General Terms and Conditions of Supply and Service

Transcription

1 Article 1 Conclusion of contract and contractual terms and conditions I Offers shall be deemed to remain binding for contractual parties for two weeks. II With respect to the scope of supply and/or service, the offer of KUKA ROBOTICS HUNGÁRIA Kft and the order confirmation of KUKA ROBOTICS HUNGÁRIA Kft shall prevail. III With respect to the performance of supply and service, KUKA ROBOTICS HUNGÁRIA Kft will reserve the right of change as long as it is needed to ensure the product safety or pursuant to any legal statute. KUKA ROBOTICS HUNGÁRIA Kft will reserve the right of making any changes promoting technical development or the right of making any changes favourable for customer following confirmation of order. IV The contract itself and any additional provisions, amendments or additions thereof shall only be valid in writing. The same shall apply to the amendment of this provision. V KUKA ROBOTICS HUNGÁRIA Kft reserves its unlimited proprietary rights and rights of utilisation in relation to any expenditure estimates, figures, test softwares and other documents. These may only be made available to any third party with KUKA ROBOTICS HUNGÁRIA Kft s prior written consent. If contract is not awarded to KUKA ROBOTICS HUNGÁRIA Kft or it is not executed, any figures or other documents belonging to the offers shall immediately be returned to KUKA ROBOTICS HUNGÁRIA Kft upon request. The second and third sentences of the above provision shall also apply to customer s documents with the difference that customer s documents may be made available to such third parties who are involved in the performance of supply and services under customer s contract by KUKA ROBOTICS HUNGÁRIA Kft. VI The sales conditions of KUKA ROBOTICS HUNGÁRIA Kft shall apply to every supply, service and offer with exclusive effect. KUKA ROBOTICS HUNGÁRIA Kft does not acknowledge any of customer s general business terms and conditions that contradict or deviate from such terms and conditions of sale except if customer s terms and conditions are explicitly approved by KUKA ROBOTICS HUNGÁRIA Kft in writing. KUKA ROBOTICS HUNGÁRIA Kft s terms and conditions of sale shall also apply if deliveries are unconditionally performed in the knowledge of customer s terms and conditions contradictory to or deviating from such terms and conditions. VII These shall form the part of every contract on the supply and services offered by KUKA ROBOTICS HUNGÁRIA Kft and concluded with KUKA ROBOTICS HUNGÁRIA Kft s contractual parties (customers). In case of any amendments in the General Contractual Terms and Conditions of KUKA ROBOTICS HUNGÁRIA Kft, KUKA ROBOTICS HUNGÁRIA Kft shall send the new version of such terms and conditions to customer in the appropriate form. Such amended terms and conditions shall form the base of any contracts concluded after such sending. VIII The General Contractual Terms and Conditions of KUKA ROBOTICS HUNGÁRIA Kft shall only be valid with entrepreneurs complying with Art. 8:1 point 4. of the Hungarian Civil Code. Article 2 Rules concerning export rights I During exportation, the products of KUKA ROBOTICS HUNGÁRIA Kft may be subject to different restrictions. II In case of the exportation of the products to be supplied by KUKA ROBOTICS HUNGÁRIA Kft to any countries outside the European Union, customer shall guarantee in writing prior to delivery, installation or assembly that it will only apply the products of KUKA ROBOTICS HUNGÁRIA Kft in the civil sector and not in the military sector or in connection with nuclear technology, or other prohibited purposes. III KUKA ROBOTICS HUNGÁRIA Kft reserves the right of supplementary export control. For this purpose, KUKA ROBOTICS HUNGÁRIA Kft shall have the right to forward the names and addresses of customers, forwarders and any persons involved in the performance of contract to third parties for the sake of security checks, to which customer gives its express consent by signing this contract or shall obtain the appropriate consent from the above persons. KUKA ROBOTICS HUNGÁRIA Kft assumes no liability for the security of any data getting into the possession of third parties. IV If the names of customers, forwarders or any persons involved directly or indirectly in the performance of contract are included in the German, European or US sanction lists, KUKA ROBOTICS HUNGÁRIA Kft shall have the right to cancel or terminate contract. Following such cancellation or termination, any claims for damages against KUKA ROBOTICS HUNGÁRIA Kft shall be excluded. Article 3 Prices and terms of payment I In case place of performance is the premises of KUKA, packaging shall not be included in prices. If applicable, any VAT pursuant to effective law shall be added to prices. II Prices