Terms and Conditions of Sale

OEM4U Ltd.
GENERAL TERMS AND CONDITIONS OF SALE
1 Applicability
1.1 The legal relationship between OEM4U Ltd. (hereinafter referred to as the “OEM4U”) and the Buyer are subject exclusively to the General Terms and Conditions of Sale here present, the Special Terms and Conditions of Sale and the Ancillary Terms proper to each individual sales transaction.
1.2 The Special Terms and Conditions of Sale consist of the Guidelines
on Product Returns, the Terms applicable to specific services OEM4U
may offer, such as training, repair, etc., to OEM4U’s shipping
modalities, etc. The Ancillary Terms proper to each individual sales
transaction consist of the quotation and/or the order confirmation
and/or shipping information and/or any other written contract
between OEM4U and Buyer.
1.3 The General Terms and Conditions of Sale, the Special Terms and
Conditions of Sale and the Ancillary Terms are binding upon
confirmation by OEM4U of Buyer’s order and are hereinafter
collectively referred to as the “Agreement”.
1.4 In the case of contradiction between these present General Terms
and Conditions of Sale and the Special Terms and Conditions of
Sale, the Special Terms and Conditions of Sale shall have priority.
In the case of contradiction between the Special Terms and
Conditions of Sale and the Ancillary Terms, the Ancillary Terms
shall have priority.
1.5 Failure or delay by the OEM4U in enforcing or partially enforcing any
provision of the Agreement shall not be construed as a waiver of
any of its rights under the Agreement, at present or in the future.
1.6 OEM4U communicates its General and its Special Terms and
Conditions of Sale to Buyer through a link to its dedicated webpage
on its Ancillary Terms and/or through its e-commerce system,
. OEM4U communicates its Ancillary Terms to Buyer by
its e-commerce system, by e-mail or any other
written notice.
1.7 Buyer cannot unilaterally or tacitly depart from the Agreement in
any way whatsoever (e.g. by simple conduct). The Agreement
excludes the application of any of the Buyer’s general or special
terms and conditions. Buyer consequently recognizes that its
general or special conditions do not apply to the Agreement.
1.8 The OEM4U retains the right to modify the terms of the Agreement at
any time, by announcement on its webpage. Such
modification is binding upon acceptance by Buyer of OEM4U’s order
confirmation dated fifteen (15) or more calendar days later than the
modification date.
1.9 The Agreement supersedes all written or oral arrangements,
contracts, proposals and commitments related to the object
described in the Agreement, entered into at a prior date.
Art. 2 Quotations and orders
2.1 Quotations are free of charge and are indivisible. Quoted prices are
valid during thirty (30) calendar days, subject to availability. A
quotation represents a mere proposal by the OEM4U and does not
bind the OEM4U, not even following acceptance by the Buyer. Only
written acceptance by the OEM4U through order confirmation creates
an Agreement.
2.2 Buyer must place its orders through OEM4U’s e-commerce system,
or by e-mail and conduct all ensuing
communication relating to its order through one of these channels,
unless indicated otherwise in the Agreement.
2.3 The OEM4U assumes that the information, drawings and other data
submitted by the Buyer are correct and may use these as the basis
of his quotation. Where the Buyer himself places an order by citing
himself references to the OEM4U, then the OEM4U shall assume that
these correspond with the Product effectively required.
2.4 Even though all illustrations, measurements, capacities, weights
and other details regarding machines and parts, price lists, offers
included in the OEM4U’s website
are compiled with the greatest possible care, they only
constitute an approximation and are purely informative and thus
given free of obligation.
Art. 3 Subject
3.1 The subject of each individual sales transaction is explicitly
described in the Agreement and covers the part(s), equipment,
tool(s), machine(s) and/or service(s) described therein. The subject
is hereinafter referred to as the “Products”.
3.2 The Buyer is entirely responsible for the choice of the Products.
The Products are standard items which are not specifically created
for the Buyer’s needs, or items which the OEM4U, at the Buyer’s
request, adapted to meet the specifications described by the Buyer.
The OEM4U is free from any responsibility should it become apparent
that the Products do not meet the specific needs of the Buyer, when
the Products do meet the specifications described by the Buyer.
