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(1) All our deliveries, services and offers are made exclusively on the basis of these General Terms of Delivery and Performance. These are an integral part of all contracts which we conclude with our contract partners (hereinafter also referred to as the "Principals") regarding the deliveries or services offered by us. They are also valid for all future deliveries, services or offers to the Principal, even if they are not agreed again separately.
(2) All types of terms and conditions as well as "General Terms and Conditions" of the client or third parties do not apply, unless expressly agreed in writing. This also applies if we have not separately objected to their validity in individual cases. Even if we refer to a letter that contains or refers to the terms of business of the Principal or a third party, this does not constitute an agreement with the validity of these Terms and Conditions.
Offer and Conclusion of Contract
(1) All our offers are free and without obligation, unless they are expressly marked as binding or contain a certain acceptance period. We can accept orders or commissions within thirty days after receipt.
(2) Solely the contract as concluded in writing, including these General Terms and Conditions of Delivery and Performance, shall be relevant to the legal relations between us and the Principal. The contract, including our General Terms and Conditions of Delivery and Performance, completely represents all agreements between us and the Principal regarding the object of the contract. Verbal commitments by us before the conclusion of this contract are legally non-binding and verbal agreements are replaced by the written contract, insofar as it is not expressly stated in them that they are binding.
(3) Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery and Performance, need to be in writing to be effective. With the exception of managers or authorized signatories, our employees are not entitled to make any verbal agreements that differ from these. To observe the written form, a telecommunication transmission is sufficient, in particular one by fax or by e-mail, provided that the copy of the signed declaration is transmitted.
(4) Our information about the subject of the delivery or the delivery itself (e.g. weights, dimensions, performance values, load bearing capacity, tolerances and technical data) as well as our representations of these (e.g. drawings and illustrations) are only approximately normative, unless the usability for the purpose intended in the contract presupposes an exact agreement. They are not guaranteed condition characteristics, but descriptions or markings of the delivery or service. Any customary deviations and deviations, which are due to legal requirements or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) We reserve the right to property or copyright for all offers and cost estimates we submit, as well as for drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids provided to the Principal. Without our express consent, the Principal may neither make these objects accessible to third parties in terms of content, nor make them known, use them himself or have them used by third parties or reproduce them. At our request, he has to return these objects to us completely and destroy any copies produced, if they are no longer required by him in the normal course of business or when negotiations do not lead to the conclusion of a contract.
Prices and payment
(1) The prices are valid for the scope of services and delivery as specified in the order confirmations. Additional or special services are charged separately. The prices are in EURO ex works / FCA excluding packaging, legal VAT, for export deliveries plus customs duties, fees and other public charges.
(2) Insofar as the agreed prices are based on our list prices and the delivery is to be effected more than four months after conclusion of the contract, our list prices at delivery will apply (each less an agreed percentage or a fixed discount).
(3) Invoices shall be paid within thirty days without any deduction, unless otherwise agreed in writing. Normative for the date of payment is the date of receipt. Checks will only be considered as payment after cashing. If the Principal does not pay at maturity, the outstanding amounts are to be paid as of the maturity date at 5% interest annually; the claim for higher interest rates and further damages in case of default shall remain unaffected.
(4) The compensation with counterclaims of the Principal or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or legally established.
(5) We shall be entitled to carry out or to deliver any outstanding deliveries or services only against advance payment or security performance if, after the conclusion of the contract, we become aware of circumstances which considerably reduce the creditworthiness of the Principal and due to which the payment of our outstanding debts by the Principal from the respective contractual relationship is jeopardized (including other individual orders for which the same framework contract applies).
Delivery and delivery time
(1) Deliveries are made ex works.
(2) Time limits and deadlines for deliveries and services we indicate are only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed upon. If shipping has been agreed, the delivery periods and delivery dates refer to the date of handing over to the freight forwarder, freight carrier or another third party responsible for the transport.
(3) Without prejudice to our rights arising from the default of the Principal, we may require the Principal to prolong the delivery and performance periods or to postpone the delivery and performance deadlines with the period in which the Principal does not meet his contractual obligations towards us.
