1. AGREEMENT
The terms and conditions as set forth herein as well as any
additional terms and conditions that may appear on the Customer
Order shall constitute the entire agreement between
biowaterworld europe GmbH ("Seller") and Buyer. Seller will not
be bound by any terms of Buyer’s order that are inconsistent
with the terms herein. Acceptance by Buyer of these terms may be
made either (a) by written acceptance or (b) accepting and
paying the invoice prior to the delivery of the Goods. The
Agreement shall not be modified except in writing, signed by the
parties hereto.
2. PRICE
(a) The price of all Products unless otherwise specifically
stated in this Agreement is F.O.B. carrier, at the place of
manufacture, exclusive of insurance cost. The cost of packaging
for normal domestic shipment is included in the invoiced price.
Where special domestic or export packaging is specified,
involving greater expense, a charge will be made to cover such
extra expense. (b) Prices and orders do not include Federal,
State or local excise, use or other taxes now or hereinafter
enacted, which are applicable to the Products sold hereunder or
this transaction, which tax or taxes will be added by Seller to
the sales price and will be invoiced to and paid by Buyer,
unless Buyer provides Seller with a proper tax exemption
certificate. In the event Seller is required to pay any such
tax, fee or charge at the time of sale or thereafter, the Buyer
shall reimburse Seller therefore. (c) Prices quoted are for the
Products subject of this Agreement, technical data, proprietary
rights of any kind, environmental or other than Seller’s
standard tests unless expressly agreed to in writing by Seller.
(d) Unless otherwise stated by Seller in writing, all quotations
are firm for, and expire, sixty (60) days after date thereof and
constitute offers.
3. PAYMENT TERMS
(a) Unless otherwise stated as part of this Agreement, the terms
of the sale are net 30 from date of invoice. The Goods will be
shipped after the payment has been received by Seller on its
German Bank Account with:
Postbank-Dortmund
or such other bank as may be designated.
(b) All orders are subject to full payment in advance. If the
Buyer fails to make advance payment, or if the Buyer is or
becomes delinquent in the payment of any sum due Seller (whether
or not arising out of this order), then Seller shall have the
right, in addition to any other remedy to which it may be
entitled in law or equity, to cancel the sales order, and refuse
to make further deliveries. Partial shipments made under any
order shall be treated as a separate transaction and payment
thereof shall be made accordingly. However, in the event of any
default by Buyer, Seller may decline to make further shipments
without in any way affecting its rights under such order.
4. TRANSPORTATION and RISK of LOSS
Unless otherwise agreed to in writing by Seller, all
shipping shall be at the expense of Buyer, Seller reserving the
right to ship Products freight collect and to select the means
of shipping and routing. Unless otherwise advised, Seller may
insure to full value of the Products or declare full value
thereof to the transportation company at the time of delivery
and all such freight and insurance costs shall be for Buyer’s
account. Risk of loss or damage shall pass to Buyer upon
delivery of the Products to the transportation company at the
FOB point. Seller may at its option obtain insurance for its
Products covering their delivery to Buyer and Buyer agrees to
reimburse Seller for the cost of providing such insurance. If
Buyer has not been notified of the existence of insurance
coverage and provides its own insurance for such shipment Seller
will waive its insurance charge. Confiscation or destruction of,
or damage to Products shall not release, reduce or in any way
affect the liability of Buyer. Notwithstanding any defect or
nonconformity, or any other matter, such risk of loss shall
remain in Buyer until the Products are returned at Buyer’s
expense to such place as Seller may designate in writing. Buyer,
at its expense, shall fully insure Products against all loss or
damage until Seller has been paid in full, or the Products have
been returned, for whatever reason, to Seller.
5. SHIPMENT
Seller will attempt to meet shipment schedules. However, any
shipment quotation or forecast on an order acknowledgment is
only an estimate of the time required to make shipment and
Seller will not assume liability, consequential or otherwise,
because of any delay or failure to deliver all or any part of
any order for any reason, including its active or passive
negligence. Seller reserves the right to allocate inventories
and current production in any way it deems desirable.
6. INSPECTION and ACCEPTANCE
The Buyer shall have the right to inspect the goods upon tender
of delivery. Failure of the Buyer to inspect the goods and give
written notice to the Seller of any alleged defect or
nonconformity within thirty (30) days after tender of delivery
shall constitute an irrevocable acceptance by Buyer of the goods
delivered to him. Use of any such goods by Buyer, its agents,
employees or licensees, for any purpose after delivery thereof,
shall also constitute acceptance of the goods by Buyer.
