Within this document ATS stands for ATS Applied Tech Systems.
1.1 The following terms and conditions of delivery and payment regulate the legal relationship between our customers/suppliers and us.
1.2 Deviating conditions, not explicitly acknowledged by us in writing, are not binding for us, even if we did not explicitly contradict.
1.3 Other agreements, amendments and subsidiary agreements require our written confirmation
2. Offer and conclusion of contract
Our offers are subject to change without notice. Any declaration of acceptance or any order shall be considered as awarded only if confirmed by us in writing. The same applies to additions, modifications or subsidiary agreements as well as a cancellation of this clause.
3. Prices and Payment
3.1 The prices are to be understood ex works excluding statutory domestic value added tax and excluding packaging. ATS shall select the type of packaging and may charge customer for packing.
3.2 Unless otherwise agreed invoices shall be paid within 14 days after billing date without any deduction.
3.3 Cost based work or accrued charges will be invoiced after 14 days, latest at the end of the month or after completion of the work.
3.4 Work contracts for software and hardware projects are payable as follows::
30% upon order-confirmation
60% after delivery resp. 10 days after notification on delivery
10% upon acceptance resp. 10 days after notification on readiness
We reserve the right to request from the customer the submission of an irrevocable and unlimited bank guarantee in the amount of the contract value upon acceptance of the order.
3.5 The prices are valid for 4 months after receipt of our order-confirmation. In the event that longer delivery-times are agreed and that after completion of the contract changes occur to the raw material-and consumable prices, to the wages and salaries, freights, public duties or other circumstances that may have a considerable impact to the calculation we are entitled to a reasonable price-increase.. A price increase of up to 5% may be affected without evidence of the underlying circumstances. In case the price increase exceeds 10% of the contract value and the customer intends not to execute the contract on basis of the increased price, he has to express his intention in writing within one week after receipt of our notification about the price increase. After a further period of two weeks he is entitled to withdraw from the contract by registered declaration, unless the delivery at the agreed price has been offered by us before.
3.6 If the customer exceeds payment delays he will automatically be in default. Notwithstanding the possibility of claiming higher actual damages, we may charge default interest at a rate of 8% (5% for end-users), above the base interest of the Deutsche Bundesbank.
3.7 We are under no obligation to accept bills of exchange. They will be accepted in any case. For presentation, protest, notification and return of the draft in case of dishonor we are not liable. In case of default we may claim our rights as mentioned in clause 3.5.
3.8 If installment payments are agreed, the specific rate has to be paid in advance until the 3rd working day of the specific payment period, unless another payment date has been agreed. If the customer delays more than one installment, the entire remaining balance will be due immediately. The same applies in case installment payments on a specific due date are agreed. Our right to charge interest for delayed payments remains unaffected even upon agreement of installment payments.
3.9 The customer may only offset undisputed or timely fixed receivables. A right of retention can be exercised only if the counterclaim is based on the same contract.
3.10 We reserve the right to assign our claims for payment to third parties. As long as the recipient of the assignment or we did not notify the assignment to the customer, all payments have to be effected to us.
3.11 If the customer fails to meet his payment obligations to a significant amount, if he stops payments or a draft or bill of exchange is not being redeemed, or if a serious change to the economic situation oft he customer is known, which might endanger our payment, we are entitled to demand advance payments or we have the right of retention on all outstanding deliveries.
3.12 For changes requested by the customer after the order is placed, we will charge any resulting additional costs.
3.13 Postponement(s) after placing the order, onsite waiting times etc. which are not caused by us, shall be borne by the customer and will be charged separately.
3.14 All costs of communication (E-Mail, Phone, Fax, Mobile, etc.) are on the account of the customer and will be charged separately.
4. Dispatch and Insurance
The dispatch is affected ex works resp. ex central warehouse for the account and risk of the customer. For all deliveries, a transport insurance will be effected for the account of the customer unless the customers takes the risk of transport expressly by written declaration. The seller is not responsible for any difficulties in transport whatsoever. The maturity of the purchase price is not being affected by delays in transport whatsoever.
