General Terms and Conditions
Hamburg, March 1st, 2022
These Terms and Conditions apply to all business relationships with ASEIKO business partners and suppliers (“Vendors”). These Terms shall only apply if the Vendor is an entrepreneur, a legal entity under public law or a special fund under public law.
These Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), of which the Vendor is either the manufacturer or holder of the full rights for distribution.
Unless otherwise agreed, these Terms and Conditions in the wording valid at the time of placing the Buyer’s order or in the wording as it was last notified in text form shall also apply as a framework agreement for similar future contracts, without having to refer to them again in each individual case.
(1) These Terms and Conditions apply exclusively. Deviating, conflicting or supplementary Terms and Conditions of the Vendor shall only become part of the contract if and insofar as ASEIKO expressly consented to their validity in writing. The above requirement of consent shall apply in any case, for example, even if the Vendor’s deliveries have been accepted without reservation in full knowledge of the Vendor’s Terms and Conditions. These conditions of sale apply exclusively; conditions of the Vendor that conflict with or deviate from these conditions of sale do not apply.
(2) Individual agreements made in individual cases with the Vendor (including additional agreements, supplements, and amendments) shall, in any case, take precedence over these Terms and Conditions. If not proven to the contrary, the content of such agreements shall be governed by a written contract or ASEIKO written confirmation.
(3) Legally relevant declarations and notifications of the Vendor concerning the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal requirements concerning the form and further proof, in particular in cases of doubt as to the legitimacy of the declaring party, remain unaffected.
2. ROLES AND RESPONSIBILITIES IN THE EVENT OF A JOINT TENDER
In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group.
3. PERFORMANCE OF THE CONTRACT (SUPPLIES AND SERVICES)
Platform usage, Costs, Membership Fee and Cancelation
3.1. ASEIKO provides the Vendors with the use of the international mobile platform ASEIKO Skin (Aseiko). These services are offered exclusively on the platform of ASEIKO and include following services:
(a) upload, maintenance and displaying of the Vendor’s product data
(b) listing, offering and distribution of the Vendor’s products
(c) the costs for the implementation of the Vendor’s product data on ASEIKO as announced in the pricing list 2021/2022;
(d) additional costs as announced in the pricing list 2021/2022
(e) services such as ASEIKO's In-App Messenger, including chat messages, video calls and voice calls are to be negotiated separately depending on the scope of use
3.3. ASEIKO is a membership-based platform. The membership fee is due annually and is debited in full at the beginning of the contract year. The membership fee is to be paid as negotiated, determined and recorded separately according to the conditions announced in the price list 2021/2022 for the service and usage of ASEIKO.
3.4. If the Vendor was granted free use of Aseiko for a certain period of time, the Vendor cannot terminate the contract during this period. After the expiration of the free usage of ASEIKO, the termination becomes effective with a written notice period of three (3) months.
3.5. The Vendor expressly undertakes not to share and / or use in any form for its own interests and / or pass on to third parties customer data such as name, address, payment data and other, technological details, details on the business model, details on the general terms and conditions, marketing model, affiliate companies and / or other relevant details that became known to the Vendor during the business cooperation and partnership with ASEIKO. This regulation is also to be set in the contract and applies, unless otherwise agreed, for the entire duration of the mutual cooperation as well as continuously after the termination of the cooperation between the contractual partner for the period of time set in the contract.
4. PERFORMANCE OF THE CONTRACT
ASEIKO’s Responsibilities, Obligations and Rights
4.1. ASEIKO implements all product data as delivered by the Vendor. The required product data is to be delivered as following:
(a) The Vendor coordinates and supports the preliminary collection and editing of the product data in the form required by ASEIKO in accordance to the framework, data format, semantics and/or content needed for the implementation of the Vendor’s product data;
(b) All products of the Vendor are listed on ASEIKO among other products listed on the mobile platform of ASEIKO and offered by other contractual partners of ASEIKO;
(c) ASEIKO ensures that an uninterrupted purchase process, incl. payment service, is carried out by the end customer;
(d) ASEIKO is committed to acting responsibly and to the best of its knowledge and belief;
(e) ASEIKO is not responsible for displaying/showing product data that is/has been incorrectly delivered by the Vendor;
(f) ASEIKO is in no way responsible for keeping promises, e. g. for visible results, announced by the Vendor with regard to the effect of its products;
(g) ASEIKO serves only as a platform for the sale of the Vendor’s products;
(h) ASEIKO does not deliver any products to end customers and is not considered a distributor;
(i) ASEIKO only processes the sale up to the point where the purchased products of the Vendor are to be shipped to the buyer; the Vendor is responsible for the delivery of the ordered products to the end customer, for the invoice issue and all other customer-service related activities such as shipment tracking, returns management, as well as resolving disputes, initiating recalls and all related services and measures to fulfill the obligations as the owner of the product.
