Terms and Conditions
1. General
Provisions
1.1. All supplies and services of ALD Vacuum Technologies
North America, Inc. (ALD) are subject to the conditions hereinafter set forth.
Standard terms and conditions of the buyer shall not apply.
1.2. INCOTERMS
2010 rule(s) referenced herein shall apply only to terms not otherwise covered
by these Conditions of Sale.
1.3. Where no provisions are included in
these General Conditions of Sale, the Uniform Commercial Code shall apply.
2. Offer / Acknowledgement of Order
2.1. Unless
the offer states a term of validity, offers from ALD are non-binding and may be
withdrawn at any time. A contract is only concluded after the order is
acknowledged in writing by ALD, or after both the buyer and ALD have signed a
formal Contract.
2.2. Purchase orders placed without prior
offer from ALD according to Section 2.1 do not become binding upon ALD unless
acknowledged in writing by ALD. The same applies where the buyer modifies the
offer from ALD.
2.3. ALD will promptly confirm the receipt
of orders placed by the buyer by E-mail. Such confirmation of receipt shall not
yet represent a firm order acknowledgement. However, such confirmation of
receipt may be issued in conjunction with the order confirmation.
3. Sales References
3.1.Data
contained in catalogues, brochures and folders, as well as general information
in data sheets and drawings accompanying quotations are approximate and
non-binding unless they are expressly warranted.
3.2. In certain cases, ALD reserves the
right to alter the design and, where there is a shortage of raw materials, to
use substitute materials unless there is an overriding major concern on the
part of the buyer which is known to ALD.
3.3. ALD reserves the right of ownership
and copyright for all sales references and other documents made available to
the customer. They must not be used for other purposes, nor copied, reproduced
or made available to a third party without prior written approval from ALD.
They do not confer title to, nor imply the grant of any licence for
reproduction of ALD products or parts.
3.4. All sales references and other
documents made available to the buyer are to be returned to ALD immediately
upon request; they must be returned without request if the order is not placed
with ALD.
4. Prices, Packing, Insurance
4.1.The
prices are based on the terms stated in the offer. Where no shipping terms are
stated, quoted prices are based on terms “ex works” or “ex manufacturing
plant”, respectively (EXW, INCOTERMS 2010) - excluding packing, assembly and
start-up. Packing is charged at actual cost.
4.2. Unless expressly stated in writing,
the sales price does not include any sales, excise, value added or
transportation taxes etc., nor any export, import or other duties to be
additionally charged by ALD, as the case may be, in accordance with official
regulations at the time of order fulfilment.
4.3. Unless the buyer expressly determines
otherwise, ALD shall insure the purchased goods against the usual
transportation risks, including breakage, and charge the cost incurred to the
buyer.
5. Assembly and Start-up
Provided
that assembly, supervision of assembly or start-up have to be carried out by
ALD, the relevant additional conditions of ALD (“General Terms for Equipment
Assembly and Technical Services”) are valid, which will be made available by
ALD upon request.
6. Passing of risk
6.1. Risk
shall pass to the buyer pursuant to the INCOTERMS 2010 rules agreed upon. In
the absence of such agreement, the risk shall pass to buyer on delivery of the
goods to the first carrier. This shall also apply to partial shipment or where
ALD has undertaken to assume supplemental services and payments, such as the
cost of dispatch, carriage and assembly.
6.2. Risk shall also pass to the buyer as
soon as the buyer has been put on notice to take delivery of the ordered goods.
7. Delivery Dates
7.1. The
delivery period commences when all commercial and technical requirements for
the performance of the contract have been clarified, documents to be supplied
by the buyer have been received by ALD, any official authorization or release
that may be required has been issued and (advance) payments provided for in the
contract have been credited to ALD's bank account. Adherence to the time of
delivery shall be subject to the timely fulfilment of the contractual
obligations by buyer. The goods are deemed delivered in time if handed over to
the first carrier or declared ready for dispatch to buyer before expiration of
the delivery period agreed upon. Partial deliveries are permitted to a
reasonable extent. Minor defects do not affect buyer's obligation to take delivery
of the goods; in that respect the delivery period shall be deemed to have been
observed.
7.2. If the delivery is delayed for
reasons imputable to buyer or the goods are not called for in due time, ALD at
its discretion shall be entitled to store the goods at buyer's risk, to invoice
the goods as delivered ex works and to charge buyer with the storage fees; if
stored in ALD's premises, such storage fees are at least 0.5% of the invoiced
sum for each month from the date of readiness for dispatch. ALD shall
furthermore be entitled, after having set a reasonable time for buyer to take
delivery and after expiration thereof, to sell or dispose of the goods in any
other way and to deliver replacement goods to buyer after a reasonably extended
period.
