Go to Plasma-Therm NES LLC Terms & Conditions
Plasma-Therm Commercial Terms & Conditions
General Terms of Purchase ("GTP") of Plasma-Therm
LLC ("Plasma-Therm"). Updated Sept. 8, 2015.
1. Scope of Application
1.1 These GTP set forth the conditions governing
the purchase of products by PLASMA-THERM from the Supplier
and deliveries made by the Supplier to Plasma-Therm.
1.2 Contrary or inconsistent terms and conditions
of the Supplier shall not be deemed accepted by PLASMA-THERM, unless PLASMA-THERM shall have agreed thereto in writing.
1.3 These GTP shall apply (and not the terms and
conditions of the Supplier) even in cases where PLASMA-THERM
unreservedly accepts deliveries from the Supplier knowing
that the Supplier has contrary or inconsistent terms
1.4 The scope of delivery, specifications, objectives,
delivery dates and the prices for deliveries pursuant
herein shall be set forth in separate orders. Upon Supplier's
accepting an order a delivery agreement shall come into
effect with respect to the items covered by such order.
These GTP constitute an integral part of each order
and delivery agreement.
2.1 By the tender invitation the Supplier acting
as specialist is asked to submit an offer at no charge.
The supplier shall focus the offer on the specifications
and objectives of PLASMA-THERM and explicitly point
out any deviations; the Supplier, therefore, acknowledges
his duty to inform. If the Supplier does not limit the
validity of his offer it will be considered to be binding
for 90 days.
3.1 To be effective, orders must be in writing. Acceptance
of an order by a Supplier shall be deemed effective
if it is in writing. The Supplier confirms each order
in writing at the latest within 5 (five) working days.
3.2 If the conclusion of a delivery agreement is
made dependent on an order confirmation, PLASMA-THERM
shall be bound only if this confirmation of order does
not deviate from the content of the order.
3.3 The scope of the delivery includes, and the Supplier
shall not be deemed to have satisfied its delivery obligations
unless and until it delivers to PLASMA-THERM everything
required for the proper installation, operation, and
functioning of the product, regardless of whether mentioned
or described in the specification set forth in or related
to the order.
3.4 Orders must be processed in compliance with ISO-9001.
Further quality agreements will be set out on an order-specific basis. The following documents, records, data, and specifications, in particular, are authoritative in determining quality: order, drawings, standard sheets (PLASMA_THERM standards and indications and data on drawings), specifications.
3.5 Parts and modules identified by PLASMA-THERM
in writing as proprietary shall not be made available
to third parties without the written consent of PLASMA-THERM.
4. Prices and Terms of Delivery
4.1 The prices of the Supplier are considered to
be fixed prices in the currency indicated on the order,
Ex Works factory. PLASMA-THERM is responsible for freight and all related expenses as long as PLASMA-THERM pays for such expense. Any other incoterms used should be clearly stated on the purchase order released by PLASMA-THERM (INCOTERMS 2010). Other terms of delivery shall be as set forth in the order or as
otherwise set forth in writing by the parties. The Value
Added Tax shall be indicated separately.
4.2 The Supplier shall be liable for any damages
arising during transport due to inadequate packing.
4.3 At its own expense, the Supplier shall add to
each delivery all according to the applicable law required
documentation (such as conformity or manufacturer declaration).
In addition a delivery note must be enclosed in each
shipment with the following details: PLASMA-THERM'S
order and product number, the detailed description of
the contents and whether a partial, sample or full
delivery is in question. Additional documents can be
5. Terms of Payment
5.1 The order number, the exact trademark/goods'
designation as well as the number of the drawing or
the part must be indicated on all correspondence, confirmations,
delivery notes, invoices, etc.
5.2 Two copies of a separate invoice shall be executed
for each order as well as for each delivery.
5.3 Payment for each delivery shall be made by PLASMA-THERM
with 60 days net. Other terms of payment shall be as
set forth in the order or as otherwise agreed upon by
the parties in writing.
5.4 "Early Deliveries" — Invoice Payments. Early
receipts will be accepted outside of PLASMA-THERM LLC's
authorized delivery range which varies from five (5)
days earlier and up to two (2) days past the suppliers
confirmed delivery date. Invoices sent against those
early receipts will be held until the purchase order's
requested delivery date is reached. Invoices will then
be settled as per the negotiated payment terms.