Vendor's Responsibilities, Obligations and Rights
4.2. The Vendor determines the list and/or range of products that are to be implemented, listed and offered for sale on the mobile platform of ASEIKO as following:
(a) the Vendor is responsible for the delivery of product data related only to the Vendor’s own brand(s) and / or only for the products operated by the Vendor;
(b) new products can be added, listed and offered for sale at any time to the conditions of ASEIKO; if new conditions are required, these must be negotiated by both parties in good time;
(c) The Vendor determines already by the begin of the product implementation the currency in which the Vendor’s products are to be offered on ASEIKO; ASEIKO offers products in USD ($) or EUR (€);
(d) the Vendor determines already by the begin of the product implementation price and shipping costs for each product; if required, small changes (e. g. price) can be made at any time; significant changes and/or the import of new product data will be carried out according to the price list valid at the time when the changes are to be made;
(e) the Vendor determines already by the begin of the product implementation the delivery areas/countries for its products;
(f) the Vendor ensures that his brand/company has the official license to distribute, offer and sell cosmetic products in the target markets in accordance with the regulations of the individual countries;
(g) the Vendor ensures to meet and fulfill the conditions of the regulatory framework for cosmetics on the single markets(countries), such as in-market control, with a view to ensuring a high level of protection of human health.
4.3. If applicable, the Vendor guarantees its responsibility and liability for the import and/or distribution of cosmetics in the European Union and the fulfillment of all following requirements:
(a) designation of a responsible person and indication on the product with name and postal address;
(b) existence of a product information file, which in particular must contain a safety report prepared by experts;
(c) validation of the product compliance with the material regulations (prohibitions, restrictions, positive lists);
(d) validation of the cosmetic product manufacturing in accordance with Good Manufacturing Practice (GMP);
(e) notification of the cosmetic product in the central notification portal of the European Commission "CPNP";
(f) labelling that meets the requirements of Article 19 of the EU Cosmetics Ordinance;
(g) storage and transport, as long as it is the Vendor’s responsibility, conform to EU Cosmetics Ordinance;
(h) notification for changes in the product name (e. g. translation) in CPNP for a product/ for products that has already been notified by the manufacturer/responsible person;
(i) notification of ASEIKO, if applicable also the responsible person and the responsible authorities in the event of a risk; in turn, ASEIKO assures that if informed or notified earlier in the event of risk, it will notify the Vendor immediately; the Vendor also ensures to take corrective measures, if a product does not comply with the EU Cosmetics Ordinance, may be withdrawn from the market or recalled;
(j) ensuring that on packaging and labelling as well as in any advertising claims, no statements are made that could mislead the consumer; the statements must not simulate any features or functions that the cosmetic product(s) does/do not have; Regulation (EU) No. 655/2013 specifies the criteria for justifying advertising claims for cosmetic products;
(k) ensuring the proper labeling, review of labeling information and language requirements; if changes needed, the Vendor will inform ASEIKO in a good time in order to update the information on the platform;
(l) ensuring and verifying of the best before date for each product;
(m) and ensuring that cosmetic products that do not meet the requirements of the EU Cosmetics Ordinance are not made available on the market until the cosmetic product conforms to the regulation.
5. SHIPPING AND DELIVERY
5.1. The requested dates of delivery and the site (end customers) to which the delivery is to be made are specified in the purchase order. The contracting party (the end customer and/or under certain circumstances ASEIKO) reserves the right to change the address within a reasonable time before delivery.
5.2. The Vendor must deliver on time and damage free the product(s) as indicated in the purchase order within the delivery time indicated on ASEIKO and to the delivery place specified in the purchase order. The supplies delivered by the Vendor to the end customer must be in conformity with the purchase order in respect of quantity, quality, price and packaging.
5.3. The end customer must be notified by the Vendor of the exact date of delivery within the period indicated in the purchase order. All deliveries must be made to the agreed place. In the event of a delay in delivery, the Vendor must notify the end customer and if required, ASEIKO in good time.
5.4. The Vendor bears all costs and risks involved in delivering the supplies to the place of delivery. The Vendor takes over the shipping costs
or manage prices and/or shipping costs in a way that benefits the end customers.
