Terms & Conditions of Sale
General Terms and Conditions of KETEK GmbH from February 1st, 2023
The Terms and Conditions (“Terms”) contained herein shall apply to all quotations and offers made by and purchase orders accepted by KETEK. These Terms apply to all sales made by KETEK except to the extent the Terms conflict with a sales agreement signed by KETEK and Buyer. “Buyer” within the meaning of these Terms shall be entrepreneurs exclusively. These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry. No particulars contained in any samples, drawings, advertising matter, catalogues or other publications supplied by KETEK nor any verbal representation by any employee or agent of KETEK shall be part of the Terms, have any contractual force, nor shall they be treated as constituting any representation on the part of KETEK. These Terms may in some instances conflict with some of the terms and conditions affixed to the purchase order or other procurement document issued by the Buyer. In such case, the Terms contained herein shall govern, and acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of the terms and conditions herein, irrespective of whether the Buyer accepts these conditions by a written acknowledgement, by implication, or acceptance and payment of products ordered hereunder. The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any document of the Buyer that is inconsistent with these Terms. KETEK’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions herein. Each obligation contained in these Terms shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any other such obligation. These Terms shall not create or evidence, or be deemed to create or evidence, any agency or partnership between KETEK on the one hand and the Buyer or any third party on the other.
Any changes in the Terms contained herein must specifically be agreed to in writing signed by an officer of KETEK before becoming binding on either party.
KETEK can be contacted by post at the address for service:
Hofer Str. 3
phone +49 (0) 89 673 46770
2. QUOTATIONS, PRICES, TAXES AND PURCHASE ORDERS
A quotation for goods given by KETEK shall not constitute an offer. A quotation shall only be valid for a period of 90 days from the date of issue, unless KETEK withdraws or extends the quotation prior to that date. Quotations are information only and are not offers to contract. There shall be no binding contract until KETEK has accepted the Buyer’s purchase order by dispatching an official order confirmation.
All prices are exclusive of any present or future sales tax, revenue or excise tax, value added tax, turnover tax, import duty (including brokerage fees) or other tax applicable to the manufacture or sale of any product. Such taxes, when applicable, shall be paid by Buyer unless Buyer provides a proper tax exemption certificate. Unless otherwise agreed to in writing by the parties, prices quoted by KETEK are those current at the date of quotation and shall be subject to variation by KETEK.
3. ORDER CANCELLATION
Buyer may cancel an order on the following terms:
- For KETEKs standard products Buyer may cancel or reschedule a product without penalty if the cancellation is more than sixty (60) days from the confirmed shipping date (as specified in KETEK’s order confirmation). Such cancellations within 60 days of a confirmed shipping date must be approved in writing by KETEK and may be subject to special charges.
- For nonstandard products, custom products, or standard parts with an agreed minimum order quantity, Buyer may cancel more than ninety (90) days from the confirmed shipping date, except that Buyer must accept delivery of all such products which are already finished KETEK products at the time of cancellation. Those nonstandard products which are in the work-in-process inventory at the time of cancellation, shall be paid for by Buyer at a price equal to the completed percentage of the product multiplied by the price of the finished product. Buyer also shall pay promptly to KETEK the costs of settling and paying claims arising out of the termination of work under KETEK’s subcontracts or vendors and any accounting, legal, and clerical costs arising out of the cancellation.
4. PAYMENT TERMS
- Unless Prepayment has been agreed on in writing, Payment terms shall be thirty (30) days net from the date of invoice.
- Unless otherwise agreed in writing, all payments are to be in EURO.
- All payments must be accompanied by a remittance advice.
- The goods shall remain the property of KETEK until fully paid.
- The Buyer shall not be entitled to exercise any right of set-off, counterclaim, withholding or deduction against payment due to KETEK.
- Buyer agrees to pay interest on any unpaid balance at a rate of five percentage points annum above the European Central Bank base rate from the due date for payment to the actual date of payment.
- If KETEK is required to bring legal action to collect delinquent accounts, Buyer agrees to pay reasonable attorney’s fees and costs of suit.
