General Sales & Supply Terms of iNOEX LLC
1. RECOGNITION OF DELIVERY TERMS
The supply of goods including goods to be manufactured or created according to Article 2-105 of the Uniform Commercial Code (UCC) by iNOEX (“Supplier”) shall be carried out only on the basis of the following General Supply Terms. Any terms exchanged between the Ordering Party and Supplier that differ from these General Supply Terms shall require the written confirmation by the Supplier. If individual terms of these General Supply Terms are suspended through the explicit written agreement between the Ordering Party and Supplier, the validity of the remaining terms shall remain unaffected. Other terms, in particular the general business terms and conditions of the Ordering Party, shall not apply whether or not they were explicitly rejected by the Supplier. These General Supply Terms shall also apply exclusively if the Supplier provides performance unconditionally despite Supplier’s knowledge of other business terms and conditions.
The Supplier’s offers shall be valid for 90 (ninety) days from the date of the offer, the right of prior sale shall however remain reserved. All drawings, figures, samples, weight and size measurements as well as other documents including those in electronic form, shall be and remain Supplier’s property and shall be held by Supplier at its disposal. These documents shall be confidential information of the Supplier (the “Confidential Information”) and may only be made available to third parties with the consent of the Supplier. The Ordering Party shall protect the Confidential Information of Supplier with the same degree of care that it uses to protect its own confidential information, and shall promptly return such information upon the termination of the contract. Technical descriptions of the offer are only approximations and to this extent only binding on the Supplier when he expressly declares them to be. The Ordering Party shall be liable for the correctness of contents, the technical feasibility and the completeness of any documents supplied by the Ordering Party, such as filled-in technical questionnaires, drawings, samples and models. The Supplier is not obliged to check or verify the accuracy of the information contained in documents supplied by the Ordering Party. Pre-contractual additional agreements, amendments or commitments by agents must be made in writing and require the Supplier's and the Ordering Party's signature in order to be valid.
3. SCOPE OF DELIVERY
3.1 The written order confirmation between Supplier and the Ordering Party shall exclusively control the manner, method and timing of delivery. This shall also apply to the delivery of any safety devices provided for in the order. In lieu of a paper order confirmation, the Supplier is entitled - without further inquiry with the Ordering Party - to utilize a technical construction, a software version or a medium which differs from the order confirmation so long as this does not cause any deterioration in quality of the goods to be supplied.
3.2 The Supplier shall have the right to make partial deliveries of goods purchased by the Ordering Party to the extent their acceptance is not unreasonable for the Ordering Party, especially if the delivery of the outstanding goods is ensured and no significant additional expenses or significant additional costs arise thereby for the Ordering Party (except if the Supplier agrees to bear these costs). Every partial delivery can be invoiced separately.
3.3 If a technical acceptance procedure is agreed, the relevant legal stipulations of the contract for work and services shall apply, to the extent those terms do not conflict with these General Supply Terms.
4.1 Unless otherwise expressly agreed, prices shall be "ex works" (INCOTERMS 2010) of the Supplier or another address provided by the Supplier, excluding packaging and loading. Any VAT tax due shall be based on the legally valid tax rate and shall be paid by the Ordering Party.
4.2 The Supplier may invoice the Ordering Party for any additional costs arising from changes requested by the Ordering Party, even if the Supplier has agreed to the requested changes, provided that the Supplier has informed the Ordering Party of the accrual of additional expenses.
5.1 Unless otherwise expressly agreed, payments for deliveries by the Ordering Party to the Supplier shall be made to the account of the Supplier without any deductions as follows:
(a) 40 % of the order’s price upon placing the order
(b) 50 % of the order’s price upon notice of the readiness for delivery
(c) 10 % of the order’s price within two weeks of delivery
Invoices for assembly, spare parts or other services must be settled within one week upon the invoice date.
The day of payment shall mean the day on which the Supplier has access to the paid amount.
5.2 In the case of a delay of payment, the Supplier shall have the right to charge interest in the amount of 1-1/2% per month or, if less, the maximum legal limit permitted on the unpaid amount. Supplier expressly reserves the assertion of further damages.
