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4 views6 pages

agb-usa

Uploaded by

raminpishali
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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General Terms and Conditions of

HINDERER + MÜHLICH USA L.P.


January, 2, 2007

1.) Definitions
“Seller” herein refers to h+m USA L. P..;
“Buyer” refers to the company or other person named as such on the Quotation/Invoice; “Invoice” refers
to these Terms of Sale together with the material on the face of this invoice, and refers the “Buyer” to
obtain copies or visit our website www.hmusadies.com for detailed explanation of the Terms of Sale.
“Goods” herein refers to the items of tangible personal property described in the invoice.

The terms set forth herein by h+m USA, supersede any contrary provision presented by the Seller or
supplier identified in this Acknowledgment, or any other person or entity in any written form or otherwise
and may not be changed in any manner other than a writing signed by an authorized representative of
Seller. To the extent that the Purchase/Sales order constitutes an acceptance by Seller of an offer by Buyer,
the acceptance is expressly conditioned on Buyer’s assent to terms and conditions herein which are
additional or different to those presented by Seller. To the extent that any portion of the Sales Order
constitutes an offer, acceptance is expressly limited to the terms of the offer.

2. Delivery
The Goods will be shipped, absent such direction, to the address of Buyer as shown on the Buyer’s
Purchase Order and/or h+m USA Invoice. Unless otherwise stated, the delivery terms shall be as follows:
(i) “delivery costs shall be incurred by the Buyer and agreed items shall be shipped to the Buyer’s facility
unless stated otherwise by the Buyer……..”
Buyer shall specify to Seller, in writing, in ample time prior to shipment, the carrier Buyer desires to carry
the Goods, failing which, Seller may select any recognized common carrier without responsibility or
liability to Buyer for such selection. Seller shall have no obligation to arrange for any valuation of the
Goods over and above the valuation provided in the carrier’s tariffs or other rate schedules at the lowest
rates of carriage. Buyer acknowledges that the risk of loss shall pass to Buyer upon the common carrier
taking possession of the Goods and that Buyer shall have the sole responsibility to insure the Goods against
loss.

3. Delivery Date(s)
If the Invoice is marked to show that the Goods are of Seller’s manufacture, in whole or in part, delivery
date(s) are determined from the date the sales order becomes a contract and are estimates of approximate
dates of delivery, not a guarantee of a particular day of delivery. In such cases, Seller’s obligation with
respect to delivery is limited to placing an order for the Goods and using all reasonable means to obtain the
goods in time to meet the approximate delivery date(s) specified.

hinderer + muehlich USA L.P. - 2020-I Starita Road - Charlotte NC 28206


General Terms and Conditions of
HINDERER + MÜHLICH USA L.P.
January, 2, 2007

4. Terms of Payment
Unless otherwise stated, the payment terms shall be that Buyer shall:
 pay the amount of the down payment, if any, stated on the face of the quotation, in cash, at or
before the time when the Purchase/Sales order becomes a contract;
 pay such other amounts, at such other times, as the Quotation requires prior to shipment of the
Goods; and
 provided that Buyer meets Seller’s credit standards at the time of delivery of any part of the Goods,
Buyer shall pay the balance owing (or the entire sales price, if there is no down payment) net 30
days after shipment, or according to other terms agreed upon between buyer and seller..

5. Limited Warranty
(a) The Goods covered hereby constitute “hot stamping and embossing dies, special tools, make-ready
accessories, and silicone products. Buyer acknowledges and agrees that:

(i) Such Goods are manufactured in relation to established product specifications, with regard to quality,
tolerances, heat reduction factor(s), etc. and provided that such Goods are manufactured in conformity to
these specifications, such Goods shall be deemed to be “conforming goods” as defined under the “Code”.
The manufacturing standards upheld by Seller are not intended to project exact performance standards to
be achieved by Buyer with respect to such items and any implied warranty with respect thereto is hereby
expressly disclaimed;

(ii) Buyer acknowledges and agrees that Seller shall have no liability or responsibility to the Buyer
regarding life expectancy of its products or be liable for any conditions beyond the sellers control which
can diminish life expectancy of Sellers products.

(iii) Seller has made no evaluation or determination as to the suitability of the Goods for any of
Buyer's purposes. Buyer has been, and is solely responsible for, the uses to which Buyer will put the
Goods and for any determination of the suitability or fitness of the Goods for any such purposes;

(iv) Buyer acknowledges and agrees that Seller shall have no liability or responsibility whatsoever to
Buyer, Buyer’s customers, secondary processors, the customers of such secondary processors, or any other
person in the event that the Goods are utilized (x) in an application other than that which was intended by
Buyer, or are prepared or utilized in a manner inconsistent with such standard procedures and
recommendations.

hinderer + muehlich USA L.P. - 2020-I Starita Road - Charlotte NC 28206


General Terms and Conditions of
HINDERER + MÜHLICH USA L.P.
January, 2, 2007

(b) Provided that the Goods are properly stored and are properly utilized in the application for
which such Goods were intended, Seller warrants for a period of 6 months following the shipment
of the Goods that the Goods will be free from defects in material and workmanship (5). Should any
of the Goods fail to conform with such limited warranty, at Seller’s election, Seller’s liability shall
be limited solely to either repair or replacement of such defective Goods. OTHER THAN AS SET
FORTH HEREIN, SELLER DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS
THE EXISTENCE OF, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR PARTICULAR PURPOSE, OR ANY OTHER WARRANTY OF ANY KIND OR NATURE
WHATSOEVER WITH RESPECT TO SUCH GOODS.