reflect the cost conditions valid on the date of making offer. If there is a change in cost factors, for example, wages pursuant to the relevant collective agreement or material costs change before the agreed delivery and service deadline, KUKA ROBOTICS HUNGÁRIA Kft shall have the right to increase its prices with the actual extra costs incurred if delivery or service is not performed within 4 months upon conclusion of contract. The same shall apply to the case if the performance of delivery or service is delayed due to a cause arising in customer s sphere of interest later than four months upon conclusion of contract. Any extra costs due to the increase in the legal amount of VAT shall be borne by customer. III Payments shall be made in EUR to the accounts of KUKA ROBOTICS HUNGÁRIA Kft designated in its letterhead. In case of settlement of any amounts with cheque or bill of exchange if KUKA ROBOTICS HUNGÁRIA Kft. has approved such way of payment previously in writing -, only the cashing or retirement thereof shall be deemed to be payment. IV Invoices shall always be issued on the date of the individual deliveries. Payment shall be due within 14 days upon the issue of invoice. There is no discount. KUKA ROBOTICS HUNGÁRIA Kft shall have the right to charge late interest exceeding the current interest rate of the European Central Bank by 8 per cent as of the 30th day following due date, as well as a compensation for recovery costs as set out by law. V In case of delayed payment by customer, KUKA ROBOTICS HUNGÁRIA Kft shall have the right to cancel Page: 1 / 5

2 or terminate contract, and take back any products purchased to safeguard its rights without prejudice to its other rights. KUKA ROBOTICS HUNGÁRIA Kft shall notify customer of such measure in advance and set a proportionate extended deadline for payment. In case of an instalment payment agreement and in case of delay of any instalment payment,, notice of dishonour, discontinuation of payment by customer or any actual deterioration in customer s property conditions endangering KUKA ROBOTICS HUNGÁRIA Kft s claims, KUKA ROBOTICS HUNGÁRIA Kft shall have the right to claim full arrears in contractual price immediately. In particular, dissolution, bankruptcy or liquidation procedure is induced against the customer, or the customer becomes otherwise insolvent and the customer does not provide appropriate collateral; proof of actual deterioration of property conditions may be customer s actual insolvency or the threat thereof, customer s indebtedness, any measures of execution started by its creditors, submission of any bad cheques, notices of dishonour, confirmation with the effect of oath if it may be applicable on the basis of the personal right of the customer -, non-payment of any due instalments or any information requested from banks or credit institutions concerning compliance with the requirement of due professional care. VI Customer shall only have the right of set-off if its counterclaims are confirmed in definitive judgement, if they are not debated or if they are acknowledged by KUKA ROBOTICS HUNGÁRIA Kft. Beyond this, Customer may only exercise its right of withholding if its counterclaims are based on the same contractual relation. VII If KUKA ROBOTICS HUNGÁRIA Kft has undertaken to instal or assemble purchased product, the provisions in section II, Article 7 herein shall apply. Article 4 Delivery, term of delivery and service I Place of performance: 2335 Taksony, Fő út 140, 5525 Füzesgyarmat, hrsz. 210/17 II KUKA ROBOTICS HUNGÁRIA Kft shall only meet delivery deadline if Customer has fulfilled its contractual obligations in due time. Such contractual obligations shall be deemed to be the documents, licenses, exemptions and other documents necessary for the performance of contract to be made available by customer and compliance with any preperformance obligations and other e.g. technical conditions. If customer fails to fulfil these obligations in due time, a proportionate extension of deadline shall become effective. III Deadline shall be deemed to be met: in case of consignments where there is no need to do installation or assembly if product is handed over to person performing delivery within deadline. If transportation is delayed out of buyer s fault, deadline shall be deemed to be met if it has been announced within deadline that product is ready for transportation. in case of consignments where installation and assembly shall be done if they are done by deadline. In case of any delay attributable to customer s fault, particularly to non-fulfilment of any obligations set forth in Article 7 herein, and the reporting in time of readiness for installation or assembly, deadline shall be deemed to be met. IV Customer s subsequent requests for modification or addition shall