founding under or in connection with this contract that fall under document of the Client, all orders shall serve exclu- the scope of Art. 12g of the Council Regulation (EU) sively peaceful, non-military purposes. 833/2014 or Art. 8g of the Council Regulation (EC)
  3. The Contractor must comply with all requirements of 765/2006 (or any replacement thereto or similar sub- the applicable national and international foreign trade sequently introduced restriction), and for those data, law (hereinafter referred to as “foreign trade law”). intellectual property rights, trade secrets, or other infor- mation transferred by the Client to the Contractor or in
  4. The Contractor shall, no later than two weeks after which the Client grants to the Contractor correspond- placing the Purchase order, notify the Client inde- ing access or re-utilization rights to data, intellectual pendently and in writing for each individual item of all property, or trade secrets, under or in connection with information and subsequent changes thereto required this contract that fall under the scope of Art. 12ga of by the Client for compliance with foreign trade and pay- the Council Regulation (EU) 833/2014 (or any replace- ments law in the case of export, import, and re-export, ment thereto or similar subsequently introduced re- in particular: striction), the following provisions apply: 3.1. Any permission requirements for its Goods ac- 5.1. The Contractor shall not sell, export, or re-export, cording to German, European (EU), and, if appli- directly or indirectly, such goods to the Russian cable, Chinese and US export, customs, and for- Federation or Belarus or for use in the Russian eign trade law of the country of origin; Federation or Belarus. 3.2. All applicable export list numbers, in particular in 5.2. The Contractor shall not transfer such data, intel- accordance with Annex AL to the German For- lectual property rights, trade secrets, or other in- eign Trade and Payments Regulation (AWV) or formation directly or indirectly to the Russian Fed- comparable list positions of relevant export lists eration or for use in the Russian Federation and including the “Export Control Classification Num- the Contractor is obliged to pass this prohibition ber” in accordance with the “US Commerce Con- on to its other customers. trol List” (ECCN), if the Goods are subject to the “US Export Administration Regulations” (EAR); 5.3. The Contractor shall undertake its best efforts to ensure that the purpose of Sec. 9 para. 5.1 and 3.3. The statistical commodity code number accord- 5.2 GCP is not frustrated by any third parties fur- ing to the current commodity classification of for- ther down the commercial chain, including by eign trade statistics and/or the HS (Harmonized possible resellers. System) Code; 5.4. The Contractor shall set up and maintain an ade- 3.4. Country of origin (non-preferential origin) and, if quate monitoring mechanism to detect conduct requested by the Client, (long-term) supplier dec- by any third parties further down the commercial larations on preferential origin (for EU suppliers) chain, including by possible resellers, that would or certificates on preferences (non-EU suppliers); frustrate the purpose of Sec. 9 para. 5.1 and 5.2 and GCP. 3.5. All information of the Contractor required by the 5.5. Any violation of Sec. 9 para. 5.1 to 5.4 GCP shall Client for the fulfillment of its obligations under the constitute a material breach of an essential ele- EU Regulation 2023/956 establishing a carbon ment of this contract, and the Client shall be enti- border adjustment mechanism; and tled to seek appropriate remedies, including, but 3.6. Any other information required by the Client in not limited to: this respect. Depending on the nature of the (i) termination of this contract; and Goods, further forms relevant under foreign trade law may be necessary, which, if requested by the (ii) a penalty of 30% of the total value of this con- Client, shall be provided by the Contractor. tract or price of the goods exported, whichever is higher.
  5. If the Contractor violates its obligations under Sec. 9 para. 2 and 3 GCP, it shall bear all expenses and dam- 5.6. The Contractor shall immediately inform the Cli- ages as well as other disadvantages (e.g. additional ent about any problems in applying Sec. 9 claims for foreign import duties, fines) incurred by the para. 5.1 to 5.4 GCP, including any relevant ac- Client as a result, insofar as the Contractor is respon- tivities by third parties that could frustrate the pur- sible for the obligation violation. Notwithstanding this, pose of Sec. 9 para. 5.1 and 5.2 GCP. The Con- the Client shall be entitled to withhold payment accord- tractor shall make available to the Client infor- ing to Sec. 13 para. 2 on a pro rata basis until the com- mation concerning compliance with the obliga- plete fulfillment of its obligations. tions under Sec. 9 para. 5.1 to 5.4 GCP within two weeks of the simple request of such infor- mation.
  6. The conclusion and implementations of the contract are subject to the permissibility under export control law.

