The terms and conditions as set forth herein as well as any additional terms and conditions that may appear on the Customer Order shall constitute the entire agreement between Chemspeed Technologies (“Seller”) and Buyer. Seller will not be bound by any terms of Buyer’s order that are inconsistent with the terms herein. Acceptance by Buyer of these terms may be made either by written acceptance or by receipt by Buyer of delivery of any products purchased by Buyer (“Products”). The Agreement shall not be modified except in writing, signed by the parties hereto.
The order confirmation is binding with regard to the scope and design of the delivery. The Seller delivers the Product to a standard design and software with a version valid at the time of delivery. If the Seller manufactures the Product completely or partly to a special design on Buyer’s requirement, the production is in accordance with the requirements of the Buyer in which he has to specify the conditions and the resulting outcomes. Design alterations after order confirmation are permitted provided that the products affected thereby fulfill the same function after such alterations. In no event will Seller be obliged to carry out such design changes on Products already manufactured or delivered. Unless otherwise agreed upon in writing, title to all purchased Products is passed from Seller to Buyer at the time of shipment from Seller’s facility.
The Buyer is entitled to one copy of the user’s documentation in its standard design. The Seller has the right to charge for additional copies or documentation in languages not already available. Deviations in the documentation e.g. descriptions and figures are permitted, provided the documents fulfill their purpose.
The sale of the products hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents or patent applications or design copyrights the Seller may have covering the Products. Seller retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any Products supplied by Seller and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Seller in connection with the Products or with any and all Products developed by Seller as a result thereof, including the sole right to manufacture any and all such Products. Buyer warrants that it will not divulge, disclose, or in any way distribute or make use of such information, and that it will not manufacture or engage to have manufactured such Products.
The Buyer is obliged to give the Seller timely notice of special technical requirements as well as of the statutory, official and other regulations at the destination of delivery that are significant for the execution of delivery and the use of the Products.
Only delivery terms confirmed in writing are binding. Delivery dates will be extended under the following circumstances: ( i ) If information is required by the Seller for executing the order is not received in time or if the Buyer subsequently alters such information; ( ii ) If the Buyer is delayed in carrying out his contractual obligations, e. g. if he does not comply with the conditions of payment; ( iii ) In case of delays due to cause beyond the reasonable control of the Seller as provided in paragraph 9. The Seller has the right of partial deliveries.
The Buyer shall have the right to inspect the goods upon tender of delivery. Failure of the Buyer to inspect the goods and give written notice to the Seller of any alleged defect or nonconformity within thirty (30) days after tender of delivery shall constitute an irrevocable acceptance by Buyer of the goods delivered to him. Use of any such goods by Buyer, its agents, employees or licensees, for any purpose after delivery thereof, shall also constitute acceptance of the good by Buyer.
Except as otherwise specified herein, Seller warrants the Products: to be free from defects in material and workmanship and to perform in the manner and under the conditions as specified by Seller for a period of twelve (12) months from delivery. A limited warranty for glassware applies. Seller warrants that glassware products will be free from defects in construction, material and workmanship. Due to the nature of these Products, defects have to be reported to the Seller within fourteen (14) days after receipt of the Products. This warranty is the only warranty made by Seller with respect to the Products and no representative or person is authorized to bind Seller for any obligations or liabilities beyond the warranty in connection with the sale of Seller’s goods. This warranty is made to the original purchaser only at the original location and is nontransferable, and may only be modified or amended by a written instrument signed by a duly authorized officer of Seller. Goods or parts which are replaced or repaired under this warranty are warranted only for the remaining unexpired portion of the original warranty period applicable to the specific Product. These remedies are available only if Seller is notified in writing by Buyer promptly upon discovery of the defect, and in any event within the warranty period for Product and Seller’s examination of such goods disclosed to Seller’s satisfaction that such defects actually exist and the goods have not been (i) repaired, worked on, or altered by persons not authorized by Seller so as, in Seller’s sole judgment, to injure the stability, reliability, or proper operation of such goods; (ii) subject to misuse, negligence or accident; or (iii) connected, installed, used or adjusted otherwise that in accordance with the instructions furnished by Seller. All Products which Buyer considers defective shall be returned to Seller’s office as designated on the face hereof transportation costs prepaid and borne by Buyer, unless otherwise provided. The risk of loss of the goods shipped or delivered to Seller for repair or replacement will be borne by Buyer. If it is found that any Product has been returned without cause and is still serviceable, Buyer will be notified and the Product returned at Buyer’s expense. In addition, a charge for testing and examination may, in Seller’s sole discretion, be made on Products so returned. The forgoing warranty is exclusive and in lieu of all other warranties (except for specific written Product performance guaranties) whether written, oral or implied, including any warranty of merchantability or fitness for a particular purpose, and shall be Buyer’s sole remedy and Seller’s sole liability on contract or warranty or otherwise for the Product.
