COURTESY COPY ONLY
only the German version is legally binding
Terms and Conditions of Sale
The sale of products and services (“Products”) by Elbacom Elektronische Bauteile und Componenten HandelsgmbH (“Elbacom”) to a customer (“Customer”) are subject to these terms and conditions (“Agreement”) regardless of other terms or conditions in any purchase order, document, or other communication of Customer (“Order”) or Elbacom’s failure to object to such other terms. This Agreement may only be modified in writing signed by authorized representatives of both Elbacom and Customer. The Customer accepts the terms in this agreement by placing an order.
1. ORDERS. Unless otherwise stated on the quote, Elbacom quotes are provided upon Customer request and are subject to change at any time without notice. All Orders are subject to acceptance by Elbacom. Contracts between Customer and Elbacom are formed upon Elbacom’s written acceptance, Electronic Data Interchange (“EDI”) acknowledgment or execution of Customer’s Order and are subject to this Agreement. All Orders for Products that Elbacom identifies as non-standard or Customer specificare non-cancelable and non-returnable. Elbacom may identify Products as non-standard or Customer specificby various means including quotes, Products lists, attachments or exhibits. Customer may not change, cancel or reschedule Orders for standard Products without Elbacom’s consent. Elbacom reserves the right to allocate the sale of Products among its Customers.
2. PRICES. Unless otherwise stated on Elbacom’s proposal, quote or invoice, prices are for Products only and do not include taxes, freight, duties or any other charges or fees for additional services (collectively: “Additional Fees”). Unless otherwise stated on Elbacom’s proposal, quote or invoice, Customer is responsible for any and all Additional Fees.
3. PAYMENT TERMS. Payment is due as stated on Elbacom’s invoice without offset or any deduction for withholding taxes or otherwise. Elbacom may charge interest on any past due invoice, from the payment due date to the date of payment at 18% per annum or the maximum amount allowed by applicable law, plus reasonable attorneys’ fees and collection costs, with a minimum fee of EUR 40.00.
At any time, Elbacom may change the terms of Customer’s credit. Elbacom may apply payments to any of Customer’s accounts. If Customer defaults on any payment, Elbacom may reschedule or cancel any outstanding delivery or Order and declare all outstanding invoices due and payable immediately.
4. DELIVERY. Unless otherwise stated by Elbacom in writing, all Elbacom deliveries from the European Union shall be made to customer’s delivery location ex works or Elbacom warehouse (EXW), for direct shipments, EXW the manufacturer’s warehouse (INCOTERMS 2010).
Elbacom’s delivery dates are estimates only and subject to Elbacom’s timely receipt of supplies. Elbacom is not liable for delays in delivery, for partial or early deliveries and Customer shall accept delivery. Customer may not cancel any other Orders based on delayed delivery of any part of an Order.
5. TITLE. For sales from the as a form of payment security, title shall pass to Customer upon payment in full for the Product by Customer. In case of an onwards sale, Customer assigns all rights in the related receivables to Elbacom until Customer has made payment in full. Once the Product is processed or combined with other items (the “Processed Product”), Elbacom’s retained title transfers to a share in the title in the Processed Product reflecting the value of the Product relative to the value of the Processed Product.
6. SOFTWARE. Software is the machine readable (object code) version of computer programs
(“Software”). Customer’s use of Software and any related documentation shall be governed by the Software vendors applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and may not be transferred separately.
7. WARRANTY. Customer acknowledges that Elbacom is not the manufacturer of the Products. To the extent legally and contractually permitted, Elbacom shall pass through to Customer any transferable Product warranties, indemnities, and remedies provided to Elbacom by the manufacturer, including those for intellectual property infringement. If required by Austrian law, Elbacom warrants that at the time of delivery, Products will conform to the specifications stated by the manufacturer in its published data sheet for the Products. All warranty claims shall be time-barred 12 months from the time of delivery of the non-conforming Products. If Elbacom, or a business partner commissioned by Elbacom, performs value-added work such as integration work, tape-and-reel, or programming, Elbacom warrants such value-add work will conform to Customer’s written specifications accepted by Elbacom for 90 days after delivery by Elbacom.
TO THE EXTENT PERMITTED BY AUSTRIAN LAW, ELBACOM MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, SUCH AS WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. Customer’s sole remedies for breach of Elbacom’s warranty are, at Elbacom’s choice: (i) repair of the Products; (ii) replacement of the Products; or (iii) refund of Customer’s purchase price for the Products. Elbacom makes no representation or warranty with respect to Software and will have no liability in connection therewith. Unless it is specifically stated in the Software’s applicable license agreement, SOFTWARE IS PROVIDED “AS IS” WITH NO ADDITIONAL WARRANTY.
