1 General, Scope of Application
(1) These General Conditions of Sale (Conditions) apply to all Everactive’s business relations with customers (referred to hereinafter as “Customer”).
(2) The Conditions apply in particular to contracts for the sale and/or delivery of products, irrespective of whether we manufacture the Products or buy them from suppliers. The Conditions in the current version at the time also apply as a basic agreement to future contracts for the sale and/or delivery of personal property with the same Customer without Everactive having to refer to them again in every single case.
(3) Everactive Conditions apply exclusively. Customer’s conflicting, opposing or supplementary terms, whether on a purchase order, ordering document or otherwise, shall become part of the contract only if and insofar as we have expressly agreed in writing that they shall apply. This written consent requirement shall apply in every case, including for example if we deliver Products to the Customer without reservation with knowledge of the Customer’s standard or customized terms.
(4) Individual agreements made with the Customer and agreed to in writing by both parties in a particular case (including security agreements, additions and amendments) shall in every case take priority over these Conditions. With regard to the content of such agreements a written contract and/or Everactive written acknowledgment shall apply.
(5) Notices under these Conditions made to Everactive by the Customer (such as fixing time limits, notifying defects, declaring withdrawal or diminution of the purchase price due to defects) shall be valid only if made in writing.
(1) Unless otherwise stated in the quotation, Everactive quotations are subject to change and without obligation. This shall apply even if we have supplied the Customer with catalogs, technical documentation (such as drawings, plans, calculations, costings and references to DIN standards), other product descriptions or documents – including in electronic form – in which we reserve ownership and copyright.
(2) Ordering of Products by the Customer shall be deemed a binding contractual offer. Unless otherwise indicated in the order we shall be entitled to accept the contractual offer within seven days of receipt by Everactive.
(3) Acceptance can take place either in writing (e.g. by an acknowledgment or email) or by delivery of the Products to the Customer.
(4) Upon delivery of Products, the Customer shall have a non-exclusive limited right and license for an unlimited time (unless indicated otherwise by Everactive documentation) to use the software which is part of the Products.
3 Delivery Dates and Default in Delivery
(1) The delivery dates are individually stipulated or indicated by us when accepting the order. If the delivery dates are not so specified or indicated, the delivery dates shall be sixteen weeks from a binding order between the parties.
(2) If we are unable to meet firm delivery dates for reasons beyond Everactive’s control (a force majeure event) we will inform the Customer without delay, at the same time giving the expected new delivery date(s). If the performance is still not available within the new delivery dates(s) we shall be entitled to cancel the order, in whole or in part; and any amounts already paid by the Customer will be reimbursed without delay. A force majeure event in this respect is late delivery to Everactive by Everactive’s suppliers. Without limiting the generality of the foregoing, we will not be liable for delays in performing contractual obligations due, in whole or in part, to any contingency beyond Everactive’s reasonable control, including acts of God, fires, accidents, strikes, labor disputes, floods, wars, terrorism, sabotage, or governmental laws, ordinances, rules or regulations or any other events, occurrences or conditions beyond Everactive’s control.
4 Delivery, Passing of Risk, Acceptance, Default in Acceptance
(1) Delivery is ex works (EXW) Incoterms 2011 Everactive’s warehouse or contracted suppliers and this is also the place of performance. The Products will be sent to a different destination at the Customer’s request and expense (sale to destination according to buyer’s instructions). Unless otherwise agreed, we are entitled to decide on the manner of shipping (in particular the carrier, routing and packaging).
(2) The risk of accidental loss and accidental deterioration of the Products passes to the Customer at the ex works point at the latest. However, in the case of sale to destination according to buyer’s instructions the risk of accidental loss and accidental deterioration of the Products and the risk of delay passes to the Customer at handover of the Products to the forwarder, carrier or other person or organization carrying out the shipping. If the Customer has accepted the Products at an earlier time, then the time of acceptance determines the passing of risk.
