GENERAL TERMS & CONDITIONS OF SALE TO BUSINESS CUSTOMERS (INCLUDING DEVELOPMENT SERVICES)

STRATEC Consumables GmbH, A-5081 Anif, Sonystrasse 20

 NOTE:  these Terms and Conditions are governed by English law and are subject to the jurisdiction of the English courts; they contain limitations on the liability of STRATEC Consumables

 1.       Interpretation

1.1.             In these Terms:

“AO” means the acknowledgement of the relevant Order (if any) issued by STRATEC Consumables to the Customer;

“Contract” means the contract between STRATEC Consumables and the Customer created as referred to in clause 2.1;

“Customer” means the person to which the Quotation is addressed;

“Goods” means to be supplied by STRATEC Consumables pursuant to the contract or which STRATEC Consumables otherwise agrees to supply to the Customer (including any instalments or parts of the Goods);

 “Intellectual Property Rights” means copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;

“liability in relation to” means “liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and value added tax and other applicable taxation), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with”;

“Manufacturing Technology” means any products, materials, tools, or Intellectual Property Rights which:

(a)      comprise any aspect  of the means of producing the Goods (including drawings, DVD and CD, moulding, dyes and other equipment, know-how and processes) whether already owned by STRATEC Consumables or developed by STRATEC Consumables later and whether or not pursuant to the Contract and including the entire range from design to manufacturing, to mastering, plating, moulding, embossing, coating, bonding, assembly, and packaging, and including, without limitation, that which pertains to design and development of the processes used to produce the Goods; or

(b)      are used by STRATEC Consumables in performing its obligations under the Contract and are not items in which the Customer owns the Intellectual Property Rights before providing the items to STRATEC Consumables;

“Order” means an order issued by the Customer to STRATEC Consumables in writing (e.g. by email) in response to and in acceptance of STRATEC Consumables’ Quotation;

“Price”, subject to these Terms, means the price for the Goods as quoted in the Quotation;

“Quotation” means a quotation issued by STRATEC Consumables to the Customer setting out specific terms and pricings of a prospective contract of sale;

“STRATEC Consumables” means the company which issues the Quotation;

“Specification” means the specification of the Goods or (in the case of development services to which clause 12 applies) the specification of the works or the product which is the subject of those services, as stated in the Quotation, as subsequently varied pursuant to the Contract;

“Third Party Goods” means any Goods supplied to the Customer pursuant to a Contract which were not manufactured by STRATEC Consumables.

1.2.             A payment shall be deemed made when it is cleared funds in the payee's bank account.

1.3.             Unless otherwise stated the phrase "in writing" or ''written'' includes any document which is recorded in manuscript or typescript, and email, but excludes instant messaging, mobile telephone text messages, tweets, and voicemail and other voice messages automatically converted to text.

1.4.             Words in the singular include the plural and vice versa.

1.5.             English is the authentic text of each Contract and all notices or other communications under or relating to it shall be in writing in English.  Any translation will be for guidance only.

2.       Contracts

2.1.             A Quotation is not an offer and may be withdrawn or modified at any time until the Contract is formed in relation to it; the Contract shall be formed by STRATEC Consumables sending an AO to the Customer in response to the Order or commencing work on, or appropriating goods to, performance in specific response to an Order relating to the Quotation. Until the Contract is formed neither party shall have any commitment arising from the issue of a Quotation or Order.

2.2.             Save as otherwise agreed in writing by STRATEC Consumables, each Contract shall comprise solely these Terms and the terms stated in the Quotation or in any AO; no other terms shall have effect. In the event of any conflict between an AO, a Quotation and these Terms, the AO shall prevail over the Quotation and these Terms and the Quotation shall prevail over these Terms. Subsequent variations of the Contract shall prevail over the AO, the Quotation and these Terms.

2.3.             No variation of the Contract shall be effective unless in writing signed by an authorized representative of each party but STRATEC Consumables may vary the Specification if the alteration does not materially degrade their performance, utility or dimensions.

