General Sales Conditions
1.1 PROTEM USA LLC is the “Seller” for all transactions contemplated herein. Any person or entity purchasing or offering to purchase goods from Seller is referred to herein as the “Purchaser”. Products sold by Seller, and all services on the products performed by the Seller shall be referred to as “Products”. Seller and Purchaser together constitute the “Parties”.
1.2 These general terms and conditions of sale (“General Terms and Conditions”) apply to all quotations, orders and contracts for Seller’s Products.
2. Controlling Provisions
Seller’s sale of any and all Products to Purchaser is expressly made conditional upon Purchaser’s agreement to and acceptance that these General Terms and Conditions set forth the sole and exclusive agreement (the “Contract”) between Seller and Purchaser, and shall supersede all prior agreements, understandings and representations, whether oral or written, between the parties. Such agreement and acceptance shall be deemed given unless Purchaser notifies Seller in writing of its objection to any term or condition stated herein within ten (7 10) business days following Purchaser’s receipt of (i) Seller’s written sales acknowledgement or order confirmation, or (ii) the Products, whichever is earlier. The conditions contained herein shall take precedence over any other conditions and no contrary, additional or different provisions or conditions shall be binding on seller unless expressly accepted by seller in writing. In the case of sales outside of the United States of America, Purchaser and Seller expressly agree that the provisions of the U. N. Convention on the Sale of Goods (C.I.S.G.) are herewith excluded.
3.1 Delivery shall be made ex works Seller’s warehouse or such other location as Seller, in its sole discretion, may from time to time designate. Delivery shall be complete when Seller places the Products at the disposal of Purchaser at Seller’s designated location.
3.2 Delivery and performance dates or periods indicated on any document furnished by Seller to Purchaser are approximations only, are subject to change without notice, and shall not operate to bind Seller to ship or deliver the Products on the dates or within the periods indicated, unless expressly agreed to by Seller in writing as being binding. Delivery or performance dates are subject to change for any cause which interferes with Seller’s production, supply or transportation of the Products, including, but not limited to any event of Force Majeure (as defined below). Unless otherwise expressly agreed in writing, Seller reserves the right to make partial shipments of the Products.
3.3 in the event that seller makes partial shipments, fails to comply with designated delivery dates, or otherwise fails to perform its obligations for reasonable shipment or delivery of products in accordance with any time limits set forth herein, seller shall not incur any liability whatsoever for any direct, indirect, consequential, incidental or special damages (including damages for lost profits or purchaser’s customer’s claims arising out of, or relating to, changes in delivery dates, partial shipments or untimely performance) which may be incurred by purchaser, even if Seller was aware of or had been advised of the possibility of such loss or damage.
4.1 Unless a different time period is stated or agreed to by Seller in writing, a written price quotation shall be valid for thirty (30) days from the date of such quotation, but is subject to change at any time thereafter prior to shipment of the Products addressed thereby.
4.2 Prices stated in price lists, advertisements, catalogues or other materials, and other information on prices furnished by Seller are subject to change without notice, and are not binding unless so stated by Seller in writing.
4.3 Freight, insurance, packing and any such costs incurred with respect to the Products are not included in the price unless expressly otherwise agreed in writing by the Parties. In addition, any governmental sales, use, value added or similar taxes which are assessed against the Products or in connection with the Sale of the Products are not included in the price unless otherwise agreed in writing by the Parties.
4.4 Unless otherwise agreed in writing, Seller reserves the right to submit separate invoices to Purchaser for each partial shipment. If Purchaser defaults in any of its payment obligations in regard to any partial shipment, Seller may suspend any additional partial shipments until Purchaser has paid any and all outstanding invoices to the Seller.
5. Passing of Risk of Loss
5.1 Except as otherwise provided herein, risk of loss or damage shall pass to Purchaser when Seller places the Products at the disposal of a common carrier at Seller’s production site or delivery depot, for shipment to Purchaser, (including, but not limited to those cases in which partial deliveries are made), or such other location as Seller may designate. At Purchaser’s express written request and at its sole cost and expense, the Products shall be insured by Seller against damage. In the event that the Products are damaged in transit, Purchaser shall report the same to the responsible authorities without delay, and shall undertake all other measures necessary to maintain the claims on an insurer and/or forwarder.
