General Sales and Delivery Conditions for Stenzel GmbH (hereinafter: Stenzel) (Status: April 2018)
- These general sales and delivery conditions have exclusive application to all business relationships between STENZEL and its buyers and prospective buyers. If there is a frame agreement between STENZEL and the buyer, then these general sales and delivery conditions apply to both the frame agreement and the individual order. These conditions also apply to future transactions with the buyer, to the extent that these transactions are of a related nature.
- STENZEL does not recognise contradictory conditions or conditions from the buyer that deviate from these sales conditions, unless STENZEL has explicitly agreed to their validity in writing. The general sales and delivery conditions from STENZEL also apply, even when STENZEL executes the delivery to the buyer without reservation, despite having knowledge of contradictory or deviating conditions from the buyer.
- These general sales and delivery conditions are an integral part of the contract. All agreements made between STENZEL and the buyer for purposes of executing this contract are recorded in this contract in writing.
- The general sales and delivery conditions from STENZEL apply only to contractors pursuant to § 310 Para. 1 BGB (German Civil Code), legal persons under public law or special funds under public law.
II. Contract Conclusion, Client Protection
- Offers from STENZEL are non-binding and subject to alteration. They can be revoked by STENZEL at any time up to the receipt of the written declaration of acceptance or up to the dispatch of the delivery object. Documentation belonging to the offer, such as images, drawings and weight and measurement specifications, are only approximate values, to the extent that they have not been explicitly declared as binding. If STENZEL provides the buyer with drawings or technical documentation about the purchased technical items contained in the delivery, these drawings and technical documentation remain the property of STENZEL.
- Orders from the buyer are binding for the buyer. Unless STENZEL provides a written confirmation to the contrary, the delivery or invoice represent confirmation of the order. If an order from the buyer is to be treated as an offer pursuant to § 145 BGB, then STENZEL can accept this offer within a period of four weeks. The time limit begins from the point when the order is submitted. If STENZEL dispatches the good(s) before expiration of this time period, then, as an exception to the rule, the contract is concluded even without a written order confirmation.
- If the buyer is a merchant, then the written confirmation from STENZEL has sole relevance for the content of orders and agreements in connection with the contract conclusion, provided the buyer does not promptly contradict this in writing. This applies particularly to orders and agreements made orally or by telephone during contract conclusion. In all cases, a notification to STENZEL is no longer considered prompt when it has not been received by STENZEL within seven days.
- If a machine is not offered by STENZEL ex stock and if the location and address are provided to or verified for the prospective buyer, the prospective buyer pledges neither to pass the address on to third parties nor to purchase the verified machine directly or via third parties from anyone other than STENZEL. Information provided by STENZEL about machine locations and prospective buyers is for the exclusive use of the recipient alone and may not be passed on to third parties without the written consent of STENZEL. The prospective buyer also pledges to conduct all price negotiations and concluding negotiations solely via STENZEL. In the case of culpable non-compliance, the prospective buyer is to reimburse STENZEL for lost profits in the full amount of the difference between STENZEL’s verified procurement price and the price offered by STENZEL to the prospective buyer. The orders, purchase transactions and deliveries arising subsequent to verification of machines for purchase or sale and the resulting initiation of business relationships are to be considered as having been brokered by STENZEL.
III. Delivery Deadline, Scope of Delivery, Delivery Delay
- Delivery appointments and periods are to be considered as only approximately fixed, unless STENZEL has provided a written assurance at the time of contract conclusion specifying them explicitly as binding. The start of a delivery period specified by STENZEL presupposes the timely and proper fulfilment of the buyer’s obligations, particularly the clarification of all technical questions; should this not be the case, then the delivery dates are extended accordingly. The right of objection to the unfulfilled contract remains reserved. The delivery period has been complied with when the delivery object has left the STENZEL facility by the time of the period’s expiry or when STENZEL has prepared the delivery object for dispatch and notified the buyer of its readiness for delivery.
- STENZEL is entitled to make partial deliveries, provided they do not fall short of a reasonable minimum size.
- The buyer is to examine and acknowledge the bill of lading. Any objections are to be reported to STENZEL promptly in writing. Otherwise, the acknowledged quantity delivered is considered verified.
- The delivery deadline is extended reasonably for circumstances connected with labour disputes, particularly strikes and lockouts, force majeure, governmental measures, the non-appearance of deliveries from STENZEL’s suppliers, as well as in the event of unforeseeable, unavoidable impediments lying outside STENZEL’s sphere of influence, to the extent that such impediments impact the production or delivery of the delivery object. This also holds when the circumstances affect subcontractors. In important cases, STENZEL will inform the buyer promptly of the beginning and ending of such impediments. Force majeure also exists in the case of labour dispute measures, including strikes and lawful lockouts, in the operations of STENZEL or its sub-suppliers. In these cases, buyer claims to loss reimbursement are excluded within the limitations of Section VII (Other Liability).
