CEC Catamarans GmbH, München, HRB222335; Woernbrunnerstr.23, 82031 Gruenwald / Munich, Germany
STANDARD TERMS AND CONDITIONS OF SALE
These terms and conditions of sale (“Agreement”) are applicable to any order placed with and accepted by us
(referred to herein as “Seller”):
The Buyer may place orders (“Order(s)”) with Seller for Seller products and all such Orders will be governed
solely by the terms and conditions contained in this Contract, unless otherwise mutually agreed. Any oral
understandings are expressly excluded. Seller shall not be deemed to have waived the terms and conditions
contained herein if it fails to object to provisions appearing on, incorporated by reference in, or attached to any
Buyer order form, and those provisions are hereby expressly rejected. No contrary or additional terms or
conditions contained in any Buyer order form shall apply unless agreed to in writing and signed by an authorized
representative of Seller. Additionally, Seller reserves the right to reject any Order submitted to it by Buyer.
Delivery shall be made within the time specified on Buyer’s Order or in accordance with Seller’s quoted lead
time. The delivery date stated on the order form is non-binding until the confirmation of the delivery 2 month
ahead of the delivery date. Transportation charges shall be prepaid and Buyer shall reimburse Seller upon receipt
of an invoice for such charges. Seller shall have the right to make early, accelerated and/or partial shipments in
advance of the contractual delivery schedule, in its sole and absolute discretion.
The Buyer shall inspect and accept, or reject products delivered pursuant to the Order immediately after Buyer
takes custody of such products. In the event the products do not comply with the applicable Seller drawings or
specifications, the Buyer shall notify the Seller of such nonconformance and give the Seller a reasonable
opportunity to correct any such non-conformance. The Buyer shall be deemed to have accepted any products
delivered hereunder and to have waived any such non-conformance in the event Seller does not receive
notification that the products delivered hereunder do not comply with the Seller’s drawings or specifications,
within fifteen (15) days after the Buyer takes custody of such products. Unless otherwise agreed, Buyer shall
have no right to conduct inspection at Seller’s facility. In the event the parties hereto mutually agree that Buyer
may inspect Seller’s product at Seller’s facility, any such inspection shall be conducted with reasonable prior
notice by Buyer to Seller and at reasonable times, on a non-interference basis, and such inspection shall not
include the right to establish mandatory inspection points or enter proprietary or competition-sensitive areas of
Seller at all times reserves the right, and is entitled in its sole discretion, to make changes, additions or
improvements to the products being delivered under an Order without liability or any obligation to incorporate
such changes, additions or improvements into any item or product manufactured, sold or delivered prior to
incorporation of the change, addition or improvement.
5. PRICES AND PAYMENTS.
Prices and payments will be in Euro, and payment shall be made in Euro currency. Prices quoted are believed to
be accurate; however, Seller reserves the right to correct any inadvertent errors in these prices prior to
acceptance of the Order. Unless otherwise expressly stated in an Order, all prices exclude shipping and taxes.
Payment terms are 40% of the Order Price, at Order acceptance by Seller, 40% of the Order Price 2 month prior
projected delivery date and 20% of the Order Price prior shipment. All payments need to be paid within 5 days
of the given date and separate payment advices will be send accordingly. In the event payments are not made in a
timely manner, Seller may, in addition to all other remedies provided at law, either: (1) declare Buyer’s
performance in breach and terminate this Order for default; (2) repossess the goods for which payment has not
been made; (3) withhold future shipments under this Order until delinquent payments are made; (4) charge
interest on the delinquency at a rate of 1.5% per month or the maximum rate permitted by law, if lower, for each
month or part thereof of delinquency in payment plus applicable storage charges, or inventory carrying charges;
or (5) recover all costs of collection including reasonable attorney’s fees; and (6) at Seller’s option combine any
of the above rights and remedies as provided by law.
All amounts that Buyer owes Seller under an Order shall be due and payable according to the terms of an
Order. Buyer is prohibited from and shall not set off such amounts or any portion thereof, whether or not
liquidated, against sums which Buyer asserts are due it, from its parent affiliates, subsidiaries or other divisions
or units under other transactions with Seller, its parents, affiliates, subsidiaries or other divisions or units.
As used in this Section “Non-conformance” means a failure to comply with or failure to operate due to
noncompliance with applicable Seller drawings or having defects in workmanship or material. Normal wear and
tear and the need for regular overhaul and periodic maintenance shall not constitute a Non-conformance –
reference is made to the warranty manual, which will be delivered together with the user manual at the delivery
date of the product.
