General Terms and Conditions - Kuka Robotics

Geltungsbereich/ Scope:ROB-ROGeneral Terms and ConditionsSection 1. ApplicabilityIIIThese General Terms and Conditions (hereinafter referred toas the “GTC”) of KUKA Roboter GmbH apply to all contracts,also to ancillary work/services, advisory services, and toinformation provided, that KUKA Roboter GmbH enters into inits capacity as a seller or supplier.All sale and delivery transactions of KUKA Roboter GmbH, aswell as the provision of ancillary work/services, advisoryservices, and information, are governed exclusively by theseGTCs. Upon the placing of the order by the buyer, the orderingparty, or the customer (hereinafter referred to as the “OrderingParty”), the GTCs of KUKA Roboter GmbH are simultaneouslydeemed as having been acknowledged and as forming anintegral part of the contract. Any terms/conditions of theOrdering Party that are inconsistent with or that deviate fromthese GTCs are hereby expressly objected to. They onlybecome an integral part of the contract if KUKA RoboterGmbH expressly agrees to them in an individual case. TheGTCs of KUKA Roboter GmbH still apply even if KUKARoboter GmbH, knowing that the Ordering Party’sterms/conditions are inconsistent with or deviate from theseGTCs, performs the contract for the Ordering Party withoutreservation.III The GTCs of KUKA Roboter GmbH only apply tobusinesspersons (Section 14 of the German Civil Code(BGB)), legal entities under public law, or special public-lawfunds within the meaning of Section 310 (1) sent. 1 BGB.IVVThe GTCs of KUKA Roboter GmbH also apply to all futurecontracts that KUKA Roboter GmbH enters into in its capacityas a seller or supplier with the Ordering Party.The contract itself and any warranties, collateral agreements,modifications, and supplementations to this contract must be inwritten form (Schriftform) in order to be valid. The waiving ofthis written-form requirement may only be effected in writtenform. Neither the simplified electronic form nor the qualifiedelectronic form may be used as a substitute for the writtenform.Section 2. Concluding the Contract and Terms/Conditions ofthe ContractIIIIIIIVThe contracting parties are bound by their offer for two weeks.For determining the scope of the delivery and/or thework/services, the offer made by KUKA Roboter GmbH andthe order/contract confirmation issued by KUKA RoboterGmbH are decisive.KUKA Roboter GmbH reserves the right to modify the agreedto execution of its deliveries and work/services if this isrequired to ensure product safety or to comply with statutoryprovisions. KUKA Roboter GmbH reserves the right to makeall modifications that serve technical advancements and thatare beneficial to the Ordering Party, even after theorder/contract has been confirmed.KUKA Roboter GmbH unrestrictedly retains the right, on thebasis of its ownership and pursuant to copyright law, to exploitcost estimates, drawings, test programs, and other documents.Third parties may only be allowed access to such with KUKARoboter GmbH’s prior, written consent. Drawings and otherdocuments included with offers must be returned upon requestand without undue delay to KUKA Roboter GmbH if KUKARoboter GmbH is not awarded the contract or if a contract isterminated.Sentences 2 and 3 of the foregoing provision applyanalogously to the documents of the Ordering Party with theexception that access to the documents of the Ordering Partymay be granted to those third parties that KUKA RoboterGmbH engages to perform deliveries or work/services inconjunction with the contract of the Ordering Party.Section 3. Export ProvisionsIProducts of KUKA Roboter GmbH may be subject to exportrestrictions.IIIIIIVIf products to be delivered by KUKA Roboter GmbH areexported to a country outside the European Union, theOrdering Party must warrant in writing and prior to shipment,installation, or assembly that it will only use products of KUKARoboter GmbH in the civilian sphere and not in conjunctionwith nuclear technologies.KUKA Roboter GmbH reserves the right to carry out additionalexport controls. For the purposes of carrying out such securitycontrols, KUKA Roboter GmbH is entitled to disclose to thirdparties the names and addresses of customers, suppliers, andother persons involved in implementing the contract. KUKARoboter GmbH cannot warrant that the third parties contactedwill keep the data confidential.If any customer, supplier, or other person directly or indirectlyinvolved in implementing the contract is found on a German,European, or US list of sanctioned parties, then KUKA RoboterGmbH has the right to rescind (Rücktritt) or terminate(Kündigung) the contract. After the rescission or thetermination has been declared, all claims to damages againstKUKA Roboter GmbH are excluded.Section 4. Price and PaymentIIIAll prices