Art. 4 Price
4.1 The price for the Products is determined in the Agreement
(hereinafter referred to as the “Purchase Price”). The Purchase
Price is exclusive of VAT, taxes and levies, import or export duties.
The Purchase Price includes neither charges for delivery or
collection of the Products nor the costs of any possible assembly,
installation and start-up or, as the case may be, putting them into
service (hereinafter referred to as the “Costs”). The Costs are at the
Buyer’s expense and shall be separately invoiced, and will
themselves be exclusive of VAT, taxes and levies, which are
payable in addition to the Costs.
Art. 5 Payment
5.1 Unless otherwise expressly agreed upon in writing in the
Agreement, the Buyer shall pay the Purchase Price and the Costs
within thirty (30) days end of month of the date of the OEM4U’s
invoice, via a transfer to the account number mentioned on the
invoice, and mentioning the details as on the invoice. The OEM4U
does, however, have the right to ask for a deposit or even complete
payment prior to delivery. Making a complaint, in accordance with
Art. 9.2 or 9.3, does not relieve the Buyer from his obligation to pay
within the stated period. Upon written request of the Buyer, for a
period to a maximum of thirty (30) days, the OEM4U will provide the
Buyer with a copy of the consignment note issued when the
Products are delivered to the Buyer. The Buyer acknowledges that
if it has not requested a consignment note within thirty (30) days of
the date of invoice, the OEM4U is not obliged to provide the
consignment note and the Products are deemed to have been
delivered.
5.2 The Purchase Price and the Costs are only effectively paid from the
moment they have actually been received by the OEM4U.
5.3 Should the Buyer agree in writing to payment via cheque or bill of
exchange, drawing the bill or cheque is only valid as payment on
the day that the OEM4U unconditionally receives the amount of the
bill or cheque.
5.4 The Buyer shall not be entitled to suspend and/or delay the
payment of the purchase price, nor to set off its debit towards the
OEM4U, even in case of claims connected with this purchase and
raised for whatsoever reason, including in a judicial proceeding.
5.5 In the case of complete or partial non-payment of the debt on the
due date laid down in Art. 5.1, the Buyer is liable, without prior
notice, to pay a default interest 10% per annum on the total amount
outstanding from the day following the due date until complete
payment. Further, in the aforementioned case, the Buyer shall
immediately and without prior notice pay a lump amount of
compensation of 15% of the balance due, for a minimum of £90,
even where a respite term is granted, and this in no way
diminishes the OEM4U’s right to claim a higher amount of
compensation.
5.6 In the case OEM4U becomes aware of any circumstance which may
cause the financial status of the Buyer to substantially deteriorate,
and also when a Buyer does not accept his bill of exchange on
time, then all outstanding amounts, including those for which the
Buyer is liable towards companies affiliated to the OEM4U, are
immediately due, without the requirement of serving notice. The
OEM4U shall have the right to immediately and without a period of
notice, at his own discretion, to suspend or even terminate the
Agreement by sending a written notice, in case the financial
conditions of the Buyer have become such as to endanger his
performance. In such a case, the Buyer shall be liable for any kind
of compensation and subject to the OEM4U’s right to compensation.
5.7 Should the Buyer request at the time of placing the order for
invoicing to be passed to a third party, the Buyer, in spite of
invoicing to a third party, remains principally and indivisibly held to
the fulfillment of all commitments.
Art. 6 Transfer of ownership and risk
6.1 The Products are at the risk of the Buyer from the time of delivery.
6.2 The ownership of the Products remains with OEM4U until the moment of
complete payment of the Purchase Price and Costs, or until delivery,
whichever occurs last. Consequently, the transfer of ownership becomes
deferred until delivery or full payment of the Purchase Price and the Costs,
whichever occurs last.
