Purchase agreement

RUBITECH GROUP - GENERAL PURCHASING TERMS & CONDITIONS

1. GENERAL

• 1.1 These general purchasing terms & conditions (the ‘Terms’) shall apply to the entire legal relationship – including any requests for offer, offers, orders and agreements made – between Rubitech B.V. and/or any of its affiliated companies on the one hand (‘Rubitech’) and the supplier of Products and/or Services (as defined below) (the ‘Supplier’) on the other hand. These Terms constitute an integral part of any agreement concluded between Rubitech and Supplier, whether or not referenced therein. Any terms and conditions of Supplier are explicitly not applicable and any reference to Supplier’s terms and conditions in an offer or order confirmation are void. Modifications to or deviations from these Terms are only applicable if explicitly agreed upon in writing by Rubitech.
• 1.2 Products means all production and service parts, components, assemblies and accessories, raw materials, tools and other products purchased by Rubitech from Supplier.
• 1.3 Services means all design, engineering, assembly, logistic, consulting, contracting of labor and other services provided by Supplier to Rubitech. What is stated in these Terms regarding Products shall also apply to Services and vice versa, unless explicitly stated otherwise.

2. FORECASTS AND PURCHASE ORDERS

• 2.1 A binding agreement for the sale and purchase of the Products arises upon (a) receipt by Supplier of a purchase order from Rubitech that corresponds with any existing framework agreement; or (b) if no framework agreement exists, upon Rubitech’s receipt of Supplier’s confirmation of a purchase order.
• 2.2 Rubitech may submit periodic forecasts to Supplier indicating the quantity of the Products that will be required by Rubitech during a specific period of time (‘Forecast’). If Rubitech has not received a written objection from Supplier within five (5) business days after receipt of the Forecast, the Forecast shall be deemed accepted by Supplier.
• 2.3 Each Forecast shall represent Rubitech’s estimate of its needs only and shall not be binding upon Rubitech. Supplier shall not be entitled to compensation from Rubitech for any expenses or damages resulting from any differences between the Forecast and the actual purchased Products by Rubitech.
• 2.4 Orders are issued by Rubitech to Supplier as separate documents setting out the Products ordered, the number and price thereof, the required delivery times and any other additional conditions applicable.
• 2.5 Supplier shall no later than three (3) business days after the order has been sent to the Supplier confirm the order to Rubitech. If the order confirmation is not received by Rubitech within three (3) business days, the order in question shall be deemed accepted by and binding on Supplier. Accepted orders form an agreement, and these agreements may not be cancelled or rescheduled by Supplier without the prior written consent of Rubitech.

3. INSPECTION, QUALITY ASSURANCE ETC

• 3.1 Rubitech may, after reasonable prior notice, inspect the premises where the production of the Products takes place, perform tests on the Products and perform all necessary examinations. All inspections and tests shall be performed in such a manner as not to unreasonably interfere with Supplier’s business.
• 3.2 Supplier shall comply with the quality assurance processes, systems and standards specified by Rubitech from time to time, including but not limited to any required quality control before delivery.
• 3.3 Supplier shall, upon request of Rubitech, supply a production or shipping sample of the Products to Rubitech. If Rubitech has approved a sample for a specific Product, Supplier may not alter the design or make any other changes to the Product without Rubitech’s prior written approval.
• 3.4 Supplier shall ensure that the legally required and the agreed documentation is provided together with the Products.

