General Conditions of Sale - Oxigraf, Inc.
1. Following Conditions of Sale apply to all commodities and services (“Goods”) delivered by Oxigraf, Inc. (“Seller”). They are an intrinsic part of all legal agreements between any party ordering (“Buyer”) something from Seller. All other additional and different terms and agreements are objectionable to Seller and are rejected and not part of this contract unless agreed to by an expressly authorized representative of Seller in writing.
2. Purchase conditions of Buyer are not valid for any agreement between Seller and Buyer unless stated otherwise in writing by Seller. Seller refuses implicit acceptance of Buyer’s purchase conditions by confirming any order.
3. All conditions of this Conditions of Sale are accepted by Buyer by accepting Goods delivered by Seller.
1. All offers and quotations are subject to change without notice unless stated otherwise. Stock items offered are subject to prior sale.
2. Any orders are only accepted by Seller by issuing an order confirmation.
3. In case of immediate delivery, orders are accepted by Seller by issuing appropriate invoices.
1. All specifications given in Seller’s catalogs, brochures, technical data, and comparable documentation, as well as documents accompanying offers, quotations and order confirmations like pictures, drawings, measures, weights, power, dissipation figures and other details are for information purpose only and subject to change without notice unless explicitly stated otherwise.
2. Seller refuses the exceptional right to apply constructive changes to good and to use different materials if necessary.
3. Seller reserves all copyrights on all documents. They may not be copied or disclosed to third parties nor inherit any right to refabricate any parts documented within. Seller explicitly reserves the right to claim action for damages against Buyer.
4. All documents and drawings attached to offers, quotations or order confirmations are subject to be sent back from Buyer to Seller on Seller’s request.
§4 Prices, Packaging, Insurance
1. All prices mentioned are “ex works” (INCOTERMS), excluding packaging, mounting, installation, taxes and duties. Packaging will be charged at Seller’s manufacturing costs.
2. All sales are made F.O.B. the applicable plant or warehouse. Transportation from this point and consular and brokers’ fees shall be at Buyer’s expense. Title to and risk of loss of the products included in each shipment will pass to Buyer upon delivery to the carrier at the plant.
3. Value added (VAT) and similar taxes are charged by Seller in addition to all other costs complying with regulations set forth on the time and place of delivery or fulfilling the order agreement.
4. Unless ordered otherwise Seller is insuring Goods against normal transport risks at Buyer’s expense.
§5 Transfer of Risk
1. The risk is transferred from Seller to Buyer according to agreed terms of delivery. In case of no agreement set forth, the risk is transferred when Goods are transferred to first shipping agent acting on behalf of Buyer. This is still valid for partial shipments or if Seller is also bearing other costs like shipping costs, expedition or mounting.
2. If shipment of Goods is delayed resulting from causes not produced by Seller, risk is transferred with Seller’s declaration of the readiness of Good’s shipment.
§6 Date and Time of Delivery
1. All information about dates of delivery is based on conditions present at that moment. If conditions change later Seller reserves the right to adjust dates of delivery mentioned before. The begin of the time of delivery is the day all necessary conditions to fulfill the order are explicitly stated, all necessary documentation is received by Seller form Buyer, all permits and other allowances have been granted, all agreed payments have been received by Seller, and the order confirmation has been sent to the Buyer. Agreed time of delivery may be adjusted by Seller if Buyer fails to fulfill any points agreed. Any changes to the order requested by Buyer may change the time of delivery. Time of delivery is matched, if the Goods are transferred within that period to the first shipping agent acting on behalf of Buyer or Seller declares Goods’ readiness for shipment to the Buyer. Partial shipments are permitted. Delivered Goods must be accepted by the Buyer even if they are bearing minor defects. Time of delivery is matched in that case also.
2. If shipment of Goods is delayed according to Buyer’s wishes or the ready Goods are not requested on time from the Buyer, Seller may then store these goods on the risk of the Buyer excluding all liabilities. Seller may, in this case, declare Goods as shipped and charge them appropriately. Seller may also charge actual storage costs. Additional to this, Seller may have Goods at his disposal after a declared, final date of Buyer’s possible request has passed. Seller may then fulfill order for Buyer again after a considerable delay.
