Terms and Conditions of Purchase of WORK Microwave GmbH (“WM”), dated 01 January 2023
a) WM Terms and Conditions of Purchase apply exclusively; WM does not acknowledge any terms of the Supplier that conflict with or deviate from WM Terms and Conditions of Purchase unless WM has expressly agreed in writing to their application. Even if WM should perform a down-payment, accept a delivery make a payment against a delivery, this cannot be construed as an acceptance of any business terms that conflict with or deviate from the present WM terms and conditions.
b) Any agreements between the Supplier and WM must be made in writing. Agreements that are concluded by e-mail meet the above requirement for the written form. Agreements made verbally in any kind, including any subsequent alterations or additions, are binding only if WM confirm the agreement in writing.
2. Quotations and Quotation Documents
a) The Supplier is obliged to accept the order within 10 working days in writing. In the absence of acceptance, WM purchase order loses all validity. Order releases under blanket purchase orders become binding if the Supplier does not object within 5 working days of receipt.
b) Unless expressly agreed otherwise, quotations and cost estimates are binding and free of charge. Unless otherwise agreed in the individual case, WM shall accept no costs and pay no remuneration for visits, planning and other preparatory services provided by the Supplier in connection with the submission of quotations.
c) WM reserves all rights of title and copyright to illustrations, drawings, calculations and other documents that WM has forwarded to the Supplier together with the WM order. These documents may be made accessible to third parties only with WM express written consent. They must be used in accordance with WM order. Such documents must be returned to WM without delay on receipt of WM written request. Unless the Supplier accepts the order within the period specified in Article 2 a), the documents must be returned to WM without delay. They must be kept secret from third parties. Furthermore, the Supplier is obliged to give WM written confirmation without delay that documents provided have been deleted or destroyed.
3. Delivery, Force Majeure
a) Agreed delivery dates and delivery periods are binding. The timeliness of delivery is determined by the time of reception at WM notified delivery point, or time of acceptance for work performed. If goods are delivered earlier than agreed, WM reserves the right to send back the goods at the Supplier’s expense. If WM does not return goods delivered early, WM may take them into stock at the cost and risk of the Supplier until the agreed delivery date.
b) If a delay in delivery or performance is recognisable, or if circumstances occur that indicate that the stipulated delivery period or agreed delivery date cannot be adhered to, WM must be notified in writing immediately of the reasons for and the probable duration of the delay. This does not affect WM right to withdraw from the contract or to claim damages as appropriate.
c) If the Supplier is in default, WM may require payment of a contractual penalty of 5% of the order value for each week commenced, however, a maximum of 20% of the total order value. WM may demand the contractual penalty even if WM accept the delayed delivery without attaching any conditions.
d) If WM accept the delayed delivery or service without attaching any conditions, this does not constitute any waiver of the claims to compensation accruing to WM by reason of the delayed delivery or service.
e) WM accept partial deliveries only by express upfront agreement. In the event of agreed partial deliveries, the amount of the back order must be shown. In the event of excess deliveries that exceed usual commercial volumes, WM reserve the right to return the excess goods delivered at the expense of the Supplier.
f) The Supplier may only invoke the absence of necessary documents to be supplied by WM, if the Supplier has sent WM a written reminder regarding the documents but failed to receive them within a reasonable period of time.
g) Supplier shall provide WM separately with complete and adequate documentation about the Products, including handling and storage instructions, forwarding documents, all written data relating to relevant governmental regulations, such as data regarding the safe handling, storage, usage and disposal of the Products and, at WM request a statement that the Products conform with the requirements of the Agreement (a certificate of conformity, “CoC”).
h) If WM have informed the Supplier of the intended purpose of the deliveries or services, or if the intended purpose is evident to the Supplier even without express notification by WM, the Supplier is obliged to notify WM without delay if the deliveries or services of the Supplier are not suitable for this intended purpose.
i) The Supplier must notify WM without delay in writing of any changes in the composition of the materials processed or in the design or workmanship compared to deliveries and services of a similar nature provided up to that date. Changes of this kind require WM written consent. In the absence of such consent, deliveries and services by the Supplier are deemed to be defective.
j) In the event of Force Majeure, the contractual parties are released from the obligation to performance for the duration of the disturbance and to the extent of its effects. The contractual parties are obliged to provide the required information and justification without delay as far as reasonable and have to undertake best effort to mitigate the impact to the minimum level possible. WM is released wholly or partly from the obligation to accept the delivery or service ordered and is entitled to withdraw from the contract to this extent if the delivery or service ordered is no longer of any use to WM because of the delay caused by Force Majeure event, when giving consideration to commercial aspects.