6.3 Until ownership of the Products has passed to the Buyer, the Buyer
undertakes to:
6.3.1 Retain the Products in their original state and not to make the
Products immovable by destination, nor to mix the Products with
another commodity,
6.3.2 Maintain the Products in satisfactory condition and do
everything possible to protect the Products against any form of
partial or complete deterioration including – this enumeration
being in no way restrictive – arising from fire, water damage, risk
of explosion, theft, etc. and keep them insured on the OEM4U’s
behalf for their full price against all risks to the reasonable
satisfaction of the OEM4U,
until complete payment of the Purchase Price and Costs.
6.4 In the ordinary course of business, Buyer is entitled to resell the Products
of which the ownership has not yet passed to Buyer. In such case, the
Buyer automatically assigns to OEM4U all claims against its customers that
result from the resale of Products with respect to which ownership
remains with OEM4U, in the amount equal to the Purchase Price for those
Products, for as long as ownership of such Products has not passed to
Buyer. Buyer has the authority to collect the claims resulting from the
resale. Upon OEM4U’s request, Buyer must notify its customers of the
assignment of the claim and deliver all information required to enforce
OEM4U’s rights, to OEM4U.
6.5 The Buyer acknowledges that the OEM4U or one of its affiliated companies
remains the exclusive owner of all the intellectual property rights related to
the Products and the name and logo under which they are sold by the
OEM4U and undertakes to make no claim on them, whatsoever.
Art. 7 Delivery
7.1 Delivery to a Buyer who is established within the European
Economic Area occurs EXW OEM4U Ltd. (Incoterms
2010), unless otherwise agreed upon in writing between the OEM4U
and the Buyer in the Agreement. Where, contrary to the
aforementioned, it is agreed upon in writing that the Products shall
be delivered to the Buyer or to an address specified by the Buyer,
then this delivery may occur in the absence of the Buyer. In that
case, subject to Art. 5.1, the consignment note is valid as proof of
delivery.
7.2 In the event of damage to the packaging and/or an insufficient
number of packages, the Buyer shall record this on the
consignment note at the moment the Products are delivered, where
it is available. He shall inform the OEM4U in writing sent within
twelve (12) hours following delivery of the Products.
7.3 Delivery periods are merely indicative and are not of the essence
for the Buyer. Late delivery or material impossibility to execute the
Agreement cannot be a reason for compensation at the OEM4U’s
expense, or refusal by the Buyer to take delivery of the Products.
7.4 A possible expressly agreed delivery period only starts from the
time when the OEM4U is in possession of all information and
documents required to implement delivery.
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compensation in the case of late delivery in the Agreement, this
compensation is only due where the Buyer advises the OEM4U by
registered letter, within the essential term of five (5) calendar days
as from the expiry of the delivery period, to be in default because of
exceeding the delivery period, enclosing proof of the damage
suffered. The OEM4U shall, nevertheless, not be bound to
compensation where late delivery is the result of Force Majeure, or
is the fault of the Buyer. In the last case the Buyer is liable for the
damage suffered and expense incurred. Force Majeure is defined
as, without this summary being limiting: order from the authorities,
mobilization, war, epidemic, lock-out, strike, demonstration, defects,
fire, flood, explosion, lack of raw materials or labour forces, changed
economic circumstances, vandalism, exceptional weather
conditions and all circumstances which are outside the OEM4U’s
control and disturb the ordinary course of business, without the
OEM4U being required to demonstrate the unexpectedness of these
circumstances. In any case, the potential compensation as a result
of late delivery is limited to 0.5% of the Purchase Price for each
complete week following the 21st working day after the delivery
date, with a maximum amount equal to 5% of the Purchase Price.
7.6 The Buyer cannot invoke late delivery by the OEM4U to terminate the
Agreement.
7.7 When partial delivery has already taken place and the Buyer
refuses to accept further delivery, or when the Buyer makes further
delivery impossible, the invoiced amount of the Products already
delivered becomes immediately due and the Buyer is liable to pay
compensation, laid down as a minimum of 35% of the Purchase
Price of the unexecuted part of the Agreement, which does not
diminish the OEM4U’s right to prove greater damage..
Art. 8 Right of retention
8.1 In the event of non-payment, in whole or in part, By the Buyer, of
the Purchase Price and/or Costs, the OEM4U has a right of retention
of all items and documents which were handed to him by the Buyer
until complete payment of the outstanding amount, plus interests
and expenses.
