General Terms and Conditions of Delivery and Payment of Yaskawa Europe GmbH
(1) The following General Terms and Conditions of Delivery and Payment (the "GTCs") shall apply to each order placed by the customer with us. They shall also apply to all future deliveries, performances or offers to customers even if not included again separately. If the creation and provision of computer programs is the object of a contract, our "General Licence Terms for the Provision and Use of Software" shall apply as far as they contain provisions that are contrary to these GTCs. Apart from that, these GTCs shall apply.
(2) Any conflicting terms and conditions of the customer are hereby rejected; such terms and conditions shall only be binding if we have expressly agreed to them in writing.
2. Offers and Orders
(1) Offers made by us are non-binding until we confirm an order in writing. Samples and specimens are outline details only that are not binding to us.
(2) We shall be entitled to accept a customer's offer to enter into a contract within four weeks upon our receipt of the offer, unless the customer's offer provides otherwise. The scope of the delivery shall be as defined in our confirmation of the offer.
(3) Our acceptance of the customer's offer to enter into a contract must be in writing to be effective, facsimile and e-mail being sufficient.
(4) We shall be entitled to make partial deliveries as far as this is reasonably acceptable for the customer. A partial delivery is, in particular, reasonably acceptable if
a) the partial delivery may be used by the customer within the scope of the contractually intended use;
b) the delivery of the remaining ordered goods is ensured, and
c) no additional expenses or costs are incurred by the customer due to the partial delivery, unless we declare that we are willing to compensate such costs.
(5) Sample deliveries are considered to have been accepted by the customer subject to these GTCs after the expiration of the agreed time period, unless otherwise agreed in writing or the sample deliveries have been returned to us by the customer during the sample period.
(1) Our prices do not include statutory Value Added Tax (VAT) and are understood net ex works, excluding packaging, insurance, assembly, postage and delivery costs. This is without prejudice to clause 11.
(2) If the time period between the acceptance and the delivery date exceeds four months and our manufacturing or production costs during such time period increase, we shall be entitled to claim such increased costs from the customer.
4. Terms of Payment
(1) The terms of payment shall be subject to the relevant arrangement between Yaskawa and the customer. The relevant point of time regarding the timeliness of a payment shall be the receipt of the payment by us.
(2) In case the customer fails to render payment in due time, or in case payments are deferred, the outstanding amounts shall bear interest at a rate of 5% p.a. as of the due date. In case of any default in payment by the customer, the customer shall pay default interest accruing at a rate of 8 percentage points above the base interest rate p.a. In addition, we reserve the right to claim higher damages or assert further claims.
(3) A set-off against our claims shall only be valid with such claims of the customer that are undisputed or have been recognised in a final and absolute court judgment. The same shall also apply to retention rights that the customer may exercise.
(1) All our delivery are free carrier from Yaskawa's warehouse or production site (FCA, Incoterms 2010), unless otherwise agreed.
(2) Unless agreed otherwise, periods agreed for our deliveries and performances commence on the receipt of our acceptance by the customer.
(3) Delivery dates and delivery periods shall only be binding upon an express and written confirmation by us.
(4) Deadlines are considered to be met if the goods have been delivered to the customer prior to the expiry of the deadline in accordance with FCA (Incoterms 2010) or other agreed Incoterms.
(5) We shall not be liable for impossibility of delivery or for delays in delivery as a result of events considered to be force majeure or of other events that were at the time of the conclusion of the contract unforeseeable (e.g. any kind of operational breakdowns, transport delays, strikes, lawful lockouts, shortages of labour, raw materials or energy supplies, difficulties in obtaining any requisite official permits, governmental actions or any deliveries by supplies which are outstanding, incomplete or late), that we are not responsible for. In such cases we shall immediately inform the customer. If the force majeure event persists for more than six months, each party may rescind from the contract.
(6) If the delivery of goods is delayed by us, we will use reasonable efforts to deliver the goods at a later stage at once.
(7) If the customer delays or fails to pick up the goods, we will charge a storage fee of 5 % of the purchase price for the goods, or alternatively the actual storage costs incurred.
6. Bearing of Risk
(1) Risk shall pass to the customer as soon as the goods are ready for dispatch and we have notified the customer in writing or orally about our readiness for dispatch, at the latest however if the goods have left our warehouse for delivery to the customer.
(2) Transport insurance shall only be concluded at customer's request and expense.
7. Reservation of Title
(1) We shall retain full title of the goods delivered until full payment of all current or future claims arising from the business relationship with the customer (the "Reserved Goods").
(2) If the customer alters or processes the Reserved Goods, such work shall be deemed to be carried out on our behalf. Where the Reserved Goods are processed or incorporated with other products, we shall be the co-owner of the resulting products in the proportion of the value of the Reserved Goods to the value of the other products. This clause 7 shall apply to any such new product accordingly.
