Allgemeine Verkaufs- und Lieferbedingungen
Allied Vision Technologies GmbH (Germany)
§ 1 General Information, Scope
- The following General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTC”) are applicable to all deliveries, repairs and other services provided by Allied Vision Technologies GmbH (hereinafter referred to as “Allied Vision”). They are also applicable to all future deliveries, repairs and other services, even if they are not separately referred to. Allied Vision shall not recognize any conditions of purchase or other general terms and conditions of a customer, even if their validity is not expressly rejected in a given case, unless Allied Vision agrees to their validity in writing.
- The contents of side agreements and changes to this contract shall be applicable only if confirmed by Allied Vision in writing.
- These GTC shall only apply to those persons who upon conclusion of the contract act in exertion of their commercial or independent professional activity (so-called “entrepreneurs") as well as to legal entities under public law or public sector funds.
§ 2 Conclusion of the Contract Order and Order Confirmation
- Our offers are subject to change (nonbinding) and are made subject to availability. The contract shall not become effective until we have confirmed the order in writing.
- The mutual written declarations shall determine the scope of deliveries and services. If a contract has been concluded in the absence of such mutual declarations, either the written order confirmation by Allied Vision or – if such an order confirmation was not issued– the written order placed by the buyer shall prevail.
§ 3 Scope of Services
- The scope of services shall be determined by the components or other services described in more detail in the written order confirmation and also includes the software and technical documentation required for operation, if so agreed.
- Deliveries shall be made in the order in which orders were received. If, after the conclusion of contract, it becomes apparent that the entitlement to payment of Allied Vision is at risk as the result of the customer´s inability to pay, Allied Vision shall be entitled to withhold performance and any preparatory actions necessary for performance. The right to withhold performance shall no longer apply once payment has been made or security has been furnished. Allied Vision may set a reasonable additional period for the customer to make the payment/furnish the security. Once this additional period has expired and payment has not been made/security has not been furnished, Allied Vision shall be entitled to revoke the contract. For contracts relating to the manufacture of non-fungible goods (custom-made items), Allied Vision may declare revocation of the contract immediately; the legal provisions concerning the dispensability of specifying a period of time shall remain unaffected.
- Allied Vision reserves all property rights and copyrights in quotations, drawings and other documents; these may be made available to third parties only upon prior written release by Allied Vision. Any drawings and other documents that are part of an offer shall be returned promptly on request by Allied Vision if the contract is not awarded to Allied Vision. The same applies, conversely, to the customer´s documents. These, however, may be made available to third parties to whom Allied Vision has permissibly transferred deliveries and services.
- If technical improvements are introduced after an order has been accepted, Allied Vision reserves the right to deliver the improved products.
- If software is included in the scope of delivery, the customer shall be granted the non-exclusive right to use the software provided to it, including its documentation, for the purposes agreed. The software shall be provided to the customer specifically for use on the delivery item intended for this purpose only. All further rights are reserved.
- The software provided by Allied Vision essentially corresponds to the product description. Claims for defects do not exist if the variance from the agreed or presumed quality is negligible and if usability is only insignificantly impaired. Product descriptions are not deemed to be guarantees without a special written agreement. For update, upgrade and new version deliveries claims for defects shall be limited to the alterations in the update, upgrade or new version deliveries compared to the previous version. Apart from that, the customer´s claims for defects shall be determined by Section 8 of these GTC.
§ 4 Delivery
- The delivery conditions are based on the 2010 International Commercial Terms (Incoterms® 2010). Provided there is no arrangement between Allied Vision and the customer to the contrary, the place of delivery in the event of Incoterms® 2010 EXW (Ex Works) and FCA (Free Carrier) clauses is the Allied Vision factory with the address:
Allied Vision Technologies GmbH, Taschenweg 2 a, 07646 Stadtroda/Deutschland, EXW or FCA Stadtroda, 07646, Taschenweg 2 a, Germany (Incoterms® 2010)
Allied Vision Technologies GmbH, Weisse Breite 7, 49084 Osnabrück/Deutschland, EXW or FCA Osnabrück, 49084, Weisse Breite 7, Germany (Incoterms® 2010)
The order confirmation stipulates which of the two aforementioned factory addresses serves as the place of delivery (place of execution) for the contractual relationship.
- Allied Vision shall be entitled to make partial deliveries only if
- the partial delivery is useful for the customer for the purposes of the contractually intended purpose,
- the delivery of the remainder of the goods ordered is ensured, and
- the customer does not incur any significant additional expense as a result (unless Allied Vision agrees to pay the costs)
- Terms of delivery and delivery deadlines shall be confirmed by Allied Vision separately or agreed in writing with the customer and shall be binding only in such cases. Early delivery is permitted.