- Should STENZEL fall behind schedule, the buyer must give STENZEL—to the extent provided by law—a reasonable extension. After expiry of this extension, the buyer can withdraw from the contract if he has not by this time received word that the good(s) are ready for dispatch.
- In case of delay, STENZEL is liable, according to the statutory provisions, provided the underlying purchase contract is a fixed date transaction acc. to § 286 Para. 2 No. 4 BGB or acc. to § 378 HGB (Commercial Code). STENZEL is also liable according to the statutory provisions if, as a consequence of a delivery delay for which STENZEL is responsible, the buyer is entitled to assert that his interest in continued fulfilment of the contract has ceased.
- STENZEL is also liable according to the statutory provisions if the delivery delay results from an intentional or grossly negligent contract violation for which STENZEL is responsible; culpability on the part of STENZEL’s representatives or agents is to be ascribed to STENZEL. If the delivery delay results from an intentional or grossly negligent contract violation for which STENZEL is responsible, then STENZEL’s damage compensation liability is limited to the foreseeable, typically occurring loss.
- STENZEL is also liable according to the statutory provisions to the extent that the delivery delay for which STENZEL is responsible is the result of culpable violation of a significant contractual obligation; in this case, however, the damage compensation liability is limited to the foreseeable, typically occurring loss.
- If the buyer suffers a loss through a delivery delay for which STENZEL is culpable, then the buyer, under exclusion of further compensation claims, can demand reimbursement in the amount of 0.5 % for each week of delay, with an upper limit of 5 % of the value of the affected part of the total delivery. Further claims pertaining to delivery delays are excluded, particularly claims for loss compensation, provided no other consequence results from the above-mentioned stipulations in numerals 6. through 8.
- If the buyer falls behind in the acceptance procedure or culpably violates any other cooperation obligations, then STENZEL is entitled to demand reimbursement for any losses arising as a consequence, including any additional expenditures. The right to further claims remains reserved. Provided the above-mentioned conditions prevail, the risk of accidental loss or deterioration of the purchased good is transferred to the purchaser at that point in time when the purchaser enters into acceptance delay or debtor’s delay.
IV. Prices, Payment Conditions
- The prices do not include value added tax, freight, customs duties, postage, packaging, insurance or other expenses. The calculation of brand-new machine prices is based on the prices in effect on the delivery day. Packaging is calculated at cost; redemption is excluded.
- Barring special agreements, invoice payments are due immediately, without deductions. The deduction of an early payment discount is only permitted on the basis of a special written agreement.
- STENZEL sends its invoice in advance of dispatching the good(s). Dispatching takes place only against pre-payment, unless otherwise stipulated. If, in special instances, it has been agreed that the delivery should not take place against pre-payment, the invoice will nonetheless be sent. The invoice payment is still due if the delivery of dispatch-ready goods should be impossible due to reasons within the buyer’s scope of risk.
- If the buyer enters payment arrears, the statutory provisions pertaining to the consequences of payment arrears shall apply. The right to assert a specific arrears damage claim is reserved.
- The buyer is only entitled to offset rights if his counter claims are legally binding, uncontested or recognised by STENZEL. Moreover, the buyer is only authorised to exercise a right of retention inasmuch as his counter claim is based on the same contractual relationship.
- If STENZEL is obligated to an advance performance and if, after concluding the contract, a substantial risk arises to STENZEL’s payment claim due to a significant deterioration in the financial circumstances of the buyer, then STENZEL can demand pre-payment or security within a reasonable time period and refuse performance until fulfilment of this demand. If the buyer refuses or if the time period expires without effect, then STENZEL is entitled to withdraw from the contract. Moreover, STENZEL can prohibit the resale of goods delivered under retention of ownership, demand their return or the transfer of immediate possession at the buyer’s own expense and revoke a direct debit authorisation.
V. Risk Transfer, Acceptance
- The risk of accidental loss or deterioration of the good(s) is transferred to the purchaser at the start of the loading or dispatch of the delivery object or with the handover to the freight carrier, haulage contractor or shipping agent, at the latest upon departure from the facility/warehouse. This also applies for partial deliveries or when STENZEL undertakes further performances, for example, payment of shipping costs or delivery and setup and/or commissioning.
- If the delivery object must be inspected and approved, then this acceptance procedure is the definitive criterion for the risk transfer. The acceptance procedure must be executed promptly at the time of the acceptance appointment or, alternatively, after the announcement from the deliverer about the acceptance readiness, and may not be refused by the buyer on the basis of the mere existence of an insubstantial deficiency.
- If the good is ready for dispatch and the dispatch is delayed for reasons for which the buyer is responsible, then the risk is transferred to the buyer at the time the announcement of the dispatch readiness is received by the buyer. The same holds for delays in the acceptance procedure and the receipt of the announcement of acceptance readiness.
