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TERMS AND CONDITIONS OF SALE

Any and all sales by Seller of products (“Products”) shall be subject o the terms and conditions set forth below to the extent such terms and conditions do not conflict with any other contractual provisions between Buyer and Seller.  No other general terms and conditions that may be referred to in Buyer’s orders shall apply, even if these have not been rejected explicitly by Seller.

1. DELIVERY
Delivery dates set forth in any order are indicative and Seller accepts no responsibility for any delay, unless the delivery dates are confirmed in writing by Seller.  Products hall be delivered in accordance with the international commercial terms (Incotertms 2000) mentioned in the acknowledged order and the Seller shall only bear such  risks, obligations and expenses as required under the agreed upon Incoterm.   Products shall be delivered in Seller’s standard package with Seller’s standard labeling and markings.

2. TITLE AND RISK
Title to the Products shall pass to Buyer after the price thereof has been paid in full to Seller.  Until Buyer has obtained title to the Products, Buyer shall ensure that the Products in its possession shall at all times be readily identifiable by Seller as Seller’s property on Buyer’s premises.  At Seller’s request, Buyer shall execute all documents and do all acts which may be necessary or desirable to enforce the retention of title by Seller in Buyer’s country.  Regardless of any retention of title by Seller, the risk of damage to or loss of the Products sold or any portion thereof shall in any event pass to Buyer as from the moment the Products have been shipped to Buyer in accordance with the agreed upon Incoterm.

3. TAXES AND DUTIES
Any taxes, duties, excises and other charges, including without limitations VAT, now or henceforth levied in connections with the sale of the Products hall be borne by Buyer, except for those taxes and duties which are payable by Seller prior to the delivery of the Products pursuant to the agreed upon  Incoterm.

4. INVOICING – PAYMENT – DEFAULT
Seller shall invoice Buyer, and Buyer shall pay to Seller, the price of the Products in US Dollars (“$” or “USD”) on a shipment per shipment basis.  Buyers shall pay Seller’s invoices within  twenty five (25) days as from the date of Seller’s invoices or within specified contract  terms, without any deductions, set-off or reduction whatsoever, except as may be agreed upon by Seller in writing.  If payment is delayed, Buyer shall owe Seller five percent (5%) interest on any overdue amounts. The interest shall also be payable during any extension of the payment terms for whatever reason.  Payment of such interest on arrears shall no0t entitle Buyer to delay payment of the principal amount.  The extension of the payment term shall in no event result in a novation.    Seller may also apply a surcharge of ten percent (10%) on the overdue amount, with a minimum of Fifty Dollars (50$) to compensate Seller for increased administration costs and expenses.  In addition, non-payment of a invoices on the due date shall without summons automatically nullify the payment terms and any extension of the period which Seller may have granted for payment of deliveries already effected and shall render all invoices immediately payable.  Moreover, in such circumstances and/or in the event Buyers becomes insolvent or his credit become impaired in the reasonable opinion of Seller, Seller shall have the right to change with immediate effect the payment conditions then in effect to “cash in advance” or to request Buyer to furnish adequate security with no formalities other than a notification by registered letter.  If Buyer fails to comply with Seller’s payment terms or is unable to provide satisfactory security, Seller may at its option, suspend  further deliveries or cancel all current orders for Products until full payment or until satisfactory security has been received by Seller.  Any claim by Buyer shall not entitle Buyer to delay or withhold payment of the overdue amounts.

5. CHANGES
Buyer may request changes to any order at any time prior to shipment of the order by submitting a written change order
(* Change Order*) to Seller.  Seller may accept or reject a Change Order in its sole discretion, but will endeavor to accommodate and requested changes in good faith.  Change Orders will be binding upon Seller only when signed by an authorized representative of Seller, and only once an equitable price change has been made.  In the event that delivery dates are moved six (6) months past the original agreed upon date a 5% per month warehousing fee will be assessed.   In those circumstances where Seller has authorized the return of the Products in writing, shipping charges relating to the return incur a 15% re-stocking fee.

6. INSTALLATION – ACCEPTANCE TEST
In case of the Seller has accepted in writing to assist in or to perform the installation of the Products, Seller or its designee shall be entitled to delay or suspend such installation unless Buyer meets Seller’s (pre) installation requirements and performed all installation work to be carried out by Buyer or its contractors.  In case Seller has agreed that the Products are subject to an on-site acceptance test, Seller and Buyer (including as the case may be the user of the Products) shall review based upon the acceptance procedures and tests agreed upon in writing whether the Products meet the specifications.  Any operational use of the Products by the Buyer or any other user shall be a final acceptance, and failure to complete the tests within a period of ninety (90) days following shipment (bill of lading date) shall be an unqualified acceptance of the Products and waiver by Buyer of all claims with respect thereto.

