Prodata PTexcellence LLC (USA) – GENERAL TERMS AND CONDITIONS OF PURCHASE

Definitions

1.       Applicability

 Unless stipulated otherwise in the Purchase Order, contracts between the Supplier and the Company shall exclusively be subject to the terms and conditions that follow. This shall also apply if different terms and conditions of the Supplier are not objected to. Different terms and conditions of the Supplier or other modifications of the Purchase Order shall only be valid if they are accepted by the Company expressly and in writing. Even if express reference is hereinafter made to goods, products, components, or deliveries only, these General Terms and Conditions of Purchase shall also apply mutatis mutandis to the rendering of services. 

2.       Purchase Orders

Only written Purchase Orders expressly designated as purchase orders of the purchasing department (but no advance purchase orders, forecasts, or information on a budgeted demand) shall be binding on the Company.

3.       Acknowledgement of Purchase orders

Purchase Orders shall be acknowledged by the Supplier in writing. These acknowledgements shall be duly signed and returned by the Supplier to the Company within 8 calendar days of the purchase order date. Upon expiration of such period the Purchase Order shall be deemed accepted in accordance with the conditions of the Purchase Order unless the Supplier has rejected the Purchase Order by written notice.

4.       Quality

 Deliveries and services shall be exactly in accordance with the quality requirements stated in the Purchase Order or related Documentation. If and to the extent that no special quality requirements are stated in the Purchase Order, the goods delivered shall have first-class quality and comply with local applicable safety provisions (laws, regulations, standards, etc.), considering the state of the art in technology. All federal, state, local statute, rule or regulation relevant to the product shall be complied with.

The Supplier shall also make available those deliveries and services which are necessary to fulfil the requirements of the Company and shall include the same in the price even if they are not explicitly stated in the Purchase Order. Unless otherwise demanded in the Purchase Order, the Supplier shall deliver brand-new products in compliance with the state of the art.

The Supplier hereby represents and warrants that when rendering deliveries and services he shall always apply the knowledge, caution, and care of a prudent businessman. In particular, the following points shall be deemed agreed in connection with the Purchase Order:

• The Company shall notify the Supplier of complaints in writing. After an analysis the Supplier shall be obliged to initiate appropriate corrective measures in agreement with the Company to repair the defect and to prevent any reoccurrence of the same. Such corrective measures shall be notified to the Company in writing, shall be documented appropriately and shall be examined as to their effectiveness. Production records and quality records (FMEA, 8-D, …), test plans, inspection procedures, etc. shall be reviewed accordingly. In this respect the Supplier shall be obliged to completely document, archive and make available upon request of the Company all relevant measures and related documents which are relevant under product liability/product safety.
• The Supplier shall be obliged to inform the Company without delay of technical changes or changes relevant to quality or standardisation or logistics in connection with Products delivered or still to be delivered. In the absence of any other written agreement, Products or their components to be delivered at a later point in time shall be absolutely identical to Products delivered or accepted earlier.
• The Supplier shall be obliged to notify the Company of the discontinuation of production of Products not later than twelve months prior to discontinuation of production of the Product and to duly process a final Purchase Order placed by the Company.

The Company reserves the right to refuse the delivered Products when they do not meet the specifications, other agreed conditions, or the ordered quality or quantity, and to return them at the expense of the Supplier. Temporary storage of the refused Products may not be considered as approval and acceptance. The risk and costs of such storage is borne by the Supplier.

5.       Environmental requirements

Commercial packaging that is customary in trade shall be taken back by the Supplier at his cost.

The Supplier undertakes to comply with any and all federal, state, local statutes, rules or regulations concerning marking of Products, disposal of packaging, waste material, waste equipment, waste goods and hazardous substances and shall otherwise fully indemnify and hold the Company harmless.

6.       Special terms on deliveries of Products and spare parts

The Supplier guarantees that the Products delivered contain no copy protection, date locks or program locks or other limitations of use and that it is free from any viruses and rights of third parties.