- STENZEL is obligated to obtain a transport insurance policy only when the buyer explicitly demands it. The buyer bears the costs.
VI. Notice of Defects, Warranty
- Defect claims on the part of the buyer presuppose that the buyer has properly fulfilled his obligatory inspection and defect notification obligations pursuant to § 377 HGB. The inspection and notification obligations also extend to the assembly instructions. STENZEL is to be promptly notified of objections in writing and the defective parts in question are to be sent back to STENZEL when STENZEL so demands. Here, STENZEL assumes the transport costs when the defect claim is justified. If the buyer fails to fulfil these obligations or undertakes changes to the part in question without the consent of STENZEL, then the buyer loses the right to any possible material defect claims.
- Transport damage is to be reported promptly to the seller. The buy is to manage the necessary formalities with the freight hauler, particularly regarding the performance of all appraisals needed to permit recourse action against third parties. Provided breakage, loss or the like remain within a customary and reasonable limit, they cannot be objected to.
- A warranty from STENZEL is excluded for the sale of used products, unless some other arrangement is stipulated hereinafter. Used machines and any remaining accessories are delivered by STENZEL in the condition they were in at the time the contract was concluded. All liability for apparent or hidden defects is also excluded when the machine has not been inspected in advance by the buyer, unless STENZEL fraudulently concealed known defects or assumed a warranty for the quality of the item.
- Should a defect exist in an item purchased new, STENZEL is entitled for purposes of rectification to choose between eliminating the defect or delivering a new, non-defective item. The buyer must always provide STENZEL an opportunity for rectification within a reasonable time period. In cases of defect elimination or replacement delivery, STENZEL is obligated to bear all expenses associated with the rectification, particularly transport costs, travel costs, labour costs and material costs, up to the amount of the purchase price, provided these do not increase as a consequence of the purchased item being moved to a location other than the place of performance, unless such a movement is in accordance with the item’s normal usage. However, STENZEL must only bear removal and installation costs if the prerequisites for fault-based loss compensation liability exist. If the rectification fails, then the buyer is entitled to demand either withdrawal or abatement, as he chooses. If the defect represents an immaterial breach of duty, then the buyer can neither withdraw from the contract nor demand loss compensation instead of the entire performance.
- STENZEL is liable according to the statutory provisions if the buyer asserts loss compensation claims based on wilful intent or gross negligence, including wilful intent or gross negligence on the part of an STENZEL representative or agent. Provided STENZEL is not accused of any wilful contract violation, damage compensation liability is limited to the foreseeable, typically occurring loss.
- STENZEL is liable according to the statutory provisions if it culpably violates a significant contractual obligation; in this case as well, the damage compensation liability is limited to the foreseeable, typically occurring loss.
- Provided the buyer is otherwise entitled to claim reimbursement for loss instead of performance on account of a negligent breach of duty, STENZEL’s liability is limited to the foreseeable, typically occurring loss.
- Liability due to culpable violations of life, body or health remain unaffected. This also applies to the compulsory liability pursuant to the product liability law.
- Provided that something different has not been stipulated above, liability is excluded. In particular, liability is also excluded for defects
- due to corrosion or typical wear. In particular, the warranty does not extend to wear on consumable parts. Consumable parts are all rotating parts, all drive components and tools. For the sale of a machine, its use in single- shift operation serves as the basis for these warranty provisions;
- arising from damage due to external factors, improper treatment and/or setup or usage, incorrect assembly and/or commissioning, deficient operating, maintenance, overloading or incorrect and/or negligent treatment by the buyer or his customers;
- as a consequence of the buyer carrying out improper modifications or repair work without the consent of STENZEL;
- if statutory installation and handling regulations or those issued by STENZEL are not adhered to by the buyer or his acceptance personnel, unless the defect cannot be traced back to this non-adherence.
- If the buyer notices a defect, he may not modify or work on the delivery object, nor may he hand it over to a third party. Instead, he must provide STENZEL sufficient opportunity and time to verify the defect and, if necessary, carry out the necessary rectification (defect elimination or delivery of a new, non-defective item); otherwise, all defect claims lapse. Only in urgent cases of endangerment to operational safety and/or to prevent disproportionately extensive damage—and here, STENZEL is to be notified immediately—does the buyer have the right to eliminate the defect or have it eliminated by a third party and to demand from STENZEL reimbursement of the necessary expenditures. Independent of the existence of a defect, the warranty claims also expire if the buyer or a third party undertakes modifications or repair work without the permission of STENZEL.