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  1. Dispatch and customs 3. Payments are not made in advance. If payment in ad- vance is expressly agreed in writing between the Client
  2. A dispatch note shall be sent to the Client in due time and the Contractor in deviation from these GCP, pay- before the delivery items are dispatched. A delivery ments will only be made against an unlimited down note shall be enclosed with the delivery. In the case of payment guarantee on first demand reasonable to the deliveries from foreign customs territory, the Contrac- Client in the amount of the respective down payment tor shall contact the Client in due time for customs and to be paid plus statutory value added tax. import processing.
  3. Payments shall not be deemed to be an acknowledge-
  4. Before delivery of the Goods to the respective point of ment of performance in accordance with the contract, use, the delivery documents shall be submitted to the in particular of the fact that the deliveries and services central Goods receiving point of the Client in accord- provided are free of defects, nor shall they be deemed ance with the invitation to tender. This applies in par- to be an acknowledgement of proper invoicing. ticular to the delivery of Goods with customs docu- ments. 5. The Client shall only be in default of payment after a written reminder has been issued by the Contractor.
  5. Acceptance/Partial acceptance for
  6. Material defects and defects of title service contracts liability
  7. If the delivery or service resulting from a works contract is carried out in accordance with the contractual condi- 1. The Contractor is liable for material defects and defects tions, it will be accepted. If a test run is agreed, the de- of title according to the statutory provisions. The Con- livery or service is deemed accepted by means of a tractor guarantees the diligent and proper fulfilment of joint acceptance report after a flawless test run. the contract, (see Sec. 4 GCP). In urgent cases, the Client may, after consultation with the Contractor, carry
  8. Acceptance according to § 640 para. 1 sent. 1 BGB is out the rectification himself or have it carried out by a only valid, if it is in writing. § 640 para. 2 BGB remains third party. unaffected.
  9. The defined specifications apply as contractually as- sured and guaranteed features of the delivery item or
  10. Ownership conditions service. The provisions of §§ 633 para. 2 to 639 BGB
  11. Deliveries and services of the Contractor shall be made also apply to purchase contracts as well as work and without extended or prolonged reservation of property materials contracts (Werklieferungsverträge). rights. The Client acquires unrestricted ownership
  12. The statutory provisions (§§ 377, 381 HGB – German rights to the delivery or service upon handover or ac- Commercial Code) shall apply to the commercial duty ceptance and full payment; the same shall apply to the to inspection and objection. documents supplied by the Contractor. If the order con- sists of a development, the Customer shall acquire sole 4. The Contractor provides the same warranty for re- ownership of the object of development, including any placement parts and repair work that it does for the de- intellectual property rights thereto or, in the case of livery item; the warranty period starts once the defect, software, any other rights, upon acceptance of the per- which was complained about, has been remedied. For formance. delivery parts which could not remain in operation due to warranty defects, an ongoing warranty period is ex-
  13. By handing over the Goods, the Contractor declares tended by the time of the interruption of operation that it is fully authorized to dispose and that there are caused by the defect. The costs to be borne by the no third-party rights. Contractor to remedy the defects also include the ex-
  14. Any materials provided by the Client shall remain the penses for packaging, freight and delivery, the work ex- property of the Client. They shall be marked as such pended for dismantling and installation, travel ex- by the Contractor free of charge, stored separately and penses and the performance of the rectification of de- carefully and used only for the purposes of the contract fects at the Client’s premises. in accordance with the principles of economic manage- ment. If material provided is processed, transformed, 15. Intellectual property rights combined or mixed with other objects, the Client shall acquire sole ownership of the new item. The Contractor 1. The Contractor is liable for ensuring that no third-party shall store these in safe custody for the Client free of intellectual property rights are violated during the exe- charge. cution of the contract and during the delivery and use of the delivered item or service. Upon first written re-
  15. Ownership and copyright of documents provided by the quest, the Contractor shall indemnify the Client against Client to the Contractor shall remain with the Client. any third-party claims arising from any intellectual property right infringements.
  16. Invoicing, Payment
  17. The Client is entitled to obtain the necessary authori-
  18. Invoices issued by the Contractor shall comply with the zation for delivery, commissioning, use, resale, etc. of statutory requirements and must generally be submit- the delivery item or service from the owner of such in- ted to the Client preferably in electronic form, stating tellectual property rights at the Contractor’s expense if the mandatory details of Sec. 1 para. 7 GCP: the Contractor is unable to obtain such rights, finally invoice@xfel.eu. refuses such subsequent performance, or is in default with subsequent performance.
  19. In the event of defective delivery or performance, the Client is entitled to withhold payment in full or in pro- portion to the value until proper fulfilment.

