Mobile Industrial Robots Standard Delivery Terms
The following terms and conditions of sale and supply of services (“Terms and Conditions”) shall apply to any sale of Products and supply of Services by Mobile Industrial Robots A/S or any of its Affiliates (hereinafter referred to as the “Supplier”) unless otherwise agreed in writing between Supplier and the purchaser of the Products and Services (hereinafter referred to as the “Buyer”).
Supplier and Buyer shall be known individually as “Party” and collectively as the “Parties”.
In these Terms and Conditions, capitalized terms will have the meanings set forth in Section 20 hereof unless inconsistent with the context. The headings in these Terms and Conditions are for convenience only and will not affect their construction or interpretation.
PART A – GENERAL
1. General
1.1 These Terms and Conditions shall apply to the exclusion of all other terms and conditions, including any terms or conditions contained in Buyer’s purchase order, confirmation of order or similar document, and whether or not such document has been accepted by Supplier.
1.2 No waiver, alteration or modification of these Terms and Conditions shall be binding upon Supplier unless made in writing and signed by a duly authorized representative of Supplier.
1.3 Buyer’s purchase order or acceptance of a quotation will be deemed to be an offer by Buyer to purchase Products and Services upon these Terms and Conditions. No purchase contract shall come into existence until a written order confirmation has been issued by Supplier or delivery has taken place.
1.4 Acceptance of delivery of the Products or commencement of the performance of the Services will be deemed conclusive evidence of Buyer’s acceptance of these Terms and Conditions, even in cases where no order confirmation has been issued by Supplier.
1.5 If the order confirmation deviates from Buyer’s purchase order, Buyer must inform Supplier of such deviation within four (4) days. If not, the order confirmation will apply.
2. Quotation
2.1 Any quotation of Supplier is valid for a period of thirty (30) days from its date (or such other period if specified in such quotation), provided Supplier has not previously withdrawn it.
3. Payment
3.1 Supplier may invoice Buyer for the Products at such time as set out in the order confirmation or at any time after delivery.
3.2 Upon Buyer’s credit insurance approval (currently obtained by Atradius) including sufficient credit limit, all payments are due thirty (30) days after date of invoice.
3.3 If credit insurance approval or bank warranty is not obtained, Supplier must receive payment in full prior to delivery unless otherwise stated in the written order confirmation.
3.4 All payments to be made by Buyer under the Purchase Contract must be made in full without any set-off, deduction, withholding or counterclaim or any present or future claims, taxes, duties, fees, deductions or withholdings of any nature.
3.5 Supplier may appropriate any payment made by Buyer to Supplier to such of the invoices for the Products and Services as Supplier thinks fit, despite any purported appropriation by Buyer.
3.6 If any sum payable under the Purchase Contract, or any other agreement between Buyer and Supplier, is not paid when due then, without prejudice to Supplier’s other rights under the Purchase Contract, Supplier will be entitled to suspend deliveries of the Products or performance of the Services until the outstanding amount has been received by Supplier from Buyer.
4. Confidentiality
4.1 Each Party will keep confidential any and all Confidential Information that it may acquire from the other Party and shall not use such Confidential Information for any purpose other than to perform its obligations under the Purchase Contract. Each Party will ensure that its officers and employees comply with the provisions of this Section 4. This secrecy clause also applies after the delivery of the fulfilment of the Purchase Contract.
4.2 The obligations on the recipient of the Confidential Information set out in Section 4.1 will not apply to any information which:
(i) is publicly available or becomes publicly available through no act or omission of the recipient; or
(ii) the recipient is required to disclose by order of a court of competent jurisdiction, but only to the extent stated in such order.
The burden of proof that the conditions as described in (i) and (ii) are fulfilled rests with the recipient.
5. Intellectual Property
5.1 Subject to the pre-existing rights of third parties, all Intellectual Property Rights pre-existing or arising under the Purchase Contract in any Products or arising out of the performance of any Services shall vest in and be the exclusive property of Mobile Industrial Robots A/S.