- Provided nothing else has been agreed to, the warranty period extends for 12 months after the effected delivery of the goods delivered by STENZEL to the buyer. This does not apply to the extent that the good is typically used for a structure and has caused the defect. If the delivery is delayed through no fault of STENZEL, the liability lapses at the latest 18 months after its delivery readiness. The statutory warranty periods remain unaffected in the following cases:
- Losses from the violation of life, body or health,
- Losses based on an intentional or grossly negligent breach of duty by STENZEL, its legal representatives or agents.
- The limitation period also remains unaffected in the case of a delivery recourse claim according to §§ 478, 479 BGB; it amounts to five years, calculated from the time of delivery of the defective item.
VII. Other Liability
- A more extensive liability for loss compensation than that stipulated in III. and VI.—regardless of the legal nature of the asserted claim—is excluded. This applies in particular to loss compensation claims due to a fault during contract conclusion, due to other breaches of duty or due to criminal claims for compensation of property damage pursuant to § 823 BGB.
- The limitation pursuant to Para. 1 also applies if the buyer demands the reimbursement of useless expenditures instead of a claim for reimbursement of losses in place of performance.
- To the extent that STENZEL’s liability is excluded or limited, this applies also to the personal liability of STENZEL’s staff members, employees, workers, legal representatives and agents.
- The statutory regulations concerning burden of proof remain unaffected.
VIII. Retention of Ownership, Securities
- STENZEL retains ownership of the delivery object until all payments arising from the business proceeding with the buyer have been received. In case the buyer fails to conform to the contract, particularly regarding payment arrears and filing for the commencement of an insolvency proceeding, STENZEL is entitled to retrieve the delivery object after a warning and the buyer is obligated to relinquish it. The retrieval of the purchased item by STENZEL represents a withdrawal from the contract. After retrieval of the purchased item, STENZEL is authorised to utilise it; the utilisation revenues—after reasonable utilisation costs have been deducted—are to be offset against the buyer’s accounts payable.
- The buyer is obligated to handle the purchased item carefully; in particular, he is obligated, at his own expense, to adequately insure it against fire damage, water damage, and theft. If the buyer does not provide STENZEL with evidence of having concluded such an insurance policy, then STENZEL is entitled to conclude such an insurance policy itself at the buyer’s expense. If maintenance and inspection measures are necessary, the buyer must carry these out on schedule at his own expense.
- In case of pledging or other third-party interventions, the buyer is to promptly notify STENZEL in writing so that STENZEL can file a suit pursuant to § 771 ZPO. To the extent that the third party is unable to reimburse STENZEL for the in-court and out-of-court costs of a suit pursuant to § 771 ZPO, the buyer is liable for the loss incurred by STENZEL.
- The buyer is entitled to re-sell the delivery object in the course of his normal business affairs. However, the buyer assigns to STENZEL at the moment the purchase contract is concluded the final invoiced amount (including VAT) of STENZEL’s claim from all those claims accruing to him from the re-sale vis a vis the purchaser or a third party. This holds regardless of whether the retained good was re-sold without further processing or after further processing. The buyer is empowered to collect these claims even after the assignment. Here, STENZEL’s authority to collect the claims itself remains unaffected; However, STENZEL pledges not to collect the claims provided the buyer properly complies with his payment obligations from the collected revenues, does not fall into payment arrears and, particularly, provided that no application for commencement of a settlement or insolvency proceeding has been filed and no suspension of payment exists. However, if this is indeed the case, then STENZEL can demand that the buyer notify STENZEL of the assigned claims and their debtors, specify all information needed for their collection, surrender the associated documentation and inform the debtor (third party) of the assignment. If the delivery object is re-sold along with other goods not belonging to STENZEL, then the buyer’s claim against the purchaser is to be considered assigned in the amount of the delivery price agreed upon by STENZEL and the buyer.
- The processing or re-forming of retained items is always undertaken by the buyer for STENZEL. If the retained item is processed with other objects not belonging to STENZEL, then STENZEL acquires ownership of the new item in proportion to the value of the purchased item (final invoiced amount, including VAT) relative to the other processed objects at the time of the processing. Moreover, for the item resulting from the processing, the same conditions apply as for the retained item that has been delivered.
- If the purchased item is irrevocably commingled with other objects not belonging to STENZEL, then STENZEL acquires co-ownership of the new item in proportion to the value of the purchased item (final invoiced amount, including VAT) relative to the other commingled objects at the time of the commingling. If the commingling occurs in such a way that the buyer’s item is to be considered the main item, then it holds as agreed that the buyer transfers pro rata co-ownership to STENZEL. The buyer holds the so arisen sole-ownership or co-ownership for STENZEL. If the purchased item is joined together with other moveable objects to an integrated item and if the other object is to be considered the main item, then it holds as agreed that the buyer transfers pro rata co-ownership to STENZEL, to the extent that the main item belongs to him. Moreover, for the item resulting from the processing, re-forming or joining together or commingling, the same conditions apply as for the retained item.