6. Dates of Delivery, Late Delivery and Packaging
6.1 The delivery is due at the destination on the
date(s) stipulated in the order. If a fixed calendar
delivery date has been agreed upon, late delivery puts
Supplier automatically in default, unless the Supplier
communicates his delivery difficulties in due time and
the parties agree on a different solution.
6.2 PLASMA-THERM is entitled to claim as compensation
for damages resulting from delay for each whole or partial
week by which the delivery date is exceeded a flat rate
of one percent of the net sale price, up to a maximum
amount of 5% of the delivery's net sales price. The
requirement of prior notice, insofar as a delivery date
is not determined by the calendar, remains unaffected
by this provision. If the Supplier is late with only
part of the delivery, the penalty for default shall
be calculated on the price of the Supplier's total performance
that is affected by the late partial delivery. The foregoing
provisions of this paragraph 6.2 are in addition to
and not exclusive of any other remedy that may be available
to PLASMA-THERM, nor shall PLASMA-THERM'S enforcement
of any other rights it may have be deemed or construed
to affect or waive any of its rights hereunder. The
Supplier's payment of damages required by this paragraph
6.2 does not release the Supplier from its duty to fulfill
the delivery according to the agreement.
6.3 The Supplier may plead omission of essential
services to be performed by PLASMA-THERM only if he
had requested these on time.
6.4 Over, partial, or early deliveries are admissible
only if they have been agreed upon.
6.5 If the Supplier is in default with his delivery
and if in transactions without a fixed calendar delivery
date the Supplier remains in default with his delivery
after a reasonable grace period, PLASMA-THERM shall
thereafter be entitled to refuse acceptance of the delivery
and to either withdraw the related delivery agreement
and/or to seek damages for non-fulfillment of the delivery
obligation. The amount of any penalty for default according
to paragraph6.2 above shall be credited against any
damages to which PLASMA-THERM may be entitled under
this paragraph 6.5.
6.6 If it becomes evident already prior to the delivery
date that the Supplier will not be able to meet the
agreed delivery date, PLASMA-THERM may terminate the
delivery agreement and waive delivery. 6.5 shall apply
6.7 The delivery agreement may also be terminated
if in the course of manufacture it becomes evident that
the object to the delivered will not be suitable for
the purpose intended.
6.8 All deliveries are to be packed according to
the requirements of the goods and the route of transportation
as well as the transportation kind. The Supplier binds
himself to the free withdrawal of the packaging materials
in the address of delivery named by PLASMA-THERM.
7. Warranty, Liability
7.1 The Supplier expressly warrants the guaranteed
product features and the specifications specified in
the delivery agreements as well as that the products
it delivers are free of defects which will reduce their
value or fitness for normal use as well as their useful
life under known conditions of use. In addition to the
warranty of product features in the delivery agreements
and the terms thereof notwithstanding, the Supplier
warrants that each product delivered pursuant to the
delivery agreements (i) has been tested and controlled
and meets all industry standards and all legal requirements
under existing laws, regulations and directives relating
to design, safety, fire and environmental protection
and (ii) has been designed in a manner not to endanger
life and health if the product is used as directed.
7.2 PLASMA-THERM is not obliged to inspect any product
for defects or notify Supplier of defects in order to
maintain PLASMA-THERM's warranty claims, except for
warranty claims in respect of obvious defects.
7.3 Contrary to a possible legal prescriptions the
warranty in respect of each product delivered by the
Supplier to PLASMA-THERM shall survive for a period
of 24 months from the date the product is delivered
to PLASMA-THERM. The Supplier at its expense and free
of charge to PLASMA-THERM, shall promptly, upon request
by PLASMA-THERM, repair all defects (which shall also
include the not achieved guaranteed specification and
the absence of any guaranteed product feature) of which
PLASMA-THERM gives the Supplier notice during the warranty
period. In addition, PLASMA-THERM shall be entitled
to all legally guaranteed warranty claims. Notwithstanding
the foregoing, PLASMA-THERM may, at its election and
as an alternative to the Supplier's repairing a defective
item, require the Supplier to replace the defective
item with a non-defective item. In the exercise of this
right of discretion, PLASMA-THERM shall consider in
good faith whether the Supplier is capable of making
repairs due to the nature of its business operation.
In either case, the Supplier shall bear all expenses
arising from the repair or replacement of the defective
7.4 For replacement deliveries and repairs the Supplier
grants a warranty of 24 months.