For testing purposes, the Supplier shall provide test runs including test software free of charge.

The Supplier shall be obliged to offer maintenance services for Products as well as spare parts for a period of 10 years after warranty in conformity with the Purchase Order at market prices.

The Supplier shall transmit electronically documents, logging data, plans, test reports, repair data etc. to the Company. The Supplier shall retain such data as well as the Documentation delivered by the Company for a minimum period of 10 years.

7.       Place of performance, Prices, and Packaging

The place of performance shall be the place stated in the Purchase Order; if no other place is stated, it shall be the registered office of the Company. If the Purchase Order states delivery terms, they shall be interpreted in accordance with the Incoterms 2020. Until acceptance by the Company at the place of performance the Supplier shall bear risk and costs, including but not limited to the premiums for an appropriate transport insurance to be taken out by him.

Unless stated otherwise in the Purchase Order, the prices shall be deemed to include packaging, delivery DDP, though unloaded at a warehouse and they shall be fixed prices. The Products shall be packaged properly and in accordance with special instructions given by the Company, if any. Damage caused by improper packaging or non-compliance with such instructions shall be to Supplier’s account.

If prices decrease in the period between offer and delivery (e.g., in case of changes of list prices), such price reduction shall be fully passed on to the Company.

If the Supplier grants a third party more favourable conditions for comparable purchase orders, the terms and conditions of the contract shall subsequently have to be adjusted accordingly (by price reduction or credit note).

8.       Invoices and Delivery Notes

Purchase Order number, item number and serial numbers, if any, according to the Purchase Order of the Company shall be stated with each and every invoice item and delivery note item.

Invoices shall contain detailed information on Purchase Order number, Purchase Order date and delivered Products (indication of type and quantity) and shall comply with the provisions of the law of Georgia, failing which the invoice amount shall not become due.

In case of deliveries within the EU every invoice and delivery note shall contain the commodity code and the net weight of the goods as well as the VAT number of the Supplier and the Company.

In case of deliveries to non-EU countries a delivery note as well as four copies of the invoice shall be enclosed with the Products in addition. Upon request of the Company the Supplier shall be obliged to provide a certificate of preferential origin.

9.       Delivery and delay in delivery

Delivery dates requested by the Company and/or agreed delivery dates or completion dates shall be deemed fixed dates and shall mean that the Products shall be available to the Company at the advised delivery date and the advised delivery address complete and ready to use.

All deliveries are expected to take place during Normal Working Hours of the Company. The Company has the right to change the time and destination of delivery of a Purchase Order, if it informs the Supplier about the change(s) immediately in writing.

In case of a delay in delivery the Company shall be entitled, notwithstanding any other statutory or contractual claims, to rescind the Purchase Order without granting a grace period. If the Supplier is not able to comply with the agreed delivery dates or completion dates, the Supplier shall inform the Company thereof in writing in advance as early as possible. Irrespective of compliance with this duty to inform the Company, any and all damage suffered by the Company as a result of a delay in delivery of the Supplier, be it due to the Supplier’s fault or not, shall be to the account of the Supplier.

If the agreed delivery period is not observed for reasons other than force majeure, the Company shall, in addition, be entitled to claim payment of a contractual penalty irrespective of fault in the amount of 5% of the total Purchase Order value per each week commenced by which the delivery is delayed, up to a maximum amount of 30% of the total Purchase Order value, subject to the right of the Company to claim higher damagers in the event the Company would suffer a higher damage.  Assertion of claims for damages shall remain unaffected despite payment of the contractual penalty. The payment of the penalty shall not release the Supplier from fulfilment of the Purchase Order.

If execution of a Purchase Order requires import, export or other official licences or permits or the consent of third parties, the Supplier shall procure the same in a timely manner. In case of an early delivery the Company reserves the right to invoice to the Supplier additional costs resulting therefrom, such as storage costs, or to reject the delivery.