offered and agreed are understood as free carrier(FCA) Augsburg, Germany (Incoterms 2010) excludingpackaging and plus German statutory turnover tax in effect atany given time, if chargeable.Prices are based on the cost situation at the time the contractis awarded. If cost factors, such as the applicable union wagesor the costs of materials, change before the agreed to deliverydate or the work/services performance date, then KUKARoboter GmbH may raise its prices by the amount of theactually incurred additional costs if the delivery or thework/services is not being performed within four months afterthe contract has been entered into. The same applies if thedelivery or the work/service is performed later than fourmonths after the contract is entered into for reasonsattributable to the Ordering Party. If German statutory turnovertax increases, the additional costs are borne by the OrderingParty.III KUKA Roboter GmbH’s debt claims are due no later than 14days following the date of the invoice. For determining thetimeliness of a payment, the date on which payment isreceived is decisive. If the Ordering Party is in default ofpayment, then KUKA Roboter GmbH charges the statutorydefault interest; the right to assert a claim for additional loss isreserved.IVVWithout prejudice to any other rights it is entitled to, KUKARoboter GmbH is entitled to rescind the contract and to takeback the thing sold to secure its rights if the Ordering Partydefaults on payment. KUKA Roboter GmbH must first notifythe Ordering Party of such measures and must grant it areasonable period of grace for payment. If payment ininstalments has been agreed, KUKA Roboter GmbH is entitledto demand immediate payment of the outstanding contractprice in cases where payment of a due instalment is in default,where a protest has been made on a bill of exchange, wherethe Ordering Party has ceased paying its debts, or where therehas been such a significant deterioration of the OrderingParty’s financial situation that the claims of KUKA RoboterGmbH are de facto in jeopardy. Proof of a significantdeterioration of the Ordering Party’s financial situation isdeemed to exist particularly but not exclusively in cases wherethe Ordering Party is already insolvent or overindebted oreither of these is imminent, where creditors of the OrderingParty have initiated compulsory execution measures(Zwangsvollstreckung) against the Ordering Party, wherepayment has been made with uncovered (bad) cheques,where a protest has been made on a bill of exchange, wherean affirmation in lieu of an oath has been made listing all of theassets of a debtor, where a due instalment has not been paid,or where a bank or an agency that provides information oncreditworthiness has provided information and has done soapplying the due care and diligence of a prudentbusinessperson.The Ordering Party is only entitled to rights of setoff, retention,and refusal to perform if its counterclaims have been judiciallyBereich:erstellt / geändert - compiled / edited sachlich geprüft / checked Freigegeben / released Version: V01M. Bissinger G. Möller U. Kisch Seite / page2012-07-04 2013-02-28 2013-04-17 -1/4-

Geltungsbereich/ Scope:ROB-ROGeneral Terms and ConditionsVIdetermined as final (non-appealable), are undisputed, or havebeen acknowledged by KUKA Roboter GmbH. In addition, theOrdering Party may only exercise a right of retention to theextent to which its counterclaim is based on the samecontractual relationship.If KUKA Roboter GmbH has taken over the installation or theassembly of the thing sold, then the terms of Section 8 (II)apply.Section 5. Delivery; Time of Delivery and Time of Performanceof Work/ServicesIIIIIIIVVVIThe place of performance is Augsburg, Germany.The dates and the time periods for delivery are only bindingonce they have been confirmed in writing by KUKA RoboterGmbH and the Ordering Party has provided KUKA RoboterGmbH in a timely manner with all information and documentsnecessary for implementing the contract and effecting deliveryand has paid any agreed advance payments as per thecontractual terms. Any agreed to time periods begin with thedate of the order/contract confirmation. Such time periods areextended accordingly if additional orders or enlargements oforders/contracts are made later.Subsequent requests made by the Ordering Party formodifications or supplementations cause the delivery time tobe extended by an appropriate amount of time. The sameapplies to measures taken pursuant to labour disputes,especially strikes, lockouts, or other operational disruptions,mobilizations, wars, uprisings, an important workpiecebecoming defective, delays in receiving important rawmaterials and parts, and any other events unforeseeable toKUKA Roboter GmbH if such hindrances cause or contributeto the non-compliance with a