PO Terms & Conditions

MAXDATA Standard Terms and Conditions for the Purchase of Goods and/or Services

DEFINITIONS

1.  In this document the following words shall have the following meanings:
   
   "Agreement" means these Terms and Conditions together with the terms of any specific Contract and/or applicable Purchase Order;
   
   "Supplier" means the organisation or person who supplies goods and/or services to Buyer;
   
   "Buyer" means MAXDATA Systeme GmbH of Elbestrasse 12-16 – D-45768 Marl, Germany;
   
    “Contract” means the specific written agreement, where one exists, between Buyer and Supplier which covers the goods and/or services included within the Purchase Order. In the absence of a specific Contract the Purchase Order – in conjunction with these Terms and Conditions – shall be treated as such;
   
   "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
   
   "Purchase Order" means the standard Buyer document which includes or is attached to a statement of work describing the goods and/or services to be provided by Supplier and which provides a maximum value payable by Buyer to Supplier;
   
   "Supplier Personnel" means any employee or contractor supplied by Supplier to provide services.
   
   
   
   GENERAL
   
   

2. These Terms and Conditions shall apply to all contracts for the supply of goods and/or services by Supplier pursuant to one or more Purchase Orders. In the case of any conflict with contradicting terms from the Supplier these Terms will govern and prevail.
   
   
3. Where it is agreed that Supplier shall supply goods and/or services, the goods and/or services to be supplied, the price payable and any other special terms agreed between the parties shall be set out in either the Contract or the Purchase Order. All Purchase Orders shall be subject to these Terms and Conditions.
   
   
4. Unless explicitly agreed by both parties in writing, in all cases the Contract shall take precedence over these Terms and Conditions which, in turn, shall take precedence over the Purchase Order.
   
   
5. No changes or variations to these Terms and Conditions or any Contract shall be effective unless explicitly agreed in writing by Buyer.
   
   
   
   PRICE AND PAYMENT
   
   
6. The price and any taxes and expenses for the goods and/or services shall be as specified in the Purchase Order.
   
   
7. An invoice shall be produced by Supplier to Buyer in accordance with the terms set out in the Contract. Buyer shall pay for the goods and/or services within the agreed payment terms following the date on which the goods and/or services are supplied or in which the invoice is received, whichever is the later. In the absence of specific agreement this shall be 60 calendar days. In no circumstances shall the time for payment be of the essence of the Agreement.
   
   
8. Buyer shall not be responsible for any expenses, charges or price other than those set out in the Purchase Order.
   
   
9. Once a purchase order has been agreed by Supplier the price for the goods and/or services shall be fixed. This does not apply to cases where Supplier will reduce the prices upon receipt of the relevant order. In these cases the reduced prices will be valid.
   
   
   
   WARRANTY
   
   
10. Supplier warrants and guarantees that all goods and materials supplied under this Agreement shall be free from any defects, patent or latent, in material and workmanship, conform to applicable specifications and drawings and, to the extent that detailed designs were not provided to Buyer, will be free from design defects and in every aspect suitable for the purposes intended by Buyer, as to which Supplier hereby acknowledges that it has had due notice. The approval by Buyer of any designs provided by Supplier shall not relieve Supplier of its obligations under any provision contained in this Clause.
    
    
11. The term of warranty shall be 24 months from delivery to Buyer unless explicitly stated elsewhere within the Contract.
    
    
12. Where there is a breach of the warranty contained in this Clause by Supplier, Buyer, without thereby waiving any rights or remedies otherwise provided by law and/or elsewhere in this Agreement, may require Supplier to repair or replace the defective goods at Supplier’s risk and expense or repay the price or part of the price relating to the defect to Buyer. The price in this instance shall be the original Purchase Order price plus all associated expenses (such as delivery charges) incurred by Buyer.
    
    
13. Except as noted below, items repaired or replaced shall be subject to these Terms and Conditions in the same manner as those originally delivered under this Agreement. If Supplier refuses or fails promptly to repair or replace items when requested under this provision, Buyer may itself, or through an agent or sub-contractor, or otherwise, repair or replace any item itself and Supplier agrees to reimburse Buyer for any costs or expenses incurred. Buyer may deduct the corresponding amounts from outstanding balances.
    
    
14. In the event where defect rates exceed those quoted by Supplier or the Contract, whichever is the more stringent, Supplier shall remedy such defects within the agreed remedy period which, if not explicitly stated, shall be 48 hours from notification of defect.
    
