General Terms and Conditions of Sale (“T&C”)
Prices. All prices stated in the applicable confirmed purchase order (the “PO”) are based upon the current costs of Servotronix Motion Control Ltd. and its subsidiaries (the “Seller”) and are valid for seven (7) days as of the signed PO date only (unless otherwise stated in the PO). The prices of all deliverables (the “Products”) scheduled for delivery later than six (6) months following the date of a PO may be increased by Seller upon 30 days’ notice to reflect higher costs on Seller (due to increases in wage rates, material prices etc.). The prices specified in POs do not include any applicable sales or use taxes, customs, duties or other taxes and fees and other charges and levies, including, without limitation, packaging, handling, shipping, insurance and other similar charges, and the amount of any such taxes, fees and charges which Seller may be required to pay or collect will be either added to your PO or separately invoiced to you by the Seller. Split shipments of the quoted quantities may require additional set up charges unless otherwise specified in your PO.
Terms of Payment. Terms of payment are net 30 days on each invoice, unless expressly stated otherwise in your PO. Notwithstanding any specified payment terms and anything to the contrary in any other document, Seller may (at its sole and absolute discretion) require you to pay the full sum in advance before making any delivery in the event that your credit shall at any time and for any reason, in the sole judgment of Seller, become impaired. The total prices set forth in your PO shall become immediately due and payable, and Seller may cancel the unperformed portion of your PO, upon your failure to make any payment when due. In the event that Seller elects to cancel the unperformed portion of your PO, any increase in the unit cost of the Products already delivered shall be immediately due and payable by you. Any delay in payments by you shall be subject to an interest charge equal to the maximum rate of interest available under applicable law.
Point of Delivery. All deliveries of Products shall be made Ex-Works (Incoterms 2010) – Seller’s premises (as shall be defined by the Seller in your applicable quotation), and once Seller has made the Products available to you at Seller’s premises, risk of loss of, or damage to, or destruction of the Products, shall immediately be borne solely by you. Title to Products shall pass to you only following full payment for such Products to the Seller (in immediately available funds).
Delays in Delivery. All scheduled delivery dates stated in your PO are approximate and are subject to Seller’s prompt receipt from you (in writing) of all information necessary in order to manufacture, package and deliver the Products to you. Time of delivery shall not be of the essence in the sales contemplated by these T&C (and shall not be made so by the service of any notice) and Seller shall be entitled to a reasonable period of grace in the event of any delay in delivery beyond the scheduled delivery date. Seller shall in no event be liable for any damages, including, but not limited to, special, indirect or consequential damages arising from or in connection with any delay in the delivery of any Product(s) to you, irrespective of the reason. Without derogating from the foregoing, Seller shall not be held liable in any way, in the event of delays in delivery or failure to deliver, when caused due to conditions beyond its reasonable.
Confirmation and Cancellation of POs. Each PO shall become binding solely following the Seller’s prior written approval of such purchase order. Each PO which has not been explicitly pre-approved by Seller in writing within thirty (30) days following its receipt by the Seller shall be deemed declined for all intents and purposes. If a PO conflicts with these T&C, the terms of these T&C shall prevail for all intents and purposes. You may cancel your PO only upon 30 days prior written notice to Seller and subject to you paying the Seller reasonable cancellation charges requested by the Seller, which will take into account any and all expenses incurred by Seller and commitments made by Seller in reliance upon such PO, but in no event will the cancellation charges be less than a minimum of twenty-five percent (25%) of the total PO price. The cancellation charge will be one hundred percent (100%) of the total PO price if the cancellation of the PO is done on or following the earlier of the following two dates: (i) the date on which the manufacturing of the Products ordered in the PO commences, or (ii) four (4) weeks prior to the delivery date.
Warranty. Seller warrants, to you only, that all Products supplied hereunder will be: (i) if applicable, of the kind described in the applicable specifications and scope of work document, subject to Seller’s explicit, prior, written approval of such specifications and scope of work document, and (ii) will be free from defects in material or workmanship, under normal use and prescribed maintenance (the “Warranty”) for a period of one (1) year (unless explicitly stated otherwise in Seller’s website with respect to a specific Product) from the date of delivery of the Products (the “Warranty Period”).
This Warranty shall not apply to any Products delivered hereunder which have been damaged or subjected to: (a) any alteration or negligent treatment after delivery, or have been repaired or reworked by any party other than the Seller, without Seller’s explicit, prior, written consent, (b) which is caused by improper storage, transport, mishandling, improper installation or maintenance and/or abuse or misuse, (c) which results from your (and/or anyone on your behalf) use of the Product with incompatible and/or defective equipment, (d) which results from any modification or integration with any other product(s), (e) due to a failure to perform user maintenance as outlined in published Product materials and/or caused by usage in an environment not meeting the operating specifications set forth in the user manual, or (f) caused by fire, flood, or any other occurrence outside of Seller’s control.
