Terms and Conditions
The following Terms and Conditions shall be binding if they have been declared applicable either in Seller’s tender, product/price list, or in a confirmation of an order. Terms and conditions of the Buyer that diverge from the following Terms and Conditions shall not be binding unless and only to the extent they have been expressly accepted by Seller in writing. As used herein, the term “Seller” shall apply to Swissbit AG, the term “Goods” shall refer to any and all products or services purchased from Seller, and the term “Buyer” shall refer to the purchaser of Goods from Seller.
1.1 Purchase Price. The total purchase price due to Seller from Buyer for the Goods shall include the price of the Goods, plus any taxes, packaging charges and shipping fees.
1.2 Currency. Except as otherwise provided, all prices are deemed to be in United States dollars.
1.3 Taxes. The amount of any tax which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of the Goods shall be the responsibility of the Buyer and may be added to the price of such Goods.
2. TERMS OF PAYMENT
2.1 Payment. Unless Seller otherwise provides, payment on account of an invoice is due immediately and payment shall be made not later than ten (10) days from the date of the invoice. Payment shall be by the method described on the invoice. Payments made after the tenth day from the date of the invoice shall accrue interest at a rate of 5%.
2.2 Offset. Buyer authorizes Seller to credit toward the payment of any monies that may become due Seller hereunder, any sums which may now or hereafter be owed to Buyer by Seller or by any subsidiary, affiliated company or parent of Seller.
3. DESIGNS & TECHNICAL DOCUMENTS
Each party reserves all rights with respect to designs, documents and software handed over to the other party. The receiving party acknowledges these rights. Subject to the previous and explicit authorization in writing by the other party, the receiving party shall not make such designs, documents and software accessible to any third parties and shall use them exclusively for the purpose for which it has received.
4. RISK OF LOSS & TITLE
4.1 Risk of Loss. All shipments are f.o.b point of manufacture, and title and risk of loss to goods shall pass to Buyer upon delivery to carrier.
4.2 Title. Title to Goods shall pass to Buyer upon delivery to carrier; provided, however, that Seller shall retain title until paid in full. Retention of Title shall in no way affect the risk of loss after delivery to carrier.
5. INSPECTION, ACCEPTANCE & REJECTION OF GOODS; CLAIMS NOTIFICATION
5.1 Inspection. If any Goods should arrive at Buyer’s destination in a damaged condition or should a shortage exist, the damage or shortage shall immediately be reported to the delivering carrier and the Seller. In case of damaged Goods, a joint inspection of the loaded carrier shall be arranged with the representatives of the carrier and Seller. Where the carrier’s equipment cannot be held for inspection, the Goods shall be unloaded, protected and held for joint inspection. Before unloading, the alleged damage or shortage shall be noted on the carrier’s delivery receipt and signed by the carrier’s agent.
5.2 Notification of Claims. Buyer shall notify carrier and Seller of any claim resulting from damage or shortage incurred after the f.o.b. point within ten (10) days of delivery of the Goods to the first destination to which they are available for Buyer’s inspection, which Seller and Buyer agree is a reasonable time. Any other claim respecting the condition of goods, compliance with specifications, or other defects must be made no later than ninety (90) days after delivery of Goods to the first destination to which they are available for Buyer’s inspection. All claims must be made only for substantial cause, be in writing, and must specify the reason(s) for the claim. The failure to notify Seller of any claim within the time period specified by this section shall constitute a waiver and bar such claim.
5.3 Disposition of Goods Subject to Claim. Buyer should set aside, protect, and hold any Goods subject to a claim without further processing until Seller has an opportunity to inspect such goods and advise Buyer of the disposition, if any, to be made of such goods. No Goods, in any event, shall be returned without first securing the authority of Seller. No allowance will be made to Buyer for storage, materials or labor involved in the movement of rejected goods from the plant of Buyer or Buyer’s processor or Buyer’s storage facility.
5.4 Failure to Accept Purchased Materials. If Buyer requests deferral of shipment, fails to accept shipment, fails to pick up the Goods, or otherwise fails to provide information, material or documentation necessary for the delivery of the Goods and as a result Goods are placed in storage, Seller may charge Buyer reasonable storage fees commencing five (5) days after Seller’s notice to Buyer of the availability of the Goods.
6. WARRANTIES & REMEDIES
6.1 Limited Warranty; Exclusive Remedy. Goods will be manufactured subject to Seller’s standard manufacturing variations and tolerances. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. AT SELLER’S DISCRETION, BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO THE CONFORMANCE OF ANY GOODS FURNISHED BY SELLER UNDER THIS AGREEMENT SHALL BE LIMITED TO EITHER: (1) REPLACEMENT OF SUCH GOODS AT THE F.O.B. POINT, OR (2) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE THEREOF UPON AUTHORIZED RETURN OF THE GOODS. In the event Seller has authorized Buyer to scrap all or any portion of the goods, the scrap allowance is to be credited to Seller.
6.2 Limitation of Liability. SELLER’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS, OR LOST SALES. BUYER’S LIMITED WARRANTY OF REPLACEMENT OR RETURN OF OR CREDIT ON THE PURCHASE PRICE ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES. SELLER AND BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE GOODS IS A CONSIDERATION IN LIMITING SELLER’S LIABILITY.
6.3 Technical Advice. Seller assumes no obligation or liability for any technical advice furnished by Seller, including without limitation, technical advice with respect to the use of Seller’s goods and services, all such technical advice being given and accepted at Buyer’s risk.
7.1 Severability. If any provision of these Terms and Conditions is declared invalid under applicable law, the affected provision will be considered omitted or modified to conform to applicable law. All other provisions will remain in full force or effect.
7.2 Nonwaiver. Seller’s failure to enforce or declare a default or breach with respect to Buyer’s nonperformance of these Terms and Conditions shall not be construed to be a waiver of Seller’s right to insist on strict compliance of any other term or condition or, on a subsequent occasion, with respect to that particular term or condition.
7.3 Force Majeure. Seller will not be liable for any delay in performance resulting in whole or in part from fires, floods, or other catastrophes; unusually severe weather conditions; strikes, lockouts or labor disruptions; wars, terrorist attacks, riots or embargo delays; mill conditions; shortages of transportation or other equipment, fuel, labor or materials; or any other circumstances or causes or acts of God or public enemy, whether similar or dissimilar, beyond the control of Seller in the reasonable conduct of its business.
7.4 Indemnification. Buyer agrees to indemnify and hold Seller harmless from all liability, damages, or costs, including attorney’s fees, relating to Buyer’s use of the Goods. If Goods are manufactured in accordance with Buyer’s designs, blueprints, drawings or specifications, Buyer agrees to indemnify and hold Seller harmless from all liability, damages and costs, including attorney’s fees, arising out of patent infringement claims.
7.5 Governing Law. These Terms and Conditions shall be governed by and construed in accordance with the law of New York, including the New York Uniform Commercial Code, without regard to conflict of law principles.
7.6 Jury Waiver; Jurisdiction; Venue. BUYER WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED TO THESE TERMS AND CONDITIONS AND BUYER SUBMITS TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS OF NEW YORK AND WAIVES ANY RIGHT TO ASSERT THAT ANY ACTION INSTITUTED BY BUYER IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR SHOULD BE TRANSFERRED TO A MORE CONVENIENT FORUM.
7.7 Entire Agreement. These Terms and Conditions represent the entire agreement between the parties relating to the subject matter herein and supersede any prior representations or agreements, oral or written, and all other communications. These Terms and Conditions will not be varied except in writing, signed by the parties.