Terms and Conditions of Purchase of ROBOWORKER Automation GmbH
(as per July 2013)
1.1. The contractual relationship with the supplier shall exclusively be subject to Roboworker's Terms and Conditions of Purchase unless Roboworker explicitly acknowledges deviations therefrom or different terms and conditions of the supplier in writing.
1.2. These Terms and Conditions of Purchase shall apply even in those cases where Roboworker accepts the delivery of the supplier without reservation while being fully aware of conflicting or differing terms and conditions of the supplier.
1.3. These Terms and Conditions of Purchase shall also apply to all future business transactions with the supplier without another reference to these Terms and Conditions of Purchase being necessary.
1.4. Roboworker shall be entitled to modify the present Terms and Conditions of Purchase for the entire future business relationship with the supplier after notifying the latter accordingly. If the supplier does not contradict the changes specified in the notification within a period of 6 weeks after having received the notification, the modified Terms and Conditions of Purchase shall be deemed acknowledged by him.
1.5. Any individual agreements with the supplier made in particular cases, as for instance skeleton agreements and quality assurance agreements as well as subsidiary agreements, supplements and amendments, shall have priority over these Terms and Conditions of Purchase without exception.
1.6. Amendments and supplements require the written form.
2. Orders - Order Documentation
2.1. We exclusively consider written orders as binding. Oral orders, agreements and subsidiary agreements shall be ineffective unless made by an employee of our company authorized to present.
2.2. By accepting the order, the supplier confirms that he has seen the documents provided and has informed himself about kind and scope of the performances.
Should there be any errors, spelling or calculation errors in the documentation submitted by us, the supplier shall be obliged to refer us to such errors so that our order may be corrected as necessary. The same shall apply to missing documents.
2.3. We reserve and retain all property rights and copyrights to figures, drawings, calculations and other information whether of physical or non-physical nature (including information in electronic form). They must not be made accessible to third parties without our explicit consent in writing; insofar, the provisions under item 11. shall apply accordingly.
2.4. Within the bounds of what is reasonable for the supplier, Roboworker shall be entitled to demand modifications to construction and design of the delivery item. Thereby, the effects, particularly as regards the additional or reduced costs as well as the delivery dates, shall be agreed by mutual consent.
2.5. The supplier shall ensure that he will be able to provide Roboworker with the delivery items or parts thereof as spare parts for a period of 10 years after terminating the supply relationship under appropriate conditions.
2.6. If the supplier ceases the delivery of the spare parts after the expiration of the period of time specified in item 2.5 or during this period, he shall give Roboworker the opportunity to place a last order,
2.7. Roboworker does not assume the costs for presentations or the preparation of orders through the supplier.
3. Order Confirmation
3.1. All orders shall be confirmed in writing specifying our order number including price, quantity and delivery time without delay or 10 working days after the order date at the latest.
3.2. Subsequent price increases shall require our explicit and written consent. Otherwise price increases by the supplier shall not be binding for us.
4. Prices - Invoices - Payment Conditions - Assignments
4.1. The prices specified in the order are binding, even in case of long-term delivery contracts. All prices are net plus the valid legal value added tax. Other incidental costs, like customs, insurance rates or similar, shall be at the expense of the supplier.
4.2. Invoices shall be paid at our discretion either within 14 days after invoice received minus 3% discount or within 60 days net. If the delivery items arrive later than the invoice, the payment and discount period shall not start but on the day of the goods received; in case of early delivery, the payment and discount period shall start at the agreed delivery date at the earliest. If delivery documents/invoices include errors, the payment and discount period shall not start until the submission of the corrected accounting documents.
4.3. We shall be entitled to the right of lien and set-off within the limits of statutory regulations.
4.4. Only after the submittal of Roboworker's explicit permission in writing shall the supplier be entitled to assign claims against Roboworker or have them collected by third parties. The provision of §354a BGB (German Civil Code) shall remain unaffected by this.
5. Delivery Dates and Periods
5.1. Agreed dates and periods shall be binding. The reception of the delivery goods at Roboworker shall be decisive for the observance of the delivery date or delivery period. The supplier shall be obliged to make the goods available in time taking into consideration the usual time for loading and shipment.
5.2. We shall not be obliged to accept the goods before the agreed delivery date. In case of premature delivery, we shall be entitled to either return the goods at the cost and risk of the supplier or place the goods in stock at the supplier's cost and risk as we see fit.