2.4.             If any variation in the Specification or the Contract is agreed or is required for compliance with any applicable law, regulation or safety recommendation the Customer shall pay such additional amount as is fair and reasonable and STRATEC Consumables shall have reasonable additional time to perform the Contract.

3.       Prices and payment

        General

3.1.             All prices are in the currency stated in the Quotation and if not stated in the Quotation Euros shall be agreed on. The Customer shall pay the Price to STRATEC Consumables in that currency clear of any banking transaction charges and without any deduction, set off or counterclaim whatsoever, in accordance with the payment terms stated in the Quotation, or if none are stated, within thirty days of invoice, to such account as STRATEC Consumables specifies for the purpose.

3.2.             All payments shall be applied first against the expenses (such as dunning and legal expenses), then against interest accrued, and finally against the capital in order of age of invoice, oldest first. Cheques and bills of exchange will not be accepted except by special agreement and merely on account of payment (not in lieu of payment) and shall be considered payment upon encashment to cleared funds in STRATEC Consumables’ account, at the value credited to STRATEC Consumables by the bank. STRATEC Consumables may refuse, without showing cause, any payment offered by cheques or bills of exchange.

3.3.             The Price is exclusive of value added tax, sales tax, excise duty, import duties or export duties all of which shall be paid by the Customer in addition to the Price.

3.4.             Without limiting STRATEC Consumables’ remedies if payment is overdue, the Customer shall indemnify STRATEC Consumables against any legal fees and other costs of collection and (as well after as before judgment) shall pay to it a sum equal to any loss suffered by STRATEC Consumables arising from exchange rate fluctuations and interest on such sum and on the amount overdue at 8% per annum calculated from the date payment fell due until the date of actual payment.

3.5.             If the Customer fails to provide to STRATEC Consumables any information, materials or other item as and when required by the Contract to do so STRATEC Consumables shall be entitled to reasonable additional time for performance and if such failure delays or prevents STRATEC Consumables achieving a milestone or other event entitling it to payment of any sum, that sum shall be due for payment when, but for the Customer's failure, it might reasonably be expected to have fallen due assuming there had been no such failure.  STRATEC Consumables may delay or withhold performance under the Contract until the Customer has made any payment or opened any letter of credit or established any other payment arrangements which under the Contract or pursuant to any other written agreement between the parties are due to be made, opened or established and its time for performance shall be extended accordingly.

4.       Ownership and Risk

4.1.             Until payment has been made of the whole of the Price and other monies payable by the Customer under a Contract and of all other monies owing by the Customer to STRATEC Consumables when the payment of the Price falls due:

(a)      the Goods shall continue to be owned by STRATEC Consumables; the Customer shall hold such Goods as STRATEC Consumables’ fiduciary agent and bailee, stored separately from those belonging to any other person and labelled so as to show clearly that they are the property of STRATEC Consumables and properly protected, treated and insured;

(b)      STRATEC Consumables may recover and/or resell the Goods, require their return to STRATEC Consumables and enter upon the Customer's or any carrier's premises for that purpose; the Customer grants STRATEC Consumables an irrevocable licence to this effect which shall survive termination of the Contract;

(c)       upon disposal by the Customer of the Goods it shall account to STRATEC Consumables for the proceeds and shall keep such proceeds separate from any other monies or property and (if tangible) properly stored and insured;

(d)      STRATEC Consumables shall have a right of lien over any goods or materials belonging to the Customer which are in STRATEC Consumables’ possession or control; and

(e)      the Customer shall not pledge or charge by way of security for any indebtedness any of the Goods which remain STRATEC Consumables’ property; if it does so all monies then owing by the Customer to STRATEC Consumables shall become immediately due and payable.

4.2.             Risk of damage to or loss of the Goods shall pass to the Customer at the earlier of the time when STRATEC Consumables notifies the Customer that the Goods are available for collection or upon STRATEC Consumables first despatching the Goods from its premises.

5.       Supply and Delivery

5.1.             STRATEC Consumables shall supply the Goods in conformity with the Specification and upon and subject to the provisions of the Contract; STRATEC Consumables may deliver the volume of goods with a tolerance of plus or minus five per cent of that stated in the Contract and such delivery shall satisfy STRATEC Consumables’ obligation to supply the Goods; the Customer shall accept and pay for the volume so delivered.

