ALLDSP GmbH & Co. KG
version 3.8, 6-11-2015
“Seller” means ALLDSP GmbH & Co. KG.
“Purchaser” means the person, firm or company specified in the Invoice, Proforma Invoice, Contract, Purchase Order, or Order, ordering or purchasing
the Goods and/or Services by the Seller. “Invoice”, “Proforma Invoice”, “Contract,” “Purchase Order,” or “Order” means the document bearing a unique
reference number detailing the Goods and/or Services to be supplied, the price thereof and other relevant details of the agreement for sale and purchase
to which these Terms and Conditions apply.
“Goods” means the equipment, materials and/or other items to be supplied pursuant to the relevant Proforma Invoice, Contract, Purchase Order, or
Order. “Services” means the production, installation, testing, engineering, or other agreed activity to be supplied pursuant to the relevant Invoice,
Proforma Invoice, Contract, Purchase Order, or Order.
“in writing” means on paper by traditional mail with return receipt, or in a clearly stated electronic text, document or scan by email with proof of reception.
A personal reply to an email is proof of reception; and automated reply (such as an out-of-office reply) is not.
a. Unless specifically agreed in writing to the contrary, these Terms and Conditions together with the Invoice, Proforma Invoice, Contract, Purchase
Order, or Order, and specifications, drawings and other documents incorporated in writing and agreed to by both parties shall constitute the entire
agreement and contract between the Seller and the Purchaser in respect of the purchase and sale of the specified Goods and/or Services. These
Terms and Conditions shall supersede and take precedence over any other terms or conditions as may be shown or referred to unilaterally in any
other correspondence or implied by trade custom practice or course of dealing and any such prior representations or understandings and any such
purported provisions to the contrary are hereby expressly excluded.
b. The Goods sold hereunder shall conform to Seller’s standard specifications in existence at the time delivery is made unless otherwise set forth in the
Contract, Purchase Order, or Order and agreed to in writing by both parties.
c. Each order is subject to acceptance by Seller. No order shall be deemed a contract until and unless Seller’s employee or representative makes
acceptance in writing. The Seller will accept the Contract at its office in Küferstrasse 18, 59067 Hamm, Germany and the Contract is deemed to have
been entered into regardless of the residence of the Purchaser or destination of the products or services contracted for herein.
d. Any special provisions must be set out in the Proforma Invoice, Contract, Purchase Order, or Order and agreed to in writing by the Purchaser and
e. The Contract is subject to all laws and regulations of any applicable agency of the German Government.
f. The commodities under the Contract may require German Government authorization for export to certain destinations, for use by certain end-users,
and/or for the purpose of a particular end use. When an export license is deemed necessary, the Purchaser shall provide on demand an End Use
Statement and incorporate it into the purchase contract. When commodities are exported under a license, the same may not be resold, diverted,
transferred, or otherwise be disposed of in any other country, either in their original form or after being incorporated through an intermediate process
into other end-items.
g. The Goods sold hereunder shall remain the full property of Seller until the full payment amount as stated in the Proforma Invoice, Contract, Purchase
Order, or Order has been received by Seller. If payment is not complete, Purchaser grants Seller the right to enter any building, room, or other
location where the goods are located and transport the goods to a warehouse to the choice of Seller. Seller will also invoice Purchaser for handling
and monthly storage fees at the current market rates. These charges will be invoiced separately and payment in full must be received prior to
shipment of the goods back to Purchaser. Warranty commences as though shipment has been made as specified on the Proforma Invoice, Contract,
Purchase Order, or Order.
a. Unless otherwise specified herein, prices quoted via any means other than a Proforma Invoice are not binding upon Seller. A quotation by the Seller
does not constitute a Contract.
b. Unless otherwise specified herein, prices quoted via a Proforma Invoice are binding upon Seller for 30 days from the date of quotation. A Proforma
Invoice constitutes a Contract when:
i. It has been returned to the Seller with the signatures of the Seller and the Purchaser on it, or:
ii. The Purchaser has made a (down-)payment for this Proforma Invoice to the Seller.
