General Terms and Conditions of Delivery
Set forth below on the Terms and Conditions of Delivery (the "Terms and Conditions") upon which Perfect Equipment Inc. (together with its affiliates and successors and assigns, "we" or "us") provide goods and services to its customers (each, a "Buyer").
1. Contract Offer and Conclusion
- WE PERFORM OUR SERVICES SOLELY ON THE BASIS OF Terms and Conditions. The Terms and Conditions apply to any and all contracts between us and the Buyer regarding the order of goods by the Buyer from us. They shall also apply to any and all future contracts, even if no explicit reference has been made to their application. Agreements and terms and conditions differing from or supplementing these Terms and Conditions, in particular differing terms and conditions of the Buyer, shall apply only if and when we have confirmed their application in writing or, in individual cases, they have been discussed and negotiated with us and this has been confirmed in writing. Objection is hereby expressly raised to the application of the Buyer’s terms and conditions of purchasing.
a) Any and all agreements which have been reached between us and the Buyer concerning performance of this order have been set down in writing in this contract.
b) Any objection to our order confirmation must be raised immediately, i.e., within a maximum period of three business days.
- We retain title of ownership and utilization rights under copyright law with respect to any and all documents attached to the offer, including, without limitation to cost estimates, drawings and any and all other documents attached to the offer provided to the Buyer. Specially prepared documents may not be made accessible to third parties and must be returned in the event the order is not placed.
- Our offers are subject to change and may be revoked by us prior to acceptance unless they are expressly noted in writing as binding or contain a specific deadline for their acceptance.
- Subsidiary agreements, declarations and other agreements between the Parties shall not be binding unless in writing. Agreements which amend or modify these General Terms and Conditions of Delivery and Payment shall not be effective unless personally signed by authorized representatives of both Parties.
2. Scope of the Delivery Obligation
- Our written order confirmation shall control the terms of the scope of the delivery of our products.
- Unless expressly designated as binding, any technical data shall be given solely as approximate values. Dimensions and weights are subject to deviation permissible according to technical rules or to the DIN tolerances for dimensions, shape and weight. Any and all other documents such as pictures and drawings are only approximate unless expressly designated as binding.
- We reserve all right, title and interest in and to any and all documents, especially drawings, related to any product sold to the Buyer by us. Such documents may not be used for any purpose other than that of the Contract without our consent. In particular, they may not be made accessible to third parties. All such documents shall be returned upon our request.
- The unloading of the parts and their transport from the unloading point to the point of utilization by Buyer are the responsibility of the Buyer and shall be carried out at Buyer’s expense regardless of which party is responsible for shipping expenses.
3. Prices, Terms and Conditions of Payment
- Unless otherwise expressly agreed in writing, prices are shown as net prices, excluding any taxes payable upon sale of the applicable product. The prices on our price lists valid at the agreed time of delivery plus all taxes will be charged.
- Unless otherwise expressly agreed in writing, invoices are due and payable without deductions and free of any fees within fourteen days of the invoice date.
- If the Buyer does not pay by the due date, Buyer shall without further notice be deemed in default. If the Buyer is in default of payment, we will be entitled to charge default interest at a rate of 8% above the prime rate of interest as specified in the Wall Street Journal. Failure to pay invoices at maturity date makes all subsequent invoices immediately due and payable, irrespective of terms, and Seller may withhold all subsequent deliveries until the full account is settled. Seller's acceptance of less than full payment shall not be a waiver of any of his rights.
- The Buyer waives any rights of setoff against us.
- No cash discount will be allowed on payments made by trade acceptances, notes, securities, postdated checks, etc., and such method of payment must first be approved in writing by Seller.
- We reserve the right at any time to suspend credit or to change credit terms provided herein, when in our sole opinion Buyer's financial condition so warrants. In such case, in addition to any other remedies herein or by law provided, cash payment or satisfactory security from Buyer may be required by us before shipment, or the due date of payment by Buyer under any contract or order with us may be accelerated by us.
- Shipping and packaging shall be carried out at the Buyer’s expense. Packaging will be selected at our discretion and according to our best judgment. If packaging in wooden crates is required, we will charge for the crates at cost.