Seller warrants that at time of delivery to Buyer, its Products will comply with applicable Seller drawings and
will be free from defects in workmanship and material. These warranties shall run to the Buyer, its successors,
and assigns. This warranty is valid for twenty four (24) months after Seller’s shipment of the Product. The
warranty period for Seller’s repair or replacement of the failed product only, covered by the warranty, shall be
the unexpired portion of the original warranty or 6 months after shipment of the repaired or replaced product,
whichever is longer.
Buyer must notify Seller in writing of the Non-conformance of any Product within the warranty period and return
the Product to Seller within thirty (30) days after such discovery. Prior to return of the Product to Seller, Buyer
must obtain a Return Material Authorization (RMA) from Seller. Seller reserves the right to return to Buyer any
Product received without a valid RMA. In the event Seller is unable to confirm Buyer’s reported
Non-conformance, Buyer agrees to pay Seller an Evaluation/No Defects Found Charge, the amount of which
shall be as specified in Seller’s Return Material Authorization. Seller’s obligation and Buyer’s remedy under this
warranty is limited to either repair or replacement, by Seller’s election, of any Product Non-conformance. Seller
agrees to assume round trip transportation costs for a nonconforming Product in an amount not to exceed normal
shipping charges to the nearest facility designated herein for warranty repair of products delivered under an
Order. The risk of loss or damage to all Products in transit shall be borne by the party initiating the
transportation of such Products.
Seller shall not be liable under this warranty if the Product has been exposed or subjected to:
1. Any maintenance, repair, installation, handling, transportation, storage, operation or use which
is improper or otherwise not in compliance with Seller’s instruction (see as well the warranty
2. Any alteration, modification or repair by anyone other than Seller or those specifically
authorized by Seller; or
3. Any accident, contamination, foreign object damage, abuse, neglect or negligence after
delivery to Buyer; or
4. Any damage precipitated by failure of a Seller supplied Product not under warranty or by any
Product not supplied by Seller.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE
WHICH ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT SHALL SELLER BE LIABLE FOR
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND. NO
EXTENSION OF THIS WARRANTY SHALL BE BINDING UPON SELLER UNLESS SET FORTH IN
WRITING AND SIGNED BY SELLER’S AUTHORIZED REPRESENTATIVE.
8. EXCUSABLE DELAY.
The Seller shall be excused from delays in delivery and performance of other contractual obligations under this
Order caused by acts or omissions that are beyond the reasonable control and without the fault or negligence of
Seller including but not limited to Government embargoes, blockades, seizure or freeze of assets, delays or
refusals to grant an export license or the suspension or revocation thereof, or any other acts of any Government,
fires, floods, severe weather conditions, or any other acts of God, quarantines, labor strikes or lockouts, riots,
strife, insurrection, civil disobedience, war, material shortages or delays in deliveries to Seller by third parties. If
the excusable delay circumstances extend for six months, either party may, at its option, terminate this Order
without penalty or liability and without being deemed in default or in breach thereof.
Buyer reserves the right to cancel any portion of this Order affected by a default of Seller or any insolvency or
suspension of Seller’s operations or any petition filed or proceeding commenced by or against Seller under any
state or federal law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the
benefit of creditors.
Except as otherwise specifically agreed in writing by Buyer and Seller, any dispute relating to an Order placed
by a Buyer and/or the Product itself should be solved via all possible nonjudicial settlement options first (for
example mediation agreements). Only if the dispute is not resolved via amicable or mediation agreements by the
parties it shall be adjudicated by any court of competent jurisdiction in Munich, Germany.
11. APPLICABLE LAW.
This Agreement shall be interpreted in accordance with the laws of the jurisdiction of Germany. The Seller and
Buyer expressly agree to exclude from this Agreement the United Nations Convention on Contracts for the
International Sale of Goods, 1980, and any successor thereto.
Unless otherwise agreed, Buyer shall be responsible for compliance with the import control laws and regulations
of its respective Government, and when required by such laws and regulations shall obtain validated import and
re-export licenses required for goods, services and technical data delivered under this Order. Seller shall not be
liable to Buyer for any failure to provide goods, services or technical data as a result of any following
Government actions: (1) refusal to grant import or re-export license; (2) cancellation of import or re-export
license; or (3) any subsequent interpretation of export laws and regulations, after the date of this order, that limits
or has a material adverse effect on the cost of Seller’s performance on this Order. The seller will provide
European Conformity declaration documents and labels.
13. LIMITATION OF LIABILITY.
Seller’s liability on any claim for loss or damage arising out of, connected with, or resulting from an Order, or
from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any
product covered by or furnished under an Order shall in no case exceed the price allocable to the product or part
thereof which gives rise to the claim, except as provided in the paragraph entitled “Patent Indemnity”. In no
event shall Seller be liable for special, incidental or consequential damages. Except as herein expressly provided
to the contrary, the provisions of this Order are for the benefit of the parties to the Order and not for the benefit
of any other person.