(3) If the Customer improperly rejects or fails to accept delivery of Products or otherwise breaches its obligations under these Conditions or applicable law, we shall be entitled to demand compensation for Everactive’s loss thereby suffered, including any extra expenses. The right to make further claims is reserved.
5 Prices and Terms of Payment
(1) Unless otherwise agreed by the parties in writing, Everactive’s prices current at the time of conclusion of contract shall be valid on the basis ex works Everactive’s warehouse, exclusive of sales, use, excise, import and customs duties, VAT or similar taxes, all of which shall be the responsibility of Customer.
(2) In the case of sale to destination according to buyer’s instructions (Section 4 (1)), the Customer shall bear the cost of transport ex works Everactive’s warehouse or contracted suppliers location and the cost of any transport insurance requested by the Customer. Any customs and import duties, fees, taxes and other public charges are to the responsibility of Customer. Transport packaging and all other packaging is nonreturnable and becomes the Customer’s property, except for pallets.
(3) The purchase price is due and payable immediately for products and items purchased directly from Everactive’s website. Otherwise, purchase arrangements made through commercial agreement and/or purchase orders will outline payment terms..
(4) Upon expiration of the above time for payment the Customer is in default. During the default period interest at the rate of the lesser of 1.5% per month or the highest rate allowed by applicable law shall be due on the purchase price. We reserve the right to claim further damage caused by Customer’s default.
(5) If, after the parties enter into a binding order, it becomes apparent that Everactive’s claim for payment of the purchase price is jeopardized by the Customer’s inability to pay (e.g. an application for commencement of bankruptcy or insolvency proceedings) we shall be entitled to, in addition to all other rights and remedies available to Everactive, refuse to perform and cancel the applicable order(s). In the case of contracts for the manufacture of specific items (e.g., made to Customer’s specifications) we can immediately cancel the applicable order(s) in addition to all other rights and remedies available to Everactive.
6 Retention of Title / Security Interest
(1) We retain title to the Products sold until full payment of all Everactive’s present and future claims arising from the binding orders and Products sold to Customer. Without limiting the generality of the foregoing, as security for the timely payment and performance of all amounts due by Customer, Customer hereby grants to Everactive a first priority purchase money security interest (the “Security Interest”) in the Products following delivery thereof to Customer (“Collateral”). The Security Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to Everactive by the Customer has been made. If so requested by Everactive, Customer shall deliver to Everactive, in form and substance satisfactory to Everactive, and duly executed as required by Everactive, such financing statements and other security interest perfection documentation, duly filed under the UCC in all jurisdictions as may be necessary, or in Everactive’s sole and absolute discretion, desirable, to perfect Everactive’s Security Interest in the Collateral, in order to establish, perfect, preserve and protect the Security Interest as a legal, valid and enforceable security interest and lien, and all property or documents of title, in cases in which possession is required for the perfection of the Security Interest. Customer further grants Everactive the right, in Everactive’s sole and absolute discretion, to take any and all necessary actions to perfect the Security Interest granted in any applicable jurisdiction(s) without further authorization from Customer.
(2) Until all amounts have been satisfied in full the Products subject to retention of title shall not be pledged to a third party or assigned as security. The Customer shall notify Everactive immediately in writing if and insofar as a third party executes attachment of Everactive’s Products.
(3) In the event Customer breaches any of these Conditions, including failure to pay the purchase price due, we shall be entitled in accordance to cancel all outstanding order(s) and/or to reclaim the Products on the basis of the retention of title. Reclaiming does not at the same time constitute declaration of cancellation; instead we shall be entitled simply to reclaim the Products and to reserve the right of cancellation.
(4) The Customer is not authorized to resell and/or to process the Products subject to retention of title in the ordinary course of business. In this case, the following provisions shall additionally apply:
(a) Retention of title extends to the full value of the products created by processing, mixing or combining Everactive’s Products, in which context we shall be deemed the manufacturer. If in the case of processing, mixing or combining with third party Products the latter’s retention of title still applies, we shall acquire joint ownership in proportion to the invoice values of the processed, mixed or combined Products.