4. ACCEPTANCE TESTS

• 4.1 If an acceptance test is agreed upon, it shall be carried out at the place of manufacture during normal working hours. Such tests shall be carried out in accordance with generally accepted practices for businesses in the same line of business and operating in the same jurisdiction as Supplier.
• 4.2 Supplier shall notify Rubitech in writing of the date the acceptance tests will take place, at least two (2) weeks before the acceptance tests are scheduled, so Rubitech, or a third party appointed by Rubitech, can be present.
• 4.3 If the acceptance tests show that the Product has a Defect (as defined in Section 8.1), Supplier shall without delay remedy such Defect at its own cost. New tests shall thereafter be carried out unless Rubitech has stated in writing to Supplier that the Defect is insignificant. Any agreed upon delivery dates are not suspended due to repeated acceptance tests necessary because of a Defect.
• 4.4 Supplier shall bear all costs for acceptance tests carried out at the place of manufacture. Rubitech shall bear all traveling costs and other expenses for its own representatives in connection with such tests.
• 4.5 Rubitech’s attendance at the tests described in this Section 4 or inspections described in Section 3, shall in no way release Supplier from any obligation related to an agreement or relieve Supplier from any liability and responsibility for Defects.
• 4.6 Rubitech may after prior notification reject any Products which have, to Rubitech’s reasonable judgment, a Defect or which are in any other manner not in conformity with the agreement or the agreed upon specifications. Products so rejected and Products which are supplied in excess of quantities ordered by Rubitech may be returned to Supplier at Supplier’s own expense.

In addition, Rubitech may charge Supplier all reasonable expenses of unpacking, examining, repacking and reshipping rejected Products. In the event Rubitech receives Products whose Defects or nonconformity Rubitech does not notice upon receipt, Rubitech reserves the right to require replacement, within the Warranty Period (as defined in Section 8.4).

5. DELIVERY, TITLE AND PASSING OF RISK

• 5.1 Any agreed trade terms shall be construed in accordance with the Incoterms in force at the formation of the agreement. If the agreement does not designate specific trade terms, the delivery shall be made DDP, Rubitech Steenwijk, the Netherlands. Partial shipments shall not be permitted unless otherwise agreed in writing.
• 5.2 All Products shall be prepared, packed, stored and marked suitably for shipment so as to secure safe delivery and protect the quality of the Products. When applicable, this shall be done in accordance with Rubitech’s instructions and the carriers’ requirements, and Supplier shall be responsible for ensuring that all shipments contain appropriate labeling and documentation.
• 5.3 Title of the Products and risk thereto shall transfer from Supplier to Rubitech upon delivery of the Products as stipulated in this Section 5.1.
• 5.4 Rubitech may request that delivery shall be made to a recipient other than Rubitech, such as to a business assembling the Products or to a warehouse for storage on behalf of or as per the instructions of Rubitech.

6. DELIVERY AND DELAY

• 6.1 The Products shall be delivered on the delivery date agreed in the agreement, whereas any agreed upon lead times or delivery dates are binding.
• 6.2 Notwithstanding Section 6.1, if Supplier anticipates that it will not be able to deliver the Products at the agreed time for delivery, Supplier shall immediately notify Rubitech thereof in writing, stating the reason for the delay and when delivery can be expected. Rubitech may request reasonable measures to speed up delivery, such as express transport, at the expense of Supplier.
• 6.3 If delay in delivery is caused by any of the circumstances set forth in Section 14 or by an act or omission on the part of Rubitech, the time for delivery shall be extended by a reasonable period of time (taking into account all the circumstances underlying the delay).
• 6.4 If the Products are not delivered at the agreed time for delivery (except in cases of delay as meant in Section 6.3), Supplier shall indemnify and hold Rubitech harmless for all direct, indirect, incidental and consequential damages, losses, costs and expenses, including any liquidated damages, awarded against or incurred or paid by Rubitech as result of or in connection with interruption or delays in Rubitech’s production caused by Supplier’s delay.
• 6.5 Notwithstanding Section 6.4, additionally Supplier shall pay the following to Rubitech as liquidated damages: (i) during the first week of delay no liquidated damages shall be payable;
• (ii) during weeks two (2) through six (6) of delay, liquidated damages shall be payable at a weekly rate of two (2) per cent of the total price for the delayed Products, with a maximum limit of compensation of ten (10) per cent of such total price.
• 6.6 If the delay in delivery exceeds two (2) weeks, then Rubitech may by notice in writing to Supplier rescind all or any portion of the agreement and/or outstanding orders (including orders for Products which Rubitech is unable to use due to the delay). If Rubitech rescinds the agreement or any outstanding orders, Rubitech shall be entitled to compensation for all direct and indirect losses and damages it has suffered as a result of the delay.
• 6.7 Rubitech shall also have the right to terminate the agreement and/or any outstanding orders by notice in writing to Supplier if it is clear from the circumstances that there will be a delay in delivery in excess of two (2) weeks.
• 6.8 Rubitech shall not be obliged to accept deliveries of Products at a date which is earlier than the agreed date unless Rubitech has given its prior written approval thereto.
• 6.9 If Rubitech fails to accept delivery at the agreed delivery date, Supplier shall arrange for reasonable storage of the Products at the risk and expense of Rubitech. Supplier shall also, if Rubitech so requests, insure the Product at Rubitech’s expense.