Seller’s only obligation under this Warranty shall be the repair or replacement (at Seller’s sole and absolute discretion), without charge, of any Products or part thereof which within the Warranty Period is proven to Seller’s satisfaction to have been defective, provided that you shall have notified Seller of the defect in writing within the Warranty Period and received Seller’s prior written authorization to return such Products to Seller to establish your claim; provided, further, that Seller will bear transportation costs for the return of repaired or new Products to you and costs incurred in repairing or replacing any Products which are shown to be defective during the Warranty Period, but you shall pay for all installation costs and for all transportation costs incurred in sending Products to the Seller for their repair or replacement.
The Warranty shall apply to repaired or replaced materials or Products for three (3) months following redelivery to you or the end of the Warranty Period, whichever occurs later.
The cost of any repairs made by Seller to Products no longer covered by this Warranty shall be borne solely by you. Seller makes no warranty as to the adaptation of the Products to any other products (including regarding to the embedding of the Products into your products) and any such adaptation and embedding shall be verified by you under your own responsibility and expense.
You agree to maintain appropriate insurance to cover your risks and exposures. Without derogating from the provisions of any applicable law and/or from the foregoing, you specifically agree to maintain, at minimum, insurance coverage for any property and/or equipment (including, but not limited to, testing equipment), machinery, inventory (including such inventory that might have been provided by Seller at no cost or value to you) and/or finished Products that are stored or located at the Seller’s premises. All of your insurance policies (property, casualty, business interruption, product and professional liability policies, cargo and other insurance policies that are expected to be available in order to cover your exposure) (whether listed above or not) shall include: (i) a waiver of subrogation clause towards the Seller and its parent companies, subsidiary companies, affiliated companies, shareholders, managers and employees (the „Additional Parties„), (ii) liability policies (other than workers compensation and employers liability) include a cross liability endorsement, and (iii) a primary/noncontributory clause in favor of the Seller’s insurance policies as well as a waiver of participation by your insurer towards the Seller’s policies. You agree to obtain and to keep in force, during the term of the PO and the Warranty Period all of the policies, and with regards to product liability or other „claims made“ basis policies for an additional period as long as legal liability might apply to the Seller or you.
You hereby waive, discharge and release the Seller and the Additional Parties from any and all liability for losses, damages and claims that you are entitled or should have been entitled for compensation to the extent policies as further detailed above have been purchased, maintained and uninterrupted. The above discharge also applies to losses, damages and claims within the level of deductible.
You shall conduct an inspection of any Products (and parts thereof) promptly following delivery. In the event of any discrepancy in quantity, damage or any other discrepancy, you shall provide Seller with a written notice thereof and with reasonable written evidence thereof within fifteen (15) days following delivery (otherwise you shall be deemed to have accepted the Products and shall fully pay for them).
All claims here under may be made solely by you (and not by your customers, end-users, affiliates and/or any other third party). Any warranties and representations given by you to your customers and/or end-users shall be at your sole responsibility (and not Seller’s).
Limitation of Liability. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) WHICH EXTEND BEYOND THE WARRANTY OR THE DESCRIPTION OF THE PRODUCTS CONTAINED IN THE PO. ALL WARRANTIES, CONDITIONS AND TERMS IMPLIED BY LAW, RULES OR REGULATIONS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT POSSIBLE. SELLER SHALL IN NO EVENT BE LIABLE FOR ANY OF YOUR MANUFACTURING COSTS, LOST PROFITS, REVENUES OR GOODWILL, PERSONAL INJURIES OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR ANY OTHER LOSSES OR DAMAGES RESULTING FROM OR IN CONNECTION WITH THE PRODUCTS, THESE T&C, THE WARRANTY, THE PO AND/OR ANY BREACH OR NON-PERFORMANCE OF EITHER OR ALL OF THEM (INCLUDING BY REASON OF NEGLIGENCE), WHETHER OR NOT SELLER HAD BEEN INFORMED OF OR WAS AWARE THAT THERE WAS A POSSIBILITY OF SUCH LOSS OR DAMAGES. THE MAXIMUM LIABILITY OF SELLER AND ITS AFFILIATES (AT MOST AND UNDER ANY CIRCUMSTANCES) UNDER THE PO AND THESE T&C SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO SELLER FOR THE APPLICABLE DEFECTIVE PRODUCTS.
Intellectual Property Rights. You hereby agree and acknowledge that all intellectual property, know-how, and intellectual property rights in tangible and intangible form, the ownership, title and interest therein (including trade secrets, copyrights, moral rights, database rights and patents, proprietary rights and anything derived therefrom), related to and/or in connection with the Products, including, without limitation, the Products themselves and their elements, source and objects codes, designs, techniques, methods, documentation, inventions, work-for-hire, and anything that derives therefrom, is and shall remain at all times the property of the Seller only, and shall exclusively and unconditionally be owned by the Seller only, at all times and throughout the world (the “Seller Intellectual Property”). Neither you, nor your affiliates and/or any person or entity on your/their behalf, shall have any claim to any right of any kind, license rights, moral rights, compensation or reward in respect of any such Seller Intellectual Property. You will not at any time assert or claim any interest in, or do anything which may adversely affect, the validity or enforceability of any Seller Intellectual Property or any trademark, trade name, trade secret, patent, copyright, designation or logo belonging to or licensed to the Seller (including, without limitation, any act, or assistance to any act, which may infringe, or lead to the infringement of, any patent or copyright in the Products). This Section 8 shall survive the performance, cancellation, expiration or termination of the PO for any or no reason.