5.3. If the supplier does not make a due delivery in time or pursuant to the contract, we shall be entitled - at our discretion and after setting a reasonable period of grace - to either demand subsequent delivery and damage on the basis of delayed delivery (§280 BGB) or to demand damage in lieu of delivery (§281 BGB) or to withdraw from the contract altogether (§323 para.1 BGB). In case of default in delivery, Roboworker shall be entitled to demand a contract penality in the amount of 0.5% of the value of the goods ordered per week in arrears or part thereof. The max. contract penality is limited to 5% of the value of goods ordered. The assertion of further claims shall remain unaffected by this. The contract penality shall have to be credited against an actually occurred or asserted damage caused by delay. The right to demand payment of the agreed contract penalty shall not be forfeited by the fact that the contract penalty is not expressly reserved upon acceptance of the delayed delivery.
5.4. A foreseeable exceeding of the agreed delivery deadline shall be communicated to us at the earliest possible point of time under specification of the reasons and duration of the delay in delivery in writing. This shall not affect the legal rights of Roboworker.
6.1. Shipment to us shall be made carriage and packaging prepaid
unless otherwise agreed. The transport hazard shall be borne by the supplier without exception. The acknowledgement of receipt shall be considered as confirmation of the goods receipt, not as due fulfillment.
6.2. All shipments shall be accompanied by a delivery note specifying our order information, like delivery number, order number, item number and article name. Partial deliveries shall be marked as such indicating the residual quantity still to be delivered.
6.3. Overdeliveries/underdeliveries shall require our prior explicit confirmation in writing. Unapproved overdeliveries shall be returned at the expense of the supplier.
6.4. All delivery items must be packaged separately and be labeled with the item number or with the drawing number in case of parts to be produced. In case of several deliveries of identical parts, the article items shall be packed and labeled together. In case of parts to be produced, the labeling of the components shall not be made directly on the part but only on the packaging of the related item unit.
7. Inspection for Defects - Liability for Defects - Warranty
7.1. We will immediately inform the supplier about any defects in writing as soon as such defects may be detected based on the proper course of business. The supplier herewith waives any objection of a delayed notice of defect. The acknowledgement of receipt shall not be deemed an acknowledgement of the good's freedom of defects. Should samples reveal any defects, we shall be entitled to the warranty rights and claims for compensation for the entire scope of delivery.
7.2. For the rest, the legal provision shall apply to all warranties. At any rate, we shall be entitled to demand from the supplier removal of defects or the delivery of a new delivery item. The right of compensation for damages, in particular that of compensation for damages in lieu of performance, shall be maintained explicitly.
7.3. We shall be entitled to remedy the defects ourselves at the expense of the supplier in case of imminent danger or if special urgency due to a performance obligation by Roboworker requires an immediate rectification.
7.4. The warranty period amounts to 24 months, starting with the delivery of the goods or with the acceptance of the performance/goods by us. For rectifications of defects and replacement deliveries, the warranty period shall be 12 months starting from the fulfillment of the warranty deed. It shall not end, however, before the expiration of the warranty period effective for the original delivery. As far as and as long as the delivery items cannot be used by Roboworker as per agreement due to rectification measures by the supplier, the warranty period shall be extended by the duration of this interruption.
8. Quality Assurance
8.1. The supplier undertakes to grant a permanent quality control and assurance by way of appropriate inspections and controls, in particular before the shipment of the goods. He shall fully document such inspections and controls. We shall have the right to assure ourselves of the kind of quality assurance at the site, if necessary also at subsuppliers. In excess of this, we expressly reserve the right of concluding a quality assurance agreement with the supplier.
9.1. The supplier herewith commits to only supplying us with goods which fulfill all requirements of the EU regulations (EC) 1907/2006 (REACH) and (EC) 1272/2008 (CLP regulation). In particular, these obligations shall include the registration and information obligations pursuant to REACH as well as the obligation to classify, label and package pursuant to the CLP regulation. The supplier shall send us the required safety data sheets for substances and compounds in time before the first delivery, and again as soon as relevant modifications become necessary at his own expense. We specifically consider the fulfillment of the registration obligation and the forwarding of up-to-date and complete safety data sheets as essential basic prerequisite for every delivery. Already as of now, the supplier exempts us from any claims for compensation by third parties in cases where the safety data sheets are not supplied at all or belatedly or are flawed. Where goods are delivered pursuant to the definition of REACH, the supplier commits to only supplying us with goods the contents of substances of very high concern (SVHC) in the Candidate List of the European Chemicals Agency of which does not exceed 0.1% (m/m). The supplier shall inform us if the goods contain a substance included in the above mentioned Candidate List - even if its contents lies below 0.1%.