7. PRICE AND PAYMENT

• 7.1 The prices for the Products stated in the agreement shall be firm, and no surcharges, premiums or other additional charges of any type shall be added without Rubitech’s prior written consent. Supplier expressly assumes the risk of any event or cause (whether or not foreseen) affecting such prices, including any foreign exchange rate changes, taxes, increases in raw materials costs or utilities costs, inflation, increases in labor and other manufacturing costs.
• 7.2 Payments for the Products shall be made within sixty (60) days following the date of the invoice.
• Supplier may not invoice Rubitech until after physical delivery of the Products. Payment shall be made in Euros, unless stated otherwise in the agreement.
• 7.3 Rubitech is entitled to withhold payment of the purchase price in the event Supplier has breached any of its obligations under the agreement or these Terms.
• 7.4 Payment will not constitute acceptance of the Products, nor shall it limit or affect any of Rubitech’s rights or remedies under the agreement, these Terms or applicable law.
• 7.5 Rubitech may set off against Rubitech’s accounts payable to Supplier any amounts which Rubitech determines in good faith that Supplier is liable for under any agreement, or other agreements with Supplier.

8. WARRANTY AND LIABILITY FOR DEFECTS

• 8.1 Supplier warrants that the Products shall be free from all Defects during a period of two (2) years after delivery (the ‘Warranty Period’).
• 8.2 A Product shall be considered to have a Defect if it:
  • (a) in any respect deviates from the drawings, specifications, statements of work, samples and other descriptions, technical specifications and requirements relating to the Products that have been furnished, specified or approved by Rubitech;
  • (b) does not comply with applicable laws and regulations of the countries in which the Products are sold by Rubitech;
  • (c) is has a defect in design, material or workmanship;
  • (d) does not conform with the relevant samples approved by Rubitech or with the quality required by Rubitech;
  • (e) does not conform with the requirements set forth in Section 5.2; or
  • (f) is not suitable or safe for their intended use, including the specified performance in the component, system and subsystem location specified by Rubitech and the environment in which the Products are or reasonably may be expected to perform, each a ‘Defect’.
• 8.3 Rubitech shall notify Supplier in writing of any Defect. The notice shall contain a description of the Defect.
• 8.4 If Defects are discovered in the Product within the Warranty Period, Supplier shall be liable for Defects of equivalent nature that are discovered in other Products after expiry of their applicable Warranty Period.
• 8.5 Supplier’s warranty shall not cover Defects caused by normal wear and tear, inadequate maintenance or faulty repair after delivery or failure to observe the operating instructions or materials provided.
• 8.6 Supplier shall remedy any Defect within the time period reasonably requested by Rubitech and at the location requested by Rubitech, through repair or replacement of the Product or any parts of the Product. Unless instructed otherwise by Rubitech, Supplier shall at its own expense arrange for any dismantling and reassembly of equipment (including the Product), to the extent necessary to remedy the Defect.
• 8.7 Rubitech is permitted to remedy a Defect itself or let the Defect be remedied by a third party, if (a) Supplier has not remedied the Defect in accordance with Section 8.6, (b) Rubitech has already incorporated the Product in its own goods (including in any pre-assembly processing); (c) the remedial work cannot be performed without disruption to or delay in Rubitech’s or its customers’ operations; or (d) the remedial work would cause Rubitech to incur additional costs. Rubitech may remedy a Defect by (i) rejecting the Products having a Defect, returning them to Supplier and requesting redelivery of Products without Defects; or (ii) retaining the Products and repairing them itself or through a third party. Supplier will bear all costs and expenses relating to the remedial actions undertaken by Rubitech and/or Supplier.
• 8.8 Supplier shall indemnify and hold Rubitech harmless for all direct, indirect, incidental and consequential damages, losses, costs and expenses awarded against or incurred or paid by Rubitech as a result of or in connection with a Defect, even if the Defect has been remedied.
• These include, but are not limited to, costs associated with interruptions or delays in production (either at Rubitech or its customer), reduced line-speeds, and plant shutdowns.
• 8.9 When a Defect in a part of the Product has been remedied, Supplier shall be liable for Defects in the repaired or replaced part for a period of five (5) years after the repair or replacement. For the remaining parts of the Product, the Warranty Period shall be extended only by a period equal to the period during which the Product was out of operation as a result of the Defect.
• 8.10 Necessary shipping, storage and handling of the Product and/or parts thereof in connection with the repair or replacement of Products or Defects shall be at the sole risk and expense of Supplier.
• 8.11 Defective parts which have been replaced will become Supplier’s property.

