Art.1 Scope of application, Conclusion of the contract, Written form
(1) Our general terms and conditions of sale and delivery are to be held valid in the ordinary course of day-to-day business practices with businessmen/businesswoman and entrepreneurs, with corporate bodies under public laws or with special assets and/or entities under public law. The terms and conditions herein will prevail for all offers, deliveries and services rendered, unless individual agreements and/or terms and conditions deviating from the general terms and conditions of sale and delivery herein, are stipulated. Within the scope of consistent and continuous business relationships, said agreements will furthermore prevail for all future business transactions, without there being any need for further notices and/or notifications accordingly.
(2) By assigning the order and/or by unquestioned acceptance of the order confirmation and/or of the deliveries and services rendered, the Customer hereby acknowledges that the terms and conditions herein are binding.
(3) We hereby expressly object to any conflicting and/or deviating conditions set forth by the Customer. Our general terms and conditions of sale and delivery herein will by all means always prevail, even in the event that we may be outright aware of delivering compliant to any conflicting and/or deviating conditions set forth by the Customer.
(4) Unless as otherwise specifically provided for by you, our offers are hereby to be understood as being subject to change and/or confirmation without notice and, non-binding. A contract agreement will be deemed as having been stipulated with the customer subsequent to acceptance by us of the customer’s order, issued either by way of a written order confirmation and/or by way of deliveries and services rendered. For us, the term of acceptance amounts to 4 weeks from the date of acquisition of the order.
(5) Any possible item properties and condition warranties and/or service life warranties, agreements on properties and conditions or declarations as to the utilisation, application and/or appropriateness of the delivery item(s) as well as any further miscellaneous collateral agreements will, in case of doubt, be deemed as being valid only if they are stipulated in writing. Any possible agreements as well as specifications set forth in our offers as to item properties and conditions and/or as to the utilisation of the delivery item(s) will override any possible specifications set forth in any of our brochures, drawings and figures, descriptions, pricelists and any other documentation and/or samples.
Art.2 Prices
(1) Our prices are to be understood as being expressed in EURO ”ex works Illingen (D)” or any other venue as specified by us, with packing, freight, postage and customs costs plus value-added tax at legally valid rates, all excluded. Packing is provided at customer’s expense and returns thereof will not be accepted.
(2) Our prices are calculated based on our costs occurring and valid as at the point in time our offer is issued upon. Should any increases occur in the foregoing costs between said point in time and the actual time of delivery, we are hereby entitled, subsequent to timely notification to the customer and prior to delivery of the goods, to adjusting the price in conformity with the cost increases sustained.
(3) Services duly rendered yet not specified in the order agreements, particularly in as far as samples and/or designs and projects provided upon the customer’s request are concerned, will be subject to separate, additional invoicing.
Art.3 Payment conditions, Partial deliveries, Offsetting and Right of retention
(1) Unless otherwise stipulated, payments are to be executed immediately, without any deductions and free of transaction charges, to our designated account(s). Default is established as incurring 30 days after the payment due date, without any reminders being issued accordingly.
(2) We are hereby granted the right, despite any other provision to the contrary, of first of all offsetting customer payments against previous and/or older arrears. Upon the occurrence of expenditures and/or interests, we are hereby entitled to allocating payment amounts first against expenditures, then against interests and finally against the principal claim.
(3) In case of first-time customers or customers headquartered abroad, we hereby reserve the right to demanding advance payments or supply against cash on delivery.
(4) If a customer were to fall into payment arrears or in the event of circumstances arising, giving rise to misgivings about the Customer’s creditworthiness, all pending receivables due to us by said Customer will immediately fall payable, regardless of the relative payment deadlines previously agreed upon. In any such cases we are furthermore entitled to executing any remaining services still to be rendered, only against prepayment or against collateral security.
(5) We are hereby entitled to performing partial deliveries and, to separate invoicing thereof.
(6) The Customer is allowed to offset counterclaims and/or to substantiate right(s) of retention only if duly acknowledged by us, or if judicially awarded accordingly.
Art.4 Delivery lead times and delivery defaults
(1) To the extent that deliveries may not be performed from our inventory stocks, orders will be undertaken only subject to correct and punctual supply to ourselves by our suppliers.
(2) The specified delivery lead times (i.e. the term for delivery or the delivery date) are, in case of doubt, always to be understood as being merely approximate. A stated term for delivery will commence as of the date that the order confirmation is issued upon. It will nevertheless not commence before the overall details of the order processing requirements are perfectly clear and unless all requisite conditions have been duly fulfilled by the Customer, particularly in as far as any advance payments are concerned. The delivery period shall be deemed to have been met if either the items on delivery have left the factory within the expiry of the delivery deadline, if forwarding of the delivery items is not possible without any faults being attributable to us, or if at least notification on readiness for shipment has been duly given to the Customer.
