General Terms and Conditions of Sale
1.1 PROTEM USA LLC is the “SELLER” for all transactions contemplated herein. Any person or entity purchasing or offering to purchase goods or services from the SELLER is referred to herein as the “BUYER”. Products sold by the SELLER, and all services on the products performed by the SELLER shall be referred to as the “Products”. The SELLER and the BUYER 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 the SELLER’s Products. The General Terms and Conditions shall apply exclusively to all current and future transactions which are concluded with Buyers of the SELLER´s products or services. These General Terms and Conditions take precedence over any terms and conditions of the BUYER.
1.3 Orders received by Buyers shall constitute a contractual offer. This shall also apply if the SELLER has previously provided the BUYER with price quotations, price lists or a document defined as an offer. Such offers shall also be deemed to have been made subject to the SELLER´s General Terms and Conditions.
1.4 The SELLER´s offers are provisional inasmuch as they contain no written indication to the contrary. Associated documents such as leaflets, illustrations, drawings as well as such products and services represented on the Internet are not binding for the SELLER, unless they are confirmed by the SELLER as being binding. The SELLER shall only accept orders in written form. The SELLER shall supply the Products and/or the services defined in the offer to which the BUYER referred while placing its order in writing.
1.5 Electronically transmitted orders must be in the form of secure documents. This shall also apply to order amendments of any type.
1.6 Contracts are not deemed to be accepted until the SELLER´s written acknowledgement of order has been made.
1.7 The SELLER’s sale of any and all Products to the BUYER is expressly made conditional upon the BUYER’s agreement and acceptance on these General Terms and Conditions set forth the sole and exclusive agreement (the “Contract”) between the SELLER and the BUYER, and shall supersede all prior agreements, understandings and representations, whether oral or written.
Export: If the Products are sold for export, which means outside of the United States of America, the supplementary and specific SELLER’s following clause for export sales apply:
- Acceptance of export orders is not valid unless a written confirmation by the SELLER is received by the BUYER,
- The BUYER and the SELLER expressly agree that the provisions of the U.N. Convention on the Sale of Goods (C.I.S.G.) are herewith excluded,
- The BUYER, NOT THE SELLER, is responsible for compliance with all United States export control rules and regulations, that is why the BUYER cannot resell or deliver the Products into a prohibited country,
- The BUYER shall not name the SELLER as shipper or exporter of record in connection with the export of any Products purchased from the SELLER.
1.8 The General Terms and Conditions and the contractual documents are provided in English. In the case of existing translations in other languages, the English version shall prevail and be binding.
2.1 Unless otherwise agreed in writing by the SELLER, the delivery shall be made EX WORKS Evergreen (Colorado, USA) INCOTERMS 2020 at the SELLER’s warehouse or such other location as the SELLER, in its sole discretion, may from time to time designate.
2.2 The transfer of risk to the BUYER shall apply when the Products are notified as being available at the SELLER’s premises for shipment, which shall also apply in the case of carriage-free deliveries. The BUYER bears cost and risk if the export clearance and/or if the loading operation are carried out by the SELLER (notably the risk of any loss of or damage to the Products).
2.3 In the absence of specific agreement between the Parties, the choice of route and method of shipping shall be made in accordance with the SELLER´s judgement and exclude all liability.
2.4 The delivery periods agreed with the SELLER shall only commence following complete clarification of all details of the order and when the Parties have reached agreement upon the conditions of the order. The delivery and the performance dates or periods indicated on any document furnished by the SELLER to the BUYER are approximations only, are subject to change without notice, and shall not operate to bind the SELLER to ship or deliver the Products on the dates or within the periods indicated, unless expressly agreed to by the SELLER in writing as being binding.
2.5 The delivery or the performance dates are subject to change for any cause which interferes with the SELLER’s production, supply or transportation of the Products, including, but not limited to any event of Force Majeure as defined below. The delivery period shall be appropriately extended - also in the case of arrears - in the event of Force Majeure and all other unanticipated hindrances which the SELLER cannot be accountable for, inasmuch as such hindrances can be proved to have substantial influence upon manufacture or dispatch of the Products to be delivered. This shall also apply should such events originate from the SELLER´s suppliers.
2.6 The delivery period shall be deemed to have been fulfilled if readiness to deliver has been communicated by the SELLER within the corresponding deadline, or if the Products have left the SELLER´s works.
2.7 Postponement of deliveries, if requested by the BUYER and including the storage of the Products by the SELLER will cause the storage to be invoiced during its duration.
2.8 The SELLER shall only be deemed to be in arrears after a grace period of at least thirty (30) days granted by the BUYER has expired, unless a specific delivery date has been expressly agreed with indication of the calendar day concerned.
2.9 Liability claims and performance of the Contract by a third party at the SELLER’s expenses and risks by the BUYER with respect to impossibility to perform and arrears are expressly excluded.
2.10 The SELLER shall be entitled to perform part deliveries. These shall be deemed to constitute partial fulfilment of the contract. In that respect, a withdrawal from the Contract by the BUYER shall be excluded.
2.11 In the event that the SELLER makes partial shipments, fails to comply with designated delivery dates, or otherwise fails to perform its obligations for reasonable shipment or delivery of the Products in accordance with any time limits set forth herein, the SELLER shall not incur any liability whatsoever for any direct, indirect, consequential, incidental or special damages (including damages for lost profits or BUYER’s customer’s claims arising out of, or relating to, changes in delivery dates, partial shipments or untimely performance) which may be incurred by the BUYER, even if the SELLER was aware of or had been advised of the possibility of such loss or damage.
2.12 In the event that dispatch of the Products to a common carrier at the designated delivery location should be delayed for any reason beyond the SELLER’s control, risk of loss shall pass to the BUYER at the time that the Products are set aside for dispatch to the common carrier or are in some other way marked by the SELLER. However, at the BUYER’s written request and sole cost and expense, the SELLER shall take out reasonable insurance coverage on the Products.
The provisions 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 they will be used or in the BUYER’s factory. However, the SELLER shall continue to be obligated to deliver the Products in accordance with the provisions of these General Terms and Conditions.
2.13 Should delivery be delayed at the fault of the BUYER, the transfer of risk to the BUYER shall already be effective from the announcement of readiness to dispatch. The SELLER shall be entitled to store the Products at its discretion at the cost and risk of the BUYER and insure the Products against all risks.
2.14 Should delivery not be possible within a reasonable time the SELLER shall be entitled to withdraw from the Contract. All claims by the BUYER shall confine themselves to the repayment of possible advance payments for undelivered Products.
2.15 Compliance with the SELLER´s delivery obligations shall require timely and proper fulfilment of the BUYER's corresponding obligations in this respect. If the BUYER delays acceptance of delivery or negligently infringes any other obligation to cooperate, the SELLER shall be entitled to demand compensation for all loss and damage so incurred, including any additional costs. The SELLER shall retain the right to bring further claims. If the prerequisites for invoking this provision exist, the risk of accidental loss or accidental damage of the purchased Products shall be transferred to the BUYER at the moment in which the BUYER falls into arrears regarding acceptance of delivery or payment.
2.16 Should transport insurance be taken out by the SELLER, claims for damage shall be limited to the amount refunded by the insurer. The BUYER shall be obliged to advise documented transport damage both to the carrier and to the SELLER and to leave the damaged Products in the condition as supplied pending release by the SELLER.
2.17 All returned Products, if the SELLER expresses in writing its firm acceptance of a return, are subject to fifteen (15) % restocking fees.
2.18 Generally speaking, the SELLER may terminate the Contract in case of a non-performance or an imperfect performance of the Contract by the BUYER.
3.1 Unless otherwise agreed and confirmed by the SELLER in writing, its prices shall be applicable loaded free ex works excluding packing, freight, insurance and VAT where applicable. These additional costs shall be billed accordingly to the BUYER. 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.
