These General Terms and Conditions of Sales (GTCS) apply to all sales of ATM goods. These conditions supersede Buyer`s General Conditions of Purchase included in the Buyer`s order and may be modified as indicated in ATM`s Special Conditions of Sales included in ATM`s Order Confirmation (CdO).
2.0 Buyer Order Acceptance by ATM
Buyer orders are not binding to ATM, unless such Buyer order is confirmed by a CdO. CdO includes complete specifications for equipment delivery, including Factory Acceptance Test (FAT),Site Acceptance Test (SAT) and installation conditions, if any. It also contains the conditions determining what constitutes Buyer acceptance. This may include, for example: equipment production rates, tolerances on critical dimensions, duration of the test as well as consistent production of "good" parts -parts within tolerances - over a pre-defined period of time, scrap percentages per defined period of time, operation temperature ranges, material specifications for the test, etc. The CdO will have a validity period of 15 days during which it is expected the Buyer to indicate his agreement by signing it. In case the Buyer does not sign the CdO within the specified time period, then the Buyer order will not be considered firm and ATM`s price and delivery may be revised by supplier.
3.0 Subject of the Sale
Only those items and equipment and machinery which are described in the CdO are the subject thereof; any other part of such equipment and machinery, even if it is necessary for working thereof, is outside the terms of the CdO and this GTCS.
4.0 Place of Delivery and method of transport
Unless otherwise indicated all sales are "Ex-works Incoterms 2010", suppliers` facilities. The choice of the most suitable method of transport shall be decided by the Buyer who shall be responsible for the consignment of the equipment to their respective site. Under no circumstances shall the vendor be liable for any missing, delayed or irregular deliveries nor shall the vendor be required to make any indemnity payment for any direct or indirect loss caused by failure to make delivery of the equipment to the Buyer site. If agreed upon in the CdO, ATM may arrange for shipment on behalf of the Buyer, who in all circumstances shall assume all risk of loss associated with the referenced shipment. In case the Buyer does not cause shipment to occur within 15 days after having accepted the machine as meeting or exceeding all specifications included in the CdO as well as subsequent modifications, if any, the Vendor may warehouse such equipment and shall be entitled to invoice warehousing fees including handling, insurance and any other expenses associated with the warehousing of such equipment.
5.1. Prices included in the CdO are ex-works Europe, unless otherwise specified and agreed upon in the CdO.
5.2 Prices are based on the equipment specifications included in the CdO and this GTCS and any specific conditions listed in the CdO;
5.3 Modifications to the scope of supply agreed upon between the parties in the CdO, if any, may result in a price change or delivery time adjustment.
6.0 Technical Modifications to the Specifications
Any technical modification to the scope of supply as a result of new or changes in Buyer requirements may result in a price change as well as possible delivery date change.
7.0 Delivery Date
The "delivery date" is defined as the date on which both parties agree, in writing, that the equipment meets or exceeds all specifications included in the CdO as well as subsequent modifications, if any (Factory Acceptance Test). ATM will deliver the equipment indicated in the CdO on or before the delivery date indicated in the CdO. For all contractual considerations the "delivery date" may be modified due to the following considerations:
7.1 Modification to the scope of supply agreed upon and signed by both parties,
7.3 Buyer delay in participation in the FAT provided ATM has provided the corresponding 5 days advance notice regarding the start date for it. Unless agreed upon by the parties, if the Buyer fails to arrive to the communicated start date for the FAT within 2 weeks of the target date, the FAT may be conducted without the Buyer participation. In this case, after ATM has documented the successful conduct of the FAT, the equipment shall be considered accepted for contract considerations, including payment terms.
7.4 A 3 weeks "time to cure" grace period for ATM to correct some issues associated with the FAT.
7.5 Buyer failure to open a L/C to ATM satisfaction within the specified period indicated in the payment terms
8.0 Order Cancellation
Once a Buyer accepted the Cdo, the Buyer may not cancel the order except for the following considerations:
8.1 Agreement by ATM, in writing with cancellation subject to the following terms: ATM upon receipt of such written notice shall stop work. The Buyer termination liability shall be limited to the following:
8.1.1 Payment for all Product units delivered to the Buyer and in transit plus Finished products in inventory, if any, prior to, and including the effective date of termination at unit prices applicable to the order;
8.1.2 Payment for all "work-in-process" based on the full price of the Product Units in process, if any, including products which were in process prior to receipt of notice of cancellation and that could not be completed within the date of termination. The Buyer may request ATM to complete and deliver all products included in work-in-process
8.1.3 Payment for the cost plus 10% of Special Raw Material and/or Purchased subassemblies in house or on order related to the manufacture of the Product Units;
8.1.4 Payment of an amount for any restocking charges and "bill-backs" , if any, received by ATM from outside vendors for components ordered for the manufacture of Product Units as per the Buyer forecasted schedule; and copy of Vendor invoice required.