extend delivery deadline proportionately. This shall also apply to measures taken in wage dispute, in particular in case of strike, lockout and other workshop riots, mobilisation, war, revolt, declaration of an important workpiece to be faulty, delay in the delivery of important basic materials and parts, and in case of any events unforeseen by KUKA ROBOTICS HUNGÁRIA Kft at the time of concluding the contract, if such obstacles involve failure to meet deadline or contribute to it. KUKA ROBOTICS HUNGÁRIA Kft shall not be held liable for the above conditions even if they arise during an already occurring failure to meet deadline. V In case of failure to meet deadline due to another cause set forth in section III, customer shall have the right to claim delay penalty the amount of which for every completed week of delay shall be equivalent to 0.5% but maximum 2.5% of the part of delivery or service the appropriate installation of which proves to be impossible due to delivery beyond deadline. Additionally, the restriction of liability pursuant to Article 10 herein shall apply. This shall be without prejudice to customer s right to cancel or terminate contract after the ineffective passing of reasonable respite provided for KUKA ROBOTICS HUNGÁRIA Kft. VI In case of dispatch or delivery of goods is delayed at customer s request, warehouse costs equivalent to 0.5% of invoiced amount may be charged for every started month following the passing of one month after the announcement of readiness for delivery to customer. The maximum amount of warehouse costs shall be 5% unless the costs of warehousing are verifiably higher. Irrespective of this, customer shall pay for delivery without delay. VII Customer shall take over delivered goods even in case of minor complaints. VIII KUKA ROBOTICS HUNGÁRIA Kft shall be entitled to partial delivery if (a) such partial delivery may be used by customer within the scope of the purpose set forth in contract, (b) the delivery of the remainder of the partial delivery ordered is ensured, and (c) for customer, this does not incur any significant extra expenses or costs (unless KUKA ROBOTICS HUNGÁRIA Kft is ready to cover such costs). IX If customer does not accept the offered performance without having an adequate (especially a quality claim hindering the proper use) reason for that, KUKA ROBOTICS HUNGÁRIA Kft shall have the right to claim 20% of purchase price as frustration penalty without further certificate. KUKA ROBOTICS HUNGÁRIA Kft will reserve the right to enforce any actual, higher damage until it is proven that there has occurred only significantly lower damage or no damage at all. X KUKA ROBOTICS HUNGÁRIA Kft shall only have obligations if its own orders in connection with this legal relation are executed in due time. Article 5 I Transfer of risk of damage Risk shall be transferred to customer even in case of an agreement on cost-free delivery in the following cases: a) In case of delivery where consignment has been handed over to forwarding agent, at the moment of handing it over to the forwarding agent. Packaging shall be done according to trade customs. Goods shall be sent in lack of other agreement - at customer s costs and customer shall bear risk of damage. b) In case of delivery where the installation or assembly of product is KUKA ROBOTICS HUNGÁRIA Kft s responsibility in customer s workshop at the moment of Page: 2 / 5

3 handover-takeover. The handover-takeover shall occur directly after ready-for-service installation or assembly. In case of delay in takeover by the customer, risk of damage shall be transferred to customer at the moment of the completion of ready-forservice installation or assembly. c) If the sending, delivery or start and completion of installation or assembly of product is delayed at customer s request or due to customer s fault, at the moment of commencement of the delay. II Upon customer s request and at customer s cost, KUKA ROBOTICS HUNGÁRIA Kft is ready to take out any insurance requested by customer. Article 6 Reservation of proprietary rights I KUKA ROBOTICS HUNGÁRIA Kft will reserve its proprietary rights in the object of delivery until the performance of every payment and the fulfilment of any other claims against customer hereunder. Any processing, conversion or working of the object of delivery, the connection or assembling thereof with other objects by customer or any third party shall be made for KUKA ROBOTICS HUNGÁRIA Kft s benefit. KUKA ROBOTICS HUNGÁRIA Kft shall be entitled to co-owner s rights with respect to such objects to the extent of the value of object of delivery. II Customer shall insure object of delivery against any insurable damage at its own cost. By submitting contract, customer assigns its demand for insurance services equivalent to the extent of contractual