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General Terms and Conditions of Supply of ATLANTIC GmbH
1. Scope
1.1 The present terms and conditions (the “Terms and Conditions”) shall apply to all supplies of products (the “Products”) by ATLANTIC GmbH (“ATLANTIC”) to its customers (the “CUSTOMER” or “CUSTOMERS”).
1.2 Any terms and conditions deviating from these Terms and Conditions shall not become binding upon ATLANTIC except when expressly accepted by ATLANTIC in writing. Any standard terms and conditions of CUSTOMER are excluded as part of the agreement with CUSTOMER.
2. Orders and Offers
2.1 CUSTOMER`s orders for Products shall not be binding upon ATLANTIC unless accepted by ATLANTIC in writing. Acceptance of CUSTOMER´s orders for Products shall be at the discretion of ATLANTIC.
2.2 Unless expressly stated otherwise by ATLANTIC in an offer, all offers for the supply of Products issued by ATLANTIC to CUSTOMERS shall be non-binding.
2.3 Unless agreed otherwise in writing, CUSTOMER shall call-off Products ordered via a call-off order within 12 months from the date of ATLANTIC’s acceptance of the call-off order. Upon expiry of the aforementioned 12-months period, ATLANTIC shall have the right to deliver and to charge any remaining quantity of Products not called-off by the CUSTOMER.
2.4 Except if agreed otherwise in writing, ATLANTIC will only deliver samples of the Products to CUSTOMER subject to prior receipt of a written order by CUSTOMER, and against charge.
3. Shipments
3.1 ATLANTIC shall have the right to deviate from the quantity for each type of Product ordered by 10 percent; in such event, ATLANTIC will charge the quantity of Products actually delivered at the agreed price per Product.
3.2 To the extent reasonable taking into an account the interests of CUSTOMER, ATLANTIC reserves the right to make and to charge partial deliveries of Products.
3.3 Except if agreed otherwise between ATLANTIC and CUSTOMER, all shipments of Products to CUSTOMER will be “EX WORKS”, Incoterms 2000 from the place of delivery specified by ATLANTIC for such purpose.
3.4 Delivery dates and/or delivery periods for Products will not be binding upon ATLANTIC unless expressly accepted by ATLANTIC as binding in writing.
3.5 ATLANTIC shall be under no liability for default in delivery, if the delay or impossibility in delivery was caused by reasons beyond the control of ATLANTIC. If delivery is delayed beyond the agreed delivery date for a period of more than three months for reasons not attributable to ATLANTIC each of the parties shall have the right to rescind the purchase contract affected by the delay. Any further claims for compensation or further damages as a result of delayed delivery shall be excluded.
3.6 The Products shall be packed at the discretion of ATLANTIC, and such packaging shall be charged extra to CUSTOMER. In no event shall ATLANTIC be liable to take back the packaging.
4. Prices and Payment Terms for Product Supplies
4.1 Except if agreed otherwise between ATLANTIC and CUSTOMER in writing, all prices for Products shall be quoted, invoiced and paid in Euros.
4.2 Except if agree otherwise between ATLANTIC and CUSTOMER in writing, payments by CUSTOMER will be affected within 10 days from the date of the invoice with 2 % discount or within 30 days from the date of the invoice with no deduction.
4.3 CUSTOMER shall not have the right to set-off claims of ATLANTIC for payment against claims of CUSTOMER, or to withhold payment in view of claims of CUSTOMER, unless the respective claim of CUSTOMER is accepted by ATLANTIC or evidenced by final court decision.
5. Security
5.1 The property in Products supplied by ATLANTIC hereunder shall not pass to CUSTOMER until ATLANTIC has received full payment of all amounts owed by CUSTOMER to ATLANTIC under in the business relationship between ATLANTIC and CUSTOMER.