9. WARRANTY ON SERVICES

• 9.1 Supplier warrants that Services will be executed using the highest professional standard.
• Supplier shall execute due care, sound judgment and good engineering in carrying out its Services. A Service shall be considered defective if it deviates from the requirements set forth in this Section 9.1 or from the requirements set forth in Section 8.1 (a) and (b).
• 9.2 In case of defective Services, the provisions of Sections 8.3 through 8.8 shall apply.

10. PRODUCT LIABILITY AND INSURANCE

• 10.1 Supplier shall indemnify, defend and hold harmless Rubitech from and against all direct and indirect losses and damages arising out of personal injury or property damage having been caused by or resulted from a Defect in a Product.
• 10.2 If a claim for damage as described in Section 10.1 arises, Rubitech shall notify Supplier and Supplier shall promptly provide Rubitech with written confirmation of its undertaking to defend such claim. Supplier and Rubitech shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages filed against one of them on the basis of such personal injury or property damage.
• 10.3 If there is a risk of a Product causing personal injury or property damage due to a Defect, such that Rubitech reasonably decides to recall that Product or take any other preventive measure, Supplier shall compensate Rubitech for all losses and costs incurred by Rubitech in conjunction with such recall or measure.
• 10.4 Supplier shall obtain and maintain an adequate general liability insurance (including product liability insurance), with an insurance provider and with a coverage reasonably acceptable to Rubitech and shall at Rubitech’s request supply Rubitech with a copy of relevant insurance policies.

11. TOOLS

• 11.1 Supplier shall comply with the below-stated requirements with regard to tools, jigs, fixtures, moulds and other equipment supplied by Rubitech or specially manufactured or adapted for manufacture or quality control of the Products (‘Tools’):
  • (a) Supplier shall properly maintain the Tools, so as to ensure manufacture of Products free of Defects; and
  • (b) Rubitech shall be entitled to acquire for a reasonable charge and thereafter to freely utilize such Tools as are owned by Supplier, when deliveries of the relevant Product to Rubitech for serial production shall cease; and
  • (c) Supplier shall ensure that the Tools are stored in a safe and adequate manner and that they are insured for an amount equivalent to its replacement cost.
• 11.2 In addition, the following shall apply to Tools owned by Rubitech and used by Supplier, if applicable:
  • (a) Supplier shall promptly provide Rubitech with an acknowledgement of receipt when the Tools has been received;
  • (b) Supplier shall mark the Tools in such a way that Rubitech’s ownership is clearly shown and shall keep and store these Tools separate from property owned by Supplier or a third party; and
  • (c) Supplier shall inform insurers as to the fact of Ribitech’s ownership and shall make sure these Tools are covered by its insurance; and
  • (d) Supplier may not without Rubitech’s prior written consent use Tools for production for its own account or that of any third party; and
  • (e) Supplier must obtain Rubitech’s prior written consent before moving the Tools to another location of Supplier or a third party, except in an emergency situation; and
  • (f) Supplier shall, when production of the relevant Products has ceased or otherwise at Rubitech’s request, return the Tools to Rubitech at Supplier’s expense.