(4) We are not liable for the impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events unforeseeable at the time of the conclusion of the contract (e.g. operational disturbances of all kinds, difficulties in material or energy procurement, transport delays, strikes, legal exclusions, energy or raw materials, difficulties in procuring necessary regulatory approvals, governmental measures, or failure to supply suppliers in a proper or timely manner) which we are not responsible for. Insofar as such events make the delivery or service substantially more difficult or impossible and the hindrance is not only of temporary duration, we are entitled to withdraw from the contract. In the case of obstacles of a temporary duration, the delivery or performance periods are extended or the delivery or performance dates are postponed with the period of the hindrance plus an appropriate start-up period. If, due to the delay, the Principal cannot be expected to accept the delivery or service, he can withdraw from the contract towards us by sending an immediate written declaration.
(5) We are only entitled to partial deliveries if
- the partial delivery is usable for the Principal within the scope of the contractual purpose,
- the delivery of the remaining ordered goods is ensured and
- the Principal does not incur any substantial additional costs or additional costs because of it (unless the seller is willing to accept these costs).
(6) If we are in default with a delivery or service or if a delivery or service is impossible for any reason, our liability for damages shall be limited in accordance with § 8 of these General Terms of Delivery and Performance.
Place of Performance, Shipping, Packaging, Transfer of Risk, Acceptance
(1) The place of fulfilment for all obligations arising from the contractual relationship is at our company headquarters in 47906 Kempen, unless otherwise specified. If we also owe the installation, the place of performance is the place where the installation is to be carried out.
(2) The method of shipping and packaging is subject to our dutiful discretion.
(3) The risk shall pass to the Principal at the latest upon delivery of the delivery item (in which the commencement of the loading process is decisive) to the freight forwarder, freight carrier or other third party responsible for the execution of the shipment. This also applies if partial deliveries are made or we have taken upon us other services (for example, shipping or installation). If the shipment or delivery is delayed as a result of a circumstance which is the cause of the Principal, the risk is transferred from the date on which the delivery item is ready for dispatch and the seller has indicated this to the Principal.
(4) Storage costs after the transfer of risk shall be borne by the Principal. When stored by the seller, the storage costs amount to 0.25% of the invoice amount of the delivered items to be stored per elapsed week. We reserve the right to claim and prove further or lesser storage costs.
(5) The shipment is insured by us only at the explicit request of the Principal and at his expense against theft, breakage, transport, fire, and water damage or other insurable risks.
(6) If an acceptance has to take place, the purchased goods shall be considered to be accepted if
- the delivery and, insofar as we owe the installation, also the installation is completed,
- we have communicated this to the Principal with reference to the acceptance inspection in accordance with this § 5 (6) and have requested him to take delivery,
- twelve working days have elapsed since the delivery or installation, or the Principal has started to use the purchased item (e.g. the delivered plant has been put into operation) and in this case [six] business days have elapsed since delivery or installation and
- the Principal has failed the acceptance within this period for a reason other than for a defect which has been indicated to us that makes the use of the purchased item impossible or substantially impaired.
Warranty, material defects
(1) The warranty period shall be one year from the date of delivery or, as far as acceptance is required, from the date of acceptance. For products used in single-shift operation, the warranty is 12 months from delivery.
(2) The goods delivered must be carefully inspected immediately after delivery to the Principal or to the third party designated by him. They shall be deemed to have been approved by the Principal in respect of obvious defects or other defects which would have been recognisable in the case of an immediate, careful examination, if we did not receive a written notification of defects within seven working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Principal if the complaint does not reach us within seven working days after the date of the defect; if the defect was already recognisable at an earlier date for the Principal in normal use, this earlier date for the start of the complaint period is nevertheless decisive. At our request, a complained delivery item must be returned to us free of freight charges. In the case of justified complaints, we will reimburse the costs of the most favourable shipping route; this does not apply if the costs increase because the delivery item is located in a place other than the place of the intended use.
(3) In the event of material defects of the goods delivered, we shall be obliged and entitled to rectify or replace the goods within the reasonable time. In the event of a failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the Principal can withdraw from the contract or reduce the price appropriately.
(4) If a defect is due to our fault, the Principal may demand damages under the conditions stipulated in § 8.