- The beginning of the stated delivery time requires that all technical issues have been clarified.
- Compliance with our delivery obligation shall furthermore be contingent on the customer meeting is contractual obligations properly and in a timely manner. We reserve the right to refuse performance until the other party performs.
- If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the losses incurred by us in this regard including any additional expenses. Further claims remain reserved.
- Allied Vision shall not be liable for impossibility of delivery or delays in delivery due to force majeure or due to events that could not be anticipated at the time of the conclusion of the contract (e.g. interruptions of operations of all kind, strike and lockout, ban on exports and imports, failure to grant authorization, transportation delays, or if we do not receive our own deliveries, or receive incorrect or late deliveries), for which Allied Vision is not responsible. If such events make delivery or performance considerably more difficult or impossible for Allied Vision and if the obstruction is not merely transitional in nature, Allied Vision shall be entitled to revoke the contract. In the case of temporary obstacles, the delivery and performance deadlines will be extended accordingly.
§ 5 Prices and Terms of Payment
- Prices are according to our current price list ex works pursuant to Section 4 (1), plus statutory value-added tax on the delivery date exclusive setup or assembly, inclusive packaging, provided that packaging does not exceeds 0.5% of the merchandise value per shipment. Differing supply conditions (Incoterms® 2010) can result in a different cost-sharing.
- We will ship the merchandise according to commercial practices and in sales packaging which is suitable for normal shipping. The customer shall be charged for special packaging requests.
- Invoices by Allied Vision are payable net within 30 days after the invoice date. A payment shall be deemed to have been made on time, if Allied Vision can dispose of the credited amount without reservation. Legal provisions apply if the customer fails to make a payment.
- The prices confirmed by us in the order confirmation shall apply only if the contractually agreed quantities are accepted.
- If more than four months pass between the conclusion of the contract and the period of time agreed for the entire delivery or partial delivery, and if the cost of the delivery item is increased by more than 5 % after the conclusion of contract for reasons beyond the control of Allied Vision, especially due to price increases by the suppliers of Allied Vision, Allied Vision shall be entitled to increase the price appropriately for any partial deliveries that are still open. If the price increase applied by Allied Vision exceeds 5% of the price of the complete delivery, the customer shall be entitled to revoke the contract within two weeks after receiving the price increase notification from Allied Vision.
- The customer shall be entitled to offset rights or rights of retention only to the extent that its claim has been finally and non-appealable established or is uncontested. In case of defective delivery, the customer´s opposing rights in accordance to Section 8 of these GTC shall remain unaffected.
§ 6 Dispatch and Passing of Risk
- The risk of accidental destruction or deterioration shall pass to the customer with dispatching to the customer, and no later than when the goods are handed over to the carrier. This also applies in case of partial deliveries and in case Allied Vision has agreed to pay the shipping costs as an exception. If acceptance is agreed, this shall govern the dispatch and passing of risk.
- It is understood that risk is passing even if although the goods are ready for dispatch, delivery is not made due to a circumstance caused by the customer. In this case, the prerequisite for the passing of risk is that the customer had been informed that the goods were ready for dispatch.
§ 7 Retention of Title
- Allied Vision shall retain title in the sold goods until all current and future claims arising from the contract and an ongoing business relationship (secured receivables ) have been paid.
- The goods held under retention of title may not be pledged to third parties nor assigned by way of security before the secured receivables have been paid in full. The customer shall inform Allied Vision promptly and in writing if and to the extent to which third parties assert claims against the goods belonging to Allied Vision. If the third party is unable to reimburse Allied Vision for the cost of the legal proceedings and the out-of-court costs of a successful lawsuit by Allied Vision against asserted claims by the third party, the customer shall be liable for the loss incurred by Allied Vision.
- If the customer´s conduct violates the contract, especially in the event of non-payment of the due purchase price, Allied Vision shall be entitled to revoke the contract in accordance with the legal provisions and request that the goods be returned on the basis of the retention of title and the revocation. If the customer does not pay the purchase price due, Allied Vision may assert these rights only if Allied Vision has first set a reasonable additional period or if the specification of such an additional period of time can be dispensed with in accordance with statutory requirements.
- The customer shall be authorized to resell and/or further process the goods that are subject to retention of title within the ordinary course of business. In this case, the following supplemental provisions apply.