(c) Notwithstanding the foregoing, Buyer acknowledges and agrees that upon delivery, but in all events
within seven (7) days of delivery, Buyer shall promptly inspect all Goods and promptly notify Seller with
specificity in writing of: (i) the existence of any patent defects or non-conforming goods; or (ii) the failure
of the shipment of the Goods to conform to the Order Acknowledgment, including, but not limited to the
timeliness of the delivery of such Goods. Buyer acknowledges and agrees that if Buyer fails to give the
notice required by the immediately preceding sentence, it shall be conclusively presumed that, other than
with respect to latent defects which could not practicably be ascertained by physical inspection, the Goods
as delivered were (a) free and clear of any patent defects, (b) “conforming goods” as such term is defined
in the Code, (c) timely delivered, and (d) otherwise conformity with the terms of the Sales/Purchase order.

(d) Buyer acknowledges and agrees that no salesman, officer, agent or other representative of Seller, nor is
any officer, agent or other representative of the manufacturer, authorized to make any representation
contrary to the foregoing and that any attempt to do so shall not be binding upon Seller.

6. Limitation of liability
Notwithstanding any provision herein to the contrary, and other than as otherwise expressly set forth
herein, Buyer acknowledges and agrees that Seller shall have no liability to Buyer in connection with the
Goods in excess of the total amount of consideration paid to Seller hereunder. Under no circumstances
shall Seller have any liability to Buyer, or to any of Buyer’s customers, for any direct, special,
consequential or incidental damages, or lost profits in connection with the Goods sold hereunder. No
action shall be brought by Buyer for any breach of any contract arising or resulting from the Goods sold
hereunder more than one year after the cause of action therefor accrues.

7. Force Majeure
Seller shall not be liable for delays or failures in performance resulting directly or indirectly from delays in
manufacture, shipping, delivery, weather or other Acts of Nature, acts on the part of any governmental
authority, strikes or other labor related matters, or other elements of performance beyond the reasonable
control of Seller. Dates of delivery shall be extended for a period equal to the time lost by reason of any
such cause without liability or penalty of any kind. If, at any time, it shall appear that any delay resulting
from any such cause shall exceed sixty (60) days, Seller may cancel the Purchase Order, and any contract
arising or resulting from this Purchase Order without further obligation hereunder.

hinderer + muehlich USA L.P. - 2020-I Starita Road - Charlotte NC 28206


General Terms and Conditions of
HINDERER + MÜHLICH USA L.P.
January, 2, 2007

8. Copyrights, Trademarks, Servicemarks and other Intellectual Property


To the extent that the Purchase/Sales order contemplates the production of Goods utilizing copyrights,
trademarks, servicemarks, tradedress, or other intellectual property supplied to Seller by, or on behalf of,
Seller (collectively, the “Intellectual Property”), Buyer represents and warrants that Buyer is either the
owner, or the authorized licensee of such Intellectual Property, but in either case has the free and
unencumbered right to utilize such Intellectual Property in the manner contemplated by ultimate utilization
of the Goods. Such representation and warranty shall survive the manufacture and delivery of the Goods.
Buyer hereby agrees to indemnify and hold Seller, its shareholders, officers, directors, agents, servants,
employees, and each of their respective affiliates, harmless from and against any and all damages, losses
and costs of defense (including reasonable counsel fees) arising out of the breach of such representation
and warranty.

9. Goods Not of Seller’s Manufacturer


If the Invoice is marked to show that the Goods are not of Seller’s manufacture, in whole or in part, or if,
the Goods are not deemed to be of Seller’s manufacture, in whole or in part, Buyer recognizes that, with
respect to such Goods, Seller is not the manufacturer, but is merely a distributor or manufacturer’s agent
and does not manufacture the Goods.

A. Limited Warranty - Goods Not of Seller’s Manufacture. If the Goods identified on the Invoice are
identified as being manufactured by anyone other than Seller, then the provisions of this Section shall
apply and the provisions of Section 5 of this Acknowledgment shall not apply.

(i) Buyer recognizes that with respect to Goods not manufactured by Seller, Seller is not the manufacturer,
but merely a distributor or manufacturer’s agent, and does not manufacture the Goods, and Seller has not
participated in the design or testing of such Goods. SELLER THEREFORE MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY, FITNESS FOR
PARTICULAR PURPOSE, OR OTHERWISE, CONCERNING SUCH GOODS, WHICH EXTEND
BEYOND THE DESCRIPTION ON THE INVOICE.