5.2 CUSTOMER shall be entitled in the ordinary course of business to issue, resell and to transfer the property in the Products to third parties. However, in order to secure its liabilities for all payments to ATLANTIC under the individual purchase contracts, CUSTOMER herewith assigns to ATLANTIC all present and/or future receivables due from a resale of the Products to third parties in the invoiced amount, value added tax included. CUSTOMER shall be authorized to collect the receivables as fiduciary agent of ATLANTIC. ATLANTIC’s right to collect the receivables itself shall remain unaffected hereby, provided that ATLANTIC will not collect any receivables vis-à-vis CUSTOMER’s customers as long as CUSTOMER performs its payment obligations.
5.3 Any processing and/or manufacturing of Products by CUSTOMER shall always be made on behalf of ATLANTIC If the Products are processed or manufactured together with goods belonging to third parties, ATLANTIC shall acquire co-ownership rights with respect to the processed or manufactured goods with a co-ownership share equal to the value of the Products in proportion to the value of the processed or manufactured goods. In addition, the provisions of clause 5.2 above shall apply.
5.4 If the Products are commingled with goods owned by third parties, ATLANTIC shall acquire co-ownership rights with respect to the commingled goods with a share equal to the value of the Products in proportion to the value of the commingled goods. If the commingling has been effected in such a manner that the goods shall be regarded as principally those goods of CUSTOMER, CUSTOMER herewith transfers to ATLANTIC a co-ownership share in the goods in the proportion as set out in clause 5.3 above. CUSTOMER shall keep the sole or co-ownership property of ATLANTIC as custodian.
5.5 ATLANTI> shall release any of the securities mentioned in this clause 5, if the total value of the securities exceeds the value of payments due by CUSTOMER by 10 percent or more.
5.6 In the event that any security provided under clauses 5.1 to 5.5 should be invalid and/or unenforceable in any territory to which the Products are supplied by ATLANTIC hereunder, CUSTOMER, upon ATLANTIC´s written request, shall be obliged to provide to ATLANTIC a bank guarantee or other equivalent security to secure obligations undertaken in connection with individual purchase contracts concluded between the parties.
6. Warranty for Defects
6.1 Subject to CUSTOMER´s compliance with the terms of clause 6.2 below, ATLANTIC warrants to CUSTOMER, for a period of twelve (12) months from delivery to CUSTOMER, that the Products furnished hereunder will be of merchantable quality and free from defects in material, workmanship and design. Any Product which does not meet these warranties, is considered to have a "Product Defect”.
6.2 CUSTOMER shall inspect and check all supplies of Products delivered to it hereunder upon receipt as to whether or not these have any apparent Product Defects, and to promptly report to ATLANTIC any such Product Defects detected upon such delivery inspection. In the event that CUSTOMER becomes aware of a hidden Product Defect (i.e. a Product Defect not to be detected as apparent upon delivery inspection), CUSTOMER shall promptly notify ATLANTIC of such hidden Product Defect upon CUSTOMER´s receiving knowledge of such defect. ATLANTIC shall not be under any warranty liability for Product Defects hereunder (and the Products shall be deemed accepted as defects-free) to the extent that CUSTOMER has failed to provide prompt notice of a Product Defect in accordance with the foregoing.
6.3 If a Product has a Product Defect attributable to ATLANTIC pursuant to clause 6.1 and 6.2 above, ATLANTIC – at its sole discretion – shall remedy such defect by either
a) replacing or repairing the defective Products or
b) reducing the purchase price for the defective Products or
c) issuing a credit to CUSTOMER equal to the purchase value of the defective Product.
If ATLANTIC fails to remedy a Product Defect in accordance with the above mentioned terms or refuses to remedy such defect within reasonable time after having received a written notice by CUSTOMER requesting such remedy, CUSTOMER shall be entitled to rescind the individual purchase contract with respect to the defective Product or to demand a reduction of the purchase price for such defective Product.
