GTC
General Terms and Conditions of Sale and Delivery of HygroMatik GmbH
Terms and Conditions of Sale:
- Company shall sell and deliver to Customer and Cust
omer shall purchase and accept from Company the
products (herein, the “Products”) described on or i
n any confirmed order, agreement or quotation, or an
y
combination thereof (the “Order”), pursuant to the
terms and conditions of the Order and those specifi
ed below,
which taken together shall constitute the entire agre
ement between Company and Customer regarding the
Products (herein, this “Agreement”).
- No other terms or conditions shall be of any effect
unless otherwise specifically agreed to by Company
in
a separate written agreement duly signed by an office
r of Company. Customer will be deemed to have assen
ted to
all Terms if any part of the Products is accepted b
y Customer. If Customer finds any Term not acceptab
le,
Customer must so notify Company at once and must re
ject the Products delivered under this Agreement. An
y
additional or different terms or conditions contain
ed in Customer's order or response hereto shall be
deemed
objected to by Company and shall be of no effect. N
o general terms and conditions of a Customer shall a
t any time
form a part of the content of any contract or agreem
ent between the Customer and the Company, even if t
hey are
not further expressly rejected by the Company.
- Unless otherwise agreed in writing, all quotations fo
r Products are valid for a period of ninety (90) da
ys
from the date of issue. Subsequent modifications in
quantity or quality, if such are requested by Cust
omer,
generally will cause a modification of the quoted pr
ice. Drawings and samples enclosed with any quotatio
n remain
the property of Company. All drawings and samples sh
all be treated confidentially by Customer and must
be
returned to Company after usage.
- No Order is binding upon the Company until the earli
er of acceptance of the Order in writing or the
delivery of the Products to the Customer. Notwithst
anding any prior acceptance of an Order by Company,
Company shall have no obligation if the Customer is
in breach of any of its obligations hereunder, or an
y other
agreement between the Customer and Company, at the t
ime Company’s performance was due.
- All verbal agreements concerning the terms of any Ord
er, including agreements made by telephone, shall
have no force and effect unless and until acknowled
ged by the Company in writing.
- Customer shall bear all costs associated with the c
ancellation or modification of the Order.
Prices:
- All price quotations are FCR Company (per Incoterms
2010) and do not include costs for packaging,
postage or other freight charges, insurance or taxes,
if any.
- Products’ prices will be governed by the Company's c
urrent prices in effect from time to time or by spe
cial
price quotes made to customer in writing. A price li
st available on request.
- Prices quoted in a currency other than Unites State
s Dollars are based on the official exchange rate on
the
date of the quote. Prices will be invoiced on the b
asis of the currency exchange rate in effect on the
date of
confirmation of any Order.
- Company may without notice to Customer increase the
price of the Products by the amount of any new or
increased tax or duty (excluding franchise, net inco
me and excess profits taxes) which Company may be r
equired
to pay on the manufacture, sale, transportation, de
livery, export, import or use of the Products or th
e materials
required for their manufacture or which affects the
cost of such materials.
Terms of Payment:
Unless otherwise agreed to in writing by the Company,
Customer is obliged to pay the purchase price in fu
ll within
ten (10) days after the purchase agreement has been
entered into upon submission of a commercial invoic
e.
- Company may without notice change or withdraw extens
ions of credit at any time. If Company ceases to
extend credit terms before shipment, Customer's sol
e remedy shall be cancellation of its order. If Cus
tomer does
not receive notice before shipment, its sole remedy
shall be rejection of the Products immediately upo
n delivery.
- If the Customer fails to make payment on or before
the date required, Customer shall pay interest to t
he
Company at the rate of one and one percent (1%) per
month or such lesser amount permitted by law. The
specification or charging of interest shall not be de
emed an agreement to extend credit.
- If Customer fails to observe these Terms or the ter
ms of any other agreements between Company and
Customer, or if Customer becomes insolvent, all bal
ances then due and owing to the Company shall become
due
immediately, notwithstanding any agreed upon payment
periods. Any Orders that have been confirmed by the
Company but not yet filled shall in such cases beco
me cancelable at the sole discretion of Company.
- Customer does not enjoy a right of set-off under an
y circumstances.
Delivery Terms:
- Except as otherwise specified in this Agreement, the
Products shall be sold and delivered FCR (per
Incoterms 2010) Company’s facility in Henstedt-Ulzb
urg, Germany. Title to and risk of loss for the Pro
ducts shall
pass to Customer upon delivery thereof to any commo
n carrier at such facility.
