General Terms and Conditions of Delivery and Payment of Yaskawa Electric Europe GmbH
1.) Scope
(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 agreed again separately. If the creation and provision of computer programs is the object of the agreement, 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. These GTCs shall otherwise apply.
(2) Any conflicting terms and conditions of the customer are hereby rejected; they shall not be binding unless expressly agreed to in writing by us.
2. Offers and Orders
(1) Offers made by us are non-binding until we confirm an order in writing. Samples and specimens reflect outline particulars that are not binding to us.
(2) We shall be entitled to accept a customer's offer to enter into a contract within five working days of our receipt of the offer, unless the customer's offer provides otherwise.
(3) Our acceptance of the customer's offer to enter into a contract must be in writing to be effective.
(4) We shall be entitled to make partial deliveries in so far as this is reasonably acceptable for the customer. A partial delivery is, in particular, within reasonable limits if
a. the partial delivery is utilizable by the customer within the scope of the contractually intended use;
b. delivery of the remaining ordered goods is ensured, and
c. if no considerable additional expenses or costs are incurred to the customer unless we declare that we are willing to assume such costs.
3. Prices
Our prices do not include statutory VAT and are understood net ex works, including packaging, however, excluding insurance, assembly, postage and delivery costs. This is without prejudice to clause 11.
4. Terms of Payment
(1) Payments must be made without any cash discount deduction 30 days after the invoice date. The relevant point of time for the payment having been made on time shall be receipt by us.
(2) In the event that the customer fails to render payment when due, or in the event that payments are deferred, the outstanding amounts shall bear interest at a rate of 5% p.a. as of the due date. In the event of any default in payment by the customer, the customer shall be required to pay default interest accruing at a rate of 8 percentage points p.a. above the base interest rate of the European Central Bank. We reserve the right to assert claims for any exceeding damages and additional rights.
(3) Any set-off against our claims shall only be valid with such claims of the customer that are undisputed or have been recognized in a final and absolute court judgment. The same shall also apply to any retention rights.
5. Delivery Periods
(1) Unless agreed otherwise, periods agreed for our deliveries and performances commence on the date of our confirmation of an order.
(2) Delivery deadlines and delivery periods shall only be binding if expressly confirmed by us in writing.
(3) Deadlines are considered to be met if the goods have been consigned to the customer from our works or warehouse prior to the expiry of the deadline.
(4) In the event that the consignment of the goods is delayed by the customer, we shall be entitled to demand payment of storage charges in an amount of 0.5% of the value of goods for each month commenced, commencing 14 days after the date on which the notification of readiness for dispatch is sent to the customer, but in no case higher than 5% of the value of goods, unless higher or lower costs are demonstrated.
(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 as a result of any other unforeseeable events as at the time of the entering into the agreement (e.g. any kind of operational breakdowns, difficulties in procuring materials or energy supplies, transport delays, strikes, lawful lockouts, shortages of personnel, materials or energy supplies, difficulties in obtaining any requisite official permits, governmental actions or any deliveries by supplies which are either still outstanding, incomplete or late), not culpably caused by us.
6. Bearing of Risk
(1) Risk shall pass to the customer as soon as the goods are ready for dispatch and we have provided the customer with written or verbal notification of readiness for dispatch, however, risk passes to the customer at the latest from the moment the goods have left our warehouse for delivery to the customer.
Transport insurance shall only be concluded at the request of the customer and at his 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 the reserved goods, or incorporates the reserved goods into other products, such work shall be deemed to be carried out on our behalf. Where the reserved goods subject are incorporated into other products, we shall be the co-owner of the resulting products in the same proportion that the value of the reserved goods bear to the value of the resulting products. This clause 7 shall also apply to any such new goods as it is applied to reserved goods.
(3) The customer shall keep in safe custody the reserved goods with the diligence of a prudent businessman on our behalf.
(4)The customer may only resell the reserved goods in the usual course of business and only subject to retention of title, until we revoke this authorization. The customer shall not otherwise dispose the reserved goods in a way that interferes with or otherwise endangers our rights in such goods, including, but not limited to, pledge or assignment by way of security, without our prior consent.
(5) The customer shall immediately inform us in the event of any third party action against the reserved goods or any receivables assigned to us under provision of all information necessary to initiate third-party counterclaim proceedings to protect our rights. The costs of any such legal proceedings or to otherwise redress any such third-party action shall be borne by the customer, insofar a third party does not reimburse these.
(6) The customer hereby assigns to us all claims arising from resale or arising any time in the future from another legal transaction affecting the reserved goods, as security for the customer's existing and future obligations which arise from the business relationship between us and the customer. In the event that the customer sells the reserved goods on to a third party together with other goods, the customer hereby assigns to us its right to that proportion of the purchase price which is equivalent to the value of the reserved goods. We hereby accept such assignment. As long as the customer complies with its contractual obligations, then the assignment of the foregoing rights will be treated as an undisclosed assignment. The customer is hereby authorised to collect all claims resulting from such rights unless and until we revoke this authorisation. In case of such revocation, the customer shall provide us with all information relating to the claims assigned and the relevant debtors necessary for us to call in such claims by ourselves and shall inform the debtors of the transfer of such rights to ourselves.
(7) We will not exercise our rights of revocation under clause 7(3) and clause 7(6) unless the customer is in default in making payments or, in particular, unless a petition for the institution of composition or insolvency proceedings has been lodged or there has been suspension of payments.