- Unless otherwise agreed in writing, all sales are FCA according to Incoterms 2020.
- Although KETEK will endeavor to deliver goods within any delivery time specified in KETEK’s order confirmation, that delivery time is an estimate only and not a term of a contract. KETEK does not accept liability for any loss arising from delay in delivery of products. Specifically, but not limited to, KETEK shall have no liability for any failure to deliver the goods if a delivery delay is caused by the Buyer’s failure to provide KETEK with adequate delivery instructions or any other information or any other instructions that are relevant to the supply of the goods.
- KETEK may deliver products in one or more consignment and invoice each consignment separately.
- KETEK reserves the right to ship product that is not subject to cancellation in advance of the agreed shipping date.
- Unless otherwise stated in KETEK’s order confirmation, KETEK will deliver to the Buyer’s premises and will charge separately for packing, carriage and handling for each shipment including partial shipments.
6. NON-CONFORMING DELIVERY AND RISK OF LOSS
- Upon receipt of the goods the Buyer shall be obliged to check them for any defects. The provision of Section 377 HGB (German Commercial Code) shall apply.
- Buyer shall notify KETEK of any visible defects, quantity shortages or incorrect product shipments within seven (7) days of receipt of the shipment or pulls from a consignment inventory at the Buyer’s premises.
- Failure to notify KETEK in writing of any visible defects in the products or of quantity shortages or incorrect shipments within such period shall be deemed an unqualified waiver of any rights to return products based on visible defects, shortages, or incorrect shipments, subject to Buyer’s rights under this section.
- Risk of loss and title shall pass to Buyer as soon as the products have been placed with a transport agent.
7. LIMITED WARRANTY
- Except as specified below, products sold hereunder shall be free from defects in materials and workmanship and shall conform to KETEK’s published specifications or other specifications accepted in writing by KETEK for a period of twelve (12) months (if not otherwise agreed in writing) from the date of shipment of the products (if not otherwise agreed in writing). The foregoing warranty does not apply to any products which have been subject to misuse, neglect, accident, or modification by Buyer or any third party such that these products are not capable of being tested under KETEK’s standard test conditions.
- Damaged detector windows and consecutive failures are generally excluded from any product warranty.
- Transportation costs of vendor returns (e.g., complaints, evaluation samples) must be covered by the Buyer in general, if not otherwise agreed in writing.
- KETEK reserves the right not to accept goods for repair or replacement from the Buyer that are not accompanied and clearly marked with a returned materials authorization (RMA) number that has been previously agreed with and issued by KETEK. An RMA number shall remain open and valid for ninety (90) days from date of issue by KETEK. If KETEK has failed to receive the goods to which the RMA number relates within this period, then KETEK reserves the right to cancel the RMA. The risk and the property in the goods remain with the Buyer unless otherwise notified by KETEK. KETEK will not accept returned goods that clearly show signs of physical damage to external packaging where it is possible that damage to the goods may have occurred as a result. The Buyer shall be responsible for the carriage costs of the returned goods unless otherwise agreed in writing by KETEK.
- KETEK shall make the final determination as to whether its products are defective. It is at KETEK’s sole discretion whether to repair, replace or issue a credit note for the nonconforming product if, within fourteen (14) days of the expiration of the warranty period,
(i) KETEK has received written notice of any nonconformity;
(ii) after KETEK’s written authorization, Buyer has returned the nonconforming product to KETEK; and
(iii) KETEK has determined that the product is nonconforming and that such nonconformity is not the result of improper installation, repair, or other misuse.
- THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. KETEK DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS.
8. LIMITED LIABILITY
KETEK shall not be liable for incidental or consequential damages, including but not limited to, the cost of labor, requalification, rework charges, delay, lost profits, or loss of goodwill arising out of the sale, installation, or use of any KETEK product. If KETEK has any liability for breach of contract, breach of any implied condition, warranty or representation, the aggregate liability of KETEK to Buyer shall be limited in respect of any occurrence or series of occurrences to the value of the products or services that are the subject of such sales.
These limitations of liability shall also apply in favor of the employees and agents of KETEK as well as in favor of any other third parties used by KETEK to fulfil a contract.