- For purposes of securing STENZEL’s claims, the buyer also assigns to STENZEL the claims accruing against a third party through the connecting of the purchased item with a piece of property.
- STENZEL is entitled to demand reasonable security for the proper fulfilment of the buyer’s obligations. Upon demand of the buyer, STENZEL pledges to release the security to which it is entitled insofar as the realisable value of the securities exceeds by more than 10% the claims to be secured; the choice of the securities to be released falls to STENZEL.
IX. Fulfilment Obligations, Impossibility
- STENZEL’s delivery obligations are subject to the reservation of STENZEL being properly, completely and promptly delivered itself. In case of improper or untimely delivery by suppliers or previous owners of goods, STENZEL is not liable for the impossibility of delivery or delivery delays for which STENZEL bears no responsibility. If such an improper or untimely delivery makes it significantly more difficult or impossible for STENZEL to deliver or perform its obligations and if the impediment is not merely temporary, then STENZEL is entitled to withdraw from the contract. If the impediment is merely temporary, then the delivery or performance periods are extended and/or the delivery or performance dates are shifted a length of time equivalent to the duration of the impediment plus a reasonable start-up period. If, as a consequence of the delay, the acceptance of the delivery or performance represents an intolerable burden for the buyer, then he can withdraw from the contract by informing STENZEL via a prompt written declaration.
- If STENZEL’s entire performance becomes impossible before the transfer of risk, the buyer can withdraw from the contract. If it becomes partly impossible, this provision applies only to the affected part. In this case, however, the buyer can withdraw from the entire contract if he can provide evidence of a legitimate interest in refusing the partial delivery.
- If the impossibility arises during a delay in acceptance on the part of the buyer or if the buyer is solely or overwhelmingly responsible for the circumstance that makes STENZEL’s performance unnecessary, then the buyer remains bound to compliance.
- After STENZEL’s withdrawal from the contract and/or after issuing a deadline with threat of refusal, STENZEL is entitled to freely utilise retrieved goods.
X. Place of Performance, Jurisdiction, Applicable Law
- Unless otherwise contractually agreed to, the place of performance for payment and delivery of goods is the business headquarters of STENZEL.
- The exclusive jurisdiction for all disputes is the STENZEL headquarters, provided the buyer is a merchant pursuant to HGB, a legal person under public law or special funds under public law. STENZEL is also entitled to sue the buyer at his headquarters. Moreover, the jurisdiction for all claims of the contractual partners arising from the business relationship is the STENZEL headquarters when the buyer has no domestic place of general legal jurisdiction.
- The law of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Good (CISG) applies to these sales and delivery conditions and to the legal relationships between STENZEL and the buyer resulting from this contract.
XI. Legal Validity, Data Protection
- Should one of the provisions of these general sales and delivery conditions be or become invalid, it shall have no effect on the validity of the remainder of the contract. The statutory provision shall apply in its place. Under no circumstances is the affected provision in these general sales and delivery conditions to be replaced by the buyer’s conditions of business.
- Legally relevant declarations of intent, such as cancelations, declarations of withdrawal, demands for reduction of purchase price or loss compensation, are only valid when made in writing.
- Pursuant to the Federal Data Protection Act, STENZEL is entitled to process and store data about the buyer that has been received in connection with the business relationship—including data originating with third parties—and to have such data processed and stored by third parties that have been commissioned by STENZEL.
TERMS AND CONDITIONS OF SALE AND LIMITED WARRANTY
The following terms and conditions of sale and limited warranty govern all purchases of systems, upgrades, and non-system items (“Products”) from ChipBLASTER, Inc. (“CHIPBLASTER”) by Buyer (“Buyer” or “You”). If Buyer has entered into a contract directly with CHIPBLASTER for the supply of CHIPBLASTER Products, the terms of that contract shall supersede any terms herein which are inconsistent with that contract. For ordering parts and services, please refer to CHIPBLASTER Parts and Services Terms and Conditions.
Acceptance of Buyer’s purchase order is conditional upon Buyer’s assent to the terms and conditions printed herein. Buyer’s acceptance of any CHIPBLASTER system or other Product shall be conclusively deemed assent to the terms and conditions herein. CHIPBLASTER’s failure to object to any terms or conditions stated in Buyer’s purchase orders, forms or other communications from Buyer will not be a waiver of the provisions hereof and no other document, including Buyer’s terms and conditions of purchase, will be part of this transaction, unless specifically agreed to in writing by CHIPBLASTER.
2. PAYMENT TERMS
Unless otherwise agreed by CHIPBLASTER, payment terms are: For U.S. domestic sales, at CHIPBLASTER’s option, either:
- 100%, net 30 days from shipment; or
- Payment in advance of shipment. For international sales, at CHIPBLASTER’s option:
- Acceptable Letter of Credit; or
- As stated on the Invoice.