(a) The retention of title extends to the products created by processing, mixing or combining the goods at their full value, where Allied Vision is considered the manufacturer. If the right of ownership by third parties remains in force when the goods are processed, mixed or combined with third-party goods, Allied Vision shall acquire co-ownership in the processed, mixed or combined goods in proportion to their invoice value. Apart from that, what applies to the goods delivered under retention of title shall apply to the resulting product as well.
(b) The customer assigns the receivables against third parties that arise from the resale of the goods or of the product to Allied Vision now already, as a whole or in the amount of the potential co-ownership of Allied Vision according to the previous paragraph, by way of collateral. Allied Vision accepts the assignment. The customer's obligations referred to in Section 7 (2) of these GTC shall apply in view of the assigned receivables as well.
(c) The customer remains authorized to collect the claim along with Allied Vision. Allied Vision undertakes not to collect the claim provided the customer meets its payment obligations to Allied Vision, does not fall behind in its payments, does not initiate insolvency proceedings, and there is no other impediment to its ability to make payment. If this is the case, however, Allied Vision can demand that the customer disclose to Allied Vision the assigned claims, provide Allied Vision with all information required for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment.
(d) If the realizable value of the collateral exceeds the receivables of Allied Vision by more than 10%, Allied Vision shall release securities at the customer's request and at Allied Vision's option.
§ 8 Liability for Defects
- Legal regulations apply to the customer's rights in case of material and legal defects (including wrong deliveries and short deliveries as well as incorrect assembly or defective assembly instructions), unless otherwise specified below. Special legal provisions that apply when the goods are delivered to the end consumer shall remain unaffected in all cases (supplier's redress).
- The basis for the liability of Allied Vision for defects is the agreement concluded concerning the quality of the goods in particular. Product descriptions referred to as such that were provided to the customer prior to his order, or that were included in the contract in the same manner as these GTC, shall be deemed an agreement concerning the quality of goods.
- If quality has not been agreed upon, the evaluation of whether a defect exists or not shall be carried out in accordance with the legal regulation. However, Allied Vision shall assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising messages).
- Claims for defects by the customer require that it has duly met its inspection and complaint obligations. If a defect is apparent during the inspection or subsequently, Allied Vision must be notified of such defect in writing or in textform immediately. The notification shall be deemed to have been given immediately if it is sent within two weeks of discovery of the defect, whereby timely dispatch of the notification shall suffice for compliance with the deadline. If the customer fails to properly inspect the goods and/or give notice of defects, they shall be considered accepted.
- If the purchased goods have any defects, AVT shall be entitled and obligated, at its discretion, to supplementary performance either by correcting the defect (making repairs) or delivering a new, defect-free item (subsequent delivery). The costs for supplementary performance, particularly transport, infrastructure, work, and material costs, shall be paid as follows: the customer shall assume the cost of transport to the Allied Vision support center pursuant to DAP (delivered at place) in line with Incoterms® 2010; Allied Vision shall assume all other costs, particularly the costs of the return shipment if there is, in fact, a defect, except for any taxes and tolls for the reimport of the goods in the customer’s country of destination, and provided the costs do not increase because the goods were transported to a place other than the place where they were designated for use. The supplementary performance does not include upgrades to defective items or reinstallation if we were not originally obligated to carry out installation.
- Allied Vision shall be entitled to make the supplementary performance owed by it contingent on the customer paying the purchase price due. However, the customer shall be entitled to deduct a portion of the purchase price that is appropriate in proportion to the defect.
- If supplementary performance fails, or if an additional period for supplementary performance to be set by the customer has passed without success, or if it is dispensable according to legal regulations, the customer shall be entitled at its option to demand revocation or reduction. The right to revoke does not exist, however, if the defect is insignificant.
- Warranty claims shall not apply in case of operator errors, in case of damage caused by operator error, unauthorized changes and interventions, at influences of foreign products, and for all other errors that are attributable to the sphere of the customer. Additional expenses as a result of such disturbances can be charged by Allied Vision.
- The customer´s claims for compensation or to be reimbursed for futile expenditures shall exist only in accordance with Section 11 of these GTC and shall otherwise be excluded.
- The period of limitation for claims for defects is 24 months for cameras and 12 months for accessories and starts upon delivery of the goods. In the cases of Section 11 (2) and (3), the statutory limitation periods apply.
§ 9 Intellectual Property Rights
- In accordance with Section 9, Allied Vision warrants that the deliverable is free from intellectual property rights or copyrights of third parties. Each contracting party shall inform the other contracting party promptly and in writing if claims are asserted against such party for the violation of such rights.
