Global Terms and Conditions
GENERAL TERMS & CONDITIONS OF IPEK INTERNATIONAL GMBH
(Version as of April 2024)
See/Gewerbepark 22, D-87477 Sulzberg - hereinafter "iPEK" or "we" -
§ I. Scope of application
I.1 All our deliveries and services are provided exclusively based on these General Terms of Sale and Delivery (hereinafter referred to as "Terms of Sale"). They shall form an integral part of all contracts which we conclude with our customers for the deliveries or services offered by us. They shall also apply in their respective version to all future deliveries or services, even if we do not refer to their application separately in individual cases. By placing an order or accepting our deliveries and services, the customer acknowledges the application of these Terms of Sale.
I.2 Deviating, contrary or supplementary terms and conditions of the customer or third parties shall only apply if we have expressly agreed to their application in writing. This shall apply even if we refer to a document to which the customer's terms and conditions are attached or which refers to them.
I.3 Additions and amendments to these Terms of Sale shall be made in writing to be valid. This requirement may only be waived in writing. Transmission by telecommunication, in particular, by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
§ II. Offer and conclusion of the contract
II.1 All our offers are subject to change and non-binding, unless otherwise stated in the respective offer. Purchase orders or orders of the customer shall be deemed a binding offer and may be accepted by us within three (3) weeks after receipt. A contract shall only be concluded by our written order confirmation and shall be governed exclusively by the content of the order confirmation and these Terms of Sale. The transmission of the order confirmation by e-mail or fax shall be deemed sufficient to comply with the written form requirement.
II.2 In the event of any discrepancies between the order confirmation and these Terms of Sale, the provisions of the order confirmation shall prevail.
II.3 Our specifications of the goods to be delivered (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as any depictions of the above (e.g. drawings and illustrations) are only approximate unless the contractually intended purpose requires exact conformity. They are not any guaranteed quality features, but descriptions or markings of the goods to be delivered. Deviations that are commercially customary and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, shall be permissible, provided, that they do not impair the usability for the contractually intended purpose.
II.4 We retain title in and/or copyright of all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids provided to the customer. The customer may not make these items accessible to third parties or use or reproduce them for purposes other than the purchase of goods from us without our express consent. At our request, the customer shall return these items and any copies made to us in full or destroy them. This shall also apply if the items are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ III. Prices and terms of payment, set-off
III.1 The prices shall apply to the scope of delivery and services listed in the order confirmation. Additional or special services will be charged separately. Prices are quoted in EURO, excluding packaging, the statutory value added tax, as well as fees and other public charges; in case of export deliveries plus customs duty.
III.2 If the delivery or service is provided more than four (4) months after the conclusion of the contract and if unforeseeable cost increases have occurred after the conclusion of the contract for which we are not responsible with regard to our deliveries and services, we shall be entitled at our reasonable discretion to pass on the higher costs by increasing the agreed price accordingly on a pro rata basis.
III.3 Invoiced amounts shall be paid within thirty (30) days without deduction, unless otherwise agreed in writing. The date of receipt by us shall be decisive for the date of payment. Cheques shall only be accepted on account of fulfilment (erfüllungshalber). If the customer fails to provide payment on the due date, the customer shall be in default without the need for a prior reminder. In this case, we shall be entitled to demand interest on the overdue payment at the statutory rate. The assertion of further damages caused by default shall remain unaffected.
III.4 Offsetting with counterclaims of the customer shall only be permitted to the extent that the counterclaims have been acknowledged by us, are undisputed, have been finally determined by a court of law or are ready for decision. The customer shall only be entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship and has been acknowledged by us, is undisputed or has been finally determined by a court of law. In the event of defects, the customer's counter rights shall remain unaffected.
III.5 If we become aware of a significant deterioration in the financial circumstances of the customer after the conclusion of the contract (e.g. because the customer defaults on payment), we shall be entitled to provide outstanding deliveries or services only against advance payment or the provision of security; if these are not provided even after the expiry of a reasonable grace period, we shall be entitled to withdraw from the contract in whole or in part, irrespective of further rights. In the case of contracts for the manufacture of not substitutable items (custom-made products), we may declare withdrawal immediately.
§ IV. Delivery and delivery time
IV.1 If collection of the goods is agreed, delivery of the goods shall be made FCA (Sulzberg, Germany) in accordance with Incoterms 2020. If shipment of the goods is agreed, delivery of the goods shall be made CPT (agreed place of destination) in accordance with Incoterms 2020, unless otherwise agreed. All delivery and performance obligations shall be subject to correct and timely self-delivery, unless the incorrect or delayed self-delivery is our fault.
IV.2 Deadlines and dates for deliveries and services communicated by us shall always be deemed only approximations, unless otherwise agreed by us. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
IV.3 We may - without prejudice to our other rights - demand from the customer an extension of delivery dates and deadlines or a postponement of delivery dates and deadlines by the period during which the customer fails to meet its contractual obligations towards us.
IV.4 We shall not be liable for impossibility or delay of delivery or performance to the extent that such impossibility or delay is caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in procuring necessary official permits or official measures) for which we are not responsible. Provided that such events make the delivery or the performance of the service substantially more difficult or impossible for us and the impediment is not only temporary, we shall be entitled to withdraw from the contract. Where the effect of the impediment is temporary, the delivery or service periods shall be extended or the delivery or service dates shall be postponed as long as the impediment prevents us from the delivery or performance of the service in addition to a reasonable start-up period. To the extent that the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, the customer may withdraw from the contract by immediately notifying us in writing.
IV.5 We shall be entitled to make partial deliveries or render partial services provided that these are reasonable for the customer.
§ V. Place of performance, shipment, packaging, transfer of risk, Acceptance
V.1 The place of performance for all obligations arising from the contractual relationship shall be our registered office in 87477 Sulzberg, Germany, unless otherwise specified. If we are also responsible for the installation, the place of performance shall be the place where the installation shall be performed.
V.2 Provided that we arrange the shipment of the goods at the request of the customer, the shipment shall take place at the expense and risk of the customer. Provided that the customer does not give us any instructions regarding the type of shipment and packaging, shipment and packaging shall be carried out according to our reasonable discretion.
V.3 The risk of accidental loss or accidental deterioration shall pass to the customer at the latest when the goods are handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply in the event of partial deliveries or in the event that we have assumed responsibility for other services (e.g. shipment or installation).
In the event that the shipment or handover is delayed as a result of a circumstance for which we are not responsible or in the event that the customer notifies us in advance that he will not accept the goods, the risk shall pass to the customer on the date of notification of readiness of the delivery for shipment.
V.4 Provided that acceptance (Abnahme) has been agreed, the customer’s acceptance shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services (Werkvertragsrecht) shall also apply mutatis mutandis to an agreed acceptance.
V.5 Storage costs after transfer of risk shall be borne by the customer. In case of storage by us, the storage costs shall amount to 0.25 % of the invoice amount of the goods to be stored per week. The right to claim and prove further or lower storage costs shall be reserved.
V.6 We will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request by the customer and at the customer's expense.
§ VI. Liability for defects
VI.1 The delivered goods shall be inspected carefully immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, the delivered goods shall be deemed to have been approved by the customer if we do not receive a written notice of defect within seven (7) working days after delivery. With regard to other defects, the delivered goods shall be deemed to have been approved by the customer if the notice of defect is not received by us within seven (7) working days after the time at which the defect became apparent.
VI.2 We warrant that the delivered goods have the agreed quality. The agreed quality shall be measured exclusively in accordance with the specific agreements made in writing between us and the customer or our confirmations of properties, features, and performance characteristics of the goods. We shall not be held liable for public statements made by third parties that are not authorized by us. The statutory provisions on the burden of proof in the event of defects shall remain unaffected in all other respects. Descriptive or explanatory statements regarding the goods or their intended use as well as public statements shall not be regarded as a guarantee for a particular quality of the goods. A written agreement or a written confirmation by us shall be decisive for the content of such quality guarantees.
VI.3 In the event of defects to the delivered goods, we shall first be obliged and entitled to repair the delivered goods or to make a replacement delivery (hereinafter referred to as "subsequent performance") at our discretion within a reasonable period of time. Subsequent performance shall neither include the removal of the defective goods nor their re-installation if we were not originally obliged to install them. At our request, the customer shall send us the defective goods and grant us the time and opportunity necessary for subsequent performance. We shall bear the material, transport, labor and, if applicable, installation and removal costs incurred for the purpose of subsequent performance to the extent provided by law, provided that the defects were rightfully asserted. If a notice of defect by the customer proves to have no merit and the customer has recognized this or has negligently failed to recognize this, the customer shall be obliged to reimburse us for the expenses incurred as a result. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay, of the subsequent performance, the customer may withdraw from the contract with respect to the defective part of the delivery or reasonably reduce the price. Claims of the customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with Section VII. and shall otherwise be excluded.
VI.4 Only in urgent cases or to prevent disproportionately large damages or in the event that we are in default with the remedy of the defect, the customer shall have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary costs from us after notifying us immediately. The customer shall notify us immediately of any such substitute performance, if possible in advance. The right of self-remedy shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions. We shall not assume any liability for damage caused by unsuitable or improper use, incorrect handling or natural wear and tear, unless we are responsible for the damage.
VI.5 We shall not be obliged to remedy a defect if such remedy has been rendered impossible or unreasonably difficult by a modification of the delivered goods made by the customer or a third party without our consent. . In any case, the customer shall bear any additional costs associated with the remedy of a defect that has been caused by a modification of the delivered goods.
VI.6 The limitation period for warranty claims shall be one (1) year from the transfer of risk. This shall also apply to goods used in industrial single-shift operation. Provided that the mandatory law requires a longer limitation period (§ 445b of the German Civil Code (BGB)) as well as for claims for damages arising from injury to life, body or health and with regard to the rights of the customer in the case of fraudulently (arglistig) concealed defects or damage caused by willful misconduct (Vorsatz) or by gross negligence (grobe Fahrlässigkeit), the statutory limitation periods shall apply.
§ VII. Liability and compensation for damages
VII.1 Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this Section VII, provided that culpability is involved in each case.
VII.2 We shall not be held liable in the event of simple negligence (einfache Fahrlässgkeit) on the part of our executive bodies, legal representatives, employees or other vicarious agents (Erfüllungsgehilfen), provided, that this does not involve a breach of essential contractual obligations (wesentliche Vertragspflichten). Essential contractual obligations are the obligation to deliver and install the goods on time, goods’ freedom from defects to the extent that the goods’ functionality and usability is not more than insignificantly impaired, as well as advisory, protective and custodial obligations that are intended to enable the customer to use the goods in accordance with the contract or are intended to protect the life or limb of the customer's personnel or to protect the customer's property from significant damage.
VII.3 Provided that we are liable for damages on the merits (dem Grunde nach) in accordance with Section VII.2, this liability shall be limited to foreseeable damage typical of the contract, i.e. to damage which we foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which we should have foreseen when exercising due dilligence and which is typically to be expected when the goods are used for their intended purpose.
VII.4 The foregoing exclusions and limitations of liability shall apply to the same extent in favor of our executive bodies, legal representatives, employees, and other vicarious agents.
VII.5 Provided that we give technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.
VII.6 The customer shall be obliged to take reasonable measures to avert and mitigate damages.
§ VIII. Retention of title
VIII.1 The goods delivered by us to the customer shall remain our property (hereinafter the "Retained Goods") until full payment of all existing current and future claims against the customer arising from the business relationship between us and the customer. In the event of several claims or current account, the retention of title shall apply as security for the respective balance claims to which we are entitled.
VIII.2 The customer shall store the Retained Goods for us free of charge. The customer is obliged to handle the Retained Goods with care for the duration of the retention of title. He shall insure the Retained Goods adequately at replacement value at his own expense, provide us with the corresponding proof of insurance and assign the claims from the insurance to us.
VIII.3 In the event that the Retained Goods are processed by the customer, it is agreed that the processing shall be carried out in our name and for our account as manufacturer and that we shall acquire direct ownership or - if the processing is carried out with materials of several owners or the value of the processed item is higher than the value of the Retained Goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the Retained Goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on our part, the customer shall already now transfer its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to us as security. In the event that the Retained Goods are combined or inseparably mixed with other items to form a single item, we shall acquire co-ownership of the new item in the ratio of the value of the Retained Goods to the other items at the time of mixing or combination. If the mixing or combination is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the co-ownership thus created in safe custody for us free of charge.
VIII.4 The customer shall be entitled to process and sell the Retained Goods in the ordinary course of business up until the occurrence of a recovery event (Eintritt des Verwertungsfalls) (Section VIII.8). Pledges, transfers of title by way of security or other dispositions endangering our ownership shall not be permitted. In the event of resale of the Retained Goods, the customer hereby assigns to us by way of security the claim against the purchaser arising therefrom. We accept this assignment. The same shall apply to other claims which take the place of the Retained Goods or which otherwise arise in respect of the Retained Goods, such as insurance claims or claims in tort in the event of loss or destruction. In the event that the customer sells the reserved goods after processing or after combining, mixing, or blending them with other goods or together with other goods, the assignment of claims shall be deemed to be agreed only in the amount of the part corresponding to the purchase price agreed between us and the customer plus a safety margin of 10% of this price. We revocably authorize the customer to collect the claims assigned to us in his own name. We may revoke this authorization to collect as well as the authorization to resell in case of realization (clause VIII.8).
VIII.5 The customer shall provide us with all requested information about the Retained Goods or the claims assigned to us hereunder at any time.
VIII.6 In the event that third parties seize the Retained Goods, in particular by way of seizure (Pfändung), the customer shall immediately notify them of our title and inform us thereof in order to enable us to enforce our ownership rights. In the event that the third party cannot reimburse us for the costs of a court or out-of-court procedure, the customer shall be liable to us for such costs, provided that the enforcement of our ownership rights was successful and we have unsuccessfully attempted to enforce the costs against the third party.
VIII.7 The customer may demand release to the extent that the Retained Goods and the items or claims replacing them exceed the amount of the secured claims by more than 10%. The selection of the items to be released thereafter shall be at our discretion.
VIII.8 If we withdraw from the contract due to a breach of contract by the customer - in particular default of payment, if insolvency measures are taken against the customer, or if insolvency proceedings are opened against the customer's assets or if the opening of such proceedings is rejected due to insufficient assets - we shall be entitled to demand the return of the Retained Goods or to collect the secured claims ourselves.
§ IX. No Re-Export to Russia or Belarus; Prohibition of the transfer of Intellectual Property Rights and Trade Secrets
No Re-Export to Russia or Belarus; Prohibition of the transfer of Intellectual Property Rights and Trade Secrets
(1) If any products are sold, supplied, or transferred to a buyer domiciled or located in a country outside the European Union which is not a partner country as defined in Annex VIII of Council Regulation (EU) No 833/2014, and if such products fall within the scope of the prohibition not to sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation in terms of Article 12g Council Regulation (EU) No 833/2014, the Buyer must not sell, export or re-export, directly or indirectly, these products to the Russian Federation or for use in the Russian Federation.
If any products are sold, supplied, or transferred to a buyer domiciled or located in a country outside the European Union which is not a partner country as defined in Annex Vba of Council Regulation (EC) No 765/2006, and if such products fall within the scope of the prohibition not to sell, export or re-export, directly or indirectly, to Belarus or for use in Belarus in terms of Article 8g of Council Regulation (EC) No 765/2006, the Buyer must not sell, export or re-export, directly or indirectly, these products to Belarus or for use in Belarus.
In either case the Buyer shall use best efforts to ensure that the purpose of this para. (1) is not frustrated by any third parties further down the commercial chain, including potential resellers.
(2) Where intellectual property rights or trade secrets are sold, licensed, or transferred, or rights to access or re-use any material or information protected by intellectual property rights or protected as trade secret are granted to a buyer domiciled or located in a country outside the European Union which is not a partner country as defined in Annex VIII of Council Regulation (EU) No 833/2014, the Buyers hall be obliged not to use such rights and/or trade secrets that fall under the scope of Article 12ga of Council Regulation (EU) No 833/2014.
The Buyer shall be obliged to pass on any restrictions on the use of intellectual property rights and/or trade secrets within the meaning of this para. (2) to possible sublicensees.
(3) The Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including potential resellers, that would have the potential to frustrate the purpose of para. (1) and/or (2).
(4) Each culpable breach of para. (1), (2) or (3) shall constitute a material breach of contract. We shall be entitled to:
(i) rescind the sales contracts affected by the breach without prior warning in accordance with Sec. 323 para. (2) no. (3) BGB (German Civil Code) in case of a culpable breach of para. (1) and/or (3); and/or
(ii) terminate the license agreements affected by the breach with immediate effect without prior warning in accordance with Sec. 314 para. (1) BGB in case of a culpable breach of para. (2) and/or (3); and
(iii) in addition to para. (4) lit. (i) and/or (ii), demand from the Buyer the payment of a reasonable contractual penalty to be determined by us in accordance with Sec. 315 BGB (German Civil Code) (based on our equitable discretion) which shall be subject to judicial review by the competent court upon request of the Buyer.
(5) In case of rescission by us in accordance with para. (4) lit. (i), the Buyer shall be obliged to return to us any products affected by the rescission without undue delay and at its own expense. In case of termination by us in accordance with para. (4) lit. (ii), the Buyer shall be obliged to return to us any material and/or documents that contain intellectual property rights or trade secrets without undue delay and at its own expense; or, as we may direct, destroy or, in case of electronically stored intellectual property rights or trade secrets, delete all of the intellectual property rights or trade secrets in the Buyer's possession or control. Upon our request, the Buyer shall confirm destruction or deletion of the intellectual property rights or trade secrets in accordance with this para. (5) in writing within two (2) weeks from the date of receipt of such request.
(6) The Buyers hall immediately inform us about any problems to comply with para. (1), (2) or (3), including any relevant activities by third parties that have the potential to frustrate the purpose of para. (1) and/or (2). The Buyers hall upon request provide us within two (2) weeks with all information concerning its compliance with the obligations set out in para. (1), (2) or (3).
(7) Moreover, even if a product or a buyer does not fall within the scope of Council Regulation (EU) No 833/2014 or Council Regulation (EC) No 765/2006, the Buyer must not sell, export or re-export, directly or indirectly, the products to the Russian Federation or Belarus or for use in the Russian Federation or Belarus. In such a case, para. (2) to (6) shall apply accordingly.
§ X. Final provisions
X.1 Notwithstanding any other exclusive place of jurisdiction, the exclusive place of jurisdiction for the decision of all disputes arising from or in connection with the business relationship shall be Kempten, Germany. However, we shall be entitled to sue the customer at any other statutory place of jurisdiction.
X.2 The legal relationship between us and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
X.3 In the event that one or more provisions of these Terms of Sale should be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The wholly or partially invalid provision shall be replaced by a legally valid provision which comes as close as possible to the economic objective of the invalid provision. This shall apply accordingly in the event of a loophole.
X.4 The customer shall not be entitled to assign claims arising from contracts with us to third parties. § 354a of the German Commercial Code (HGB) shall remain unaffected.
Sulzberg, 19th of April 2024, iPEK International GmbH
UK Only Terms and Conditions
STANDARD TERMS & CONDITIONS OF IDEX UK Ltd
(Version as of December 2025)
1. Definitions. “Seller” means IDEX UK Limited, and any of its affiliates. “Buyer” or “Buyers” means, as applicable, the purchaser or lessee of Products . “Quote” means the written document outlining the specific Products and their corresponding price offered by the Seller to Buyer. The “Purchase Order” is the confirmation of intent to purchase per the Quote sent from the Buyer to the Seller. The Order Confirmation is Seller’s acknowledgement of the Purchase Order.
2. Terms of Sale.
a. The Equipment shall transfer by Seller to the shipping carrier per the Incoterms set forth in the Order Confirmation at which point title and all risk of loss or damage to Equipment will pass to Buyer.
b. Buyer shall conduct an inspection of the Products promptly upon delivery of Equipment and/or Services and shall promptly notify Seller in writing of any defects. If Buyer fails to promptly notify Seller of any defects, whether or not any such inspection and acceptance has been performed by Buyer, the Products shall be considered accepted. Buyer’s sole and exclusive remedy for rejection of Products is as set forth in Section 3 (Warranty).
