STANDARD TERMS AND CONDITIONS OF SALE- PRODUCTS & SERVICES
- In these Terms and Conditions of Sale, “Seller” means CosMed Kft.-Sóskút, Hungary.; “Buyer” means the person, firm, company or corporation by whom the order is given.
- These Standard Terms and Conditions of Sale (“Terms”) apply to the purchase of products and ancillary services (collectively the “Products”) by seller (“Seller”) and the buyer (“Buyer”), each of which is identified in the accompanying quotation, proposal, distributor agreement, order acknowledgement, or invoice (the “Sales Confirmation”). These Terms and the Sales Confirmation comprise the entire agreement between the parties (collectively, the “Agreement”). Buyer accepts these Terms by signing and returning Seller’s order acknowledgement, by sending a purchase order, or by Buyer’s instructions to Seller to ship the Product. No terms, conditions or warranties other than those identified in the quotation and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on Seller unless hereafter made in writing and signed by Seller’s authorized representative. Buyer is hereby notified of Seller’s express rejection of any terms inconsistent with this Agreement or to any other terms proposed by Buyer in accepting Seller’s quotation. Neither Seller’s subsequent lack of objection to any terms, nor the delivery of the products or services, shall constitute an agreement by Seller to any terms.
- Cancellation or modifications of all or part of any order are subject to Seller’s prior written consent in each instance. If cancellation or modification is allowed, Buyer agrees to pay to Seller all expenses incurred and damage sustained by Seller on account of the cancellation or modification, plus a reasonable profit.
- All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes”). Any Taxes related to the Products purchased pursuant to this Agreement are the responsibility of Buyer (excluding taxes based on Seller’s net income), unless Buyer presents an exemption certificate acceptable to Seller and the applicable taxing authorities. If possible, Seller will bill Taxes as a separate item on the invoice presented to Buyer. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will pay Seller the amount of the Tax and any penalties and interest related thereto.
- Buyer will pay all invoiced amounts in full, without set-off, counterclaim or withholding of any kind (save where and to the extent that this cannot by law be excluded), within the given due date that is stated on Seller’s invoice, in the stated currency. Seller reserves the right to: (i)charge interest on any overdue sums at 4% above the base lending rate of the Hungarian National Bank (or such higher rate stipulated by applicable law) during the period of delay; (ii) suspend performance of the Contract (including withholding shipment) in the event that Buyer fails or in Seller’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Contract or any other contract; and (iii) at any time require such reasonable security for payment as Seller may deem reasonable. Buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Seller, regardless of whether relating to Seller’s breach, bankruptcy, or otherwise.
- DELIVERY; SHIPPING.
(a) Seller will deliver the Products within twenty-eight (28) days’ time after receiving Buyer’s purchase order, subject to their availability. The delivery date provided by Seller for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes Seller to delay shipment or completion of the Products, Seller will be entitled to any and all extra costs and expenses resulting from the delay. Seller will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on Seller’s part.
(b) Unless otherwise agreed in writing by the parties, Seller will deliver the Products, EXW (Incoterms® 2010) at the location specified in the Sales Confirmation (the “Delivery Location”), using Seller’s standard methods for packaging and shipping same. Buyer will take delivery of the Products within three (3) days of Seller’s notice that the Products have been delivered to the Delivery Location. If Buyer fails to take delivery of the Products within this three (3) day period Buyer will pay Seller for the Products and all storage expenses incurred by Seller. Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense.
(c) The quantity of any instalment of the Products, as recorded by Seller on the dispatch from Seller’s place of business, is conclusive evidence of the quantity received by Buyer upon delivery, unless Buyer provides conclusive evidence to the contrary. Seller will not be liable for any non-delivery of the Products to the Delivery Location, unless Buyer gives written notice to Seller of the non-delivery within five (5) days following the date that Buyer would, in the ordinary course of business, have received the Products. Seller’s liability for any non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered.
- TITLE; RISK OF LOSS.
(a) Risk of loss or damage passes to Buyer passes upon delivery to the carrier. If Buyer fails to accept delivery of any of the Products on the date set forth in Seller’s notice that Seller has delivered the Products to the Delivery Location, or if Seller is unable to deliver the Products to the Delivery Location on the date because Buyer has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) risk of loss to the Products will pass to Buyer; (ii) the Products will be deemed to have been delivered to Buyer; and (iii) Seller, at its option, may store the Products until Buyer takes possession of them, at which time Buyer will be liable for all costs and expenses resulting from the failure (including but not limited to the cost of storage and insurance).