The Seller reserves the right to increase the price of the Goods and/or Services agreed to be sold in proportion to any increase of external costs to the
Seller between the date of acceptance of the order and the date of delivery (including, but not limited, those relating to exchange rates, transport and
taxes) or where the increase is due to any act or default of the Purchaser, including the cancellations by the Purchaser of part of any offer or order. Unit
prices apply only to the specific quantities and delivery schedule shown. Any variation in quantity, specifications and/or date of delivery may necessitate a
revision to the unit price. All prices quoted are EXW (Küferstrasse 18, 59067 Hamm Germany), excl. VAT unless explicitly stated otherwise. ALLDSP
GmbH & Co. KG and/or any of subsidiaries reserve the right to revise prices for any Goods and/or Services. Quoted prices will be honored if an order is
received prior to revision of these prices, or prior to the expiration of a valid quotation outstanding at the time of the price change. Subsequent orders for
the same equipment are subject to the revised or newly announced prices. All prices are exclusive of all sales, use and other taxes, duties, or charges,
domestic or foreign. Purchaser shall pay or upon receipt of invoice from Seller, shall reimburse Seller for all such taxes, duties, or charges levied or
imposed on Purchaser or required to be collected by Seller resulting from this transaction or any part thereof.
5. Terms of Payment.
Unless otherwise agreed in the specific offer or order, the Purchaser will forward a 50% down payment with order and shall make final payment of the
purchase price prior to shipment of the goods or at time of invoicing for services rendered. If the Purchaser delays manufacture, payment shall be made
based on the order price and percent of completion. Purchaser shall be liable for the price of all products substantially conforming to the order,
notwithstanding that the Purchaser may not have accepted or may have revoked acceptance of it. Approval of credit for one or more deliveries or orders
shall not be deemed a waiver of the provisions of this paragraph. Seller may at any time and from time to time, in its sole discretion, limit or cancel the
credit of the Purchaser as to time and amount and, as a consequence, may demand payment in cash before delivery of any unfulfilled portion of this
Contract, and failure of the Purchaser to make any such payment within 10 days after demand shall constitute default under the Contract. Purchaser
hereby represents to Seller that it is now solvent and agrees that each acceptance of delivery of the products sold hereunder shall constitute reaffirmation
of this representation. If, in the judgment of Seller, the financial condition of Purchaser at any time does not justify continuance of production or shipment
on the terms of payment originally specified, Seller might upon ten (10) days notice, require full or partial payment in advance, regardless of the payment
terms originally specified. In the event of bankruptcy or insolvency of Purchaser, Seller may cancel any order then outstanding and receive
reimbursement for its cancellation or termination liability charges.
a. Each shipment shall be considered a separate and independent transaction and payment made accordingly. Seller reserves the right to ship to its
order and make collection by sight draft, with bill of lading attached. Prior to shipment, payment may be effected via electronic wire transfer to the
bank account of ALLDSP GmbH & Co. KG as specified in the Proforma Invoice, Contract, Purchase Order or Order.
b. If the order is deemed to be a non-standard product, extends beyond 90 days to manufacture and ship, and/or the order exceeds $250,000, then
progress payments over the course of the delivery time period will be required and specified in the Contract.
c. All amounts past due shall bear interest at the rate of 1% per month, or any lower amount (required by law), from the date due until paid.
d. Purchaser agrees to pay legal fees incurred by Seller to collect any unpaid balance due or to otherwise enforce the rights of Seller hereunder by
legal proceedings or otherwise.
e. If Purchaser delays shipments, Seller will also invoice Purchaser for handling and monthly storage fees at the current market rates. These charges
will be invoiced separately and payment in full must be received prior to shipment. Warranty commences as though shipment has been made as
specified on the Proforma Invoice, Contract, Purchase Order, or Order.
f. Unless otherwise agreed in writing, any invoices sent by Seller to Purchaser are subject to inspection by Purchaser for correctness. Discrepancies
must be reported in writing by Purchaser to Seller within 14 days of receiving the invoice, after which the invoice is deemed to be accepted by Purchaser. Failure to inspect will constitute acceptance.
a. Delivery time quoted is Seller’s best estimate and shall begin at acceptance of the Contract and Purchaser’s down payment. Seller shall not be liable
for any delay in performance or inability to perform occasioned by any Force Majeure conditions beyond its control or beyond the control of its
suppliers or subcontractor.
b. Unless otherwise specifically provided, delivery of the Goods shall be made EXW (Küferstrasse 18, 59067 Hamm, Germany), at which time the title
and risk of loss shall pass to the Purchaser, notwithstanding the fact that Seller may have selected the Carrier. Seller shall in no way be responsible
for the safe arrival of the shipment. Title shall also pass to Purchaser regardless of any provisions for payment of freight or insurance by Seller.