5.2.             Save as otherwise specified in the Quotation or agreed in writing by STRATEC Consumables, delivery of items to be supplied by STRATEC Consumables under the Contract shall be made by STRATEC Consumables EXW INCOTERMS 2010 STRATEC Consumables’ production premises or warehouse.  If the Customer fails to take delivery or to give adequate delivery instructions, then (without prejudice to its other rights) STRATEC Consumables may store or dispose of the items, in which case the Customer shall pay to STRATEC Consumables upon request the amount of any reasonable storage or disposal charges.  Whilst STRATEC Consumables will seek to meet the stated delivery time, it is approximate and STRATEC Consumables shall not incur liability in relation to late delivery.   If no time for delivery is agreed the Customer shall accept the Goods when ready for delivery.

5.3.             STRATEC Consumables may deliver in instalments constituting separate contracts; delay in delivery of any instalment will not entitle the Customer to terminate the Contract, nor permit the set off of any payments in respect of one delivery against any claim in respect of any other delivery.  Where Goods are delivered by instalments STRATEC Consumables may issue separate invoices.

5.4.             If the Customer specifies and STRATEC Consumables agrees that Goods be shipped and invoiced to a third party the Customer shall continue to be liable towards STRATEC Consumables. STRATEC Consumables shall have the right to charge the extra cost incurred for packing and transportation. If the delivery is to be carried out on behalf of the Customer by STRATEC Consumables directly to a third party in a non-EU country, the Customer shall make available to STRATEC Consumables either the commercial invoice or the merchandise value which has to be paid by the third party for the assessment of the import taxes.

5.5.             If such delivery is carried out to a third party in an EU country, the Customer shall make available to STRATEC Consumables the VAT identification number of the third party prior to the delivery. If such information is not provided by the Customer or is incomplete or incorrect, it shall indemnify STRATEC Consumables against all liability in relation to such failure, particularly any customs penalties and duties.

6.       Inspection and acceptance

6.1.             The Customer shall inspect and test the Goods supplied under a Contract and shall:

(a)      within ninety-six hours from their arrival at their shipping destination give written notice to STRATEC Consumables of any damage or shortfall reasonably apparent upon visual inspection; and

(b)      within thirty days from their arrival at their shipping destination give written notice to STRATEC Consumables of any damage or shortfall which is not reasonably apparent on visual inspection.

In the absence of such notices, the Goods shall be deemed to comply with the Contract and the Customer shall accept them. The Goods are sold as a batch and without prejudice to the Customer's right to reject all the Goods the Customer may not reject some only of the Goods.

7.       Exclusion and limitation of liability

7.1.             Nothing in these Terms shall limit or exclude any liability of STRATEC Consumables for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation or for any other liability which may not be limited or excluded in law.

7.2.             In an effort to keep the contract price as low as possible and as the Customer is better able than STRATEC Consumables to quantify loss which it may suffer from a breach of contract and to insure accordingly, the Customer agrees to STRATEC Consumables limiting its liability and therefore agrees that, subject to clause 7.1 and save as expressly agreed in writing or as mandatorily implied by law:

(a)                STRATEC Consumables shall have no obligation in respect of the Goods or otherwise under the Contract except for its undertaking in clause 6 and as expressly stated in the Contract;

(b)               the Customer acknowledges that STRATEC Consumables’ obligations under the Contract are exhaustively defined in the Quotation and these Terms and that such express obligations are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to the Goods or the Contract including, without limitation, as to the condition, quality, performance or fitness for the purpose of them or any part of them;

(c)                STRATEC Consumables shall not be liable on any basis for any loss which is or which represents loss of profit, revenue or benefit; loss of anticipated savings; damage to goodwill; loss of use of any asset, loss of data, business interruption, management time or third party liability, nor for any loss which procedures and precautions normally or actually implemented by the Customer or which would generally be implemented by a person exercising good industry practice could have prevented or reduced;

(d)               STRATEC Consumables shall not be liable to the Customer to the extent that any failure to perform or delay in performing its obligations is caused or contributed to by a breach by the Customer of its obligations under the Contract.