7. FORCE MAJEURE
Neither party is liable to the other for default or delay in the performance of any of its obligations (except for any payment obligation) due to Acts of God, war, terrorism, fires, explosions, strikes riots, civil or international wars, invasions, refusal by governments to grant  import or export licenses or the cancellation thereof, inability to obtain Products and/or raw materials and/or components because of Force Majeure at the producing location, or contingency of a supplier of goods and services or any other similar or dissimilar cause beyond the reasonable control of either party.  In the event the availability o Products is limited due to a Force Majeure, Seller shall allocate available Products amongst its existing customers at Seller’s sole option.

8. WARRANTY

Warranties – Warranties shall be for the term set forth herein, unless otherwise specified in a proposal or quote issued by Seller.

  1. Hardware: Seller warrants that upon delivery hereunder the Products shall (i) conform to its specifications in effect at the date of delivery and (ii) be free from defects in material and workmanship (the “Warranties”).
  2. Software: Seller warrants that software written by Seller shall perform substantially in accordance with the specifications in effect at the date of delivery.  Software is inherently susceptible to bugs and errors.  Seller makes no warranties with respect to the software which is provided to Buyer on an “as-is” basis and does not warrant uninterrupted or error-free operation of the Products.
  3. The Hardware Warranty period is one (1) year commencing on the  date of delivery or, if applicable, the date of acceptance or the Product as per Section 6.
  4. The Software Warranty period ninety (90) days commencing on the date on delivery or, if applicable, the date of acceptance as per Section 6.

After expiration of the Warranty Period, Seller and Buyer shall, at Buyer’s request, negotiate in good faith the scope and mutually acceptable terms and conditions of after sales services to be provided by Seller.

Conditions precedent for Warranties to apply

The Warranties shall apply only to the extent the Products or any parts thereof have

  1. Been transported and stored at all times in he original packaging in the conditions as specified by Seller (such as covered and secure location,  minimum temperature maximum humidity) or, in absence thereof, at least in conditions consistent with generally accepted practice for this type of products.
  2. Been handled at all times in accordance with Seller’s instructions, or, in absence thereof, at least with the care and caution consistent with generally accepted practice for this type of products.
  3. Been installed strictly in accordance with the instructions and directions given by Seller (if and to the extent the Products have not been installed by Seller or its authorized subcontractors).
  4. Not been subject to not any unauthorized access, alterations, modifications or repair or attempts thereto.
  5. Been at all times “normally used” for the specified purpose and operated and maintained in strict accordance with he operating maintenance instructions set forth in the operating and maintenance manual of the Product or in absence thereof, at least with intervals and in a manner consistent with generally accepted practice for this type of products, and shall not have been otherwise misused, abused, damaged.  For the purpose hereof “normally used” shall mean a regular, ordinary and routine usage of he Products in question as intended and/or recommended by Seller.
  6. Not been connected to or used in combinations with other equipment, products or systems (hardware and/or software) which are not compatible with the specifications of the Product in question.

In no event shall Seller be liable, whether during or after the expiration of the Warranty Period for any defects, failures, loss of or damage to the Products or any part thereof which are caused by or resulting from wear and tear or any force majeure event referred to in Article 7 above or Buyer’s use or operation of the Product prior to the completion of Seller’s acceptance test for the Product or any action or negligence on the part of Buyer or any third party (including without limitation Buyer’s employees, customer, agents, carriers and contractors).  In such case the repair or replacement of the Product or any part thereof shall be a Buyer’s sole option and cost.  Any Product or any part thereof which is entirely manufactured by third parties is subject to the original manufacturer’s warranty and no separate warranty is given in respect thereof by Seller.

Claims for repair or replacement under Warranties
Any claim under the Warranties must be notified to Seller in writing within 8 days from the date the defect or failure has been discovered or noticed the first time.

Remedies under the Warranties

  1. Hardware:  If during the Warranty Period a Product or any part thereof, fails to meet any of the Warranties then, upon Buyer’s request, Seller shall, at its sole option and cost, and without undue delay, either repair or correct the Product or part, or replace the Product or supple Part(s) or component(s).  A replacement part shall be at least functionally equivalent to the original part.  The replaced Product, parts and/or components shall become the property of Seller and shall at Seller’s request be returned by Buyer to Seller.
  2. Software: Seller’s sole obligation shall be to rectify substantial malfunctions of the software (to he extent technically reasonable possible), by amending the software or supplying an alternative version of the software.
  3. The repair or replacement under the Warranties covers the cost of material and labor.

