1. APPLICABLE TERMS & CONDITIONS
These terms and conditions of sale establish the rights, obligations and remedies of the applicable Archigas GmbH entity “Supplier” and purchaser “Purchaser” which apply to any order issued by Purchaser for the purchase of Supplier’s equipment and parts (collectively “Products”), services (“Services”) as well as software and firmware including all related documentation, data files, modules, libraries, and elements, updates, upgrades, error corrections, changes or revisions each supplied or licensed by Supplier to Purchaser under the Order (“Software“) (each “Products”, “Services” and “Software” hereinafter also referred “Deliverable“). Unless otherwise stated in a written agreement signed by authorized representatives of Supplier and Purchaser and covering the specific Deliverables that are the subject of any Purchaser’s order, Supplier ‘s acceptance of Purchaser’s order is made expressly conditional on Purchaser’s acceptance of the terms and conditions of sale included herein. No additional or different terms or conditions, whether contained in Purchaser’s order form or any other document or communication pertaining to Purchaser’s order, will be binding upon Supplier unless accepted in writing, and Supplier hereby expressly objects to any such terms and conditions which shall be deemed ineffective and are rejected. In addition, these terms and conditions of sale shall apply for any framework agreement between Supplier and Purchaser with respect to the sale of Deliverables (“Framework Agreement“) if and so far, not otherwise stated in writing in such Framework Agreement, any Purchaser’s order accepted by Supplier and/or any Framework Agreement are hereinafter referred to as the “Agreement”.
2. GENERAL DEFINITIONS
2.1. “Order” means a Purchaser purchase order accepted by Supplier.
2.2. “Party” means Supplier, or Purchaser and “Parties” means both.
3. DELIVERY AND ACCEPTANCE
3.1. Delivery terms are EXW Ruesselsheim [Incoterms®2010], unless otherwise is agreed in writing. Supplier will schedule delivery in accordance with its standard lead time unless Purchaser’s order requests a later delivery date; or Supplier agrees in writing to a separate delivery date. If Supplier prepays transportation charges, Purchaser will reimburse Supplier upon receipt of an invoice for those charges.
3.2. Purchaser should provide Supplier with detailed description of the application via filling out the technical questionnaire.
3.3. Purchaser shall promptly inspect any Products delivered and shall notify Supplier of any nonconformance detectable in the due course of an intake inspection without undue delay in writing at the latest however within ten (10) days after delivery. Purchaser shall notify any nonconformance which cannot be detected within the due course of an intake inspection, without undue delay at the latest however within three (3) days after discovery of the defect. Purchaser shall be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Supplier within the deadlines stipulated above.
3.4. If Services are qualified as work pursuant to Section 631 German Civil Code or an acceptance is agreed, Sec. 640 German Civil Code shall apply for such acceptance of Services.
4. RETENTION OF TITLE
4.1. Supplier reserves title in all Products until receipt of all payments under the business relationship with Purchaser (hereinafter: “Reserved Products”). If a current account relationship exists as part of the business relationship, Supplier shall retain title in the Reserved Products until receipt of all payments from acknowledged balances. In this case, reservation of title shall serve as security for the balance. For the duration of the reservation of title Purchaser may not pledge the Reserved Products nor use the same as security.
4.2. If Purchaser combines or mixes any Reserved Products in which Supplier has reserved title with other items to form a new unit in such a way that one of the other items must be regarded as the main constituent, Supplier shall have pro rata (co-)title in the new unit created, such (co-)title being in the ratio of the value of the Reserved Products to the value of the combined or mixed items at the time of such combining or mixing, and Purchaser hereby transfers (co)title and possession in the combined or mixed item to Supplier. Supplier hereby accepts this transfer. Purchaser shall keep possession of the combined or mixed item, which has thus been created for Supplier in trust free of charge.
4.3. If Purchaser or third parties acting on behalf of Purchaser process or modify the Reserved Products (co-) owned by Supplier, this shall be deemed to have been carried out for Supplier. If Purchaser acquires sole title in the new main unit created by way of such processing or modification, the parties shall be deemed to have agreed that Purchaser hereby transfers to Supplier (co-) title and possession therein in the ratio of the value of Reserved Products (co-) owned by Supplier to the value of the combination or modification and that Supplier hereby accepts such transfer. Purchaser shall keep possession of the sole or co-owned items which has thus been created for Supplier in trust free of charge. If the Reserved Products owned by Supplier have not yet been inextricably combined or mixed with other items or otherwise processed or modified since supply, their value at the time of combining, mixing, processing or modification shall be deemed to be the amount billed for the Reserved Products by (including VAT).
