Terms and Conditions of Sale – Avestin Europe GmbH 

 

1)       General -The terms and conditions contained herein represent the entire and only Agreement between the parties.  Any conditions imposed on Seller by Buyer shall not form part of the Agreement unless incorporated into the Agreement in writing and signed by both parties.

                                                                                                       

2)       Acceptance- The offer contained in this Quotation demonstrates an intention to be bound by Seller and must be accepted in full by the Buyer within the time frame stated in the quotation.  Acceptance of the offer by telephone will be binding on Buyer, but Seller reserves the right to require acceptance in writing, in which case acceptance is binding on Buyer once the written acknowledgement is received by Seller.

 

3)       Price- The price contained in this offer is the price in effect at the time the order is received by Seller in Mannheim, Germany.  If the offer is not accepted within the period of acceptance stated in section 2, Seller reserves the right to adjust the price of the goods and to submit a new offer to the Buyer.  All prices shall be quoted and paid in Euro.

 

4)       Taxes / Duties -  Prices do not include any taxes or duties, which are the sole responsibility of Buyer.  Any amount required to be collected by Seller from the Buyer shall appear as a separate line item on the invoice or billed separately to Buyer.

 

5)       Terms of Payment – All payments are to be made in full to Seller by electronic wire transfer within 30 days of the invoice date.  Where Buyer is not equipped to pay by wire transfer, Buyer agrees to reimburse Seller for any costs associated with processing alternate forms of payment.

 

6)       Delivery – Unless specified by Buyer and agreed to by Seller, time shall not be of the essence for delivery.  Seller shall advise Buyer at the time of acceptance of the estimated date on which the goods are to be shipped.  All deliveries shall be made ex works Avestin Europe GmbH.  Buyer shall compensate Seller for any costs associated with storage of the goods where delivery is delayed by Buyer.

 

7)       Force Majeur – Buyer and Seller shall be relieved of their obligations under this Agreement in the case of unforeseeable and irresistible events that prevent the performance of said obligations.  A mere delay in performance shall not qualify under this section, unless time is deemed to be of the essence.  The party wishing to rescind the Agreement under this section must advise the other party of its intention to do so in writing within two weeks of the event occurring, or in the case of a recurring event, from the first day the event occurred.  Where either party rescinds the Agreement under this section, the parties must be restored to the condition they were in prior to entering into the Agreement.

 

8)       Warranties -  Seller warrants only to the original Buyer that the goods sold are free from defects that are not commercially acceptable and are fit for the purpose for which similar equipment would normally be used.  Unless agreed to in writing and signed by both parties, Seller does not warrant the suitability of the goods for any particular purpose of Buyer.  Buyer must inspect the equipment at its own expense within a reasonable time after delivery and report any defects to Seller immediately in writing.  Where defects are latent, they must be reported immediately upon being discovered by Buyer.  For clarity, certain parts wear at various rates depending on the application of Buyer.  Such normal wear and tear is not covered under this warranty.  Seller shall, at its option, repair or replace any parts deemed to be defective free of charge after a written request by Buyer to do so and inspection of the parts by Seller.  This warranty shall run for a period of twelve months from the date of delivery or 500 hours of operation, whichever is shorter.  Seller’s liability for parts manufactured by a third party shall be limited to the extent of any warranties between Seller and third party.  This warranty shall be void where Buyer fails to report defects within a reasonable time, attempts to repair or alter the equipment itself or causes the equipment to be repaired or altered by a third party not authorized by Seller.

 

9)       Repairs not covered – Any repairs not covered by the warranty in the preceding section may be contacted for by the parties under a separate agreement.  Seller reserves the right to charge a fee for these services.

 

10)     Indemnity – Buyer shall indemnify and hold Seller harmless for all claims arising from damages resulting from the use or operation of the goods sold because of the improper repair, maintenance or operation of the goods by Buyer, the failure of Buyer to adequately train personnel in the operation of the goods, Buyer’s failure to comply with local regulations or otherwise.  As the equipment is capable of producing very high fluid pressures, it is Buyer’s responsibility to ensure that all operators have been properly trained in the use, operation and maintenance of the equipment.

 

11)    Patents -  If after the time of acceptance it is found that the goods sold infringe or violate patent or other intellectual property rights registered in the European Union, Seller may at its option either acquire the rights on behalf of Buyer to use the equipment, modify or replace the goods so as not to infringe the right, or to accept the return of the goods and restore Buyer to the condition it was in prior to the formation of the Agreement.  Seller shall have the right to conduct any legal proceedings commenced against Buyer resulting from claims of intellectual property infringement as they relate directly to the goods sold.  Seller shall have no liability for intellectual property infringement in the products of Buyer through the use of its equipment, nor for any infringements resulting from modifications made to the goods by Buyer.

 

12)    Intellectual Property -  Seller retains ownership of all intellectual property rights attached to the goods sold, as well as to any products developed in the course of or arising from work for Buyer.  Buyer shall not assert any claims to these rights.  All brochures, manuals and other literature provided to Buyer remain the property of Seller, shall be held in confidence by Buyer and shall not be used in a manner detrimental to the business of Seller.

 

13)    Subsequent Improvements – Seller may make improvements in design or otherwise to its equipment without creating a duty to improve or upgrade goods previously sold to Buyer.

 

14)    Limitation of Action – Any action for a breach of warranty as detailed in section 8 of this Agreement shall be commenced within twelve (12) months of the breach or within such other maximum time as prescribed by law, whichever is longer.  Attempts by Seller to repair the equipment shall not serve to extend the limitation period beyond the twelve month period, nor shall they extend the warranty period beyond the original twelve months.

 

15)    Installation -  Buyer shall be solely responsible for the installation of the equipment and shall bear of the costs thereof.  Buyer may request the equipment be installed by Seller and Seller reserves the right to charge a fee for such installation.

 

16)    Applicable Law – This Agreement shall be governed in accordance with the laws of Germany including the United Nations Convention on the International Sale of Goods.  Any action commenced relating to or arising out of this Agreement shall be brought exclusively before the court sitting in Mannheim, Germany.

 

17)    Entire Agreement -  This document represents the entire agreement between the parties and may not be modified except in writing.  Seller reserves the right to modify these terms at any point prior to acceptance by Buyer, provided such modifications are delivered in writing.

 

18)    Language – This Agreement has been drafted in English at the request of the parties.  Any discrepancies arising between this Agreement and a translation in another language shall be resolved in favour of the English text.  Cet accord a été écrit en anglais à la requête des parties.  Toutes différences entre la version anglaise et celle d’une autre langue seront resolues en faveur de la version anglaise.  Auf Wunsch der Teilnehmer wird dieser Vertrag auf Englisch geschrieben. Unterschiede zwischen dem Englischen Text und einer Űbersetzung werden mit dem Englischen Text aufgeklärt.