8.1.5 Payment to ATM of a handing fee equal to two and a half percent (2.5%) of the cost of any inventory or Special Raw Material which ATM is able to cancel from its suppliers, or reapply to other ATM projects. ATM shall use its best efforts to minimize cancellation charges by returning inventory and material for credit, canceling material on order and applying material to other ATM projects, when possible, and minimizing all work-in-process and finished goods to support the final production schedule. Upon payment of the cancellation charges outlined above, all products, work-in-process, and components in house or on order (non-cancelable) shall be delivered to, and become the property of Buyer. In the event of cancellation, the total cancellation charges as determined by ATM, shall not exceed the extended total cost of the Product canceled.
8.3 Buyer is undergoing any bankruptcy procedures.
8.4 ATM is undergoing any bankruptcy procedures.
8.5 Buyer failure to open the corresponding L/C to ATM`s satisfaction within 2 months from CdO. Other cancellation terms as indicated in section 8.1 here above.
9.0 Design drawings and Software
All design drawing and software are the property of ATM and will not be furnished. ATM, however, will provide operating and maintenance manuals, as well as adequate training as indicated in the CdO. Training and technical support may be repeated at Buyer request in accordance with terms quoted in the CdO.
10.0 Standard payment terms
(unless differently specified in Sales Conditions (page 17th ):
10.1 50% non refundable down payment through Telegraphic Transfer at acceptance of CdO and against pro forma invoice.
10.2 50% through a Letter of Credit (L/C), irrevocable and confirmed by a First Class European Bank payable at sight against presentation of Shipping documents. All L/C Terms and Conditions need to be acceptable to ATM. All costs associated with such L/C including interest, duties and other will be the responsibility of the buyer. L/C to be opened and confirmed to ATM`s satisfaction within 30 days of CdO acceptance. Delays in the opening of the L/C may correspondingly delay the "delivery time" as indicated in section 7.5 above. Any price modifications as a result of clause 6.0 above may result in corresponding L/C modifications, which shall be made within 15 days from the written agreement for such modifications
10.3 Prices are exclusive of VAT, which shall be paid by Buyer at the time of application or at the time of shipment at the latest.
11.0 Risk of Loss - Title Transfer
11.1 Risk of loss to be transferred to Buyer at the time equipment and items are at Buyer`s disposal at ATM`s dock (ex-works), or as otherwise agreed upon pursuant to clause 7.0 "delivery date".
11.2 All costs associated with risk of loss protection to be borne by Buyer after shipment.
11.3 Title to be transferred at the time of shipment or upon meeting the terms of clause 7.0 "delivery date" here above.
11.4 Until the price is fully paid the goods shipped to a Buyer such Buyer will be unable to resell the machinery/equipment object of this agreement.
12.0 Care and Custody
Until the price is fully paid, the Buyer is responsible for risk connected with the care and custody of the goods sold, including cases of accident or Force Majeure (Acts of God). Specifically:
12.1 Buyer shall maintain the equipment in optimal operating conditions in accordance with ATM`s Maintenance Manual and will conduct such maintenance with high professional integrity. As deemed appropriate to ATM, it may inspect, or cause a third party to inspect the goods subject of this agreement and assess maintenance status at any time during the above defined period. Any deficiencies in maintenance shall be called to the Buyer`s attention and a 5 day time to cure shall be determined. ATM may, at its own determination, decide to conduct maintenance of such machinery/equipment or cause a third party to do it. Buyer to grant ATM access to the machinery as required, understanding that ATM will coordinate with Buyer to minimize interference with Buyer production programs. Costs associated with this activity to be borne by the Buyer.
12.2 Buyer shall operate the machinery/equipment in accordance with ATM`s Operations Manual and corresponding training, and ATM will expect high operational performance integrity by Buyer personnel. As deemed appropriate to ATM, it may inspect or cause a third party to inspect the equipment and assess operational use of the equipment during the above defined period. Any concerns in its operation shall be called to the Buyer attention and a 5 day time to cure shall be determined.
ATM warrants the good quality and construction of the machinery/equipment sold to the extent it is of its manufacture, committing itself, during the specified warranty period, to replace or repair without charge in as short a time as possible, those parts, which, due to poor quality of the material or workmanship may have failed, excluding those parts that are subject to normal wear and tear.