5.5. Each delivery must be accompanied by a delivery note in duplicate, duly signed and dated by the Vendor or its carrier / logistics partner, stating the purchase order number recorded on ASEIKO and particulars of the products delivered. A copy of the delivery note must be countersigned by the end customer upon receipt of the ordered products and automatically sent back to the Vendor by its carrier / logistics partner. The Vendor / its carrier / logistics partner must then inform ASEIKO about the successful completion of the product(s) delivery.
5.6. Signature of the delivery note by the end customer is simply an acknowledgment of the fact that the delivery has taken place and in no way implies conformity of the supplies with the purchase order.
The conformity of the supplies delivered is automatically evidenced within and no later than 14 days after the signature by the end-customer upon the delivery date of the products, unless otherwise specified in the purchase order. Conformity must be declared only where the conditions laid down in the purchase order are satisfied and the products conform to the tender specifications. If the end user does not make use of his right of return within 14 days, the conformity of the products delivered is automatically confirmed.
5.7. If, for reasons attributable to the Vendor, the end customer is unable to accept the supplies, the end customer must be notified by the Vendor at the latest by the deadline for delivery.
5.8. The products and/or services delivered must:
(a) correspond to the description given in the Vendor’s tender on ASEIKO and possess the characteristics of the products provided by the Vendor to ASEIKO and/or to the end customer as a sample or model;
(b) be fit for any specific purpose required of them by the end customer and / or end consumer and made known to the end customer
and/or end consumer at the time of conclusion of the contract and accepted by the end customer;
(c) be fit for the purposes for which goods of the same type are normally used;
(d) demonstrate the high-quality standards and performance which are normal in products and /or services of the same type and which the end customer/end consumer can reasonably expect, given the nature of the products and /or services and taking into account any public statements on the specific characteristics of the products and /or services made by the Vendor, by the producer or by the owner of the products and/or services;
(e) representative, particularly in advertising or on labelling, in accordance with the state of the art in the industry and the provisions of the Vendor's tender;
(f) be packaged according to the usual method for products and/or services of the same type or, failing this, in a way designed to preserve and protect them.
5.9. The Vendor must ensure that its products offered and sold on ASEIKO meet the requirements for the minimum shelf life of cosmetic products and that the associated labeling on the products shows the expiry date; the latter products indicate how long after the opening date they can be used without harming the consumer.
5.10. The Vendor is liable to the end customers/end consumer for any lack of conformity which exists at the time the products and/or services are verified.
In the event of lack of conformity, without prejudice to the conditions on liquidated damages applicable to the total price of the products and/or services concerned, the end customer is entitled:
(a) either to have the products and/or services brought into conformity, free of charge, by replacement;
(b) or to have an appropriate reduction made in the price.
Any replacement must be completed within a reasonable time and without any significant inconvenience to the end customer, taking account of the nature of the products and/or services and the purpose for which they are required by the end customer/end consumer.
The term 'free of charge' in point (a) refers to the costs incurred to bring the products and/or services into conformity, particularly the cost of postage, labour and materials.
5.11. The product(s) must be packaged in strong boxes or crates or in any other way that ensures the contents remain intact and prevents damage or deterioration. The use of environmentally friendly packaging is aimed for and welcomed.
Each box must be clearly labelled with the following information:
(a) name of end customer and address for delivery;
(b) name of ASEIKO Skin and/ or a sticker indicating that the purchase has been done on ASEIKO; the design for the sticker respectively a fully designed ASEIKO-sticker and/or if available shipping packaging/boxes, will be provided by ASEIKO;
(c) brand, name and address of Party B;
If this is expressly required by local authorities and /or law regulations in the destination country, each box must be clearly labelled additionally with the following information:
(a) description of contents;
(b) date of delivery;
(c) number and date of purchase order;
5.12. Following information must be enclosed in each box:
(a) delivery note indicating the products and/or services delivered by the Vendor;
an order confirmation and invoice with the invoice number recorded on ASEIKO and indicating all products and/services delivered by the Vendor, including total price;
(b) if for some reason purchased products and/or services cannot be delivered by the Vendor/ its carrier / logistics partner in full range and within the same delivery, this must be clearly indicated in the delivery note; a new delivery date must be specified or at least the expected time for the new delivery;
5.13. A guarantee of two years from the date of delivery against all manufacturing or material defects is granted for the Vendor’s products, unless a shorter or longer period is provided for in the service descriptions.
The Vendor must guarantee that any permits and licenses required for manufacturing and selling the products have been obtained.
The Vendor will replace at its own expense, and within a reasonable time limit to be determined by agreement between the parties, any items which become damaged or defective in the course of normal use during the guarantee period. The Vendor is responsible for any conformity defect which exists at the time of delivery, even if this defect does not appear until a later date.