(5) In the case of defects of components of other manufacturers, which we can not remedy for licensing or actual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers at the expense of the Principal or pass them on to the Principal. Warranty claims against us in the case of such defects under the other conditions and in accordance with these General Terms and Conditions of Delivery and Performance shall only exist if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. During the duration of the legal dispute, the statute of limitations of the respective warranty claims of the Principal against us is inhibited.
(6) The warranty becomes void if the Principal changes the delivery item without our consent or has it changed by a third party and the remedy of the defect is thereby made impossible or unreasonably difficult. In any case, the Principal shall bear the additional costs arising from the modification of the remedy of the defect.
(7) An occasional delivery of used items agreed with the Principal is carried out under exclusion of any guarantee for material defects.
Intellectual Property Rights
(1) In accordance with § 7, we shall ensure that the delivery item is free of industrial property rights or copyrights of third parties. Each contractual partner shall immediately notify the other contractual partner in writing if due to the infringement of such rights he is faced with damages claims.
(2) In the event that the delivery item violates an industrial property right or copyright of a third party, we shall, at our discretion and expense, modify or exchange the delivery item in such a way that no further rights of third parties are infringed, the delivery item however still fulfils the contractually agreed upon functions, or by granting the Principal the right of use by concluding a license agreement. If he does not succeed in doing this within a reasonable period, the Principal is entitled to withdraw from the contract or to reduce the price appropriately. Any damages claims of the Principal are subject to the limitations of § 8 of these General Terms of Delivery.
(3) In the case of infringements of justice by products of other manufacturers delivered by us, we shall, at our discretion, assert or assign our claims against the manufacturers and suppliers at the expense of the Principal or pass these on to the Principal. In these cases, claims against us are subject to the provisions of § 7 only if the enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or is futile, for example due to insolvency.
Liability for Damages due to Fault
(1) Our liability for damages, irrespective of the legal basis, in particular from impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in the case of contractual negotiations and unauthorized action, shall be limited in accordance with this § 8.
(2) We shall not be liable in the event of simple negligence on the part of our bodies, legal representatives, employees or other vicarious agents, insofar as this is not a violation of contractual obligations. Essential for the contract are the obligation to deliver and install the delivery item in good time, its lack of defects which impair its functionality or usability more than insignificantly, as well as advice, protection and custody obligations that should enable the Principal to use the delivery item in accordance with the contract or are intended for the protection of life or limb of the Principal's staff or the protection of its property against substantial damage.
(3) Insofar as we are liable for damages according to § 8 (2), this liability is limited to damages which upon conclusion of the contract we have foreseen as a possible consequence of a breach of contract, or which we should have foreseen when applying customary diligence. Indirect damages and consequential damages, which are the result of defects of the delivery item, are also only substitutable, insofar as such damage is typically to be expected when the delivery item is used as intended.
(4) In the case of liability for simple negligence, our liability to compensate for material damage and resulting further assets damages is limited to an amount of EUR 500,000.00 per damage case, even if it concerns a breach of contractual obligations.
(5) The above exclusions and limitations of liability apply equally to the benefit of our bodies, legal representatives, employees and other vicarious agents.
(6) Insofar as we provide technical information or act as advisors and this information or advice is not part of the contractually agreed scope of services, this shall be free of charge and without any liability.
(7) The limitations of this § 8 shall not apply to our liability for intentional behaviour, for guaranteed condition characteristics, for injury to life, body or health or according to the Product Liability Act.
Reservation of title
(1) The following retention of title serves to safeguard all our existing and future claims against the Principal from the business relationship existing between us and the Principal concerning the delivery of bellows, technical fabrics or wire bending parts (Including balancing claims from a current account relationship limited to this relationship).
(2) The goods delivered by us to the Principal remain our property until full payment of all secured claims. The goods, as well as those which subject to the following provisions will replace them, shall be referred to in the following as "Reserved Goods".
(3) The Principal shall store the Reserved Goods free of charge for us.
(4) The Principal shall be entitled to process and sell the Reserved Goods in the ordinary course of business until the occurrence of the utilisation (paragraph 9). Hypothecations and security surrenders are not permitted.
