1- Scope:

These General Terms of Purchase shall apply to all purchases agreed by ACCUMALUX GROUP (hereinafter “the Buyer”). The fulfilment of orders shall constitute unconditional acceptance of these terms and waiver by the Seller (hereinafter “the Supplier”) of its general terms of sale. The present general terms shall not be modified by the Supplier’s conflicting terms of sale. They are completed by a set of contract documents which govern business and relationship with the Supplier (hereinafter the “Contract”).

2- Order:

A prior order is mandatory for all purchases made by the Buyer. Receipt of any order has to be duly acknowledged within 2 days by a written order acknowledgement by the supplier, referring to the Buyer’s purchase order reference number as well as to the Buyer’s item number, prices acceptance and delivery date acceptance.

Some purchases may be part of an open order, which indicates in particular the order number, references of the goods, place and method of delivery, price and particular terms of payment, and all other additional terms of the order. The delivery dates, quantities to be delivered and all other special terms are then fixed by delivery calls and schedules.

3- Delivery and Acceptance:

The delivery dates indicated in the order or in the delivery schedule are mandatory. They apply to not only satisfactory delivery of goods but also to delivery of all technical, administrative and consignment documents requested or necessary for the use and maintenance of the goods. All documentation shall be in English, German or in French.

The means of transport shall be chosen in such way as to comply with the contractual delivery date, which, unless otherwise specified, shall relate to delivery of the purchase to destination. All expenses incurred in order to meet the delivery date or limit delays shall be payable by the Supplier.

The Supplier undertakes not to deliver the goods before, or after the agreed date or in surplus quantities without the express written authorisation of the Buyer, and undertakes to pay all costs associated with such early, late or excess delivery. The Buyer further reserves the right to claim the costs of recovering losses due to production shut downs, extra costs for exceptional transport, administrative costs and any other expenses due to Supplier’s delay in delivery.

In event of early delivery, the goods will be stored at the Supplier’s risk and expense, and payments will only be made based on the initial contractual delivery dates.

If the Supplier fails to deliver goods or services at the specified delivery date then the Buyer shall be entitled to terminate without liability all or part of the Contract upon written notice to the Supplier and/or to compensation for any losses resulting from the failure and delay, unless the delay is due to Force Majeure.

4- Packaging:

The goods shall be delivered in appropriate packaging conform to what specified in the order or in the logistical specifications or, if not specified, to the applicable regulations and standards in force in the member states of the EU or the countries specified in the order; the packaging shall also be suited to the nature of the goods, the characteristics of its destination and all storage conditions.

The supplier shall be liable for deterioration of goods caused by unsuitable, badly maintained or poorly cleaned packaging.

If applicable, each packaging unit shall bear the markings prescribed by the current regulations in force in EU member states and/or the country specified by the Buyer, the date and the reference number of the order, the serial number (lot number) of the items, the item number, the name of the carrier which signs the delivery note, the nature of the goods and the quantity, the dimensions and the weight of delivered goods. Each note shall relate only to one order.

Unless otherwise stated in the order, the Contract price shall be inclusive of the costs of packaging suitable for transit and/or storage of the goods.

At the request of the Supplier, the Buyer shall return the supplier’s packaging materials at the cost and risk of the Supplier provided that such materials are marked with the Supplier’s name and address together with an addressed reversible label and further provided that the Buyer is excluded from all liability for any loss or damage to such material, however caused and whether or not arising out of the Buyer’s negligence or that of the Buyer’s employees or agents.

5- Compliance:

The Supplier is responsible for the quality of the delivered goods. He hereby declares being aware of Buyer’s Quality Assurance procedures and the specifications and Quality assurance contracts agreed between the Buyer and his customers, where applicable. When fulfilling the Buyer’s orders, he undertakes to comply with all the terms of the said documents, which shall form part of the Contract, and implement a suitable quality insurance system. These terms also apply to his sub-contractors.

Goods and services shall comply with the requirements of the Contract, shall be of merchantable quality, shall be free from defect to material and workmanship and shall be fit for purpose. They shall be made or performed in accordance with good engineering practice and all applicable standards and legislation. Goods shall be delivered complete with all instructions, warnings and other data necessary for safe and proper operation. Goods or services, which do not comply with all of the above, shall be considered defective.