The Vendor is also liable for any non-conformities that occur after delivery and are the result of failure to comply with its obligations, including failure to comply with any guarantee that the supplies can be used for the purposes for which they are normally used for a period of time or will retain their characteristics or properties as indicated for a specific purpose.
If it turns out that a defect is due to a systematic error in the composition of the product (e. g. ingredient components, packaging, labeling etc.), the Vendor must replace or change all identical products that are contained in the other deliveries that are part of the order, even if they are not the cause of the incident may have been. In this case, the warranty period must be extended as stated above.
6. RETURNS POLICY
The Vendor must handle the returns made by the end customers in accordance to the returns policy and rules published on the website of ASEIKO, in ASEIKO’s FAQs and in accordance to the Vendor’s own returns policy.
End customers who purchase products on ASEIKO has the right to return the products within a period of 14 calendar days from the date of delivery. The Vendor shall accept the cancelation and returning of the product, if following rules were met:
(a) the product(s) is/were purchased on ASEIKO; products purchased through other retailers must be returned in accordance with their respective returns and refunds policy;
(b) a product is ineligible for returning when:
the product was opened
the product was partially or completely consumed
the product has chipping, scratches, stains, cracks, etc.
the product’s seal, original packaging or label have been partially or totally opened
the product has been used, damaged or subjected to storage or use conditions other than those indicated on the website or on the product label
the product has been manipulated and/or is not suitable for sale
6.1. The product(s) must be returned to the originally used address announced by the Vendor and written on the invoice and/or delivery note that was sent to the end customer.
6.2. If the product(s) is applicable for returning, the Vendor must initiate refunding no later than 14 days after receipt of the returned goods and / or 14 days; the Vendor must inform ASEIKO immediately after a return was accepted in order to handle the refund on time.
6.3. ASEIKO will initiate the refund and use the original payment method used by the customer.
6.4. If the Vendor has established returns policy other than the one announced on ASEIKO and in ASEIKO’s FAQs, the Vendor must promptly notify ASEIKO of its practices. This is the case especially if:
(a) the Vendor charges the end customer with additional costs for returns;
(b) the Vendor has set different period of time for the returns, e.g. shorter or longer than 14 calendar days;
(c) there are additional conditions, other than the conditions and rules for returns announced on ASEIKO, which might make it difficult for end customers to use the service to return ordered products.
7. QUALITY OF SERVICES
7.1. The Vendor must provide services of a high-quality standard, in accordance with the state of the art in the industry and the provisions of the contract, in particular the tender specifications and the terms of its tender.
7.2. If the Vendor does not provide the service in accordance with the contract ('unperformed obligations') or if it fails to provide the service in accordance with the expected quality levels specified in the tender specifications ('low-quality delivery'), ASEIKO can use the right to reduce or recover payments proportionally to the seriousness of the unperformed obligations or low-quality delivery. This includes in particular cases where ASEIKO cannot approve a result, report or deliverable as defined in the purchase order after the Vendor has submitted the required additional information, correction or new version.
7.3. I case of payment reduce, ASEIKO must formally inform the Vendor of its intention to reduce payment and the corresponding calculated amount. The Vendor has 15 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.
If the Vendor submits observations, ASEIKO must inform the Vendor of its final decision.
7.4. The Vendor has sole responsibility for complying with any legal obligations incumbent on it, notably those resulting from tax and workplace safety legislation.
7.5. The Vendor has sole responsibility for taking the necessary steps to obtain any permit or licence required for performance of the contract under local laws and regulations in the targeted markets.
7.6. In case of a product recall, the Vendor must immediately notify ASEIKO and the customers. The content, format and scope of the notification should be appropriate to the hazard presented by the product and/or the recall strategy developed for the product or required by the authorities.
The Vendor will initiate and follow the instructions required by the law to notify all parties that may be affected, as well as all parties involved in the distribution of the product affected by the recall. The Vendor must further initiate:
(a) posting a public warning;
(b) informing ASEIKO of its plan to distribute the alert;
(c) the disposal of the recalled product, whether the product has been destroyed or conformed;
7.7. All periods specified in the contract are calculated in calendar days, unless otherwise specified.
8.1. Form and means of communication
Any communication of information, notices or documents under the purchase order must:
(a) be made in writing in paper or electronic format in the language of the purchase order;
(b) bear the purchase order number;
(c) be made using the relevant communication details set out in the purchase order;
(d) be sent by email or post;
If ASEIKO or the Vendor requests written confirmation of an email within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible.