3. If shipment of Goods is delayed due to reasons not being controlled by Seller like force mayor, strike, trouble, severe faults in major parts, sabotage, delays in Seller’s supplies of major parts or missing governmental permits, time of delivery is also prolonged considerably. All Buyer’s claims or retreats are denied in this case. The same applies if these disturbances occur during the already prolonged time of delivery.
§7 Terms of Payment
1. Full and complete payment for the full invoice amount is due and payable at the offices of Oxigraf, Inc. in Sunnyvale, California within 30 days from the date of the invoice. If payments are made in other currencies, Seller’s claims are settled only when currency payments are credited to Seller’s account in the amount of United States Dollars ($) charged.
2. Payments must be received by Seller on the day agreed without any deductions (fees etc.). All costs arising due to payments by check or similar means are borne by the Buyer. Actual day of payment is the day Seller can use money transferred, so that the day of the acceptance of a check is not the day of payment.
3. Payments must not be held back in any case by Buyer. Claims Buyer has against Seller may not be deducted by Buyer at any time.
4. If payment is not made within thirty (30) days from the invoice date, both parties agree that Oxigraf, Inc. shall be entitled to interest on all sums due and owing at the rate of twelve per cent (12%) per annum. In the event Oxigraf, Inc. is required to obtain legal counsel concerning collection or any other matter with regard to the goods or amounts set forth in the invoice, the prevailing party in any such action shall be entitled to a full award of all attorney’s fees and costs, at all levels including appellate. Seller may then also stop any work for the Goods ordered and may adjust time of delivery.
5. If Seller learns about any disadvantageous property conditions of Buyer, Seller may request Buyer to furnish security for Seller’s performance. If Buyer fails to furnish securities Seller may cancel order agreement partially or totally and claim action for damages.
6. If delivery, assembly or installation is delayed without Seller’s blame, all payment must be carried out to the dates agreed to.
§8 Reservation of Property
1. All Goods remain property of Seller until all claims of Seller against Buyer have been settled. If Buyer fails to accomplish payments on time Seller may claim withdrawal of Goods without prior notice. If Seller claims withdrawal or seizure of Goods, the agreement about Goods order is not cancelled. Buyer still has to fulfill all points agreed, including payments. If government regulations in the country of the Buyer influence Seller’s reservation of property, Buyer shall be liable for fulfillment of all these regulations in order to accomplish Seller’s reservation of property.
2. In the period of Seller’s reservation of property, Buyer shall not seize Goods or furnish Goods as security. Buyer shall notify Seller in case of any seizures, sequestration or confiscation of Goods from third parties.
3. Any claims Seller receives due to reselling or granting of usage of Goods during period of reservation of property shall be settled by Buyer without any declaration of cession. Buyer will use and work on delivered Goods without any charge for Seller. If delivered Goods are used within other Goods being not Seller’s property, Seller bears property rights equal to the proportion of value of delivered Goods’ value to the value of the completed Goods at the time of delivered Goods’ usage. If Buyer is the sole proprietor of the completed Goods, Buyer will grant proportional co-ownership of Seller to completed Goods. Buyer will then store these Goods for Seller without costs.
4. During the period of reservation of property, Buyer will insure delivered Goods against common risks like theft, fire, water, or breakage. Seller may insure delivered Goods at Buyer’s expense.