5.2 In the event that dispatch of the Products to a common carrier at the designated delivery location should be delayed for any reason beyond Seller’s control, risk of loss shall pass to Purchaser at the time that the Products are set aside for dispatch to the common carrier or are in some other way marked by Seller. However, at Purchaser’s written request and sole cost and expense, Seller shall take out reasonable insurance coverage on the Products.
5.3 The provisions above regarding the passing of risk of loss shall also apply in those cases in which more work is still to be carried out on the Products to be delivered at the site at which it is to be used or in Purchaser’s factory. However, Seller shall continue to be obligated to deliver the Products in accordance with the provisions of these Terms and Conditions of Sale.
6. VI. Terms of Payment
6.1 Purchaser shall pay to Seller the invoice price of the Products sold hereunder, in full and without any deduction or offset. Unless otherwise agreed in writing, full payment shall be due within thirty (30) days of the issuance of the invoice.
6.2 Payment shall not be deemed to have been made unless and until the check or other payment instrument has been paid by the bank on which drawn. The discounting of any invoices and/or checks shall be at Seller’s discretion subject to express agreement and always in payment of the full debt and under the precondition that they may possibly be discounted or cashed. Bank charges shall be for Purchaser’s account. Notwithstanding the receipt of checks and drafts, Seller shall at all times be entitled to demand payment of the original account against the return of the checks or drafts.
6.3 If Seller at any time has reasonable grounds to believe that the financial condition of Purchaser at such time may jeopardize Purchaser’s ability to perform its obligations under the Contract, Seller may demand in writing from Purchaser adequate assurance of Purchaser’s due performance, and, until Seller receives such assurance, it may require commercially reasonable cash payments, immediate payment of the entire balance, or additional security satisfactory to it, or all of the foregoing, before further performance by Seller. Seller may cancel the underlying Contract if Purchaser fails to provide such assurance within a reasonable time but in any event if such failure extends beyond thirty (30) days after Purchaser’s receipt of Seller’s justified demand for assurance. The receipt and acceptance by Seller of partial payment shall not constitute a waiver of any of Seller’s rights set forth herein or provided by law, including, without limitation, the right to cancel.
6.4 If Purchaser is in arrears in making any payment, all outstanding accounts (including, without limitation, those from other deliveries and services) shall become due and payable immediately without any deductions, even if an extension of the payment period has already been granted. The same shall apply if checks or drafts are dishonored. If Purchaser fails to make any payment when due, Purchaser shall be in default without Seller having any obligation to send special payment reminder. If the Purchaser is in arrears, Seller shall be entitled to invoice Purchaser a late payment charge of four (4) percent above the prime bank rate on all past due accounts from that point in time onward (or, if such rate is prohibited by law, the maximum rate allowed by law) in the event that Purchaser defaults in its obligations hereunder, Purchaser shall be liable for Seller’s costs of collection, including reasonable attorney’s fees.
7.1 Seller warrants that the Products shall be free from defects in workmanship and materials under normal use and service for a period of twelve (12) months from the date of shipment of the Products (“Warranty Period”) unless otherwise specified. Ordinary wear and tear shall not be considered a defect in workmanship or materials.
Goods are guaranteed as follows: machines chassis / housing for a period of 12 months after their date of delivery and any other machine part for a period of 6 months after their date of delivery, on condition that they are used solely for the applications and with the capacities, for which they have been built and that their maintenance has been performed routinely and properly. The above mentioned periods are not valid for parts containing electronic components, in which case the guarantee period will last for 3 months after the date of delivery. Similarly, the period may be adjusted depending on the environmental conditions to which components of all types may be subjected.