4. Acceptance of Deliveries and Services, Defects
a) A goods-received incoming inspection takes place only in respect of obvious defects, transport damage, completeness and to identify the goods. WM shall notify any such defects within a reasonable period of time. WM reserve the right to perform a more extensive goods-received inspection. Moreover, WM shall notify any defects as soon as they are discovered in the case of normal business operations. To this extent, the Supplier waives the defence of delayed notification of defect, in particular hidden defects, which become apparent only after integration and/or testing of the delivered items in operational conditions.
b) The statutory rights in the event of defects are available to WM without restriction. WM has the right in each case to require the Supplier, at WM discretion, to eliminate the defects or deliver a new item. WM expressly reserve the right to claim compensation for damages, in particular damages in lieu of performance.
c) If WM incur cost due to the defective delivery of the contractual subject matter, including but not limited to, transport cost, travelling expenses, labour cost, material cost or cost for a goods-received inspection or analyses that go beyond the usual extent, the Supplier is obliged to cover these cost.
d) If the Supplier does not begin to eliminate the defect without delay after written WM demand for elimination of the defect, then, in urgent cases, in particular to avert acute dangers and/or to avoid disproportionately greater damage, WM has the right to eliminate the defect on its own behalf at the expense of the Supplier or have this done by a third party at the sole discretion of WM.
5. Passing of the Risk and Shipment
a) In the case of deliveries involving assembly, integration and/or testing, as well as for services delivered by the Supplier, the risk passes at the time of acceptance by WM or any party designated by WM; for other deliveries, the risk passes after reception and incoming inspection at WM notified reception point (Acceptance).
b) Unless otherwise agreed, goods shall be delivered duty paid (DDP), Incoterms 2020®. The items for delivery must be properly packaged and shipped according to European Packaging Directive 94/62/EC and The German Packaging Act (VerpackG).
If the price applies EXW, the goods must be shipped by the freight-forwarder WM has appointed. This also applies to general cargo, unless the Supplier delivers using its own vehicles.
WM reserves the right to issue routing orders. The Supplier must pay the extra costs incurred due to failure to comply with a shipping or packaging regulation or costs for a faster mode of transport necessary to meet a delivery date.
c) The advice notes, delivery notes and invoices for each delivery must always show WM purchase order number, item number and reference number. Deliveries made to WM contractual partners directly by the Supplier must be made in WM name. WM must be notified of such shipment on the date of shipment.
d) Part-deliveries and back orders must be described as such in the shipping documents. The Supplier has to bear the additional cost incurred for making part deliveries if such partial deliveries are not requested by WM. The Supplier is also liable for all cost that WM incurs due to the Supplier’s failure to comply with the aforesaid regulations or due to the Supplier using an incomplete or wrong address for the delivery.
6. Export Control
For all goods to be delivered and services to be provided, the Supplier must comply with the relevant applicable requirements of national and international export law, customs law and foreign-trade law. Unless the applicable foreign trade law requires WM or any third party and not the Supplier to apply for any necessary shipment or export permits, the Supplier must obtain these permits in due time.
The Supplier must provide WM as soon as possible, however, no later than 2 weeks before the delivery date, with all information and data in writing that WM requires in order to comply with the applicable foreign-trade law in the event of export, shipment and import and in the event of resale after re-export of goods and services, in particular for each good and for each service:
- the Export Control Classification Number (ECCN) according to the U.S. Commerce Control List (CCL), if the good is governed by the U.S. Export Administration Regulations;
- all applicable export-control classification numbers (if the good is not governed by any export control classification number, this must be rendered as “AL:N”);
- the statistical product reference number according to the current classification of foreign-trade statistics and the HS (Harmonized System) code;
- the country of origin (non-preferential origin) and,
- If WM so requests, supplier declarations on preferential origin (for European suppliers) or preference certificates (for non-European countries), (EXPORT CONTROL AND FOREIGN-TRADE DATA)
In the event of changes in origin, in the properties of the goods or services or in the applicable foreign-trade law, the Supplier must communicate the export-control and foreign-trade data as soon as possible, however, no later than 1 week before the delivery date and notify WM in writing. The Supplier has to cover all expenses and damages suffered by WM due to the absence of or the erroneous nature of export-control and foreign-trade data.
Performance of the contract by WM is always conditional on there being no obstacles to performance by reason of national or international foreign-trade law or embargos (and/or other sanctions).
One original invoice must be submitted for each order. They must show WM purchase-order number, item number and reference number. Value-added tax must always be shown separately.