4.4. Purchaser may sell the Reserved Products during ordinary business activities, however all claims equal to the final invoice amount (including VAT) accruing to Purchaser against its customers or third parties from the resale are hereby already assigned to Supplier. Supplier herewith accepts such assignment. Purchaser may not sell the Reserved Products to customers that have excluded or limited the assignment of payment claims against them. After the assignment, Purchaser retains the right to collect the claims. This shall not affect Supplier’s entitlement to collect the claims itself. However, Supplier shall not collect the claims if (1) Purchaser fulfill its payment obligations from the proceeds taken in, or (2) Purchaser is not in default of payment or (3) Purchaser has not filed an application for the opening of insolvency proceedings and has not suspended its payments. If any of this is the case, Supplier may request Purchaser to disclose the assigned claims and their respective debtors, to furnish all data required for collection, to hand over all documents pertaining thereto and to inform the debtors of the assignment. If such a case occurs, Purchaser’s right to collect the claims is extinguished. To the extent that a current account relationship exists between Purchaser and its customers pursuant to Sec. 355 of the German Commercial Code (Handelsgesetzbuch), the claim assigned to Supplier in advance by Purchaser shall also relate to the acknowledged balance, as well as to the balance surplus existing from the closing balance in the case of the customer’s insolvency.
4.5. Purchaser is obliged to notify Supplier in writing without undue delay of all seizures, attachments and other interference by third parties with respect to the Reserved Products. Moreover, Purchaser shall notify such third parties of the reservation of title. To the extent the third party is unable to reimburse Supplier for the court and out-of-court costs of a legal action pursuant to Sec. 771 of the German Code of Civil Procedure (Zivilprozessordnung), Purchaser shall be liable for the loss thus incurred to Supplier.
4.6. Purchaser is obliged to treat the Reserved Products with care; in particular, Purchaser is obliged to have the same at its own expense sufficiently insured at replacement value against fire, damage by water and theft. To the extent that maintenance or inspection work is required, Purchaser must carry this out in good time at its own expense.
4.7. At Purchaser’s request Supplier shall release the securities held by Supplier to the extent their realizable value exceeds the claims to be secured by 10% or more whereby Supplier may select the securities to be released.
4.8. In case that Supplier in its formal position of remaining titleholder of the Reserved Products shall under any laws be obliged to pay any taxes referring to the title of the Reserved Products Purchaser shall indemnify Supplier from those tax obligations.
5. PAYMENT & SET-OFF
5.1. The payment terms are specified in the respective order confirmation.
5.2. If Purchaser is in payment default Supplier may at its option charge interest on delinquent amounts at the statutory interest rate.
5.3. Additionally, if Purchaser is delinquent in its payment obligation to Supplier, Supplier may upon written notice to Purchaser stop work and withhold future shipments until all delinquent amounts and late interest, if any, are paid.
5.4. Purchaser may only set off any invoiced amounts against claims that are undisputed or declared final and absolute by a competent court.
5.5. Supplier’s extension of credit is subject to Purchaser maintaining an acceptable credit standing.
6. PRICES/TAXES
6.1. If not otherwise agreed in writing, all prices for Deliverables are subject to Supplier ‘s actual price list at the date of placement of Purchaser’s Order as amended from time to time in Supplier’s sole discretion. Supplier will inform Purchaser on any price increases with 30 day’s written notice.
6.2. All prices are in the applicable currency of the Agreement and are based on delivery EXW Ruesselsheim [Incoterms®2010]. Prices do not include any charges for services such as packaging, insurance, or brokerage fees. Supplier’s pricing excludes all applicable taxes (including but not limited to, sales, use, excise, value-added, and other similar taxes), duties and charges. If Supplier is required to impose, levy, collect, withhold, or assess any such taxes, duties or charges on any transaction, then in addition to the purchase price, Supplier will invoice Purchaser for such taxes, duties, and charges unless at the time of order placement Purchaser furnishes Supplier with an exemption certificate or other documentation sufficient to verify exemption from such taxes, duties or charges.