time period. The aforementionedmatters are still not attributable to KUKA Roboter GmbH evenif they occur during an already existent delay in complying witha time limit.If the Ordering Party is in default of accepting delivery of goodsor is in breach of any other duty to cooperate, then KUKARoboter GmbH is entitled, without prejudice to any of its otherrights, to store the products at the risk and at the expense ofthe Ordering Party. In the event of a storage by KUKA RoboterGmbH, the storage costs per expired week are 0.5% of the netpurchase price of the delivery objects being stored. Thestorage costs are limited to 5% of the net purchase priceunless higher costs are proven. KUKA Roboter GmbH is alsoentitled to rescind the contract and/or claim damages from theOrdering Party. Damages are determined at a fixed amount of15% of the agreed net purchase price unless the OrderingParty proves that the loss is less or that there has been no lossat all. Notwithstanding the fixed amount of damages, KUKARoboter GmbH is entitled to assert a claim for compensation ofthe loss actually suffered.KUKA Roboter GmbH is entitled to make partial deliveries ifthere is a justified reason for doing so and to a reasonableextent. KUKA Roboter GmbH should inform the Ordering Partyin a timely manner of any possible partial deliveries.The right to condition performance on one’s own obtaining ofsupplies in a correct form and in a timely matter is reserved.Section 6. Passing of RiskIIIIIIIVKUKA Roboter GmbH’s performance obligation is restricted tothe provision of the goods in a ready-for-shipment form. Thedelivery of possession of the goods is effected - in theabsence of an agreement to the contrary - ex FCA. TheOrdering Party is obligated to pick up the goods no later thanseven calendar days following receipt of notification that thegoods are ready-for-shipment or following receipt of theinvoice.A shipment of the goods is only made at the request, theexpense, and the risk of the Ordering Party. The choice ofwhich form of shipment lies with KUKA Roboter GmbH, suchchoice taking into account the interests of the Ordering Partyto a reasonable extent.Risk passes to the Ordering Party upon the ready-for-shipmentprovision of the goods and the notification of the readiness-forshipmentor the delivery of possession of the goods to theperson carrying out the shipment, however no later than thedeparture from the delivering facility/warehouse, in the case ofdrop shipping transactions no later than departure from thedelivering facility/warehouse of the subsupplier, and it does soeven if delivery is effected in partial deliveries. Sentence 1applies independent of whether further work/services havebeen agreed (e.g. work/services performed on the goods bythe manufacturer).KUKA Roboter GmbH is willing, at the request and theexpense of the Ordering Party, to take out any insurancecoverage demanded by the latter.Section 7. Retention of TitleIIIIIIIVVVIKUKA Roboter GmbH retains title to the delivery objects untilreceipt of all payments and fulfilment of all other claims againstthe Ordering Party in conjunction with the contract. Everyprocessing or treatment of the delivery objects and anycombining of them with foreign objects by the Ordering Partyor by third parties is done on behalf of KUKA Roboter GmbH.KUKA Roboter GmbH acquires joint ownership of the newlycreated objects proportionate to the value of the deliveryobject.The Ordering Party is obligated to insure, at its own expense,the delivery object against insurable loss. With the awarding ofthe contract, the Ordering Party assigns to KUKA RoboterGmbH any claims to insurance benefits as collateral security inthe amount of the contract price. It undertakes to notify theinsurer of this and to inform KUKA Roboter GmbH of it. Theassignment back is deemed as implicitly effected upon fullpayment and satisfaction of all other claims arising from thecontract.The Ordering Party may neither pledge the delivery objects nortransfer title to them by way of security(Sicherungsübereignung). The Ordering Party must notifyKUKA Roboter GmbH without undue delay of anyattachments/seizures, confiscations, or any other jeopardizingof ownership by third parties, and must do so by promptlysending copies of the documents concerned (e.g. the sheriff’srecord of the attachment/seizure). The costs of anyintervention by KUKA Roboter GmbH are borne by theOrdering Party.In the event that the Ordering Party sells the delivery objectbefore paying the full agreed price, the Ordering Party, uponthe awarding of the contract, assigns to KUKA Roboter GmbHits debt claims arising from such resale and does so assecurity in the amount of the contract price plus a 10% debtcollectionfee. This applies regardless of whether the OrderingParty sells the delivery objects to one