Return of defective Product or parts to Seller and back to Buyer

The repair or corrections of the defective Product or part shall be carried out a Seller’s repair facility, unless Seller has agreed to perform the repair or replacement at the locations where the Product is installed.  In no event shall Buyer return a defective Product or part thereof to Seller without Seller’s prior written approval, in which case Seller shall issue to Buyer a RMA (Return Material Authorization) number.  The one-way cost of packing, transport and insurance related to shipping the allegedly defective Product or part to Seller for repair or replacement shall be borne by Buyer and Buyer shall pack the Products correctly so as to protect them from transport damages.  The one-+way cost of packing, transport and insurance related to shipping o the repaired or replacement Product or part to Buyer shall be borne by Seller.  The travel time and the travel and living expenses of the service engineerappointed by Seller, back and forth to the locations where the allegedly defective Product is installed, shall be charged to and paid by Buyer in accordance with Seller’s then applicable rates and procedures.  The remedies specified in this Article 8 shall constitute Buyer’s sole and exclusive remedy and Seller’s sole and exclusive liability for Seller’s breach of the Warranties hereunder.  Seller neither makes nor intends to make any other warranties or representations, express or implied, and it expressly excludes and disclaims an and all warranties which may be implied or otherwise created by operation of law including without limitation all implied warranties of uninterrupted or error-free use or operation, and merchantability and fitness for particular propose.

9. CLAIMS
Except for the acceptance test referred to in article 6 above or claims for breach of the Warranties, Buyer’s failure to give notice to Seller of any claim (including without limitation claims for delayed delivery or non-delivery with regard to the Products delivered hereunder) within 8 days after the delivery of a Product shall be an unqualified acceptance of such Product and a waiver by Buyer of all claims with respect thereto  Buyer is responsible for making any claim for loss of and/or transport damages to Products against the carrier immediately upon delivery and notifying Seller accordingly.   Contested Products must be kept at Seller’s disposal and can only be returned to Seller with Seller’s prior written consent.

10. TERMINATION – CANCELLATION
In the event that a petition in bankruptcy is filed by or against Buyer, or Buyer is declared bankrupt, or Buyer becomes insolvent or his credit becomes impaired in the reasonable opinion of Seller, or proceedings are initiated by or against Buyer seeking appointment or a receiver, reorganization, liquidation, dissolution, debt rearrangement or any other similar relief, or if Buyer fails to perform or fulfill at any time any material obligation or condition hereunder, Seller, at its discretion, shall have the right to either request the performance or to terminate the sale with immediate effect without prior summons or notice period by registered letter.  In the latter case, Seller shall be entitled, without prejudice to any other remedies, to repossess the Products without the intervention of any court of justice and Buyer shall assist Seller hereto.  In such case, Buyer shall not be entitled to any compensation.  If Buyer cancels an order, Buyer shall pay Seller an indemnity equal to 20% of the order amount, without prejudice to Seller’s right o seek reimbursement equal to its actual losses.  Advances which have already been paid will accrue definitively to Seller to the extent of the compensation due.

11. LIMITATION OF LIABILITY
Seller’s exclusive liability and Buyer’s exclusive remedy for any and all claims as to the Product delivered or for delayed delivery or non-delivery thereof, whether arising out of contract, warranty, negligence, Seller’s failure to comply with laws and regulations, strict liability or otherwise, shall be limited to the price of the Product in relation to which the claim is made or, at Seller’s option, the replacement thereof.    In no event shall either party be liable for special, incidental, punitive, indirect or consequential damages, (including without limitation loss o profits, business, revenue, goodwill or anticipated savings) whether or not caused or resulting from the negligence or willful misconduct  of such party.