If for any reason, the Supplier is uncertain as to whether the goods or services to be supplied by him will comply with any of the above, he must promptly and before dispatch inform the Buyer in writing with full details of the possible non-compliance for consideration. The Buyer will then provide written acceptance or rejection of the Supplier’s application in a timely manner as reasonably possible.

Non-conforming goods delivered to the Buyer may be returned to the Supplier at its expense and risk. The Buyer further reserves the right to invoice all direct and indirect costs, and in particular the costs of modifying the goods to render them conforming, tests, sorting, maintenance and storage, packaging, or repacking of non-conforming goods.

The Supplier guarantees that the goods comply with the regulations in force in the countries for which they are destined or to regulations coming into force, in particular regulations relating to health, safety, environmental protection and all other applicable specific safety procedures. The Supplier shall indemnify the Buyer against all proceedings resulting from breach of these terms, and undertakes to bear all the financial and other consequences thereof. It shall certify the origin of its products and their components.

The Supplier shall inform the Buyer immediately of any modification it proposes to make to the composition of the parts, equipment or services or to its technical conditions and performance. Any technical modification, however minor, shall be submitted for the Buyer’s prior written authorisation.

6- Variations:

The Supplier shall accept any reasonable variation in scope, specification, quantity or delivery requested by the Buyer.
Neither party shall be bound by any variation of the Contract unless and until it shall be confirmed by an order amendment signed by the duly authorized representatives of both parties or written instruction issued by the Buyer.

7- Spare parts:

Unless otherwise specified, the goods shall be delivered to the Buyer’s premises on working days, between 08:00 – 12:00 and 13:00 – 16:00. No delivery will be accepted outside to the said hours. Unless otherwise specified by the Buyer, goods shall be deemed to be accepted when they are received at the said place of delivery, if the said goods meet the criteria defined in the Buyer’s specifications or, if none, by the usual quality criteria. Equipment shall be deemed to be accepted after a successful start-up in accordance with procedures set out in the special terms, after the first production runs in the case of machines and tools, and after passing functionality tests in case of IT equipments, in accordance with the specifications or, if not, with the applicable regulations.

8- Viruses:

The Supplier undertakes to supply spare parts for 10 years after the sale of any model in the range in which the good is specified.

9- Prices, Invoices, Payment terms:

The prices shall be deemed to be agreed for goods delivered to the Buyer (DAP in accordance with INCOTERMS 1990), packaging included; they shall be fixed and not modifiable. All transport and insurance costs, customs duties and in general all costs, taxes and duties incurred or payable until final acceptance of the goods at the Buyer’s premises shall be born by the Supplier unless otherwise specified. Invoices shall be written in English, German or in French and sent by mail to accounting@accumalux.com. Each invoice shall state the order number, the numbers and dates of the delivery notes, the goods invoiced, the unit price net of tax, the markings on the packaging, the method of shipment and any other information required by law or by the Buyer.

The Supplier may not claim payment of an invoice or the request for payment in advance until all contractual obligations corresponding to its request have been fulfilled and approved. If this is not the case, the Buyer reserves the right to withhold any payment until accomplishment.

The Supplier undertakes not to assign all or part of the receivables due to the fulfilment of the Contract to any financial organisation without Buyer’s prior written approval. Unless there is any special term to the contrary, payable with 30 days after the date of delivery, end of month, or the first working day after the due date if it falls on a non working day. The Buyer reserves the right to offset its debts against any sum, which the Supplier may owe to it for any reason. Payment shall not constitute an agreement relating to the goods delivered or amount invoiced, and shall never constitute waiver of further recourses.

10- Inspection and Testing:

Prior to delivery, the Supplier shall inspect and test goods or services for compliance with the order and specifically warrant their fitness for the Buyer’s purpose in the assessment of which the Buyer shall be deemed to have relied on the Supplier’s skill and judgment.

The Supplier shall, if requested by the Buyer, supply certified copies of records of such inspection and tests free of charge and will grant to the Buyer or the Buyer’s nominated representative a right of access at all reasonable times for the purpose of checking progress and carrying out or witnessing test and/or inspection procedures. Any test or inspection carried out by the Buyer or the Buyer’s nominated representatives shall not relieve the Supplier of any liability nor imply acceptance of the goods.