5.1 The indicated delivery-times are not binding. The delivery-time shall be extended accordingly in case of unforeseen events as well as breakdowns, strikes and labor disputes of any kind for which we are not responsible and in case of regulatory measures etc. Any compensation is excluded to this extent.
5.2 In case of a delay in delivery on our account the customer is entitled to withdraw from the contract if a reasonable grace period granted to us has expired. He is entitled to ask for compensation for non-performance only if the damage is caused by intent or gross negligence
5.3 The right of partial or early delivery is basically reserved.
6. Transfer of risk
The risk passes to the customer, as soon as the consignment is handed over to the person executing the transport or has left the warehouse of the seller for dispatch. If by no fault of the seller the dispatch is not possible, the risk passes to the customer with the notification of readiness for dispatch.
7. Default of acceptance
7.1 If the customer refuses the acceptance of the object of purchase after the expiry of a reasonable extension of time or if he declares explicitly that he will not accept delivery, we shall be entitled to withdraw from the contract or claim compensation for non-performance
7.2 If the delay of acceptance lasts longer than one month, we are entitled to demand 3% o the order-value per month. The buyer however has the right to proof that these costs have not incurred respectively have incurred at a much lower level. In this case the buyer has to pay only for the proven lower costs.
7.3 We are entitled to claim damage for 25% of the order value in case of non performance, if the buyer fails to prove that no damage incurred at all or not for the amount of the damage fee. The right to claim higher damage if accordingly proven is expressly reserved to us.
7.4 Except in cases of default in taking delivery, we are entitled to withdraw from the contract if there is an objectively justifiable reason for it. One such reason will be deemed to exist, if the failure is due to force majeure or any other reason beyond our control.
8.1 We ensure that our products are free from manufacturing- and material defects. The warranty period is 12 months after date of transfer of risk.
8.2 If our operating and maintenance instructions are not followed, changes are made to the products, parts replaced, consumables used that do not correspond to the original specifictions,or products excessively used, the warranty is automatically eliminated.
8.3 The warranty does not apply to expendable parts.
8.4 Goods must be checked immediately upon receipt on defects, quality and short-deliveries. Claims shall be placed in writing within 8 days after receipt of the goods, specifying in detail the reason of the claim. Later defects have to be claimed within the same time after discovery in writing. Short supplies and visible damages have to be notified immediately to the transporter. The mentioned claims have to be submitted to us within the warranty period.
8.5 In case of a fault or defect, which includes the lack of a guaranteed property, we are liable and have to correct the defect free of charge within a reasonable period, either by repair or by replacement. In case of a rectification of the defect, we decide depending on the claim, whether the defect will be corrected by one of service technicians on site or in the factory. In the latter case the purchase has to transport the claimed goods at his cost to the manufacturer. Other warranty claims are excluded.
8.6 In the event that compensation fails, is omitted or delayed for reasons within our responsibility, we are liable in a way that the customer is entitled to withdraw from the contract.
8.7 Any further liability as regulated above, in particular liability for damages not to the product itself, is excluded. This also applies to consequential damage of any kind, in as much as we are not to be charged with intent or gross negligence, or the consequential damage risk of the defect is included in the quality warranty.
8.8 We are released from our warranty commitment if the purchase does not comply with his obligation to register his claim or if we are not given sufficient opportunity or a reasonable time limit to fulfill our warranty obligations.
8.9 For defects to goods, which we have procured from other suppliers, we are liable in a way, that we assign to the buyer all warranty claims we are entitled to launch against the manufacturer and/or supplier and that we are committed to give to the buyer all necessary information and records to pursue his claim. In the event that a prior judicial claim against the manufacturer/supplier is not successful or if there is an error on our side, paragraph 7 and 8 apply accordingly. A previous court settlement is not necessary, if the buyer is not a business man in terms of the Commercial Law (Handelsgesetzbuch).
8.10 The liability of our employees and contractors is also limited to intent and gross negligence.
9. Retention of Title
9.1 The goods remain our property until full payment of the invoice and all other existing claims against the buyer are settled.