5.2 No right or licence is granted to Buyer in respect of the existing or future Intellectual Property Rights of Supplier, except the right to use the Products, or resell the Products, or use the Services in each case in Buyer’s ordinary course of business and,
5.3 Buyer will not without Supplier’s prior written consent allow any trademarks of Supplier or other words, brands, logos or distinctive business marks applied to the Products to be obliterated, obscured or omitted nor add any additional marks or words.
5.4 Buyer shall not cause or permit the reverse engineering, disassembly, or decompilation of the Products.
6. Force Majeure
6.1 In the event Supplier is rendered unable to carry out the whole or any part of its obligations under a Purchase Contract for any reason beyond the control of Supplier, including but not limited to decrees or restraints by government authorities, Act of God, major strikes, fire, war, riot, defective deliveries or lack of deliveries from suppliers or sub-suppliers caused by any of the circumstances mentioned above, and any other cause of such nature, then the performance of the obligation hereunder of Supplier shall be excused during the continuance of the inability so caused, but such inability shall as far as possible be remedied with all reasonable dispatch.
6.2 If the cause or causes which prohibit Supplier from performing its obligations under the Purchase Contract last for more than three (3) months, then either Party may terminate the Purchase Contract by giving notice of termination to the other Party. In such circumstances, neither Party shall be entitled to special, incidental and/or consequential damages or damages for loss of profits due to the termination.
7. Termination
7.1 Either Party may by notice in writing served on the other Party terminate the Purchase Contract immediately if that other Party:
(i) is in material breach of any of the terms of the Purchase Contract (including these Terms and Conditions) and, where the breach is capable of cure, the breaching Party fails to cure such breach within 30 days of written notice of such breach. Failure to pay any sums due to Supplier in accordance with the Purchase Contract constitutes a material breach of the terms of the Purchase Contract; or
(ii) is unable to pay its debt as they fall due or becomes bankrupt, goes into liquidation, whether compulsorily or voluntarily other than for the purpose of amalgamation or reconstruction, has a receiving or administration order made against him, or if any act is done or event occurs which (under applicable laws) has a similar effect to any of these acts or events.
7.2 Supplier may by notice in writing served on Buyer terminate the Purchase Contract immediately if:
(i) Buyer has a change in control, directly or indirectly, whether through the ownership of voting shares, by contract, or otherwise,
(ii) Buyer commences the manufacture of any products which are similar to or may compete with the Products.
7.3 The termination of the Purchase Contract howsoever arising is without prejudice to the rights, duties and liabilities of either Buyer or Supplier accrued prior to termination and the conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
7.4 Supplier will be entitled to suspend any deliveries or performance otherwise due to occur following service of a notice specifying a breach under Section 7.1 (i), or if Buyer is in breach or default under any other agreement between the Parties, until such breach or default is remedied or the Purchase Contract terminates, whichever occurs first.
7.5 In the event of termination of a Purchase Contract, Buyer shall not be entitled to special, incidental and/or consequential damages or damages for loss of profits due to the termination.
7.6 In the event the Buyer cancels a Purchase Contract or Purchase Order, such cancellation is subject to the following fees (“Cancellation Fee”):
(i) A 10% Cancellation Fee applies if an order is cancelled within four (4) weeks of delivery;
(ii) A 20% Cancellation Fee applies if an order is cancelled within two (2) weeks of delivery.
Notwithstanding the foregoing, a Purchase Contract or Purchase Order containing any form of customization is not subject to cancellation by Buyer, if Supplier has commenced production of the Products ordered by Buyer.