The ownership of the Tools is and will remain with Rubitech. Supplier shall take good care of the Tools.

12. CONFIDENTIAL INFORMATION

• 12.1 Neither party may disclose confidential information obtained by the other party before or during the term of their legal relationship or use it for any purpose other than the performance of the agreement concluded between them. The existence and terms of the agreement are confidential. This restriction shall not apply to (i) information which is or comes into the public domain (without having been disclosed by the receiving party), (ii) information which was known to the receiving party prior to the disclosure; and (iii) information required to be disclosed by applicable law or governmental regulation or by any competent judicial or administrative body or governmental authority, provided that the receiving party has promptly informed the disclosing party of the proposed disclosure, as far as allowed, so as to give the disclosing party a reasonable opportunity to obtain a protective order or similar form of relief.
• 12.2 Upon termination or satisfactory fulfillment of the agreement, or at any other time the disclosing party requests, the receiving party shall return or, if the disclosing party requests, destroy, all confidential information of the disclosing party without retaining any copies.
• 12.3 All drawings and technical documents relating to the Products or the manufacturing process thereof submitted by one party to the other, prior or subsequent to the formation of the agreement, shall constitute confidential information. Such documents may not, without the consent of the disclosing party, be used, copied, reproduced, transmitted or communicated to a third party.
• 12.4 Supplier is obliged to request and obtain Rubitech’s prior written permission for publications in word or writing, which concern Rubitech or its customers in any way.
• 12.5 The obligations of the receiving party under this Section 12 shall survive the termination or expiration of any agreement and shall apply for a period of five (5) years thereafter.

13. NON-COMPETE

• 13.1 During a period of five (5) years from the date the latest agreement has been performed satisfactory by Supplier to Rubitech, Supplier shall not carry out an activity similar to or that competes with the activity carried out by the Supplier for Rubitech, neither in its own interest nor in the interest of a third party. This is explicitly understood to mean that the Supplier is prohibited from directly or indirectly selling products to any customer of Rubitech that are similar to or compete with the Products Supplier manufactures or produces for or sells to Rubitech.
• 13.2 In the event of culpable non-compliance with Section 13.1, Supplier shall be obliged to pay damages corresponding to the damage Supplier has caused to Rubitech, whereby this damage explicitly includes missed income, including missed profit. Additionally, Supplier incurs an immediately payable penalty to Rubitech, without any setoff, of € 50.000,- for each failure or breach and an additional € 5.000,- for each day that the failure of breach continues, whereby part of a day shall be regarded as a full day, without prejudice of the right of Rubitech to claim full damages and/or performance.

14. FORCE MAJEURE

• 14.1 Either party shall be entitled to suspend performance of its obligations under an agreement to the extent that such performance is made impossible by any circumstance beyond the control of the parties, which could not have been foreseen at the time the agreement was concluded, such as wars, natural disasters and restrictions imposed by governmental authority (‘Force Majeure’).
• 14.2 A party may invoke a Force Majeure event under Section 14.1 only if it has notified the other party in writing without delay of the occurrence and potential effects of the event. A party shall also without delay inform the other party of the cessation of such event.
• 14.3 Either party shall be entitled to terminate an agreement affected by Force Majeure by notice in writing to the other party if performance of the agreement is suspended under Section 14.1 for more than ninety (90) consecutive days.

15. PURCHASES FROM SUPPLIERS DIRECTED BY RUBITECH

• 15.1 If Rubitech directs Supplier to purchase components from certain specific suppliers, such components may only be utilized by Supplier for deliveries of Products to Rubitech.
• 15.2 Claims concerning components referred to in Section 15.1 shall be directed to such supplier and not to Rubitech. The fact that Rubitech has directed Supplier to such supplier does not imply that Rubitech takes any responsibility for such supplier’s fulfillment of its obligations.