7. RETURNS
The Products may not be returned to Seller without first
obtaining Seller’s consent. The request for return and credit
must be filed with Seller and shall include purchase order
number, approximate date shipped and any and all other
identifying numbers (such as invoice number, date of invoice,
P.O. numbers, etc.). Each request for return of Products for
credit should state the type and quantity of goods, the part
numbers and the reasons for the return. If return authorization
is granted, Products shall be returned in a clean, well packaged
condition. No credit allowance on defectives will be made and no
replacement for defectives will be shipped in any event, unless
the alleged defectives are, among other things, established to
Seller’s satisfaction after suitable testing and inspection by
Seller.
8.TERMINATIONS.
Any order for a standard Product with a published price accepted
by Seller and terminated by Buyer within thirty (30) days prior
to shipment, shall be subject to a restocking charge of ten
percent (10%) of the order value to cover costs of processing
and order handlings. Orders for nonstandard products or products
without a published price may not be terminated by Buyer except
by mutual agreement in writing. Terminations by mutual agreement
are subject to the following conditions: (a) Buyer will pay, at
applicable contract prices, for all Products which are
completely manufactured and allocable to Buyer at the time of
Seller’s receipt of notice of termination;(b) Buyer will pay all
costs, direct and indirect, which have been incurred by Seller
with regard to Products which have not been completely
manufactured at the time of Seller’s receipt of notice of
termination, plus a pro rata portion of the normal profit on the
contract; (c) Buyer will pay a termination charge on all other
Products affected by the termination. Seller’s normal accounting
practices shall be used to determine costs and other charges. In
the event of a termination, Buyer will have no rights in
partially completed goods.
9.LIMITED WARRANTY LIMITATION of REMEDIES.
(a) Except as otherwise specified herein, Seller warrants the
Products: to be free from defects in material and workmanship
and to perform in the manner and under the conditions as
specified by Seller for a period of twenty-four (24) months from
delivery. (b) This warranty is the only warranty made by Seller
with respect to the Products and no representative or person is
authorized to bind Seller for any obligations or liabilities
beyond the warranty in connection with the sale of Seller’s
goods. This warranty is made to the original Buyer only at the
original location and is nontransferable, and may only be
modified or amended by a written instrument signed by a duly
authorized officer of Seller. Goods or parts which are replaced
or repaired under this warranty are warranted only for the
remaining unexpired portion of the original warranty period
applicable to the specific product. (c) These remedies are
available only if Seller is notified in writing by Buyer
promptly upon discovery of the defect, and in any event within
the warranty period for Product and Seller’s examination of such
goods discloses to Seller’s satisfaction that such defects
actually exist and the goods have not been (1) repaired, worked
on, or altered by persons not authorized by Seller so as, in
Seller’s sole judgment, to injure the stability reliability, or
proper operation of such goods; (2) subject to misuse,
negligence or accident; or (3) connected, installed, used or
adjusted otherwise that in accordance with the instructions
furnished by Seller. (d) All Products which Buyer considers
defective shall be returned to Seller’s office as designated on
the face hereof transportation costs prepaid and borne by Buyer,
unless otherwise provided. The risk of loss of the goods shipped
or delivered to Seller for repair or replacement will be borne
by Buyer. (e) If it is found that any Product has been returned
without cause and is still serviceable, Buyer will be notified
and the Product returned at Buyer’s expense. In addition, a
charge for testing and examination may, in Seller’s sole
discretion, be made on Products so returned. (f) The foregoing
warrenty is exclusive and in lieu of all other warrenties
(except for specific written product performance guarantess)
whether written, oral or implied, including any warrenty of
merchantability or fittness for a particular purpose and shall
be the Buyer´s sole remedy and Seller´s sole liability on
contract or warrenty or otherwise for the product.
10. SELLER’S RIGHTS TO SUBCONTRACT
Seller may subcontract any portion of the work on any item
subject to this Agreement, but Seller’s obligations and rights
hereunder shall not be limited or affected thereby.
11. BANKRUPTCY OR INSOLVENCY OF BUYER
If the financial conditions of the Buyer at any time is such as
to give Seller, in its judgment, reasonable grounds for
insecurity concerning Buyer’s ability to perform its obligations
under this agreement. Seller may (a) by notice in writing to
Buyer, cancel this agreement, without judicial intervention or
declaration of default of Buyer and without prejudice to any
right or remedy which may have accrued or may accrue thereafter
to Seller, (b) require full or partial payment in advance and
suspend any further deliveries for continuance of the work to be
performed by Seller until such payment has been received or (c)
make shipments.