11- Materials and Tools:

The tools, models and materials (including patterns, moulds, equipment, tooling, components and raw materials) entrusted to the Supplier by the Buyer for the performance of an order shall remain the property of the Buyer under all circumstances. They shall be marked by a plate indicating the identity of the owner, and shall be placed at the Buyer’s disposal with a three working days’ notice. Tools designed, perfected and/or manufactured pursuant to an order may not be used, communicated, reproduced, modified, transferred or destroyed without the Buyer’s prior written authorisation. Their maintenance and proper storage is the responsibility of the Supplier. No parts may be manufactured at any time by the Supplier for a third party with the aid of the Buyer’s tools and models.

The Supplier shall be responsible for the safekeeping of the tools and models, and shall be personally liable for any loss they may cause or suffer, even because of inevitable accident or Force Majeure. The Supplier undertakes to insure them on behalf of the Buyer at his expense for their value against the risk of fire, lightning, explosion, electrical damage, water damage, etc., with an express waiver by the insurer of all right of recourse against the Buyer. The Supplier shall furnish written proof thereof to the Buyer on demand. The terms of this clause shall also apply to plans and models. After use, the Supplier shall keep the models and tools at the Buyer’s disposal in its warehouses free of charge, and take all necessary measures to keep them in good condition. They shall be returned to the Buyer on its request.

12- Title and Risk:

Title to the goods shall pass to the Buyer on delivery or where the goods or services, or any part of them, though ready for delivery are retained by the Supplier pending delivery instructions from the Buyer, in such cases the title of goods or services shall pass to the Buyer upon payment.

Risk in complaints goods or services delivered in accordance with the Contract shall pass to the Buyer on delivery, if the delivery is made to a person authorized by the Buyer to receive the goods or services, at the delivery address specified in the order or as otherwise agreed.

Goods or services belonging to or provided by the Buyer, which are in the Supplier’s custody for any purposes shall be clearly marked and recorded by the Supplier as belonging to the Buyer and shall be at the Supplier’s risk.

13- Guarantees:

The Supplier shall indemnify the Buyer, in particular pursuant applicable sections from the Luxembourg Civil Code, against latent or patent defects or faults in its goods resulting in particular from faulty design, materials, conformity or implementation, or involving malfunctions. The Supplier has the duty to produce a given result. The assistance, which the Buyer can give the Supplier, shall not exonerate the Supplier from liability, and it shall remain liable even after approval and acceptance by the Buyer. The Supplier further guarantees the Buyer that it will refund any defective goods or replace them free of charge, and pay all the costs of any kind caused by the defect. A consignment or a part of a consignment that is repaired or replaced shall be guaranteed in the same terms. Moreover, the Supplier accepts liability for all costs incurred by the Buyer in the event of recalls necessitated by a fault in the goods supplied by the Supplier (however, such liability for recalls shall be limited to 5 million EUR per event).

The Supplier shall indemnify the Buyer against all direct or indirect consequences of any liability, which it may personally have relating to tangible or intangible loss or injury caused to third parties, the Buyer or its assigns.

14- Industrial and Intellectual property rights:

All information and know-how including drawings, specifications and other data provided by the Buyer or prepared by the Supplier in connection with the Contract shall remain at all times the Buyer’s property and maybe used by the Supplier only for the purpose of performing the Contract. The Supplier shall keep the information and expertise confidential and shall return them to the Buyer upon request.

The Supplier shall quote for neither supply nor supply parts made by the Buyer’s tools or materials or the Buyer’s patterns, drawings, specifications or designs, to any third party without the Buyer’s prior written consent.

The Supplier will indemnify the Buyer against any and all liability, loss, damages, claims, costs and expenses arising out of any claim in respect of any infringement or alleged infringement of any pattern, trademark, registered design or copyright or other proprietary rights whether where resulting from design, manufacture, use, supply or re-supply of the goods or services.