- In case the deliverable infringes upon a third-party industrial property right or copyright, Allied Vision shall, at its option and at its own expense, modify or exchange the deliverable such that it no longer infringes upon third-party rights but such that the deliverable continues to fulfill the contractually agreed functions, or shall obtain the right of use for the customer by concluding a licensing agreement. If Allied Vision does not succeed in doing so within a reasonable period of time, the customer shall be entitled to revoke the contract or reduce the purchase price appropriately. Any claims for compensation raised by the client shall be subject to the restrictions of Section 11 of these GTC.
§ 10 Product Warranty
- Pursuant to the following provisions, Allied Vision warrants that the products delivered to customers shall be, depending on the product category, free from defects (so-called product warranty) for a certain period from delivery (so-called warranty period). The respective warranty periods for the relevant products are listed in the table, which can be viewed at the following link:
- This product warranty does not extend to defective sensor pixels that typically occur with CCD and CMOS sensors. A precise description of what can typically be expected in the event of defective pixels with CCD and CMOS sensors can be found in the AVT Sensor Warranty Terms that can be viewed at the following link:
- There shall be no claims from this product warranty
(a) if the product is damaged or there are signs of wear that stem from inappropriate use. Use is considered to be inappropriate in particular if the user deviates from the standard instructions and guidelines provided by Allied Vision in the technical documentation;
(b) if the product has damages that point to repairs or other modifications carried out in shops by the customer themselves or other persons that were not authorized by Allied Vision;
(c) if the product has damages that indicate the accessories or replacement parts were added to the product that were not authorized by Allied Vision; in particular, this includes the unauthorized use of chemical, electrical, or electrochemical substances;
(d) if the manufacturing number is removed or unrecognizable;
(e) if the damage involves normal wear and tear from age or use as a result of the standard use of the product.
- In the event the product damage is covered by the product warranty, Allied Vision shall, at its own discretion and its own cost, correct the defect by repairing it or substituting the defective parts by delivering new or rebuilt replacement parts.
- Any other claims by the customer against Allied Vision from this product warranty, particularly claims for compensation, are excluded. The assertion of contractual or legal claims by the customer against Allied Vision are not affected by the provisions of this product warranty.
- The prerequisite for asserting claims based on this product warranty is presentation of the original invoice with the purchase date by the customer. The customer shall assume the costs of transport to the Allied Vision support center pursuant to DAP (delivered at place) in line with Incoterms® 2010; Allied Vision shall assume all other costs and particularly the cost for return shipment, except for any taxes and tolls for the reimport of the goods in the customer’s country of destination. The exact address of the support center will be communicated to the customer upon issuance of the RMA (return merchandise authorization) by the service team. Products sent to Allied Vision without an RMA will be returned to the customer at their expense.
- If the review of the product reveals that there is no product defect or that there is no warranty claim arising from one of the reasons specified in the foregoing paragraphs, Allied Vision shall be entitled to charge a service fee. The amount of this service fee can be found in the AVT RMA policy. This can be viewed at the following link:
- For all repairs that Allied Vision carries out, the provisions of the AVT RMA policy also apply.
§ 11 Liability
- Unless otherwise specified in these GTC including the following provisions, Allied Vision shall be liable in accordance with the relevant legal regulations in the event of a violation of contractual and non-contractual obligations. In accordance with this Section 11, the liability of Allied Vision for damages - for whatever legal reason, especially impossibility, delay, breach of contract, culpa in contrahendo, and tortious acts - shall be limited, to the extent dependent on a question of culpability, according to this Section 11.
- Allied Vision shall be liable to pay compensation - for whatever legal reason - in the event of intent and gross negligence. In the event of ordinary negligence, Allied Vision shall only be liable for
(a) damages arising from injury to life, body or health,
(b) damages arising from the breach of a material contractual obligation. Material contractual obligations are those obligations whose fulfillment allows the contract to be executed properly in the first place and compliance with which the contracting party regularly relies on, and is entitled to rely on. In the event of a breach of material contractual obligations however, the liability of Allied Vision Technologies GmbH shall be limited to paying compensation for foreseeable, typically occurring damage.
- The limitations of liability arising from Section 11 (2) shall not apply if Allied Vision has fraudulently concealed a defect or guaranteed the quality of the goods. The limitations of liability arising from Section 11 (2) shall not apply to claims by the customer under the Product Liability Act.
- Compensation claims arising from tortious acts lapse when they become known, and claims arising from grossly negligent ignorance of the circumstances that give rise to the claim and the person liable for compensation in one year. In the cases specified in Section 11 (2) and (3) the statutory limitation periods apply.
- Insofar as the liability of Allied Vision is excluded or limited based on the above provisions, this shall also apply to the personal liability of the staff, employees, associates, representatives and persons used to perform an obligation of Allied Vision.
§ 12 Applicable Law, Place of Fulfillment, and Place of Jurisdiction
- The law of the Federal Republic of Germany applies to these GTC and to all legal relationships between Allied Vision and the customer. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
- The place of fulfillment for all liabilities arising from the contractual relationship is Stadtroda if the order confirmation contains the factory of Allied Vision with the address 07646 Stadtroda. The place of fulfillment is Osnabruck if the order confirmation contains the factory of Allied Vision with the address 49084 Osnabruck, Germany (cf. above Section 4 (1)).
- If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a public sector fund, the exclusive place of jurisdiction for all - even international - disputes arising directly or indirectly from the contractual relationship shall be the registered office of Allied Vision in Stadtroda. However, AVT is also entitled to bring action against the customer with the competent court that has general jurisdiction over the customer.
The customer acknowledges that Allied Vision shall store data from the contractual relationship for data processing purposes.
As of November 2014
Allied Vision Technologies Inc. (USA)
Acceptance by Customer of this Order by delivery, acknowledgement, acceptance or otherwise shall be unqualified, unconditional, and subject to and expressly limited to the terms and conditions set forth herein and no others. Notwithstanding anything to the contrary herein, if software is delivered hereunder, the terms and conditions of the software license attached thereto shall govern the licensing thereof.
§2 Risk of Loss, Delivery and Passing of Title
Unless otherwise specified on the shipping documents, delivery shall be made FCA Allied Vision Technologies (Canada) Inc., Burnaby, BC (Incoterms 2020) which constitutes delivery when the goods are placed at the disposal of the buyer at the above named place (hereinafter “Delivery”) hereunder. Customer shall assume risk of loss upon Delivery as set forth above. Customer hereby grants Company a security interest in the Product and in any proceeds (including accounts receivable) thereof as security for all of its obligations hereunder, which security interest shall commence upon the Delivery of the Product and terminate upon full payment thereof. Upon request of Company, Customer shall execute any instrument or document required to perfect the security interest.
§3 Right of Inspection/Return of Goods
All goods and services provided for herein may be inspected by Customer upon delivery and Customer may reject defective articles or articles not conforming to descriptions furnished to Company within a reasonable time after delivery. At its option Customer may accept those goods which are not so defective and do so conform and may retain rejected articles at Customer’s option. Customer shall not return any Product to Company without first obtaining written authorization (RMA) and instructions from Company. Except as expressly set forth in this Agreement or in writing from Company, Customer shall be responsible for all costs of packing and shipping any returned Product. Company in its discretion may charge Customer a restocking fee of 25% of the purchase price of any returned Product.
Pricing is inclusive of packaging only. Pricing does not include insurance, handling, freight, and all taxes and charges, whether similar or dissimilar, unless otherwise indicated on the face of this purchase order.
§5 Warranties / Disclaimers / Indemnification
(i) Company represents and warrants to Customer that each Product shall be free from defects in workmanship and materials for a period of twenty-four (24) months after delivery to Customer. This Product warranty shall not apply to any Product that has been abused, damaged, altered or misused or that is defective as a result of causes external to the Product and not caused by Company. Company warrants the Product conforms to the written description of order provided by Customer (if applicable). Company further warrants that the Product is free and clear of all liens and encumbrances, and that, to the best of Company's knowledge, the Product and sale to Customer are in compliance with all applicable federal and state laws, rules and regulations. EXCEPT AS SET FORTH ABOVE, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(ii) Company may rely on the accuracy and lawfulness of all information and material furnished by Customer to Company regarding the goods or services sold. Customer shall indemnify and hold harmless Company against any liabilities or damages, costs and expenses, (including reasonable attorneys fees) incurred in defending against any action arising out of Customer supplied information or material.
(iii) This warranty and the limitations of liability and remedy allocate the risk of product failure between both parties. Company’s pricing reflects these allocations of risk. The agents employees distributors and dealers of Company are not authorized to make modifications to this warranty or additional warranties binding on Company. Accordingly, additional statements such as advertising or representations, whether oral or written, do not constitute warranties by Company and should not be relied upon.
