J.Scholtz GmbH > AGB

AGB

J.Scholtz GmbH is herein referred to as the „Seller“ and the customer or person or entity purchasing services (“Services”) and parts required for Services
(“Parts”) from Seller is referred to as the „Buyer.“ Unless otherwise provided herein, the term “Services” include the term “Parts”. „Seller Affiliate“ is herein
referred to as a company which is directly or indirectly controlled by the ultimate parent company of Seller and which supply Services and Parts to Seller.
These Services Terms and Conditions, any price list or schedule, quotation, acknowledgment, Seller’s scope of work, or invoice from Seller relevant to the
provision of Services and all documents incorporated by specific reference herein or therein, constitute the complete and exclusive statement of the terms of
this agreement (“Agreement”) governing the sale of Services and Parts by Seller to Buyer and any contrary terms and conditions from Buyer shall not apply,
unless otherwise agreed in writing by Seller. Seller reserves the right in its sole discretion to refuse orders. The Agreement shall become effective only on the
date of Seller’s acknowledgement order of Buyer’s order.

1. PRICES: Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for the Services shall remain in effect for thirty (30) days
after the date of Seller’s quotation, Seller’s scope of work or acknowledgment of Buyer’s order for the Services, whichever occurs first, provided an
unconditional authorization from Buyer for the performance of the Services is received and accepted by Seller within such time period. If authorization is not
received by Seller within such thirty (30) day period, Seller shall have the right to change the price for the Services. All prices are exclusive of taxes, which are
to be borne by Buyer. Unless otherwise specified by Seller, Parts will be furnished at Seller’s then prevailing prices.
2. TAXES: Any current or future tax or governmental charge (or increase in same) affecting Seller’s costs of Services or costs of production, sale, delivery or
shipment of Parts, or which Seller is otherwise required to pay or collect in connection with the provision of Services and Parts, shall be for Buyer’s account
and shall be added to the price or billed to Buyer separately, at Seller’s election.
3. TERMS OF PAYMENT: Unless otherwise specified by Seller, terms of payment are upfront and on ProForma Invoice for initial sales, but consideration will
be given for net thirty days from date of Seller’s invoice in currency specified by Seller. Seller shall have the right, among other remedies, either to terminate
this Agreement or to suspend further performance under this Agreement and/or other agreement with Buyer in the event Buyer is or in Seller’s reasonable
opinion Buyer is likely to become in default with payment under this Agreement or any other agreement and under the same conditions require reasonable
security for payment or advance payment for future services and all other confirmed services orders not yet rendered. Buyer shall be liable for all expenses,
including attorneys‘ fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest, at a rate in
accordance with applicable law from the date on which it is due until it is paid.
4. SHIPMENT AND DELIVERY: While Seller will use all reasonable commercial efforts to maintain the performance dates acknowledged or quoted by Seller,
all performance dates are approximate and not guaranteed. Seller, at its option, shall not be bound to tender delivery of any Parts for which Buyer has not
provided shipping instructions and other required information. If the provision of Services or shipment of the Parts is postponed or delayed by Buyer for any
reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting there from. Unless otherwise specified by
Seller, all Parts will be delivered Ex Works, Seller’s shipping point (INCOTERMS 2000). Title and risk of loss or damage to the Parts shall pass to Buyer upon
delivery to carrier. Notwithstanding the above, risk of loss and legal title to Parts shall transfer to Buyer (i) when delivered by the individual providing the
Services, or (ii) at the time Parts are placed in storage due to Buyer’s delay or postponement. Any claims for shortages or damages suffered in transit are the
responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be identified and signed for at the time of delivery.
5. LIABILITY FOR DEFECTS: Subject to the limitations of Section 6, Seller warrants that it will perform the Services as described in this Agreement and will
exercise all reasonable skill, care and due diligence in the performance of the Services and shall perform the Services in accordance with professional
practice. Seller warrants that all Services performed shall be free from defects in workmanship for a period of thirty (30) days from completion of Services. On
products delivered the warranty will be a limited 1 year warranty. To the extent assignable, Seller assigns to Buyer any warranties that are made by
manufacturers and suppliers of Parts. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER SHALL BE LIMITED TO,
AT SELLER’S SOLE OPTION, EITHER CORRECT PERFORMANCE FOR THAT PORTION OF THE SERVICES FOUND BY SELLER TO BE DEFECTIVE
OR REFUND OF THE PRICE PAID FOR SERVICES. EXCEPT AS SPECIFIED ABOVE, PARTS FURNISHED HEREUNDER ARE FURNISHED AS–IS,
WHERE–IS, WITH NO WARRANTY WHATSOEVER. THE WARRANTY SET FORTH IN THIS SECTION 5 AND THE WARRANTY SET FORTH IN
SECTION 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE SERVICES AND PARTS AND ARE IN LIEU
OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT
LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN
DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE.
This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Seller’s),
unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair,
handling, maintenance or application or any other cause not the fault of Seller. To the extent that Buyer or its agents have supplied specifications, information,
representation of operating conditions or other data to Seller that is used in (i) the selection of the Services and/or Parts and (ii) the preparation of Seller’s
quotation and/or scope of work, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or
other provisions contained herein that are affected by such conditions shall be null and void.
Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of
Services or Parts, either alone or in combination with other parts.
6. LIMITATION OF LIABILITY: Except for death or personal injury caused by Seller and for Seller’s wilful misconduct or gross negligence: (i) Seller’s and
Seller Affiliates’ total liability for any and all damages, claims or causes of action howsoever arising (including, without limitation, damage, claims or causes of
action by virtue of tort, by breach of contract, warranty statutory duty, negligence, strict liability or infringement of Patent and Copyrights) shall not exceed the
price paid by Buyer for the specific Services performed ; and (ii) Seller and Seller Affiliates shall not be liable to Buyer in any circumstances for any
consequential or indirect loss or damages which shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue,
reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or equipment.
Buyer expressly acknowledges and agrees that Seller has set its prices and entered into this Agreement in reliance upon the limitations of liability and other
terms and conditions specified herein, which allocate the risk between Seller and Buyer and form a basis of this bargain between the parties.
It is expressly understood that any technical advice furnished by Seller with respect to the use of the Parts and/or Services is given without charge, and Seller
assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk.
7. PATENTS AND COPYRIGHTS: Subject to the limitations of the second paragraph of Section 5 and 6, Seller warrants that the Services sold, except as are
performed specifically for Buyer according to Buyer’s specifications, do not infringe any valid patent or copyright in existence as of the date of performance in
any member state of the European Union. This warranty is given upon the condition that Buyer promptly notifies Seller of any claim or suit involving Buyer in
which such infringement is alleged and cooperates fully with Seller and permits Seller to control completely the defence, settlement or compromise of any
such allegation of infringement. Seller’s warranty as to utility patents only applies to infringement arising solely out of the inherent operation according to
Seller’s specifications and instructions of such Services. In the event (i) such Services are held to infringe such patent or copyright in such suit in any member
state of the European Union, and the use of such Services is enjoined, or (ii) a compromise or settlement is made by Seller, Seller shall have the right, at its
option and expense, to procure for Buyer the right to continue using such Services or modify same to become non–infringing. In the event of the foregoing,
Seller may also, at its option, cancel this Agreement as to future performance of such Services, without liability.
8. FORCE MAJEURE: Seller shall not be liable for delays in performance or for non–performance due to acts of God; acts of Buyer; war; epidemic; fire; flood;
weather; sabotage; strikes or labour disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions
(including but not limited to prohibition of exports or re–exports or the failure to grant or the revocation of applicable export licenses); unavailability of or delays
in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Seller’s reasonable control. Performance of Services and
deliveries of Parts may be suspended for an appropriate period of time or cancelled by Seller upon notice to Buyer in the event of any of the foregoing, but the
balance of this Agreement shall otherwise remain unaffected as a result of the foregoing.
If Seller determines that its ability to supply the total demand for the Services or Parts or to obtain material used directly or indirectly in the manufacture of the
Parts is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may delay performance of Services or allocate its
available supply of the Parts among its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which
may result therefrom.
9. CANCELLATION: Buyer may cancel orders only upon reasonable advance written notice and upon payment to Seller of Seller’s cancellation charges
which include, among other things, all costs and expenses incurred and to cover commitments made by the Seller, and a reasonable profit thereon. Seller’s
determination of such cancellation charges shall be conclusive.

10. CHANGES: Buyer may request changes or additions to the Services. In the event such changes or additions are accepted by Seller, Seller may revise
the price and performance dates. Seller reserves the right to change designs and specifications for the Parts without prior notice to Buyer, except with respect
to Parts being made–to–order for Buyer. Seller shall have no obligation to install or make such change in any Parts manufactured prior to the date of such
change.
11. NUCLEAR/MEDICAL: SERVICES AND PARTS SOLD HEREUNDER ARE NOT FOR USE IN CONNECTION WITH ANY NUCLEAR, MEDICAL LIFE–
SUPPORT AND RELATED APPLICATIONS. Buyer accepts Services and Parts with the foregoing understanding, agrees to communicate the same in writing
to any subsequent purchasers or users and to defend, indemnify and hold harmless Seller from any claims, losses, suits, judgments and damages, including
incidental and consequential damages, arising from such use, whether the cause of action be based in tort, contract or otherwise, including allegations that
the Seller’s liability is based on negligence or strict liability.
12. ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any
such assignment or delegation, without such consent, shall be void. Seller is entitled to assign this Agreement to any affiliated company. Buyer hereby agrees
that Seller may without Buyers written consent assign its rights and duties hereunder or any interest herein to an affiliate of Seller which is directly or indirectly
controlled by the ultimate parent company of Seller.
13. INSPECTION: Buyer shall have ten (10) days from the date of completion of each portion of the Services to inspect the Services, and in the event of any
non–conformity, Buyer must give written notice to Seller within said period stating why the Services are not conforming. Failure by Buyer to give such notice
constitutes unqualified acceptance of the Services.