CHIPBLASTER also reserves the right to require C.O.D. payment, a letter of credit, or other security for payment if CHIPBLASTER determines that such terms are required to assure payment to CHIPBLASTER. CHIPBLASTER reserves the right to impose a late penalty fee of 1.5% per month for all past due balances.
Unless otherwise provided, all prices are EXW CHIPBLASTER’s place of business for domestic sales, and for international sales, EXW CHIPBLASTER or EXW CHIPBLASTER warehouses. Prices are exclusive of shipping costs, insurance, and any applicable Taxes (defined below). All price quotations are valid for 30 days unless noted otherwise. Published list prices are subject to change without notice.
4. SHIPMENTS AND TITLE TRANSFER
All purchase orders are subject to acceptance by CHIPBLASTER. Unless otherwise provided on the attached acknowledgement, all shipments are EXW CHIPBLASTER’s place of business for domestic sales; for international sales, shipments are EXW CHIPBLASTER or EXW CHIPBLASTER warehouses, INCOTERMS 2000. Title to all Products shall be deemed to pass to the Buyer upon delivery of the Products to the carrier at point of shipment. CHIPBLASTER reserves the right to select the method and routing of transportation and the right to make delivery in installments unless otherwise specified at the time of order. CHIPBLASTER will provide estimated shipment dates upon acknowledgement of Buyer’s purchase order. Shipment dates on CHIPBLASTER quotations are approximate only. Buyer shall assume all risks of loss and responsibility for the cost of shipping and insurance, regardless of the fact that shipping or insurance may have been arranged by CHIPBLASTER on Buyer’s behalf. Any freight or delivery charges paid by CHIPBLASTER on shipments to Buyer will be passed on to Buyer, and shall be in addition to the price of goods. CHIPBLASTER has the right to cancel any order or to refuse or suspend shipment for Buyer’s failure to meet payment terms on any outstanding invoice.
Buyer shall examine each shipment of CHIPBLASTER Product immediately upon receipt and inform CHIPBLASTER of any shortage, visible defect or incorrect product shipments in writing within 7 days of receipt. If no discrepancies are reported by Buyer in writing within 7 days of receipt, the shipment shall be deemed delivered complete and defect free and Buyer may not dispute such shipment.
If CHIPBLASTER installs its products, the Buyer is responsible for providing facilities and utilities per the CHIPBLASTER site requirement guide prior to the arrival of the CHIPBLASTER installation team. In addition, the Buyer is responsible for moving the CHIPBLASTER system components to the installation site and providing the necessary facilities and equipment to position it for assembly. All monitoring and controls of utilities are the responsibility of the Buyer. If installation is not performed within 30 days of delivery due to reasons within Buyer’s responsibility or control, the system will be deemed accepted.
The acceptance of systems which do not include custom solutions (applications, engineering, etc.) will be based upon a demonstration of successful operation of the system. In case of an applicable custom acceptance requirement agreed by CHIPBLASTER (as noted in the final CHIPBLASTER quotation), Buyer shall perform the custom acceptance requirement without delay. Notwithstanding the foregoing, unless Buyer has notified CHIPBLASTER of its rejection in writing within 30 days after shipment, Buyer will be deemed to have accepted the Product at the end of such 30-day period.
8. LIMITED WARRANTY
a. Warranty Period. For a new or remanufactured system to be installed by CHIPBLASTER, the warranty period shall be one year from acceptance. For upgrades, the warranty period is 90 days from acceptance.
b. During the Warranty Period, CHIPBLASTER warrants that:
- 1. All Products meet specifications published by CHIPBLASTER appropriate to the model and options purchased as of the shipping date or agreed in writing between Buyer and CHIPBLASTER;
- 2. All Products will be free from defects in materials and workmanship or defects caused by ChipBLASTER; and
- 3. The Product complies with all safety and environmental regulations and standards of the United States federal government or any international certification in effect on the shipping date specified by CHIPBLASTER or agreed to in the accepted Purchase Order.
d. Repair or replacement of a defective system or its components is the sole and only remedy under this Warranty. The replacement part may be a new or remanufactured part which is equivalent to new in performance. In case of replacing a defective component, CHIPBLASTER will warrant the replacement part for the remaining Warranty Period or hours carried by the original system.
e. During the Warranty Period, replacement parts will be shipped on a no-charge basis on condition that all defectives parts must be returned immediately upon receipt of replacement parts. Failure to return the defective parts promptly will result in an invoice for the full price of the replacement part.
f. Notwithstanding the above, CHIPBLASTER provides no warranties (a) on consumable items as identified by CHIPBLASTER; (b) on any system or portion thereof which is based on the Buyer’s; larger system of which the CHIPBLASTER Product is only a component; and (c) non-CHIPBLASTER supplied replacement parts.
g. This limited warranty is void if failure has resulted from:
- 1. Misuse, mishandling, accident or neglect, noncompliance with CHIPBLASTER specified system operating environment or operation specifications, abuse and misapplication;
- 2. Improper packing or handling of the system during relocation by Buyer;
- 3. Unauthorized modification to the system or part, attempts to install or de-install or perform unauthorized maintenance or repair by any person that is not CHIPBLASTER FSE; or
- 4. An act or event beyond CHIPBLASTER’s reasonable control and without CHIPBLASTER’s fault or negligence, including but not limited to fires, explosions, floods, earthquakes, power outage or inappropriate transportation, acts of God, war or terrorism.