(b) Title passes to Buyer upon Buyer’s payment in full for the Products.
- INSPECTION; REJECTION OF PRODUCTS.
(a) As used in this Section 7, “Nonconforming Products” means only the following: (i) the items shipped are different from those identified in Buyer’s purchase order; or (ii) the labels or packaging of the items incorrectly identifies them. Buyer will inspect the Products within five (5) days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies Seller in writing of any Nonconforming Products and furnishes Seller with written evidence or other documentation reasonable required by Seller.
(b) If Buyer timely and properly notifies Seller of any Nonconforming Products, then Seller will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products or (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At Seller’s request, Buyer will dispose of the Nonconforming Products or return the Nonconforming Products to Seller at Buyer’s expense. Upon receipt of the Nonconforming Products, Seller will promptly refund the monies owed or ship the replacement Products to the Delivery Location at Seller’s expense, with Seller retaining the risk of loss until delivery.
(c) Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Products, and except as set forth in this Section 7, Buyer has no right to return the Products to Seller without Seller’s written authorization.
- DEFECTS AFTER DELIVERY.
Seller warrants (i) subject to the other provisions of the Contract, good title to and the unencumbered use of theGoods; (ii) that Goods manufactured by Seller and/or Seller’s Affiliates shall conform with Seller’s specifications therefore and be free of defects in materials and workmanship. Seller will make good by the supply of a replacement part or parts, any defects which, under proper use, care and maintenance, appear in Goods of Seller’s Affiliates’ manufacture and which are reported to Seller within 12 calendar months after their delivery (the “Warranty Period”) and which arise solely from faulty materials or workmanship: provided always that defective items are returned to Seller at Buyer’s cost carriage and insurance prepaid within the Warranty Period. Repaired or replacement items will be delivered by Seller at Seller’s cost to Buyer.
Goods replaced shall be subject to the foregoing warranty for the unexpired portion of the Warranty Period or for ninety days from the date of their return to Buyer (or completion of correction in the case of Services), whichever expires the later.
Seller shall not be liable for any defects caused by: fair wear and tear; materials or workmanship made, furnished or specified by Buyer; non-compliance with Seller’s storage, installation, operation or environmental requirements; lack of proper maintenance; any modification or repair not previously authorized by Seller in writing. Seller’s costs incurred in investigating and rectifying such defects shall be paid by Buyer upon demand. Buyer shall at all times remain solely responsible for the adequacy and accuracy of all information supplied by it.
- In addition to any other remedies that Seller may have, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and the failure continues for five (5) days after Buyer’s receipt of written notice of non-payment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for the use of performing the Agreement, and may not be disclosed or copied unless authorized in advance by Seller in writing. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
- FORCE MAJEURE.Seller will not be liable for any failures or delays caused by strikes, differences with workers, or any causes beyond the reasonable control of Seller, including but not limited to fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labour, energy, raw materials, production facilities, or transportation. Where delays or failures are caused by labour difficulties, Seller will not be obligated to seek or obtain any settlement that, in Seller’s sole judgment, is not in Seller’s best interest.
- Each party will comply with all applicable laws, regulations, and ordinances, and Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.
- GOVERNING LAW; VENUE; DISPUTE RESOLUTION.
The interpretation of the contract shall be made in accordance with the Hungarian law, the Hungarian law shall prevail relating the contractual terms and the Hungarian court shall have the exclusive jurisdiction relating the contractual terms.
- CHOICE OF LANGUAGE.It is by the express intention of the parties hereto that the present Agreement and all its related documents be drafted in English.
- These General Terms shall remain in full force even in after the termination of the contract for a period of time, which is needed for their full fulfilment.
The obligations provided in the individual sections or sub-sections of the General Terms shall be considered as separate obligations and can therefore be applied individually. In this way, if certain sections or sub-sections cannot be applied (are not valid), this shall have no effect on the validity of the remaining sections or sub-sections.
When the Customer submits an order to CosMed Kft, a contract is concluded between the Customer and CosMed Kft. by submitting the order the Customer accepts the General Terms stipulated in the present document.