(3) The customer shall keep the Reserved Goods on our behalf in safe custody with the diligence of a prudent businessman.
(4) Subject to withdrawal, the customer may only use the Reserved Goods in the ordinary course of business and only resell the Reserved Goods subject to retention of title. Without our prior consent, the customer shall not be entitled to otherwise dispose of the Reserved Goods in a way that interferes with or otherwise endangers our rights in such goods, including, but not limited to, pledge or transfer as security.
(5) The customer shall immediately inform us in the event of any third party action against the Reserved Goods or against any receivables assigned to us as security and to provide us with all documentation necessary to initiate third-party counterclaim proceedings. The costs of any such third-party counterclaim proceedings or any action required to otherwise redress such third-party action and to replace the Reserved Good shall be borne by the customer, to the extent not reimbursed by a third party.
(6) The customer hereby assigns to us all claims arising from the resale of the Reserved Goods or from the processing of the Reserved Goods, as security for the customer's current and future obligations arising from the business relationship between us and the customer. In the event that the customer resells the Reserved Goods to a third party together with other goods, the customer hereby assigns to us its purchase price claim in an amount of the value of the Reserved Goods. We hereby accept such assignment. As long as the customer complies with its contractual obligations, the assignment of the foregoing claims shall be treated as an undisclosed assignment. Subject to withdrawal, the customer is hereby authorised to collect such claims. In case of withdrawal, the customer shall, at our request, provide us with all information relating to the assigned claims and the debtors that are required to collect such claims by ourselves and shall inform the debtors of the assignment of such claims.
(7) We will not exercise our rights of withdrawal under clause 7(4) and clause 7(6) unless the customer is in default in making payments or unless an application to open a settlement or insolvency proceedings has been filed or the customer has suspended its payments.
(8) If and to the extent a reservation of title is not effective in the jurisdiction in which the contractual goods are located, it shall be deemed agreed that the customer provides us with a security that has the same or similar effect to a reservation of title. If the cooperation of the customer is required in order to create such security, the customer will, at its own expense, take all necessary actions without undue delay.
(9) The customer shall insure the Reserved Goods against theft, breakage, fire, water and other damage at its own expense.
(1) To the extent that the products delivered by us and the performances rendered by us are defective, we shall, at our option, remedy such defects or arrange for a replacement delivery in accordance with the statutory regulations and the provisions of this clause 8. They customer may only rescind from the contract after two attempts to rectify the defect have failed. Claims for damages exist only to the extent as set out in clause 9. Any replaced products and parts not already owned by us will become our property.
(2) Any claims in relation to defects will become time-barred 12 months after passing of risk or completion of the service and/or repair works.
(3) The customer is required to inspect each delivered product upon receipt without undue delay. Warranty claims shall be excluded if any objections as to the quantity of goods and as to defects identifiable by careful inspection are not notified to us in writing within eight business days upon delivery; the same shall apply to objections regarding hidden defects which are not notified to us within eight business days after its identification.
(4) If a notice of defects of the customer is unjustified, the customer shall reimburse all expenses that we have incurred due to the unjustified notice of defect, provided that it was its fault.
(5) A defective assembly or assembly service conducted by us shall not be deemed as a material defect under the rules for purchase agreements, but only as a defect under the rules for works agreements.
9. Liability for Damages
(1) Our liability – irrespective of the legal basis – is limited to damages that we or our legal representatives or vicarious agents have caused by wilful misconduct or gross negligence or, in case of a breach of essential contractual duties, by simple negligence.
(2) Essential contractual obligations include, but are not limited to, the obligation to render performance in a timely manner and without defects, as well as obligations to give advice, to protect and to exercise due care, which shall have the purpose to enable the customer to use the delivered goods according to the contract or to protect the personnel of the customer or third parties from danger to life and limb or customer's property from substantial damage.
(3) In cases of simple negligence, our liability is limited to damages which are typical in comparable cases and which were foreseeable at the time the contract was concluded or, at the latest, at the time the breach of duty was committed, excluding any indirect damages.
(4) Claims for damages pursuant to the German Product Liability Act, due to guaranteed quality characteristics, or due to damage to life, body or health, shall not be affected by the above provisions.
10. Refusal of Performance
(1) If a contract is not performed due to customer's fault and in breach of contract, the customer shall compensate damages in the amount of all costs incurred by us, but in any event no less than 5% of the net value of the ordered goods, unless the customer can demonstrate that we incurred fewer damages. The same shall apply if we withdraw from the contract for this reason.
11. Special Conditions for Delivery and Assembly
(1) Costs for assembly, hourly rates, daily rates, travel expenses, other costs etc. can be taken from the current relevant price sheet for the D&M Division or the Robotics Division, respectively.
