Terms and Conditions of Sale

Definitions:

The headings in these Conditions are for convenience only and shall not affect their interpretation. 

The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer. 

No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller. 

The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed. 

Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed. 

Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller. 

No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller's authorised representative. 

The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms. 

The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller). 

If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification. 

The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance. 

For rentals, Buyer recognizes that the Goods are fragile and agrees to take special care in its handling and use to ensure that the Goods are not damaged. Buyer further agrees to pay Seller for the reasonable cost of repair for any Goods that are damaged while in the Buyer’s possession, custody, or control. In the event that Goods are damaged beyond repair while in Buyer’s possession, custody, or control, Buyer agrees to pay Seller the full retail value of the Goods. 

The delivery date is an estimate of lead time based on known conditions at the time of the quote. It is not a guaranteed date. 

By agreeing to purchase Goods, Buyer confirms that it is not a party designated by, nor directly or indirectly 50% or more owned by, a party or parties designated by the U.S. Government, including those parties on sanctions lists administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of Commerce’s Bureau of Industry and Security, and the U.S. State Department (“Designated Person”). A Designated Person includes those owned or controlled by foreign governments that are a Designated Person. By agreeing to purchase Products, Buyer further confirms that it will not divert the Products to any Designated Person, nor to an embargoed location, including Cuba, Iran, North Korea, Syria, and the territory of Crimea.

Buyer acknowledges that some Products and any related technology or software are subject to export and import control laws.  Accordingly, the Buyer agrees to comply fully with all such laws and certifies that it will be the recipient of the Products and any related technology or software to be delivered.  Diversion of the products and any related technology or software is prohibited.

Seller may, at its sole discretion, cancel an order on grounds of technical infeasibility, operations or manufacturing or supply chain constraints not previously foreseen (for example, non-availability of critical parts), or legal, certification, or regulatory constraints not previously foreseen (for example, export license denial or unachievable safety certification requirements). Any monies paid to Seller under the order will be refunded, but no further claim upon Seller shall apply.

No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation. 

The price of the Goods shall be the Seller's quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer. 

The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions. 

Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis (IncoTerms EXW), where the Buyer shall be liable to pay all taxes, customs, excise, duties, and fees, and all charges for transport, packaging and insurance. 

The price is exclusive of any applicable value added tax or import-VAT, which the Buyer shall be additionally liable to pay to their VAT authority or to reimburse the Seller upon presentation of an invoice for such VAT prepaid by the SELLER or their shipper. 

The cost of pallets will be charged to the Buyer in addition to the price of the Goods.

Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after the dispatch of the Goods.

The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 14 days of the date of the Seller's invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. 

If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: 

Delivery of the Goods shall be made by a shipper of Seller’s choice, unless otherwise directed by Buyer.

Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. 

Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated. 

If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the agreed price of the Goods. 

If the Buyer fails or declines to take delivery of the Goods then, without prejudice to any other right or remedy available to the Seller, the Buyer remains liable for the agreed price of the Goods in full.

Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods. 

Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due. 

Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property.

The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable. 

Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for the minimum period required by law from delivery unless detailed otherwise on a formal quotation or order acknowledgement. 

The above warranty is given by the Seller subject to the following conditions: 

the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer; 

the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), opening the housing, misuse or alteration or repair of the Goods without the Seller's approval; 

the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment; 

the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller. 

Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 

Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. 

Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer. 

Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.

The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control: Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery. 

Buyer hereby acknowledges that it understands that certain Goods can be extremely dangerous, and, if used improperly, may result in damage to property, serious injury and or death. Buyer further acknowledges that it is aware of and understand the types of hazards and dangers, both real and hidden, involved in the operation of the Goods and accepts any and all of the risks of possible damage, injury or death, on behalf of Buyer and any of its officers, agents, and employees (“Releasors”). The Company agrees to explain the types of hazards and dangers, both real and hidden, involved in the operation of the Goods to all officers, agents, or employees of the Company whose responsibility it is to use the Goods, or who come into contact with the Goods in any way. 

Buyer hereby releases, agrees to hold harmless, and indemnify seller, the manufacturer of the Goods, and the officers, agents, and employees of both (the “Releasees”) from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of or related to any loss, damage, or injury, including death, that may be sustained by the Releasors, or to any property belonging to the Releasors, while using the Goods, regardless of whether such loss is caused by the negligence of the releasees, or otherwise, and regardless of whether such liability arises in tort, contract, strict liability, or otherwise, to the fullest extent allowed by law. The Releasors further agree to waive and not make any claim or file any suit based upon negligence, breach of warranty, breach of contract, or any other legal theory against the Releasees. This release, agreement to hold harmless, and to indemnify shall be binding upon the Releasors, their legal representatives, heirs, legatees, and assigns as well as upon all who may be dependent upon or entitled to the Releasors’ services, consortium, or support. Should the Buyer, or any of the Releasors, breach this agreement by filing a suit, or making a claim against any of the Releasees, Buyer agrees to pay all the Releasee’s attorneys’ fees and costs associated with such suit or claim. 

Buyer voluntarily assumes all risks and shall carry insurance to cover any and all risks, known and unknown, of any injuries, both personal and financial, and of any wrongful death, however caused, even if caused in part or in whole by the action, inaction, or negligence of any of the Releasees to the fullest extent of the law. The Company understands and agrees that this document is legally binding and will preclude the Company and any of the Releasors from recovering monetary damage from the Releasees, whether specifically named or not, for personal injury, bodily injury, property damage, wrongful death, or any other personal or financial injury sustained by any of the Releasors in connection with the use of the Product.

There are no warranties expressed or implied by the releasees, including the implied warranties of merchantability and fitness for a particular purpose. In no event shall the releasees be liable for any incidental or consequential damages. Releasor’s remedies shall be limited to repair or replacement of nonconforming units or parts.

If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that: the Seller is given full control of any proceedings or negotiations in connection with any such claim; the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations; except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld); the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do); the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause. 

This clause applies if: the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly. If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. 

In these Conditions 'Incoterms' means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail. 

The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them. 

Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered EXW to the delivery address specified by the Buyer. 

The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller's premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit. 

Payment of all amounts due to the Seller shall be made by irrevocable IBAN transfer.  The Buyer undertakes not to offer the Goods for resale or export without the consent in writing of the Seller. 

Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. 

No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. 

If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected. 

The Contract shall be governed by the laws of Germany, and the Buyer agrees to submit to the non-exclusive jurisdiction of the German courts. 

Seller collects, stores and uses the personal data of the customers and suppliers in its computer systems for purposes of order management, processing of goods traffic and payments as well as its own advertising. Seller takes all necessary precautionary measures to adhere to statutory provisions when collecting, storing and using personal data. Customers and interested parties may obtain information about their stored data at any time as well as object to the use of their data. 

This document contains the entire agreement between the parties with respect to the subject matter hereof.  Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.

Sky Blue Microsystems GmbH

Geisenhausenerstr. 18

81379 Munich

Tel. +49 (0) 89 – 780297 0

For more information, please call +49 (0) 89 – 780297 0, or email us at info@skyblue.de, or fill out this form: