1) General -The terms and conditions
contained herein represent the entire and only Agreement between the
parties. Any conditions imposed on
Seller by Buyer shall not form part of the Agreement unless incorporated into
the Agreement in writing and signed by both parties.
2) Acceptance- The offer contained in this
Quotation demonstrates an intention to be bound by Seller and must be accepted
in full by the Buyer within the time frame stated in the quotation. Acceptance of the offer by telephone will be
binding on Buyer, but Seller reserves the right to require acceptance in
writing, in which case acceptance is binding on Buyer once the written
acknowledgement is received by Seller.
3) Price- The price contained in this
offer is the price in effect at the time the order is received by Seller in
4) Taxes / Duties -
Prices do not include any taxes or duties, which are the sole responsibility
of Buyer. Any amount required to be
collected by Seller from the Buyer shall appear as a separate line item on the
invoice or billed separately to Buyer.
5) Terms of Payment – All payments are to be made
in full to Seller by electronic wire transfer within 30 days of the invoice
date. Where Buyer is not equipped to pay
by wire transfer, Buyer agrees to reimburse Seller for any costs associated
with processing alternate forms of payment.
6) Delivery – Unless specified by Buyer
and agreed to by Seller, time shall not be of the essence for delivery. Seller shall advise Buyer at the time of acceptance
of the estimated date on which the goods are to be shipped. All deliveries shall be made ex works
Avestin Europe GmbH. Buyer shall
compensate Seller for any costs associated with storage of the goods where
delivery is delayed by Buyer.
7) Force Majeur – Buyer and Seller shall be
relieved of their obligations under this Agreement in the case of unforeseeable
and irresistible events that prevent the performance of said obligations. A mere delay in performance shall not qualify
under this section, unless time is deemed to be of the essence. The party wishing to rescind the Agreement
under this section must advise the other party of its intention to do so in
writing within two weeks of the event occurring, or in the case of a recurring
event, from the first day the event occurred.
Where either party rescinds the Agreement under this section, the
parties must be restored to the condition they were in prior to entering into
the Agreement.
8) Warranties -
Seller warrants only to the
original Buyer that the goods sold are free from defects that are not
commercially acceptable and are fit for the purpose for which similar equipment
would normally be used. Unless agreed to
in writing and signed by both parties, Seller does not warrant the suitability
of the goods for any particular purpose of Buyer. Buyer must inspect the equipment at its own
expense within a reasonable time after delivery and report any defects to
Seller immediately in writing. Where
defects are latent, they must be reported immediately upon being discovered by
Buyer. For clarity, certain parts wear
at various rates depending on the application of Buyer. Such normal wear and tear is not covered
under this warranty. Seller shall, at
its option, repair or replace any parts deemed to be defective free of charge
after a written request by Buyer to do so and inspection of the parts by
Seller. This warranty shall run for a
period of twelve months from the date of delivery or 500 hours of operation,
whichever is shorter. Seller’s liability
for parts manufactured by a third party shall be limited to the extent of any
warranties between Seller and third party.
This warranty shall be void where Buyer fails to report defects within a
reasonable time, attempts to repair or alter the equipment itself or causes the
equipment to be repaired or altered by a third party not authorized by Seller.
9) Repairs not covered – Any repairs not covered by
the warranty in the preceding section may be contacted for by the parties under
a separate agreement. Seller reserves
the right to charge a fee for these services.
10) Indemnity – Buyer shall indemnify and hold Seller
harmless for all claims arising from damages resulting from the use or
operation of the goods sold because of the improper repair, maintenance or operation
of the goods by Buyer, the failure of Buyer to adequately train personnel in
the operation of the goods, Buyer’s failure to comply with local regulations or
otherwise. As the equipment is
capable of producing very high fluid pressures, it is Buyer’s responsibility to
ensure that all operators have been properly trained in the use, operation and
maintenance of the equipment.
11) Patents - If after the time of acceptance
it is found that the goods sold infringe or violate patent or other
intellectual property rights registered in the European Union, Seller may at
its option either acquire the rights on behalf of Buyer to use the equipment,
modify or replace the goods so as not to infringe the right, or to accept the
return of the goods and restore Buyer to the condition it was in prior to the
formation of the Agreement. Seller shall
have the right to conduct any legal proceedings commenced against Buyer
resulting from claims of intellectual property infringement as they relate
directly to the goods sold. Seller shall
have no liability for intellectual property infringement in the products of
Buyer through the use of its equipment, nor for any infringements resulting
from modifications made to the goods by Buyer.
12) Intellectual Property - Seller retains ownership of all
intellectual property rights attached to the goods sold, as well as to any
products developed in the course of or arising from work for Buyer. Buyer shall not assert any claims to these
rights. All brochures, manuals and other
literature provided to Buyer remain the property of Seller, shall be held in
confidence by Buyer and shall not be used in a manner detrimental to the
business of Seller.
13) Subsequent Improvements – Seller may make improvements
in design or otherwise to its equipment without creating a duty to improve or
upgrade goods previously sold to Buyer.
14) Limitation of Action – Any action for a breach of
warranty as detailed in section 8 of this Agreement shall be commenced within
twelve (12) months of the breach or within such other maximum time as
prescribed by law, whichever is longer.
Attempts by Seller to repair the equipment shall not serve to extend the
limitation period beyond the twelve month period, nor shall they extend the
warranty period beyond the original twelve months.
15) Installation - Buyer shall be solely responsible
for the installation of the equipment and shall bear of the costs thereof. Buyer may request the equipment be installed
by Seller and Seller reserves the right to charge a fee for such installation.
16) Applicable Law – This Agreement shall be
governed in accordance with the laws of
17) Entire Agreement - This document represents the
entire agreement between the parties and may not be modified except in
writing. Seller reserves the right to
modify these terms at any point prior to acceptance by Buyer, provided such
modifications are delivered in writing.
18) Language – This Agreement has been
drafted in English at the request of the parties. Any discrepancies arising between this
Agreement and a translation in another language shall be resolved in favour of the English text.
Cet accord a été écrit en anglais à la requête des
parties. Toutes différences entre la
version anglaise et celle d’une autre langue seront resolues
en faveur de la version anglaise. Auf Wunsch
der Teilnehmer wird dieser Vertrag
auf Englisch geschrieben. Unterschiede zwischen dem Englischen Text und einer Űbersetzung werden mit dem
Englischen Text aufgeklärt.