§6 Invoices / Payment
The time for terms of payment of Company’s invoices shall commence with date of delivery of items shipped EXW Company warehouse, Newburyport, MA, (Incoterms 2000). If any amounts due hereunder are referred to an agent or attorney for collection, Customer shall be responsible to pay any costs (including reasonable attorney's fees) in connection with such collection effort. Failure to pay any amounts due to Company within fifteen (15) days after the specified due date will result in a late charge of seventy-five dollars ($75.00) promptly upon invoice. In addition, any amounts past due shall bear simple interest from and after the due date until payment is made by Distributor at a rate of 18% per annum, or if not allowable, to the fullest extent allowed by the law of the applicable state.
IN NO EVENT SHALL COMPANY BE LIABLE FOR, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THE PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL COMPANY'S LIABILITY FOR DAMAGES FOR ANY REASON EXCEED AN AMOUNT EQUAL TO THE TOTAL OF PAYMENTS MADE BY CUSTOMER TO COMPANY FOR THE PARTICULAR CLAIM FROM WHICH THE CAUSE OF ACTION OCCURRED
§8 Rights and Reservations
(i) Customer agrees that the information contained in any devices, processes, or other records or oral descriptions (all hereinafter called descriptive materials) which are furnished to Customer by Company and relating to this order is the proprietary property of Company or its supplier and such information shall only be used for the purpose of this order. Without written approval from Company, Customer shall not, except as necessary for the performance of this order, duplicate such descriptive materials or disclose an such information to third parties.
(ii) Customer shall not remove, hide or modify any marks of Company on Products, documentation, packaging or other materials.
(iii) Upon the termination of this Agreement, Customer shall cease any use of the marks of Company. Customer shall not engage in or allow the licensing, use, leasing, loaning, translation, reproduction, copying or modification of any Product, mark of Company, or documentation of Company, except to the extent authorized by this Agreement. Customer shall not operate any business or Internet domain name using, market any product of Customer with or seek to register in any jurisdiction, the market or name of Company, or a confusingly similar market of name, without the prior written consent of Company. Customer has no right to obtain the source code of any software Product. Customer shall not engage in or allow reverse engineering, reverse compiling or copying of the “look and feel” of any product.
Customer shall have the right to make changes from time to time in the work to be performed and/or goods to be furnished under this contract, subject to acceptance by Company. If such changes cause an increase or decrease in the amount due under the contract or in the time required for its performance, an equitable adjustment shall be made. Only those written changes incorporated in a copy of a form duly marked "Change Order" or similar terms issued by Company shall be valid; only those oral changes authorized by representatives of Company shall be valid and they will be confirmed by a written "Change Order".
§10 Force Majeure
Company shall not be liable for, and is excused from, any failure to deliver or perform or delay in delivery or performance due to causes beyond its reasonable control including, but not limited to terrorism, acts of nature, government, fire, labor difficulty, transportation problems, interruptions of power or communication, or nature disasters.
§11 Use of Product
Customer shall use Products only in compliance with all applicable instructions and warnings and safety practices, procedures and precautions supplied by Company.
(a) NOTICES: All notices shall be in writing and deemed given when delivered in person, by overnight delivery through a commercial courier service, or by certified mail, return receipt requested. Notices shall be addressed to each party at its address or such other address as the recipient may have specified by earlier notice to the sender.
(b) ASSIGNMENT; SUCCESSORS: This Agreement shall not be assigned by Customer. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns
(c) ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement between the parties with respect to its subject matter; all prior agreements, representations, statements, negotiations and undertakings with respect to such subject matter are terminated and superseded hereby
(d) AMENDMENTS: No amendment to this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each party. The term "Agreement” or “Order”, as used herein, includes all exhibits and attachments hereto and any future written amendments, modifications, or supplements made in accordance herewith.
(e) SURVIVAL: After expiration or termination of this Agreement, all provisions relating to payment shall survive until completion of required payments. Furthermore, the expiration or termination of this agreement shall not affect provisions of same which by their terms and meaning are of a continuing nature.
(f) CONSENT TO BREACH NOT WAIVER: No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
(g) SEVERABILITY; ENFORCEABILITY: In the event any provisions of this Agreement is held illegal, void or unenforceable, the balance shall remain in effect. Company's failure to enforce a right hereunder promptly shall not be deemed a waiver of such right, and no waiver of a right under a provision shall constitute a waiver of any other right under such provision or any other provision.
(h) GOVERNING LAW: This Agreement shall be deemed to have been made in the Commonwealth of Massachusetts, and shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, exclusive of its rules governing choice of law and conflicts of law.
Allied Vision Technologies Asia Pte Ltd (Singapore)
1.1 The following General Terms and Conditions apply to all deliveries, repairs, and other services of Allied Vision Technologies Asia Pte Ltd (henceforth called “AVT”). They also apply to all future business transactions even if they are not specifically mentioned. AVT shall not recognize any purchasing terms or other general terms and conditions of business of the customer, unless AVT specifically agrees to them in writing.
1.2 Alterations and supplements to the Contract, unless no other provisions stating the contrary have been agreed upon, must be made in writing.
§ 2 Signing a Contract, Order, and Order Confirmation
2.1 Our offers are non-binding and take place on the condition of deliverability. The Contract shall only become valid with our written order confirmation.
2.2 The mutual written declarations shall determine the scope of delivery and services. If a Contract has been signed without such mutual declarations, than either the written order confirmation from AVT or – if no such confirmation has been provided – the written order of the ordering party shall determine the scope of delivery and services.
§3 Scope of Services
3.1 The customers shall acquire from AVT the components or other services described in the written order confirmation, as well as the required operating software and technical documentation if these are part of the delivery.
3.2 Deliveries shall be made in the order in which the orders were received and within the individual customer’s credit limit. If there are overdue invoices, no delivery shall be made until the total invoice amount has been paid in full. AVT shall not be liable for delivery delays due to force majeure, operating or transport delays.
3.3 AVT reserves all property rights and copyrights to quotes, drawings, and other documents; they may be made available to third parties only upon prior written approval by AVT. If the order is not placed with AVT, drawings and other documents pertaining to quotes shall be returned promptly upon request. Conversely, this shall also apply to the customer’s documents. These, however, may be made accessible to third parties to whom AVT has subcontracted for deliveries and services.
3.4 If technical improvements are introduced after orders have been received, AVT shall reserve the right to deliver the improved products.
3.5 In as much as the scope of the shipment includes software, the customer shall be granted a non-exclusive right to use the delivered software including its documentation for purposes specified in the Contract. The software shall be specifically provided to the customer for sole use on the delivered merchandise. All further rights shall be reserved.
3.6 The customer acknowledges that software products are by nature complex and not entirely error-free. If the customer has received software as part of the delivery of the merchandise, they also acknowledge that AVT shall not assume any guarantees, warranties, assurances, or liability whatsoever for the use of software products.
§4 Delivery and Delivery Time
4.1 Delivery shall be made ex-works. We shall reserve the right to make partial shipments. Delivery dates and delivery deadlines shall be confirmed separately by us or agreed upon with the customer in writing, and shall only be binding in these cases.
4.2 The beginning of our stated delivery time requires the prior clarification of all open technical questions.
4.3 Furthermore, keeping our delivery obligations requires that the customer meets all contractual obligations properly and in time. The exception to the unfulfilled Contract shall be reserved.
4.4 In the event the customer is in default of acceptance, or if they culpably violate other obligations of cooperation, we shall be entitled to demand compensation for the resulting damage, including any additional expenses. We reserve the right to make further claims.
4.5 In the case of unpredictable, extraordinary events which were unavoidable even though all appropriate and reasonable care was taken, such as disruption of operations, strikes and lockouts, export and import embargos, and failure to receive permits, the delivery time shall be appropriately extended. This shall also apply if one of the above mentioned events occur for one of the suppliers or other manufacturers, or they fall behind schedule with a service to be provided to us.
§5 Prices and Payment Terms
5.1 Our prices are always those stated on our most current quotation within the given validity period and are ex-works prices. They are exclusive of the applicable sales tax and other applicable taxes on the day of the delivery, set-up, and assembly. The prices include packaging, if the packaging does not exceed 0.5% of the value of the merchandise per shipment.
5.2 We shall deliver the goods in standard sales packaging suitable for regular shipment. In the event the customer requests special packaging, it shall be billed at the customer’s expense. Shipping costs and transportation insurance shall be billed to the customer at cost.
5.3 Invoices of AVT are payable within the payment term granted by the Quotation or Contract after invoice date. Payments for repairs are due within 14 days. In order that a payment is considered on time, AVT must be able to dispose of the credited amount without restrictions. If the customer is late with a payment, AVT shall be entitled withhold further shipments and take legal action to recover unpaid products. AVT reserves the right to charge interest on the amount unpaid, at the rate of 12 per cent per annum from the due date to the date of payment (whether such date is before or after judgement).
5.4 The prices given in our quotation shall apply only if the agreed upon order quantity is placed. AVT reserves the right to revise the prices when a lower quantity is ordered.
5.5 If the agreed upon time between signing the Contract and the deadline for the entire or partial delivery is more than four months, and if there are cost increases of more than 5% for the ordered item after signing the Contract, in particular due to our suppliers’ price increases, AVT shall be entitled to increase the price appropriately for partial shipments that are still open. If the price increase by AVT is more than 5% of the price of the total shipment, then the customer shall be entitled to withdraw from the Contract within two weeks after receiving the notice about the price change from AVT.
§6 Shipment and Transfer of Risk
6.1 Unless other agreements have explicitly been made, we shall only deliver on account at the customer’s cost and risk.
6.2 The risk of accidental loss or deterioration shall automatically pass to the customer with the transfer to the carrier. This shall also apply to partial deliveries and the exceptional event where we bear the delivery costs.
6.3 It shall be agreed that the risk also passes to the customer if AVT is prepared to make the delivery but fails to dispatch the shipment for reasons beyond the responsibility of AVT. In this case, the transfer of risk shall require that the customer has received notice that the delivery is ready to be made.
§7 Reservation of Ownership
7.1 The merchandise shall remain the property of AVT until the receipt of full payment of the invoiced amount as well as other, already existing claims by AVT towards the customer (satisfaction of all claims towards the ordering party arising from the business relationship).
7.2 If the customer is a reseller, they shall have the right to sell the goods in the normal course of business, provided they are not in default. By way of security, the customer hereby assigns to us, in full, all claims arising from the resale or based on other legal grounds (insurance, tort) which relate to the goods subject to the reservation of title, whether or not the goods subject to the reservation of title have been resold without, or after, being processed. We hereby grant the customer authorization to collect all claims assigned to us for our account and on our behalf provided that we do not revoke this authorization to collect claims. AVT shall be entitled to revoke the authorization to collect claims if the customer is in default, stops making payments or makes an application to open bankruptcy proceedings
7.3 In the event that the realizable value of the assigned claims exceeds the claims towards AVT by more than 20%, AVT shall release the surplus amount of the securities upon the customer’s request.
7.4 In the event that the goods are processed, AVT shall remain the manufacturer, and the customer shall store the merchandise for AVT in a dust-free storage area, in accordance to the storage temperature and storage humidity requirements of each product.
7.5 In the event of seizures in execution or other third-party encroachments, the customer must inform us thereof in writing without delay and the customer shall be liable for the loss incurred by us as a result of such execution proceedings.
§8 Liability for Defects
8.1 We shall not be liable for defects or damages resulting from improper use or handling, natural wear and tear, unsuitable operating equipment, the use of replacement materials, as well as chemical, electric, or electrochemical influences outside the range of our services and our sphere of influence, or from flawed assembly, operation, attempts to repair, or modifications of the merchandise by the customer or by third parties.
8.2 Inasmuch as the purchased item is defective, the customer shall have the right to receive, according to our choice, supplementary performance in the form of removal of the defect or the delivery of a new, defect-free or similar item. In the case of a removal of the defect, we shall be obliged to bear all expenses required for removing the defect, in particular, transportation, transportation infrastructure, labour, and material costs, unless these costs are increased by having moved the purchased item to a place other than the place of delivery.
8.3 If the supplementary performance fails, the customer shall be entitled to demand withdrawal from the Contract or a price reduction.
8.4 If the use of the delivered item results in the violation of domestic commercial copyrights, AVT will generally procure for the customer, at AVT’s expense, the right to further use. If this is economically unreasonable, the customer shall have the right to withdraw from the Contract.
8.5 The period of limitation for claims arising from defects is 24 months from the time of transfer of risk.
§9 General Liability
9.1 Further damage compensation liability than that provided for in Articles 6 and 8 is excluded, regardless of the statutory form of the asserted claim, unless it is based on intention or gross negligence, including the intention or gross negligence on the part of our representatives or agents, or on the culpable violation of essential contractual obligations.
9.2 This also applies inasmuch as the ordering party has a claim for replacement of the damage rather than the service. Inasmuch as we are not charged with intentional breach of Contract, the liability for damage claims shall be limited to the predictable, typically occurring damage.
9.3 To the extent that damage compensation liability against us is excluded or limited, this shall also apply in respect to personal damage compensation of our salaried employees, employees, staff members, representatives, and agents.
§10 Applicable Law, Place of Execution, and Place of Jurisdiction
10.1 These General Terms and Conditions shall be subject to Singapore law unless agreed otherwise in the Contract.
10.2 Place of execution for all liabilities arising from the contractual relationship shall be Singapore.
10.3 The Contract Parties agree to submit to the non-exclusive jurisdiction of the Singapore Courts, unless agreed otherwise in the Contract.
Effective: 1 April 2011