(b) The Customer hereby assigns to Everactive as security the claims against third parties arising from resale of the Products or product, in total or, if applicable, in the amount of Everactive’s joint ownership share according to the previous clause. We accept assignment. The Customer’s duties according to Section 2 shall also apply with regard to the claims assigned.
(c) The Customer remains authorized to collect the claim with Everactive. We undertake not to collect the claim as long as the Customer fulfills its payment obligations towards Everactive, is not in default of payment, no application for commencement of bankruptcy or insolvency proceedings is made and its ability to pay is not otherwise impaired. However, if this is the case we can demand that the Customer gives Everactive details of the claims assigned and the debtors, supplies all the information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds Everactive’s claims by more than 10%, upon request from the Customer we may release Everactive’s security interest at Everactive’s option.
7 Customer’s Warranty Claims
(1) We warrant to Customer that the Products will be free of defects in material and workmanship appearing within 12 months from the date of shipment; provided the Products are used for the purpose intended and are maintained, handled, serviced and operated in accordance with the written instructions and manuals supplied by Everactive or the manufacturer of the Products (or developer of the software). THE FOREGOING WARRANTY IS PROVIDED IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES; AND WE SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(2) Everactive’s liability for defects shall be any express warranties made by Everactive concerning the quality of the Products. All product descriptions that are the subject of the individual order shall be deemed the agreement concerning the quality of the Products, irrespective of whether the product description originates from the Customer, from the manufacturer or from Everactive.
(3) We shall not be held liable or responsible for any warranties or public statements by the manufacturer or other third parties (e.g. advertising messages).
(4) The Customer shall promptly inspect all Products. Any defect discovered during inspection or later shall be notified to Everactive without delay. Notification shall be deemed ’without delay’ if given within two weeks of delivery. Notification must be given in writing. Irrespective of the abovementioned inspection duties and notification the Customer shall notify obvious defects (including wrong and short delivery) within two weeks from delivery. Notification must be given in writing. If the Customer fails to notify defects as stipulated above, Everactive’s liability for defects not notified shall be excluded.
(5) If the item delivered is defective we may, in Everactive’s sole discretion, choose whether to effect performance by eliminating the defect (repair) or by delivering a non-defective item (replacement).
(6) We are entitled to make performance conditional upon the Customer’s paying the purchase price due. The Customer shall, however, be entitled to withhold an appropriate part of the purchase price in proportion to the defect.
(7) The Customer shall allow Everactive the reasonable and necessary time and opportunity for due subsequent performance and shall in particular hand over the Products concerned for inspection. The expenses necessary in connection with subsequent performance, in particular transport, travel, labor and materials, shall be at Everactive’s expense. In the case of replacement the Customer shall promptly return the defective item(s) to Everactive.
(8) The Customer shall be entitled to claim compensation or reimbursement of expenses incurred only as expressly provided for in this Agreement; and all other claims shall be and are hereby excluded.
8 Return Policy
In general, Everactive Inc. does not accept any returns, unless related to a defect or warranty claim as stipulated above.
9 Proprietary Rights
All software, inventions (whether patented or not), methods, processes, know-how, layouts, models, designs, sketches, drawings, blueprints, patterns, trade secrets, copyrights, mask works, trade names, registered and unregistered trademarks and service marks, proprietary materials or other intellectual property and all improvements or modifications relating to any of the foregoing, incorporated into or in any manner associated with or attached to the Products or otherwise provided to Customer (“Intellectual Property”) are and shall at all times remain our sole property or the property of our licensors, as applicable. Customer agrees not to (a) modify, translate, decompile, reverse engineer, copy or duplicate the any Intellectual Property, nor to remanufacture or have remanufactured any products which incorporate our Intellectual Property, (b) to use any of Everactive's trademarks, service marks or trade names in any manner without Everactive's prior written permission, or (c) to infringe, or permit a third party to infringe, any of Everactive's Intellectual Property or to adapt the Products in any way or to create a derivative work of any of Everactive's Intellectual Property, except as may be authorized in writing by Everactive. Any act or omission of Customer contrary to the provisions of this Section shall be a material breach of these Conditions.