(5) If the Reserved Goods are processed by the Principal, it is agreed that the processing will take place on our behalf and at our expense as a manufacturer and we will directly acquire the property or – if processing occurs with substances of several owners, or the value of the processed item is higher than the value of the Reserved Goods - acquire the co-ownership (fractional ownership) of the newly created item in relationship to the value of the reserved commodity at the value of the newly created item. In the event that we should not acquire such property, the Principal will immediately transfer his future property or – in the aforementioned relationship – the co-ownership of the newly created item to us as a security. If the Reserved Goods are combined with other items to form one single item or are mixed inseparably, and if one of the other items is to be regarded as the main item, we thus proportionately transfer the co-ownership, insofar as the main item is his property, to the Principal in the proportion as specified in sentence 1.
(6) In the event of the resale of the Reserved Goods, the Principal will already now assign to us the resulting claim against the purchaser – in the case of our co-ownership of the Reserved Goods in proportion to the co-ownership share. The same applies to other claims which are replaced by the Reserved Goods or otherwise arise with regard to the Reserved Goods, such as insurance claims or claims arising from tortious act in case of loss or destruction. We hereby revocably authorise the Principal to collect the claims assigned to us in his own name. We may only revoke this collection authorisation in the event of a utilisation.
(7) If third parties access the Reserved Goods, in particular through hypothecation, the Principal shall immediately inform them of our ownership and inform us about this in order to enable us to enforce our proprietary rights. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs arising in this connection, the Principal is liable towards us.
(8) We shall release the Reserved Goods as well as the goods or claims that replace them insofar as their value exceeds the amount of the secured claims by more than 30%. The selection of the objects to be released afterwards is our responsibility.
(9) If, in the case of a breach of contract by the Principal – in particular default of payment –, we withdraw from the contract (utilisation case), we are entitled to demand the Reserved Goods.
(1) If the Principal is a merchant, a legal person of public law or a public special fund or has no general court of jurisdiction in the Federal Republic of Germany, then the court of jurisdiction for all disputes arising from the business relationship between us and the Principal is at our own choice our registered office in 47906 Kempen or the registered office of the Principal. In such cases, however, our registered office in 47906 Kempen is the exclusive court for actions against us. Mandatory legal provisions regarding exclusive jurisdictions shall remain unaffected by this regulation.
(2) The relations between us and the Principal are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) In so far as the contract or these General Terms of Delivery contain gaps in the regulations, the legally effective regulations will apply which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery and Performance, had they known of these gaps in the regulations.
The Principal acknowledges that the seller will store data from the contractual relationship pursuant to § 28 Bundesdatenschutzgesetz (German Data Protection Act) for the purpose of data processing and reserves the right to transfer the data to third parties (for example, insurance companies), insofar as necessary for the fulfilment of the contract.
The following Standard Terms and Conditions (“Agreement”) apply to any and all procurement by Buyer of all makes and models of equipment, parts and components for such equipment (“Equipment”) and repair services, refurbishment or warranty work or other services (“Services”) described in an invoice, lease, proposal, quote, purchase order acknowledgment, sales acknowledgement, drawing, exceptions document or other instrument to which this Agreement is attached or to which reference is made or to any purchase order, transactional document or any other communication between the parties regardless of whether this Agreement is referenced therein. Equipment and Services shall be collectively referred to as “Products”. Seller objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order or other communication from Buyer to Seller, unless specifically agreed to in a single writing signed by the Parties hereto. This Agreement constitutes the entire, integrated agreement between the Parties related to the subject matter of this Agreement and any and all discussions, understandings, agreements, representations, courses of dealings, customs, and usages of trade heretofore made or engaged in by the Parties with respect to the subject matter hereof are merged into this Agreement, which alone fully and completely expresses the Parties’ agreement. Seller will not be liable to Buyer, for representations and warranties made by Seller’s distributors and sales agents which are inconsistent or in conflict with this Agreement.
“Seller” means Richter Pumps & Valves, Inc. and any of its affiliates.
“Buyer” or “Buyers” means, as applicable, the purchaser or lessee of Products.
2. Terms of Sale
- The Equipment shall transfer by Seller to the shipping carrier per the Incoterms set forth in the applicable quotation (“Quote”), at which point title and all risk of loss or damage to Equipment will pass to Buyer.