8. PRODUCT RETURN. Customer may return Products to Elbacom only with a return material authorization (“RMA”) number issued by Elbacom. (A) Returns for Visual Defect: Customer must notify Elbacom in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy (“Visual Defect”) within three business days after receipt of the shipment, but no later than six business days after dispatch of the goods by Elbacom; otherwise, Customer is deemed to have accepted the Products. (B) Returns for Product Warranty: Customer must notify Elbacom in writing stating the specific Product defect within the warranty period. Elbacom will only issue an RMA if the defect (either for Visual Defect or for Product Warranty) is created solely by Elbacom or the original manufacturer, and only if Customer meets the notice requirement. Elbacom will not grant RMAs for damage, shortage, or other discrepancy created by Customer, the carrier, freight provider, or any other third party. Upon receiving the RMA, Customer must return the Products to Elbacom in compliance with Elbacom’s instructions in the RMA. Elbacom may assess all Products returned by Customer via RMA. If Elbacom determines such Products are not eligible for return, Elbacom will send such Products back to Customer on freight collect basis, or hold such Products for Customer’s collection and on account at Customer’s expense.
9. LIMITATION OF LIABILITY. Elbacom’s liability to Customer is limited to Customer’s direct damages up to an amount not exceeding the price of the Product at issue. Also in the event of a negligent breach of the most important contractual obligations, Elbacom’s liability is limited to the conventional foreseeable damages. Elbacom is not liable for and Customer is not entitled to any indirect, special, incidental or consequential damages (for example, loss of profits or revenue, loss of data, loss of use, rework, repair, manufacturing expense, costs of product recall, injury to reputation or loss of customers). The foregoing does not apply to the extent that Elbacom is liable according to Austrian law due to mandatory legal regulations.
10. FORCE MAJEURE. Elbacom is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
11. USE OF PRODUCTS. Customer shall comply with the manufacturer’s technical product requirements, specifications and licensing terms to use the Product. For example, the Microsoft Product Terms to be currently found at: https://devicepartner.microsoft.com (as of 01.01.2018). The Customer is obliged to find the appropriate information from the manufacturer. Customer shall indemnify, defend and hold Elbacom harmless from any claims based on: (i) Elbacom’s compliance with Customer’s designs, specifications, or instructions, (ii) modification of any Product by anyone other than Elbacom, or a Partner or Company instructed by Elbacom, or (iii) use of Products in combination with other products or in violation of this clause.
12. EXPORT/IMPORT. Certain Products and related technology sold by Elbacom are subject to export control regulations of the manufacturer, the United States, the European Union, and/or other countries, excluding boycott laws (“Export Laws”). Customer shall comply with such Export Laws and obtain any license or permit required to transfer, export, re-export or import the Products and related technology. Customer shall not export or re-export the Products and related technology to any country or entity to which such export or re-export is prohibited, including any country or entity under sanction or embargoes administered by the United States, European Union and/or other countries. Customer shall not use the Products and related technology in relation to chemical, biological or nuclear weapons, rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) or unmanned air vehicles capable of delivering same, or in the development of any weapons of mass destruction.
13. ELECTRONIC ORDERS. If any part of the purchase and sale of Products, including Customer’s NCNR acknowledgment or demand forecast, uses EDI, Customer’s internal portal, third party portal or any other electronic means (“Electronic Purchase Order”), this Agreement will continue to apply to the purchase and sale of Products between Customer and Elbacom. Customer’s acceptance of Elbacom’s acknowledgment request or Elbacom’s specification of details with respect to Electronic Purchase Orders via writing, email or other EDI is binding on Customer.
14. ENVIRONMENTAL COMPLIANCE. Where applicable, Customer is responsible for all obligations and liabilities under the European Union’s (i) Waste Electrical and Electronic Equipment Directive
(2012/19/EU), (ii) Packaging Waste Directive (94/62/EC) and (iii) Batteries Directive (2006/66/EC), all as amended and all related national implementing measures in force from time to time.
15. GENERAL.
A. This Agreement shall be governed, construed, and enforced only in accordance with the laws of Austria.
B. Customer may not assign this Agreement without Elbacom’s prior written consent. This agreement is also valid for legal successors and parties to whom it has been assigned.
C. The unenforceability or invalidity of any of these terms or conditions will not affect the remainder of the terms or conditions.
D. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and user licenses, and Customer shall comply with such rights.
E. The parties agree that electronic signatures may be used and will be legally valid, effective, and enforceable.
F. Product information (for example, statements or advice (technical or otherwise) advertisement content, and information related to a Product’s specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by Elbacom on an “AS IS” basis or is published on the manufacturers Homepage and does not form a part of the properties of the Product. Elbacom makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION. Elbacom recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. Elbacom is not responsible for typographical or other errors or omissions in Product information.