8. Exclusion and Limitation of Liability
8.1 OTHER THAN ANY LIABILITY OF SUPPLIER WHICH WOULD BE ILLEGAL FOR SUPPLIER TO EXCLUDE OR LIMIT OR TO ATTEMPT TO EXCLUDE OR LIMIT, AND WITHOUT PREJUDICE TO THE OTHER PROVISIONS OF THIS SECTION 8, SUPPLIER'S AGGREGATE LIABILITY AS DEFINED IN PART C UNDER EACH PURCHASE CONTRACT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT PAID BY BUYER TO SUPPLIER UNDER THAT PURCHASE CONTRACT.
8.2 EXCEPT AS PROVIDED IN SECTION, 8.1 SUPPLIER WILL BE UNDER NO LIABILITY, AS SUCH TERM IS DEFINED IN PART C HEREOF, AS TO BUYER WHATSOEVER IN RESPECT OF:
(i) LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF CONTRACTS, LOSS OF GOODWILL, LOSS OF ANTICIPATED EARNINGS OR SAVINGS; OR
(ii) LOSS OF USE OR DAMAGE OF ANY DATA OR EQUIPMENT, OPERATION OR OTHER TIME (WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL); OR
(iii) ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSS; OR
(iv) ANY OF THE PRODUCTS, OR THE MANUFACTURE OR SALE OR SUPPLY, OR FAILURE OR DELAY IN SUPPLY, OF THE PRODUCTS BY SUPPLIER OR ON THE PART OF SUPPLIER’S EMPLOYEES, AGENTS OR SUBCONTRACTORS; OR
(vi) ANY USE MADE OR RESALE BY BUYER OF ANY OF THE PRODUCTS, OR OF ANY PRODUCT INCORPORATING ANY OF THE PRODUCTS.
8.3 EXCEPT AS EXPRESSLY SET OUT IN THE PURCHASE CONTRACT, SUPPLIER HEREBY EXCLUDES TO THE FULLEST EXTENT PERMISSIBLE IN LAW, ALL CONDITIONS, WARRANTIES AND STIPULATIONS, EXPRESS (OTHER THAN THOSE SET OUT IN THE PURCHASE CONTRACT) OR IMPLIED, STATUTORY, CUSTOMARY OR OTHERWISE WHICH, BUT FOR SUCH EXCLUSION, WOULD OR MIGHT SUBSIST IN FAVOUR OF BUYER, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.4 EACH OF SUPPLIER’S EMPLOYEES, AGENTS AND SUBCONTRACTORS MAY RELY UPON AND ENFORCE THE EXCLUSIONS AND RESTRICTIONS OF LIABILITY IN THE PURCHASE CONTRACT IN THAT PERSON’S OWN NAME AND FOR THAT PERSON’S OWN BENEFIT, AS IF THE WORDS “ITS EMPLOYEES, AGENTS AND SUBCONTRACTORS FOLLOWED THE WORD SUPPLIER WHEREVER IT APPEARS IN THOSE SECTIONS SAVE FOR EACH REFERENCE IN SECTION 8.2(iv).
8.5 BUYER ACKNOWLEDGES THAT THE ABOVE PROVISIONS OF THIS SECTION 8 ARE REASONABLE AND REFLECTED IN THE PRICE WHICH WOULD BE HIGHER WITHOUT THOSE PROVISIONS, AND BUYER WILL ACCEPT SUCH RISK AND/OR INSURE ACCORDINGLY.
9. Product Liability
9.1 The rules under Danish law in force at any time will apply to product liability with the limitations of liability following from these Terms of Conditions.
9.2 Supplier may only be held liable for personal injury caused by a Product if it is proved that the injury is a consequence of failure or negligence on the part of Supplier or others for which Supplier is liable.
9.3 Supplier is not liable for any damage to real or personal property caused by a Product after delivery has taken place. Supplier is not liable for any damages to products produced by or stored with Buyer or to Buyer’s products of which a Product forms part.
9.4 Supplier is not liable for production and operating losses or any indirect losses or consequential damage, including payment of liquidated damages or payment of other penalties, due to Supplier’s delivery of a defective Product to Buyer unless Buyer is able to prove that Supplier has acted willfully or with gross negligence.