§9 Cancellation, Hold, or STOP-Work Notices
1. Buyer may send Oxigraf, Inc. a cancellation, hold, stop-work, or similar notice at any time applicable to any unshipped portion of any order, and such notice will be accepted by Oxigraf, Inc. subject to the following conditions:
2. Any cancellation, hold, stop-work, order cancellation threat or similar notice shall be treated as a cancellation notice if and when, in the opinion of Oxigraf, Inc., circumstances warrant such treatment;
3. Buyer shall pay a cancellation charge specified by Oxigraf, Inc. which shall include adjustment of the billing price to Oxigraf, Inc.’s established price applicable to the quantity actually delivered, and may include, among other things, all costs, both direct and indirect, incurred and committed, including but not limited to engineering and design services; and
4. Oxigraf, Inc. will be under no further obligation with respect to filling the order to which such notice applies.
§10 Force Majeur
Oxigraf, Inc. shall not be under any liability whatsoever to Buyer for non-delivery or delay in delivery products/services directly or indirectly caused by unforeseen circumstances or resulting from an Act of God, outbreak of hostilities (whether or not war is declared), insurrection, riot, civil disturbance, Government Act or regulation, fire, flood, explosion, production delays, accident, theft, climatic conditions, shortage of material, strike, lockout or trade dispute (whether Oxigraf, Inc.’s or another party’s employees) or other cause beyond Oxigraf, Inc.’s reasonable control. In the event of any deliveries/services being suspended or delayed on account of any such aforementioned event or circumstances the period of the contract shall be correspondingly extended or, if deliveries/services are suspended for six months or more, Oxigraf, Inc. may at its option, exercisable by notice in writing to Buyer, cancel the contract with respect to any undelivered products/services without liability.
§11 Security Interest
Oxigraf, Inc. reserves a security interest in the products sold hereunder and in proceeds thereof to secure payment of the purchase price.
1. Any and all claims made for return or exchange shall be made within fifteen (15) days of the Buyer’s receipt of the Goods. No allowance for exchange or refund shall be allowed for Goods which are constructed or delivered for a custom application.
2. Seller warrants the Goods manufactured by it, to be, for the period of warranty coverage specified below, free from defects of material and workmanship under normal use and service.
3. In case of defects Seller will replace or repair defect parts within 12 months of warranty period starting with date of transfer of risk. The defects must arise from causes originating before the date of transfer of risk. Such causes are: bad construction, bad materials used or bad workmanship. Goods must be unusable or severely inhibited in their operation. Buyer shall notify Seller immediately in case of any defects in writing. Exchanged parts become property of Seller again. For any third party goods used within delivered Goods, Seller transfers all claims against Seller’s supplier to Buyer. If Seller delivers according to Buyer’s drawings, liability is restricted to execution according to drawings only.
4. Buyer’s right to claim anything from defects ceases 6 months after the date of Seller’s notification, but not earlier than the end of the warranty period.
5. Seller is not liable for defects arising from: unsuitable or improper use, wrong assembly/installation by Buyer or third party, natural wear, incorrect or neglectful operation, improper working conditions or materials, improper spare parts, insufficient construction work, unsuitable foundation, chemical or electrical influences unless caused by Seller. Parts which wear out fast due to their material; i.e. packaging, gaskets, parts made of plastic, working material fillings, heaters and heat isolation are also excluded from Seller’s warranty. All defects arising from electric arcs, electron beams, and crucible breakage are not covered by Seller’s warranty.
6. Buyer shall grant Seller time and opportunity to remedy all defects announced so far. If Buyer fails to grant access to Goods at reasonable times in cooperation with Seller, Seller will be released from Seller’s warranty obligation. Buyer may remove any defects on his own or by third parties if severe defects are expected or Seller fails to remove defects within a reasonable time. Buyer shall notify Seller of Buyer’s intent to remedy defects immediately. Seller shall bear all costs for this.
7. Other than specifically provided for in this warranty, Seller shall not be liable for any other claim or loss related to this warranty whether such claim arises or is based on contract, tort or strict liability or otherwise. IN no event shall liability exceed the payment received by Seller for the product equipment or component parts manufactured by Seller. This warranty is in lieu of all other warranties expressed or implied, including but not limited to, warranties of merchantability or of fitness for a particular purpose, use, or application. NO other warranties, obligations, or liabilities shall be effective unless agreed to in writing by Seller.