Your Specifications. You will indemnify, protect and hold harmless Seller against all law suits, and from all damages, claims, demands, costs and expenses, including all legal fees, for actual or alleged infringements of any intellectual property rights arising out of the manufacture, selling and/or marketing of the Products by Seller in accordance with specifications supplied by you or any of your affiliates. This Section 9 shall survive the performance, cancellation, expiration or termination of the PO for any or no reason.
Confidentiality. You shall: (i) not (at any time) disclose any Confidential Information of the Seller to any third party whatsoever, (ii) not (at any time) copy, modify, disassemble, decompile or reverse engineer any Product(s) or any Confidential Information of the Seller, (iii) use Confidential Information of the Seller only for the use of the Products in accordance with these T&C, and (iv) fully indemnify the Seller (upon its first request) for any losses or damages resulting from a breach of any of its duties under these T&C. Due to the irreparable harm to the Seller which may result from a breach of this Section 10, the Seller shall have the right to obtain injunctive relief in the event of any such breach. This Section 10 shall survive the performance, cancellation, expiration or termination of the PO for any or no reason.
The term “Confidential Information” shall mean any and all information data and/or know-how, whether written, oral, visual, electronic or otherwise in any medium of expression, and whether or not marked ‘Confidential’, which you (and/or any of your affiliates) may receive, obtain, be exposed or have access to, regarding or which is related to, the Seller and/or any affiliate thereof, its business, products (including without limitation, the Products) and/or technology and/or of any affiliate thereof, including, without limitation, all inventions, developments, methods, processes, hardware, software, drawings, schematics, firmware, interfaces, designs, tooling, source codes, product specifications, research and development plans, customers and suppliers information, patents, trade secrets, trademarks, copyrights, design rights, or other forms of protection of industrial and/or intellectual property (whether registered, non-registered or in the process of application) of or in relation to the Seller and/or any affiliate thereof, and any confidential and/or proprietary information of third-parties in the possession of the Seller and/or any affiliate thereof. Confidential Information shall be considered as such even if some and/or all of its elements and/or components are generally known to the public separately, but not as a whole and/or combined together.
Waiver. No delay or omission on the part of Seller in requiring performance by you or in exercising any right hereunder shall operate as a waiver of any provision hereof or of any right or rights hereunder; and the waiver, omission or delay in requiring performance or exercising any right hereunder on any one occasion shall not be construed as a waiver of such performance or right, or of any right or remedy under these T&C, on any future occasion. In order to be enforceable, any waiver must be in advance, in writing and duly signed by the Seller.
Assignment. No transfer or assignment of these T&C and/or the warranty contained herein shall be valid or binding upon Seller in any way, unless such assignment shall be in writing and shall also be explicitly and duly pre-approved in writing by the Seller (at Seller’s sole and absolute discretion).
Severability. In the event that any condition, stipulation or provision contained in these T&C, is held to be invalid or unenforceable, for any reason whatsoever, all the remaining conditions, stipulations and provisions contained herein shall remain in full force and effect and shall be binding on you without any change. In the event the scope and/or duration of any condition, stipulation or provision contained in these T&C exceeds and/or extends the scope and/or duration allowed by applicable law, such obligation shall be deemed to be in the maximum scope and duration allowed by applicable law.
Entire Agreement; Amendments; Headings. Notwithstanding anything to the contrary in any other document: (i) these T&C: (a) shall govern every purchase(s) made by you from the Seller, and your submission of any PO to the Seller shall be deemed as your written consent to these T&C in their entirety, (b) contain the entire, complete and final understanding and agreement between you and Seller with respect to the subject matters hereof, and (c) supersede for all intents and purposes any previously signed and/or unsigned contracts, agreements, understandings and/or negotiations between you and the Seller (orally or in writing), and (ii) you hereby acknowledge and accept that these T&C shall supersede all other T&C, including any which you may purport to apply under any document provided by you to the Seller (or anyone on its behalf) and/or any of its affiliates (or anyone on their behalf) or which could be implied by trade custom, practice, or course of dealing. No modification of, or addition to, these T&C shall be effective unless made in writing and duly signed by you and Seller. The headings of the sections of these T&C are intended for convenience purposes only, and shall not affect the meaning or interpretation of these T&C.
Governing Law and Jurisdiction. All questions relating to the construction and validity of these T&C shall be governed by and construed under the laws of Germany. Sole and exclusive jurisdiction in any matter arising from or related to these T&C and/or any and all purchases made by you from the Seller, shall rest solely with the competent courts of Nettetal, Germany. Nothing in these T&C or in any other document shall prevent Seller from instituting proceedings, seeking and obtaining interlocutory and/or injunctive relief, concerning Seller Intellectual Property, Seller’s Confidential Information and/or any other rights of Seller, from any other court of competent jurisdiction in any other territory.