- If shipment is in rail containers or other special packaging is reasonable, the costs for the packaging shall be borne by the Buyer.
5. Retention of Title
- We retain title of ownership to the delivery item until any and all of our claims from the business relationship, including claims arising in the future from contracts concluded simultaneously or at a later time, have been paid.
- The Buyer may neither pledge nor assign as security the delivery item. The Buyer shall notify us without delay of any liens, claims or other seizures by third parties.
- Upon Buyer’s breach of any agreement with us, including these Terms and Conditions, we will be entitled to request return of the goods, and the Buyer shall be obligated to surrender the goods. Our exercise of the retention of title and attachment of the delivery item shall not be deemed a withdrawal from the contract.
- The Buyer shall be entitled to sell the reserved goods in the ordinary course of business. The Buyer hereby assigns to us any and all claims against third parties arising from the disposal, confiscation or other legal actions related to the goods to which we have title of ownership or co-ownership.
- The Buyer shall be obligated to pay compensation for any and all losses and costs which we suffer or incur as a consequence of a breach of any agreement between us and the Buyer or any actions we take arising from the disposal, confiscation or other legal actions related to the goods by third parties.
- If Buyer files a bankruptcy petition or a bankruptcy petition is filed against Buyer, we may request the immediate return of the delivery item.
6. Delivery Period and Transfer of Risk
- The period for deliveries or performances shall begin on the day on which agreement regarding the order and any and all points relevant to the contract between the Buyer and us is available in writing, but not before receipt of any agreed advance payment.
- The day on which the goods are dispatched or reported as ready for dispatch shall be deemed the day of delivery. Partial deliveries are permitted.
- Goods which are ready for shipment must be released immediately by the Buyer upon notification; otherwise, we will be entitled to store the goods at the Buyer’s expense and risk according to our judgment and to bill the goods as delivered.
- The risk of loss of or damage to the goods shall be transferred to the Buyer upon its surrender to the person specified to carry out the shipment or, in case of pick-up by the Buyer, when the goods has been made available for shipment and the Buyer has been notified of its readiness for pick-up, even if and when partial deliveries are being made or we have assumed, at the Buyer’s request, other services, e.g., the shipping costs or delivery to the location and installation.
- If shipment is delayed due to circumstances for which the Buyer is responsible, the risk shall be transferred to the Buyer as of the day of the notification of readiness for shipment.
- If and when the shipment is delayed at the request of the Buyer or due to other reasons for which Buyer is accountable, we will be entitled to bill Buyer for the storage costs beginning one month after notification of readiness for shipment; the minimum charge shall be 0.5% of the invoice amount per month.
7. Inspection and Complaint Obligations
- The Buyer shall inspect the goods after their delivery without delay as soon as reasonably possible. Buyer shall notify us in writing of any defects without delay, no later than within three business days after delivery.
- The Buyer shall notify us in writing without delay, no later than three business days after discovery, of any defects which cannot reasonably be discovered within the scope of an inspection in accordance with Section 7, Clause 1 above and which appear at a later time.
- If and when the Buyer fails to submit the notification required pursuant to Section 7, Clauses 1 and 2, the goods shall be deemed accepted.
- Goods about which complaint has been made must be returned to us promptly.
8. Liability for Defects in the Delivery
- If any goods delivered to Buyer by us are non-conforming, we shall have the right either to (i) replace such goods within a reasonable time with goods meeting the agreed specifications or (ii) reimburse Buyer for the cost of such non-conforming goods. In either event, we shall have the right to require return of the non-conforming goods at our expense. The foregoing shall constitute Buyer’s sole remedy for any claim of non-conforming goods.
- Claims due to defects shall be time-barred one year after delivery.
- We will not assume any warranty for damage caused by the following: unsuitable or improper use, defective installation or commissioning by the Buyer or third parties, natural wear and tear, incorrect or negligent handling, in particular excessive use, unsuitable operating materials, replaced materials, chemical, electrochemical or electrical factors, unless they are solely due to our actions.