10. Use of Manufacturing Equipment and Confidential Information
10.1. Models, dies, templates, samples, tools and other manufacturing equipment as well as confidential information made availabe to the supplier by Roboworker or in which Roboworker takes an essential share may only be used by the supplier for his own purposes and for deliveries to third parties if required for the fulfillment of the related agreement with Roboworker and after prior written approval by Roboworker.
11.1. The supplier shall undertake to keep all figures, drawings, calculations and other documents as well as information made available to him by us in strict confidentiality. They may only be disclosed to third parties after our prior explicit approval in writing. The obilgation to confidentiality shall remain effective beyond the end or termination of this agreement. The obligation to confidentiality of the supplier shall not be applicable or shall be dropped if the figures, drawings, calculations and other documents left to him are publicly known at the point of time of the transfer. Should the documents and information become public knowledge at a later point of time, the obligation to confidentiality shall become inapplicable after their becoming publicly known.
11.2. If the supplier violates his obligation to confidentiality, he shall be bound to pay to us an appropriate contract penalty to be fixed by us at our orderly discretion. The supplier and/or we shall be entitled to ask the competent court to check the height of the contract penalty.
11.3. Subsuppliers shall be bound accordingly.
11.4. Unless otherwise agreed in the order, the obligation to confidentiality shall continue for 5 years beyond delivery and performance.
12. Title Retention - Free Issue Equipment
12.1. With the delivery of the goods ordered by us they shall become our absolute property. Any conflicting retentions of title in favor of the supplier or in favor of third parties shall be excluded.
12.2. If the supplier processes or converts objects left to him by Roboworker into a new chattel, Roboworker shall be considered the manufacturer. In case of the combination or inseparable mixing with other objects, Roboworker shall acquire co-ownership of the new object proportionately to the value of the goods combined or mixed at the time of combination or mixing. If the combination or mixing takes place in a way that the objects of the supplier must be considered the principal object, it is agreed that the supplier transfers proportional joint ownership to Roboworker where the supplier shall safekeep the co-ownership for us.
13. Withdrawal from the Contract
13.1. Roboworker shall be entitled to partially or entirely withdraw from the contract without substitution if insolvency proceedings are brought against the supplier or if the supplier fails to comply with essential obligations towards Roboworker or third parties without due cause. The right to withdrawal of Roboworker shall also be applicable in case of individual enforcement actions against the supplier.
13.2. Legal withdrawal rights shall remain unaffected by this.
14. Industrial Property Rights
14.1. The supplier warrants that the due use and resale of the goods delivered to us is permissible without violating domestic or foreign patents or other property rights. In so far, the supplier herewith releases us from all third-party claims arising out of the liability for the violation of any patent or property rights. If third-party industrial property rights are violated, we shall have the right to withdraw from the contract and demand compensation pursuant to the legal regulations and prerequisites.
14.2. In case of legal proceedings due to the violation of property rights, the supplier shall have to provide securities in the full amount of the substantiated damage. He shall bear all judicial and extrajudicial costs and expenses incurred in connection with legal proceedings due to the violation of property rights.
15. Product Liability
15.1. As far as the supplier is responsible for a product defect or the violation of legal or governmental safety regulations, he shall exempt Roboworker from the claims for damages by third parties as well as from officially imposed fines and penalties upon the first request in writing.
In excess of this, Roboworker shall be entitled to the reimbursement of all costs and expenses resulting from or in connection with a recall campaign executed by us. Roboworker will inform the supplier about kind and scope of any such recall campaign as far as possible and reasonable. Roboworker reserves the right of further claims.
15.2. The same shall apply, if product defects are caused through performances by presuppliers and subsuppliers of the supplier.
15.3. The supplier shall be obliged to take out sufficient insurance against product liability (coverage at least € 2,500,000 per damage event) and to prove this toward Roboworker upon request in writing at any time, in particular by way of written confirmation of the supplier's insurance.
16. Applicable Law - Jurisdiction - Place of Fulfillment
16.1. This contractual relationship shall exclusively be governed by the laws of the Federal Republic of Germany even if the supplier has his registered place of business in a foreign country. The provisions of the UN Sales Convention (CISG) shall not be applicable.
16.2. The place of jurisdiction is the registered place of business of Roboworker if the supplier is a merchant pursuant to §1ff. HGB (German Commercial Code); However, we shall be entitled to appeal to any legally pertinent court.
16.3. The place of fulfillment for the deliveries and performances is the registered place of business of Roboworker unless specified otherwise in the order.
17.1. Should a provision of these Terms and Conditions of Purchase be or become ineffective of infeasable, this shall not affect the validity of the remaining provisions. The invalid provision shall be substituted for by the corresponding legal provision. In no event shall the invalid provision be replaced with the terms of business of the supplier.