7.3. If delivery is delayed by unforeseen events beyond ALD's control (Acts
of God or Force Majeure), the delivery period shall be reasonably extended, at
the latest by six months, however. Such events are considered to include
strikes, lockouts, sabotage, acts of terrorism, material and energy shortage,
operating breakdown incurred through no fault of ALD, important tools or
workpieces becoming useless through no fault of ALD, non-issuance or delayed
issuance of official authorizations, as well as any other unforeseen events.
8. Terms of Payment
8.1. Payments shall be made within 30 days from the date of
invoice, unless otherwise stated in ALD's offer and / or acknowledgement of
order. In case of partial shipments, ALD shall be entitled to issue pro rata
invoices accordingly. If payment has been made in a currency other than EUR,
the claim shall be deemed to have been settled only if the payment in the
foreign currency corresponds to the stipulated amount of EUR on the date of
receipt payment, i.e. the date when the amount is credited to ALD's account, or
if ALD’S order acknowledgement confirms the price in a currency other than EUR
and the payment amount equals the confirmed price.
8.2. Payments shall be made exclusively to one of ALD's accounts and shall be
paid by the due date, free of any charges and/or off-sets. Fees, expenses or
sundries incurring to ALD by accepting bills or cheques upon specific agreement
between ALD and buyer shall be at the buyer's expense. Determination when
payment becomes due shall be in respect of the date of invoice or notice of
readiness for dispatch. The date of fulfilment for all payments shall be that
on which the sum paid is actually at ALD's disposal.
8.3.Withholding of payment because of counterclaims, or setting off payments
against counterclaims, is only permissible if such counterclaims are
uncontested or legally ascertained.
8.4.When buyer delays payment beyond the due date, ALD shall be entitled,
without prejudice to any further claims as a result of late payment, to charge
interest at a rate of 8% above the prevailing European Central Bank rate.
9. Reservation of Property Right
9.1. ALD reserves the property
rights in the goods supplied until ALD has received payment in full with
respect to any claims whatsoever resulting out of ALD's business transactions
with buyer, including supplementary claims. If buyer is in default of payments,
ALD shall without formal notice be entitled to take back the goods as security.
Claiming security rights in the property and reclaiming delivered items shall
not be deemed a cancellation of the contract. Where special regulations or any
other provisions apply in the country of buyer or of destination of the goods
in respect to the validity of the reservation of property rights, the buyer
itself shall undertake to carry out the terms of such regulations or provisions
to safeguard ALD's rights.
9.2. Buyer shall promptly report to ALD the filing of any liens, claims,
encumbrances or any such other measures imposed by third parties.
9.3. During the period of reservation of property rights, buyer undertakes,
at its own expense, to fully insure the goods supplied against risks and
damages, such as theft, breakage, fire and water damage and, upon request, to
furnish proof thereof to ALD. In Case that buyer fails to furnish such proof
within a reasonable period of time, ALD shall be entitled to take out such
insurance at buyer’s expense.
10. Warranties
10.1. ALD undertakes, at
its discretion, to repair or to replace any defective goods supplied or parts
thereof. Excluded from the warranty are normal wear and tear, consumable
materials (e.g. thermocouple elements and their protective armatures, crucibles
and troughs, heating tubes, brick lining, packings, sealings, plastic parts,
heat insulations). Furthermore, warranty claims for damages resulting from
chemical, electrochemical or electrical factors (when not due to ALD’s fault)
as well as from electric arc or electron beam are excluded.
10.2. Notice of defect must be given
immediately, latest within 2 weeks of its discovery. The complaint must specify
the nature of the found defect or fault. ALD shall be entitled to have the
defect inspected by its own staff.
10.3. After mutual consent, buyer
shall grant to ALD reasonable time and opportunity to proceed with the repairs
or replacement, as ALD may deem necessary at its discretion. If buyer fails to
do so, ALD shall be relieved of any warranty or liability. Only in
extraordinary cases, e.g. if jeopardizing safety of operation or risking
excessive damages – whereupon ALD shall immediately be notified – or if ALD
should be in delay of remedying the damage, shall the buyer be entitled to
remedy the defect or to have it remedied by a third party and to recover the costs
necessarily incurred from ALD.