7.3.             Subject to clause 7.1, the aggregate liability of STRATEC Consumables (whether in contract, tort, breach of statutory duty or otherwise, including under any indemnity) for all breaches or non-performance of its obligations under the Contract shall not exceed a sum equal to the amount paid by the Customer under that Contract.

7.4.             The Customer shall not rely upon any representation concerning the Goods unless made by STRATEC Consumables in writing in the Contract.

7.5.             Any liability of STRATEC Consumables under any warranty, indemnity or other obligation contained in or relating to the Contract or its subject-matter is subject to all exclusions and limitations in these Terms.

8.       Regulatory compliance, licences and use

8.1.             STRATEC Consumables shall comply with such laws and regulations applicable to the manufacture and non-consumer sale of the Goods at the date of delivery as apply in the jurisdiction in which STRATEC Consumables produces the Goods but no other warranty or undertaking as to regulatory compliance is given or to be implied unless expressly stated in the Contract. The Customer shall comply with applicable laws relating to the Goods, their use and disposal.

8.2.             The Customer shall obtain in good time any applicable licences, permits and approvals relating to import and export and to the use of the Goods.  STRATEC Consumables shall not be responsible for any liability in relation to delay in obtaining or failure to obtain such licences, permits or approvals.

8.3.             The Goods shall be produced and supplied (and, if clause 12 applies, shall be designed and developed) only for the use specified in the Quotation; the Customer shall not use, nor permit to be used nor re-supply for use, the Goods or any product designed or developed pursuant to clause 12 for any other purpose and shall indemnify STRATEC Consumables against all liability in relation to any other use.

8.4.             The Customer shall:

(a)      procure that the Goods are used only for the purposes and in the manner for which they were designed and supplied; that all persons likely to use or come into contact with the Goods receive appropriate training and copies of applicable literature supplied by STRATEC Consumables; that all third parties who use or may be affected by or rely upon the Goods are given full and clear warning of any hazards (both patent and latent) associated with them or limitations of their effectiveness (as communicated to the Customer by STRATEC Consumables) and that safe working practices are adopted and complied with in relation to the Goods.  Any warning notices displayed on the Goods must not be removed or obscured; the Customer shall procure that any third party to whom the Goods are supplied agrees not to remove or obscure such warning notices and shall take such steps as are reasonable to enforce such agreement;

(b)      promptly comply with any safety recommendation made to it in respect of the Goods (including recall of them) and shall procure compliance by all relevant persons and shall pay STRATEC Consumables’ reasonable charges for additional or replacement parts supplied by STRATEC Consumables for this purpose;

(c)       maintain and make available to STRATEC Consumables all records necessary to enable Goods to be traced to their ultimate buyer or user;

(d)      indemnify STRATEC Consumables against any liability in relation to any breach or non-performance of the Customer's obligations under this clause 8.

9.       Termination of Contracts

9.1.             STRATEC Consumables may terminate any Contract:

(a)      for non-payment, pursuant to clause 3.4; or

(b)      if the Customer commits any material breach of the Contract and such breach is either not capable of remedy or if capable of remedy is not remedied within fourteen days of notice from STRATEC Consumables; or

(c)       if the Customer is, or is deemed to be, insolvent or suspends payment or performance of its obligations or threatens to do so, or STRATEC Consumables has reasonable grounds for believing it will fail to discharge its obligations under any contract or steps are taken to propose any composition, scheme or arrangement involving the Customer and its creditors or obtain an administration order or appoint any administrative or other receiver or manager in relation to, or put in force any legal process against, the Customer or any of its property or enforce any security over the Customer's property, or repossess any goods in its possession or wind up or dissolve the Customer, or sequestrate its estate or dissolve it or file a petition in bankruptcy or other relief from creditors; or any event equivalent or similar to the foregoing in any jurisdiction occurs in relation to the Customer (or its assets);

(d)      if control of the Customer passes from the present shareholders, owners or controllers to other persons whom STRATEC Consumables in its absolute discretion regards as prejudicial to its reasonable interests; or

(e)      if in the reasonable opinion of STRATEC Consumables the Customer has ceased or threatened to cease to trade; or

(f)       where the Customer is an individual or partnership, if he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner.