6.3. The minimum value of Orders acceptable for Supplier is Euro 450. Should Purchaser the value of an Order fall below a purchase price of Euro 450, Supplier is entitled to a surcharge in the amount of the difference between Euro 450 and the actual purchase price.
7. FORCE MAJEURE AND DELAY
7.1. Except payment obligations, neither Party is liable for failure to meet its obligations affected by a force majeure event. If performance is so delayed longer than 90 days, either Party can terminate the Order with notice.
7.2. Force majeure events may include but are not limited to the following no matter whether they incur at Supplier or any of its sub-suppliers: (1) delays or refusals to grant an export license or the suspension or revocation thereof, (2) any other acts of any government that would limit the ability for performance consistent with the Agreement, (3) fires, earthquakes, floods, severe weather conditions, or any other acts of God, (4) quarantines or regional medical crisis’, (5) labor strikes or lockouts, and (6) riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property).
7.3. If a force majeure event causes a delay, then the date of performance will be extended by the period that the non-performing party is delayed or for any other period as the parties may agree in writing.
7.4. If Purchaser causes delay, Supplier is entitled to adjust price, schedule and other affected terms.
8. WARRANTIES
8.1. Supplier warrants to Purchaser that for Products at the time of deliver and for Services at the date of acceptance: (i) the Deliverable will be free from defects in workmanship and materials, and (ii) the Deliverable will comply with the agreed specifications. Deliverables in which there is no defect found will not be considered Nonconforming.
8.2. The warranty period is for Products twelve months upon delivery of the Product from Supplier to Purchaser and for Services twelve months upon acceptance of Services by Purchaser. This warranty period of twelve months shall not apply in the following cases: (i) fraudulently concealed defects (arglistiges Verschweigen eines Mangels), and (ii) defects for which a guaranty for the quality of the Deliverable (Beschaffenheitsgarantie) was given; in the case of claims for damages, this shall also not apply in the following cases: (i) personal injury (Verletzung von Leib, Leben oder Gesundheit), (ii) intention (Vorsatz), and (iii) gross negligence (grobe Fahrlässigkeit). Subsequent Performance will be affected by Supplier without acknowledgement of any legal duty (Anerkenntnis). For repaired Deliverables the remainder of the original Warranty Period shall run from the return of the repaired Product; the same shall apply for replaced Deliverables.
8.3. If during the Warranty Period hereunder a Deliverable shows a defect which already existed at the time of transfer of risk from Supplier to Purchaser and Purchaser notifies such defect to Supplier pursuant to section 3, Supplier will at its own choice repair the defect (Nachbesserung) or replace the defective Deliverable (Nachlieferung) (“Subsequent Performance”, Nacherfüllung). If Subsequent Performance fails, Purchaser shall be entitled to rescind the affected Order of Product or Service (Rücktritt) or in case of Services also remedy the defect himself and demand reimbursement for required expenses (Selbstvornahme), whereas the right to reasonably reduce the purchase price of the affected Order (Minderung) is excluded. Further-reaching claims for defects are excluded, without prejudice to any claims for damages under section 9.
8.4. This Limited Warranty shall not apply to ordinary or normal wear and tear resulting from use of the Deliverable during the Warranty Period or to improper use of the Deliverable. Supplier shall not assume any liability for defects caused by improper storage, effects of the climate or other circumstances not under RM’s control.
8.5. Purchaser shall provide Supplier with a detailed description of any claimed nonconformance and permit Supplier to preserve evidence, test the Deliverable, and investigate the cause thereof. Purchaser shall give Supplier prompt and continuing access to the Deliverable for inspection and testing, to the environment and location of the Product, and shall cooperate with Supplier by promptly furnishing all relevant information, data, test results, witnesses, and other information relative to any occurrence, accident or claimed Nonconformance in the Deliverable.
8.6. If Purchaser accepts a defective Service, even though he knows of the defect, he only has the rights under this section 8 if he reserves his rights regarding the defect when he accepts the Service.
9. LIMITATION OF LIABILITY
9.1. Supplier is only liable for damages caused by slight negligence (einfache Fahrlässigkeit) if such exist due to the breach of duties which are material for fulfilling the contract and on which the Purchaser relies and is entitled to rely on being fulfilled. In this case, the liability is limited to the damage which is typical and foreseeable.