12. THIRD PARTY RIGHTS
Seller shall hold harmless and indemnify Buyer from and against direct damages, losses and expenses arising from infringement or alleged infringement of any patent, trademark or copyright of a third party by a Product and defend and settle at its sole expense any claim, action, suit or proceeding brought against Buyer, provided that Seller is promptly notified by Buyer in writing after a claim has been asserted against Buyer or the commencement of any claim, action, suit or proceeding and Seller shall assume sole control of the defense and any settlement negotiations related to any claim, action, suit or proceeding and Buyer shall not make any representation or concession, negotiate, settle or compromise any claim, action, suit or proceeding without the prior written consent of Seller and Buyer, at its cost, shall cooperate with Seller and provide assistance and support as may reasonably required by Seller, in connection with the defense and any settlement negotiations related to any claim, action suit or proceeding.  Seller shall have no indemnity obligation for any Product, or any portion thereof, that is based on specifications, drawings, models or other date furnished by Buyer or that is not provided by Seller or that is modified by a party other than Seller and not at its direction or to the extent Buyer continues the allegedly  infringing activity after having been provided modifications that avoid the alleged infringement, or where the use of the Product, or the combination or thereof with other products, processes or materials or the distribution thereof rather than the Product itself is the primary cause of an alleged infringement.  In case it has been determined by a finally awarded judgment that Seller has infringed or misappropriated such third party rights or earlier, at Seller’s discretion, Seller may, at its option and cost modify the Product in such a way that it shall not infringe upon or misappropriate the rights of the third party or obtain for Buyer a license or other right to use the Product or replace the Product in questions with a non-infringing Product.  If the foregoing options are not available on commercially reasonable terms and conditions, Seller may require the return of the Product and refund to Buyer amounts paid for the Product minus a reasonable allowance got he period Buyer has used the Product.  The remedies set forth in this Article 12 shall constitute Buyer’s sole and exclusive remedy and Seller’s sole and exclusive liability for a third party claim that the Product infringes or misappropriates any intellectual property right of a third party.

13. CONFIDENTIALITY – INTELLECTUAL PROPERTY RIGHTS
Except as otherwise agreed by Seller, Buyer shall no disclose any proprietary and confidential information of Seller, any patents, trademarks, copyrights and/or any other intellectual property rights and/or any proprietary or confidential information related to the Products, whether existing prior to the date of  Buyer’s order or developed as of the date hereof, shall remain the property of Seller or its licensor, as the case may be, and nothing herein shall be construed as conferring on the Buyer by implication or otherwise any right, title or interest in, or any license under any intellectual property right, confidential information or other trade secret.  Seller shall however not enforce its intellectual property rights against Buyer, its successors or assigns who are operating he Products as authorized hereunder. The software supplied by Seller to Buyer hereunder shall remain the property of Seller or the licensor at all times.  Buyer shall at all times comply with terms and conditions of the (sub) license imposed by Seller or the licensor.  Seller hereby grants to Buyer a non-exclusive (sub) license to use the software solely for the purpose of operating the Products delivered hereunder.  Seller hereby grants to Buyer the right to assign the software user license referred to above to the end-user to whom Buyer resells the Products.

14. EXPORT
Buyer shall comply with any export restrictions of any EU Member State, the US and any other applicable export control laws and regulations or any end-user certificate issued there under and shall not export, nor permit the export or re-export of any proprietary information or software or any copy thereof, or the Products in violation of any such laws, restrictions and regulations, or without all required licenses and authorizations, to any country to which the said export laws, restrictions and regulations prohibit exportations.  Buyer shall inform Seller on any local rules or regulations which may restrict, technically, regulatory or otherwise, the  deployment or operation of the Products in Buyer’s country.

15. ASSIGNMENT
Neither party hereto my, without prior written consent of the other, assign or otherwise transfer to a third party the benefits or obligations arising from the contract or in connection therewith, In whole or in part, except that Seller may assign, without Buyer’s consent, the contract to an affiliate of Seller or to a third party in connection with the sale of the business of Seller.  The contract shall be binding and shall inure to the benefit of the legal successors of either party hereto.

16. WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT (WEEE)
To the extent that Seller is liable for the collection, treatment, recovery and environmentally sound disposal of WEEE as defined un the European Directive 2002/96/EC and transposed into the applicable law.  Seller shall assume such liability provided that Buyer shall timely inform Seller when it intends to dispose of he Product as waste shall not have dismantled the Product and shall have made the Product available in seaworthy packaging on a pallet at Buyer’s loading quay on the mutually agreed day of collection.

17. GOVERNING LAW AND JURISDICTION
All sales are subject to New York law without recourse to its conflict of law principles.  In the event of a conflict between these terms and conditions and public order provisions under any applicable law, the latter shall prevail and the validity of the other clauses of these terms and conditions shall not be affected.  The provisions of the 1980 United Nations Convention on Contracts for the International Sales of Goods known as “the Vienna Convention” shall not apply.  Any dispute between Seller and Buyer shall be settled by the courts of New York, New Your or, at Sellers option, by the courts of the place where Buyer has its registered office and without prejudice to the enforcement of any judgment or other thereof in any other jurisdiction.

 

 

 






All sales constitute acceptance of our Terms and Conditions policy.
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