General Terms & Conditions
1.1 These General Conditions shall apply on deliveries of Products from Manufacturer to Reseller. Amendments to the General Conditions must be agreed in writing.
1.2 The terms defined in the Reseller Agreement should have the same meaning in these General conditions.
1.3 Wherever the term in writing is used, this shall mean by document signed by the parties, or by letter, fax, and electronic mail.
2 PASSING OF RISK, ETC.
2.1 Any agreed trade term shall be construed in accordance with the INCOTERMS in force at the formation of the contract. If no trade term is specifically agreed, the delivery shall be Ex works (EXW). If, in the case of delivery Ex works, the Manufacturer, at the request of the Reseller, undertakes to send the Product to its destination, the risk will pass not later than when the Product is handed over to the first carrier. Partial shipments shall be permitted.
2.2 The Reseller shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties on them.
Products will be packed according to Manufacturer’s standards.
Products delivered under the General Conditions shall remain the property of the Manufacturer until Manufacturer has received full payment for the Products. For as long as the purchase price or any part thereof remains unpaid, Products may not be used, resold or used as security for credit without the prior written consent of Manufacturer. The Reseller shall at the request of the Manufacturer assist him in taking any measures necessary to protect the Manufacturer’s title to the Product in the country concerned. The retention of title shall not affect the passing of risk under clause 2 above.
5 TIME FOR DELIVERY
5.1 Any dates quoted for delivery of the Products are approximate only and the Manufacturer shall not be liable for any delay in delivery of the Products however caused. Time for delivery shall not be of the essence of the Agreement unless previously agreed by the Manufacturer in writing. The Products may be delivered by the Manufacturer in advance of the quoted delivery date on giving reasonable notice to the Reseller.
5.2 If a shipment of Products is delayed more than 45 days from the agreed delivery date and provided that it would be unreasonable to require the Reseller to accept such late delivery, the Reseller shall, to the exclusion of any other remedy, be entitled to terminate purchase of the individual shipment of Products by giving a written notice thereof to the Manufacturer. Such notice shall be given within eight days from the end of the thirty days of delay. Such termination may not, however, be made in respect of Products made to the Reseller’s specification.
5.3 Should the Manufacturer be in delay of delivery by any force majeure circumstance mentioned in clause 10 or by an act or omission of the Reseller, there shall be granted such extension of delivery period as is reasonable having regard to all the circumstances of the case.
6 DEFECTS AND LIMITED WARRANTY
6.1 Manufacturer warrants that for a period of 24 months from delivery, Manufacturer’s products will be free from defects in material and workmanship. The exception to this is consumable parts such as batteries, battery chargers, external interconnecting cables and skid/wear plates, which will carry a 12 months warranty against defects in material and workmanship. Manufacturer’s obligations are limited to repairing or replacing parts or equipment (transportation and insurance pre-paid), which are returned to Manufacturer without alteration or further damage, and which in Manufacturer’s judgment, were defective or became defective during normal use. Except for the foregoing limited warranty, Manufacturer disclaims all warranties, express or implied, including any warranty of merchantability or fitness for a particular purpose. Manufacturer assumes no liability for any direct, indirect, special, incidental or consequential damages or injuries caused by proper or improper operation of its equipment, whether or not defective. With regard to third party products, the licensing terms for such third-party products shall apply instead of these General Conditions.
6.2 The above warranty is given by the Manufacturer subject to the following conditions: (i) the Manufacturer shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Manufacturer’s instructions (whether oral or in writing), misuse or alteration or repair of the Products without the Manufacturer’s approval; (ii) the Manufacturer shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Products has not been paid by the due date for payment.
7.1 The Terms of payment are ‘Payment in Advance’ (PIA). The Reseller shall transfer 100% payment for Products before shipping according to the amount stated in the Manufacturer’s pro forma invoice. Any amounts that are not paid within such period will be subject to interest at the annual rate of 8 percent above LIBOR from the date due until the date paid.
7.2 Whatever the means of payment used, payment shall not be deemed to have been effected before the Manufacturer’s designated account has been fully and irrevocably credited.
7.3 In case of late payment the Manufacturer may, after having notified the Reseller in writing, suspend his performance of the order until he receives payment or at the sole discretion of the Manufacturer, terminate the order. The Manufacturer’s right to suspend performance or terminate an order is without prejudice
8 PRODUCT LIABILITY
8.1 The Manufacturer shall not be liable for any personal injury and damage to property caused by the Product after it has been delivered. Nor shall the Manufacturer be liable for any damage to products manufactured by the Reseller, or to products of which the Reseller’s products form a part or any personal injury caused by such products.
8.2 If the Manufacturer incurs liability towards any third party for such damage to property as described in the preceding paragraph, the Reseller shall indemnify, defend and hold the Manufacturer harmless in relation thereto.
9 GENERAL LIMITATION OF LIABILITY
The Manufacturer shall not be liable for any incidental, indirect or consequential loss or damage, including but not limited to loss of profit, loss of production, loss of use of Products or any other property, cost of capital, downtime costs, damage to property, personal injury, or claims from Reseller’s clients or any third party, whether arising from breach of contract, tort (including negligence), breach of statutory duty or otherwise.
10 FORCE MAJEURE
Neither Party is liable for any delay or failure in the performance of any of its obligations pursuant to this Agreement to the extent that the same results from a Force Majeure Event and the Party affected by the Force Majeure Event as soon as reasonably practicable following becoming aware gives notice of the occurrence of the Force Majeure Event to the other Party. For the purpose of this clause a “Force Majeure Event” means acts of God, fire, flood, war, acts of terrorism, riot, civil commotion, governmental actions, labor disputes, power failure or breakdown in machinery and any events beyond the reasonable control of the non-performing party (including in the case of Manufacturer, the Subcontractors).
The parties undertake to keep any information received from the other party strictly confidential and take all necessary precautions reasonably calculated to prevent unauthorized disclosure or use of such confidential information. The parties agree not to disclose any confidential information to any third party, without the other party’s prior written consent. However, information shall not be confidential (i) if it was already publicly known at the time of its disclosure hereunder, or becomes thereafter publicly known otherwise than through a breach of this agreement; or (ii) if it was already known to the receiving party at the time of disclosure as a result of its own research, development or other activities; (iii) if it is rightfully obtained at any time by the receiving party from other sources without restrictions in respect of disclosure or use. or (iv) if required by law or an order from authority or court of competent jurisdiction.