3. Warranty. All technical support, installation, warranty, and post warranty services are provided only at the original installed location. Product warranty is NONTRANSFERABLE from one location to another, except with the prior written consent of Seller.
a. Seller warrants that for a period of one (1) year following shipment the Equipment will: (i) be free from defects in materials and workmanship; and (ii) conform to the specifications agreed to by the Parties in writing. Seller warrants that Services will be performed in a workmanlike manner and such warranty shall be limited to a period of one (1) year from date of service (other than warranty services and services performed gratis). Buyer’s sole and exclusive remedy for any breach of warranty related to Equipment will be limited to, at Seller’s option, replacement, repair or refund of the purchase price of the Equipment that does not conform with the warranties, provided that Buyer notifies Seller of such defect in writing within ten (10) days after Buyer knows or has reason to know thereof, and provided further that inspection of the Equipment by Seller discloses that the defect developed under normal and proper use of the Equipment. Wear parts including, but not limited to, process piping, interaction or reaction chambers, auxiliary processing modules, screens, elastomeric seals, transducers, back-up rings, o-rings, and gaskets are not warranted for the period stated above but only for a period of ninety (90) days from the date of shipment.
This warranty will not apply to Equipment that: (i) is damaged due to misuse, abuse, negligence or accident occurring during or after shipment; (ii) is changed or modified (unless the change or modification is made by or in accordance with written instructions of Seller); (iii) deteriorates due to erosion, abrasions or chemical action; (iv) fails due to improper installation (except for installation provided or supervised by Seller), operation or maintenance; (v) fails due to any non-Seller equipment, or system with which Equipment is used; or (vi) Buyer operates in any manner other than in accordance with Seller’s manual, guidelines, operating instructions or other material.
b. Equipment will not be returned to Seller without Seller's written permission. Provision of a replacement part or component will not operate to extend the warranty period for any Equipment. Seller reserves the right to inspect Equipment that is subject to warranty claims and to require the return of such Equipment that is subject to warranty claims to Seller’s Warehouse at Buyer’s expense; provided, however, that it is determined that the issue with returned Equipment is covered by warranty, Seller will reimburse Buyer for freight charges associated with the return of such Equipment to Seller’s warehouse. Seller also reserves the right to use reconditioned parts and components for warranty replacements.
c. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SELLER DISCLAIMS AND BUYER WAIVES, ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW (STATUTORY OR OTHERWISE) AND WHETHER OR NOT OCCASIONED BY SELLER’S NEGLIGENCE.
4. Limitation of Liability. SELLER WILL NOT BE LIABLE TO BUYER, FOR SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, DOWNTIME, LOSS OF BUSINESS AND FROM ANY CLAIM, ACTION OR CAUSE WHATSOEVER ARISING OUT THIS AGREEMENT OF OR IN ANY WAY CONNECTED WITH THE MANUFACTURE, SALE, HANDLING, REPAIR, REPLACEMENT OR USE OF PRODUCTS .
IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM, EVEN IF SELLER IS ADVISED OR PLACED ON NOTICE OF THE POSSIBILITY OF SUCH PENALTIES OR DAMAGES AND NOTWITHSTANDING THE FAILURE OF AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
In no event shall Seller be liable for late delivery or other penalties.
5. Intellectual Property. All drawings, designs, know-how, inventions, devices, works of authorship, technology, Seller’s Confidential Information, improvements thereto, and all associated patent, patent applications, copyright, including applications and registrations, trade secret, or other similar proprietary or intellectual property rights (collectively, “Seller IP”) in or related to the conception, creation, development, reduction to practice, design, production, delivery, operation, use, application or performance of Products, are and will remain the sole and exclusive property of Seller.
In no event may Buyer make or apply for a patent, copyright, or other claim to the ownership or license of Seller’s Products and/or Seller IP. Nothing in this Section 5 precludes Buyer from incorporating a description or reference to Seller’s Products and/or non-confidential aspects of Seller’s technology or processes where necessary to support a patent, copyright, or other claim to Buyer’s product, provided, however, that no use of Seller’s name, trademarks or logos may be made without Seller’s prior written consent. Nothing in this Agreement will be construed as granting to Buyer any license, ownership, or grant of intellectual property rights with regards to the Products or Seller IP. To the extent Buyer creates, conceives, develops, or reduces to practice any improvements in relation to Seller IP, Buyer hereby irrevocably assigns all right, title, and interest in and to such improvements and related intellectual property rights to Seller. Seller’s sale of Products to Buyer does not include any research, development, design, or other services associated with Seller’s IP.