9.5 Buyer must indemnify, defend and hold harmless Supplier for any claim for damages in respect of product liability raised by a third party against Supplier if Supplier is not liable to Buyer under these Terms of Conditions.
10. Compliance with laws, export regulation, and Business Conduct.
10.1 Buyer agrees to comply with all applicable foreign trade control and export control laws and regulations as well as all economic and trade sanctions including but not limited to those imposed by the United States (“US”) or the European Union (“EU”) or any of its member states. Such regulation and programs shall include but not be limited to the Council Regulation (EC) No. 1334/2000, the US Export Administration Regulations, the International Traffic in Arms Regulations as well as Specially Designated Nationals and Blocked Persons programs (as those terms are defined in the United States Code of Federal Regulations). Buyer further agrees to obtain all necessary export licenses.
10.2 Buyer agrees to comply with all applicable laws and regulations, including the U.S. Foreign Corrupt Practices Act and similar anti-corruption laws of other countries.
10.3 Buyer agrees to cooperate with Supplier in any internal or government-initiated audits or investigations regarding compliance with applicable laws.
10.4 Buyer shall keep complete and accurate records of all matters relating to the performance of its duties hereunder, including without limitation records of its customers. Upon the reasonable request of Supplier, Buyer shall provide Supplier with copies of all such records, including without limitation, disclosure of identity of and price to the end user.
10.5 In the event Buyer fails to comply with this Section 10, Supplier shall have the right at its own expense to examine Buyer’s books and records that are pertinent to compliance with these Terms and Conditions or any Purchase Contract entered into pursuant hereto.
10.6 Buyer shall save, indemnify, defend and hold harmless Supplier from all losses, damages, expenses, liabilities, fines, penalties and all associated expenses arising out of or resulting from its violation of any of its obligations in this Section 10.
10.7 Supplier may terminate the Purchase Contract and recover from Buyer as a debt the amount of any loss or damage resulting from such a termination if Buyer is in breach of this Section 10.
11. Notices
11.1 Any notices given pursuant to a Purchase Contract shall be in writing and addressed to the receiving Party as set forth above, or at such other address or as shall be designated in writing by such Party. The notice shall be personally delivered or sent by mail or courier (return receipt requested). Alternately, it may be sent by e-mail in which case the sender bears the risk of error in transmission.
12. Assignment
12.1 Any Purchase Contract governed by these Terms and Conditions and all rights and obligations hereunder are personal to the Parties and neither Party may assign or attempt to assign any rights or obligations.
13. Miscellaneous
13.1 If any of the terms and conditions of the Purchase Contract (including these Terms and Conditions) are held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other terms and conditions and the remainder of the provisions of the Purchase Contract in question will not be affected thereby.
14. Law and Venue
14.1 Any and all disputes arising from these Terms and Conditions shall be governed by the laws of Denmark, with the exception of CISG, and without giving effect to any Danish rules on conflicts of laws that may require the application of laws of another jurisdiction.
14.2 All disputes arising out of or in connection with a purchase contract shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules. The place of arbitration shall be Copenhagen, Denmark. The arbitration shall be conducted in the English language.
PART B - PRODUCTS
15. Quantity and Description of the Products
15.1 The quantity and description of the Products will be as set out in Supplier’s order confirmation.
15.2 Supplier may make any changes to the Specification, design, materials or finishes of the Products which:
(i) are required to conform with any applicable safety or other statutory or regulatory requirements; or
(ii) do not materially affect their quality or performance.
16. Price of the Products
16.1 The price for the Products will be the amount and in the currency specified in the order confirmation and, unless otherwise expressly specified in such written order confirmation, based on delivery Ex-Works (INCOTERMS 2020), i.e. inclusive of domestic packaging but exclusive of any freight, VAT or other applicable sales tax or duty which will be added to the sum in question.