fee to KUKA ROBOTICS HUNGÁRIA Kft. Customer shall announce this to insurer and notify KUKA ROBOTICS HUNGÁRIA Kft thereof. Reconveyance shall implicitly be deemed to have occurred upon the performance of full payment and the meeting of any claims arising hereunder. III Customer shall have no right to pledge or assign object of delivery as security. Customer shall immediately report seizure, confiscation or endangering of property by any third party to KUKA ROBOTICS HUNGÁRIA Kft by sending the appropriate documents (e.g. seizure protocol). The costs of any intervention by KUKA ROBOTICS HUNGÁRIA Kft shall be borne by customer. IV If the law applicable to the object of delivery does not permit reservation of proprietary rights but permits the reservation of similar rights with respect to object of delivery, such similar rights shall prevail between customer and KUKA ROBOTICS HUNGÁRIA Kft. Customer shall contribute to any measures KUKA ROBOTICS HUNGÁRIA Kft wishes to take for the protection of its property and other security rights. KUKA ROBOTICS HUNGÁRIA Kft shall have the right to force customer to do this and fulfil the obligations set forth in Article 6 herein without any further warning through temporary measures or appropriate court measures. V. KUKA ROBOTICS HUNGÁRIA Kft. is entitled to have the reservation of its proprietary rights on the object of delivery and the person of the purchaser (customer) registered into the collateral registry or into the applicable register at any time, but until the payment of the whole purchase price at the latest. Article 7 Installation and assembly; customer s contribution I In case of any installation and assembly, customer undertakes the following obligations at its own cost: a) making the following available in due time (1) proper number of assistance staff, for example, experts or helps with proper tools; (2) all the earthwork, construction, support, scaffolding, plastering, painting and other auxiliary jobs not belonging to the professional field of activities together with any necessary construction materials ; (3) any items and materials necessary for assembly and commissioning, for example scaffolding material, wedges, pads, cement, plastering and packing material, lubricant, fuel, etc., and scaffolds, hoisting apparatus and other equipment; (4) driving energy and water including the necessary connections to the place of use, heating and general lighting; (5) at the place of assembly, assembly materials, tools, etc., suitable, dry and lockable rooms of proper size for the storage of object of delivery, proper working rooms and rooms for stay for assembling personnel including any medical facilities. Customer shall take the necessary measures to protect assembling personnel and KUKA ROBOTICS HUNGÁRIA Kft s property; (6) any protective clothing and security equipment necessary for the special conditions at the place of assembly and not applied in the activities of KUKA ROBOTICS HUNGÁRIA Kft. b) Prior to the start of assembly jobs, customer shall make available any necessary data concerning the location of any hidden electric lines, gas and water pipes or similar facilities as well as any necessary static data without any further request. c) Prior to the start of installation or assembly, the delivery parts necessary for the start of job shall be at the site, and every necessary preparatory jobs shall achieve the level of readiness that following the arrival of assembling personnel, the installation or assembly of structure can be started, and it can be completed without interruptions. d) If primarily at the place of assembly, there is a delay during the installation, assembly or commissioning of structure due to a cause not attributable to KUKA ROBOTICS HUNGÁRIA Kft but within customer s sphere of interest, the proportionate costs of stopping and any further necessary travel costs of assembling personnel shall be borne by customer. e) Customer shall certify the working hours of assembling personnel every week including every detail. Customer shall issue the certificate of the completion of installation or assembly of structure to assembling personnel without delay. f) KUKA ROBOTICS HUNGÁRIA Kft undertakes no liability for any work done by assembling personnel or any fulfilment partners provided by it if such work is not related to delivery or the installation or assembly of structure, or is not done upon customer s instruction. II If KUKA ROBOTICS HUNGÁRIA Kft undertakes the installation or assembly in return for special accounting, the following provisions shall apply in addition to the provisions in section I herein: a) Customer shall pay KUKA ROBOTICS HUNGÁRIA Kft the fees mutually agreed upon during the issue of contract for working hours, for any extra work, work done at night, on Sundays and holidays, for any work done on the weekly rest day (weekly rest period), or for supplement to be paid for shift work, or supplements to be paid for stnd-by-duty Page: 3 / 5