c. In any case where Goods are sold on the basis of any other international trade term, the meaning of such term contained in INCOTERMS (2000)
shall apply as if expressly incorporated herein except insofar as any part of the same may be inconsistent with any of the provisions contained in
d. In the case that the Contract involves more than one delivery, and default is made in payment on the due date, the Seller shall have the right to
suspend all or any further deliveries pending payment or to terminate the Contract in its entirety by notice in writing to the Purchaser.
e. If Purchaser delays shipment, Seller may invoice, warranty commences and payments are to be made as though shipment has been made as
f. In the event Purchaser delays shipment(s), Seller will also invoice Purchaser for handling and monthly storage fees at the current market rates.
These charges will be added to the corresponding invoice and payment in full must be received prior to shipment.
7. Cancellation and Returned Goods.
The Purchaser may cancel an order only upon written notice sixty (60) days prior to shipment, and upon payment to Seller of all reasonable cancellation
and/or termination liability charges. Orders which are canceled prior to shipment, if standard products, are subject to a minimum 50% payment for those
items already in production or in finished goods inventory awaiting shipment to Purchaser. Orders which are canceled prior to shipment, if those items are
“special” or “custom” items designed or modified to the Purchaser’s specifications, are essentially non-cancelable for that portion in production or in
finished goods inventory awaiting shipment to the Purchaser, and are subject to full recovery costs and profit or an agreed payment in accordance with a
termination liability payment schedule. Orders that are canceled less than 60 days before shipment or that are cancelled after shipment to Purchaser,
whether standard or special, remain subject to payment in full and will be delivered as agreed in the Contract.
8. Packaging and Shipping.
a. Unless otherwise specified, prices are quoted exclusive of shipping, taxes, duties, or other charges. Equipment shall be shipped in standard
commercial packaging for truck or air transport only. Export packing (sea container or air) will be quoted upon request. When special or export
packaging is required or requested, the cost of the special packaging will be separately invoiced to Purchaser. Unless otherwise stated, the EXW
(INCOTERMS 2000) point is Küferstrasse 18, 59067 Hamm, Germany.
b. Unless expressly prohibited by the Contract, partial shipments shall be accepted.
c. Unless agreed in writing prior to shipment, Purchaser shall have sole control and discretion with respect to mode of transportation, routing and any
other matters connected with, related to or involved in transportation of the Goods, otherwise Seller may accept these responsibilities.
d. Shipping dates specified herein or otherwise communicated to Purchaser are approximate only. Seller does not and shall not guarantee any shipping
date unless such guarantee and the terms thereof are specifically agreed to in writing. Any such guarantee shall be strictly limited to the exact terms
Unless otherwise agreed in writing, the Goods are subject to Seller’s standard inspection and/or testing at place of manufacture. Purchaser may inspect
the Goods and/or witness testing at the place of manufacture or delivery or at such other place as Seller, in its sole discretion, shall designate, and
Purchaser’s consequent approval or rejection of the Goods must be made prior to shipment or, if Purchaser inspects the Goods at the place of delivery,
within 8 days after the delivery date. Purchaser’s failure to inspect will constitute acceptance. Where Purchaser has inspected the Goods prior to
shipment, Purchaser shall have no right whatsoever to inspect, reject or revoke its acceptance of the Goods after shipment. Purchaser is responsible for
any charges associated with witnessed testing beyond the normal level of activity for routine test activities, as defined on the Proforma Invoice, Contract,
Purchase Order, or Order.
10. Delay and Force Majeure.
The Seller shall not be liable for delays in performance of its obligations and the date on which the Seller’s obligations are to be fulfilled shall be extended
for a period of time caused by the delay when the delay was due to causes beyond the Seller’s control and not due to its fault or negligence, which Force
Majeure causes include but are not limited to, the following:
a. Acts of God, unforeseeable circumstances, acts (including delay or failure to act) of any governmental authority (De Jure or De Facto), wars
(declared or undeclared), riot, revolution, hijacking, fires, strikes, labor stoppage, sabotage, epidemics, prohibition of import or export of goods or
products, and interruptions of essential services and supplies such as electricity, natural gas, fuels and water.
b. Inability due to causes beyond Seller’s reasonable control to timely obtain from subcontractor necessary and proper materials, components, facilities,
products, parts, or sub-assemblies.