16.2 Prices are subject to correction for error.
17. Delivery of the Products
17.1 Unless otherwise expressly specified in the written order confirmation, delivery of the Products will be made Ex-Works (relevant Supplier’s place of business) as defined in INCOTERMS 2020.
17.2 Delivery of the Products will be made during Supplier’s usual business hours.
17.3 Supplier will use reasonable endeavours to deliver and perform each of Buyer’s orders for the Products within the time agreed, but the Parties agree that time of delivery will not be of the essence. If, despite those endeavours, Supplier is unable to fulfil any delivery on the specified date, Supplier will be deemed not to be in breach of the Purchase Contract, nor will Supplier have any liability to Buyer for any delay or failure in delivery except as set out in this condition. Any delay in delivery will not entitle Buyer to cancel the Purchase Contract unless and until Buyer has given thirty (30) days’ prior written notice (or such longer period specified in the written order confirmation) to Supplier requiring the delivery to be made, and Supplier has not fulfilled the delivery within that period.
17.4 Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for loading the Products.
17.5 If Buyer fails to take delivery of any of the Products when they are ready for delivery or to provide any instructions, documents, licences, or authorisations required to enable the Products to be delivered on time (except solely on account of Supplier’s default), the Products will be deemed to have been delivered on the due date and (without prejudice to its other rights) Supplier may:
(i) store or arrange for storage of the Products until actual delivery or sale in accordance with this Section and charge Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
(ii) following written notice to Buyer, sell any of the Products at the best price reasonably obtainable in the circumstances and charge Buyer for any shortfall below the price under the Purchase Contract, having taken into account any charges related to the sale.
18. Risk/Ownership
18.1 Title and risk of damage to or loss of the Products will pass to Buyer on delivery (or deemed delivery in accordance with Section 17).
19. Warranty of the Products
19.1 IN CASE OF DEFECTIVE PRODUCTS OR PACKAGING FAILURE (OTHER THAN A DESIGN MADE, FURNISHED OR SPECIFIED BY BUYER) SUPPLIER MAY AT ITS DISCRETION EITHER (i) REPAIR, OR (ii) REPLACE, SUCH PRODUCTS OR SPARE PARTS IN ACCORDANCE WITH THE TERMS OF SUPPLIER’S STANDARD WARRANTY.
19.2 Supplier’s obligation under Section 19.1 will not apply where Buyer has failed to notify Supplier of any defect or suspected defect without undue delay or in any event no later than fourteen (14) business days after delivery where the defect should be apparent on reasonable incoming goods inspection.
PART C - DEFINITIONS AND INTERPRETATION
20. Definitions and Interpretation
20.1 In these Terms and Conditions, the following expressions will have the assigned meanings unless inconsistent with the context:
“Confidential Information”
all information in respect of the business of Supplier including, without prejudice to the generality of the foregoing, any ideas, business methods, prices, business, financial, marketing, development, customer lists or details, information concerning Supplier’s relationships with actual or potential clients, customers or suppliers etc. and any other information which, if disclosed, will be liable to cause harm to Supplier.
“Purchase Contract”
any contract between Supplier and Buyer for the sale and purchase of the Products or supply of the Services.
“Delivery Point”
the place where delivery of the Products is to take place under Section 17.1.
“Products”
any Products which Supplier supplies to Buyer under a Purchase Contract.
“Intellectual Property Rights”
all intellectual and industrial property rights including but not limited to patents, know-how, registered trademarks, registered designs, utility models, unregistered design rights, unregistered trademarks, copyright, database rights, topography rights and any other rights in any invention, discovery or process etc.
“Liability”
Any liability whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise in respect of any loss or damage howsoever caused and including, without prejudice to the generality of the foregoing, any liability of Supplier arising under any indemnity.
“Services”
any services which Supplier provides to Buyer (including any part of them).
“Specification”
in relation to the Products, Supplier’s equipment design specification for the Products or the equivalent third-party specification for Products of third-party origin; or in relation to the Services, Supplier’s documents detailing the requirements of the Services.