    
15. Should defect rates relate to a complete batch or require product recall, Supplier shall be liable for consequential costs arising from the defect.
    
    
    
    DELIVERY
    
    
16. Delivery of the goods shall be made to such location as Buyer has indicated in the Purchase Order. Carriage shall be paid for by the Buyer provided it is at a reasonable price consistent with the agreed mode of shipment. The Supplier shall not charge the Buyer for additional carriage costs necessary to meet pre-agreed delivery commitments.
    
    
17. Supplier will notify Buyer about the estimated delivery date after receipt of the order by a written order acknowledgement. In the absence of such written confirmation the Supplier agrees to the terms of the Purchase Order.
    
    
    
    DELAY
    
    
18. In case of any delay in delivery Supplier will inform the Buyer immediately about the delay and the new delivery date. The Buyer will then notify Supplier of its acceptance or cancellation (free of charge) of the respective order. The same applies in cases where Supplier is only able to part deliver.
    
    
19. Where Buyer cancels the whole or part of the contract in accordance with Clause :
    
    • all sums payable by Buyer in relation to the whole or part of the contract cancelled shall
        cease to become payable;
    
    • all sums paid by Buyer in relation to the whole or part of the Contract cancelled shall
       either be deducted from amounts outstanding or be repaid by Supplier immediately;
    
    • Buyer shall be entitled to recover damages from Supplier for any loss caused as a result of
       Supplier’s failure to deliver the goods and/or as a result of the cancellation of the whole or part
       of the Contract.
    
    
    
    TITLE
    
    
20. Supplier warrants that it has good title to the goods and that it will transfer such title as it may have in the goods to Buyer pursuant to Clause
    
    
21. Title in the goods will pass to Buyer when the goods are unconditionally appropriated (by either party or by or with the consent of either party) to this Agreement, or on delivery to Buyer, whichever happens first. Unless stated as otherwise delivery shall be Delivery Duty Paid (DDP, Incoterms 2000).
    
    
    
    RISK
    
    
22. The goods will be and shall remain at Supplier’s risk until such time as they are delivered to Buyer (or at his direction), and are found to be in accordance with the requirements of this Agreement. It shall be the duty of Supplier at all times to maintain a contract of insurance over the goods and, on request from Buyer, to assign to Buyer the benefits of such insurance.
    
    
23. Supplier shall be responsible for maintaining such insurance policies in connection with the provision of the services as may be appropriate or as Buyer may require from time to time.
    
    
    
    INSPECTION OF GOODS
    
    
24. Buyer may inspect the goods upon delivery or in the course of manufacture.
    
    
25. Where goods are damaged or defective Buyer shall notify Supplier. Buyer may reject the damaged goods and the following provisions shall apply:
    
    • Supplier shall collect the damaged goods from Buyer at Supplier’s expense;
    
    • during the period between delivery of the goods to Buyer and collection by Supplier, Buyer shall
       not  beliable for any loss or further damage caused to the damaged goods;
    
    • all sums payable by Buyer in relation to the damaged goods shall cease to become payable;
    
    • Buyer shall be entitled to claim damages from Supplier for any losses caused to Buyer as a
       result of the goods being damaged.
    
    
26. Where there is incomplete delivery of the order Buyer shall notify Supplier and the following provisions shall apply:
    
    • all sums payable by Buyer in relation to the missing goods shall cease to become payable;
    
    • all sums paid by Buyer in relation to the missing goods shall either be deducted from amounts
      outstanding or be repaid by Supplier immediately;
    
    • Buyer shall be entitled to claim damages from Supplier for any losses caused to Buyer as
      a result of the shortages.
    
    
27. If Buyer so requests, Supplier shall immediately replace damaged goods or supply goods which are missing at Supplier’s expense or Buyer shall be entitled to cancel, without notice, the whole or any unexecuted part of the order and the rights referred to in Clause 19 shall apply.
    
    
28. Buyer may accept excess goods by notifying Supplier of such acceptance and the price of the excess goods shall be payable by Buyer.
    
    
29. Supplier shall repair or replace free of charge, goods damaged or lost in transit upon receiving notice to that effect from Buyer.
    