6. SET-OFF AND RIGHT OF RETENTION
The Ordering Party shall have the right to retain payments or to set them off with counterclaims only to the extent that its counterclaims are uncontested or have been legally established by final order of a court of competent jurisdiction. The Ordering Party may not exercise the right of set-off to the extent the counterclaims do not relate to the same contract.
7. RESERVATION OF SECURITY INTEREST
7.1 The Supplier shall retain a security interest in the goods until full and final payment of the total invoice value (including VAT) for the goods is received. The Ordering Party authorizes the Supplier to file any documentation required, including, but not limited to, a UCC Financing Statement, to evidence its security interest in the delivery item. If a current account exists in the business relationship, the Supplier shall retain a security interest in the goods until the receipt of all payments from recognized balances.
8. TRANSFER OF RISK
All goods are sold F.O.B. Supplier’s facility. Unless otherwise agreed, upon due tender of goods for delivery at the F.O.B. point, all risk of loss or damage or other incidents of ownership shall pass to Ordering Party, even in the case of partial deliveries or if the Supplier has accepted other performances, e.g. to take over shipping costs, delivery and assembly. The risk of loss shall pass to the Ordering Party at the F.O.B. point regardless of any delay of acceptance by Ordering Party. Transportation shall be at Ordering Party’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only.
9. NOTIFCATION OF DEFECTS
9.1 The Ordering Party’s right for notification of defects according to section 13 require that the Ordering Party inspects the goods upon delivery and properly provides notice of defects according to § 2-601 of the UCC. Complaints shall be in written form and must contain specific information on the defect. Complaints due to incomplete delivery and other recognizable defects shall be immediately and in writing communicated to the Supplier, at the latest within five working days after the delivery, concealed defects without delay at the latest within five working days of their discovery. Acceptance of the goods may not be refused due to insignificant defects. The Ordering Party must make a claim for defect within twelve months of delivery. Otherwise, such a claim shall be precluded.
9.2 If the Supplier in variance to section 4.1 and on request by the Ordering Party has engaged a third party ("Transporting Company") with the delivery of the goods, the Ordering Party shall in the presence of the Transporting Company record any noticeable transport damage and have it confirmed. If a transport damage was not recognizable from the outside upon delivery, the Ordering Party shall immediately upon discovery and in writing report to the Transporting Company, however not later than seven days after delivery. The Ordering Party shall inform the Supplier immediately and in writing of the transport damage and the report. The Ordering Party must make a claim for improperly recorded orders or damage from transport within thirty (30) days of delivery. Otherwise, such a claim shall be precluded.
9.3 The costs of the inspection of the goods shall be borne by Ordering Party.
10. DELAY OF DELIVERY
10.1 The date of delivery stated in the order is approximate unless otherwise expressly agreed by the parties. Agreed delivery dates are subject to the Ordering Party’s timely fulfillment of its obligations. If Ordering Party fails to timely meet its obligations, or changes to the goods are requested, the agreed delivery date shall be appropriately extended. Supplier is not liable for damages in respect of delivery delays.
10.2 The Supplier shall not be deemed to have breached the agreed upon delivery date due to any delay caused by transportation companies involved in the delivery.
10.3 Delivery shall be deemed made when the goods have left the Supplier’s facility, or if the Ordering Party has agreed to pick up the item itself, when Supplier has informed the Ordering Party that such item is ready for pick up.
10.4 If shipment is delayed upon the request of the Ordering Party or Ordering Party delays acceptance, the Ordering Party shall be charged for the resulting storage costs, at least 1 % of the invoice amount for each started month when stored at the Supplier’s facility, unless the Ordering Party can prove less damage. The Supplier shall however be entitled to dispose of the goods after the expiration of a sixty (60) day grace period.
11. FORCE MAJEURE
11.1 If the Supplier is hindered in the fulfillment of its contractual obligations on the basis of force majeure such as mobilization, war, terrorism, insurrection, natural catastrophes, fire or other unforeseeable circumstances not caused by the Supplier such as strikes or lawful lockouts, operational disruptions, transportation shortages, difficulties procuring raw materials or lack of supply caused by deliverers, the agreed delivery deadlines shall be extended by the duration of the hindrance including an appropriate start up period, maximum however by three months. The conditions cited are also not the attributable to the Supplier if they occur in the course of an existing delay. The Supplier shall inform the Ordering Party as soon as possible of the start and foreseeable end of such conditions.