10.    Payment and Assignment Prohibition

The agreed payment periods shall commence only after receipt of the invoice and subject to the provision that the invoice has been duly issued as per the Invoice and Delivery Notes clause or upon receipt of the Products or as of the agreed delivery date, whichever event occurs last, and in case of complaints only after complete settlement of the same. Accounts receivable may only be assigned by the Supplier with the prior written consent of the Company. Payment shall not mean that the Company accepts the delivery and/or service to be in order and, thus, means no waiver of any claims.

In the absence of a different express agreement duly signed by the Company, the Company shall pay invoices within 60 days’ end-of-month.

11.    Acceptance and Warranty

The warranty period shall be 24 months and shall commence on the day on which the Products are delivered. If an acceptance procedure has been agreed, the warranty period shall commence upon acceptance. In case of replacement delivery or repair of defects the warranty period regarding the Products concerned shall commence anew also with respect to all defects yet undetected.

For notifying defects as well as for asserting and enforcing of other statutory or contractual claims within the warranty period the Company shall not be bound by any periods provided by law or otherwise prescribed as regards obvious or hidden defects.

The Supplier waives his right to claim late notice of defects.

As regards defects which cannot be detected within the warranty period even with financially reasonable and customary efforts, the Company shall have the right to give notice of defects even after expiration of the warranty period, for at least 3 months after the defect has been detected, and the Supplier shall be obliged to also provide warranty for such defects.

Confirmations on the receipt and/or on the acknowledgement of receipt regarding acceptance of the Products shall always be subject to reservation, i.e. Products shall only be considered accepted if in the course of the subsequent inspection no short deliveries and/or defects are identified.

Notwithstanding any claims provided for by law, the Company shall, in case of defect covered by warranty, be entitled to claim, at its option, substitute delivery free of charge, repair of defects free of charge, cancellation of Purchase Order or a reasonable price reduction or may have the identified defects repaired at the cost of the Supplier even if the defects are of a minor nature or can be repaired. If a grace period has to be granted to the Supplier, a maximum period of 14 days shall in any case be deemed reasonable. In urgent cases the Company shall be entitled to carry out necessary repair work or substitute deliveries at the cost of the Supplier without granting a grace period and in a way which is appropriate to the Company, or to have third parties carry out the said repair work. For the rest, the Supplier’s warranty for deliveries where identified defects are repaired by the Company or by third parties shall continue to apply.

If a defect becomes obvious only in the course of processing of the delivered Products by the Company and such defect results from non-compliance with the specifications asked for by the Company in the Purchase Order and/or non-compliance with quality customary in trade, the Company shall, among other things, be entitled to reimbursement of the expenses incurred in vain in connection with use of the defective material as damages. The Supplier shall fully indemnify and hold the Company harmless from and against all warranty claims and/or claims for damages which are caused by the delivered Products.

During the warranty period the Company may retain an amount of up to 10% of the Purchase Order value, which shall not bear interest, for warranty purposes.

At the time of acceptance by the Company no third party security rights of whatsoever kind may be attached to the delivered Products; otherwise the Supplier shall indemnify and hold the Company harmless from and against any damage resulting therefrom.

12.    Product Liability

The Supplier undertakes to reimburse the Company all damage under product liability with regard to the Products delivered by him, and to indemnify and hold the Company harmless from and against all third party product liability claims with regard to personal injury and damage to property and any pecuniary loss resulting therefrom.

If the Supplier becomes aware of circumstances which might lead to claims under product liability, he shall be obliged to immediately inform the Company thereof and to reimburse the Company for all expenses incurred and damage suffered by the Company in connection with any factory recalls of defective Products and/or expenses and damages the Company has to pay to third parties.

If legal disputes arise regarding cases of product liability, the Supplier shall make available all useful evidence in a timely manner, use his best efforts to support the Company and reimburse the Company reasonable costs of such legal disputes.