- Buyer shall conduct an inspection of the Products promptly upon delivery and shall promptly notify Seller in writing of any defects. If Buyer fails to promptly notify Seller of any defects, whether or not any such inspection and acceptance has been performed by Buyer, the Products shall be considered accepted. Buyer’s sole and exclusive remedy for rejection of Equipment is as set forth in Section 3 (Product Warranty).
3. Product Warranty
All technical support installation, product warranty, and post warranty services are provided only at the original installed location. Product warranty is NONTRANSFERABLE from one location to another, except with the prior written consent of Seller.
- Seller warrants that for a period of one (18) months following shipment the Equipment will: (i) be free from defects in materials and workmanship; and (ii) conform to the specifications agreed to by the Parties in writing. Seller warrants that Services will be performed in a workmanlike manner and such warranty shall be limited to a period of one (1) year from date of service (other than warranty services and services performed gratis). Buyer’s sole and exclusive remedy for any breach of warranty related to Equipment will be limited to, at Seller’s option, replacement, repair or refund of the purchase price of the Equipment that does not conform with the warranties, provided that Buyer notifies Seller of such defect in writing within five (5) days after Buyer knows or has reason to know thereof, and provided further that inspection of the Equipment by Seller discloses that the defect developed under normal and proper use of the Equipment.
- This warranty will not apply to Equipment that: (i) is damaged due to misuse, abuse, negligence or accident occurring during or after shipment; (ii) is changed or modified (unless the change or modification is made by or in accordance with written instructions of Seller); (iii) deteriorates due to erosion, abrasions or chemical action; (iv) fails due to improper installation (except for installation provided or supervised by Seller), operation or maintenance; (v) fails due to any non-Seller equipment, or system with which Equipment is used; or (vi) Buyer operates in any manner other than in accordance with Seller’s manual, guidelines, operating instructions or other material.
- Equipment will not be returned to Seller without Seller's written permission. Provision of a replacement part or component will not operate to extend the warranty period for any Equipment. Seller reserves the right to inspect Equipment that is subject to warranty claims and to require the return of such Equipment that is subject to warranty claims to Seller’s Warehouse at Buyer’s expense; provided, however, that it is determined that the issue with returned Equipment is covered by warranty, Seller will reimburse Buyer for freight charges associated with the return of such Equipment to Seller’s Warehouse. Seller also reserves the right to use reconditioned parts and components for warranty replacements.
- THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SELLER DISCLAIMS AND BUYER WAIVES, ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW (STATUTORY OR OTHERWISE) AND WHETHER OR NOT OCCASIONED BY SELLER’S NEGLIGENCE.
4. Limitation of Liability
SELLER WILL NOT BE LIABLE TO BUYER, FOR SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, DOWNTIME, LOSS OF BUSINESS AND FROM ANY CLAIM, ACTION OR CAUSE WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE MANUFACTURE, SALE, HANDLING, REPAIR, REPLACEMENT OR USE OF PRODUCTS.
IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM, EVEN IF SELLER IS ADVISED OR PLACED ON NOTICE OF THE POSSIBILITY OF SUCH PENALTIES OR DAMAGES AND NOTWITHSTANDING THE FAILURE OF AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
In no event shall Seller be liable for late delivery or other penalties.
5. Intellectual Property
All patent, technology, copyright, trade secret or other similar proprietary or intellectual property rights in or related to the design, production, delivery, operation, use, application or performance of Products, or other Confidential Information of Seller, and all improvements thereto, are and will remain the sole and exclusive property of Seller.
In no event may Buyer make a patent or other claim to Seller’s Products and/or Seller’s technology or processes or include or reference any Confidential Information of Seller in any patent or other claim. Nothing in this Section 5 precludes Buyer from incorporating a description or reference to Seller’s Products and/or non-confidential aspects of Seller’s technology or processes where necessary to support a patent or other claim to Buyer’s product, provided, however, that no use of Seller’s name, trademarks or logos may be made without Seller’s prior written consent. Nothing in this Agreement will be construed as granting to Buyer any license or grant of intellectual property rights with regards to the Products’ or its processes.