(ii) Buyer acknowledges and agrees that no salesman, officer, agent or other representative of Seller,
nor is any officer, agent or other representative of the manufacturer, is authorized to make any
representation contrary to the foregoing and that any attempt to do so shall not be binding upon Seller.

B. Safety and Notice of Accidents - Machinery. Buyer shall use, and shall require its employees to use, in
the operation of the Goods which constitute machinery all safety devices, guards, and proper safe operating
procedures as are required by OSHA, other federal, state and local law and generally accepted safe
manufacturing processes. Buyer shall not remove or modify any safety devices, guards or warning signs.
Buyer shall notify Seller promptly, and in any event within thirty (30) days, of any accident or malfunction
involving such Goods which results in personal injury or damage to property and shall cooperate fully with
Seller in investigating and determining the cause of such accident or malfunction. If Buyer shall at any
time resell such Goods, Buyer shall cause its purchaser to undertake the same obligations to Seller as

hinderer + muehlich USA L.P. - 2020-I Starita Road - Charlotte NC 28206


General Terms and Conditions of
HINDERER + MÜHLICH USA L.P.
January, 2, 2007

Buyer has undertaken in this section, including without limitation the obligation stated in the immediately
preceding sentence. If Buyer fails to strictly observe the obligations set forth in this Section, Buyer agrees
to indemnify and hold Seller, its shareholders, officers, directors, agents, servants, employees, and each of
their respective affiliates, harmless from and against any and all damages, losses and costs of defense
(including reasonable counsel fees) resulting from persons or property injured directly or indirectly in
connection with the operation of such Goods.

C. Special Goods. If the Quotation/Purchase Order provides for special machinery or special tooling, the
Quotation will not bind Seller for those items until Seller shall have completed Seller’s engineering,
reviewed the prices on the basis of complete drawings and specifications and advised Buyer that Seller will
deliver at the price(s) stated on the face hereof.

10. Electronic Transactions


Provided that both Buyer and Seller have completed and executed Seller's form of Electronic
Trading Letter, in the event that the purchaser order of the Buyer is submitted by the Buyer to the
Seller by electronic media, or the Seller has elected to acknowledge Buyer's purchase order by
electronic media, these Terms and Conditions shall apply as if such transaction were not conducted
by electronic media, and all such electronic communications and transactions shall be governed by
the Uniform Electronic Transactions Act, as adopted by the Commonwealth of Pennsylvania, and
be conducted pursuant to the terms of Seller's form of Electronic Trading Letter.

11. Confidentiality
Other than in connection with the use of the Goods in connection with the finished product, without
the prior written consent of the Seller, Buyer may not disclose to any third party, documents,
knowledge, information, tools molds, samples, models, profiles, drawings, Technical Data Sheets,
manuscripts or other technical information in respect of the Goods covered hereby (the "Covered
Information") regardless of the form of delivery thereof, including, but not limited to electronic
media. Notwithstanding the forgoing, the term Covered Information shall not include information
which at the time of receipt by the Buyer is generally known to the public or was created solely by
the Buyer.

12. Miscellaneous
(i) Any tax imposed by federal, state, or other governmental authority on the sale or use of the
Goods (other than income taxes imposed upon Seller in connection with Seller's business) shall be
paid by Buyer in addition to the purchase price.

(ii) This Acknowledgment shall be construed in accordance with the laws of the State of North
Carolina with respect to contracts to be executed and performed within the State of North Carolina.

hinderer + muehlich USA L.P. - 2020-I Starita Road - Charlotte NC 28206


General Terms and Conditions of
HINDERER + MÜHLICH USA L.P.
January, 2, 2007

(iii) In the event of a dispute hereunder, Buyer and Seller consent to the exclusive jurisdiction of the
courts sitting in Charlotte, North Carolina.

(iv) This Terms of Sale constitutes the entire understanding of Buyer and Seller with respect to the
Goods covered hereby and supersedes all prior agreements and understandings (whether written or
oral) with respect thereto.

(v) Subject to the limitations set forth in Section 5(d) hereof, which shall in all circumstances
prevail, no amendment or other modification or attempted modification of the terms hereof shall be
effective without a written agreement executed by a duly authorized officer of Buyer and Seller.

(vi) Any assignment of this Terms of Sale or of any rights hereunder or hypothecation hereof in any
manner, in whole or in part, without the prior written consent of Seller shall be void. This Terms of
Sale shall be binding upon the respective successors and (permitted) assigns of Buyer and Seller.

(vii) Failure of Seller to insist upon strict performance of any of the terms or conditions in this
Terms of Sale, failure or delay to exercise any rights or remedies provided herein, shall not be
deemed a waiver of any right of Seller to insist upon strict performance hereof or any of its rights or
remedies, or as to any prior or subsequent default hereunder, nor shall any termination of this
agreement operate as a waiver of any of the terms in this Terms of Sale.

hinderer + muehlich USA L.P. - 2020-I Starita Road - Charlotte NC 28206

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