Both parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings.
8.2. Date of communications by post and email
Any communication is deemed to have been made when the receiving party receives it, unless the purchase order refers to the date when the communication was sent.
An email is deemed to have been received by the receiving party on the day of dispatch of that email, provided that it is sent to the email address indicated in the contract or other specification for communication. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or post. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline. Post sent to one of the parties is deemed to have been received by the receiving party on the date of the registering in-house.
Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message has been delivered to the specified recipient.
8.3. Validity and acceptance of electronic invoices
8.3.1. The parties agree that an invoice, sent via email, qualifies as an electronic invoice.
8.3.2. Similarly, should a direct connection be established between the parties’ back offices to allow electronic transfer of financial documents, the parties agree that a financial document, sent as mentioned in the API/EDI, qualifies as an electronic message.
8.3.3. Where a financial document is dispatched through the email and or API/EDI, it is deemed to have been legally issued or sent when the sending party is able to successfully submit the financial document without any error messages. The PDF and XML documents generated in relation to the financial document are to be considered as proof of receipt by both of the parties; where a financial document is dispatched using a direct connection established between the parties’ back offices, the financial document is deemed to have been legally issued or sent when its status is 'received'.
9.1. If a third party brings any action against one of the contractual partners (ASEIKO and the Vendor) in connection with the performance of the contract, including any action for alleged breach of intellectual property rights, both parties must assist each other in the legal proceedings, including by intervening in support of the affected party upon request.
9.2. If the Vendor is composed of two or more economic operators (i.e. which may have submitted a joint tender), they are all jointly and severally liable to the ASEIKO and to the end-customer for the performance of the contract.
10. CONFLICTS OF INTEREST AND PROFESSIONAL CONFLICTING INTERESTS
10.1. ASEIKO and the Vendor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest.
10.2. Each party must notify its contractual partner as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the performance of the contract and do any of the following:
(a) verify that the contractual partner's action is appropriate;
(b) require the contractual partner to take further action within a specified deadline.
10. 3. The party contemplated to take action in order to prevent the situation of conflict of interest, must pass on all the relevant obligations in writing to:
(a) its personnel;
(b) any natural person with the power to represent it or take decisions on its behalf;
(c) third parties involved in the performance of the contract, including subcontractors.
The party contemplated to take action also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.
11.1. Both contractual partners must treat with confidentiality any information or documents, in any format, disclosed in writing or orally, relating to the performance of the contract and identified in writing as confidential.
11.2. Each party must:
(a) not use confidential information or documents for any purpose other than to perform its obligations under the contract without the prior written agreement of the other party;
(b) ensure the protection of such confidential information or documents with the same level of protection as its own confidential information and in any case with due diligence;
(c) not disclose, directly or indirectly, confidential information or documents to third parties without the prior written agreement of the other party.
11.3. The confidentiality obligations set out in this Article are binding to both parties and on any third parties such as subcontractors during the performance of the contract and for as long as the information or documents remain confidential unless:
(a) the disclosing party agrees to release the receiving party from the confidentiality obligation earlier;
(b) the confidential information or documents become public through means other than a breach of the confidentiality obligation;
(c) the applicable law requires the disclosure of the confidential information or documents.
11.4. Each party must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the performance of the contract, a commitment that they will comply with this Article. At the request, each party must provide documentary evidence of this commitment.
12. PROCESSING OF PERSONAL DATA
12.2. Any contractual partner, including the end customer/end consumer, has the right to access its personal data and the right to rectify any such data. The contractual partner should address any queries concerning the processing of its personal data to the data controller; the contractual partner has right of recourse at any time to the European Data Protection Supervisor, if the contractual partner has a residency within the EU.
12.3. The contractual partner, including the end customer/end consumer, must grant personnel access to the data to the extent strictly necessary for the performance, management and monitoring of the contract.
12.4. The contractual partner, including the end customer, must adopt appropriate technical and organisational security measures, giving due regard to the risks inherent in the processing and to the nature of the personal data concerned, in order to:
(a) prevent any unauthorised person from gaining access to computer systems processing personal data, and especially:
(i) unauthorised reading, copying, alteration or removal of storage media;
(ii) unauthorised data inputting, as well as any unauthorised disclosure, alteration or erasure of stored personal data;
(iii) unauthorised use of data processing systems by means of data transmission facilities;
(b) ensure that authorised users of a data processing system can access only the personal data to which their access right refers;
(c) record which personal data have been communicated, when and to whom;
(d) ensure that personal data being processed on behalf of third parties can be processed only in the manner prescribed by the contractual partner;
(e) ensure that, during communication of personal data and transport of storage media, the data cannot be read, copied or erased without authorisation;
(f) design its organisational structure in such a way that it meets data protection requirements.