9. INSOLVENCY AND DEFAULT
- Without prejudice to any rights and remedies available to it, KETEK shall be entitled, forthwith on written notice to the Buyer, either to cancel orders in whole or in part and/or any other contract with the Buyer or to withhold performance of all or any of its obligations with the Buyer (and on the giving of such notice all monies outstanding from the Buyer to KETEK shall become immediately due and payable), if:
(i) any sum owing to KETEK from the Buyer on any account whatsoever shall be unpaid after the due date for payment (in which event KETEK shall have a general lien for any such sum on all and any property of the Buyer in its possession); or
(ii) the Buyer shall commit or be subject to any Act of Insolvency; or
(iii) the Buyer shall commit any breach of any contract with KETEK; or
(iv) the Buyer’s financial position deteriorates to such extent that in KETEK’s opinion the Buyer’s capability to adequately fulfil its obligations under these Terms has been placed in jeopardy.
- In the event of a suspension of performance KETEK shall be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
10. INTELECTUAL PROPERTY
- KETEK makes no warranty that products sold hereunder will not infringe any intellectual property rights.
- KETEK retains its intellectual property. The sale of any products hereunder does not convey any license by implication, estoppel or otherwise covering combinations of the products with other equipment data or programs. KETEK retains the copyright in all documents, catalogues and plans supplied to Buyer pursuant to or ancillary to the sale of goods. Buyer shall obtain no interest in any processes or tooling used in the production of any KETEK product.
11. LIFE SUPPORT
KETEK’s products are not authorized for use as Critical Components in Life Support Devices or systems without the express written approval of the management of KETEK. As used herein:
- Life Support Devices or systems are devices which
(i) are intended for surgical implant into the body, or
(ii) directly support or sustain life and whose failure to perform when properly used can be reasonably expected to result in significant injury to or death of the user.
- A Critical Component is any component in a Life Support Device or system whose failure to perform can be reasonably expected to cause the failure of the Life Support Device or System or to affect its safety or effectiveness.
12. CONFIDENTIAL INFORMATION
Except as required by law, neither party shall use (except for purposes connected with the performance of its obligations hereunder), divulge or communicate to any third party any information of the other which is reasonably known to be confidential.
13. DATA PROTECTION
14. FORCE MAJEURE
KETEK shall not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay when such is due to
- acts of God, flood, drought, earthquake, or other natural disaster;
- epidemic or pandemic;
- any law or any action taken by a government or public authority, including those caused directly/indirectly by any epidemic or pandemic, imposing an export or import restriction, quota, or prohibition, or failing to grant a necessary license or consent;
- terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off diplomatic relations;
- nuclear, chemical, or biological contamination, or sonic boom;
- collapse of buildings, fire, explosion, or accident;
- any labor or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this Clause, or companies in the same group as that party);
- non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this condition); and
- interruption or failure of utility service;
or any other causes beyond the reasonable control of KETEK.
15. EXPORT REGULATIONS
Buyer agrees to comply fully with all laws and regulations concerning the purchase and sale of products. Particularly, Buyer agrees to comply with the Export Administration Regulations of Germany in so far as they apply to the sale of products. It shall be a condition precedent to the performance by KETEK that all necessary licenses, permits and consents shall have been obtained by the Buyer.
16. ASSIGNMENT AND SUBCONTRACTING
KETEK shall be always entitled to assign its rights under these Terms (in whole or in part) or to subcontract any part of the work or services to be provided as it deems necessary or desirable.
Failure by KETEK to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate to bar the exercise or enforcement thereof at any time or times thereafter.
18. APPLICABLE LAW
Unless otherwise agreed in writing, the terms and conditions contained herein shall be governed by and construed under the laws of Germany.
If any provision of these Terms is found to be illegal, invalid, or unenforceable by a court or tribunal, it is agreed that the provision in question will be reduced or otherwise modified by such court or tribunal to achieve as nearly as possible the same economic effect as the original provision, and the legality, validity, and enforceability of the remaining provisions of these Terms will not be affected or impaired.