(3) Compliance with our delivery commitments implies the timely and orderly fulfilment of all relative commitments, by the Customer.
(4) In all events of breakdowns and/or failures in business procedures and/or operations, particularly due to labour disputes, to cases of force majeure, to unforeseeable operation failures and/or to official interventions that cannot in any way be attributable either to us or to our upstream suppliers and/or subcontractors, then the delivery lead times will be extended accordingly. We cannot furthermore be required to account for any of the foregoing circumstances, in the event that they were to occur during already existing defaults in delay. If, in the long run, any of said obstacles and/or hindrances were to make it impossible for us to perform, we are hereby granted the right to rescind from the contract, either in whole or in part. Claims for damages arising due to said rescission, are hereby not admissible.
(5) In the event that the delivery lead time is exceeded for reasons that can in fact be attributable to us, we will be deemed as being in delivery default if, after the stipulated delivery time the customer demands performance of delivery, in writing, within a set time limit of at least 3 (three) weeks and if said time limit elapses with delivery still not performed by us. In said case the Customer is entitled to levying, for each full week of delay, a flat-rate delay-penalty charge amounting to 0.5 % of the overall supply value, for a maximum of 5 % of said overall supply value. Further claims to be per the provisions of Art.8 subsequently herein.
(6) If the Customer were to grant us a reasonable additional grace period amounting to at least 4 (four) weeks after we have already fallen into delivery default, then the Customer is hereby entitled to rescind from the contract, if said grace period elapses with delivery still not performed by us. In view of legal requirements, the appointment of a date is superfluous. In case of default, upon demand by us and within a reasonable time limit, the Customer is hereby committed to declare whether delivery is still requested.
(7) Once the originally stipulated delivery time has elapsed, we are entitled to performing delivery. In the event that the customer were to need or to require that the delivery items are stocked on our premises, (we are entitled) to invoicing the overall supply including the relative storage expenses, subject to immediate payment. The overall, additional surcharges incurring hereby, will be stated and charged separately on the invoice.
Art.5 Call-off orders, Default of acceptance
(1) Call-off orders must be called-off latest within 6 (six) months from the date our order confirmation is issued upon. Once said time limit has elapsed we are entitled to granting the customer a reasonable additional grace period amounting to a minimum of 14 days, for call-off within a reasonable time limit and, if said grace period were to elapse unsuccessfully, we are hereby entitled, at our own option, to either demand acceptance of the items not yet called off and to proceed with invoicing the same or to decline from delivery and to claim for losses or indemnities suffered due to non-performance.
(2) If the Customer were to incur in default of acceptance, we are entitled to levying, for each full week of default, a flat-rate delay-penalty charge amounting to 0.25 % of the overall supply value, for a maximum of 10 % of said overall supply value. The customer hereby retains the right to provide evidence of a lower loss, whilst we hereby retain the right to providing evidence of a higher loss. If, after elapse of a reasonable additional period of grace amounting to at least 4 weeks, the customer were to refuse acceptance or if shortly before said time limit the customer were to expressly declare non-acceptance, we are hereby entitled to rescind and terminate the contract and to claim for losses or indemnities suffered due to non-performance.
Art.6 Risk and transportation perils
(1) The risk(s) is(are) hereby duly transferred to the Customer whenever the Customer were to incur in default of acceptance, or if the delivery items are despatched to the Customer, including when the items are sent to the Customer free of transportation charges or if delivery is carried out with our own means of transport. The Customer incurs in default of acceptance, if we were to notify the Customer on readiness for shipment and if any set time limit of acceptance were to elapse.
(2) We shall stipulate a transport or carriage insurance only subsequent to express, written request by the Customer and entirely at Customer’s expenses.
Art.7 Customer rights in the event of defects
(1) Alterations to the delivery items attributable to wear and tear incurring either from normal operations or from overuse, from faulty or careless treatment and operation by the Customer or by third parties, from atmospheric conditions or any other external influences, will not constitute material deficiencies, unless any of the foregoing circumstances are attributable to us. Likewise, merely irrelevant variations from the contracted item properties and conditions, from the customary quality tolerance levels as well as the customary excess delivery and short delivery tolerances up to 5%, will also not constitute material deficiencies. Any samples that the delivery items may in principle be based upon, are hereby deemed as constituting only a rough indication thereof, unless otherwise stipulated. In case of implementation of third-party-supplier and/or unwanted materials, our liability will be limited to the possible selection options.
