Terms and Conditions of Sale
1. DEFINITIONS:
In these Terms and Conditions unless the context otherwise provides or requires:
(a) BUYER means the Person named in the Sales Invoice or Quotation.
(b) QUOTATION means the form of quotation by the Seller to the Buyer and these Terms and Conditions of Sale are deemed to be incorporated therein..
(c) SALES INVOICE means the sales invoice issued by the seller to the Buyer and these Terms and Conditions are deemed to be incorporated therein.
(d) SELLER means Memory-Metalle GmbH, or the Company named in the Sales Invoice or Quotation.
2. FORMATION OF CONTRACT
Seller's acceptance of Buyer's order for products and/or services or Buyer's Acceptance of Seller's offer of products and/or services is hereby expressly made conditional upon assent to the Terms and Conditions of Sale set forth herewith and on any Seller authorized attachment hereto. Said terms and conditions shall supersede and render completely inapplicable any additional different or conflicting terms and conditions expressed orally or in writing by the Buyer, Buyer's acceptance of deliveries of products or performance of services under this order shall be deemed conclusive evidence of Buyers’ unconditional assent to all terms and conditions of the Seller stated or cited herein. Seller's Terms and Conditions shall not be deemed to have been waived by or by any of Seller's: failure to object to additional, different, or, conflicting terms and conditions stated orally or in writing by Buyer; acceptance of Buyer's Order or payment for performance there under; commencement of performance hereunder; or performance hereunder. No addition to or modification of the Seller's Terms and Conditions will be effective unless made in writing and signed by an authorized representative of the Seller.
3. WARRANTY AND LIABILITY LIMITATION
The Seller makes no warranty or representation, express or implied, by operation of law or otherwise, that the Goods sold hereunder are merchantable or fit for a particular purpose. Further, the Seller shall not be liable for any defect in the Goods sold hereunder and the Buyer releases the Seller from any and all liability for negligence by the Seller with respect to any activity engaged in by the Seller with respect to the Goods sold hereunder. The Buyer acknowledges that he alone has determined that the goods purchased hereunder will suitably meet the requirements of their intended use.
It is expressly understood that, unless a separate charge for consulting services has been levied, any technical advice furnishing by the Seller with respect to the use of its goods or services is given without charge and the Seller assumes no obligation or liability for the advice given or results obtained, all such being given and accepted at Buyer's risk.
The sole and exclusive warranty given by the Seller with respect to the goods sold hereunder are that it has title to such goods free and clear from any lien or encumbrance and that such goods shall conform to the description and specification set forth herein. Should the Seller breach either or both of these warranties, the Buyer's only remedy and the Seller's only obligation shall be the replacement or repair by the Seller of such non-conforming goods, FOB Memory-Metalle GmbH, Weil am Rhein, Germany, or the refund of the price paid for such non-conforming goods, at the option of the Seller, upon the return of such non-conforming goods to the Seller. The Seller will not be liable for consequential, incidental, or any damages other than repair or replacement of defective goods or refund of the purchase price paid for such defective goods, at the option of the Seller.
Every claim from any cause shall be deemed waived by the Buyer unless made in writing within ninety (90) days of receipt by the Buyer of the goods to which the claim relates. No legal proceeding shall be brought for any breach of this contract more than one (1) year after the accrual of the cause of action here for.
4. RIGHT OF WITHDRAWAL
For any Purchase through the Memory-Metalle online ordering procedure the Buyer has the right to return the goods within 14 days after receipt without giving any explanation or justification. Returned shipments will only be accepted if the material is returned in original packaging and with original labels. Any returned shipments which are not in the original containers will not be refunded due to reasons of lack of traceability. Returned shipments from German Buyers will be accepted as freight forward as long as the shipped value is at least 40 EUR. International shipments are always to be shipped Free Carrier and will not be accepted as freight forward.
5. QUANTITIES SHIPPED
Quantities shown on the Sales Invoice may vary within 10% or in accordance with permissible variations as agreed upon by the Seller and the Buyer.
6. CREDIT AND PAYMENT
All sales are subject to the approval of the Sellers credit department. All bills rendered are payable in EURO. Unless otherwise agreed upon, all invoices are payable within net 14 days. After 14 days, unpaid invoices will be assessed a finance charge of 1.5% of the unpaid balance per month, commencing on the 15th day.
7. FORCE MAJEURE
The Seller shall not be liable for any delay in delivery, or failure to deliver, due to any cause beyond the Sellers control, including but not limited to fire, flood, strike, or other labor dispute, accident to machinery, acts of sabotage, riots, delay in transportation or lack of transportation capacity, restrictions imposed by governmental egislation or rules or regulations thereof.
If the Seller in its sole descretion determines that the Sellers performance hereunder would result in a loss to the Seller on this sales computed under the Seller's normal accounting and calculation procedures because of causes beyond the Seller's control, includinng but not limited to the execution of development projects, then the Seller may terminate this agreement in whole or in part without liability for any delay in the delivery of, or failure to deliver, the goods sold hereunder.