14. BILLABLE SERVICES: Additional charges will be billed to Buyer at Seller’s then prevailing labour rates for any of the following: a) any Services not
specified in Seller’s quotation, Seller’s order acknowledgement, Seller’s scope of work, or other documents referenced herein and therein; b) any Services
performed at times other than Seller’s normal service hours; c) if reasonable site and/or equipment access is denied the Seller service representative; and d)
if it is necessary, due to local circumstances, to use union labour or hire an outside contractor, Seller Service personnel will provide supervision only and the
cost of such union or contract labour will be charged to Buyer.
15. DRAWINGS: Seller’s documentation, prints, and drawings (including without limitation, the underlying technology) furnished by Seller to Buyer in
connection with this Agreement are the property of Seller and Seller retains all rights, including without limitation, exclusive rights of use, licensing and sale.
Possession of such prints or drawings does not convey to Buyer any rights or license, and Buyer shall return all copies (in whatever medium) of such prints or
drawings to Seller immediately upon request therefore.
16. SERVICE CONDITIONS: The Buyer shall furnish to Seller, at no cost, suitable working space, storage space, adequate heat, telephone, light, ventilation,
regulated electric power and outlets for testing purposes. The facilities shall be within a reasonable distance from where the Services are to be provided.
Seller and its representatives shall have full and free access to the equipment in order to provide the necessary Services. Buyer shall provide the means to
shut–off and secure electric power to the equipment and provide safe working conditions. Buyer shall inform Seller, in writing, at the time of order placement,
of any known hazardous substance or condition at the site, including, but not limited to, the presence of asbestos or asbestos–containing materials, and shall
provide Seller with any applicable Material Data Safety Sheets regarding the same. Any losses, costs, damages, claims and expenses incurred by Seller as a
result of Buyer’s failure to so advise Seller shall be borne by Buyer. Buyer shall appoint a representative familiar with the site and the nature of the Services to
be performed by Seller to be accessible at all times that Seller personnel are at the site. Seller shall not be liable for any expenses incurred by Buyer in
removing, replacing or refurbishing any Buyer equipment or any part of Buyer’s building structure that restricts Seller access. Buyer personnel shall cooperate
with and provide all necessary assistance to Seller. Seller shall not be liable or responsible for any work performed by Buyer.
17. COMPLIANCE WITH LAWS: Buyer agrees that all applicable import, export control and sanctions laws, regulations, orders and requirements, as they
may be amended from time to time, including without limitation those of the United Kingdom, the European Union and the jurisdictions in which Seller and
Buyer are established or from which items may be supplied, and the requirements of any licenses, authorizations, general licenses or license exceptions
relating thereto will apply to its receipt and use of hardware, software, services and technology. In no event shall Buyer use, transfer, release, export or re–
export any such hardware, software or technology in violation of such applicable laws, regulations, orders or requirements or the requirements of any
licenses, authorizations or license exceptions relating thereto. Buyer agrees furthermore that it shall not engage in any activity that would expose the Seller or
any of its affiliates to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper payments, including but not limited to
bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or
candidates for public office, or to any employee of any customer or supplier. Buyer agrees to comply with all appropriate legal, ethical and compliance
requirements
18. STATUTORY AND OTHER REGULATIONS: If Seller’s obligations under the Agreement shall be increased or reduced by reason of the making or
amendment after the date of Seller’s quotation of any mandatory law or any order, regulation or bye–law having the force of law that shall affect the
performance of Seller’s obligations under the Agreement, the price and delivery period shall be adjusted accordingly and/or performance of the Agreement
suspended or terminated, as appropriate. Except to the extent otherwise required by applicable law, Seller shall have no responsibility for the collection,
treatment, recovery or disposal of (i) the Services or any part thereof when they are deemed by law to be ‚waste‘ or (ii) any items for which the Services or
any part thereof are replacements. If Seller is required by applicable law, including waste electrical and electronic equipment legislation, European Directive
2002/96/EC (WEEE) and related legislation in EU Member States, to dispose of ‚waste‘ Services or any part thereof, Buyer shall, unless prohibited by
applicable law, pay Seller, in addition to the agreed Price, either (i) Seller’s standard charge for disposing of such Services or (ii) if Seller does not have such
a standard charge, Seller’s costs (including all handling, transportation and disposal costs and a reasonable mark–up for overhead) incurred in disposing of
such Services.
19. NON–SOLICITATION: Buyer shall not solicit, directly or indirectly, or employ any employee of Seller during the period any Services are being provided to
Buyer and for a period of one (1) year after the last provision of Services.
20. GENERAL PROVISIONS: These Services Terms and Conditions supersede all other communications, negotiations and prior oral or written statements
regarding the subject matter of these Services Terms and Conditions. No change, modification, rescission, discharge, abandonment, or waiver of these
Services Terms and Conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller.
No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement this
Agreement shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable
to this Agreement by Seller’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing
terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material
alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to
any additional or different terms set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of
dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in
writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to
correction.
The validity, performance, and all other matters relating to the interpretation and effect of this Agreement shall be governed by the law of Germany without
regard to its conflict of laws principles. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be only in courts of
Germany and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions relating to this contract, may be
brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods
shall not apply to this Agreement