(2) References to technical standards and regulations will not constitute any item properties and condition warranties.
(3) The customer is hereby responsible, that any samples made available, material provided further to any miscellaneous information and specifications given by the Customer, are suitably fitting and dimensionally accurate, further to conforming with the actual and effective standards. Should any of the foregoing not be met, the Customer will be required to reimburse any possible additional expenditures thereby occurring.
(4) The Customer is required to reprehend and notify us of any apparent defects immediately, latest within 7 (seven) days from delivery of the goods. Any defects becoming evident and/or discovered at later stages must be reprehended and notified to us latest within 7 (seven) days from the date they are discovered upon. Said time limits constitute statutory cut-off periods. Each notification of defects must be forwarded in writing and must provide accurate and individual details on the alleged defects.
(5) We are hereby entitled, in compliance with Customers interests and with the actual type of defect, to determine the type of supplementary performance (i.e. remedy of defects or replacement delivery) to be undertaken.
(6) In the event of claims for damages arising due to defects, subsequent article 8 herein will apply.
(7) Claims by the Customer based on defects are statute-barred 12 months as of the transfer of risk, in as far as we cannot be held liable under intent and/or in the event that longer time limits are mandatorily stipulated by law. Said statute barring time limit is applicable to any type of claim whatsoever, comprising entitlements to refunds for consequential harm as correlated with any possible defects.
(8) Claims by the Customer arising for required expenditures incurred due to subsequent delivery performance and particularly for what concerns transport, carriage, handling, travelling, operating and material expenses are hereby excluded, in as far as said expenditures may also increase due to the fact that the delivery items are retrospectively delivered to another location rather than to the Customer’s place of business, unless intended use is complied with.
Art.8 General limitations of liability
(1) We may be held liable for indemnification of damages and for any type of claims to compensation by the Customer whatsoever, regardless of the legal grounds thereof, only:
- in the event of negligent violation involving bodily, physical or health injuries and/or casualties
- in the event of defects maliciously concealed by us or that we had warranted as being absent,
- in the event of defects incurring in the delivery items and in as far as we may be liable, pursuant to the Product Liability Act, for personal injuries and material damages to objects for private use, or
- in the event of deliberate intent or gross negligence, attributable to us.
(2) Upon the occurrence of at least negligent violation, attributable to us, of any one of the contractually essential cardinal obligations, we are also liable for simple negligence, in as far as the performance of contract purposes may be endangered. In the event of defects, said endangerment will exist only in the event of substantially significant defects. Upon negligent violation of any one of the contractually essential cardinal obligations, our liability is limited to the damages as typically predicted by contract, in as far as deliberate intent or gross negligence exists or in as far as said damages arise at least due to negligent violation resulting in life, bodily and physical or health injuries and/or casualties.
(3) In as far as our liability is excluded or limited, the same will also apply as to the personal liability of our staff members, representatives, servants, factors and assignees.
Art.9 Reservation of proprietary rights – Retention of title
(1) We hereby reserve proprietary rights on all of our delivery items, up to full extinction by the Customer of the total accounts receivable arising from the overall business relationship, comprising those arising via future contracts such as follow-up orders, repeat-orders or spare-parts orders.
(2) In the event that the items owned by us are mixed, blended or combined with other items and objects, the Customer hereby and as of now, assigns all ownership and/or joint ownership rights to the mixed, blended or combined items and/or new objects directly in our favour.
(3) The Customer is hereby granted the right to disposing of/selling the delivered items still owned by us, in the Customer’s ordinary course of day-to-day business practices, in as far as the Customer is not in payment arrears and has not authorised the pledging or assigning of the delivered items as security. the Customer hereby and as of now, assigns in our favour, by way of security, all claims accruing to the Customer as a result of said disposal of/selling of the delivered items or as generated in force of any additional legal grounds, for example in the event of damages or losses arising against insurance companies, against carriage or forwarding companies or any other injuring party. The Customer is hereby granted revocable authorisation, for collection of the foregoing claim amounts. Our authority to collect the foregoing claim amounts ourselves, remains unaffected thereby. We shall however not collect or make use of said claims as long as the Customer performs his obligations to pay, does not fall into payment arrears and does not for any reason whatever, suspend any payments due. In the event that we were to revoke the authorisation, the customer is hereby required to disclose the assigned claims and their debtors, to furnish all the information and to deliver all the appurtenant documents required to collect the claims, further to notifying the third party debtor(s) in question of the assignment.