11.2 If the hindrance lasts three months or longer, both parties may withdraw from the contract.
12. INSTALLATION AND COMMISSIONING
12.1 Installation, assembly or commissioning of the machinery shall be performed by the Supplier only if this work is specially agreed to and only in accordance with the installation specifications of the Supplier.
12.2Place and time of the commissioning shall be agreed upon by the parties. Depending on the complexity of the facility, commissioning may require up to eight weeks.
13.1 EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS AND CONDITIONS, AND NOTWITHSTANDING ANY LANGUAGE IN THIS OR ANY OTHER PROVISION TO THE CONTRARY, SUPPLIER NEITHER MAKES, NOR ASSUMES ANY LIABILITY UNDER, ANY WARRANTY, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. NO REPRESENTATIONS OR WARRANTY, EXPRESS OR IMPLIED, MADE BY ANY SALES REPRESENTATIVE OR OTHER AGENT OR REPRESENTATIVE OF SUPPLIER WHICH IS NOT SPECIFICALLY SET FORTH IN THESE TERMS AND CONDITIONS SHALL BE BINDING UPON SUPPLIER. Ordering Party’s sole warranty is that the goods will conform to Supplier’s applicable specifications for a period of 12 months from the date of purchase.
13.2 Samples supplied by Supplier are solely for the purpose of evaluating the suitability of such goods for potential use and, as such, the samples are not intended to serve as warranties of any type, either express or implied. The Ordering Party shall have sole responsibility for selection and specification for the goods appropriate for the end use of such goods or services, even if the Ordering Party has informed Supplier of the end use for such goods or services. The Ordering Party acknowledges that it alone has determined that the goods purchases or processed hereunder will suitably meet the requirements of their intended use.
13.3 The warranty for goods shall be void in the event of: inappropriate or incorrect use, incorrect assembly or commissioning by the Ordering Party or third parties, natural wear and tear, incorrect or negligent treatment, incorrect maintenance, unsuitable operating resources, imperfect construction work, unsuitable building site, chemical, electrochemical or electrical influences Ordering Party or a third party improperly repairing the goods and modifications to the goods undertaken without the prior consent of the Supplier.
13.4 If the use of the goods leads to an infringement of protected intellectual property rights or copyrights, the Supplier shall ensure, at its choice and its own expense, for the agreed or intended use that the Ordering Party obtains the adequate right of further use or it shall modify or exchange the goods in a manner acceptable to the Ordering Party such that the protected rights are no longer infringed. If this is not possible or is not reasonable for the Supplier, the Ordering Party shall have the right to withdraw from the contract. Under such conditions the Supplier shall also have a right to withdraw from the contract. The Supplier’s obligations according to section 13.11, subject to the damage claims according to section 14 shall be final for the instance of an infringement of intellectual property rights or copyrights. They exist only if, (I) the Ordering Party immediately informs the Supplier in writing of asserted infringement of intellectual property or copyright claims, (II) the Ordering Party supports the Supplier to an appropriate extent in the defense of the asserted claims and/or enables the Supplier to effect modification measures as described above, (III) the Ordering Party does not admit or recognize to a third party the existence of a legal injury, (IV) all defensive measures included out of court settlements remain reserved for the Supplier at its discretion, (V) the injury of the intellectual property right or copyright is based on an instruction by the Ordering Party and (VI) the infringement of the intellectual property right or copyright was caused by the Ordering Party or a third party engaged by the Ordering Party carrying out their own changes on the goods or using it together with products not made available by the Supplier or using it together with products not recommended by the Supplier or the goods is used in manner not designated by the Supplier.
