Terms & Conditions
LYNX Technik AG TERMS AND CONDITIONS OF SALE
Effective date: 19.AUG.2016
Last revised: 19.AUG.2016
The Terms and Conditions set forth herein and referred to in the LYNX Technik AG Sales Order Acknowledgment are the entire Agreement for the sale of goods entered into between LYNX Technik AG. (“LYNX”) and Buyer. This Agreement and the sale of any product hereunder (including the license of software) shall not be construed as conveying any license, except the implied license to use and resell the products supplied hereunder, to any patent, copyright, trademark, or other proprietary intellectual property rights of LYNX. This Agreement supersedes the terms of Buyer’s Purchase Order. No addition to or modification of this Agreement shall be binding upon LYNX unless made in a separate writing and signed by a duly authorized officer of LYNX.
2. PRODUCTS, QUANTITIES AND PRICING
Subject to the provisions in this Agreement, LYNX agrees to sell to Buyer and Buyer agrees to purchase the quantities of products specified on LYNX’s Sales Order Acknowledgement. Prices are in EURO and does not include any applicable taxes. LYNX will add such amounts to the sales price if LYNX is required by law to collect them and will be paid by Buyer. Prices are valid for delivery only to Buyer’s location at the address listed on LYNX’s Sales Order Acknowledgment.
3. ORDER PROCEDURE
All orders are subject to acceptance and acknowledgment by LYNX Technik AG Weiterstadt office via the LYNX Technik AG Sales Order Acknowledgment. All orders shall be sent to: LYNX Technik AG, Brunnenweg 3, 64331 Weiterstadt, Germany, e-mail: email@example.com / Phone +49(0) 6150 1817 0 / Fax +49 (0) 6150 1817 132.
4. SHIPMENT OF ORDERS
LYNX will schedule shipment subject to LYNX’s shipping capability. All products shipped ex Works Weiterstadt, Germany.. In the absence of written instructions from Buyer, LYNX may select the carrier. LYNX may make separately invoiced partial shipments of Buyer’s orders, to be paid for when due. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept the remaining deliveries. Buyer has ten (10) days after receipt of shipment to notify LYNX in writing of any shipment discrepancies. Absent such notice, the shipment shall be deemed accepted by Buyer.
5. PAYMENT OF INVOICES
Upon shipment, LYNX will submit an invoice to Buyer, which will be due and payable within thirty (30) calendar days of the invoice date. Accounts 14 days past due will be subject to a monthly charge equal to the lower of one and one-half percent (1.5%) per month or the maximum rate permissible by law, to cover the costs of servicing these accounts. LYNX reserves and retains a purchase money security interest in the Products and the proceeds thereof until Buyer has made payment therefore in full. Payment by Buyer of non-recurring charges as may be made to LYNX for special design, engineering or production materials required for LYNX’s performance on orders deviating from LYNX’s established product line shall not convey title to either the design, engineering or special materials, but title shall remain in LYNX. Payments shall be remitted to: LYNX Technik AG Brunnenweg 3, 64331 Weiterstadt, Germany, Phone +49(0) 6150 1817 0 / Fax +49 (0) 6150 1817 132. .
Buyer has the right to return LYNX product (with the exception for software products) for credit within 30 days of invoice date with a restocking fee of 10%. Prior to returning any Product, Buyer must obtain a Return Material Authorization (RMA) Form from LYNX. LYNX requires the equipment be retuned in “as new” condition with all original packaging, accessories and manuals. Any items received and not deemed by LYNX not to meet this criterion will result in additional charges up to the full purchase price of the product(s). LYNX provides no cash refunds.
7. SOFTWARE LICENSE
LYNX licenses and does not sell its software. LYNX shall continue to own all rights, title, and interest, including all copyright, patent and intellectual property rights, in and to the Software. Subject to the terms of this Agreement, LYNX grants to Buyer a non-exclusive license to use the object code software provided by LYNX (the “Software”) only with the LYNX hardware for which the software is intended. Buyer shall not (a) sublicense, transfer or otherwise convey the Software to any third party; (b) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software to human-readable form; or (c) remove Software from hardware on which the Software is pre-loaded. Buyer has no rights to source code versions of the Software.
8. LIMITED WARRANTY
LYNX warrants to the Buyer that hardware and systems software Products shall be free of substantial defects in material and workmanship under normal use in accordance with LYNX’s instructions and service for three (3) years from date of shipment from LYNX. Buyer’s exclusive remedy shall be for LYNX, at LYNX’s option, to replace, repair, or refund Buyer’s purchase price for any Product that is returned to LYNX ‘s factory within its warranty period, transportation prepaid, and which LYNX determines fails to meet the above warranty. Prior to returning any Product, Buyer must obtain a Return Material Authorization (RMA) Form from LYNX. This warranty shall not apply to any Products that have been used, repaired, or altered except in strict compliance with handling or operating instructions supplied by LYNX. Any repaired or replaced Products are warranted for the remainder of the original warranty period or ninety
(90) days, whichever is longer. LYNX may offer an Advance Replacement Service (ARS) Option and an Extended Warranty Option. For details, contact LYNX’s Customer Service Department.