9.2. Supplier is liable in accordance with statutory law (i) under the German Product Liability Act (Produkthaftungsgesetz), (ii) in case of fraudulently concealed defects (arglistiges Verschweigen eines Mangels), (iii) in case of defects for which a guaranty for the quality of the Product (Beschaffenheitsgarantie) was given, (iv) for personal injury (Verletzung von Leib, Leben oder Gesundheit) and (v) in the event of gross negligence and willful intent.
9.3. In all other cases the liability of Supplier shall be excluded irrespective of the legal basis.
9.4. The above limitations of liability shall also apply in the case of Purchaser’s claims for damages against an officer, executive, employee or agent of Supplier, if any.
10. SOFTWARE
10.1. If Software is included in an Order the Purchaser is only granted a nonexclusive license limited to such equipment and/ or location(s) as are specified in the Order or otherwise confirmed in writing by Supplier. No other use is permitted, and Supplier retains for itself (or, if applicable, its suppliers) all title and ownership to any software delivered hereunder. Without Supplier’s written consent Purchaser shall not attempt any sublicense, copy, amendment, reverse compilation or disassembly of software (save to the extent expressly permitted by law). Nor shall Purchaser except for back-up copies which need to be marked as such copy, disclose or display any such software, or otherwise make it available to others (except as Supplier authorizes in writing).
10.2. If not otherwise stated herein or in a written agreement with Supplier, Purchaser shall comply with the terms and conditions of Supplier ‘s license agreement for end-users as provided by Supplier (Endnutzer – Lizenzvereinbarung).
11. PATENT AND COPYRIGHT INDEMNITY
11.1. Purchaser shall notify Supplier immediately if a third party raised a claim against Purchaser arising out of any actual or alleged patent or copyright infringement of a valid patent or copyright, to the extent based on the Deliverable as delivered by Supplier. Supplier may then in its sole discretion decide whether it wishes to defend the claim at Supplier’s expense and indemnify Purchaser for any final judgment assessed against Purchaser resulting from such claim. In this case Purchaser shall be obliged to grant sole and complete authority to defend the claim to Supplier and Purchaser shall provide Supplier with all required information for the defense of the claim. Supplier will not be responsible for any waiver, acceptance, compromise, or settlement made without Supplier’s written consent. Supplier will have no obligation or liability with respect to: (a) Deliverables provided pursuant to Purchaser’s designs, drawings or manufacturing specifications; (b) Deliverables used other than for their ordinary purpose; (c) claims of infringement resulting from combining any Deliverable furnished hereunder with any article not furnished by Supplier; (d) use of other than the latest version of software Deliverable released by Supplier; or (e) any modification of the Deliverable other than a modification by Supplier.
11.2. Further, Purchaser agrees to indemnify and defend Supplier to the same extent and subject to the same restrictions set forth in Supplier’s obligations to Purchaser as set forth in section 11.1 for any suit against Supplier based upon a claim of infringement resulting from (a), (b), (c), (d) or (e) of the preceding paragraph unless Purchaser did not act culpable. Because Supplier has exclusive control of resolving infringement claims hereunder, in no event will Supplier be liable for Purchaser’s attorney fees or costs. If a claim is made against a Deliverable Supplier may, at its option, and at its expense, (i) procure for Purchaser the right to continue using the Deliverable; or (ii) replace or modify the Deliverable so that it becomes non-infringing. Further, if a claim of patent or copyright infringement is made against a Deliverable Supplier may cease shipping infringing Deliverables without being in breach of this Agreement. Any liability of Supplier under this Article is subject to the provisions of the “Limitations of Liability” Article of this Agreement. This Article states the parties’ entire liability, sole recourse, and their exclusive remedies with respect to infringement. All other warranties against infringement of any intellectual property rights, statutory, express or implied are hereby disclaimed.
12. CHANGE ORDERS
Either Party may make changes within the scope of an Order subject to acceptance by the other Party. Supplier will inform Purchaser if the change causes a price or schedule adjustment. The change will be effective, and Supplier may begin performance upon the Parties’ authorized signature of a change order.
13. INVENTIONS AND INTELLECTUAL PROPERTY
13.1. “Intellectual Property” means all copyrights, trademarks, trade secrets, patents, utility models and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations.