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  1. The Contractor shall grant the Client free-of-charge a 19. Non-disclosure, Data protection non-exclusive and irrevocable license to all domestic
  2. The Contractor shall keep all images, drawings, calcu- and foreign intellectual property rights, applications for lations, and other documents and information (herein- intellectual property rights, and inventions, insofar as after referred to as “Confidential Information”) received they have arisen during the performance of this con- for the execution of the Purchase order strictly confi- tract. Furthermore, the Contractor shall grant the Client dential and to disclose them only to employees who free-of-charge an irrevocable and non-exclusive right have been obliged to treat them confidentially. Confi- to use all know-how and every innovation and improve- dential Information may only be disclosed to third par- ment, insofar as these have arisen during the perfor- ties with the prior written consent of the Client, which mance of this contract. The Client is entitled to transfer must be granted in the event of proven judicial or stat- licenses and rights of use within the meaning of the utory claims for disclosure. The obligation to maintain above paragraph to its shareholders. This shall also confidentiality shall also apply after the termination of apply beyond the term of this contract. The Contractor this contract; it shall expire - unless otherwise agreed - shall expressly agree the above rights with its subcon- five years after the conclusion of the contract or if and tractors for the benefit of the Client. to the extent that the Confidential Information has be- come public domain.
  3. Spare parts
  4. The aforementioned Confidential Information made If the Contractor intends to discontinue the production of available to the Contractor by the Client shall remain spare parts for the products delivered to the Client, the Con- the property of the Client and must be returned to the tractor must notify the Client of this in writing in due time so Client without request, free of charge, and in full, as that the Client has the opportunity to acquire the required soon as it is no longer required for the performance of spare parts within a reasonable period. If the Contractor be- the contract. In this case, any copies made shall be de- comes aware that the manufacturer of the parts used by the stroyed; the only exception to this is storage within the Contractor for the product intends to stop their manufacture, scope of statutory storage obligations. the Contractor must inform the Client in writing thereof im- mediately. 3. Products that are manufactured according to docu- ments drawn up by the Client or according to Confiden- tial Information or with tools of the Client or replicas of
  5. Termination and Withdrawal tools may only be used by the Contractor for test pur-
  6. Irrespective of any other termination and withdrawal poses and may not be presented, offered, or delivered rights, the Client is entitled to terminate or withdraw the to third parties. This shall also apply mutatis mutandis contract with immediate effect if the Contractor com- to standard products of the Contractor modified ac- mits acts within the meaning of §§ 333, 334 of the Ger- cording to the Client’s specifications. man Criminal Code (StGB) (granting benefits; giving
  7. The Contractor is prohibited from obtaining Confiden- bribes) or it can be proofed that the Contractor commit- tial Information by means of reverse engineering. This ted serious misconduct which calls into question the includes all actions, including observation, testing, ex- Contractor’s reliability. The Client can also demand amination, and disassembly, and, if necessary, reas- compensation for all damages from the Contractor. sembly, with the objective of obtaining Confidential In-
  8. The Client can also withdraw from the contract or ter- formation. minate it with immediate effect if insolvency proceed-
  9. The Contractor undertakes to comply with EU Regula- ings have been opened against the Contractor’s estate tion 2016/679 - General Data Protection Regulation or if the Contractor temporarily suspends its payments. (GDPR) and any other applicable data protection reg- ulations. The Contractor further undertakes to treat
  10. Security and Regulatory provisions personal data confidentially and not to process it out- side the purpose of the respective contract.
  11. In the case of deliveries and services on the premises and/or in the rooms of the Client or the Deutsches 6. Personal data will only be transferred to third parties if Elektronen-Synchrotron (DESY), the respective ac- this is necessary for the execution of the contract or if cess, safety and order regulations (e.g. safety training, there is a legal obligation to transfer such data. Insofar registration in the guest and external company portal as third-party service providers are commissioned by (GPEX), use of transponders, PPE, hot work permit) of the Contractor to fulfil the contract, these are contrac- the Client or DESY must be observed, which are an tually obligated to comply with data protection provi- integral part of the contract for these cases in their re- sions in accordance with the GDPR. spective valid version. In some cases, this may require
  12. The Contractor shall take technical and organizational the collection and processing of personal data. measures to the extent provided for by the relevant
  13. The Client in particular has the domiciliary rights over data protection regulations to safeguard the confiden- its premises and rooms and may transfer this right in tiality, availability, and integrity of the personal data whole or in part to third parties. The Contractor includ- made available by the Client. In particular, the Contrac- ing its servants (Erfüllungsgehilfe) is accordingly tor shall obligate all its employees to confidentiality with obliged to follow the instructions of the Client. The regard to personal data and to instruct them accord- same applies to DESY and its premises and rooms. ingly, pointing out the fines and penal provisions of the GDPR.
  14. If the delivery or service contains hazardous working materials within the meaning of the German Ordinance on Hazardous Substances (GefStoffV), this must be clearly indicated in the delivery documents and the le- gally required safety documentation must also be sup- plied.