§13 Buyers’s Solvency
Buyer’s order shall constitute a representation that Buyer is solvent, and Oxigraf, Inc. is relying upon such representation. If Oxigraf, Inc. at any time reasonably believes that Buyer is insolvent or that Buyer’s credit is impaired, Buyer shall be in material breach hereof and Oxigraf, Inc. may, without liability to Buyer, withhold performance hereunder, change the payment terms including without limitation declaring all amounts to be immediately due and payable, and/or repossess products previously delivered.
§14 Seller’s Damages
If buyer wrongfully rejects or revokes acceptance of products/services covered hereby, or fails to make any payment when due, or repudiates this order, Oxigraf, Inc. shall have all the rights and remedies provided by law and, without limitation of the foregoing, may recover as damages, where permitted by applicable law, the price including a late payment or interest charge from due date at one and one-half percent (1-1/2%) per month on the unpaid balance, but not to exceed the maximum rate of interest permitted by law, and any costs of collection, including reasonable attorney’s fees. As to all partially manufactured products, Oxigraf, Inc. may, at its option complete their manufacture, and hold Oxigraf, Inc. responsible for their price. Upon recovery of the price, the products shall become the property of Buyer.
Any liability for personal, material or financial damages (arising from any legal grounds whatsoever) is accepted by Seller only to the extent covered by the existing insurance (third party liability insurance) taken out by Seller and only in the case of deliberate action or gross negligence. Liability for consequential damages, loss of revenue, profits, or earnings and other indirect loss or damage is excluded.
1. Seller and Buyer shall take all reasonable steps to prevent disclosure to third parties of confidential information with respect to Goods, either’s affairs, including sales volume of Goods sold and purchased and the terms and conditions of this Agreement.
2. No proprietary information may be disclosed to any other person or entity without the prior express written permission of the Seller. The proprietary information may be disclosed to employees, officers, and directors of Buyer only and to the extent such person has a need to know the proprietary information in order to fulfill his or her responsibilities on the behalf of the Buyer. The Buyer shall take all reasonable precautions to prevent any unauthorized disclosure or use of any proprietary information.
3. Seller retains title to all proprietary information, regardless of form, and all materials bearing Seller’s copyright notice. The Buyer shall keep each and every item to which Seller retains title free and clear of all claims, liens, and encumbrances. Any act of the Buyer voluntary or involuntary, purporting to create a claim, lien, or encumbrance on such an item shall be void and without effect. Seller shall indicate all information it considers as proprietary with adequate markings describing such information as proprietary information subject to these provisions.
§15 Patents or Other Rights
Seller represents that, to the best of Seller’s knowledge, within the Territory, the Goods sold hereunder do not infringe any patents or any other rights of another party. Should, despite this, the Goods supplied hereunder or part thereof, at the moment of conclusion of order, infringe a third party patent already granted and published in the Territory; or if the Goods supplied expressly comprise a specific process right and the Goods infringe on patented process rights for which infringement Buyer or respectively Buyer’s customer is sued in legal proceedings, Seller shall at Seller’s own expense and at Seller’s discretion within reasonable time procure the right for Buyer/ Customer to continue to use the Goods or part thereof or to modify or replace them with non-infringing Goods or processes or to withdraw from the order. Seller assumes no additional liability for processes, applications, etc.
§16 UNITED STATES Export Laws
Oxigraf, Inc.’s obligations are subject to the export administration and control laws and regulations of the United States. Buyer shall comply fully with such laws and regulations in the export, resale or disposition of products.
Quotations or proposals made, and any orders accepted by SELLER are with the understanding that the ultimate destination of the products is the country indicated therein. Diversion of the products to any other destination contrary to United States law is prohibited. Accordingly if the foregoing understanding is incorrect, or if Buyer intends to divert the products to any other destination, Buyer shall immediately inform Oxigraf, Inc. of the correct ultimate destination.
§17 Applicable Law
This contract for any and all sales hereunder shall be governed by the laws of Sunnyvale, California, U.S.A. Venue for any action between the Seller and Buyer shall be in the court of appropriate jurisdiction in and for Santa Clara County, California, U.S.A.