13.1 Product Warranty.
ATM warrants to Buyer that items assembled or manufactured by ATM will conform to the mutually agreed upon specifications and to be free from defects in Workman ship and material (except that which is furnished by the Buyer) for a period of 12 months after shipment by ATM from relevant facility. Notwithstanding the aforementioned, the following items have a 24 month warranty: Extruder screw and barrel, gear box, basic machine frame, mechanical frame of the mould carriage, mechanical frame of the blowing and neck calibration support. ATM obligation under this warranty is limited to replacing or repairing at its option without charge, any of said items to be returned to ATM`s factory, transportation charges prepaid, and which shall after examination be disclosed to ATM`s satisfaction to be thus defective. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND FOR ALL OTHER OBLIGATIONS OR LIABILITIES ON ATM`S PART. ATM neither assumes nor authorizes any other person to assume for ATM any other liability in connection with the sale of the said items. This warranty shall not apply to any of such products which shall have been repaired or altered except by ATM or which shall have been subject to misuse, negligence, or accident. A prior written authorization must be obtained from ATM before any items be returned to ATM pursuant to a warranty claim. ATM is not liable for incidental, consequential or special damage of any kind or for personal injury resulting directly or indirectly from the design, material, workmanship, operation or installation of the items being assembled under this agreement. The remedies set forth herein are exclusive, and the liability of ATM with respect to any contract or sale or anything done in connection therein, whether in contract, in tort, under any warranty, or otherwise, shall not, except as expressly provided herein, exceed the price of the product or part upon which such liability is based.
13.2 Returned Parts. The Buyer shall have the right to return to ATM any Product components which do not satisfy the product warranty requirements set forth in this agreement, The Buyer shall notify ATM promptly when it believes that it has received nonconforming units. ATM shall supply the Buyer promptly a return materials authorization (RMA) number. ATM shall supply an RMA if required, within twenty four (24) hours of Buyer`s request. In the event ATM wishes to inspect such nonconforming units at Buyer`s premises, it may, at the time it issues the RMA instruct the Buyer not to return the non-conforming units. The Buyer will honor this request and promptly segregate for safe-keeping all such non-conforming units. Site visit by ATM must take place within 48 hours. Upon ATM`s inspection, non-conforming units mutually agreed as not satisfying the warranty requirements of this agreement shall be returned to ATM. ATM will absorb the shipping costs of all non-conforming units returned by the Buyer. In the event the non-conforming unit is determined to have been returned in error, the Buyer will reimburse ATM for any previously incurred shipping costs, ATM shall provide the Buyer turnaround shipment on units mutually agreed as not satisfying the warranty requirements of this agreement within thirty (30) days upon their receipt at ATM. If such turnaround cannot be provided by ATM due to causes beyond the control of ATM, ATM shall document such instances and notify the Buyer promptly.
13.3 Whenever repairs and replacements have to be carried out in the place where the machine is installed, the traveling and hotel expenses for the ATM Milacron`s personnel shall be charged to the Buyer at the rates published for this purpose by the Seller.
14.0 Force Majeure
14.1 The contractual parties shall not be held liable for full or partial non-fulfillment of any of their obligations under this contract if such non-fulfillment:
(i) was caused by circumstances beyond their control,
(ii) arose after signing of this Contract, and
(iii) could not be foreseen or stopped, (hereinafter the "Force-Majeure Event").
Circumstances beyond the contractual parties control include, but are not limited to, fire, flood, military actions, strikes, revolutions, and government and state bodies actions and orders. Circumstances beyond the contractual parties` control do not, however, include default by contractual parties resulting from delays or default by their subcontractors, agents or other parties which they use in performing their obligations under this Contract.
14.2 The contractual party for which it became impossible to fulfill obligations under this Contract, shall notify in writing the other party within 5 days of a Force-Majeure Event. In addition, at the request of the other party, the notice shall include a document from the Chamber of Commerce or other independent body of the party`s country stating information on the Force-Majeure Event and its influence on the fulfillment of the party`s obligation.
14.3 The party for which it became impossible to fulfill its obligation under the present Contract because of a Force Majeure Event, will do its best to fulfill the terms of this Contract when possible or, if not possible, reimburse the other party for the non-fulfillment as soon as possible. Such party shall state the new date of the intended fulfillment of the Contract. Should such party fail to send the necessary notification to the other party, the latter party shall have the right to demand any compensation of eventual losses from the party in breach caused by the lack of such notification.
14.4 If there is a Force-Majeure Event, the time for fulfillment of the contractual obligations shall be extended for the period equal to that during which such circumstances and their consequences last.
14.5 Should the Delivery Date be postponed for longer than 6 months due to a Force-Majeure Event, the other party may terminate this Contract to the extent affected by the Force- Majeure Event.
15.0 Applicable law . The applicable law shall be the German Civil Code, Saarbrücken
This contract may be executed in various languages and in English, and one copy of each language version shall be for each party. In case of dispute, the English language version shall prevail.