9.2.             If the Contract is terminated, STRATEC Consumables (without prejudice to its other rights but subject to any relevant mandatory laws) may do any of the following:

(a)      declare immediately payable (and so interest-bearing under clause 3.5) any sums owed to it by the Customer, proceed against the Customer for the same and/or damages, and appropriate any payment by the Customer as STRATEC Consumables thinks fit (notwithstanding any purported appropriation by the Customer);

(b)      suspend further performance of any other contract and/or any credit granted to the Customer on any account (and the time for delivery by STRATEC Consumables shall be extended by the period of such suspension);

(c)       take possession of and deal with (including the sale of) any materials and other assets of the Customer held by or on behalf of STRATEC Consumables and apply any proceeds of sale in payment of any sums owing under or damages arising in connection with any contract, including any interest and costs arising thereon.

10.   Intellectual property and confidentiality

10.1.         The Customer grants STRATEC Consumables a non-exclusive, royalty-free, fully paid-up licence under all its Intellectual Property Rights (including without limitation, those relating to the Specification) to use and reproduce the same solely to perform STRATEC Consumables’ obligations under the Contract; STRATEC Consumables may sub-licence such Intellectual Property Rights and disclose confidential information in confidence to its sub-contractors solely for the purpose of their providing goods or services to STRATEC Consumables for the purposes of the Contract.

10.2.         The Customer acknowledges that the Manufacturing Technology is confidential and agrees not to use it or any other confidential information of STRATEC Consumables for any purpose (other than the purpose for which it was disclosed) nor reproduce it in any form nor disclose it to third parties.  The Customer shall not seek to abstract from the Goods any confidential information regarding the Manufacturing Technology (and without limitation to the foregoing shall not decompile any software comprised in the Goods) and all rights subsisting in the Manufacturing Technology are reserved.

10.3.         The Customer shall obtain similar undertakings as those set out in clause 10.2 from its customers and indemnify STRATEC Consumables against any liability in relation to any failure to do so.

11.   Force majeure

Subject to clause 7.1, STRATEC Consumables shall not be liable for any failure to perform its obligations hereunder by reason of any cause whatsoever beyond its reasonable control (including without limitation any trade dispute; fire, flood or act of god; armed conflict; terrorist action or cyberattack; failure of internet communications; equipment or supply difficulties; any rule or action of any public authority; transportation delays; refusal or delay in granting any necessary licence or permit),, and the time for performance of STRATEC Consumables’ obligations shall be extended accordingly.  In such circumstances STRATEC Consumables may terminate the Contract materially affected by such causes whereupon the Customer shall pay a sum equal to the costs to STRATEC Consumables of performing that Contract to the date of termination and STRATEC Consumables’ liability shall be limited to repayment of any sums paid in respect of undelivered Goods less such costs.

12.   Development Services

12.1.         This clause 12 shall apply (in addition to all other clauses) if the Quotation provides for STRATEC Consumables to provide any design or development services in respect of any product or prospective product.

12.2.         In this clause 12:

“Background IP” means Intellectual Property Rights of a party generated or acquired by it prior to the date of the Quotation or generated or acquired by it at any time thereafter independently of work under the Contract or other co-operation between the parties;

“Development Plan” means the description of the parties’ collaboration and co-operation efforts to carry out the design and development required by the Contract, including the allocation of responsibilities between the parties for execution of such work, as attached or referred to in the Quotation or the AO or subsequently agreed in writing between the parties.

12.3.         If the Development Plan is not attached or referred to in the Quotation or the AO the parties shall co-operate in good faith to agree the same as soon as practicable; STRATEC Consumables shall not be obliged to start work until the Development Plan has been agreed and if such agreement is unreasonably delayed STRATEC Consumables shall be entitled to reasonable additional time for performance.

12.4.         Each party shall in good faith co-operate with the other party to fulfil its obligations under the Development Plan and shall use commercially reasonable efforts to achieve the objectives therein stated.