14.1 IN NO EVENT WILL SUPPLIER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, OR REVENUES, LOSS OF USE OF, OR DAMAGE TO, ANY ASSOCIATED EQUIPMENT OR MATERIALS, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWNTIME OR COSTS OR CLAIMS OF THE ORDERING PARTY’S CUSTOMERS OR CLIENTS, WHETHER BASED UPON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SUPPLIER’S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, RESULTING FROM OR CONCERNING ANY ASPECT OF THIS ORDER, OR FROM ANY GOODS OR SERVICES FURNISHED HEREUNDER, SHALL BE LIMITED TO EITHER OF THE FOLLOWING REMEDIES (THE ELECTION OF WHICH SHALL BE MADE SOLELY BY SUPPLIER): (I) REPLACEMENT OF THE PRODUCT AT SUPPLIER’S COST AND SHIPPED F.O.B. SUPPLIER’S PLANT TO THE ORDERING PARTY (EXCLUDING ANY LABOR OR INSTALLATION IN RESPECT OF SUCH REPLACEMENT); OR (II) MONETARY PAYMENT BY SUPPLIER TO THE ORDERING PARTY, NOT TO EXCEED THE AMOUNT OF THE CONTRACT PRICE OF THE ORDERED PRODUCTS, EXCLUDING FREIGHT. This limitation of liability applies in the same manner for damage caused by gross negligence of employees or representatives who are not agents or members of the management of the Supplier.
14.2 The above liability limitation also apply to the Ordering Party’s damage claims against the Supplier’s agents, management, employees or representatives.
15. SOFTWARE USE
15.1 To the extent software is included in the delivery the Ordering Party shall be granted a non-exclusive license, without right of sublicense, to use the software that is delivered, including the documentation.
15.2 The delivered software shall be provided for use by the Ordering Party only on the goods it is intended for. Use of the software on more than one system shall not be permitted.
15.3 The Ordering Party may only reproduce, revise or translate the software or convert the object code into source code to the extent permitted by the Supplier in writing. The Ordering Party undertakes not to remove or modify the manufacturer's details – particularly trademark, copyright or other notices – unless the Supplier has first given its explicit written consent.
15.4 All other rights to the software and the documentation, including copies, shall remain with the Supplier or with the software supplier. It shall not be permitted to loan, rent, grant or sublicense the software to third parties.
16. DETERIORATION OF FINANCIAL POSITION
16.1 If it becomes clear after the execution of the contract with the Ordering Party that the performance of its contractual obligations is in danger due to its financial condition (in particular for payment stoppage, application for an insolvency proceeding, seizure or foreclosure, levy of bill or check protests and refusal of direct debit also with respect toward or with third parties), the Supplier may, in its discretion, (1) terminate the contract with Ordering Party without further obligation or liability to Ordering Party, or (2)withhold the delivery until prepayment of the purchase price or the establishment of an appropriate security. This shall also apply in the case of a founded doubt as to the Ordering Party’s ability to pay or its credit worthiness as a result of a delay in payment.
16.2 The Supplier may completely or partially withdraw from the contract if an insolvency proceeding is applied for or opened upon the assets of the Ordering Party.
18. COMPLIANCE WITH APPLICABLE LAW AND EXPORT
18.1 The Ordering Party shall comply with all legal regulations and official requirements as well as all other applicable laws and in particular export provisions and the laws of the country in which the Ordering Party does business. The Ordering Party shall timely obtain all required authorizations and licenses as well as all other required approvals which are required according to applicable laws for the use and or export of the goods.
18.2 The Supplier shall have the right to withhold its performance from the Ordering Party if the Ordering Party would breach such applicable laws or if not all of the required authorizations have been obtained and it is not due to the fault or responsibility of the Supplier.
The Ordering Party may not completely or partially assign the rights and obligations arising in connection with deliveries without the prior written consent of the Supplier. The Supplier may assign the rights and obligations arising upon it in connection with deliveries, in particular to affiliated companies.
20. SEVERABILITY CLAUSE
Should individual conditions of these General Supply Terms be or become unenforceable, it shall not affect the enforceability of the remaining conditions. The contractual parties commit themselves to replace the unenforceable clause by a clause which comes as close to the economic success as possible.
21. APPLICABLE LAW, JURISDICTION, PLACE OF PERFORMANCE
The laws of the Commonwealth of Pennsylvania exclusively apply to all legal relationships between the Supplier and the Ordering Party to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes from or in connection with a delivery is the court of law at the place of the head office of the Supplier. The Supplier may however file suit in the jurisdiction of the seat of the Ordering Party. The place of performance for all obligations arising from or in connection with a delivery is the facility at the head office of the Supplier.
Here you can find the terms conditions of iNOEX GmbH for download as pdf file: