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Terms & Conditions XL-Technologies

 

                                                                                                                           April 2010

TERMS AND CONDITIONS OF SALE

 

"Any and all sales by Seller of products ("Products") shall be subject to all the terms and conditions set forth below. No other General Terms and Conditions that may be referred to in Buyer's orders shall apply, even if these have not been rejected explicitly by Seller. These terms constitute a rejection of and counter-offer to any terms offered by the buyer. Buyer’s order and purchase of the products and services shall constitute acceptance of these terms."                                                                                                                             

                                                                                                                             

1.DELIVERY                                                                                                          

Seller will do its reasonable efforts to comply with the confirmed delivery times. However, delivery dates set forth in any order acknowledgement are not binding and Seller accepts no responsibility for any delay. Unless otherwise stipulated in the order acknowledgement, Products are sold ex-Seller's premises (loaded onto arriving vehicle). Upon written request from Buyer transport insurance will be arranged by Seller at Buyer's cost. Products shall be delivered in Seller's standard package unless otherwise agreed upon.                                                                                                          

"The trade terms (such as ex-Seller's premises) shall be interpreted according to the Incoterms 2000 as published by the International Chamber of Commerce, which are made a part hereof (the "Incoterms")."                                                                                                                 

 

2. TITLE & RISK                                                                                                                      

2.1 Title to the Products shall pass to Buyer after the price thereof has been paid in full to Seller. Until Buyer has obtained title to the Products, Buyer shall ensure that the Products in its possession shall at all times be readily identifiable by Seller as Seller's property on Buyer's premises. At Seller’s request, Buyer shall execute all documents and do all acts which may be necessary or desirable to enforce the retention of title by Seller in Buyer’s country.                                                                            

2.2 Regardless of any retention of title by Seller, the risk of damage to or loss of the Products sold or any portion thereof shall in any event pass to Buyer as from the moment the Products have been delivered to Buyer in accordance with the agreed upon Incoterm.

                                                                                         

 3. PRICES                                                                                                             

Buyer shall pay to Seller the agreed upon price for the Products, without any deduction or reduction whatsoever, except as may be agreed upon by Seller in writing.                                                                                                                               

4. TAXES/DUTIES                                                                                                                   

4.1 Any taxes, duties, excises and other charges, including without limitation VAT, now or henceforth levied in connection with the sale of the Products shall be borne by Buyer, except for those taxes and duties, which are payable by Seller prior to the delivery of the Products pursuant to the agreed upon Incoterm.µ

4.2 In the event Buyer takes care of exporting the Products out of Seller’s country, Seller reserves the right to charge VAT, which will be credited upon receipt of valid proof of arrival of the Products in the country of destination.

 

5 .INVOICING - PAYMENT – DEFAULT                                                                 

5.1 "Seller shall invoice Buyer, and Buyer shall pay to Seller, the price of the Products in USD ("$") as agreed in the payment & Incoterms. "

5.2 Buyer shall pay Seller's invoices within the period stipulated in the Payment & incoterms, but in no event later than 30 days as from the date of Seller's invoice.                                                                                           

5.3 If payment has not been made upon due date, Buyer shall owe Seller default interest at the rate of 1,25% per month on any overdue amounts.  The default interest shall also be due during any extension of the agreed upon payment term which either may have been granted by Seller to Buyer or is awarded to Buyer by a court decision. Payment of such interest on arrears shall not entitle Buyer to delay payment of the principal amount. The extension of the payment term shall in no event result in novation.                                                                                                          

Notwithstanding Buyer may have been granted or awarded an extension of the payment term, Seller, subject to a prior written notice to Buyer, may apply a surcharge of 10% on the overdue amount, with a minimum of $75, to compensate Seller for increased administration costs, expenses (including reasonable attorney fees) to collect of the overdue amounts.                                                                                                        

"In addition, non-payment of an invoice on the due date shall without summons automatically nullify the payment terms and any extension of the period which Seller may have granted for payment of deliveries already effected and shall render all invoices payable immediately.  Moreover, in such circumstances and in the event Buyer becomes insolvent or his credit becomes impaired in the reasonable opinion of Seller, Seller shall have the right to change with immediate effect the payment conditions then in effect to "cash in advance" or to request Buyer to furnish adequate security with no formalities other than a notification by registered letter. If Buyer fails to comply with Seller's new payment terms or is unable to provide satisfactory security, Seller may, at its option, suspend further deliveries or cancel all current orders for Products until full payment or until satisfactory security has been received by Seller. Any claim by Buyer shall not entitle Buyer to delay or withhold payment of the overdue amounts."                                                                                              

 

6.CURRENCY FLUCTUATIONS


If on the date of payment of the invoices the official mid-rate of exchange between the USD and the currency invoiced to the Buyer, as fixed daily by the European Central Bank in Frankfurt, differs by more than 1 percent from the exchange rate between the two said currencies on the date of 

Seller’s order acknowledgement, Seller shall have the right to adjust the sales price accordingly. Buyer shall obtain the necessary permits from its exchange authorities to enable implementation of this cause                                                                                             

                                                                                         

7.  FORCE MAJEURE                                                                                            

Neither party is liable to the other for default or delay in the performance of any of its obligations hereunder due to Acts of God, fires, explosions, strikes, riots, civil or international wars, invasions, refusal by Governments to grant import or export licenses or the cancellation thereof, inability to obtain Products and/or raw materials and/or components because of Force Majeure at the producing location, or a contingency of a supplier of goods and services, etc. or any other similar or dissimilar cause beyond the reasonable control of either party.                 

                                                                                                           

8. WARRANTY                                                                                                                                                                                                                 

8.1 Supplied hardware products are warranted against defects in materials and workmanship for one year (12 months) from date of acceptance.                                                                                                                            

The date of acceptance shall be :
                                                                                                                             

(i)               "at the date of signature of the ‘On-Site Acceptance’ (OSAT); “Factory Acceptance Test” (FAT), or "                                    

(ii)              "as soon as the Customer and/or any other party occupies or operates the system; or "                                                                          

(iii)             three (3) months after shipping (bill of lading date), whichever occurs first.                                                                             

All software products are licensed to Customer under the terms of the manufacturer for a period

1 year from the date of delivery. Software is inherently susceptible to bugs and errors.  For a period

of one year, the supplied software will perform substantially in accordance with the accompanying

written materials, and the medium on which the software product is recorded will be free from defects in materials and workmanship under normal use and service. Any replacement of a licensed software product will be warranted for the remainder of the original warranty period or thirty days, whichever is longer.                                                                                                                             

8.2 The Warranties shall apply only to the extent the Products or any part thereof have                                                                                                            

(i)               "been handled and stored by the Customer, pending the installation thereof, in the original packaging in the conditions as specified by the seller (such as covered and secure location, minimum temperature, maximum humidity) or, in absence thereof, with such a degree of the care and caution and at least in conditions consistent with generally accepted practice for the type of products in question; "      

(ii)              "been "normally used" for the intended purpose and operated in strict accordance with the operating instructions set forth in the Products' operating manual and shall not have been otherwise misused, abused, damaged.  For the purpose of this Agreement, "normally used" is defined as regular, ordinary and routine usage of the System as intended and/or recommended by the seller. "

(iii)             "been operated by skilled personnel who followed the Seller’s training and , as to software, by personnel who are conversant and accustomed with working with computers and software; "                                                                                                           

(iv)             "been maintained at all times in accordance with Seller’s instructions or, in absence thereof, at least with intervals and in a manner consistent with generally accepted practice for the type of products in question; or"                                                      

(v)              "not been connected to or used in combination with other products or equipment (hardware and/or software), which have not been approved by the Seller; or"                                                                                                    

(vi)             not been accessed, altered, modified, repaired by a third party which is not authorized by the Seller.                                                   
                                                      

8.3 In no event shall Seller be liable, whether during or after the expiration of the Warranty Period for any defects, failures, loss of or damage to the Products or any part thereof which are caused by or resulting from (i) wear and tear or (ii) any force majeure event referred to in Article 7 above, or (iii) Buyer’s use or operation of the Product prior to the performance of Seller’s acceptance test(s) for the Product in question, or (iv) any action or negligence on the part of Buyer or any third party (including without limitation Buyer's employees, customers, agents, carriers and contractors). In such case the repair or replacement of the Product or any part thereof shall be at Buyer's sole option and cost. Any Product or any part thereof which is entirely manufactured by third parties, is subject to the original manufacturer's warranty and no separate warranty is given in respect thereof by Seller                                                                                                                           

8.4 Any claim under the Warranties must be notified to Seller in writing (registered letter) within 8 days from the date the defect or failure has been discovered or noticed the first time.                                                                                                              

8.5 In no event shall Buyer return a defective Product or part thereof to Seller without Seller's prior written approval.                                       

Prior to returning any defective Product or part thereof to Seller, Seller shall, in common consent with Buyer, determine whether the repair or replacement of the defective Product shall be carried out at either the location where the Product is installed or at Seller's facility.                       

In the event the return to Seller of the defective Product is authorized by Seller, Seller shall issue to Buyer a RAN (Return Authorization Number).

The one-way cost of packing, transport and insurance related to shipping the alleged defective Product or part to Seller for repair or replacement shall be borne by Buyer. The one-way cost of packing, transport and insurance related to shipping of the repaired or replacement Product or part to Buyer shall be borne by Seller.                                                                                                                           

The travel time and the travel and living expenses of a service engineer of Seller to the location where the alleged defective Product is installed, shall be charged to and paid by Buyer in accordance with Seller's current rates and procedures.                                                                                        

8.6 The remedies specified in this Article 8 shall constitute Buyer's sole and exclusive remedy and Seller's sole and exclusive liability for Seller’s breach of the Warranties hereunder.                                                                                          

8.7 Seller makes nor intends to make any other warranties or representations, express or implied, and it expressly excludes and disclaims any and all warranties which may be implied or otherwise created by operation of law including without limitation all implied warranties of uninterrupted

or error-free use or operation, and merchantability and fitness for a particular purpose. After expiration of the Warranty Period, Seller and Buyer shall, at Buyer's request, negotiate in good faith the scope and mutually acceptable terms and conditions of after sales services to be provided by Supplier.                                                                                                                     

8.8 "The standard repair time for the equipment under warranty is defined as 20 working days counted from receipt of the goods by Seller for quantities not exceeding 5 pieces; and 45 working days for quantities not exceeding 10 faulty pieces of equipment.

After completion of the repair the BUYER is notified that his equipment is ready for pick-up and BUYER will arrange for the pick-up and transport of his goods.

8.9 Should the equipment be total loss or not repairable Seller will supply new equipment. The lead time for delivery of this new equipment will be defined on individual basis. Any damages (including commercial) resulting from an extended period for delivery of new equipment cannot be charged to Seller."                                                                                                                         

"The BUYER shall supply the following information to Seller prior to shipment:

-  Type of equipment

-  Serial numbers

-  Description of the failures “

8.10 Warranty exclusions : All supplied cables and connectors
                                                                       

9. OSAT-FAT

On-Site Acceptance Test’ (OSAT) or “Factory Acceptance Test” (FAT) is always organized by the Seller. If the Buyer doesn’t want to participate to this, the Buyer agrees that he receives the exact quantities, and that all supplied equipment  meets the quality specifications.

 

10. CLAIMS                                                                                                                             

10.1 Except for claims for breach of the Warranties, Buyer's failure to give notice to Seller of any claim (including without limitation claims for delayed delivery or non-delivery with regard to the Products delivered hereunder) within 8 days after the delivery of a Product shall be an unqualified acceptance of such Product and a waiver by Buyer of all claims with respect thereto.                     

10.2 Buyer is responsible for making any claim for loss of and/or transport damages to Products against the carrier immediately upon delivery and notifying Seller accordingly.                                                                          

10.3 Contested Products must be kept at Seller's disposal and can only be returned to Seller with Seller's prior written consent.      
                                                                                         

11. ORDER CANCELLATION                                                                                  

 In the event that
(i) a petition in bankruptcy is filed by or against Buyer, or
(ii) Buyer is declared bankrupt, or
(iii) Buyer becomes insolvent or his credit becomes impaired in the reasonable opinion of Seller, or
(iv) proceedings are initiated by or against Buyer seeking appointment of a receiver, reorganization, liquidation, dissolution, debt rearrangement or any other similar relief, or
(v) if Buyer fails to perform or fulfill at any time any material obligation or condition hereunder, Seller, at its discretion, shall have the right to request either the performance or the cancellation of the sale. In the latter case, the sales contract shall automatically and without prior summons or notice period be cancelled with immediate effect as a result of Seller having expressed his will to do so by simple registered letter. In such case, Seller shall be entitled, without prejudice to any other remedies, to repossess the Products without the intervention of any court of justice and Buyer shall assist Seller hereto. In such case, Buyer shall not be entitled to any compensation.                  

                                                                                         

12. LIMITATION OF LIABILITY
12.1 Seller's exclusive liability and Buyer's exclusive remedy for any and all claims as to the Product delivered or for delayed delivery or non-delivery thereof, whether or not such liability is based on a breach of contract or breach of warranty by Seller or Seller’s gross negligence or Seller’s failure to comply with laws and regulations shall be limited to the price of the Product in relation to which the claim is made or, at Seller's option, the replacement thereof.    
12.2 Seller does not warrant, guarantee, or make any representations regarding the use of or the result of the use of the products in terms of correctness, accuracy, reliability, or otherwise and does not warrant that the operation of the product will be uninterrupted or error free. Seller expressly disclaims any warranties not stated herein.
12.3 In no event shall either party be liable for special, incidental, punitive, indirect or consequential damages, whether or not caused or resulting from the negligence or willful misconduct of such party.                                                                                                     

  

13. THIRD PARTY RIGHTS                                                                                                     

13.1 Seller shall hold harmless and indemnify Buyer from and against direct damages, losses and expenses arising from infringement or alleged infringement of any patent, trademark or copyright of such third party by a Product of Seller and defend and settle at its sole expense any claim, action, suit or proceeding brought against Buyer, provided that (i) Seller is promptly notified by Buyer in writing after a claim has been asserted against Buyer or the commencement of any claim, action, suit or proceeding, and (ii) Seller shall assume sole control of the defense and any settlement negotiations related to any claim, action, suit or proceeding, and (iii) Buyer shall not negotiate, settle or compromise any claim, action, suit or proceeding without the prior written consent of Seller and (iv) Buyer, at its cost, shall cooperate with Seller and provide assistance and

support, as may reasonably required by Seller, in connection with the defense and any settlement negotiations related to any claim, action, suit or proceeding.                                                                                                   

13.2 Seller shall have no indemnity obligation for any Product, or any portion thereof,
(i) that is based on specifications, drawings, models or other data furnished by Buyer or,
(ii) that is not provided by Seller or,
(iii) that is modified by a party other than Seller and not at its direction or,
(iv) to the extent Buyer continues allegedly infringing activity after having been provided modif