The title and risk in any deliverable software shall pass to the Buyer on delivery in accordance with Clause 11 above. Where the Supplier supplies the Buyer with software or license, then unless otherwise agreed, the Buyer shall have a royalty free irrevocable and unrestricted right to see, copy, modify or merge it for any purpose.

Any inventions, patents, copyrights, design rights and other intellectual property rights arising from the execution of the order shall become the property of the Buyer and the Supplier shall not disclose the same to any third party. The Supplier shall not apply for any Letters Patent or registered designs in relation to the goods and shall do all things and execute such documents as may be necessary to design such property to the Buyer.

Insofar as the subject of the Contract, the supply of documentation (including but not limited to drawings) to the Buyer by the Supplier, the copyright therein shall belong to the Buyer. Supplier hereby warrant that they have the right to grant such copyright to the buyer and indemnify the Buyer against all claims (including costs thereof resulting or resulting there from) by parties who may represent that they own such copyright; where the performance of the Contract involves design work, the right in the resultant design(s) (whether registered or not) shall belong to the Buyer.

15- Deterioration of goods:

If the goods are perishable or have a life expectancy of a fixed duration, or if any circumstances are or become known to the Supplier which could adversely affect the life-span of the goods, than the Supplier shall forthwith advise the Buyer in writing of all such information, which when received by the Buyer shall form part of the description of the goods and shall be deemed to have formed part of such description with effect from the date of the order.

16- Assignment:

The Contract shall not been assigned or sub-contracted by the Supplier as a whole. The Supplier shall not assign or sub-contract any part of the work without the Buyer’s prior written approval, which shall not be unreasonably withheld, but the restriction contained in this clause shall not apply to sub contracts for material, minor details or any part of which the sub-contractor is named in the contact.
The Supplier shall be responsible for all work done and goods supplied by his sub-contractors.

17- Dispute with third parties:

If any third party makes any claims against the Buyer arising from the performance of the Contract by the Supplier, or in respect of goods or services under it, the Supplier shall at its own expense on request by the Buyer join the Buyer in defending the claim. The Buyer against the Supplier under the Contract shall so far as relevant, admit the decision of any court or arbitration tribunal deciding upon the claim as conclusive in any consequent claim.

18- Waiver:

No admission, act or omission made by the Buyer or on behalf of the Buyer during the continuance of the Contract shall constitute a waiver of or release the Supplier from any liability under any of these General Conditions of Purchase and any special conditions applicable hereto.

19- Force majeure:

If performance of the Contract is delayed by any act of God, act or omission of government, war or similar event beyond either party’s reasonable control (“Force Majeure”), then the time for performance shall be amended accordingly subject to the delayed parts, promptly informing the other of the event and taking all reasonable steps to reduce the delay.

20- Termination:

The Buyer reserves the right to suspend the performance of its order at any time upon written notice to Supplier. In such event, an agreement shall be reached as to the compensation payable to the Supplier, if such compensation shall be limited to the expenses directly caused by that suspension, excluding all indirect losses such as loss of earnings or profits. In the event of breach by the Supplier of its contractual obligations, the Buyer shall be entitled to issue a notice of default and, if the default is not remedied within one month thereafter, to terminate its orders upon written notice to Supplier, without prejudice to its right to claim damages. In the event of breach by the Supplier of obligations which are of the essence of the order (breach of confidentiality, failure to meet delivery dates or quality objectives, non-conformity with specifications, and modifications without the Buyer’s prior written consent), the Buyer may terminate order upon written notice to Supplier and without compensation to Supplier, without prejudice to its right to claim damages. In the event of assignment or change of direct or indirect control of its company or exceptional circumstances which may cast doubt on the continuance of its business or its legal structure, the Supplier shall inform the Buyer, which reserves the right to terminate the agreement without compensation, and without prejudice to any right to claim damages. The termination shall take effect 10 days after the date of dispatch by the Buyer of a registered letter with advice of receipt if the matter is not remedied within the said period.

21- Application law and Jurisdiction:

The Luxembourg law shall govern the order. It is expressly agreed that any dispute shall be exclusively settled by the competent courts of the Grand Duchy of Luxembourg.

If you have any question regarding the supplier requirements Manual, please contact the purchasing department in ACCUMALUX.