1.Scope
1.1 These General Terms and Conditions shall apply to all transactions between RIEGL USA, Inc. (hereinafter referred to as “RIEGL USA”) and its agents and customers etc. (hereinafter referred to as “Counterparty”) for the supply of products, software licenses and for the provision of services, etc.
1.2 If individual provisions of these General Terms and Conditions are directly in conflict with provisions set out in offers or order acknowledgements of RIEGL USA, the provisions set out in offers and order acknowledgements shall take precedence. In such case only those provisions of these General Terms and Conditions are valid that do not directly conflict with the provisions of the offers or order acknowledgements of RIEGL USA.
1.3 Counterparty expressly accepts that RIEGL USA objects to any and all provisions in an order or in other business documents of the Counterparty that deviate from terms and conditions referenced herein, unless RIEGL USA expressly consents to Counterparty’s terms and conditions that are specifically outlined in the purchase documents.
1.4 These General Terms and Conditions shall also apply as a framework agreement to all further transactions with the Counterparty.
2. Offer
2.1 All offers are valid for 30 business days, unless otherwise specifically stated. RIEGL USA IS ENTITLED TO CORRECT MERE TYPING AND CALCULATION ERRORS CONTAINED IN OFFERS, ORDER ACKNOWLEDGEMENTS OR INVOICES AT ANY TIME.
2.2 Offers and related documents are the sole and exclusive property of RIEGL USA and shall neither be duplicated nor made available to third parties. RIEGL USA can reclaim any documents at any time by making a request to Counterparty to return said documents, in which event Counterparty shall promptly return said documents to RIEGL USA.
3. Conclusion of contract
3.1 The contract shall be deemed concluded as soon as RIEGL USA receives final payments or delivery, whichever is later.
3.2 Information contained in catalogues, brochures, the RIEGL USA webpage etc. as well as any other written or oral statements shall only be binding if the order acknowledgement expressly refers to them.
3.3 Later amendments and supplements to the contract or side agreements require a written confirmation of RIEGL USA to be valid.
4. Prices
4.1 Unless stated otherwise, prices do not include shipping, duties, taxes, insurance or other charges incurred in connection with delivery, all of which shall be paid by the Counterparty.
4.2 In case of repair orders, RIEGL USA shall provide the Counterparty with an estimate of repair before proceeding. Counterparty shall have the option of having the instrument repaired based upon such estimate or returned unrepaired and Counterparty shall pay the cost of shipping and any testing fees incurred by RIEGL USA.
5. Delivery
5.1 Counterparty acknowledges that each order is normally placed by RIEGL USA with the manufacturer and built for each Counterparty at the time the order is placed and, therefore, delivery dates are estimates based upon manufacturer’s expected date of delivery to RIEGL USA. RIEGL USA reserves the right to adjust delivery dates based upon updated manufacturer timetables.
5.2 All delivery of products is made EX WORKS RIEGL USA’s offices Orlando, Florida.
5.3 Counterparty shall have five (5) business days following receipt of shipment within which to inspect the shipment of the products and notify RIEGL USA of any defects or non-conforming orders or products.
5.4 If the Counterparty discovers a defect upon opening the package(s), which obviously is attributable to damage caused during transportation, the Counterparty must advise RIEGL USA with appropriate documentation within five (5) business days after receipt of the shipment, otherwise the damage will not be covered by the insurance company. Third Party Shippers are responsible for transportation damages.
5.5 In the event of the occurrence of unforeseeablecircumstances or contingencies beyond the control of the parties, such as all events of force majeure, which prevent meeting the agreed delivery date, said delivery date shall be extended for a period equal to the duration of such events, to the exclusion of any and all legal claims that the Counterparty otherwise may have; such events shall include but are not limited to acts of God, epidemics, armed conflicts, interventions and prohibitions of authorities, transport and customs delay, shipping damage, power and raw material shortage, labour disputes and default of a major supplier that is difficult to replace. The abovementioned events justify the extension of the delivery date also if they occur with suppliers utilized by RIEGL USA.
5.6 Counterparty acknowledges the exportation from the United States of materials, products and related technical data (and the re-export from elsewhere of United States origin items) is subject to compliance with United States export Laws, including, without limitation, the United States Bureau of Commerce Export Administrations Regulations, the Federal Food, Drug and Cosmetic Act and regulations of the FDA issued thereunder, and the International Traffic and Arms Regulations which restrict export, re-export, and release of materials, products and their related technical data, and the direct products of such technical data.
6. Payment
6.1 Unless different payment terms are presented in the offer, the invoice balance shall be due in full with a 10% deposit, 90% upon notice of delivery pursuant to Section 5. Any discounts or rebates extended to Counterparty are only valid and honored if payment is made in full in accordance with the terms of said discount or rebate. Payments shall be made without deductions, hold back or offset.
6.2 Deposits are non-refundable.
6.3 In the event RIEGL USA does not receive full and timely payment, RIEGL USA shall have the right to demand immediate payment of all open receivables from such Counterparty and charge 1.25% interest per month on any unpaid amounts, plus all costs of collection, including reasonable attorneys’ fees actually incurred by RIEGL USA in connection therewith.