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  1. Compliance and Anti-Corruption Clause

  2. The Contracting Parties expressly declare their inten- tion to comply with the relevant statutory provisions in connection with the contractual relationship. Against this background, the Client shall in particular not toler- ate any corruption and expects the Contractor to refrain from any form of corruption.

  3. In particular, the Contractor and its employees under- take in connection with the contractual relationship to comply with the applicable anti-corruption and money laundering laws, the law on the protection of business secrets (GeschGehG), the laws on ensuring compli- ance with collective agreements and minimum wages, as well as to comply with the provisions of antitrust law, labor law, and environmental protection regulations.

  4. The Contractor has to establish sufficient control and supervisory measures - and provide written evidence upon request - that effectively prevent misconduct by its employees. If the Contractor discovers that it or its employees have violated one of the regulations set out in this Sec. 20 GCP or if there is a suspicion of a viola- tion, the Contractor must immediately notify the Client of this in writing and cooperate with the Client in any investigations.

  5. If one of the obligations stipulated in this Sec. 20 is vi- olated by the Contractor or one of its employees, the Client is entitled to withdraw from all existing contracts with the Contractor or to terminate them with immedi- ate effect, without prejudice to any other statutory or contractual (Sec. 17 para. 1 GCP) rights of withdrawal or termination.

  6. The other contractual and statutory claims of the Client remain unaffected.

  7. The Contractor will make reasonable effort to ensure compliance with the obligations stipulated in this Sec. 20 by its subcontractors.

  8. Advertising Material The Contractor may only refer to the business connection with the Client in advertising material with the Client’s prior written consent.

  9. Place of fulfilment and Jurisdiction The place of fulfilment for the Contractor is the registered office of the Client or another place of use designated by the Client. The exclusive place of jurisdiction is Hamburg, Germany, insofar as the Contractor is a merchant, a legal entity under public law, or a special assets (Sonderver- mögen) under public law.

  10. Applicable law The law of the Federal Republic of Germany applies. The provisions of the UN Convention on Contracts for the Inter- national Sale of Goods (CISG) and the collision regulations of international private law do not apply.

  11. Final provisions Should individual provisions of these GCP be invalid, this shall not affect the validity of the remaining provisions.

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