6. Seller Indemnity. Seller shall defend, indemnify and hold harmless Buyer against third party claims for personal injury or tangible property damage to the extent caused by a defect in any Equipment. Seller’s obligations to Buyer hereunder shall be subject to and conditioned upon Buyer giving Seller written notice of such claim (including all known material facts related thereto) within ten (10) days after it is asserted against Buyer (provided that the failure to give Seller written notice of a claim as provided herein shall relieve Seller from its obligations hereunder only if and to the extent Seller is prejudiced thereby) and Buyer granting Seller exclusive direction and control of the investigation, defense and settlement of such claim, including, but not limited to, selection of legal counsel to represent Buyer at Seller’s expense.
7. Equipment Changes. Seller reserves the right, in its sole discretion and without prior notice, to make changes to Equipment at any time that do not materially affect form, fit or function.
8. Buyer Requested Change, Delay or Cancellation; Liquidated Damages.
a. If Buyer requests a change to Equipment, Seller may impose additional equitable charges.
b. No delivery reschedules or delays will be permitted within 60 days of the confirmed ship date per Seller’s Order Confirmation.
c. In the event Buyer cancels any Purchase Order for Equipment within sixty (60) days of shipment date per the Order Confirmation and does not accept delivery, the minimum charge imposed by Seller and payable immediately will be: the price of the manufactured Equipment, plus the cost of labor, any work in progress, any parts and components that are on Purchase Order, and any manufacturer cancellation charges for unshipped items for such cancelled parts and components.
d. If shipment of the Equipment is delayed or rescheduled for greater than ten (10) days after the confirmed ship date due to Buyer’s fault, then upon the expiration of such ten (10) day period, Buyer shall pay to Seller, a storage and handling fee equal to one tenth of one percent (0.10%) per day of the Quoted price for each day the shipment is delayed, with a maximum storage and handling fee of ten percent (10.0%) of the Purchase Order value. The parties agree that such amounts are a reasonable pre-estimate of the damages Seller will suffer as a result of delay based on circumstances existing at the time the Purchase Order was issued and are to be assessed as liquidated damages and not as a penalty.
e. If Buyer has elected to use a freight forwarder and/or carrier selected by Buyer, and shipment of the Equipment does not take place on or prior to the confirmed ship date as a result of Buyer’s failure to arrange for Buyer’s freight forwarder and/or carrier to take delivery of the Equipment on the confirmed ship date, then, upon five (5) business days’ notice to Buyer (which may be by email), (i) Seller shall be entitled to ship the Equipment to Buyer using a freight forwarder selected by Seller CPT Destination freight prepaid and billed” and invoice Buyer for such charges; and (ii) Buyer shall pay to Seller such invoiced charges net thirty (30) days after date of invoice. If Seller exercises its rights under this paragraph, title and risk of loss shall pass to Buyer in accordance with the Incoterm as specified in the Quote.
9. Confidential Information. For purposes of this Agreement, “Confidential Information” shall include all information furnished under this Agreement which is designated as confidential or proprietary, or which the receiving party knows or should know is being disclosed on a confidential basis, including without limitation pricing information, proposals, prints, drawings and all information in or related to the design, development, production, delivery, operation, use, application or performance of any of a party’s technology, equipment, parts, or maintenance/services. Confidential Information does not include information which: (a) is known or independently developed by the receiving party prior to its disclosure by the other party, as evidenced by receiving party's records; (b) becomes a part of the public domain without breach of this Agreement by the receiving party; (c) is received from a third party without restriction and under conditions permitting its disclosure to others; or (d) which is disclosed pursuant to judicial action or government regulations provided the receiving party notifies the disclosing party prior to such disclosure, and cooperates with the disclosing party in the event it elects to legally contest and avoid such disclosure.
For a period of five (5) years from the date of receipt, Confidential Information shall be maintained in confidence by the receiving party, shall not be disclosed to any third party, other than Seller’s suppliers who have a reason to know, without prior written approval of the disclosing party, and shall be protected with the same degree of care as the receiving party normally uses in the protection of its own confidential and proprietary information, but in no case with any less degree than reasonable care. Notwithstanding the foregoing, the Parties’ obligation to protect trade secrets is perpetual or for so long as such information remains a trade secret under applicable law, whichever occurs first.