8. Prices and Terms of Payment
a) The prices shown in the purchase order are binding.
b) The period for payment begins as soon as the delivery or service has been provided in full and the duly issued invoice has been received. However, the period for payment does not begin before the agreed delivery date.
c) Where the Supplier is obliged to provide test reports, quality documents, documentation or other records, the receipt of these documents is a precondition for the acceptance of the delivery of goods and/or services, as well as the elimination of existing defects.
d) Unless statutory provisions provide otherwise and/or no other term of payment has been agreed in writing, WM pays the selling price within 14 days with 3% discount or within 21 days with 2% discount or within 30 days net, counted from the date of delivery, provided the correct invoice has been received and acceptance of delivery has taken place. WM may deduct a discount also when setting off.
e) Place of performance for payments is the registered office/seat of WORK Microwave GmbH.
f) In no case, payments performed by WM can be construed as confirmation that deliveries or services are in conformity with the contract.
9. Supplier compliance with law and regulations
a) Compliance with laws and regulations
The Supplier undertakes to comply with all laws and regulations related to (the performance of) its obligations under the present agreement, including applicable laws and regulations relating to cybersecurity, employment and human rights, the environment, transport, storage and usage of hazardous materials, including REACH, RoHS and CE marking and quality, health, safety and environment of the country where any Products may be delivered, and applicable export and import control regulations.
If the deliveries contain substances as mentioned in article 4, paragraph 1 of Directive 2011/65/EU in conjunction with Annex II thereof, the Supplier shall provide information to WM regarding the substances involved, the location of these substances in the goods delivered and the quantity of these substances present in the deliveries prior to the execution of the Agreement. Furthermore, the Supplier will provide information concerning other hazardous substances present in the Products to WM at WM request.
c) ISO 9001 and ISO 14001
The Supplier shall maintain a certified ISO 9001 quality management system and an environmental management system which meets the requirements of the ISO 14001 or equivalent standard.
d) Data protection
The Supplier shall comply with any data protection regulation that applies to the performance of the Agreement and in particular with EU Regulation 2016/679 relating to the processing of personal data.
10. Right to audit
WM is entitled to perform, or have performed, an audit of
(a) Supplier’s facilities and premises where work in connection with the Agreement is performed,
(b) whether the goods ordered are capable of meeting the purchase agreement,
(c) documentation relating to a good’s conformity,
(d) the production and production-related processes in Supplier’s supply chain, to the extent they are related to goods ordered,
(e) Supplier’s environmental processes and
(f) the processing of WM personal data as a result of the purchase agreement,
(f) cyber security.
The Supplier shall make best efforts to make the audit effective and shall remedy any irregularities and non-compliances that the audit revealed without delay, free of charge and without any consequence to any pending delivery date.
11. Limitation Periods
a) Unless a longer period is provided by statute or contract, the limitation period for material and legal defects is 3 years from the date of passing of the risk. Claims for subsequent performance or compensation for damages or refund of wasted expenditure especially become time-barred after 3 years.
b) If the Supplier meets its subsequent-performance obligations by delivering replacements, the limitation period for the replacement goods delivered begins anew after their delivery unless the Supplier expressly and appropriately reserved the right, at the time of subsequent delivery, to make delivery only on goodwill grounds or in order to avoid disputes.
c) The limitation period is suspended if, and for as long as, WM are negotiating with the Supplier on the claim or about the circumstances giving rise to the claim. Suspension ends if either the Supplier notifies or WM notify any refusal to continue negotiations in writing. Limitation occurs at the earliest 3 months after the suspension has ended. The recommencement of negotiations regarding the elimination of the defects has the effect of suspending the limitation period anew. Otherwise the limitation period is suspended in the cases provided by statute.
12. Spare-Parts Provision and obsolescence notification
The Supplier is obliged, subject to reasonable terms and conditions, to deliver spare parts for the customary period of technical use, however, for at least 10 years from the date of the last delivery of the relevant delivery item. If the Supplier ceases to deliver spare parts after expiry of the aforementioned period, or ceases to deliver the relevant delivery item during this period (obsolescence), WM must be given the opportunity to place a last order or to receive the relevant manufacturing documents free of charge.
The Supplier must notify WM of EXPORT-CONTROL AND FOREIGN- TRADE DATA also for the spare parts within the periods specified in Paragraph 6. The Supplier pays all expenses and damages suffered by WM due to the absence or erroneous nature of EXPORT-CONTROL AND FOREIGN-TRADE DATA.
13. Product Liability
a) If the Supplier is responsible for damage caused by a product, the Supplier is obliged to indemnify WM against claims for damages brought by third parties on first demand. Where the Supplier is liable, the Supplier is also obliged to refund any expenses arising from or in connection with any recall action that WM needs to undertake. As far as possible and reasonable, WM shall notify the Supplier of the subject matter and extent of any recall actions to be undertaken and give the Supplier an opportunity to propose a more cost-effective solution.
b) The Supplier undertakes to maintain product-liability insurance with a lump-sum cover amount of €5 million per personal injury/property-damage claim. This does not affect any claims to damages that WM may have that exceed this amount.