- Any agreed Delivery Period commences on the day on w
hich any Order and accompanying documents,
such as drawings, have been clarified by the Company
, but in any event no earlier than the written acce
ptance of
any Order by the Company. Sales which extend over a
certain period of time, and where quantities have
not been
fixed in advance, shall be subject to separate agree
ments concerning the quantity and delivery period re
garding
each separate sales transaction and/or request for
delivery made by a Customer. Delivery Periods deter
mine the
date of dispatch ex works. All delivery dates are a
pproximate; time shall not be of the essence.
- Customer will be billed for and shall pay all freigh
t, transportation, shipping, insurance and handling
charges, duties, and taxes, including any applicable
VAT, sales, personal property,
ad valorem
, and other taxes,
duties, levies or charges imposed by any governmental
authority, irrespective of whether applicable law
makes
such items the responsibility of the buyer or selle
r, but excluding any taxes payable by Company with r
espect to its
net income.
- Customer, shall, subject to Company's available fac
ilities at the shipping point, determine the type of
transportation and shall notify Company thereof at
the time Customer places each Order. If Customer sh
all fail to
so notify Company, Company or its agent may select a
ny commercial air, ship, motor or rail carrier or a
ny
combination thereof for the transportation of the P
roducts. Company will make deliveries of the Produc
ts in the
quantities ordered as near as reasonably possible t
o Customer's requested delivery dates.
- Company shall use its reasonable efforts to deliver
the Products to Customer by the agreed upon date.
However, except in cases of Company’s willful misco
nduct or gross negligence, Company shall not be liable
to
Customer for delays in delivery or damage to Product
s while in transit, irrespective of whether Company
or
Customer determined the mode of transportation.
- In cases of deliveries of Products manufactured to
Customer’s specification (“Special Orders”), Compan
y
reserves the right to rely on the technical specific
ations provided by Customer.
- Unless otherwise agreed to in writing, all tools, mod
els, plans, blueprints or other devices and/or
documents used and/or developed by Company (the “To
ols”) in order to fulfill any Order or Special Orde
r are the
property of the Company, even if the cost of develo
pment and/or manufacturing of such tools, models, pl
ans,
blueprints or other devices and/or documents was wh
olly or partially borne by the Customer.
Security Interest:
- As security for the timely payment and performance
of all Customer’s indebtedness to Company,
Customer hereby grants to Lender a first priority se
curity interest in the Products following delivery t
hereof to
Customer (“Collateral”). Such Interest shall remain
in force until payment in full of the entire purch
ase price for the
Products and any other amounts due to the Company b
y Customer.
- If so requested by Company, the Customer shall deli
ver to Company, in form and substance satisfactory
to
Company, and duly executed as required by Company,
financing statements and other security interest per
fection
documentation in form and substance satisfactory to
Company, duly filed under the UCC in all jurisdict
ions as may
be necessary, or in Company’s opinion, desirable, t
o perfect Company’s security interest and lien in t
he Collateral,
in order to establish, perfect, preserve and protec
t Company’s security interest as a legal, valid and
enforceable
security interest and lien, and all property or doc
uments of title, in cases in which possession is re
quired for the
perfection of Company’s security interest.
Limitation of Liability:
- UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR
ANY PUNITIVE, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLU
DING BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF EARNINGS, PROFITS, REVENUE, GOO
DWILL OR USE, INCURRED BY
CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION B
ASED UPON EQUITY, CONTRACT,
TORT, STRICT LIABILITY, OR IMPOSED BY CASE LAW OR S
TATUTE, OR OTHERWISE, EVEN IF
PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAG
ES.
- NOTWITHSTANDING THE TERMS AND CONDITIONS SET FORTH
IN SECTION 6.1.,
COMPANY’S LIABILITY – WHETHER BASED UPON CONTRACT,
TORT, EQUITY, NEGLIGENCE OR
ANY OTHER LEGAL CONCEPT – SHALL IN NO EVENT EXCEED
THE VALUE OF CUSTOMER’S ORDER
TO WHICH THE DAMAGES ARE PERTAINING TO, AS DESCRIBE
D ON THE ORDER FORM, OR THE
ORDER VALUE FOR ONE (1) CALENDAR YEAR, WHICHEVER AM
OUNT IS LOWER. IT IS AGREED
AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEM
ENT ALLOCATE THE RISKS
BETWEEN COMPANY AND CUSTOMER IN AN EQUITABLE MANNER
, THAT COMPANY’S PRICING
REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS
ALLOCATION AND LIMITATION OF
LIABILITY, COMPANY WOULD NOT HAVE ENTERED INTO THIS
AGREEMENT.
- IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUD
E LIMITATIONS OR EXCLUSION
OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LI
ABILITY FOR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTI
ES TO BE EXCLUDED, THE
LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DA
MAGES OR LIABILITY SET FORTH
ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT P
ERMITTED BY APPLICABLE LAW.
CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY ST
ATE, COUNTRY OR OTHER
JURISDICTION.
Force Majeure:
- Company shall not be liable to Customer or any othe
r person for any failure or delay in the performanc
e
of any obligation under this Agreement due to events
beyond its reasonable control, including, but not li
mited to,
fire, storm, flood, earthquake, explosion, accident
, acts of the public enemy, wars, riots and public
disorder,
sabotage, strikes, lockouts, labor disputes, labor s
hortages, work slowdown, stoppages or delays, shorta
ges or
failures or delays of energy, materials, supplies or
equipment, transportation embargoes or delays, acts
of God,
breakdown in machinery or equipment, and, except as
otherwise set forth in this Agreement, acts or regul
ations or
priorities of the federal, state or local government
s.
- Customer shall not be liable to Company or any othe
r person for any failure or delay in the performanc
e
of any obligation under this Agreement due to events
beyond its reasonable control, including, but not li
mited to,
fire, storm, flood, earthquake, explosion, accident
, acts of the public enemy, wars, riots and public
disorder,
sabotage, strikes, lockouts, labor disputes, labor s
hortages, work slowdown, stoppages or delays, shorta
ges or
failures or delays of energy, materials, supplies or
equipment, transportation embargoes or delays, acts
of God,
breakdown in machinery or equipment, and, except as
otherwise set forth in this Agreement, acts or regul
ations or
priorities of the federal, state or local government
s.
- When the event operating to excuse performance by ei
ther party shall cease, this Agreement shall
continue in full force until all deliveries have be
en completed.
Miscellaneous Terms:
- Any controversy or claim arising out of or relating t
o this Agreement, or the negotiation or breach there
of,
shall be exclusively settled by arbitration in acco
rdance with the International Arbitration Rules of
the American
Arbitration Association (“AAA”). The award shall be
final and binding. Judgment upon the award rendered
by the
arbitrator or the arbitrators may be entered in any
court having jurisdiction thereof. The arbitration
shall be held in
New York, New York, shall be conducted in the Englis
h language, and shall be conducted (i) if the amount
in
dispute is less than 0,000, before a single arbit
rator mutually agreeable to Company and Distributor,
or if no
agreement can be reached, then selected by the AAA,
or (ii) of the amount in dispute is 0,000 or mor
e, before
three (3) arbitrators. The arbitrator(s) shall make
detailed findings of fact and law in writing in sup
port of his, her
or their decision, and shall award reimbursement of
attorney’s fees and other costs of arbitration to
the prevailing
party, in such manner as the arbitrator shall deem
appropriate. In addition, the losing party shall re
imburse the
prevailing party for reasonable attorneys’ fees and
disbursements, the costs of the arbitration (includ
ing but not
limited to the fees and expenses of the arbitrator
and expert witnesses) and the costs incurred by the
prevailing
party in successfully seeking any preliminary equita
ble relief or judicially enforcing any arbitration a
ward.
- This Agreement shall be governed by and construed in
accordance with the law of the State of New York,
without giving effect to principles of conflict of la
ws.
- If any provision contained in this Agreement is held
to be invalid, illegal or unenforceable, such inval
id,
illegal or unenforceable provision shall be severed
from the remainder of this Agreement, and the remain
der of
this Agreement shall be enforced. In addition, the i
nvalid, illegal or unenforceable provision shall be
deemed to be
automatically modified, and, as so modified, to be
included in this Agreement, such modification being
made to
the minimum extent necessary to render the provisio
n valid, legal and enforceable. Notwithstanding the f
oregoing,
however, if the severed or modified provision conce
rns all or a portion of the essential consideration
to be
delivered under this Agreement by one party to the o
ther, the remaining provisions of this Agreement shal
l also be
modified to the extent necessary to equitably adjus
t the parties’ respective rights and obligations here
under.
- In the event of a violation or threatened violation
of Company’s proprietary rights, Company shall hav
e
the right, in addition to such other remedies as may
be available pursuant to law or this Agreement, to
temporary
or permanent injunctive relief enjoining such act or
threatened act. The parties acknowledge and agree th
at legal
remedies for such violations or threatened violatio
ns are inadequate and that Company would suffer irr
eparable
harm.
- The parties hereto are independent contractors and
nothing in this Agreement will be construed as
creating a joint venture, employment or agency relat
ionship between the parties.
This Agreement, including any Schedules attached here
to, contains the entire agreement of the parties wit
h
respect to the subject matter of this Agreement, and
supersedes all prior agreements between them, wheth
er oral
or written, of any nature whatsoever with respect t
o the subject matter hereof. This Agreement is bindi
ng upon
the parties hereto, their successors and permitted
assigns.
Jun 2017