or to several buyerstogether with other goods not belonging to KUKA RoboterGmbH, without or after processing them, or after integratingthem in another thing.KUKA Roboter GmbH will refrain from collecting on such debtclaims so long as the Ordering Party properly fulfils itspayment and other obligations. Upon request by KUKARoboter GmbH, the Ordering Party must provide the names ofthe debtors of the assigned debt claims, must at its ownexpense notify them of the assignment, and must keep theproceeds collected from the sale in safe custody, separatefrom its own assets, for KUKA Roboter GmbH.If the value of the existing collateral securities of KUKARoboter GmbH exceeds its debt claims by more than 15% intotal, then KUKA Roboter GmbH is willing, upon request by theOrdering Party, to release or transfer back, the choice of whichlies with KUKA Roboter GmbH, any collateral security inexcess of such debt claims.If the law that governs the place in which the delivery objectsare located does not allow for a retention of title but allows forthe retention of similar rights to the delivery objects, then thesesimilar rights are deemed as having been agreed between theOrdering Party and KUKA Roboter GmbH. The Ordering Partyis obligated to cooperate in any measures that KUKA RoboterGmbH wishes to take to protect its ownership or other similarsecurity rights in the delivery objects. The Ordering Party canbe compelled to do this and to comply with the obligations setBereich:erstellt / geändert - compiled / edited sachlich geprüft / checked Freigegeben / released Version: V01M. Bissinger G. Möller U. Kisch Seite / page2012-07-04 2013-02-28 2013-04-17 -2/4-

Geltungsbereich/ Scope:ROB-ROGeneral Terms and Conditionsout in Section 6 without further warning by way of an interiminjunction or equivalent judicial measures.Section 8. Installation and Assembly; Cooperation of theOrdering PartyIIIFor every kind of installation and assembly, the Ordering Partyis obligated to perform the following at its own expense:a) The timely provision of:(1) support teams such as the necessary skilled workersor temporary workers with the necessary tools and inthe required numbers;(2) operational power and water supplies including thenecessary connections to the place of use, heating andgeneral lighting;(3) sufficiently large, suitable, dry, and lockable rooms atthe assembly location for the storage of the deliveryobjects, assembly materials, tools, etc., and suitableworking rooms and communal areas, including sanitaryfacilities, for the assembly crew. The Ordering Partymust make all necessary arrangements for protectingthe assembly crew and the property of KUKA RoboterGmbH;(4) the protective clothing and protective gear required inthe particular circumstances of the assembly locationthat are not customary in KUKA Roboter GmbH’sbranch.b) Prior to commencing the assembly work, the Ordering Partymust unsolicitedly provide all of the required information onthe location of concealed electricity, gas, and water lines orsimilar facilities, including the statical information required.c) Prior to commencing installation or assembly work, thedelivery parts necessary for beginning the work must be onhand at the location and all of the necessary preparatorywork must be so far progressed that the installation or theassembly can begin directly upon the arrival of theassembly crew and be carried out without interruption.d) If the installation, assembly, or the putting into operation isdelayed due to the occurrence of events that - especially onthe plant site - are not the fault of KUKA Roboter GmbH butrather fall within the Ordering Party’s area of risk, then theOrdering Party must pay, in a reasonable amount, the costsof the waiting time and the travelling expenses of theassembly crew for additional trips.e) The Ordering Party must provide the assembly crew with acarefully prepared weekly verification of the hours worked.The Ordering Party is obligated to hand over to theassembly crew, without undue delay, a written verificationthat the installation or the assembly work has beencompleted.f) KUKA Roboter GmbH is not liable for the work of itsassembly crew or of other parties engaged by it to performits contractual obligations and for whom it, as the principal,is vicariously liable if such work is not associated with thedelivery or the installation or the assembly or if it is notoccasioned by the Ordering Party.If the installation or the assembly is being carried out by KUKARoboter GmbH on the basis of separate invoicing, then thefollowing provisions apply in addition to subsection (I):a) The Ordering Party must remunerate KUKA RoboterGmbH, at the rates agreed to at the time theorder/contract was awarded, for the hours worked and forextra pay for hours worked in excess of the statutoryworking hours permitted (Mehrarbeit), for work at night,on Sundays, and on public holidays, for work inaggravated circumstances, and for planning andmonitoring. Decisive for determining the statutory publicholidays are the laws in effect at the location of theregistered office of KUKA Roboter GmbH.b) The following costs must be remunerated separately:(1) Travelling expenses; costs of transporting the toolsand personal luggage.