4 and on-call-duty, or for work done under hard conditions and for planning and supervision. With respect to the holidays set forth by law, the legal provisions valid at KUKA ROBOTICS HUNGÁRIA Kft s seat shall be applied. b) The following costs shall be reimbursed separately: (1) Travel costs, transportation costs of any hand tools and personal packages. (2) Compensation for working hours, days of rest and holidays. Article 8 Warranty I KUKA ROBOTICS HUNGÁRIA Kft shall provide the service undertaken in compliance with state-of-the-art technological standards at the time of the issue of contract and pursuant to any relevant legal regulations with utmost professional care. II Term of warranty shall be 12 months as of the transfer of risk of danger (Article 5 herein). III KUKA ROBOTICS HUNGÁRIA Kft shall at its own choice repair or deliver again any goods delivered in a faulty or deficient condition or repeat the provision of service. IV In case of goods which may be returned to KUKA ROBOTICS HUNGÁRIA Kft without any unreasonably high costs, defects shall be remedied at KUKA ROBOTICS HUNGÁRIA Kft s premises as given in Article 1 herein. Customer shall properly package goods and return them together with the appropriate fittings. V If the object is not in the place of proper use, any extra costs of repair shall be borne by customer including particularly any increased transportation and travel costs. VI In the course of remedying of defects, customer shall provide KUKA ROBOTICS HUNGÁRIA Kft with the time and opportunity for fair assessment. Should customer refuse to do so, KUKA ROBOTICS HUNGÁRIA Kft shall not be in delay in remedying the defect and shall be exempted from the warranty for such defect or inadequacy. VII In case of an emergency representing a risk for operational safety, of which KUKA ROBOTICS HUNGÁRIA Kft shall be notified immediately, or with KUKA ROBOTICS HUNGÁRIA Kft s prior written consent, customer shall have the right to remedy defect itself or cause it to be remedied by a third party, and claim the proportionate reimbursement of its costs from KUKA ROBOTICS HUNGÁRIA Kft. VIII Of the repair costs of any defective or deficiently delivered product or deficient service or any direct costs incurred in the course of repeated delivery, KUKA ROBOTICS HUNGÁRIA Kft shall bear the costs of replacement spare parts including the delivery, removal and installation thereof and the costs of the delegation of any necessary personnel. IX Any further claim for damages on the part of customer against KUKA ROBOTICS HUNGÁRIA Kft or the fulfilment partners thereof shall be excluded. Particularly excluded is indemnification for such damage that is not done on the object of delivery itself. This shall not apply to liability for any wilful acts. X If KUKA ROBOTICS HUNGÁRIA Kft takes action upon the report of some defect without customer verifying the existence thereof, KUKA ROBOTICS HUNGÁRIA Kft shall have the right to request the reimbursement of its expenses. XI. The warranty defined in the present Art. 8 shall not affect the other rights of the customer arising from inadequate performance. Article 9 Exclusion of warranty and liability for inadequate performance I Upon dicovery of the defect, customer shall notify KUKA ROBOTICS HUNGÁRIA Kft of the defective or deficient nature of goods without delay. Otherwise, any claim for inadequate performance is excluded. II KUKA ROBOTICS HUNGÁRIA Kft excludes liability for any defects due to improper use, modifications or interventions made on product, or faulty assembly, repair or maintenance by customer. This shall also apply in the case if customer or any third party uses any fittings not complying with the instructions given by KUKA ROBOTICS HUNGÁRIA Kft or any third parties. The above shall not apply in the case when customer can verify by defect report that the dafect cannot be due to the above effects. III KUKA ROBOTICS HUNGÁRIA Kft will not undertake any liabilty for used products. KUKA ROBOTICS HUNGÁRIA Kft s liability for damages and cost reimbursement related to breach of contract caused wilfully, or impairing human life, physical well-being or health shall not be affected by the provisions of the present General Contractual Terms and Conditions. IV Customer s claim for defect remedying is excluded in the case if defect cannot be reproduced or may not be detected on the basis of machine-produced items. Article 10 Liability I KUKA ROBOTICS HUNGÁRIA Kft shall not be held liable (a) in case of the simple carelessness of its organisational units, legal representatives, employees or other fulfilment partners, (b) for the