13.2. If not otherwise agreed in writing, no right, title or interest in Intellectual Property provided by Supplier is transferred to Purchaser under the Agreement, including Intellectual Property existing prior to, or created independently of, the performance of the Agreement. If not otherwise agreed in writing, all Intellectual Property and results of Services, including software, models, designs, drawings, documents, inventions, and know-how (“Inventions”), conceived or developed by Supplier in connection with the Agreement, are the sole property of Supplier and Purchaser assigns any rights it may have in such Inventions to Supplier.
14. CONFIDENTIAL INFORMATION
14.1. “Proprietary Information” means: 1) any information, technical data or knowhow in whatever form, including, but not limited to, documented information, machine readable or interpreted
information, information contained in physical components, maskworks and artwork, that is clearly identified as being confidential, proprietary or a trade secret, 2) business related information including but not limited to pricing, manufacturing, or marketing, 3) the terms and conditions of any proposed or actual Agreement between the Parties, 4) either Party’s business policies, or practices, and 5) the information of others that is received by either Party under an obligation of confidentiality. The receiving Party will keep all Proprietary Information disclosed hereunder confidential for a period of 7 years following the provision of the information or if the information was provided under any long-term Framework Agreement following expiration or termination of this Framework Agreement. Each Party will retain ownership of its Proprietary Information including, without limitation, all rights in patents, copyrights, trademarks and trade secrets. No right or license is granted hereby to either Party or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent, patent application or other Intellectual Property of the other Party, notwithstanding the expiration of the confidentiality obligations stated herein. Supplier agrees to use the Proprietary Information of Purchaser only to provide products or services for Purchaser. Purchaser agrees that it will not use or disclose Supplier’s Proprietary Information for any purpose besides the purchase or use of Products
14.2. The receiving Party has no duty to protect information that is proven to be: (a) publicly known at the time of disclosure or becomes publicly known through no fault of recipient, (b) known to recipient at the time of disclosure through no wrongful act of recipient, (c) received by recipient from a third party without restrictions like those in this section, or (d) independently developed by the receiving Party.
14.3. Any news release, public announcement, advertisement, publicity or any other public disclosure concerning this Agreement requires prior written approval of Supplier, which approval will not unreasonably be withheld.
15. DISPOSAL OF ELECTRONICAL DEVICES
15.1. After end of use Purchaser is obliged to dispose the Deliverables at its own cost. Purchaser shall indemnify Supplier from all obligations pursuant to Sec. 10 Para 2 ElektroG and related claims by third parties.
15.2. If Purchaser sells the Deliverable to third party entrepreneur (§ 14 BGB), Purchaser is obliged to agree a respective obligation to dispose the Deliverables at own cost with such third parties. If Purchaser does not comply with this obligation it is obliged to retract and dispose the Deliverable himself at its own cost.
15.3. Supplier claims under this clause 15 shall not become time-barred before lapse of two years as from end of use of the Deliverable. The two years period shall begin only on the date of receipt of a notification on the end of use by Supplier.
16. MISCELLANEOUS
16.1. Purchaser is responsible for compliance with all import, export, and re-export control laws and regulations and will mutually cooperate as needed.
16.2. Supplier may suspend Services at Purchaser’s expense if Supplier determines that performance of Services may compromise safety.
16.3. If any provision of the Agreement is determined to be illegal, invalid, or unenforceable, the validity of the remaining provisions will not be affected.
16.4. The failure of either Party to enforce at any time any provision of the Agreement may not be construed to be a continuing waiver of those provisions.
16.5. The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the Federal Republic of Germany, excluding its principles or laws regarding conflicts of laws. Application of the Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods of 1980, and any amendments or successors thereto is specifically excluded. If the parties are unable to resolve the disputes, the parties shall submit the disputes to the courts of Rüsselsheim, Federal Republic of Germany.
16.6. The Agreement contains the entire agreement between the Parties and any preprinted terms are excluded. Any terms on facility entry documents or other similar documents signed by Supplier after the Order date are not applicable. If there is any conflict in terms, the order of precedence is the License, any Addendum, the acceptance, the Agreement (excluding the Order), and then the Order.
16.7. Purchaser shall not assign any rights or obligations under this Agreement without the advance written consent of Supplier, which consent will not be unreasonably withheld. Supplier may assign this Agreement to any affiliate of Supplier or in connection with the sale or transfer of all or substantially all the assets of the product line or business to which it pertains to such party. Any attempt to assign or delegate in violation of this clause will be void.
Ruesselsheim, 06.07.2024