7.5 PLASMA-THERM shall be entitled to cancel a sale
or to get a sales price reduction on account of a material
defect only if (i) the Supplier fails to replace or
repair a defective item by such reasonable deadline
as may be set by PLASMA-THERM in its discretion or if
(ii) the Supplier declines to replace or repair a defective
7.6 PLASMA-THERM shall be entitled to have a defective
item repaired by a third party and to charge the costs
thereof to the Supplier without giving the Supplier
an opportunity to repair the defective item if, due
to special urgency or other valid business reasons,
PLASMA-THERM reasonably believes the Supplier is incapable
of repairing the item to PLASMA-THERM's requirements.
In this case, PLASMA-THERM shall immediately notify
the Supplier of the defect upon PLASMA-THERM's discovery
7.7 The Supplier shall be liable for all damages,
including consequential damages, caused by the breach
of any warranty applicable to a product delivered to
PLASMA-THERM pursuant hereto.
7.8 The Supplier shall indemnify and hold PLASMA-THERM
harmless against any loss or claim, including the cost
of defending against any such claim, against PLASMA-THERM
arising from any act or omission of the Supplier or
any breach of warranty by the Supplier that causes or
is alleged to have caused personal injury or damages
to the property of any third party. The Supplier is
liable for his subcontractors to the same degree as
for his own performance.
8. Product Liability, Indemnification, Insurance
8.1 The Supplier shall indemnify and hold PLASMA-THERM
harmless against any third-party claim for damages against
PLASMA-THERM insofar as a product delivered by the Supplier
to PLASMA-THERM was the cause of the damage or the cause
of the damage was within the Supplier's control.
8.2 The Supplier shall also reimburse PLASMA-THERM
for all expenses arising in connection with any recall
measure taken by PLASMA-THERM to repair or replace any
defective product if either (i) the defect was caused
by a defective item delivered by the Supplier to PLASMA-THERM or (ii) prevention of the defect was otherwise within the Supplier's control. To the extent it may reasonably be expected to do so,PLASMA-THERM will notify the Supplier of recall measures to be taken.
8.3 The Supplier shall obtain and maintain in full
force and effect during the term of the related delivery
agreement and for at least five years following the
termination thereof, a commercial general liability
and product liability insurance to cover all claims
hereunder or otherwise related to any product delivered
or required to be delivered under any delivery agreement;
such insurance shall provide coverage of at least USD
5,000,000 per damage event. This shall be confirmed
by the insurer to PLASMA-THERM at least once per year.
9. Third Parties’ Intellectual Property Rights
9.1 The Supplier represents and warrants to PLASMA-THERM
that the delivery to, and use by, PLASMA-THERM of the
Supplier's products in accordance with the terms of
these GTP and any delivery agreement concluded hereunder
will not infringe any patent, trademark, trade secret
or other intellectual property rights of any third party.In
case any such third party claim of infringement is made
against PLASMA-THERM, the Supplier shall indemnify and
hold PLASMA-THERM harmless against such claim.
10. Technical Documents and Operating Manuals
10.1 To the extent necessary, PLASMA-THERM will provide
Supplier with all technical documents that it requires
for performance of the contracted work. All documents
placed at disposal to the Supplier remain in the sole
property of PLASMA-THERM and shall be returned immediately
on first demand.
10.2 Before work on the product is started the Supplier
shall submit to PLASMA-THERM, on request, a set of engineering
drawings for approval. Approval by PLASMA-THERM does
not relieve the Supplier from ensuring that the product
can be built and that it will function according to
10.3 All documents prepared by Supplier on the basis
of PLASMA-THERM specifications shall be provided to
PLASMA-THERM in a set of drawings that can be photocopied
or microfilmed and/or in the form of CAD data.
10.4 Furthermore, with the delivery of the product
PLASMA-THERM shall be provided with the final engineering
drawings, maintenance instructions and operating manuals
as well as the spare parts list for proper maintenance
in electronic form (PDF file) in English free of charge.
10.5 PLASMA-THERM is entitled to copy and publish
all documents provided by Supplier at its own discretion.
11. Service and Repairs
11.1 The Supplier shall provide a repair and maintenance
service staffed by qualified technical experts for each
product delivered to PLASMA-THERM for a period of at
least 10 years after delivery of the product to PLASMA-THERM.
11.2 The Supplier warrants the availability of original
spare parts for each product delivered to PLASMA-THERM
under any delivery agreement for a period of at least
10 years after delivery of the product to PLASMA-THERM.