Art. 9 State of the Products and guarantee by the OEM4U
9.1 Second-hand Products are received by the Buyer in their state at
the time of the delivery. The receipt of the second-hand Products by
the Buyer at the moment of delivery, laid down in the Incoterm in
Art. 7.1, implies acceptance of the Products.
9.2 Should the Buyer be of the opinion that the new Products do not
conform to the order or have been visibly damaged, the Buyer shall
submit a written complaint to the OEM4U within 48 hours of delivery
of the Products. Should the OEM4U not have received a written
complaint from the Buyer within the aforementioned time limit, the
Buyer is presumed to have accepted the Products.
9.3 Hidden defects must be reported to the OEM4U by the Buyer within a
period of eight (8) working days after they have been discovered by
the Buyer or normally should have been discovered by the Buyer,
by registered letter to the OEM4U, and in any case within a period of
three (3) months following the date the Products were delivered.
9.4 As far as Products which have been made to size and
reconditioned Products are concerned, the OEM4U shall furthermore
only be responsible for hidden defects which affect the essential
components of the Products and which oblige the Buyer to
undertake radical repairs to an extent that the Buyer would never
have signed the Agreement had he known about these hidden
defects.
9.5 The OEM4U does not need to indemnify the Buyer where:
9.5.1 The Buyer or any third party has carried out repairs or
alterations to the Products or has attempted to do this; or
9.5.2 The defects are the result of incorrect or abnormal use, for
instance, the use of the Products for purposes other than
those for which they might reasonably be suited,
overloading, inexpert use in a manner which does not
match the instructions for correct use, assembly,
maintenance, installation or use that is not conform to the
technical or safety norms valid for the location where the
Products are used; or
9.5.3 Any damage occurs which is related to usual wear, to
failures caused by inexperience and/or negligence of the
Buyer, to overburdens, to non-authorized interventions, to
fortuitous events and Force Majeure.; or
9.5.4 The defects are not timely (i.e. within the periods
mentioned in Art. 9.3 and 9.4 above) reported in writing to
the OEM4U in accordance with the Special Terms and
Conditions of Sale, in particular the Guidelines on Product
Returns.
9.6 Where Products present any lack of conformity, visible damage or
hidden defect as mentioned above, and, after the examination by the
OEM4U’s technicians, the Products result to be affected by the defects, the
lack of conformity or the visible damages notified by the Buyer, it is
explicitly agreed upon that the OEM4U, according to his expert insight
and according to his choice, may either repair the Products or may
replace the Products, or permit a price reduction, or that the
Agreement should be terminated with refund of the Purchase Price
and return of the Products. The Buyer does not have the right to
ask for additional compensation.
9.7 The ownership of Products which the OEM4U has refunded or
replaced shall automatically be transferred to the OEM4U. All costs
for transport, customs, assembly, disassembly, travel and
accommodation expenses of OEM4U’s representatives remain at the
Buyer’s expense.
9.8 All implied warranties or conditions are excluded to the extent
permitted by law.
Art. 10 Complaints and Product returns
10.1 All complaints and Product returns shall be governed by and
construed in accordance with the Guidelines on Product Returns, to
be found on the dedicated webpage of the OEM4U.
Art. 11 Liability
11.1 The following provisions set out the entire liability of the OEM4U
(including any liability for the acts or omission of its employees,
agents, representatives and sub-contractors) to the Buyer in
respect of any breach of the Agreement and any representation,
statement or tortuous act or omission, including negligence, arising
under or in connection with the Agreement.
11.2 Without prejudice to the damage resulting directly from the breach
by the OEM4U of his explicit commitments undertaken by the OEM4U
by virtue of this Agreement, the OEM4U’s liability is limited to the
liability which is mandatory in accordance with the applicable law.
11.3 Should the OEM4U be liable in accordance with Art. 11.2, the OEM4U
can never be held liable to the Buyer for any pure economic loss,
loss of profit, loss of business, depletion of goodwill or otherwise, in
each case whether direct, indirect or consequential, or any claims
for consequential compensation whatsoever (howsoever caused)
which arise out of or in connection with the Agreement.