12. PATENT PROTECTION
(a) Seller will defend Buyer at its own expense, as set forth
herein, against any claim that the design or manufacture of any
standard Product furnished hereunder constitutes an infringement
of any biowaterworld europe GmbH patents or other industrial
property rights. Buyer shall notify Seller promptly in writing
of any such claim of infringement and shall give Seller full
authority, information and assistance in settling or defending
such claim. Seller shall have no liability whatsoever with
respect to any claims settled by Buyer without Seller’s prior
written consent. Seller shall not have any liability to the
Buyer under any provision of this clause if any patent
infringement or claim thereof, is based upon the use of the
goods as modified by any person other than the Seller or in
combination with equipment or devices act made by Seller, or in
a manner for which the goods were not designed. (b) In case the
Products furnished by Seller are held in and of themselves to
constitute infringement and their use is enjoined, Seller,
within a reasonable time, shall, at its option, either (1)
secure for Buyer the right to continue using the Products by
suspension of the injunction, by procuring for the Buyer a
license or by some other means, or (2) at Seller’s own expense,
replace the Products with non-infringing goods, or (3) remove
the enjoined Products and refund the sums paid. The foregoing
states the entire liability of Seller with respect to
infringement of intellectual property rights by the goods or any
part thereof or by their operation.
13. PROPRIETARY RIGHTS
(a)The sale of the Products hereunder to Buyer shall in no way be
deemed to confer upon Buyer any right, interest or license in
any patents or patent applications or design copyrights the
Seller may have covering the Products. Seller retains for itself
all proprietary rights in and to all designs, engineering
details, and other data and materials pertaining to any Products
supplied by Seller and to all discoveries, inventions, patents
and other proprietary rights arising out of the work done by
Seller in connection with the Products or with any and all
Products developed by Seller as a result thereof, including the
sole right to manufacture any and all such Products. Buyer
warrants that it will not divulge, disclose, or in any way
distribute or make use of such information, and that it will not
manufacture or engage to have manufactured such Products. (b)
Buyer warrents that it will not install, use, operate, or sell
the purchased Biolight System(s) for other purposes, other
appliactions or at other locations without Seller´s written
agreement/notification, or in a manner for which the goods were
not designed.
14. EQUAL OPPORTUNITY
biowaterworld europe GmbH certifies that it has developed and
has on file affirmative action programs as required by the rules
and regulations, issued by the Department of Labor.
15. ERRORS
Stenographic and clerical errors are subject to correction.
16. APPLICABLE LAW; JURISDICTION AND VENUE.
This agreement will be governed by the Laws of Germany. The
Siegen court will have exclusive jurisdiction and venue over any
dispute arising out of this agreement, and Buyer hereby consents
to the jurisdiction of such courts.
17. LIMITATION OF LIABILITY
(a) Seller will not be liable for any loss, damages or penalty
resulting from delay in delivery of the Products when such delay
is due to causes beyond the reasonable control of Seller,
including without limitation, supplier delay, force majeure, act
of God, labor unrest, fire, explosion or earthquake. In any such
event, the delivery date will be deemed extended for a period
equal to the delay. (b) Seller´s liability under, for breach of,
or arising out of this agreement and/or sale will be limited to
repair or replacement of any defective products or a refund of
the purchase price´of the products, at Seller´s sole option, as
set forth in paragraph 9 above. In no event will Seller be
liable for costs of procurement of substituted products by
Buyer, nor will Seller be liable for any special, consequential,
incidental or other damages including without limitation loss of
profit whether or not Seller has been advised of the possibility
of such loss however caused, whether for breach or repudiation
of contract, breach ot warrenty, neglicence or otherwise. This
exclusion includes any liablity that may arrise out of third
party claims against Buyer. This essential purpose of this
provision is to limit the potential liability of Seller arising
out of this agreement and/or sale.
18. SUBSTITUTIONS AND MODIFICATIONS
Seller will have the right to make substitutions and
modifications of the specifications of Products sold by Seller,
provided that such substitutions or modifications will not
materially affect overall Product performance.
19. WAIVER
Any concession or indulgence made by the Seller or Seller’s
failure to insist on performance of any of the terms and
conditions hereto shall not be considered a waiver of any other
term, whether the same or similar. No waiver by Seller of any
default or provision hereof shall be deemed a waiver of any
subsequent default or provision.
20. INDEMNIFICATION
Buyer shall defend, indemnify and hold biowaterworld europe
GmbH, its subsidiaries and affiliates, their officers,
directors, employees, and agents harmless from and against any
claims, actions or demands, liabilities and settlements,
including, without limitation, reasonable attorney and
accounting fees, resulting from, or alleged to result from
Buyer’s use or Sale of the Product.
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