(2) Prior to the start of the assembly, all structural works must be completed to a degree that the assembly can begin immediately after delivery. The foundation must be completely dry and hardened and the rooms in which the assembly should take place must be sufficiently protected against weather, well-lit and sufficiently heated.
(3) The customer must procure at its own costs
a) a sufficient number of auxiliary workers and skilled workers required for the assembly
b) the devices and materials required for the assembly and operation; and
c) the unloading of the railway wagons and the transportation of goods from the railway wagons, trucks or vessels to the place of assembly, free of charge. Delays of the assembly and operation that we are not responsible for shall be reimbursed by the customer in accordance with this clause 11. The risk of transportation for brought delivery parts shall be borne by the customer.
12. Special Conditions for Works
The following conditions shall apply if the contract is a contract for work:
(1) Without undue delay after notification of the completion of the work, the customer shall conduct a test-run of the subject matter of the contract, test its compliance with the contractually agreed functionality and performance and – provided no defects occur, which have to be notified without undue delay – accept the work in writing towards us at the latest within two weeks. If the customer does not notify us of any defects within such two-weeks period, the work is deemed to be accepted, with the effect that the risk as to the performance for the work shall pass to the customer.
(2) At customer's request, we shall instruct and train the customer's employees on the handling of the work at the customer's location. In such case, the customer shall bear any costs for travelling, accommodation and allowance of our training personnel and provide – if necessary – training rooms and protective clothing in sufficient quantities, free of charge.
(3) In order to deliver any work on time, the customer must timely and duly comply with its contractual duties to cooperate. If the customer does not or does not duly comply with its duties, the delivery periods shall be extended by the period of delay.
(4) Detailed provisions in relation to the customer's duty to cooperate are set out in the respective underlying contract.
(5) Rights of the customer in case of defects after acceptance
a) If the work is defective, the customer may claim supplementary performance (i.e. remediation of the defect or performance of new work). The choice between remediation of the defect or performance of new work is in our option.
b) After the fruitless expiration of a time period set for the supplementary performance, the customer may remedy any defect himself and claim for the compensation of any requisite expenses, unless we were entitled to refuse a supplementary performance.
c) In case the remedy of defects fails, we unjustifiably refuse a supplementary performance or we do not provide a supplementary performance within a reasonable time period set by the customer, the customer may abate the remuneration or rescind from the contract and claim expenses without avail or claim damages in lieu of performance.
d) The customer does not have any claims with regard to defects caused by or resulting from improper operation or maintenance of the work or modifications to the work by the customer or any third party.
e) The customer's claims for defects of work become time-barred one year after acceptance of the work.
The customer shall treat all trade and business secrets which are disclosed to him during the performance of the contract as confidential and shall not disclose such trade and business secrets to third parties. This duty of confidentiality shall remain in force for a period of five years after the expiration of the contract. Yaskawa may claim compensation of any incurred damages in case of an unpermitted disclosure. In addition, the customer shall pay at least EUR 50,000 for each case of noncompliance with its confidentiality obligation.
14. Rights to Work Results / Copyright
The customer shall have a simple, non-exclusive and non-transferable right to use the work results made in the scope of a contract (such as cost estimates, drawings, organisational analyses), to the extent that these are required for the utilisation of the work result in the course of the customer's business activities.
15. Final Provisions
(1) The customer shall be responsible for the compliance with any applicable law, writs, rules, regulations and any regulatory actions and policies and shall procure any permissions, licenses and authorisations and the compliance with any other statutory provisions that are necessary to conduct its business in compliance with the applicable law.
(2) If a delivery of the goods to certain countries or territories or to one or more consignees is not permissible or restricted due to statutory provisions or trade regulations and trade sanction applicable to our goods or Yaskawa or Yaskawa's production sites or should such restrictions enter into force after the acceptance of an offer or during the delivery, Yaskawa reserves the right to rescind from the contract and to charge any incurred costs to the customer.
(3) The contractual relationship is governed by the laws of the Federal Republic of Germany, as between persons domiciled in Germany. This includes, without limitation, the legal concepts and terms contained in these GTCs, the English translations of which may not be identical with the original German terms in their respective legal understanding. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
(4) The place of performance is Eschborn/Taunus in case of delivery of drives and motions, respectively Allershausen in case of delivery of robots.
(5) The exclusive place of jurisdiction is Eschborn/Taunus. However, we are entitled to sue the customer in any other legal jurisdiction.
(6) There are no oral side agreements to this contract. Any amendments and supplements to these GTCs must be made in writing to be effective. This shall also apply to any amendment of this written form requirement.
(7) Should a provision of these GTCs be invalid, this does not affect the validity of the remaining provisions. An invalid provision of these GTCs shall be deemed to be replaced by such valid provision that comes closest to the intended commercial purpose of the invalid provision.
Date: October 2011