1. Scope
These Standard Terms and Conditions apply to all current and future offers made by v.times! GmbH.
2. Offer and Acceptance
The quotation of v.times! is binding for the period of 60 days.
The offer and the acceptance of an order through v.times! is only valid if additional equipment attached to the product at the customer’s site have been approved compatible by v.times!. v.times! will check compatibility before order acceptance. If compatibility is not accepted, the contract has not closed. In that case the customer can not assert any rights from the offer or a preliminary order acceptance.
v.times! reserves all rights of ownership and copyright on its illustrations, drawings, prototypes or other documents. Their disclosure to third parties requires the express written consent of v.times! and they have to be returned to v.times! upon request.
3. Acceptance, Changes
All sales are subject to and expressly conditioned upon the terms and conditions contained herein, and upon Buyer’s assent thereto. No variation of these terms and conditions will be binding upon seller unless agreed to in writing and signed by an officer or other authorized representative of Seller.
Orders arising hereunder may be changed or amended only by written agreement signed by both Buyer and Seller, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery. Buyer may not cancel this order unless such cancellation is expressly agreed to in writing by Seller. In such event, Seller will advise Buyer of the total charge for such cancellation, and Buyer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation cost imposed on Seller by its suppliers, and any other cost resulting from cancellation of this order by Buyer which is permitted by Seller. Certification of such costs by Seller’s independent public accountants shall be conclusive on the parties hereto.
4. Price, Delivery, Claims, Delays
v.times! is bound by the price in the offer valid at the time of order receipt for 60 days.
Prices shall be ex works (INCOTERMS 2000). Insurance, freight, VAT, taxes or other fees are not included and will be charged separately.
If Shipping and Handling Charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of the goods to the carrier at Seller’s shipping point shall constitute delivery to Buyer and Buyer shall bear all risk of loss or damage in transit. However, Seller reserves the right, in its discretion, to determine the exact method of shipment. Seller reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries
Immediately upon Buyer’s receipt of any goods shipped hereunder, Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects or damages and shall hold the goods for Seller’s written instructions concerning disposition. If Buyer shall fail to so notify Seller within five days after the goods have been received by Buyer, such goods shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer.
Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Seller’s reasonable control, including, without limitation, unsuccessful reactions, act of Buyer, embargo or other governmental act, regulation or request affecting the conduct of Seller’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.Seller shall also not be liable for any delay of delivery initiated by supplier or subcontractor of v.times!. In this case, Seller got the possibility to postpone the delivery or even step back from the contract.
5. Allocation of Goods
If Seller is unable for any reason to supply the total demands for goods specified in Buyer’s order, Seller may allocate its viable supply among any or all Buyers on such basis as Seller may deem fair and particular, without liability for any failure of performance which may result there from.
6. Payment, Interest
Terms of sale are net 30 days of date of invoice, unless otherwise stated.
In case of delayed payment v.times! is entitled to interest of 10% p.a. for the amount due for liquidated damages. Interest may be lower if customer proves that less damage has been suffered. It remains open to v.times! to prove that a greater loss has been suffered.
7. Taxes and other Changes
Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or change of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced.
8. Warranties
Seller warrants that its products shall conform to the description of such products as provided to Buyer by Seller through Seller's catalog, analytical data or other literature. This warranty is exclusive, and Seller makes no other warranty, express or implied, including any implied warranty of merchantability or fitness or any particular purpose. Seller's warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the products in any manner, has failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by Seller.
Seller's sole and exclusive liability and Buyer's exclusive remedy with respect to products proved to Seller's satisfaction to be defective or nonconforming shall be replacement of such products without charge or refund of the purchase price, in Seller's sole discretion, upon the return of such products in accordance with Seller's instructions.
Seller shall not in any event be liable for incidental, consequential or special damages of any kind resulting from any use or failure of the products, even if Seller has been advised of the possibility of such damage including, without limitation, liability for loss of use, loss of work in progress, down time, loss of revenue or profits, failure to realize savings, loss of products of Buyer or other use or any liability of buyer to a third party on account of such loss, or for any labor or any other expense, damage or loss occasioned by such product including personal injury or property damage unless such personal injury or property damage is caused by Seller’s gross negligence. All claims must be brought within one year of shipment, regardless of their nature.
9. Buyer’s use of products
Buyer acknowledges that the products have not been tested by Seller for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in Seller's literature furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will properly test, use, manufacture and market any products purchased from Seller and/or materials produced with products purchased from Seller in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted.
Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from Seller. Buyer also has the duty to warn Buyer's customers and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the products. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the products and not misuse the products in any manner. If the products purchased from Seller are to be repackaged, relabeled or used as starting material or components of other products, Buyer will verify Seller's assay of the products. No products purchased from Seller shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
10. Buyer’s Representations and Indemnity
Buyer represents and warrants that it shall use all products ordered herein in accordance with Paragraph No. 9 "Buyer's Use of Products", and that any such use of products will not violate any law or regulation. Buyer agrees to indemnify and hold harmless Seller, its employees, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Seller may sustain or incur as a result of any claim against Seller based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by Buyer, its officers, agents, employees, successors or assigns, by Buyer's customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, the use of Seller's products, or by reason of Buyer's failure to perform its obligations contained herein. Buyer shall notify Seller in writing within fifteen (15) days of Buyer's receipt of knowledge of any accident, or incident involving Seller's products which results in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.
11. Patent Disclaimer
Seller does not warrant that the use or sale of the products delivered under will not infringe the claims of any state or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
12. Industrial Property Rights, Confidentiality
All rights to patents, trademarks and any other intellectual property shall remain the property of v.times!.
Customer shall keep in confidence all information, including but not limited to technical data, product descriptions, and any other information which is readily and reasonably identifiable as confidential based on its nature and/or the circumstances of its disclosure. For clarification only, this shall include information provided verbally. Such information shall not be disclosed to any third parties or employees, except for employees who are directly involved in the operation of the purchased equipment.
13. Data Storage
All customer related information will be stored electronically at v.times!’s computer systems.
14. Returns
Goods may not be returned for credit except with Seller’s permission, and then only in strict compliance with Seller’s return shipment instructions. Shipping regulations are Buyer’s responsibility.
15. Miscellaneous
Seller's failure to strictly enforce any term or condition of this order or to exercise any right arising hereunder shall not constitute a waiver of Seller's right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under this order are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. Any waiver of a default by Buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The paragraph headings herein are for convenience only; they form no part of the terms and conditions and shall not affect their interpretation. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
16. Applicable Law
Legal relations existing in connection with this contract shall be governed by Austrian law, to the exclusion of the United Nations Convention on Contracts for the International sale of Goods (CISG)
Place of jurisdiction for all disputes arising directly or indirectly from the contract shall be Innsbruck, Austria.