10. Force Majeure. Seller is not liable for any failure to perform its obligations under this Agreement resulting directly or indirectly from or contributed to by, acts of God, acts of civil or military authorities, riots or civil disobedience, terrorism, wars, strikes or labor disputes, accidents, floods, fires, or inability to secure material or transportation facilities, dissolution of a supplier’s business, acts or omissions of carriers, or any other circumstance beyond Seller’s reasonable control; provided, however, that, Buyer agrees to take delivery and make payment for finished Equipment as of the date of the Force Majeure event.
11. Waiver. No failure or delay by either party to insist upon strict performance of any rights or powers under this Agreement shall operate as a waiver thereof, nor shall any other single or partial exercise of such right or power preclude any other further exercise of any rights or remedies provided by law, unless agreed to by that party in writing. Any waiver of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party.
12. Assignment. This Agreement may not be transferred or assigned by Buyer without the prior written consent of Seller. Seller may assign its rights and obligations under this Agreement in whole or in part to an affiliate company or third party acquirer in the event of a merger, acquisition or sale of all or substantially all its assets.
13. Specific Performance. Buyer agrees that monetary damages may not be sufficient to remedy a breach hereunder and that Seller shall be entitled to seek specific performance and injunctive or other equitable relief.
14. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this contract shall remain in effect.
15. Export/Import. Buyer shall be solely responsible for obtaining all approvals, authorizations licenses and permits, unless otherwise specified under the applicable Incoterms agreed to by the parties. Buyer shall comply with all laws, rules and regulations, and making all arrangements related to the export or import of Equipment supplied by Seller. Equipment and related technical information, data, documents and materials are subject to export controls under U.S. Export Administration Regulations and U.S. Department of the Treasury embargo regulations and other applicable laws. Buyer shall strictly comply with all such export controls, shall fully cooperate with Seller in any official or unofficial investigation, audit or inspection that relates to any of such controls, and shall not export, re-export, divert or transfer, directly or indirectly, any Equipment or related technical information, data, documents or materials to any party or destination or for any use that is subject to an embargo or otherwise prohibited pursuant to such controls, unless and until Buyer obtains all required governmental and regulatory approvals, authorizations, licenses and permits.
16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and shall not be governed by the U.N. Convention on the International Sale of Goods.
17. Payment. Unless expressly listed on the Quote prices exclude any and all taxes, freight and insurance and any duties and brokerage charges, all of which shall be the sole liability and responsibility of Buyer. If Buyer claims an exemption from any tax, a valid and proper tax exemption certificate must accompany the Purchase Order. Unless otherwise set forth in Seller’s invoice, proposal, lease, or Order Confirmation , all payments shall be made in the currency specified in the Quote or Oder Confirmation.
Any deposit or graduated payment schedule shall be set forth in the Quote or Order Acknowledgement which ever is later and invoiced accordingly. If not addressed in the Quote or Order Acknowledgement, Equipment will be invoiced upon shipment and Services upon completion or thirty (30) days from shipment of Equipment, whichever occurs first. Payment is due Net30 or as otherwise specified in the Quote or Order Acknowledgement. Buyer acknowledges and agrees that prices set forth in a Quote or Order Confirmation are subject to being adjusted by Seller due to “extraordinary market conditions”. As used herein, “extraordinary market conditions” means any increase in the cost of fulfilling and/or delivering an order caused by changes in the market or for any other reason that is outside of Seller's control such as tariffs, surcharges, increased logistics costs and fluctuations in currency, raw materials, components and the like, which results in a price increase above the price listed in the Quote or Order Confirmation. Changes in price will be applied from the date on which customs duties are entered into force. Amounts may fluctuate in response to changing tariff structures or trade policies. Buyer agrees to promptly pay any such increase as set forth in an invoice.
All amounts not paid and received in full by the due date are subject to a finance charge at the rate of one and one half percent (1.5%) per month (eighteen percent (18%) per annum) or, if less, at the maximum rate permitted by law, from the date due until paid in full. Each shipment is a separate sale and is subject to credit arrangements or to receipt of cash. If payment is not made in accordance with Seller’s payment terms, or if at any time, in Seller's sole judgment, Buyer's credit standing has been impaired, Seller may withhold shipment of any Equipment or the provision of any Services, until cash or credit arrangements have been established to Seller’s sole satisfaction
Rev 2025-12-25