(4) In the event of breach of contract, in particular in cases of payment arrears or insolvency by the Customer, we are hereby entitled to claiming immediate repossession of the goods. Repossession or seizure by us of the delivered items shall not, in case of doubt, constitute any rescission of the contract, unless non mandatory legal requirements provide for other stipulations.
(5) We hereby undertake, upon the customer’s request, to release the securities due to us in force of the conditions herein, to the extent that the value of our securities exceeds the claims to be secured by more than 20%.
Art.10 General provisions
(1) Until the order remains unassigned, we shall retain title to and copyright in any possible cost estimates, samples, designs and projects, drawings, figures, calculations and any further documents whereby all the foregoing may not be used, duplicated or reproduced and/or made available to third parties, unless prior consent is accordingly provided by us.
(2) The place of performance for all obligations arising from customer agreements and contracts is Illingen (D).
(3) The place of performance and jurisdiction for each and every dispute, including bill or cheque exchange lawsuit proceedings and for any legal transactions with businessmen/businesswoman and entrepreneurs, with corporate bodies under public laws or with special assets and/or entities under public law, remains Illingen (D). We are nevertheless hereby entitled, to undertake legal proceedings against the Customer also at the Customer’s legal venue or place of general jurisdiction.
(4) All legal relationships arising subsequent to business dealings with customer abroad, will also be exclusively subject to German Law. The applicability of the United Nations Convention held on the 11 April 1980, on Contracts for the International Sale of Goods (CISG) is thus hereby barred.
(5) Should any one of the single or individual provisions contained in the general terms and conditions of trade herein, or any part thereof, ever be held as ineffective, then the effectiveness of all the remaining provisions will remain duly unaffected thereby. The contracting parties are hereby committed to replacing said invalid provision with another equivalent, economically viable stipulation.
(6) We hereby notify that all Customer data handled and processed within the framework of contractual relationships, is duly stored by us in compliance with the provisions of article 27 and following, of the German Federal Data Protection Act.
( a ) These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by Winkel Inc. (“Seller”) to the buyer (“Buyer”) named on Seller’s sales order confirmation (the “Sales Confirmation”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
( b ) The Sales Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
( a ) The Goods will be delivered within a reasonable time after the Sales Confirmation. Any delivery dates noted in the Sales Confirmation shall be estimates only. Seller shall not be liable for any delays, loss, or damage in transit.
( b ) Unless otherwise specified in the Sales Confirmation, Seller shall deliver the Goods to Buyer using Seller's standard FCA Incoterms® 2020 methods for packing and shipping such Goods. Buyer shall be responsible for all loading costs and shall provide equipment and labor suitable to receive the Goods at the Delivery Point and shall promptly unload and release all means of transportation so that no demurrage or other charges are incurred by Seller.
( c ) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
( d ) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
( a ) The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
( b ) Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received.
( c ) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
( d ) Buyer acknowledges and agrees that the remedies set forth in Section 3 are Buyer’s exclusive remedies for the delivery of non-delivery of Goods.
If Seller delivers to Buyer a quantity of Goods of up to 5% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
Seller shall make delivery in accordance with the terms on the face of the Sales Confirmation or, if not specified on the Sales Confirmation, FCA Charlotte, NC the Delivery Point, Incoterms® 2020.
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Illinois Uniform Commercial Code.
If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
( a ) Buyer shall inspect the Goods within seven (7) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following:
( i ) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifiesits contents.
( b ) If Buyer timely notifies Seller of nonconforming Goods, Seller shall, at its option, (i) replace such nonconforming Goods with conforming Goods, or (ii) rework the Goods to conforming condition, or (iii) credit or refund the price of such nonconforming Goods, together with all reasonable shipping and handling charges incurred by Buyer in connection therewith. Buyer shall ship the nonconforming goods at its expense and risk of loss to Seller's shipping location in Charlotte, NC unless otherwise specified. If Seller exercises its option to replace the non-conforming goods, Seller shall, upon receipt of delivery of the non-conforming goods by Buyer, ship the replaced goods to the place of delivery at Buyer's cost and risk.
( c ) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
( a ) Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in the Sales Confirmation.
( b ) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
( a ) Unless otherwise agreed to by the parties in writing, Buyer shall pay all invoiced amounts due to Seller within fourteen (14) from the date of Seller’s invoice. Buyer shall make all payments hereunder by ACH or wire transfer and in US dollars.
( b ) Buyer shall pay interest on all late payments at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
( c ) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
( a ) Seller warrants to Buyer that for a period of twelve (12) months from the date of shipment of the Goods (“Warranty Period”), that such Goods will conform to the specifications set forth in the Sales Confirmation, if any, and be free from material defects in material and workmanship.