(1) Customer agrees to diligently protect, defend, hold harmless and indemnify Everactive and Everactive's directors, officers, employees, shareholders, affiliates, agents and representatives from and against any and all liability, claims, lawsuits, losses, demands, damages, costs and expenses, including, without limitation, attorneys’ fees and costs, experts’ fees and costs, and court costs, (the “Losses”) arising from any third party claim (i) due to any use of the Products of any nature in a manner other than for which they were intended, or (ii) arising out of any breach of any of Customer’s representations or covenants or other terms contained in these Terms or any contract in which these Terms are incorporated or to which these Terms are attached or made part of, or (iii) arising out of the improper use, storage, handling, transportation, maintenance, modification, alteration, assembly or use of Products by or on behalf of Customer or any third party; or (iv) due to any use of the Products of any nature for any modification or programming error which may cause damage, loss or bodily injury or death; or (v) arising out of a design or specification which is provided by or on behalf of Customer, except to the extent such Losses have been incurred as a direct result of a breach of Everactive's warranty, Everactive’s willful and knowing infringement of the intellectual property rights of any third party, or Everactive’s gross negligence or willful misconduct.
(2) Each indemnitee shall notify Customer in writing within ten (10) days of the receipt of any claim, suit or proceeding, including any incidents involving personal injury or damage to property. The indemnitee shall cooperate with Customer with regard to the defense of any suit or threatened suit. In the event of a claim involving an accident or safety issue, the Customer shall make available all statements, reports and tests concerning the incident. The Customer may assume control of the defense of any such claim, proceeding or suit and shall have the authority to settle or otherwise dispose of any such suit or threatened suit, and to appeal any adverse judgment which may be entered, except that the Customer shall obtain the indemnitee’s prior written consent to any settlement, which consent shall not be unreasonably withheld.
11 Limitations of Liability
(1) IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES OF ANY KIND, OR DAMAGES CAUSED BY DELAY IN PERFORMANCE, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUE, COST OF SUBSTITUTES, ARISING FROM OR IN ANY WAY CONNECTED TO THIS AGREEMENT OR ORDER, WHETHER FOR BREACH OF WARRANTY OR OTHER BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT. OUR MAXIMUM LIABILITY FOR ANY CLAIMS ARISING FROM OR IN ANY WAY CONNECTED TO THIS AGREEMENT OR ORDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE INVOICED PURCHASE PRICE OF THE PRODUCT(S) GIVING RISE TO THE CLAIM.
(2) It is agreed and acknowledged that the provisions of these Terms allocate the risks between Everactive and the Customer in a fair and equitable manner, Everactive’s pricing reflects this allocation of risk, and but for this allocation and limitation of liability, we would not have agreed to sell the Products to Customer.
(3) In jurisdictions that limit the scope of, or preclude limitations or exclusions of, remedies or damages or of liability such as liability for gross negligence or willful misconduct or do not allow implied warranties to be excluded, the limitation or exclusion of warranties, remedies, damages or liability set forth herein are intended to apply to the maximum extent permitted by applicable law.
12 Limitation of Actions
(1) Customer shall commence any legal action or proceeding under these Conditions or with respect to any Products no later than one (1) year after Customer knew or should have known of the facts giving rise to the action or proceeding.
Customer may not assign its orders or any contract in which these Conditions are incorporated or to which these Conditions are attached or made part of, or any right or interest herein or therein, or any other obligation arising hereunder or thereunder without Everactive’s prior written consent.