9. WARRANTY DISCLAIMER
EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, LYNX DISCLAIMS ALL WARRANTIES, TERMS AND CONDITIONS ON PRODUCTS (INCLUDING SOFTWARE), EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY, TERM OR CONDITION OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR CORRESPONDENCE WITH DESCRIPTION. THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF LYNX ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE PRODUCT. THE FOREGOING WARRANTIES EXTEND ONLY TO BUYER AND SHALL NOT BE ASSIGNABLE TO ANY OTHER PARTY.
LYNX agrees to defend, or at LYNX’s option settle, any claim of infringement or misappropriation of third party copyright or trade secret by Products purchased by Buyer from LYNX (an Action), provided Buyer (i) gives LYNX prompt written notice of any such Action (ii) gives LYNX sole authority to settle or defend any such Action, and (iii) assists LYNX in so doing upon
LYNX’s request (at LYNX’s expense). If Buyer is the subject of or in LYNX’s opinion is likely to be the subject of any claim that the Products infringe or misappropriate third party intellectual property rights, at LYNX’s option, LYNX may (1) procure for Buyer the right to use or sell the Product; (2) replace or modify the Product so that it becomes non-infringing; or (3) authorize return of the Product and upon its receipt refund to Buyer the cost of the Product. Buyer will use commercially reasonable efforts to assist LYNX in mitigating its damages hereunder. The foregoing states the entire liability to LYNX for any infringement or misappropriation of intellectual property.
11. LIMITATION OF LIABILITY
INDEPENDENTLY OF ANY OTHER REMEDY LIMITATION HEREOF AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY SUCH LIMITED REMEDY, IN NO EVENT SHALL LYNX BE LIABLE FOR SPECIAL, INCIDENTAL, COST OF COVER, LOST PROFITS OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER CONTRACT, TORT OR OTHER LEGAL ACTION UNDER THIS AGREEMENT, EVEN IF LYNX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LYNX’S AGGREGATE LIABILITY HEREUNDER (INCLUDING UNDER SECTION 8) EXCEED THE AMOUNT PAID BY BUYER TO LYNX FOR THOSE PRODUCTS GIVING RISE TO THE LIABILITY.
LYNX may terminate this Agreement and outstanding unfilled orders and the licenses granted hereunder upon notice to Buyer if any amount payable by Buyer in respect of any of the products is not paid within fourteen (14) days of the date such payment is due, or if Buyer otherwise breaches any provision of this Agreement and fails to cure such breach within fourteen (14) days of notice thereof, or if Buyer becomes bankrupt, makes an assignment for the benefit of creditors or a trustee is appointed for Buyer, or if the assets of Buyer vest in or become subject to the rights of any trustee, receiver, board, tribunal, commission or any body, corporate or person, other than Buyer, or if bankruptcy, reorganization or insolvency proceedings are instituted against Buyer and are not dismissed within 14 days.
13. COMPLIANCE WITH LAWS
Each party hereto represents that with respect to its performance hereunder, each will comply with all applicable federal, state and local laws, Buyer shall not sell any product to a Customer in any country if: (1) the export of any such product to such country is prohibited by law; or, (2) the import of any such product into such country is prohibited by the laws of such country; or, (3) Buyer or the customer does not possess the proper certificate(s) required by the laws of such country for the lawful importation of any such product.
Buyer shall not assign (including change of control and by operation of law) or set off any orders made under this Agreement or any rights hereunder.
15. GOVERNING LAW
This Agreement shall be governed by the laws of Germany.
16. ATTORNEY’S FEES
Should a dispute arise from the subject-matter of this agreement, the prevailing party in any resulting litigation shall be reimbursed by the other party for any and all attorney’s fees and expenses incurred.
17. LIABILITY FOR INJURY OR LOSS
The Buyer shall take such steps as may be reasonably necessary to prevent personal injury or property damage during any work hereunder that may be performed by any employees, agents, or subcontractors of the Buyer at LYNX’s plant(s), and the Buyer shall defend, indemnify and hold harmless LYNX from and against all loss, liability, and damages arising from or caused directly or indirectly by any act or omission of such agents, employees, or subcontractors of the Buyer, and Buyer shall maintain such insurance as will protect LYNX against the aforementioned risks and against any claims under any Workers Compensation Acts.
18. FORCE MAJEURE
Notwithstanding anything else in this Agreement, except for the obligation to make payments, neither party shall be held liable or responsible for any failure to meet its obligations under this Agreement where such failure results from causes beyond such party’s reasonable control, including without limitation communication line or power failures; shortages of transportation, labor or supplies; and fire, flood or other natural disasters. Nor shall any such delay or failure be considered to be a breach of this Agreement.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, such provision shall be severed therefrom and the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.