11.4 Should the OEM4U be liable according to Art. 11.2, the maximum
amount of his liability is in any case explicitly limited to the amount
of the Purchase Price.
11.5 The Buyer, who is approached by third parties as a result of
damage caused by a defect in the Products which were delivered
by the Buyer to third parties in any form, is in no instance entitled to
make a claim for redress against the OEM4U.
11.6. Nothing in these General Terms and Conditions of Sale excludes or
limits the liability of the OEM4U:
11.6.1 For death or personal injury caused by the OEM4U’s
negligence, or
11.6.2 Under section 2(3) Consumer Protection Act 1987, or
11.6.3 For any matter which it would be illegal for the OEM4U to
exclude or attempt to exclude its liability, or
11.6.4 For fraud or fraudulent misrepresentation.
Art. 12 Suspension and dissolution
12.1. In the case of non-payment or incomplete payment of the invoice
relating to a running individual sales transaction on the due date
laid down in Art. 5.1, the OEM4U has the right to refuse to enter into a
new individual sales transaction or to suspend the fulfillment of his
commitments under any running individual sales transaction with
the Buyer.
12.2 Without prejudice to Art. 12.1, the OEM4U has the right to suspend
fulfillment of his commitments where, after entering into the
Agreement, OEM4U becomes aware of any circumstance which may
cause the financial status of the Buyer to substantially deteriorate. If
the OEM4U suspends fulfillment of his commitments under the
Agreement, he must advise the Buyer immediately of the
suspension.
12.3 Where it is clear to the OEM4U that the Buyer will make himself guilty
of a serious shortcoming before OEM4U’s fulfillment of his
commitments under the Agreement, the OEM4U has the right to
declare the Agreement dissolved.
Art. 13 Miscellaneous
13.1 In the event one or more provisions of the Agreement is declared
void, this shall in no way affect the validity of the other provisions.
The parties undertake to do their utmost to replace such voided
provision by a valid provision which has the same or largely the
same economic effect as the voided provision, by mutual consent.
13.2 For the duration of the OEM4U-Buyer business relationship, the OEM4U
or one of its affiliated companies is storing information
communicated by the Buyer (hereinafter referred to as the “Data”),
in its customer relations database in accordance with the applicable
data protection legislation. If the Buyer wishes to consult and
correct the Data, it must request so by sending a registered letter to
the OEM4U’s sales department. The OEM4U shall not communicate the
Data to third parties that are not affiliated to OEM4U.
13.3 For the application of the present Agreement, working days are
considered as: Monday to Friday inclusive, except where this day is
an official public holiday in the country of the OEM4U.
13.4 The parties to the Agreement do not intend that any term of the
Agreement shall be enforceable by virtue of the Contracts (Rights
of Third Parties) Act 1999 by any person that is not a party to it.
13.4 Only the General and Special Terms & Conditions of Sale in
English are authentic. In case the OEM4U makes available other
language versions of the General and Special Terms & Conditions
of Sale, these are purely informative and parties cannot derive any
rights there from.
Art. 14 Assignment
14.1 The OEM4U may assign the Agreement or any part of it to any
person, firm or company.
14.2 The Buyer shall not be entitled to assign the Agreement or any part
of it without the prior written consent of the OEM4U.
Art. 15 Applicable law
15.1 With respect to what is not explicitly provided for in the General and
Special Terms and Conditions of Sale and Ancillary Terms, the
parties refer to the law of the country in which OEM4U is established,
which governs this Agreement. The application of the Vienna
Convention on International Sale of Goods is explicitly excluded.
Art. 16 Competent court
16.1 All disputes concerning the interpretation and enforcement of the
Agreement shall be submitted to the exclusive jurisdiction of the
competent Courts nearest to the registered office of the OEM4U, with
the express exclusion of any other competent Court.
16.2 Art. 16.1 shall operate for the benefit of the OEM4U and accordingly
the OEM4U shall be entitled, at its own discretion, to waive the
exclusive jurisdiction set forth in Art. 16.1, and therefore take
proceedings against the Buyer in its domicile and in any other court
or courts having jurisdiction.