Partial failure of performance due to any of the aforementioned causes shall not in itself terminate this Contract or excuse any failure by Seller to resume
all obligations. In the event Seller is affected in the performance of its obligations by any of the aforementioned causes, it shall give the Purchaser prompt
written notice of that fact together with satisfactory evidence substantiating that said cause prevents performance, as well as a declaration specifying the
steps being taken by the Seller to remove such cause of nonperformance and to minimize its effects, and shall continue the performance of its other
obligations under this Contract.
11. Description and Data.
a. Goods and/or Services will be supplied substantially as described in Seller’s applicable brochures and data sheets. The right is reserved to make
design changes which however will not lower the performance of the Goods, or increase the price. Where the Seller is not the manufacturer, Goods
and/or Services will be those supplied to the supplier/manufacturer’s current specification and data sheets.
b. The Seller shall make every effort to ensure the accuracy of technical data or literature relating to the Goods, but the Seller (so far as permitted by
law) accepts no liability in contract, tort or otherwise for any damage or injury arising directly or indirectly or in consequence of any error or omission
in such technical data or literature.
c. It shall at all times be the Purchaser’s responsibility to ensure that the Purchaser’s specifications are correct and/or sufficient for the use intended by
the Purchaser and the Purchaser must satisfy itself on this point.
Seller warrants the items ordered hereunder at the time of shipment to be free from defects in material, workmanship, and to conform to the contract
specification. Seller’s liability under this Warranty shall terminate one (1) year after date of acceptance, date of shipment, or, in case Purchaser delays
shipment, the date Seller has made the goods available for shipment, whichever comes first. Written notice of any defects shall be given Seller upon
discovery (including description of the defects, number of defect products, and purchase date of said products), and Seller shall promptly correct such
defects by repair, reimbursement of purchase cost, or replacement, at its option, without charge, either EXW Seller’s plant or service in the field. In no
event shall seller´s liability under this warranty exceed the purchasing cost of the defective products or the cost of repair or replacement of such defective
item, whichever is lower, and under no circumstances shall seller be liable for special or consequential damages.
Specifically excluded from this Warranty are:
a. Defects or nonconformance caused by and resulting from improper operation, maintenance, or storage of the equipment.
b. Items of characteristically indeterminate life, such as bulbs, fuses, etc.
THIS WARRANTY CONSTITUTES SELLER’S SOLE AND EXCLUSIVE LIABILITY HEREUNDER AND BUYER’S SOLE AND EXCLUSIVE REMEDY
FOR DEFECTIVE OR NONCONFORMING ITEMS AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS IMPLIED OR STATUTORY
(INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
13. Patent and Copyright Indemnification.
If Purchaser receives a claim that any product or part thereof manufactured by Seller, or its subcontractor, infringes a patent or copyright, Purchaser shall
notify Seller promptly in writing and give Seller all available information, assistance and exclusive authority to evaluate, defend and settle such claim.
Seller shall then, at its own expense and option, either (1) settle such claim, (2) procure for Purchaser the right to use such product, (3) replace or modify
the product to avoid infringement, (4) remove it and refund the purchase price less a reasonable amount for depreciation, or (5) defend against such
claim. The rights and obligations of the parties with respect to such patents and copyrights are solely and exclusively as stated herein. The patent and
copyright obligations cited above are in lieu of all other patent and copyright warranties whatsoever, whether oral, written, express or implied.
14. Sales Conveys no License.
The sale of the Goods covered by this Contract does not convey any license, expressly or by implication, estoppel or otherwise, under any patent,
copyright, or proprietary interests covering any equipment, assembly, system, circuit, combination, method or process in which such products may be
used, notwithstanding the fact that such products may have been designed for use in, or may in any way be useful in such patented or copyrighted or
proprietary equipment assembly, system, circuit, combination, method or process or may have been purchased and sold for such use. Seller expressly
reserves all its rights under such patents, copyrights, or proprietary interests and Purchaser agrees to respect and protect such rights.
15. License and Consents.
If any license or consent of any government or other authority shall be required for the acquisition or use of the Goods by the Purchaser, the Purchaser
shall obtain the same at its own expense and if necessary or so required shall produce evidence of the same to the Seller on demand.