(2) Field allowance for the hours worked and for work-freedays and public holidays.Section 9. WarrantyIIIIIIIVVVIVIIVIIIThe warranty period is 12 months commencing with thepassing of risk (Section 5) of the goods.For defective goods/services delivered by KUKA RoboterGmbH, KUKA Roboter GmbH must subsequently remedy thedefect, deliver new goods, or perform [work/service] again, thechoice of which lies with KUKA Roboter GmbH.For goods the sending of which to KUKA Roboter GmbH is tobe effected without a disproportionate amount of expenditure,the remedying of the defect takes place at the registered officeof KUKA Roboter GmbH. The Ordering Party must pack thegoods properly and deliver them with the required accessories.If the goods are not located at the contractual place of use,then the Ordering Party must pay the additional amount for thesubsequent remedying. This especially refers to highertransportation or travelling costs.The Ordering Party must allow KUKA Roboter GmbH the timeand opportunity justly and reasonably required to remedy thedefect. If it refuses to do so, then KUKA Roboter GmbH isreleased from its liability to remedy the defect.Only in urgent cases where the preservation of the businessoperations is in jeopardy - of which KUKA Roboter GmbH mustbe immediately informed - or where KUKA Roboter GmbH hasgiven its prior, written consent does the Ordering Party havethe right to remedy the defect itself or to have it remedied by athird party and to demand from KUKA Roboter GmbH theappropriate reimbursement of its costs.Of the direct costs of subsequently remedying defectivedelivered parts or defective work/services, KUKA RoboterGmbH bears the costs of the replacement part includingshipment, appropriate costs of dismounting and mounting, andany costs incurred by it for sending the necessary personnel.In such cases, KUKA Roboter GmbH acquires ownership ofthe removed parts.All other claims of the Ordering Party against KUKA RoboterGmbH and the parties engaged by KUKA Roboter GmbH toperform its contractual obligations and for whom it, as theprincipal, is vicariously liable are excluded, especiallyclaims for compensation for damage not occurring to thedelivery object itself. This does not apply to liability arising fromacts of intention or gross negligence.Section 10. Exclusion of WarrantyIIIIIIIVThe Ordering Party must inform KUKA Roboter GmbH ofdefects in writing and without undue delay after receipt ofdelivery of the goods. Latent defects must be reported inwriting by the Ordering Party to KUKA Roboter GmbH withoutundue delay after the discovery of them. Otherwise allwarranty claims whatsoever are precluded.KUKA Roboter GmbH’s warranty does not cover damagecaused by improper usage of, alterations to, or tampering withthe goods or by faulty assembly, repair, or maintenance by theOrdering Party or third parties. The same applies if theOrdering Party or a third party uses accessories that do notconform to the standards of KUKA Roboter GmbH or of thirdparties. That stated above does not apply if the Ordering Partycan prove in connection with the error message that theactions described above were not the cause of the error.There is no warranty on used goods.KUKA Roboter GmbH’s obligation to compensate for loss orexpenses ensuing from a fatal injury, personal injury, or aninjury to a person’s health and for grossly negligent breachesof obligations pursuant to the provisions of these GeneralTerms of Sale and Delivery remains in effect.Section 11. LiabilityIKUKA Roboter GmbH is not liable for acts of ordinarynegligence on the part of its executive bodies, legalrepresentatives, hired employees, or other parties engaged byKUKA Roboter GmbH to perform its contractual obligationsand for whom it, as the principal, is vicariously liable if abreach of a fundamental contractual obligation is not involved.Fundamental contractual obligations are the obligations todeliver and install on time and free of defects, and theobligations to provide advice, to protect, and to exercise properBereich:erstellt / geändert - compiled / edited sachlich geprüft / checked Freigegeben / released Version: V01M. Bissinger G. Möller U. Kisch Seite / page2012-07-04 2013-02-28 2013-04-17 -3/4-