12.5.         All time periods stated in the Development Plan for completion of any phase or for production or delivery of any item are only estimates, which the relevant party will diligently endeavour to achieve but is not committed to achieve; STRATEC Consumables shall not be required without its prior written agreement to apply additional resources beyond those specified in the Development Plan and (except for any objectives stated in the Quotation, with express reference to this clause 12.5, as a guaranteed outcome) STRATEC Consumables does not guarantee the achievement of any objective or outcome nor the successful conclusion of the Development Plan.

12.6.         Each party shall retain ownership of its Background IP and the other party shall not acquire any rights in the same save those expressly granted by the Contract (whether in these Terms or otherwise).

12.7.         Intellectual Property Rights generated in the course of the work carried out pursuant to the Contract shall be owned as stated in the Quotation; subject to the Quotation and to the extent not otherwise specified therein:

(a)      STRATEC Consumables shall own absolutely all Intellectual Property Rights in Manufacturing Technology except any Background IP of the Customer which the Customer generated without use of confidential information of STRATEC Consumables;

(b)      subject to the foregoing, all Intellectual Property Rights generated on or after the date of the Quotation solely by either STRATEC Consumables or the Customer and without use of any confidential information of the other party, arising out of the Contract work shall be owned by the party developing, creating, conceiving, originating or inventing such Intellectual Property Rights;

(c)       subject to the foregoing, all Intellectual Property Rights generated with material contribution from both parties shall be owned by them jointly and they shall each be entitled to apply and exploit the same.

12.8.         Any tangible item to be delivered by STRATEC Consumables pursuant to the services shall be “Goods” for the purposes of clauses 4, 6 and 7; and any such items and any product produced pursuant to any design or specification developed pursuant to the services shall be “Goods” for the purposes of clause 8.

13.   General

13.1.         All material to be delivered to STRATEC Consumables by the Customer or on the Customer’s behalf shall be delivered to STRATEC Consumables DDP INCOTERMS 2010.

13.2.         The Customer shall not use the name “STRATEC Consumables” or any confusingly similar name or words nor any reference to such name on its products, notices, business or advertising materials, unless expressly agreed by STRATEC Consumables in writing.

13.3.         The Customer shall indemnify STRATEC Consumables against all liability in relation to any specification, design, information or component which the Customer has supplied or arranged for the supply to STRATEC Consumables and warrants that the use of such specifications, designs, information or components will not infringe the rights of any third party.

13.4.         No indulgence, forbearance, partial exercise of any right or remedy or previous waiver shall prejudice any rights or remedies.  Remedies shall be cumulative and no choice of remedy shall preclude any other remedy.

13.5.         The Customer shall not assign, mortgage, charge, sub-let or otherwise dispose of any Contract or any rights thereunder in whole or in part.

13.6.         After termination (howsoever caused) or cancellation, clauses 1, 3, 4, 5.4, 6, 7, 8, 9.2, 10, 11, 13 and (if applicable) 12.5, 12.6, 12.7 and 12.8 shall continue in full effect.

13.7.         The Contract including these Terms shall be governed and construed by English law; STRATEC Consumables and the Customer each irrevocably submits to the exclusive jurisdiction of the courts of England without prejudice to which STRATEC Consumables may apply for any provisional or conservatory measures or interim relief in any court having jurisdiction in the Customer's country or the country where the Goods are then located. Each party agrees that in respect of proceedings in England process may be served on it at the address referred to in clause 13.8 and undertakes that, if judgment is given against it by a court in England or Wales but such judgment cannot be directly enforced in a jurisdiction in which it or any of its assets are located, it will consent to judgment being entered against it in a court of that jurisdiction in the like terms to the judgment given by the court of England or Wales.

13.8.         Additional agreements, information and complaints must be made in writing, and can be accepted only if sent to: (in the case of STRATEC Consumables) to STRATEC Consumables GmbH, Sonystrasse 20, A-5081 Anif, Austria for the attention of “Customer Services” and (in the case of the Customer). Notices given to STRATEC Consumables shall not be legally effective unless sent to such address.

 

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