14. Industrial Property Rights and Other Third-Party Rights
a) The Supplier is liable for ensuring that the delivery items are delivered free of rights of third parties and that no proprietary rights of third parties are infringed in connection with the delivery.
b) The Supplier shall indemnify WM against all claims brought against WM for breach of an industrial property right or other third-party rights and pays the costs of preserving the rights if these claims are based on a culpable breach of duty by the Supplier. WM shall notify the Supplier without delay in the event of a claim being brought.
15. Title to Customer-Supplied Items
a) WM retain title to the models, designs, manufacturing equipment, tools, gauging and testing equipment, materials supplied, drawings, factory-standard sheets, print copy and similar that WM have supplied. Any order-related manufacturing equipment and tools provided by the Supplier are made on WM behalf. The Supplier shall store these items with the care of a prudent business person free of charge and separately from other items in its possession, mark them as WM property and use them only for the purpose of providing deliveries and services to WM. The Supplier pays the costs for the care, maintenance and renewal of parts of manufacturing equipment, which were provided by or manufactured for WM. This manufacturing equipment may only be modified with WM prior written consent. WM may require the return of the manufacturing equipment if:
- this has been agreed in a tooling contract
- the Supplier becomes unable to supply the parts made with the manufacturing equipment,
- the Supplier suffers financial collapse, in particular if insolvency proceedings are instituted on its assets or
- an application for the opening of such proceedings has been made or
- the business relations have ended.
The Supplier is obliged to insure the tools belonging to WM, on request, for their new value at its own expense against damage by fire, water and theft. The Supplier already now assigns to WM all indemnity claims to damages arising from this insurance and WM accepts this assignment.
b) If the Supplier processes or transforms materials WM has provided, this work is done on WM behalf. WM will become the direct owner of the items thereby produced. If the materials WM has supplied are processed with other goods that do not belong to WM, WM acquire a co-ownership share in the new item in the proportion of the value of WM item (cost price plus statutory VAT) to the other items processed at the time of processing.
c) If the item supplied by WM is inseparably combined or mixed with other goods that do not belong to WM, WM acquire a co-ownership share in the new item equal to the proportion of the value of WM items (cost price plus statutory VAT) to the other items combined or mixed at the time of combining or processing. If combining or mixing occurs in a way that items not owned by WM are regarded as the principal item, it is deemed to have been agreed that the Supplier assigns a pro-rata share of title to WM. The Supplier keeps the sole title or shared title safe on WM behalf.
d) Where the value of security rights accruing to WM exceeds the selling price for all reserved-title goods still unpaid by more than 20%, WM is obliged, if the Supplier so requests, to release security rights at WM discretion.
e) In the event that the Supplier breaches the prohibition of unauthorised use, WM is entitled, without prejudice to other rights, to withdraw from the contract or terminate the contract and claim damages.
16. Preservation of Secrecy/Prohibition of Advertising
a) The Supplier is obliged to maintain secrecy about all information received, whether recorded in writing or given verbally or embodied in the objects given into the Supplier’s possession. The obligation to maintain secrecy continues even beyond completion of this contract and extinguishes only if, and to the extent to which, the manufacturing expertise contained in the information provided becomes generally known.
b) Any reference to WM business relations made by the Supplier for advertising purposes requires WM express consent.
c) Any subcontractors must be obliged to give the same undertakings.
17. Assignment of Receivables/Set-Off
a) The Supplier requires WM consent to assign accounts payable by WM.
b) The Supplier may only exercise set-off against undisputed and/or final and non-appealable claims.
18. Additional Set-off Possibilities
WM are entitled to set-off WM own accounts payable or those of companies affiliated to WM against receivables of the Supplier, independently of their due dates.
19. Place of Performance, Governing Law and Place of Jurisdiction, Miscellaneous
a) Place of performance for deliveries and services is the place of destination. Otherwise, place of performance is WM registered office (seat).
b) The law of the Federal Republic of Germany applies exclusively. The application of the UN Convention (Vienna Sales Convention) on contracts for the international sale of goods is excluded.
c) Place of jurisdiction is the registered office (seat) of WORK Microwave GmbH.
d) WM notify the Supplier of the storage of the Supplier’s personal data in accordance with the data protection regulation that applies to the performance of the Agreement and in particular with EU Regulation 2016/679 relating to the processing of personal data.
e) Any invalidity of individual provisions of these Terms and Conditions of Purchase does not affect the validity of the remaining provisions. The parties undertake in this event to replace the invalid provision by a valid provision that comes as close as possible to the economic purpose of the invalid provision.