gross neglect of its employees not in leadership positions or any assistants involved in implementation unless this involves the violation of any material obligations set forth in contract. Material obligations set forth in contract include delivery and installation in due time and fully, the obligation of providing advice, protection and support the purpose of which is to make it possible for customer to put object of delivery to proper use, protect customer s personnel or any third persons from physical injuries, protect the lives thereof or protect customer s property from substantial damage. This provision shall not apply for such breach of contract, for which the liability cannot be validly ecluded or limited on the basis of the Hungarian Civil Code (especially Art. 6:152. or 6:557. thereof). II Any indemnification for violation of any material contractual obligations shall be restricted to damages foreseeable at the time of contract conclusion and typically occurring and in this scope, any claims for damages shall become void within 12 months. Damage caused wilfully or to life, body or health shall be exempted from this provision. III If under legal base, KUKA ROBOTICS HUNGÁRIA Kft shall be held liable for damages, such liability shall be restricted to damage foreseen by KUKA ROBOTICS HUNGÁRIA Kft upon conclusion of contract as possible consequences of breach of contract or to damage that should have been foreseen taking into account any known circumstances or any circumstances KUKA ROBOTICS HUNGÁRIA Kft should have known by applying due professional care, and which fall within the competence of KUKA ROBOTICS HUNGÁRIA Kft. Otherwise, KUKA Page: 4 / 5

5 ROBOTICS HUNGÁRIA Kft. shall only be liable for any indemnification for indirect or consequential damage, loss of profit due to the defect of the object of delivery, if the customer proves, that the occurance of such damage has been foreseeable at the time of contract conclusion as the consequence of breach of contract. IV Any claim for damages related to loss of stored data shall be excluded if the occurrence of damage could have been avoided in case of proper data protection except if KUKA ROBOTICS HUNGÁRIA Kft has failed to provide customer with proper information about the methods of data protection. V The restrictions set forth in sections I-III, Article 10 herein shall appropriately apply to customer s claims for cost reimbursement. standing nearest to the business objectives of such invalid provisions. Version: 2017/02 Article 11 Impossibility of performance Amendment of contract I If it is impossible for KUKA ROBOTICS HUNGÁRIA Kft or customer to fulfil its obligations of delivery or service, general legal principles shall apply to them as follows: If impossibility of performance is attributable to KUKA ROBOTICS HUNGÁRIA Kft s fault, customer shall have the right to claim damages. However, such damages shall be restricted to 10% of the value of the part of delivery or service that was not possible to be properly installed due to such impossibility of performance. Any further claim for damages on customer s part shall be excluded. However, this shall not apply in the case if KUKA ROBOTICS HUNGÁRIA Kft is held liable on account of wilful conduct. This shall not affect customer s right of cancellation of contract. II If pursuant to the second sentence, section IV, Article 4 herein, the business importance or content of delivery or service is substantially modified or KUKA ROBOTICS HUNGÁRIA Kft s operation is materially affected by any unforseen events, contract shall be modified accordingly in compliance with the requirements of mutual trust and goodwill. If this cannot reasonably be expected due to business considerations, KUKA ROBOTICS HUNGÁRIA Kft shall have the right to cancel contract. If it wishes to enforce its right of cancellation, it shall notify customer thereof without delay upon assessment of the importance of event even in the case if formerly, the extension of term of delivery was agreed upon with customer. Article 12 Competent court. Governing law. I If customer shall not be deemed to be consumer, parties agree to submit any dispute arising directly or indirectly from this contractual relation to the exclusive jurisdiction of the competent court according to KUKA ROBOTICS HUNGÁRIA Kft s seat. KUKA ROBOTICS HUNGÁRIA Kft may also start legal action against customer at customer s seat. II Contractual relations shall be governed by Hungarian law with the exclusion of the UN Convention on the International Sale of Goods, 11 April, 1980 (Vienna Convention). Article 13 Partial invalidity The invalidity or becoming invalid of any provisions herein shall not affect the validity of other provisions. Parties shall replace such invalid provisions with other provisions Page: 5 / 5