3.2 Unless a different time period is stated or agreed to by the SELLER in writing, a written price quotation shall be valid for thirty (30) calendar days from the date of such quotation, but is subject to change at any time thereafter prior to shipment of the Products.
3.3 Prices stated in price lists, advertisements, catalogues or other materials, and other information on prices furnished by the SELLER are subject to change without notice, and are not binding unless so stated by the SELLER in writing.
3.4 If, due to a change of circumstances which couldn’t have been foreseen upon conclusion of the Contract, performance of the Contract becomes excessively costly for the SELLER in case of change in circumstances, it can request the BUYER to renegotiate the Contract. If the BUYER refuses to renegotiate or if the Parties fail to reach a new agreement, then the SELLER can decide to terminate the Contract. The changes in circumstances include the following ones, but are not limited to them: law or regulation changes, increase in SELLER’s costs in a substantial way, technological change.
3.5 The machine associated equipment, spare parts, reserve parts and consumables are charged to the BUYER and are not included in the prices of the machines themselves.
3.6 Minimum order and order fees: All orders concerning the machine associated equipment, spare parts, reserve parts or consumables are subject to a minimum order value of one hundred (100) USD excluding tax. Under that minimum order amount, additional administrative fees of thirty (30) USD excluding tax are charged to the BUYER.
3.7 Unless otherwise agreed in writing, the SELLER reserves the right to submit separate invoices to the BUYER for each partial shipment. If the BUYER defaults in any of its payment obligations in regard to any partial shipment, the SELLER may suspend any additional partial shipments until the BUYER has paid any and all outstanding invoices to the SELLER.
4. Terms of Payment
4.1 The BUYER shall pay to the 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 upon issuance of the invoice.
4.2 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 it is drawn. The discounting of any invoices and/or checks shall be at the 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 charged to the BUYER’s account. Notwithstanding the receipt of checks and drafts, the SELLER shall at all times be entitled to demand payment of the original amount against the return of the checks or drafts.
4.3 If the SELLER at any time has reasonable grounds to believe that the financial condition of BUYER at such time may jeopardize the BUYER’s ability to perform its obligations under the Contract, the SELLER may demand in writing from the BUYER an adequate assurance of BUYER’s due performance, and, until the SELLER receives such assurance, it may require commercially reasonable cash payments, immediate payment of the entire balance, or additional security satisfactory to the SELLER, or all of the foregoing, before fulfilling the obligations of the SELLER. The SELLER may cancel the underlying Contract if the BUYER fails to provide such assurance within a reasonable time but in any event if such failure extends beyond thirty (30) days after the BUYER’s receipt of SELLER’s justified demand for assurance or if the BUYER is subject to a general suspension of payments or insolvency proceedings affecting its assets. The receipt and acceptance by the 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.
4.4 If the BUYER 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 the BUYER fails to make any payment when due, the BUYER shall be in default without the SELLER having any obligation to send a special payment reminder. If the BUYER is in arrears (defined as payment not received by the SELLER), the SELLER shall be entitled to invoice the Buyer with late payment penalties at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law. Interest on overdue amounts shall be calculated from the original payment due date. In the event that the BUYER defaults in its obligations, the BUYER shall be liable for SELLER’s costs of collection, including reasonable attorney’s fees.
5. Reservation of Title
5.1 The SELLER maintains ownership of Products sold until their cost has been settled in full. Failure to pay at any due date will lead to an immediate claim on Products and studies. If the BUYER resells Products sold under reservation of title in the course of its normal business, it must then take all due care to hold harmless the SELLER concerning any obligation it may have with respect to the subsequent purchaser.