8. RISK OF LOSS
Buyer will assume risk of loss to the goods covered hereunder upon delivery thereof to the carrier.
9. QUOTATIONS AND FREIGHT CHARGES
Prices and other terms specified in these Terms and Conditions are subject to alteration without special notice. All prices quoted and invoiced are exclusive of handling, delivery, agent’s charges and any other charge, duty, impost or tax unless otherwise stated in wreiting by the Seller (FOB Memory-Metalle GmbH, Weil am Rhein, Germany). In an event of an increase or decrease in applicable freight charges before the goods are shipped, such change in freight will be for the Buyer's account.
Quotations are valid for thirty (30) days. A quotation shall not be construed as an obligation to sell and no contractual relationship shall arise there from until the Buyers order is accepted by the Seller in writing.
Every Quotation is subject to and conditional upon the Seller obtaining any necessary important, supply, export or other licence.
10. RESALE OF GOODS SOLD HEREUNDER
In the event of the resale of any of the goods sold, hereunder, in whatever form, the Buyer will include the following expression in a conspicuous place in the agreement covering such resale:
"Warranties by manufacturers and sellers of Goods sold hereunder, are limited to such written warranties as may be applicable to the individual items sold hereunder, which warranties are limited to repair or replacement of goods or to the refund of the purchase price at the manufacturers or sellers option, within the time limit specified.
Manufacturers and Sellers make no warranties or representations, express or implied, by operation of law or otherwise as to the merchantibility or fitness for a particular purpose of the goods sold hereunder. Manufacturers and Sellers shall not be liable for any defect in the goods sold hereunder and Buyer releases Manufacturers and Sellers from any and all liability for negligence with respect to any activity engaged in by Manufacturers and Sellers with regards to the Goods sold hereunder. The Buyer acknowledges that he alone has determined that he goods purchased hereunder will suitably meet the requirements of their intended use. Manufacturers and Sellers will not be liable for consequential, incidental or any damage other than repair or replacement of defective goods or refund of the purchase price for such defective goods, at Manufacturer's or Seller's option."
11. PRODUCT DESCRIPTION AND DATA
Drawings, dimensions, physical properties (structural and functional) and any other particulars relating to any goods referred to in a Quotation or in any associated documentation are intended to be approximate only. They might be subject to alteration without special notice.
Any performance data provided by the Seller or a manufacturer is intended to be an estimate and indicative only.
The Seller reserves the right to supply a substitutive product when necessary, unless otherwise agreed in writing.
12. MANUFACTURER’S CHANGES
Where the Seller is acting as an agent of a Manufacturer or Supplier, the Seller shall not be liable for any alteration or variation in the Goods or in any unexpected delivery times caused by the Manufacturer or the Supplier.
13. PATENT OR TRADEMARK INFRINGEMENT
If the goods sold hereunder are to be prepared for manufacture according to the Buyer's specification, the Buyer shall indemnify the Seller against any claims or liability for patent infringement on account of such preparation or manufacture.
14. PROPRIETARY RIGHTS AND CONFIDENTIALITY
Rights in any and all Seller information, know-how, trademarks, data, trade secrets, inventions, patents, plans, drawings, specifications, processes, designs, etc., whether or not acquired or reduced to practice during the course or as a result of this order, shall remain the property of Seller and Seller shall not be obligated to provide any of such property to Buyer. Buyer shall obtain no rights in any of such property and the price charged shall include no consideration for such property unless specifically so stated on the face of Sellers' Order Acknowledgment. Listing as a separate line item and separately billing for Non-Recurring Engineering (Engineering Services) does not accrue to Buyer rights in any of the aforementioned property of Seller unless specifically stated on face of Seller's Order Acknowledgment.
The Buyer acknowledges that proprietary property of the Seller is a valuable business asset of the Seller and that unauthorized use or disclosure of such would result in irreparable damage to the Seller. The Buyer agrees that it will: use proprietary information of the Seller only for the purposes intended and necessitated by this Order, not otherwise use or disclose any proprietary information of the Seller without Sellers' express informed written consent; take all reasonable precautions to insure protection against use or disclosure; and return at the Sellers' request, all proprietary property of the Seller which is in the possession or control of the Buyer.
Any data, information, specifications, processes, drawings, designs, plans, know-how, etc., of the Buyer supplied to the Seller in conjunction with this Order must be considered free from proprietary restrictions unless expressly agreed otherwise in writing signed by an authorized official of the Seller.
15. EXPERIMENTAL AND PROTOTYPE ORDERS
Notwithstanding any other provisions hereof, experimental or prototype orders will be produced on a ‘Product of Best Effort’ basis and will be sold and delivered ‘As Is’. No warranty, express or implied, including any warranty of merchantability, fitness or otherwise, is made with respect to products produced from experimental or prototype orders.
Document Title: Terms&Conditions Rev. 02 valid from March 01, 2007