16. CODE OF CONDUCT

• 16.1 Supplier shall comply with Rubitech’s Code of Conduct. Notwithstanding any other rights Rubitech may have in accordance with these Terms, the Code of Conduct or applicable law, any breach of the Code of Conduct shall entitle Rubitech to terminate an agreement with immediate effect in accordance with Section 19.1(b).

17. SUB-SUPPLIERS

• 17.1 Supplier is solely responsible to Rubitech for the performance of its obligations under any agreement. If Supplier sub-contracts part of the agreement to a third party, it shall seek written approval of Rubitech before sub-contracting the works. Supplier will always remain fully responsible for the acts or omissions of the subcontractor, as if they were the acts or omissions of Supplier.

18. INTELLECTUAL PROPERTY RIGHTS

• 18.1 If the Products require development or design work, any intellectual property rights arising from such work shall become the sole property of Rubitech.
• 18.2 Any and all intellectual property rights used or embodied in or used in connection with the Products, whether or not registered, included but not limited to patents, trademarks, know-how and drawings, shall be the sole property of Rubitech and such intellectual property rights may be used by Supplier solely for the purpose of fulfilling its obligations according to any agreement with Rubitech.
• 18.3 Unless otherwise agreed, Supplier shall not use any corporate name or trademarks belonging to Rubitech. Supplier may not place its own trademark or trade name on the Products, unless Rubitech has given its prior written approval.
• 18.4 Supplier shall indemnify, defend and hold Rubitech harmless, against any and all claims, including but not limited to claims of Rubitech’s customers, that Products infringe any patent, copyright, trademark or any other rights as well as against any and all claims of unfair competition or trade secret violations.

19. TERMINATION

• 19.1 Either party is entitled to terminate an agreement with immediate effect and without incurring any liability for compensation due to such termination, if:
  • (a) the other party enters into composition negotiations, is declared bankrupt, goes into liquidation or for any other reason can reasonably be assumed to have become insolvent; or
  • (b) the other party commits a material breach of its obligations under an agreement (including but not limited to these Terms) and does not completely resolve such breach within thirty (30) days of receipt of written notice to that effect. In the event of a material breach by any of the parties, the other party shall be entitled to recover all reasonable costs and attorneys’ fees incurred when enforcing or defending its rights under the agreement or these Terms from the other party.

20. INDEMNITY

• 20.1 Supplier shall defend, indemnify and hold Rubitech (including its employees, officers, representatives, etc.) and Rubitech’s customers harmless from all claims, demands, actions, damages, costs and liabilities (including legal fees, consequential and incidental damages) arising as a result of any act or omission of Supplier, its employees, officers, representatives, suppliers or sub-contractors.

21. MISCELLANEOUS

• 21.1 Supplier may not transfer or assign its rights or obligations under any agreement without the prior written consent of Rubitech.
• 21.2 Supplier acknowledges that it is entering into each agreement only with Rubitech or any of its affiliates, as the case may be, and that each entity is operating on a stand-alone basis.
• Supplier further acknowledges and agrees that any claims shall only be made against the contracting entity. Rubitech expressly disclaims and renounces any form of cross-guarantees or similar intra-group responsibility between Rubitech and its affiliates.
• 21.3 Each party shall keep the other party reasonably informed on all matters that could be of importance to the parties’ performance under an agreement.
• 21.4 If and insofar as one or more provisions of these Terms should prove to be void or non-binding, in whole or in part, the other provisions will not be affected but shall remain in full force and effect and the parties will be bound by it. The parties will then, in joint consultation, make a (valid) replacement arrangement that is as close as possible to the purpose and purport of the void or non-binding provision(s).

22. DISPUTES AND APPLICABLE LAW

• 22.1 The legal relationship between Rubitech and Supplier is governed by and construed in accordance with the laws of the Netherlands, excluding its conflict of laws principles, and all disputes arising between Rubitech and Supplier shall be settled by the court of Zwolle, the Netherlands.