13.    Production documents

Documentation provided by the Company to the Supplier shall remain the tangible and intellectual property of the Company, of which the Company may freely dispose. They shall be kept secret by the Supplier. The Supplier shall pass on the secrecy obligation to all staff who will have access to such Documentation.

14.    Copyrights and Patent Rights

The Supplier shall be obliged to fully indemnify and hold the Company harmless from and against all disputes regarding patents, trademarks, design protection or copyright which are related to the Products. In particular, the Supplier shall warrant that the Products shall be useable, communicable, and utilisable by the Company in any form (e.g., by dissemination via electronic media like the internet, as part of a software, etc.). As a matter of principle, the Company shall also be entitled to make translations or other modifications of at the work of the Supplier.

15.    Subcontractors

The Supplier shall not be entitled to have the Products which are the subject-matter of the Purchase Order completely rendered by a subcontractor. The Supplier shall be entitled to commission third parties with parts of the Products, provided that the Company has agreed to this procedure in writing in advance. If the Supplier commissions parts of the Purchase Order to third parties, the Supplier shall be fully responsible and liable vis-à-vis the Company for the behaviour of such third parties. The Supplier shall impose on the subcontractor all contractual obligations and liabilities of the Supplier and shall prove proper imposition at any time at the request of the Company.

16.    Secrecy

The Supplier undertakes to maintain secrecy about the information of which he obtains knowledge in connection with the Purchase Order or execution of the Purchase Order to the extent that the same is not generally known or has not otherwise become legally known to him. The Supplier shall use data that has become known to him exclusively for the purpose of execution of the Purchase Order. The Supplier shall protect such data and information from access by third parties and shall subject his staff members and agents as well as subcontractors involved to the same secrecy obligation. The provisions concerning secrecy and data protection shall apply also after complete performance of the Purchase Order and termination of any and all contractual relationships with the Supplier.

After performance the Supplier shall return, destroy or, in case it is respectively agreed in the Purchase Order, store all Documentation and data provided by the Company as well as any copies made thereof. The Supplier may comply with his statutory obligations regarding information, rectification and deletion of data but shall in that case inform the Company as early as possible, if possible in advance. The Supplier shall provide all necessary documents so that compliance with his obligation can be proven.

To the extent that the Supplier can access information or data of the Company via the internet, the Company shall be entitled to inspect or have inspected performance and the service of the Supplier for security gaps.

The Supplier agrees that data related with the Purchase Order and its performance, also data of the Supplier, may be processed by the Company and transmitted to affiliated companies of the Company.

The Supplier undertakes to pay to the Company a contractual penalty irrespective of fault in the amount of EUR 100.000,00 for each individual breach of this secrecy obligation. Any claims for damages shall remain unaffected despite payment of the contractual penalty. The payment of the penalty shall not release the Supplier from fulfilment of the Purchase Order.

17.    Termination of the Purchase Order

The parties shall, notwithstanding all of its other rights, be entitled to terminate the Purchase Order with immediate effect if:

• the other party has committed a severe breach of the Purchase Order; or
• bankruptcy proceedings have been opened over the assets of the other party or the opening of bankruptcy proceedings has been dismissed for lack of assets or if composition proceedings have been applied for; or
• facts exist which obviously render any further proper performance of the Purchase Order impossible.

If the Company rightfully rescinds the Purchase Order, the Company may at its discretion either keep Products already delivered against payment of the pro-rata price or return such Products at the cost of the Supplier. The Supplier shall compensate the Company for any damage or disadvantages suffered because of early termination of the Purchase Order.

18.    Severability

If any of the provisions of this Agreement are or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

19.    Legal Venue and Applicable Law

The Purchase Order shall be governed by the internal laws of Georgia..

In case of a dispute, the parties will attempt to resolve the dispute through mediation in accordance with the mediation rules of the BBMC.