9. LIMITATION OF LIABILITY
NOTE; All warranties will be considered void if Chipblaster filters and consumables are not exclusively used during the warranty period.
IN NO EVENT WILL CHIPBLASTER, ITS OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR LOSS OF REVENUE, PROFIT, OR LOSS OF DATA, SUBSTITUTE GOODS, BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE PRODUCTS OR OTHERWISE AND EVEN IF CHIPBLASTER OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CHIPBLASTER’S OR ITS SUPPLIERS’ OR LICENSORS’ LIABILITY TO BUYER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, OR OTHERWISE, EXCEED THE PRICE PAID BY BUYER FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
10. PATENT INFRINGEMENT
CHIPBLASTER shall defend any lawsuit brought against Buyer to the extent such lawsuit is based on a claim that any Product furnished by CHIPBLASTER to Buyer infringes any patent of the United States, provided that CHIPBLASTER is notified promptly in writing and given full and complete authority, information, and assistance for the defense of the lawsuit. CHIPBLASTER shall not be responsible for any compromise made without its consent or for damages arising out of any suit which Buyer has not given CHIPBLASTER timely opportunity to defend. If an infringement claim is made or if CHIPBLASTER believes a claim is likely to be made, CHIPBLASTER may at its option: (a) modify the Product so that it becomes non-infringing, or (b) remove the Product and refund to Buyer the purchase price less a reasonable allowance for use. CHIPBLASTER shall not have any liability to Buyer under any provision of this clause if: (a) the claim is based upon the interconnection or use of the CHIPBLASTER Product in combination with A product or other devices not made by CHIPBLASTER; (b) the claim was based upon use of the CHIPBLASTER Product in any manner for which it was not recommended by CHIPBLASTER; or (c) the infringement arises from a design or specifications provided to CHIPBLASTER by Buyer. THIS SECTION 12 SETS FORTH CHIPBLASTER’S ENTIRE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS RELATING TO CHIPBLASTER PRODUCT OR COMPONENTS.
11. SOFTWARE LICENSE
Any CHIPBLASTER and third party software or firmware (collectively “Software”) delivered by CHIPBLASTER to Buyer hereunder is licensed, not sold. CHIPBLASTER grants to Buyer a non-exclusive, nontransferable license to use the Software only in executable object code and only for the purpose of operating the Product. Buyer may not modify, adapt, translate, reverse engineer, decompile, disassemble or create a derivative work based upon the Software or allow others to do so, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Buyer shall not make or distribute unauthorized copies of the Software, and shall acquire no rights of ownership in the Software. Title to and ownership of the Software and all extensions, enhancements and modifications thereof shall remain at all times with CHIPBLASTER and/or its licensors.
12. INTELLECTUAL PROPERTY OWNERSHIP
Subject to any license rights expressly granted herein, CHIPBLASTER retains all right, title and interest in all of its patents, trade secrets, trademarks, copyrights, software, inventions, technology, ideas, concepts, know-how, tooling, techniques and other proprietary materials, intellectual property and confidential information.
Buyer understands and agrees that CHIPBLASTER Products embody, utilize or otherwise contain CHIPBLASTER confidential and proprietary information and trade secrets (“Confidential Information”). Certain of the Confidential Information are apparent upon visual inspection of the Products. Other Confidential Information can only be discerned upon observation of the operation or the disassembly of the Products, or by reverse engineering. Except to the extent and in the circumstances expressly provided by law, Buyer agrees, represents and warrants that it shall not (or permit others to) reverse engineer, manufacture, decompile, or create derivative works of, any Products without CHIPBLASTER’s prior express written consent. Buyer shall not allow any third party to take possession of or to inspect, observe any operation of, or disassemble any Product or any portion of thereof, or take any photograph or recording of the Product or the operation thereof. If as a result of applicable law, Buyer is entitled to decompile the Product in order to obtain information necessary to render the Product interoperable or compatible with other products or software (“Permitted Objective”), Buyer shall first notify CHIPBLASTER of such requirements and give CHIPBLASTER the opportunity to provide the information necessary to achieve such Permitted Objective without undertaking such action. If such information is provided, Buyer must use it to achieve the Permitted Objective only.