12.7. Any request from a third party to the contract (be it a private person or any public authority) for disclosure of personal data held by one of the contractual partners must be immediately communicated to the other contractual partner.
13.1. The Vendor must not subcontract and have the contract performed by third parties beyond the third parties already mentioned in the initial agreement between the parties without prior written authorisation from ASEIKO.
13.2. Even if the Vendor authorises subcontracting, both Vendor and subcontractor remain bound by the current contractual obligations and the Vendor is solely responsible for the performance of the contract.
13.3. The Vendor must ensure that the subcontract does not affect the rights of ASEIKO under the contract, under these general terms and conditions, particularly those under Articles 3 to 12.
14.1. Any amendment to the contract must be made in writing before all contractual obligations have been fulfilled.
14.2. An amendment must not make changes to the contract that might alter the initial conditions of the procurement procedure or result in unequal treatment of tenderers.
15.1. The Vendor is not allowed to assign the rights and obligations arising from the contract, including claims for payments or factoring, without prior written authorization from ASEIKO. In such cases, the Vendor must provide ASEIKO with the identity of the intended assignee.
15.2. Any right or obligation assigned by the Vendor without authorization is not enforceable against ASEIKO.
16. INTELLECTUAL PROPERTY RIGHTS
16.1. Ownership of the rights in the results
ASEIKO irrevocably holds worldwide ownership of the results and all intellectual property rights under the contract. The intellectual property rights thus acquired include all rights, such as copyright and other intellectual or industrial property rights, in all results, including customer data, and in all technological solutions and information contributed or produced by the Vendor or its subcontractor in performance of the contract. ASEIKO may exploit and use the acquired rights in accordance with the contract. ASEIKO acquires the rights from the time the contract is concluded and with the actual provision of the services and results as already stated in the contract. This delivery and conclusion of the contractual relationship is considered an effective assignment of rights on the part of the Vendor. This applies without restriction for the entire duration of the contract and shall survive the validity of the contract.
16.2. Licensing rights on pre-existing materials
ASEIKO does not acquire ownership of pre-existing rights under the contract.
The Vendor licenses the pre-existing rights on a royalty-free, non-exclusive and irrevocable basis to ASEIKO, which may use the pre-existing materials for all the modes of exploitation set out in the contract. All pre-existing rights are licensed to ASEIKO from the moment of the official contract signing.
The licensing of pre-existing rights to ASEIKO under the contract covers all territories worldwide and is valid for the duration of intellectual property rights protection.
No payments or fees are required from ASEIKO for the performance of the contract and for the use of the pre-existing materials, or any fees that would be payable to the Vendor in connection with the licensing of Vendor's pre-existing rights, including any forms of exploitation and use of pre-existing materials.
Where performance of the contract requires that ASEIKO uses pre-existing materials belonging to the Vendor, ASEIKO may request the Vendor to sign an adequate license agreement. Such use by ASEIKO will not entail any transfer of rights to ASEIKO and is limited to the needs of the contract and as determined under Article 16 (16.1.)
16.3. Modes of exploitation
ASEIKO acquires the rights to the results for the following modes of exploitation:
(a) reproduction: the right to authorize or prohibit direct or indirect, temporary or permanent reproduction of the results by any means (mechanical, digital or other) and in any form, in whole or in part;
(b) communication to the public: the exclusive right to authorize or prohibit any display, performance or communication to the public, by wired or wireless means, including the making available to the public of the results in such a way that members of the public may access them from a place and at a time individually chosen by them; this right also includes communication and broadcasting by cable or by satellite;
(c) distribution: the exclusive right to authorize or prohibit any form of distribution of results or copies of the results to the public, by sale or otherwise;
(d) rental: the exclusive right to authorize or prohibit rental or lending of the results or of copies of the results;
(e) adaptation: the exclusive right to authorize or prohibit any modification of the results;
(f) translation: the exclusive right to authorize or prohibit any translation, adaptation, arrangement or creation of derivative works based on the results, and any other alteration of the results, subject to the respect of moral rights of authors, where applicable;
(g) where the results are or include a database: the exclusive right to authorize or prohibit the extraction of all or a substantial part of the contents of the database to another medium by any means or in any form; and the exclusive right to authorize or prohibit the reutilization of all or a substantial part of the contents of the database by the distribution of copies, by renting, by online or other forms of transmission;
(h) where the results are or include patentable subject-matter: the right to register them as a patent and to further exploit such a patent to the fullest extent;
(i) where the results are or include logos or subject-matter which could be registered as a trademark: the right to register that logo or subject-matter as a trademark and to further exploit and use it; pre-existing materials are excluded from this right;
(j) where the results are or include know-how: the right to use such know-how as is necessary to make use of the results to the full extent provided for by the contract, and the right to make it available to contractors or subcontractors acting on behalf of ASEIKO, subject to their signing of adequate confidentiality undertakings where necessary;
(k) where the results are documents: the right to store and archive the results in line with the document management rules applicable to ASEIKO, including digitization or converting the format for preservation or new use purposes;
(l) where the results are or incorporate software, including source code, object code and, where relevant, documentation, preparatory materials and manuals, in addition to the other rights mentioned in this Article:
(i) end-user rights, for all uses by ASEIKO or by subcontractors which result from the contract and from the intention of the parties;
(ii) the rights to decompile or disassemble the software;
(m) to the extent that the contractual partner may invoke moral rights, the right for ASEIKO, except where otherwise provided in the contract, to publish the results with or without mentioning the name(s) of the creator(s), and the right to decide when and whether the results may be disclosed and published.