This warranty is dependent on the signing and completion of Seller’s warranty information form and submission thereof to Seller within ten (10) days after delivery of the Product. If any failure to conform to this warranty is reported to Seller during the Warranty Period, in writing and in reasonable detail, Seller upon being satisfied of the existence of such non- conformity, will correct the same within a reasonable period of time by, as Seller in its sole discretion shall elect, repairing or causing the repair of the Product or by delivering a replacement Product to Purchaser except for the warranty provided above, the products are provided, with no other manufacturer’s warranty, and seller hereby disclaims any and all other warranties, express or implied, with respect to the products, including without limitation any implied warranties of merchantability and fitness for a particular purpose. There are no warranties which extend beyond the description on the face hereof.
7.2 The warranty provided by these Standard Terms and Conditions does not cover damages or defects that arise, are caused by or result from (i) unauthorized alternations, repairs, or maintenance of the Products, (ii) negligence, accident, misuse, or improper, unsuitable or abnormal usage of the Products, (iii) failure to conform strictly to Seller’s specifications in connection with the installation, operation, maintenance or repair of the Products, (iv) unauthorized modification of the Products, or (v) exposure of the Product to unreasonable temperature or conditions, including but not limited to any vandalism, riots, or explosions. In the event that the Products are altered, modified or repaired by Purchaser or any other third party without the prior written approval of Seller, all warranties hereunder shall be terminated and of no effect. Purchaser agrees and acknowledges that any and all modifications to the Product, even if expressly authorized by Seller, are made at Purchaser’s sole risk and responsibility. Seller shall be entitled, but not required to, inspect the Products as well as any equipment and/or items of products they are installed in.
7.3 Purchaser covenants and agrees to instruct its employees and agents in the appropriate methods of installation, repair, maintenance and use of the Products in conformity with the Seller’s Product specifications, recommendations, and installation instructions.
7.4 All product information in Seller’s brochures, price lists, advertising or other materials shall not be deemed to make any warranty, express or implied. Any samples furnished by Seller to Purchaser are solely for the purpose of evaluating the suitability of such material or potential use and, as such, are not intended to serve as warranties of any type, either express or implied. It is expressly understood that if any technical advice furnished by Seller with reference to the use of its Products is provided free of charge, Seller assumes no obligation or liability for the advice given or results obtained, and all such advice is accepted at Purchaser’s sole and absolute risk.
7.5 Purchaser shall report to Seller in writing, in reasonable detail, all defects or non-conformities of a Product, within ten (10) working days of delivery. Purchaser shall notify Seller of any latent defects promptly upon discovery.
7.6 Tolerances or variations normal in the trade with regard to dimensions, quantities, weight, quality, color, etc. shall not warrant justification for complaints under this Warranty.
8. Limitation of Liability/Exclusion
of damages/limitation of claims to the fullest extent permissible by law, seller shall not be liable for any consequential, special or incidental damages including but not limited to lost profits), whether based upon breach of warranty or contract, tort, use or operation of the products, or any other legal theory or grounds, and including without limitation the failure of any warranty remedy to achieve its essential purpose. Moreover, the warranty is excluded if
- The product was operated/stored in abnormal use conditions,
- The product is repaired, modified or altered,
- The product was subjected to abuse, neglect, electrical fault, improper packaging, accident or acts of nature,
- The product was installed improperly,
- The maintenance of the product was not ensured properly
- The product was used under abnormal mechanical or environmental conditions,
- The product was used with insufficient or excessive electrical supply
- The serial number of the product is defaced or missing
- The terms of the warranty do not apply to consumables
- If the functional defect results from an intervention carried out on the goods without written authorization from PROTEM,
- If, following delivery in kit-form, the equipment has not been assembled by the BUYER as per the recommendations supplied in the assembly instructions or has undergone modifications without PROTEM’s written approval,
- If defective operation can be attributed to:
- A case of force majeure; the goods’ normal wear;
- Negligence and/or an error in maintenance made by the BUYER or the end-user of the goods; use contrary to instructions supplied by PROTEM (acquisition, commercialisation and use of PROTEM goods implies knowledge and understanding of their characteristics and conditions of use in compliance with safety instructions. The BUYER is responsible for familiarizing itself perfectly with these characteristics, complying with them and informing all users thereof.),
- Use of spare parts, reserve parts, consumables not manufactured by PROTEM or parts that are different from those originally supplied.