    
30. Buyer’s signature on any delivery note of Supplier is evidence of the number of packages received only and not evidence of the correct quantity of goods received or that the goods are in a good condition or of the correct quality.
    
    
    
    SUPPLIER’S OBLIGATIONS
    
    
31. Supplier warrants, represents and undertakes that:
    
    
32. all services performed under this Agreement shall be performed with all due skill and care, in a good and workmanlike manner and otherwise in line with leading practice within its industry ("Leading Industry Practice");
    
    
33. the services and deliverd goods will not infringe or violate any Intellectual Property Rights, trade secrets or rights in proprietary information, nor any contractual, employment or property rights, duties of non-disclosure or other rights of any third parties; and
    
    
34. it has full capacity and authority to enter into this Agreement and that it has or will obtain prior to the commencement of the services, any necessary licences, consents and permits required of it for the performance of the services.
    
    
    
    INDEMNIFICATION
    
    
35. Supplier will at its expense defend Buyer against, and pay all costs and damages made in settlement or awarded as a result of a claim that any products supplied by Buyer under this Agreement infringes a United States or European Union patent or copyright, trade secret, or other intellectual property rights, tax demands, National Insurance or similar contributions
    If a final injunction is obtained in an action based on any such claim against the Buyer’s use of a Product or Service by reason of such infringement, or if in Suppliers’ opinion an injunction is likely to be obtained, then Supplier may at its sole option, either:
    
    
      a) obtain for the Buyer the right to continue using Product or Licensed Software;
    
      b) replace or modify Product or Licensed Software so that it becomes non-infringing; or
    
      c) refund the license or purchase price paid for the infringing item
    
    
    

36. Supplier agrees to indemnify Buyer against all claims, costs and expenses which Buyer may incur and which arise, directly or indirectly, from Supplier’s breach of any of its obligations under this Agreement.
    
    
    
    INTELLECTUAL PROPERTY RIGHTS
    
    

37. All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of Buyer, and Supplier shall do all that is reasonably necessary to ensure that such rights vest in Buyer by the execution of appropriate instruments or the making of agreements with third parties.
    
    
    
    CONFIDENTIALITY AND DATA PROTECTION
    
    

38. Each party shall treat the Contract and any information it may have obtained or received in relation to the formation or performance of the Contract as private and confidential and neither party shall publish or disclose the same or any particulars thereof without the prior written consent of the other or as may be permitted under the later provision of this Clause.
    
    

39. The obligations expressed in sub-Clause 38 above shall not apply to any information which:
    
    • is or subsequently comes into the public domain otherwise than by breach of this Clause;
    
    • is already in the possession of the receiving party without an accompanying obligation
      of confidentiality;
    
    • is obtained from a third party who is free to divulge the same;
    
    

40. is independently and lawfully developed by the recipient or its sub-Contractor outside the scope of the Contract.
    
    

41. On the conclusion or termination of the Contract both parties shall destroy all copies of confidential information obtained from the other. The obligations relating to confidentiality shall continue for a period of two (2) years.
    
    
    
    FORCE MAJEURE
    
    

42. The parties shall not be liable for any delay or failure to perform any of its obligtions under this Agreement if the delay or failure results from events or circumstances beyond its reasonable control, including but not limited to acts of God, strikes, look outs, accidents, war, fire, flood or industrial disputes, and Buyer shall be entitled to reasonable extension of its obligations.
    
    
    
    PUBLICITY
    
    

43. Neither party shall without the written consent of the other (the giving of which consent shall be at the sole discretion of that party) advertise, publicly announce or provide to any other person information relating to the existence or details of the Contract or use the other party’s name in any format for any promotion, publicity, marketing oder advertising purpose.
    
    
    
    ASSIGNMENT
    
    

44. Supplier shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of Buyer.
    
    
    
    SEVERABILITY
    
    

45. If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
    
    
    
    WAIVER
    
    

46. No failure by Buyer to enforce any of these Terms and Conditions shall constitute a waiver of its rights hereunder.
    
    
    
    NOTICES
    

47. Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Purchase Order or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
    
    
    
    NO THIRD PARTIES
    
    

48. Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
    
    
    
    ENTIRE AGREEMENT
    
    

49. This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written.
    
    
    
    GOVERNING LAW AND JURISDICTION
    
    

50. This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11th April 1980 is excluded. Court of jurisdiction is Essen, Germany. Buyer my also sue Supplier at Supplier’s place of business.