6. Seller Indemnity
Seller shall defend, indemnify and hold harmless Buyer against third party claims for personal injury or tangible property damage to the extent caused by a defect in any Equipment. Seller’s obligations to Buyer hereunder shall be subject to and conditioned upon Buyer giving Seller written notice of such claim (including all known material facts related thereto) within ten (10) days after it is asserted against Buyer (provided that the failure to give Seller written notice of a claim as provided herein shall relieve Seller from its obligations hereunder only if and to the extent Seller is prejudiced thereby) and Buyer granting Seller exclusive direction and control of the investigation, defense and settlement of such claim, including, but not limited to, selection of legal counsel to represent Buyer at Seller’s expense.
7. Equipment Changes
Seller reserves the right, in its sole discretion and without prior notice, to make changes to Equipment at any time that do not materially affect form, fit or function.
8. Buyer Requested Change, Delay or Cancellation, Liquidated Damages
- If Buyer requests a change to Equipment, Seller may impose additional equitable charges.
- No delivery reschedules or delays will be permitted within 45 days of the confirmed ship and/or FAT date per Seller’s order confirmation.
- No cancellation of Equipment is permitted within forty-five (45) days of scheduled FAT and/or Shipment per Seller’s Order Confirmation. In the event Buyer cancels any order for Equipment outside of that time frame or does not accept delivery, the minimum charge imposed by Seller and payable immediately will be: the price of the manufactured Equipment, plus the cost of labor, any work in progress, any parts and components that are on order, and any manufacturer cancellation charges for unshipped items for such cancelled parts and components.
- If shipment of the Equipment is delayed or rescheduled for greater than ten (10) days after the confirmed ship date due to Buyer’s fault, then upon the expiration of such ten (10) day period, Buyer shall pay to Seller, a storage and handling fee equal to one tenth of one percent (0.10%) per day of the purchase order value for each day the shipment is delayed, with a maximum storage and handling fee of ten percent (10.0%) of the purchase order value. The parties agree that such amounts are a reasonable pre-estimate of the damages Seller will suffer as a result of delay based on circumstances existing at the time the purchase order was issued and are to be assessed as liquidated damages and not as a penalty.
- If pursuant to the terms of the purchase order, Buyer has elected to use a freight forwarder and/or carrier selected by Buyer, and shipment of the Equipment does not take place on or prior to the confirmed ship date as a result of Buyer’s failure to arrange for Buyer’s freight forwarder and/or carrier to take delivery of the Equipment on the confirmed ship date, then, upon five (5) business days’ notice to Buyer (which may be by email), (i) Seller shall be entitled to ship the Equipment to Buyer using a freight forwarder selected by Seller FCA Cedar Falls, IA (Incoterms 2020) freight prepaid and billed” and invoice Buyer for such charges; and (ii) Buyer shall pay to Seller such invoiced charges net thirty (30) days after date of invoice. If Seller exercises its rights under this paragraph, title and risk of loss shall pass to Buyer in accordance with the Incoterm as specified in the Quote.
9. Confidential Information
For purposes of this Agreement, “Confidential Information” shall include all information furnished under this Agreement which is designated as confidential or proprietary, or which the receiving party knows or should know is being disclosed on a confidential basis, including without limitation pricing information, proposals, prints, drawings and all information in or related to the design, development, production, delivery, operation, use, application or performance of any of a party’s technology, equipment, parts, or maintenance/services. Confidential Information does not include information which: (a) is known or independently developed by the receiving party prior to its disclosure by the other party, as evidenced by receiving party's records; (b) becomes a part of the public domain without breach of this Agreement by the receiving party; (c) is received from a third party without restriction and under conditions permitting its disclosure to others; or (d) which is disclosed pursuant to judicial action or government regulations provided the receiving party notifies the disclosing party prior to such disclosure, and cooperates with the disclosing party in the event it elects to legally contest and avoid such disclosure.
For a period of five (5) years from the date of receipt, Confidential Information shall be maintained in confidence by the receiving party, shall not be disclosed to any third party, other than Seller’s suppliers who have a reason to know, without prior written approval of the disclosing party, and shall be protected with the same degree of care as the receiving party normally uses in the protection of its own confidential and proprietary information, but in no case with any less degree than reasonable care. Notwithstanding the foregoing, the Parties’ obligation to protect trade secrets is perpetual or for so long as such information remains a trade secret under applicable law, whichever occurs first.