16. Limitations of Liability.
Seller’s liability of any claim of any kind including negligence, for any loss or damage arising from, connected with, or resulting from this Contract, or from
the performance or breach thereof, or from the design, manufacture, sale, delivery, installation, inspection, operation or use of any equipment covered by
or furnished under this Contract, shall in no case exceed the purchase price of the Goods which gives rise to the claim. In no event, whether as a result of
breach of contract, or warranty, or negligence, or other alleged action, shall seller be liable for special, punitive, indirect, incidental, or consequential
damages including, but not limited to loss of profits or revenue, loss of use to the equipment or an associated equipment, cost of capital, cost of substitute
equipment, facilities or services, downtime costs, or claims of customers of the purchaser for such damages.
The responsability to register as a manufacturer of purchased products in the context of the European WEEE regulations lies exclusively with
The Seller reserves the right to sub-contract at its discretion any part of the work or the supply of any Goods and/or Services for which the Seller provides
The Seller may at its option terminate any Proforma Invoice, Contract, the Purchase Order, or Order placed upon the happening of one or more of the
following events: a. The Purchaser is in breach of any obligation to the Seller and such breach where capable of remedy be not remedied following the
expiry of fifteen (15) days from the date of notification from the Seller to the Purchaser specifying such breach; or b. If the Purchaser becomes bankrupt;
or if a receiving order is made against the Purchaser; or the Purchaser shall pass a resolution or enter into a Deed of Company Arrangement with its
creditors; or the court shall make an order that the Purchaser shall be wound up; or if a receiver shall be appointed for any of the assets or undertaking of
the Purchaser; or if circumstances shall arise which entitle the court to make a winding-up order; or if the Purchaser takes or suffers any similar action in
consequence of debt.
The failure by either party to the Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right
or operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
Any notice required or permitted to be given hereunder may be given by certified mail, personal delivery, e-mail, or facsimile. Noticed sent by certified
mail shall be deemed to be served seventy-two (72) hours after placement into the airmails, postage prepaid to address. Notice given by e-mail or fax
shall be deemed to have been received on the date, in normal course, it would be delivered. Until changed by written notice, given by either party to the
other, the contact information of the parties shall be as specified in the applicable Contract, Purchase Order or Order.
21. Governing Law.
This Contract shall be construed according to German law. Any legal action including actions to enforce the Arbitration Decision will be brought in the
courts within the federal state Nordrhein-Westfalen, Germany.
All disputes in connection with the Contract or the execution thereof shall be settled through friendly negotiations. In case no settlement can be reached,
the case may then be submitted for arbitration. The Arbitration shall take place in Hamm or any other site mutually agreed upon by the parties, and the
decision of the Arbitrator(s), appointed in accordance with governing rules, shall be final and binding upon both parties; neither party shall seek recourse
to a law court or other authorities to appeal for revision of the decision. Arbitration fee shall be borne by the losing party. In the course of arbitration, both
parties shall continue to execute the present Contract except those issues under arbitration.
23. Export Licensing/ITAR Representation
The Purchaser agrees to comply with all applicable German export and import laws and regulations. Notwithstanding anything that may be to the contrary
herein, the Purchaser’s obligation to adhere to Geman export and import laws and regulations shall survive the expiration or termination of this
24. Government Terms and Conditions Applicable.
a. If the articles of work hereunder relate to a contract with the German Government and the applicable Government Contract number is shown on
Purchaser’s request for a proposal or on the order form, the clauses listed, appearing or referred to in the indicated paragraphs, or applicable
portions thereof, of the applicable procurement regulations are incorporated herein and are a part of these conditions. These clauses supersede any
of the preceding clauses relating to the same subject to the conditions of Paragraphs b and c below, all references to “Contractor” shall mean Seller
and all references to “the Government,” “the Contracting Officer” or equivalent expressions, shall mean Purchaser in lieu thereof, if necessary and
appropriate to make the context of the clauses conform to the Contract.
b. Audit – Except as otherwise required by federal statute, if any audit or examination of Seller’s books and records is applicable to the Contract,
whether relating to performance or termination of the work, or both, it shall be made only by the specified Government Agency representative.
c. Experimental Work – Unless otherwise agreed in writing by Seller, it is agreed that the Contract does not involve any type of experimental,
developmental or research work as one of its purposes.