6.4 RIEGL USA retains a security interest in any and all products delivered hereunder until the invoiced amounts, plus any interest and other charges due with respect thereto have been paid in full.
6.5 Title of all delivered goods passes to the Counterparty upon final delivery.
7. Cancellation
7.1 Counterparty cannot cancel orders for custom instruments or systems special ordered from the factory. For all other orders, cancellation requires RIEGL USA’s approval. Cancellation request must be submitted in writing. Upon approval, cancellation is subject to a cancellation fee. Forfeited deposit is not the exclusive remedy in the event of a default.
8. Warranties
8.1 RIEGL USA warrants that at the time of purchase (i) the product is free from defects in material and workmanship and will conform to RIEGL USA’s specifications applicable to the product purchased; (ii)upon payment in full, the product shall be rendered free and clear of all liens, claims or encumbrances of any kind; and (iii)with respect to repair services, such services shall be performed in a workmanlike manner using qualified service technicians familiar with the products and their operation.
8.2 RIEGL USA shall incur no liability (and any warranty hereunder is void)if (i) the Counterparty or a third party changes, repairs, opens and/or dismounts the product; (ii) the alleged defect is caused by accident, negligence, alteration, abuse or misuse by Counterparty;(iii) upon RIEGL USA’s inspection, verifiable tests disclose that the alleged defect is not due to defects in material or workmanship; or (iv) if any conditions for the assembly, start-up and utilisation (such as included e.g. in the operating instructions) or official conditions for admission are not complied with.
9.Disclaimer of Warranties; Limits of Liability
9.1 THE SELLER HAS MADE NO WARRANTY THAT THE PRODUCTS, SERVICES, LICENSED SOFTWARE ETC. COVERED BY THESE GENERAL TERMS AND CONDITIONS ARE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION CONTAINED IN SECTION 8.1 ABOVE
Furthermore, to the maximum extent permitted by law, ALL IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED AND ARE EXPRESSLY DISCLAIMED BY RIEGL USA AND ITS SUPPLIERS.
9.2 Except as expressly provided herein, RIEGL USA’s sole liability with respect to any defective or nonconforming products shall be(at RIEGL USA’s option) either (a) to repair or replace (at RIEGL USA’s option) any defective product or (b) to refund the purchase price to Counterparty upon return of any defective or non-conforming product.
9.3 For direct damages suffered by the Counterparty due to wilful misconduct or gross negligence of RIEGL USA, and/or wilful misconduct or gross negligence of the various agents of RIEGL USA., RIEGL USA’s liability is limited at the maximum to one-half of the value of the business transaction between RIEGL USA and Counterparty. The Counterparty must prove the existence of wilful misconduct or gross negligence on the part of RIEGL USA.
The liability of RIEGL USA in the event of slight negligence is excluded, except in the case of personal injury. Regarding personal injuries, the Counterparty must prove at least slight negligence on the part of RIEGL USA.
Except as expressly otherwise stated herein, compensation for purely financial losses, loss of profit, interest loss and/or damage(whether direct, indirect, incidental, consequential or punitive),either caused to the Counterparty and/or arising from third-party claims shall be excluded to the extent permitted by law.
9.4 Claims for damages against RIEGL USA shall be time barred and lapse 24 months after the time of delivery. The Counterparty shall promptly inform RIEGL USA of the damage by written notice within a reasonable time, at the latest, however, within 8 business days after occurrence.
9.5 If the Counterparty is itself held liable on the basis of product liability laws or similar regulations, the Counterparty expressly waives every right of recourse against RIEGL USA. If the Counterparty introduces the goods RIEGL USA has delivered onto another market, it is obligated to exclude vis-à-vis its business partner the duty of replacement, to the extent that is possible and permissible according to the applicable law. In this case or in the event of the omission of this duty to exclude liability, the Counterparty is obligated to defend, indemnify and hold RIEGL USA harmless against third-party product liability claims.
10. Industrial property rights
10.1 If a product is manufactured based on design details, drawings, models and other Counterparty’s specifications, the Counterparty shall defend, indemnify and hold RIEGL USA and/or its suppliers harmless from any violation of industrial property rights.
11. Assertion of claims
11.1 Unless separately agreed provisions or statutory provisions stipulate shorter periods in individual cases, all Counterparty’s claims shall be asserted in court within 24 months from the day of the passing of the risk, or else the claims shall be forfeited.
12. Salvatorius clause
12.1 Should individual provisions of the contract or these provisions become void, the validity of the remaining provisions shall in no way be affected. The void provision shall be replaced by a valid provision coming as close as possible to the sense and spirit and purpose of the achieved target in economic terms.
13. Governing Law/Venue
13.1 Any contract between RIEGL USA and Counterparty which is subject to these General Terms and Conditions shall be exclusively governed by and construed in accordance with the laws of the State of Florida. In the event of any legal or equitable action arising out of or in connection with such contract, the venue and jurisdiction of such action shall lie exclusively within the state courts of Florida located in Orlando, Orange County, Florida. The parties specifically waive any other venue and consent to such jurisdiction.