The Vendor warrants that the exclusive rights and the modes of exploitation may be exercised by ASEIKO on all parts of the results, irrespective of whether they are created by the contractual partner or consist of pre-existing materials.
Where pre-existing materials are inserted in the results, ASEIKO may accept reasonable restrictions impacting on the above list, provided that the said materials are easily identifiable and separable from the rest, that they do not correspond to substantial elements of the results, and that, should the need arise, satisfactory replacement solutions exist, at no additional cost to ASEIKO. In such a case, the Vendor must inform ASEIKO before making such a choice and ASEIKO has the right to refuse it.
16.4. Identification of pre-existing rights
When delivering the pre-existing materials, the Vendor warrants that, for any use that ASEIKO may envisage within the limits set in the contract, the pre-existing materials incorporated in the results are free of claims from creators or from any third parties and all the necessary pre-existing rights have been obtained or licensed.
16.5. Evidence of granting of pre-existing rights
Upon request by ASEIKO, the Vendor must provide evidence that it has ownership of, or the right to use, all the listed pre-existing rights, except for the rights owned or licensed by ASEIKO. ASEIKO may request this evidence even after the end of the contract.
This evidence may refer, for example, to rights to: parts of other documents, images, graphs, fonts, tables, data, software, technical inventions, product formulations, ingredients, know-how, IT development tools, routines, subroutines or other programs ('background technology'), concepts, designs, installations or pieces of art, data, source or background materials or any other parts of external origin.
This evidence must include, as appropriate:
(a) the name and version number of a software product;
(b) the full identification of the work and its author, developer, creator, translator, data entry person, graphic designer, publisher, editor, photographer, producer;
(c) a copy of the licence to use the product or of the agreement granting the relevant rights to the contractual partner or a reference to this licence;
(d) a copy of the agreement or extract from the employment contract granting the relevant rights to the contractual partner or where parts of the results were created by its personnel;
(e) the text of the disclaimer notice if any.
Provision of evidence does not release the Vendor from its responsibilities if it is found that it does not hold the necessary rights, regardless of when and by whom this fact is revealed.
The Vendor also warrants that it possesses the relevant rights or powers to execute the transfer and that it has paid or has verified payment of all due fees including fees due to collecting societies, related to the final results.
16.6. Quotation of works in the result
In the result, the Vendor must clearly point out all quotations of existing works. The complete reference should include, as appropriate, the following: name of the author, title of the work, date and place of publication, date of creation, address of publication on the internet, number, volume and other information that allows the origin to be easily identified.
16.7. Moral rights of creators
By delivering the pre-existing materials, the Vendor warrants that the creators will not object to the following on the basis of their moral rights under copyright:
(a) that their names be mentioned or not mentioned when the pre-existing materials and results are presented to the public;
(b) that the pre-existing materials be divulged or not after they have been delivered in their final version to ASEIKO;
(c) that the pre-existing materials be adapted, provided that this is done in a manner which is not prejudicial to the Vendor’s honour or reputation.
If moral rights on parts of the pre-existing materials protected by copyright exist, the Vendor must obtain the consent of creators regarding the granting or waiver of the relevant moral rights in accordance with the applicable legal provisions and be ready to provide documentary evidence upon request.