5.2 These measures do not constitute an obstacle to transferring any risks of loss or deterioration of the Products sold to the BUYER on delivery, as well as any damage that they may cause. In the event of any claims made on the Products by the SELLER or any definitive return of them to the SELLER for any reason, an estimate of repair costs will be made according to the damages, contaminations, missing parts or improper repairs of the Buyer or of any third, which, together with any costs related to returning of Products to the SELLER (including transport costs) and disassembling the Products, will be entirely at the BUYER’s expense. Compensation may be made to the SELLER with amounts already received.
6.1 The BUYER agrees to consider all documents and information emanating from the SELLER as being strictly confidential and not to divulge, sell or transfer any such information to any third party, copy or save to its own data storage systems, unless:
- The SELLER has given its prior written agreement, or
- Required by law or any legal or administrative decision not subject to appeal.
This obligation to maintain confidentially shall remain in force even after the Contract has terminated and shall expire only when, if, or insofar as the plans, drawings, calculations and other production technology-related documents supplied enter the public domain. The burden of proof shall be on the BUYER in this respect.
6.2 The information is not considered as being confidential when the BUYER is able to provide evidence that the information concerned:
- Has become public property on account of third party acts in no way attributable to the BUYER,
- Has been lawfully received from a third party without any infringement to the present conditions,
- Has been developed independently by the BUYER beforehand and in all good faith.
The BUYER agrees to keep strictly confidential any information, which it may have received.
7. Intellectual Property
7.1 All technical documents and information communicated by the SELLER are protected by the law and the international agreements on intellectual property. A sale or any unavailability of goods during and after the performance of the Contract do not grant any intellectual property rights to the BUYER, except if it is stipulated in writing in the acknowledgment of order.
7.2 The SELLER shall maintain title, copyright and intellectual-property rights to all images, drawings, calculations and other documents. The SELLER will always retain its exclusive intellectual-property rights to them. This provision shall not only apply to documents designated "confidential". The SELLER may at any time demand that documents so supplied be reissued, without any entitlement to exercise a right of retention in this respect.
8. Force Majeure
Circumstances which hinder a party’s performance (and, with respect to the SELLER, including but not limited to circumstances which hinder the performance of the 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 a notice of termination of the Contract, whereupon the Contract shall terminate. The SELLER shall not be liable to the BUYER, 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 a reason of the occurrence of Force Majeure.
9. Warranty - Disclaimer
9.1 The 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.
The Products are guaranteed as follows: machines chassis / housing for a period of twelve (12) months after their date of delivery and any other machine part for a period of six (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 three (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. The terms of the warranty do not apply to consumables.
The warranty is dependent on the signing and completion of the SELLER’s warranty information form and submission thereof to the SELLER within ten (10) calendar days after the delivery of the Products. If any failure to conform to this warranty is reported to the SELLER during the Warranty Period, in writing and in reasonable detail, the SELLER upon being satisfied of the existence of such non-conformity, will correct the same within a reasonable period of time by, as the SELLER in its sole discretion shall elect, repairing or causing the repair of the Products or by delivering replacement Products to the BUYER. Except for the warranty provided above, the Products are provided, with no other manufacturer’s warranty, and the 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.
9.2 The BUYER is not allowed to request a third party to perform any part of the Contract at the SELLER’s expenses and risks.
9.3 The BUYER is liable for the acts and omissions by its employees and/or operators during the use of the Products provided by the SELLER.
9.4 All Products information in the SELLER’s brochures, price lists, advertising or other materials shall not be deemed to make any warranty, express or implied. Any samples furnished by the SELLER to the BUYER 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 the SELLER with reference to the use of its Products is provided free of charge, the SELLER assumes no obligation or liability for the advice given or results obtained, and all such advice is accepted at the BUYER’s sole and absolute risk. The SELLER reserves the right to proceed to modification of the products or update documents, notably in order to keep in conformity with the latest technological developments and legislative or statutory measures, without obligation of prior notice to the BUYER and without any alteration of the warranty conditions as stipulated above.