Moreover, before purchaser uses or installs the products or electrical products, it is purchaser’s responsibility to consult the national electric code and any pertinent local, state or national codes, rules or regulations for approved installation procedures and precautions. Seller does not guarantee that the Goods it sells conform to any plans and specifications or intended use. When plans and specifications are involved, Purchaser is solely responsible for verifying Seller’s interpretations of such plans and specifications, and it is Purchaser’s sole responsibility to assure that Seller’s Goods will be accepted on any specific job. When Seller offers substitute Goods on any proposal, Purchaser is solely responsible for confirming their acceptability.
8.1 Any action for breach of the Contract, including but not limited to any breach of warranty hereunder, must be commenced within one (1) year from the date the breach occurred.
9. Applicable Law – Arbitration Clause
9.1 These General Terms and Conditions and the Contract, shall be governed by, and construed in accordance with, the laws of the state of Colorado, expressly excluding this state’s or any other jurisdiction’s conflicts of law principles.
9.2 any controversy or claim arising out of or relating to the interpretation of these general terms and conditions, and the contract, or the negotiations or the breach thereof, shall be settled by arbitration in Denver, Colorado, and shall be performed in accordance with the arbitration rules of the American Arbitration Association (“AAA”) by a single arbitrator to be selected in accordance with the AAA rules. any judgment upon the award rendered by such arbitration may be entered in any court having jurisdiction thereof and such arbitration shall be binding and the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees, costs and expenses incurred by the prevailing party in connection with such arbitration.
10. X. Miscellaneous
10.1 Should any individual provision of these Standard Terms and Conditions be deemed invalid or unenforceable, the invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions hereof, and such remaining provisions shall remain in full force and effect.
10.2 Export: If Goods are sold for export, Seller’s standard terms & condition for export sales apply. Acceptance of export orders is not valid unless confirmed in writing by Seller. Purchaser, NOT Seller, is responsible for compliance with all United States export control rules and regulations. Purchaser shall not name Seller as shipper or exporter of record in connection with the export of any Goods purchased from Seller.
10.3 Purchaser agrees to defend, indemnify, and hold Seller harmless from any and all third parties’ claims, liabilities, demands, suits, judgments, damages, fines, penalties, and any associated cost and expenses, including but not limited to consequential damages and attorney's fees which may be asserted against or incurred by Seller in connection with, or as a result of Purchaser’s breach of any warranty or covenant contained in these General Terms and Conditions, the handling, labeling, transportation, storage, use, modification, alteration, disposal, or any unauthorized activity relating to the Products.
10.4 Circumstances which hinder a party’s performance (and, with respect to Seller, including but not limited to circumstances which hinder the performance of Seller’s suppliers), or which impair or delay a party’s performance and are beyond such party’s reasonable control, including, without limitation, civil unrest, war, strike, lock-out or other industrial disturbance, shortages of power or raw materials, flood, severe weather, fire, calamity or natural disaster, or official interference or changes in law (collectively, “Force Majeure”), shall not excuse either party from the performance of its obligations or duties under the Contract, but shall merely suspend such party’s performance obligations during the continuance of such impending circumstances; provided, however, that should such circumstances prevent performance by either party for a period of at least ninety (90) consecutive days, either party shall have the right to deliver to the other party notice of termination of the Contract, whereupon the Contract shall terminate. Seller shall not be liable to the purchaser, the end user or any related party for any direct, indirect, consequential, incidental, special, punitive, exemplary or other damages arising out of or relating to the suspension or termination of any of its obligations or duties under the contract by reason of the occurrence of force majeure.
10.5 The intellectual property rights in all products, software, drawings, devices and services, and in all related copyrights, patent rights, trademark rights or proprietary rights, shall be and remain the Seller sole and exclusive property.
10.6 These General Terms and Conditions may not be modified, amended, waived, superseded or rescinded except in a writing signed by a duly authorized representative of Seller.