16.8. Image rights and sound recordings
If natural persons appear in a result or their voice or any other private element is recorded in a recognisable manner, the Vendor must obtain a statement by these persons (or, in the case of minors, by the persons exercising parental authority) giving their permission for the described use of their image, voice or private element and, on request, submit a copy of the permission to ASEIKO. The Vendor must take the necessary measures to obtain such consent in accordance with the applicable legal provisions.
16.9. Copyright notice for pre-existing rights
When the Vendor retains pre-existing rights on parts of the pre-existing materials, reference must be inserted to that effect when the result is used as set out in Article 16.3, with the following disclaimer: '© — year — Brand Name. All rights reserved.
Certain parts are licensed under conditions to this contract, or with any other equivalent disclaimer as ASEIKO may consider best appropriate, or as the parties may agree on a case-by-case basis. This does not apply where inserting such reference would be impossible, notably for practical reasons.
16.10. Visibility of ASEIKO’s results and disclaimer
When making use of the results, the Vendor must declare that they have been produced under a contract with ASEIKO Skin UG (Party A) and that the opinions expressed are those of the Vendor only and do not represent ASEIKO’s official position. ASEIKO may waive this obligation in writing or provide the text of the disclaimer.
17. FORCE MAJEURE
17.1. If a party is affected by force majeure, it must immediately notify the other party, stating the nature of the circumstances, their likely duration and foreseeable effects.
17.2. A party is not liable for any delay or failure to perform its obligations under the contract if that delay or failure is a result of force majeure. If the Vendor is unable to fulfil its contractual obligations owing to force majeure, it has the right to remuneration only for the services actually provided.
17.3. The parties must take all necessary measures to limit any damage due to force majeure.
18. LIQUIDATED DAMAGES
18.1. Delay in delivery
If the Vendor fails to perform its contractual obligations within the applicable time limits set out in the contract and or displayed on the platform of ASEIKO, ASEIKO may claim liquidated damages for the delay/incorrect delivery as specified in the contract with the Vendor.
ASEIKO must formally notify the contractor of its intention to apply liquidated damages and the corresponding calculated amount.
The Vendor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.
If the Vendor submits observations, ASEIKO taking into account the relevant observations, must notify the Vendor:
(a) of the withdrawal of its intention to apply liquidated damages; or
(b) of its final decision to apply liquidated damages and the corresponding amount.
18.3. Nature of liquidated damages
The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the services within the applicable time limits set out in the contract.
19. TERMINATION OF THE CONTRACT
ASEIKO may terminate the contract in the following circumstances:
(a) if provision of the services under the contract has not actually started;
(b) if the Vendor is unable, through its own fault, to obtain any permit or licence required for performance of the contract;
(c) if one of the parties does not perform the contract in accordance with the tender specifications or is in breach of another substantial contractual obligation;
(d) if the procedure for awarding the contract or the performance of the contract proves to have been subject to substantial errors, irregularities or fraud;
(e) if the Vendor does not comply with applicable obligations under environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions;
(f) if the Vendor is in a situation that could constitute a conflict of interest or a professional conflicting interest as referred to in Article 10;
(g) if a change to the Vendor’s legal, financial, technical, organisational or ownership situation is likely to substantially affect the performance of the vendor substantially modify the conditions under which the contract was initially awarded;
(h) in the event of force majeure, where either resuming implementation is impossible or the necessary ensuing amendments to the contract would mean that the tender specifications are no longer fulfilled or result in unequal treatment of the contractual partners.
20. CHOICE OF LAW AND PLACE OF JURISDICTION
The contractual relationship between ASEIKO Skin UG and the Vendor shall be governed by the laws of the Federal Republic of Germany with the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. In all cases, however, ASEIKO Skin UG shall also be entitled to take legal action at the place of performance of the delivery obligation in accordance with this contract and to the Terms and Conditions or a prior individual agreement at the general place of jurisdiction of the Vendor. Prevailing statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.
The Parties are allowed to publicize their mutual cooperation. However, all promotional measures must be approved in advance by the other party to the contract in writing, by fax or by email. The use for reference purposes can be made without consent.
22. FINAL PROVISIONS
22.1. Amendments or supplements to these GTC, including this provision, must be made in writing.
22.2. If any provision of the agreement between ASEIKO Skin UG and the Vendor, including these GTC, is or becomes void, invalid or unenforceable in whole or in part, the validity and enforceability of all remaining provisions shall not be affected. The void, ineffective or unenforceable provision shall be deemed replaced by the effective and enforceable provision which comes closest to the economic purpose of the void, ineffective or unenforceable provision in terms of object, measure, time, place or scope. The same applies to any gaps in this contract or these GTC.