6.4 The warranties provided in this clause 6 shall be exclusive and in lieu of any and warranty claims provided by the law applicable to this Agreement. Claims for damages and/or reimbursement of costs may only be asserted by customer subject and in accordance with the terms and conditions of article 8 below.
7. Warranty of Title, Third party Intellectual Property Rights
7.1 ATLANTIC warrants to CUSTOMER that the Products supplied to CUSTOMER are free and clear of any liens and/or encumbrances. Furthermore, ATLANTIC warrants to CUSTOMER that use of the Product delivered by ATLANTIC for its intended purpose by CUSTOMER does not infringe upon industrial or intellectual property rights of third parties, provided that any such warranty shall not cover any infringement based upon or related to any modifications of the Products caused by CUSTOMER or by third parties, or misuse of the Products for purposes that are not covered by any applicable manuals, instructions of use, or documentation for the Products.
7.2 In the event any action or claim is brought or asserted against CUSTOMER based on an allegation that use of a Product constitutes an infringement attributable to ATLANTIC pursuant to clause 7.1 above, CUSTOMER shall inform ATLANTIC hereof promptly. In the event of any infringement attributable to ATLANTIC hereunder, ATLANTIC will hold CUSTOMER free and harmless from any liability vis-à-vis the respective third party in accordance with the laws applicable to the agreement between the parties.
7.3 In the event of any infringement attributable to ATLANTIC hereunder ATLANTIC will, at its option and expense, either
a) procure for CUSTOMER, its affiliated entities and its respective customers the right to continue to use the affected Product as contemplated hereunder, or
b) replace or modify the affected Product to make its use hereunder non-infringing while being capable of performing the same function without degradation of performance; or
c) rescind the purchase contract with immediate effect with respect to the concerned Product.
Any further claims by CUSTOMER shall be excluded. The indemnity obligation pursuant per clause 7.2 above shall remain unaffected.
8. Limitation of Liability for Damages
8.1 Except as expressly set forth in these Terms and Conditions or as agreed otherwise between the parties, ATLANTIC shall not be held liable for any damages vis-á-vis CUSTOMER, whether in contract, in tort (including negligence or strict liability) or otherwise, and ATLANTIC shall not be held liable for loss of profits or revenue, loss of use of the Product, costs of capital, claims of customers of LICENSEE or any special, indirect, incidental or consequential damages whatsoever.
8.2 The exclusions of liability pursuant to clause 8.1 above shall not apply
a) in cases of intentional and/or gross negligent behavior of ATLANTIC and/or its employees or agents;
b) in cases of death or damage to the body or health of a person; and/or
c) to the extent that ATLANTIC is liable for damage to persons or private property in accordance with mandatory provisions of applicable product liability.
8.3 The exclusions of liability pursuant to clause 8.1 above furthermore shall not apply in the event of a material breach of essential contract obligations by ATLANTIC. In the event of such material breach, however, all liability of ATLANTIC shall be reduced to the amount of damage foreseeable and typical to the contract. ATLANTIC’s unrestricted liability pursuant to clause 8.2 above shall remain unaffected.
9. Applicable Law and Jurisdiction
9.1 These Terms and Conditions shall be construed and governed by the laws of Germany excluding the application of the UN-Convention on the International Purchase and Sale of Goods.
9.2 The forum for any dispute related to or in connection with individual agreements between ATLANTIC and CUSTOMER shall be the courts in Bonn, Federal Republic of Germany. However, each party hereto in its sole discretion shall be free to commence legal proceedings against the other party at the competent courts of the other party´s registered office or domicile. Except for preliminary injunctions, the choice(s) of forum set forth in this clause 9.2 shall be exclusive.
10. Miscellaneous Provisions
10.1. No supplement, modification, waiver or extension of these Terms and Conditions will be binding unless executed in writing by the party to be bound thereby.
10.2 If any provision of this Agreement should be held invalid under any existing or future law, the remainder of the Agreement will not be affected thereby, and in such event the parties will endeavor to modify the invalid provision so that it will be valid.
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