9.5 Complaints concerning the SELLER´s deliveries shall be made by the BUYER in writing immediately upon arrival of the Products at the place of delivery or at the latest within five (5) calendar days. Otherwise no warranty claims shall be entertained. This shall not apply to defects that are not discernible despite thorough examination. In such cases a complaint must be made immediately upon discovery in writing, and in any event within ten (10) calendar days of such discovery.
9.6 The BUYER cannot refuse the delivery of the Products in case of minor defects which do not render them unsuitable for use. Indeed, 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.
9.7 The SELLER shall be entitled, but not required, to, inspect the Products as well as any equipment and/or items of the Products they are installed in.
10. Limitation of Liability - Exclusions of Warranty and Damages - Limitation of Claims
The BUYER agrees and acknowledges that any and all actions to the Products by the BUYER or any other third party, even if expressly authorized by the SELLER, are made at the BUYER’s sole risk and liability.
To the fullest extent permissible by law, the 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. This limitation of liability applies even if the SELLER has been advised of the possibility of such damages and prejudices.
Moreover, in the following cases, the warranty provided by the present General Terms and Conditions is excluded and, in consequence, does not cover damages or defects that arise:
- If raw material, parts or faulty design-work is provided by the BUYER;
- If the Products were operated/stored in abnormal use conditions;
- If the Products were repaired, modified or altered;
- If the Products were subjected to abuse, neglect, electrical fault, improper packaging and storage, accident or acts of nature;
- If the Products were installed improperly;
- If the maintenance of the Products was not ensured properly;
- If the Products were used under abnormal mechanical or environmental conditions;
- If the Products were used with insufficient or excessive electrical supply;
- If the serial numbers of the Products are erased or missing;
- If the parts concerned are consumables;
- If the functional defect results from an intervention carried out on the Products without written authorization from the SELLER;
- If, following delivery in unassembled-form, the Products have not been fitted by the BUYER as per the recommendations supplied in the assembly instructions or have undergone modifications without the SELLER’s written approval;
- If defective operation can be attributed to:
- A case of Force Majeure;
- The Products’ normal wear and tear;
- A negligence and/or an error in maintenance made by the BUYER or the end-user of the Products;
- A use contrary to instructions supplied by the SELLER (acquisition, commercialisation and use of the SELLER Products 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);
- A use of spare parts, reserve parts, consumables not manufactured by the SELLER, or parts that are different from those originally supplied.
Moreover, before the BUYER uses or installs the Products or electrical products, it is the BUYER’s liability to consult the national electric code and any pertinent local, state or national codes, rules or regulations for approved installation procedures and precautions. The SELLER does not guarantee that the Products it sells conform to any plans and specifications or intended use. When plans and specifications are involved, the BUYER is solely responsible for verifying the SELLER’s interpretations of such plans and specifications, and it is the BUYER’s sole liability to assure that SELLER’s Products will be accepted on any specific job. When the SELLER offers substitute Products on any proposal, the BUYER is solely responsible for confirming their acceptability.
Any action for breach of the Contract, including but not limited to any breach of warranty, must be commenced within one (1) year from the date the breach occurred.
11. Worker Safety
11.1 It is the BUYER’s liability to instruct its employees in how to safely use the machinery and equipment supplied by the SELLER. The BUYER must ensure that its employees know how to comply with the safety instructions given, understand them and possess the required skills to operate the machinery and equipment. The BUYER must also ensure that every machine is used for the purpose and under the conditions specified by the SELLER.
11.2 The BUYER has to take into account the local, state and federal laws and regulations related to safety of the workplace for which it has sole liability.
The BUYER is not allowed to approach or hire a SELLER’s employee for a period of one (1) year after the termination of the contract concluded with the SELLER.
13. Applicable Law – Arbitration Clause
13.1 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.
13.2 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.
14. Miscellaneous Provisions
14.1 Should any individual provision of these General 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.
14.2 The BUYER agrees to defend, indemnify, and hold the 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 the SELLER in connection with, or as a result of the BUYER’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.
14.3 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 the SELLER.
PROTEM USA LLC July 2020