11.3 All repair and maintenance work shall be performed
by the Supplier to industry standards.
12. Inspection Right
12.1 PLASMA-THERM has the right to inspect the work
in progress; however, this does in no way change or
diminish the Supplier’s obligation to fulfill his contractual obligations.
13. Assembly and Installation
13.1 If the Supplier also undertakes the assembly
and installation, these works shall be included in the
delivery price unless separate payment has been agreed
14. Secrecy and Product-related Exclusivity Agreement
14.1 The Supplier shall not use for any purpose not
authorized by the delivery agreements concluded hereunder
or disclose to any third party any trade or manufacturing
secret or customer data of PLASMA-THERM. In particular,
the Supplier shall not use any manufacturing know-how
made available to the Supplier by PLASMA-THERM in any
form to manufacture or have manufactured for other customers
products similar to or comparable with any product subject
to a delivery agreement entered into hereunder. The
Supplier shall cause each of its employees and subcontractors
to agree by appropriate contractual measures to be bound
by the foregoing provisions of this paragraph 14.1.
14.2 Paragraph 14.1 shall survive the termination
of the delivery agreement concluded hereunder. Paragraph
14.1 shall not apply to manufacturing know-how of PLASMA-THERM
that is embodied in figures, drawings, calculations
or other documents that are publicly disclosed by PLASMA-THERM.
15. Applicable Law, Place of Jurisdiction, Place
15.1 These GTP and the individual delivery agreements
concluded hereunder shall be construed in accordance
with, and governed by the applicable laws at the domicile
of PLASMA-THERM. The regulations of applicable
laws at the domicile of PLASMA-THERM shall be of subsidiary
application to the express provisions of these GTP and
the delivery agreements concluded hereunder. For any
litigation arising out the cooperation with the Supplier,
the ordinary courts at the registered office of PLASMA-THERM
shall have the jurisdiction, provided that PLASMA-THERM
shall always be permitted to bring any action or proceeding
against the Supplier in any court of competent jurisdiction
15.2 Unless otherwise provided for in writing, place
of performance shall be at the domicile of PLASMA-THERM.
16. Conflict Minerals Policy
Plasma-Therm LLC is committed to ethical business
practices and compliance with applicable laws and regulations.
In July 2010, the United States passed the
Dodd-Frank Wall Street Reform and Consumer Protection
Act (“Dodd-Frank”). In August 2012, as directed by Section
1502 of Dodd-Frank, the U.S. Securities and Exchange
Commission (“SEC”) adopted final rules regarding Conflict
Minerals (the “Conflict Minerals Rule”). “Conflict Minerals”
refers to gold, tin, tantalum and tungsten, as well
as the derivatives of cassiterite, columbite-tantalite
and wolframite, regardless of where they are sourced.
The Conflict Minerals Rule requires publicly traded
companies and their suppliers to report annually on
the presence of Conflict Minerals in the products they
manufacture, and to demonstrate the proper level of
due diligence in determining whether such Conflict Minerals
originate from an area described as the “Covered Countries”
(which is defined as the Democratic Republic of Congo
and adjoining countries). Plasma-Therm does not directly
source any of these materials, but does use refined
metals in the manufacturing of its products. As a result,
suppliers of metals used in the manufacture of Plasma-Therm
products (specifically gold, tin, tantalum, and tungsten)
must demonstrate that they understand the Conflict Minerals
Rule and will not knowingly procure specified metals
that originate from any of the Covered Countries. Plasma-Therm will perform regular due diligence with its suppliers to verify compliance with the Conflict Minerals Rule and will work with suppliers to seek remedies for non-compliance.
17.1 All modifications and supplements to these GTP
(including, without limitation, this paragraph 17.1),
all delivery agreements concluded hereunder and all
modifications and supplements to such delivery agreements
shall only be effective if embodied in a written instrument
signed by each of the parties hereto.
17.2 Neither party may assign or transfer any of
its rights and duties under these GTP or any delivery
agreement concluded hereunder without the prior written
consent of the other party.
17.3 This GTP have been fixed in compliance with
the relevant applicable laws at the domicile of PLASMA-THERM.
In the event any term or provision of these GTP shall
for any reason be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof. Such illegal,
invalid or unenforceable provision shall be replaced
by another valid, legal and enforceable provision in
form and substance suitable to ensure the overall business
intent of the parties hereto.
17.4 The Supplier expressly agrees that
PLASMA-THERM may store and process the corporate data
of the Supplier.