Geltungsbereich/ Scope:ROB-ROGeneral Terms and ConditionsIIIIIIVVcare [over something/someone in one’s custody] that enablethe Ordering Party to use the delivery objects in conformitywith the contract or whose aim is to protect the life or limb ofthe Ordering Party’s employees, or third parties, or theproperty of the Ordering Party from serious harm. Liabilityimposed by the German Product Liability Act (ProdHaftG),liability for loss ensuing from a fatal injury, personal injury, oran injury to a person’s health, and liability for intentional actsremain unaffected by this.Damages for a breach of a fundamental contractual obligationare limited to the loss that is foreseeable and that typicallyoccurs unless it involves intention or gross negligence andunless there is liability for loss ensuing from a fatal injury,personal injury, or an injury to a person’s health or there isliability for assumed guarantees. Such claims for damageshave a limitation period of 12 months.Provided that there is a legally valid basis for a claim fordamages against KUKA Roboter GmbH, such liability is limitedto the loss that KUKA Roboter GmbH, at the time the contractwas entered into, envisaged as being a possible consequenceof a contractual breach or that it should have envisaged takinginto account the facts/circumstances known to it or that shouldhave been known to it when exercising the ordinary duty ofcare common to business dealings. In addition, indirect lossand consequential loss resulting from a defective deliveryobject are only recoverable in damages if such loss cantypically be expected to occur when the delivery object is usedin conformity with the provisions applicable to it.Damages for the loss of stored data are excluded if such losswould not have occurred had the data been properly backedup; unless KUKA Roboter GmbH failed to properly instruct theOrdering Party on backing up the data.For claims of the Ordering Party for compensation forexpenses, the restrictions set out above in Section 10 (I) to (III)apply analogously.Section 12. Impossibility; Revising the ContractIIIIf KUKA Roboter GmbH’s or the Ordering Party’s obligations todeliver or perform work/services become impossible, then thegeneral principles of the law apply with the followingconditions:If the impossibility is attributable to fault on the part of KUKARoboter GmbH, then the Ordering Party is entitled to claimdamages. Such damages, however, are limited to 10% of thevalue of that part of the delivery or that part of thework/services that on account of the impossibility cannotusefully be put into operation. The Ordering Party has nofurther claims for damages. This does not apply if KUKARoboter GmbH’s liability arises from an intentional act orgross negligence. The Ordering Party’s right to rescind thecontract is unaffected.If unforeseen events within the meaning of Section 4 (IV)sentence 2 substantially alter the commercial significance orthe content of the delivery or the work/services or have asubstantial impact on the operations of KUKA Roboter GmbH,then the contract must be revised appropriately as long as it isequitable to do so. If this is commercially untenable, thenKUKA Roboter GmbH has the right to rescind the contract. If itwishes to exercise this right of rescission, then it must informthe Ordering Party of this without undue delay after becomingaware of the import of the event, and must do so even if anextension of the delivery time has already been agreed withthe Ordering Party.IIIThe contract is governed exclusively by the law of the FederalRepublic of Germany under exclusion of the UN Conventionon Contracts for the International Sale of Goods as amendedon 11 April 1980 (CISG).Section 14. Anti-Corruption ClauseEach of the parties declares its commitment to a corruption-freebusiness community. They undertake to refrain from any kind ofcorrupt conduct or other criminal practices and to take allnecessary measures to prevent such.Section 15. Severability ClauseThe present or future invalidity of any single provision of thesegeneral terms/conditions of business does not affect the validityof the remaining provisions. Invalid provisions must be replacedwith such valid provisions that resemble as closely as possiblethe strived for commercial intent of the invalid provision.As of 05/2012Section 13. Place of Performance, Place of Jurisdiction;Applicable LawIIIThe place of performance is Augsburg, Germany.The exclusive place of jurisdiction for all disputes arisingindirectly or directly from this contractual relationship isAugsburg, Germany provided that the Ordering Party is abusinessperson as understood by the German CommercialCode (HGB). KUKA Roboter GmbH is also entitled to sue theOrdering Party in the jurisdiction in which the Ordering Party isdomiciled.Bereich:erstellt / geändert - compiled / edited sachlich geprüft / checked Freigegeben / released Version: V01M. Bissinger G. Möller U. Kisch Seite / page2012-07-04 2013-02-28 2013-04-17 -4/4-