( b ) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY OR (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
( c ) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
( d ) The Seller shall not be liable for a breach of the warranties set forth in Section 11(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within three (3) business days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving such notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
( e ) The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
( f ) Subject to Section 11(d) and Section 11(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
( g ) THE REMEDIES SET FORTH IN SECTION 11(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(A).
( a ) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
( b ) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER WHICH GAVE RISE TO THE CLAIM.
( c ) The limitation of liability set forth in Section 12(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
( a ) Each of Seller and Buyer acknowledges and agrees that (i) each party retains exclusive ownership of its Background Intellectual Property Rights; (ii) Buyer does not transfer to Seller any of its Background Intellectual Property Rights, and Seller may not use any of Buyer’s Background Intellectual Property Rights other than to produce and supply Goods to Buyer hereunder;
( iii ) Seller does not transfer to Buyer any of Seller’s Background Intellectual Property Rights, except that Seller grants to Buyer and its customers the right to resell Goods or incorporate Goods purchased from Seller into finished goods and to sell such finished goods to its customers; (iv) all Foreground Intellectual Property Rights will be owned by Buyer; (v) Seller assigns to Buyer all of Seller’s right, title and interest in and to all Foreground Intellectual Property Rights, and, to the extent that any Foreground Intellectual Property Rights are copyrightable works or works of authorship (including computer programs, technical specifications, documentation, and manuals), the Parties agree that such works are “works made for hire” for Buyer under the US Copyright Act; and (vi) Seller shall only use the Foreground Intellectual Property Rights and Buyer’s Background Intellectual Property Rights to produce and supply Goods to Buyer.
( b ) Seller shall not manufacture or sell to any Person other than Buyer, or enter into any agreement with any Person other than Buyer related to the manufacture or sale of, the Goods. Seller shall not, at any time, use any of Buyer’s Background Intellectual Property Rights and any Foreground Intellectual Property Rights to manufacture or sell Goods or other goods or products that are similar to or competitive with the Goods to any other buyer. This Section 13(b) will survive expiration or termination of this Agreement.
( c ) “Background Intellectual Property Rights” means, with respect to each Party, any and all Intellectual Property Rights which, as between the Parties, is owned by or licensed to such Party, and was acquired, conceived, invented, created, developed, reduced to practice, or owned by such Party (i) prior to the first date either Party exchanged any confidential information with the other Party, or (ii) entirely independent of this Agreement. “Foreground Intellectual Property Rights” means any and all of the Intellectual Property Rights developed with respect to, or for incorporation into, the Goods, or any modifications, enhancements, improvement or derivative works of either Party’s Background Intellectual Property Rights, in each case, which was (i) developed by, or on behalf of, Seller, in whole or in part, for Buyer, (ii) jointly developed among the Parties, or (iii) solely developed by Buyer; each in connection with the production and supply of the Goods hereunder. Foreground Intellectual Property Rights expressly excludes any Background Intellectual Property Right. “Intellectual Property Rights” means any and all patents, inventions, copyrights, Trademarks, trade secrets, works of authorship or expression, data collections and databases, technology, technical information, formulations, ideas, concepts, data, know-how, discoveries, improvements, methods, techniques, technologies, systems, specifications, analyses, products, practices, processes, procedures, protocols, research, tests, trials, assays, controls, prototypes, formulas, descriptions, formulations, submissions, communications, skills, experience, knowledge, plans, objectives, algorithms, reports, results, conclusions, and other information, materials, intellectual property or proprietary rights, irrespective of whether or not copyrightable, copyrighted, patentable, patented, registrable or registered, and in any form or medium (tangible, intangible, oral, written, electronic, observational, or other) in which such Intellectual Property Rights may be communicated or subsist.
During the term of this Agreement and for a period of at least one (1) year thereafter, and in any event until Seller's Goods have been paid for in full, Buyer shall, at its own expense, maintain and procure insurance in full force and effect including, but not limited to, public liability insurance (including product liability) in an appropriate amount with financially sound and reputable insurers. At Seller's request, Buyer shall provide Seller with a certificate of insurance from Buyer's insurer evidencing the insurance coverage referred to in these Terms. Buyer shall notify Seller in writing in advance of any termination or material change in Buyer's insurance policy.
Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or © becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
All non-public, confidential or proprietary information and materials comprising or relating to Intellectual Property Rights of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or © rightfully obtained by Buyer on a non-confidential basis from a third party.
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. If any force majeure event occurs, the affected party shall give prompt written notice to the other party and use commercially reasonable efforts to minimize the impact of the event.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the City of Chicago and Cook County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction and Survival.
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties.
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