10. Force Majeure
Seller is not liable for any failure to perform its obligations under this Agreement resulting directly or indirectly from or contributed to by, acts of God, acts of civil or military authorities, riots or civil disobedience, terrorism, wars, strikes or labor disputes, accidents, floods, fires, or inability to secure material or transportation facilities, dissolution of a supplier’s business, acts or omissions of carriers, or any other circumstance beyond Seller’s reasonable control; provided, however, that, Buyer agrees to take delivery and make payment for finished Equipment or component as of the date of the Force Majeure event.
No failure or delay by either party to insist upon strict performance of any rights or powers under this Agreement shall operate as a waiver thereof, nor shall any other single or partial exercise of such right or power preclude any other further exercise of any rights or remedies provided by law, unless agreed to by that party in writing. Any waiver of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party.
This Agreement may not be transferred or assigned by Buyer without the prior written consent of Seller. Seller may assign its rights and obligations under this Agreement in whole or in part to an affiliate company or third party acquirer in the event of a merger, acquisition or sale of all or substantially all its assets.
13. Specific Performance
Buyer agrees that monetary damages may not be sufficient to remedy a breach hereunder and that Seller shall be entitled to seek specific performance and injunctive or other equitable relief.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this contract shall remain in effect.
15. Export Import
Buyer shall be solely responsible for obtaining all approvals, authorizations licenses and permits, unless otherwise specified under the applicable Incoterms agreed to by the parties. Buyer shall comply with all laws, rules and regulations, and making all arrangements related to the export or import of Equipment supplied by Seller. Equipment and related technical information, data, documents and materials are subject to export controls under U.S. Export Administration Regulations and U.S. Department of the Treasury embargo regulations and other applicable laws. Buyer shall strictly comply with all such export controls, shall fully cooperate with Seller in any official or unofficial investigation, audit or inspection that relates to any of such controls, and shall not export, re-export, divert or transfer, directly or indirectly, any Equipment or related technical information, data, documents or materials to any party or destination or for any use that is subject to an embargo or otherwise prohibited pursuant to such controls, unless and until Buyer obtains all required governmental and regulatory approvals, authorizations, licenses and permits.
16. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware if Seller is an entity formed in the U.S. and the Province of Ontario if the Seller is a Canadian legal entity, without regard to its conflict of law provisions and shall not be governed by the U.N. Convention on the International Sale of Goods.
Quoted prices exclude taxes, freight and insurance and any duties and brokerage charges, all of which shall be the sole liability and responsibility of Buyer. If Buyer claims an exemption from any tax, a valid and proper tax exemption certificate must accompany order. Unless otherwise set forth in Seller’s invoice, proposal, lease, or purchase order acknowledgment, all payments shall be made in the currency specified in the Quote.
Any deposit or graduated payment schedule shall be set forth in the Quote and invoiced accordingly. If not addressed in the Quote, Equipment will be invoiced upon shipment and Services upon completion or thirty (30) days from shipment of Equipment, whichever occurs first. Payment is due Net30 or as otherwise specified in the Quote.
All amounts not paid and received in full by the due date are subject to a finance charge at the rate of one and one half percent (1.5%) per month (eighteen percent (18%) per annum) or, if less, at the maximum rate permitted by law, from the date due until paid in full. Prices set forth in a Quote are subject to being adjusted due to extraordinary market conditions. As used herein, “extraordinary market conditions” means any increase in the cost of materials caused by changes in the market or for any other reason that is outside of Seller's control such as tariffs, surcharges, and fluctuations in currency and raw materials, which results in an overall price increase of the Equipment in excess of two percent (2%) above the price listed in the Quote. Each shipment is a separate sale and is subject to credit arrangements or to receipt of cash. If payment is not made in accordance with Seller’s payment terms, or if at any time, in Seller's sole judgment, Buyer's credit standing has been impaired, Seller may withhold shipment of any Equipment or the provision of any Services, until cash or credit arrangements have been established to Seller’s sole satisfaction.