14. NONDISCLOSURE AND NON-USE OF SELLERS INFORMATION.
Buyer agrees that it will not use Seller’s data for the manufacture or procurement of products which are the
subject of this Order or any similar products, or cause said products to be manufactured by or procured from any
other source, or reproduce said data and information or otherwise appropriate them without the written
authorization of the Seller. Buyer agrees that it will not disclose or make available to any third party any of
Seller’s data or other information pertaining to this Order which is proprietary to Seller without obtaining
Seller’s prior written consent.
15. PATENT INDEMNITY.
Except insofar as an Order calls for products pursuant to Buyer’s designs, drawings or specifications, Seller
agrees to pay the amount of any final judgment against Buyer resulting from a suit claiming that any commercial
products manufactured or furnished hereunder, by reason of their manufacture, sale or use, infringes any local
patent which has issued at date of contract, and Buyer’s reasonable costs and expenses in defense of such suit if
Seller does not undertake the defense thereof, provided Seller is promptly notified of the threat or
commencement of such suit and is offered full and exclusive control to conduct the defense or settlement
Seller’s indemnity shall not apply where infringement would not have occurred from the normal use for which
the products were designed. No responsibility is assumed for actual or alleged infringement of any foreign
patent. Seller’s liability for damages hereunder is limited to those computed solely on the value of any products
sold to Buyer. In no event shall Seller be liable for consequential damages or costs applicable thereto. In the
event of any claim that a product furnished hereunder infringes any local patent, Seller may at its option and
expense (a) procure for Buyer the right to continue using the product, or (b) replace or modify the product so that
it becomes non-infringing, or (c) grant Buyer a credit for such product, less a reasonable depreciation for use,
damage, and obsolescence upon its return to Seller. Buyer agrees to pay all costs and expenses incurred by
Seller in its defense and the amount of any judgment against Seller, in any suit or proceeding against Seller
based upon a claim of infringement, resulting solely from the Buyer combining any product furnished hereunder
with any item not manufactured or furnished by Seller or from the sale or use of any such combination by
Buyer. Seller shall also indemnify Buyer’s Buyers and agents for such infringement, if and to the extent that
Buyer has agreed so to indemnify them, but to no greater extent than Seller has indemnified Buyer herein and
under the same conditions as set forth herein. In the event any product to be furnished under this Order is to be
made in accordance with drawings, samples or manufacturing specifications designated by Buyer and is not the
design of Seller, Buyer agrees to defend, indemnify and hold Seller harmless to the same extent and subject to
the same requirements as set forth in Seller’s obligation to Buyer as above. The above is in lieu of any other
indemnity or warranty, express or implied by Seller, with respect to intellectual property (patents, trade secret,
mask works, trademarks, copyrights, or the like).
16. SPECIAL TOOLING AND DATA.
Unless otherwise agreed in writing, all material, software, data processes, equipment, facilities and special
tooling, which term includes but is not limited to jigs, dies, fixtures, molds, patterns, special taps, special gages,
special test equipment, other special equipment and manufacturing aids and replacements thereof, used in the
manufacture of products covered by an Order shall be and remain the property of Seller. Seller retains all rights,
title and interest in drawings, engineering instructions, specifications, and all other written data, if any, furnished
with the products.
The prices quoted herein do not include sums necessary to cover any taxes or duties including but not limited to
Federal, State, Municipal excise, sales or use taxes or import duties upon the production, sales, distribution, or
delivery of goods or furnishing of services hereunder. Any taxes or duties that are due and owing hereunder
shall be paid by the Buyer. Accordingly, Seller reserves the right to revise its price after the execution of this
Order between the parties to include any and all taxes or duties that may become due hereunder and Seller may
invoice Buyer for said additional amount. This clause shall survive the acceptance and complete performance of
this Order by the parties herein.
Neither party shall assign this Order or any portion thereof without the advance, written consent of the other
party, which consent shall not be unreasonably withheld. The non-assigning party shall not have any obligation
to an assignee of the assigning party unless such consent is obtained.
Failure by Seller to assert all or any of its rights upon any breach of this Order shall not be deemed a waiver of
such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the
acceptance of any payment or service. No waiver of any right shall extend to or affect any other right Seller may
possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
If any provision of these Conditions of Sale is determined to be illegal, invalid, or unenforceable, for any reason,
then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall
remain in full force and effect.
CEC Catamarans GmbH, München, HRB222335; Woernbrunnerstr.23, 82031 Gruenwald / Munich, Germany