- Our delivery of replacement goods shall not constitute an acknowledgement of the Buyer’s claims due to defects. We will provide the same warranty for the replacement part as for the delivery item, whereby claims due to a defect of the replacement part shall be time-barred six months after the delivery or manufacture, but no earlier than the lapse of the original period of limitation.
- Damage compensation claims due to defects are subject to the restrictions of Section 9.
- LIMITED WARRANTY: NEITHER US, NOR ANY AGENT OR REPRESENTATIVE ON OUR BEHALF, HAS MADE ANY WARRANTIES, GUARANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING THAT OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR BUSINESS PURPOSE OR USE, EVEN IF THAT BUSINESS PURPOSE OR USE IS KNOWN TO US, EXCEPT THAT WE WARRANT THAT THE GOODS DELIVERED TO BUYER SHALL CONFORM TO THE SPECIFICATIONS SET FORTH IN ANY APPLICABLE SALES ORDER OR OTHER WRITTEN AGREEMENT BETWEEN US AND BUYER.
- OUR LIABILITY IN CONNECTION HEREWITH SHALL BE LIMITED TO THE VALUE OF GOODS DELIVERED TO BUYER. THE PARTIES AGREE THAT IN NO EVENT SHALL WE BE LIABLE FOR DEFECTS IN OR DAMAGES TO THE PRODUCTS IN WHICH OUR GOODS ARE USED OR FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFIT OF ANY KIND OR OF ANY OTHER NATURE BY REASON OF ANY ALLEGED BREACH OR DEFAULT UNDER THIS AGREEMENT NOR SHALL WE BE LIABLE FOR BUYER’S COURT COSTS OR ATTORNEYS FEES.
10. Limitation Period
Any legal action or arbitration proceeding by Buyer against us must be commenced within one (1) year following the occurrence of the event giving rise to Buyer’s claim or Buyer becomes aware of the existence (or facts and circumstances giving rise to the existence) of such claim, whichever occurs first.
11. Force Majeure
We shall not be liable for any failure or delay of performance arising in any way from any circumstance not within our reasonable control, including but not limited to, acts of God, fire, flood, storm or other natural phenomena, restraint of governments, rulers or other authorities (including allocations, priorities, requisitions, quotas and price controls), perils of the sea, war or warlike hostilities, terrorist acts, civil insurrection, blockades or prohibitions of export or import, strikes, lockouts or other labor disputes preventing or hindering the processing or delivery of the materials, breakdown or preventions of working of machinery, delay or non-availability of any items necessary for the processing of the materials or the performance of the services, loss, delay, detention or non-availability of a carrying vessel or other means of transportation, delays in loading or discharging the materials, failure of our supplier to make delivery to us and any other cause whatsoever, wheresoever, and howsoever preventing or hindering the delivery of goods to Buyer. Should a failure or delay in our performance occur because of any of the foregoing, we shall have the option of either canceling our agreement with Buyer or delaying performance for as long as the circumstances prevail, during which time these Terms and Conditions shall remain in full force and effect. We shall promptly notify Buyeras to the reason for its failure or delay in performance and as to whether it has cancelled our agreement with Buyer or delayed its performance hereunder. If performance is delayed, we shall also notify Buyer as to the period of time during which the delay is likely to continue. We shall have the further right to then allocate its available goods between its own end uses and its customers in such manner as we may consider appropriate.
- We may, after giving advance notice, inspect the equipment we have delivered in the Buyer’s operation, learn of the operating results and show the equipment to our potential customers.
- Buyer may not assign any of its duties or obligations owed to us without our prior written consent.
13. Final Provisions and Jurisdiction
- These Terms and Conditions shall be governed by the laws of the State of Tennessee, without reference to principles of conflicts of laws.
- In the event of any dispute regarding these Terms and Conditions the sole and exclusive venue for the resolution thereof shall be courts located within the State of Tennessee.
- If any provision of this Contract shall be held invalid under any applicable laws, such invalidity shall not affect any other provision of this Contract that can be given effect without the invalid provision, and, to this end, the provisions hereof are severable.