(8) Should reservation of title not be recognised in the jurisdiction of the state in which the goods are located, it shall be deemed agreed that the customer provides us with a security that has the same or similar effect to reservation of title. If the cooperation of the customer is required in order to create such security, the customer will, at its own expense, forthwith take the necessary actions.
(9) The customer shall at its own expense insure the reserved goods against theft, breakage, fire, water and other damage.
8. Warranty
(1) Insofar as the products delivered by us and the performances rendered by us are defective, we shall, at our option, rectify the defects or arrange for a substitute delivery in accordance with the statutory regulations and the provisions of this clause 8. Claims for damages exist only to the extent set out in clause 9. Any replaced products and parts not already owned by us will become our property.
(2) The warranty period is 12 months, commencing on the day of the transfer of risk.
(3) The customer is required to inspect each delivered product without undue delay upon receipt. Warranty claims shall be excluded if any objections as to the quantity of goods and all discernable defects identifiable by careful inspection are not notified to us in writing within eight days of taking delivery of the goods; the same shall apply to objections regarding hidden defects which are not notified to us within eight days of being identified.
(4) If a notice of defects of the customer is unjustified, the customer shall indemnify us against all expenses incurred in that regard if he acted culpably.
9. Liability for Damage
(1) Our liability – regardless of the legal basis – is limited to damages that have been caused wilfully or with gross negligence by us or our legal representatives or vicarious agents or, in case of a breach of essential contractual duties, with slight negligence.
(2) Essential contractual obligations include, but are not limited to, the obligation to render performance in a timely manner and without defects, and duties to give advice, to protect and to exercise due care, which have the purpose of enabling the customer to use the contract goods as provided for in the contract and of protecting the customer's or third parties' personnel from danger to life and limb and the customer's property from substantial damage.
(1) In cases of slight negligence, the amount of our liability is limited to the damage which is typical in comparable cases and which was foreseeable at the time the contract was concluded or, at the latest, at the time the breach of duty was committed.
(2) Claims for damages pursuant to the German Product Liability Act for a breach of guarantees of quality, damage to life, limb or health, shall not be affected by the above provisions.
10. Refusal of Performance
If a contract is not put into execution as a result of the culpable conduct of the customer in breach of the contract, the customer shall be required to pay us damages in the amount of all costs incurred by us as a result, but in any event no less than 5% of the net value of the ordered goods, unless the customer can prove to us minor damage. The same shall apply where we withdraw from the contract for this reason.
11. Special Conditions for Delivery and Installation
(1) We shall be reimbursed for the travelling costs incurred for each installation undertaken by us. In that respect, we will charge travel expenses per employee depending on the distance from Frankfurt am Main to the installation site on the following basis:
a) Travel by car:
a. up to 100 km EUR 80.00
b. up to 200 km EUR 150.00
c. for each further kilometre commenced EUR 1 per km
b) In the case of travel by train or plane, an invoice shall be issued for the costs actually incurred. The employee may book and invoice airfares in business class and rail travel in second class.
(2) We shall be reimbursed for any costs arising in relation to special rates and daily allowance rates. We will charge for the deployment of our skilled assemblers (service technicians) at a rate of EUR 150 per hour.
(3) In the case of overtime, night-work, Sunday work and work on public holidays, as well as waiting and travelling time, the following surcharges and discounts shall apply.
a) Travelling and waiting time -20%
b) Overtime +35%
c) Nightwork on working days between 8.00 p.m. and 6.00 a.m. +55%
d) Sunday work and work on public holidays +55%
(4) All construction work must be completed prior to commencement of installation to the extent that the installation work can be commenced immediately following delivery of goods. The substructure must be completely dry and hardened off and the rooms in which the goods are to be installed must be sufficient protected against the weather, well lit and adequately heated.
(5) The customer shall have to provide a supervised and guarded room which is dry and capable of being lit and locked for the storage of our machine parts, materials and tools as well as other work equipment.
(6) The customer shall, at its own expense
a) make available auxiliary personnel and skilled personnel in such number as is required for carrying out the installation work;
b) keep available equipment and requisite materials for the assembly and commissioning of the delivered goods at its own cost, and
c) to arrange for the unloading of the railway wagons, trucks or ships at the installation site free of charge. If assembly or commissioning is delayed owing to circumstances which are beyond our control, the customer shall reimburse us for any such delays in accordance with this clause 11. The customer shall bear the risk for transporting the delivered parts.
(7) Detailed provision in relation to the customer's duty to cooperate are set out in the respective underlying agreement.
12. Confidentiality
The customer shall treat all trade and business secrets which are disclosed 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 survive for a period of five years after termination of the contract.
13. Rights to Work Results / Copyright
Within the scope of this contract the customer shall receive a basic, non-exclusive and non-transferable right, to use our work results made in the course of the performance of this agreement (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 carrying out its business activities.
14. Final Provisions
(1) The contractual relationship is governed by the laws of the Federal Republic of Germany, as between persons domiciled in Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is not applicable.
(2) The place of performance is Eschborn/Taunus.
(3) The exclusive place of jurisdiction is Eschborn/Taunus. We remain entitled, however, to sue the customer in any other legal jurisdiction.
(4) 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.
(5) Should any of the provisions hereof be ineffective, the validity of the remaining provisions hereof shall not be affected thereby. The parties shall replace any such ineffective provision with a valid provision that comes closest to the intended commercial purpose of the invalid provision.
As at October 2007