10.4. ALD shall bear the direct cost
arising from repair or replacement as a result of warranty claims, provided
they have proven to be justified and ALD has been correctly and promptly
notified of the defect. The direct costs cover the cost for the replaced part
including carriage as well as reasonable cost for dismantling and assembly of
the part and – provided it can in so far be equitably claimed in the individual
case – the cost for making available any of ALD’s mechanics and assistants. Any
further costs shall be borne by the buyer.
10.5. Any claims that may be raised -
except for cases of malicious concealment - are barred by limitation within a
period of one year from the date of delivery, in cases of contract for work it
shall be within one year from the date of acceptance, in either case, however,
such period shall start at the latest on the date the risk passes to the buyer.
10.6. The warranty for parts replaced
or repaired shall expire after three months, but not before the warranty period
for the goods originally supplied.
10.7. Concerning any further claims Section 12.4 shall apply.
11. Liability for Patent Infringement
11.1. ALD warrants that, to the best
of its knowledge, the goods supplied are free from third party rights. If,
however, the goods supplied hereunder or any part thereof infringe a third
party patent already granted and published, or if the goods supplied by ALD
include a specific process right and infringe on patented process rights for
which the buyer is sued in legal proceedings, ALD shall at its own expense and
discretion, and within a reasonable time, procure for buyer the right to
continue using the goods or part thereof or to modify or replace them with
non-infringing goods or process ,or to withdraw from the contract. ALD assumes
no additional liability, e.g. for processes, applications, products etc. not
supplied by ALD, but developed on or derived from goods supplied by ALD.
11.2. If third party patents are infringed by a design or specification
furnished by buyer, the latter shall conduct the defense of ALD against any
claim and release ALD from any liability for infringement.
12. Further Liability of ALD; Buyer’s Right to Cancellation
12.1. Buyer may terminate
the contract if complete performance becomes impossible for ALD before passing
of the risk. Buyer may demand a reduction in price in case of partial
impossibility of delivery of the goods or parts therefore. If the buyer has a
lawful claim for rejecting a partial delivery, buyer may terminate the
contract.
12.2. In case a delay in delivery is within ALD’s responsibility and ALD does
not comply within a reasonable additional period of time which buyer allows to
lapse while expressly stipulating that he will reject acceptance of the goods
after expiration of such additional period, buyer shall be entitled to
terminate the contract.
12.3. ALD does not provide any legal guarantees for the properties of the
ordered goods, unless expressly confirmed in writing.
12.4. ALD shall be liable for direct damages resulting from ALD’s breach of
its primary contractual obligations or from illicit acts to the extent that its
legal representatives, agents, employees or officers have acted with malicious
intent or gross negligence. ALD’s liability for damages, including direct
damages, shall not exceed the contract price unless such damages are covered by
Seller’s liability insurance. Any further liability of ALD is excluded. In no
event shall ALD be responsible for any special, indirect, punitive or
consequential damages, including, without limitation, loss of profits or loss
of opportunities, arising out of the contract or out of the transactions
contemplated hereunder.
12.5. Should the buyer be entitled to claim damages in accordance with Section
12.4 above, such rights will expire at the end of the warranty period as stated
in Section 10.6, except for cases of malicious intent or gross negligence on
the part of ALD.
13. Place of Fulfilment, Jurisdiction, Applicable Law
13.1.If a dispute arises
out of or relating to a contract between ALD and the buyer, or the breach
thereof, both parties shall make every reasonable effort to resolve their
differences. If the parties fail to come to a mutual understanding, they shall
submit their dispute to J.A.M.S./ENDISPUTE (or similar organization) for
non-binding mediation by a sole mediator. Such mediation shall be administered
under the Commercial Mediation Rules and shall take place in New York, New York
(USA).
13.2. If mediation fails to bring forth a mutually satisfactory agreement,
they shall submit to and be bound by the decision of a mutually accepted member
of the American Arbitration Association (“AAA”) who shall rule in accordance
with the Association’s Commercial Rules and Supplementary Procedures for Large,
Complex Disputes. The arbitrator shall not be an officer, employee, director,
or affiliate or either party or of its affiliates. If the parties are unable to
agree on an arbitrator within 30 days of the filing of the Demand for
Arbitration, an arbitrator shall be selected pursuant to the rules and
procedures of the AAA.
13.3. Any such arbitration shall be held in New York, New York (USA) and the
laws of the State of New York shall apply. Judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof.
13.4. Each party shall bear the fees and costs it incurs in preparing and
presenting its case in such arbitration and/or mediation.
ALD Vacuum Technologies North America, Inc.