9.2 The buyer is entitled to process the goods in the ordinary and usual course of business, to mix and to sell as long as he is not in default with his services. Pledges or transfer of securities shall not be permitted.
9.3 A processing of goods under security by the buyer under our title effects without incurring obligation to us. We are direct owners of the goods produced by processing or remodelling. In case of processing, mixing or blending of reserved goods with other goods not belonging to us, we shall own part of the new product in the ratio of the invoiced value of the goods delivered by us in accordance with §§ 947, 948 BGB.
9.4 The entitlements out of the resale or another legal claim relating to the secured products will be transferred to us as security by the buyer. If the secured products together with other items will be sold without having agreed a single price for the secured products, the purchase shall assign to us a part of the total claim, consisting of the invoice value of the reserved goods plus a surcharge of 10%. The same applies if the buyer sells the secured goods after he has processed blended or mixed them with other goods.
9.5 The buyer is authorized to collect claims from the resale, however, we reserve a right of withdrawal. He is obliged to give us all necessary information and documents to reserve the claims out of our assignment and to identify the debtors of the secured claims, especially to inform the debtors about the assignment upon our request. We are authorized to notify the debtor of the assignment on behalf o the buyer.
9.6 In case our assets at the time of fixing the contracts exceed the claims to be secured by more than 20% we shall release the security upon request of the buyer.
9.7 Will the goods be secured by a third party or will there be any other intervention that endangers our rights or our possibilities of disposal, the buyer must notify us immediately. If the fulfillment, collection or security of our claim will be endangered by negligence of the named duties or for example by bankruptcy or insolvency of the buyer , we are entitled to take back the goods under our custody at the risk and expense of the buyer until the complete fulfillment of our claims, even without withdrawing from the contract.
10. Place of performance and jurisdiction
Erfüllungsort für alle Verpflichtungen aus diesem Vertrag ist unser Sitz in Kassel. Soweit gesetzlich zulässig, ist Kassel ausschließlicher Gerichtsstand für alle sich aus dem Vertragsverhältnis unmittelbar oder mittelbar ergebenden Streitigkeiten.
11. Applicable Law
For these terms and conditions of business and all legal relations between seller and buyer the right of the Federal Republic of Germany applies. The applicability of the Uniform Law on the purchase of international goods and the UN purchasing law is excluded
12. Copyright and Licencing etc.
We reserve our property on drawings, sketches, cost estimates and other documents attached to our offers and order-confirmations. The customer may use them only for agreed purposes and may not reproduce them or hand them over to third parties without our prior consent. The documents and any duplication must be returned to us upon our request.
13. Installation and Initial Operation
13.1 Installation works are to be paid unless otherwise agreed in writing. The installation costs shall include travel expenses, daily expenses and the usual rates for labor, overtime, night work, Sunday and national holiday work, for work under difficult conditions as well as for planning and monitoring.
13.2 The costs for preparation-, waiting- and travel time will be charged separately. If the installation or initial operation is delayed through no fault of ours, the customer must bear all costs for the waiting time and other necessary trips.
13.3 The customer has to provide at his charge the necessary support staff with the appropriate number of necessary tools. Furthermore, the customer will provide sufficient suitable dry and lockable room for the storage of machine parts, equipment, materials, tools etc. He has to take measures to protect our property and our installation personnel with the same measures he protects his own property. If the nature of the customer’s site does require special protective clothing and equipment for the installation staff, he has to make this available.
13.4 Our staff and its agents are not authorized to perform work that is not to be done in fulfillment of our commitment to delivery and installation of the product or that is initiated by the customer or any third party without prior consultation with us. We are not liable for this work not within our scope of responsibility
13.5 If the installation is executed by the customer or a third party appointed by the customer, our applicable operating and assembly instructions have to be followed.
(Dated Juni 2012)
ATS Global B.V. – Global Headquarters
A. Hofmanweg 5a
2031 BH Haarlem
P.O. Box 4993, 2003 EZ Haarlem
+31 (0)23 – 751 12 00