Seller will not be liable for any loss, damages or penalty resulting from delay in delivery of the Products when such delay is due to cause beyond the reasonable control of Seller, including without limitation, supplier delay, force majeure, act of God, labor unrest, fire, explosion or earthquake. In any such event, the delivery date will be deemed extended for a period equal to the delay. Seller’s liability under, for breach of, or arising out of this agreement and/or sale will be limited to repair or replacement of any defective Products or a refund of the purchase price of the Products, at Seller’s sole option, as set forth in paragraph 8 above. In no event will Seller be liable for costs of procurement of substituted Products by Buyer, nor will Seller be liable for any special, consequential, incidental or other damages including without limitation loss of profit whether or not Seller has been advised of the possibility of such loss however caused, whether for breach or repudiation of contract, breach of warranty, negligence or otherwise. This exclusion includes any liability that may arise out of third party claims against Buyer. The essential purpose of this provision is to limit the potential liability of Seller arising out of this agreement and/or sale.
The price of all Products unless otherwise specifically stated in this agreement is DAP. Where special domestic or export packaging is specified, involving greater expense, a charge will be made to cover such extra expense. Prices and orders do not include Federal, State or local excise, sales, use or other taxes. In the event Seller is required to pay any such tax, fee or charge at the time of sale or thereafter, the Buyer shall reimburse Seller therefore. Unless otherwise stated by seller in writing, all quotations are firm for, and expire, ninety (90) days after date thereof and constitute offers. Unless otherwise stated as part of this Agreement, the terms of the sale are net thirty (30) days from date of invoice. Seller reserves the right to require alternative payment term, including, without limitation, sight draft, letter of credit or payment in advance. Interest accrues on overdue invoices at the rate of four (4) percent above the applicable interest rate of the Swiss National Bank. If Buyer fails to make advance payment when requested by Seller, or if Buyer is or becomes delinquent in the payment of any sum due Seller, then Seller shall have the right, in addition to any other remedy to which it may be entitled in law or equity, to cancel the sales order, refuse to make further deliveries, and declare immediately due and payable all unpaid amounts for goods previously delivered to the Buyer. Partial shipments made under any order shall be treated as a separate transaction and payment thereof shall be made accordingly. However, in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting the rights under such order.
The Buyer is responsible for compliance with local and foreign export regulations. The re-export of certain Products of foreign origin is prohibited by the Seller ‘s obligation to the import and export regulations of the “Eidgenoessisches Volkswirtschaftsdepartment”. Re-exportation of such Products requires the permission of the related regulatory body. The Seller identifies such Products clearly in quotations and invoices whereby this obligation is transferred to Buyer.
Chemspeed complies with the provisions of the CH embargo in accordance with Council Regulation (CH) SR 946.231.176.72. Therefore, Article 14f of the Ordinance applies as follows:
(1) The Buyer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with this Agreement that fall under the scope of Article 14f of the Ordinance imposing Measures in Connection with the Situation in Ukraine (SR 946.231.176.72).
(2) The Buyer shall undertake its best efforts to ensure that the purpose of paragraph (1) is not frustrated by any third parties further down the commercial chain, including by possible resellers.
(3) The Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph (1).
(4) Any violation of paragraphs (1), (2) or (3) shall constitute a material breach of an essential element of this Agreement, and the Seller shall be entitled to seek appropriate remedies, including, but not limited to:
(i) termination of this Agreement; and
(ii) a penalty of 50% of the total value of this Agreement or price of the goods exported, whichever is higher.
(5) The Buyer shall immediately inform the Seller about any problems in applying paragraphs (1), (2) or (3), including any relevant activities by third parties that could frustrate the purpose of paragraph (1). The [Importer/Buyer] shall make available to the Seller information concerning compliance with the obligations under paragraph (1), (2) and (3) within two weeks of the simple request of such information.
If contracts between Seller and Buyer or the nature of the transaction not stand in the way, Buyer is allowed to sell the products, changed or unchanged. If Buyer disposes of the products, he must ensure that all duties resulting from software licenses, secrecy agreements, safety instructions (as stated in manuals and other technical documentation) as well as the possible approval conditions are transferred to Buyer.
Stenographic and clerical errors are subject to correction.
This contract shall be governed by and interpreted in accordance with the law of Switzerland. The state court of “Basel Land” will have exclusive jurisdiction and venue over any dispute arising out of this agreement, and Buyer hereby consents to the jurisdiction of such court.