Buyer shall use reasonable care, and not less than the same care it exercises with respect to its own confidential and proprietary information, to protect the Confidential Information against unauthorized use, loss, theft or disclosure. Buyer shall not disclose or describe to any third party, directly or indirectly, under any circumstances or by any means, any Confidential Information without CHIPBLASTER’s prior written consent. Buyer will not be in breach of this section if disclosure of Confidential Information is made pursuant to subpoena or other compulsory judicial or administrative process, provided that Buyer promptly notifies CHIPBLASTER of such subpoena or other compulsory process, and provides reasonable assistance, so that CHIPBLASTER may seek a protective order or take such other action it deems necessary to protect its interest.
“Confidential Information” does not include any information concerning CHIPBLASTER that Buyer can demonstrate by written evidence (a) is now or becomes generally known to the public by lawful means and without breach of any confidentiality obligation; (b) is disclosed by Buyer with CHIPBLASTER’s prior written consent to unrestricted disclosure; (c) was known to and reduced to writing by Buyer without use of any Confidential Information prior to the date of this Agreement; (d) is independently developed by Buyer without use of any Confidential Information; or (e) is lawfully obtained by Buyer from a third party.
14. FORCE MAJEURE
CHIPBLASTER’s performance of any obligation hereunder shall be excused by any event beyond its reasonable control, including without limitation inclement weather, strikes, governmental laws, regulations or interruptions thereof, war, equipment breakdown, interruption of transportation, and delayed deliveries to CHIPBLASTER from CHIPBLASTER’s suppliers which delays or prevents CHIPBLASTER’s performance or makes performance commercially impractical due to unreasonable difficulty, expense, or risk of injury or loss.
15. EXPORT CONTROL
Buyer shall at all times comply with the United States laws and regulations governing export control. Buyer shall not use, lease, or sell any CHIPBLASTER Product in any country, or to any purchaser or lessee in any country, other than the country of destination specified in Buyer’s order, except in a manner expressly permitted by such laws and regulations.
16. TAXES AND DUTIES
Unless specifically provided otherwise in writing, prices do not include federal, state, local, or foreign taxes, charges, fees, imposts, levies, duties, tariffs, or other assessments of any kind or nature imposed by any government (“Taxes”). Buyer shall be responsible for payment of all Taxes on the sale of the Products.
Buyer shall indemnify and hold CHIPBLASTER harmless, including costs and attorney’s fees, from any claims by employees, distributors, or customers of Buyer arising from the sale, lease or use of the Product sold by CHIPBLASTER or of other systems of Buyer which incorporates this Product, unless the claim arises from the sole negligence of CHIPBLASTER.
18. GOVERNING LAW
For U.S. domestic sales and sales in the Americas, the validity, interpretation and performance of these terms and conditions and any purchase made hereunder shall be governed by the laws of the State of Pennsylvania, USA, without regard to Pennsylvania conflict of law principles. Except to the extent that invoking the jurisdiction of another court is necessary to enforce (a) any security interest in Products or (b) any judgment or order entered in Pennsylvania, any legal action arising out of this purchase and sale shall be prosecuted exclusively in Pennsylvania, USA. Both parties hereby submit to the jurisdiction of the courts located in Pennsylvania over each of them personally in connection with such litigation, and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum. For international sales, if Buyer is located in Europe, German law shall apply to the validity, interpretation and performance of these terms and conditions and any purchase made hereunder. If buyer is located in China, the Chinese law shall apply. If Buyer is located in Korea, the laws of the Republic of Korea shall apply. If Buyer is located in Taiwan, the law of the Republic of China shall apply. For all other Buyers in Asia, the laws of Singapore shall apply. The courts in the above countries shall have exclusive jurisdiction to hear all matters arising out of this purchase and sale.
These terms and conditions constitute the entire agreement between CHIPBLASTER and Buyer. No modifications, changes, additions or amendment to the terms and conditions or promises, representation, or warranties that differ in any way from these terms and conditions herein shall be binding on CHIPBLASTER unless such modifications, changes, waivers, additions or amendments are in writing and signed by a duly authorized representative of CHIPBLASTER. The waiver of any breach or default hereunder shall not constitute the waiver of any subsequent breach or default. In the event of any default by Buyer, CHIPBLASTER may decline to make further shipments. If CHIPBLASTER elects to continue to make shipments, such action shall not constitute a waiver of any default by Buyer or in any way affect CHIPBLASTER’s legal remedies for such default. If any term or condition hereof shall to any extent be invalid or unenforceable, the remainder of these terms and conditions shall not be affected thereby and each term and condition shall be valid and enforced to the fullest extent permitted by law. Buyer shall not assign the performance obligations or any rights hereunder without the prior written consent of CHIPBLASTER. Subject to the foregoing, the terms and conditions shall bind and inure to the benefit of the respective parties hereto and their successors and assigns.