Terms and Conditions

Scope of Agreement

This Agreement sets forth the terms and conditions under which ATMOCE Deutschland GmbH ("Seller"/”ATMOCE”) agrees to sell, and the Buyer agrees to purchase, the equipment described in the attached Schedule A ("Equipment"). The Equipment shall be supplied in accordance with the specifications detailed in Schedule A, subject to the terms and conditions of this Agreement.

Any terms or conditions proposed by the Buyer in any document, order, or otherwise, which are in addition to or inconsistent with the terms and conditions of this Agreement, are hereby expressly rejected by the Seller, unless the Seller agrees to them in writing. This Agreement constitutes the entire legal agreement between the parties regarding the sale of the Equipment and supersedes all prior or contemporaneous communications, proposals, or agreements, whether oral or written, regarding such subject matter. For avoidance of doubts, the legal obligation to deliver for seller occurs only after written final order confirmation by Seller with clear reference to final order and additional rules may be agreed mutually and by written document and/or in the final order confirmation between the parties.

 

Order of Precedence

In the event of any conflict or inconsistency among the following documents, the order of precedence shall be as follows:

1. Any other document or communication relevant to the purchase of the Equipment which is enumerated int the final confirmation) and agreed mutually by written confirmation (e.g. Limited Warranty).
2. The Agreement, including any amendments or addenda thereto (final order and written confirmation).
3. The terms and conditions set forth in this document.
4. The specifications for the Equipment as described in Schedule A.

This order of precedence shall be used to resolve any ambiguity or conflict that may arise in relation to the sale and purchase of the Equipment under this Agreement. For clearness reasons the Buyer will confirm these terms and conditions and will countersign them.

 

Price and Payment

The price for the Equipment shall be as set out in Schedule A to this Agreement ("Price"). Unless otherwise agreed in writing by the Seller, the Price shall be exclusive of value added tax (VAT), which the Buyer shall be additionally liable to pay to the Seller at the prevailing rate.

Payment of the Price, together with any applicable VAT, shall be due within 30 days of the date of the Seller's invoice. Payment shall be made in the currency specified in Schedule A, without any deduction, set-off, or counterclaim.

The Seller reserves the right to adjust the Price in the event of any changes to the specifications of the Equipment as mutually agreed upon by the parties or due to variations in applicable taxes or duties as required by law. Any such adjustments shall be notified to the Buyer in writing.

If the Buyer fails to make any payment due to the Seller under this Agreement by the due date for payment, then, without limiting the Seller's remedies under this Agreement, the Buyer shall pay interest on the overdue amount at the rate according to § 288 BGB (Bürgerliches Gesetzbuch) per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.

The Buyer shall pay the interest together with the overdue amount.

This clause shall survive the termination of the Agreement.

 

Delivery Terms

The Seller shall deliver the Equipment to the location specified by the Buyer within Germany and/or Europe (European Union) ("Delivery Location") and as agreed in the last order and final confirmation on or before the delivery date specified in Schedule A ("Delivery Date"). The Seller shall ensure that the Equipment is properly packed and secured in such a manner as to enable it to reach the Delivery Location in good condition.

Delivery of the Equipment shall be deemed to have occurred upon the arrival of the Equipment at the Delivery Location and the Buyer's (or its agent's) acknowledgement of receipt. The risk of loss or damage to the Equipment shall pass to the Buyer upon delivery. However, title to the Equipment shall not pass to the Buyer until the Seller has received payment in full for the Equipment, in accordance with the terms set out in this Agreement.

If the Seller fails to deliver the Equipment on the Delivery Date, the Buyer shall be entitled, without affecting any other rights it may have, to one or more of the following remedies:

• Demand completion of delivery.
• Reject the Equipment if it substantially fails to comply with the specifications set out in Schedule A.

The Seller reserves the right to make partial deliveries of the Equipment, unless otherwise agreed upon in writing by both parties. Each partial delivery shall be invoiced and paid for separately in accordance with the terms of this Agreement. The failure of the Buyer to pay for any one or more of the said partial shipments shall entitle the Seller to suspend further deliveries without prejudice to any other right it may have.

All delivery dates are estimates and are subject to change. The Seller shall not be liable for any delays in delivery caused by circumstances beyond its reasonable control, including but not limited to, acts of God, labour disputes, supply chain disruptions, or transportation delays. In the event of such a delay, the Seller shall notify the Buyer as soon as reasonably possible and shall take all reasonable steps to minimize the delay.

 

Title and Risk of Loss

The title to the Equipment shall pass from the Seller to the Buyer upon the full payment of the Price by the Buyer to the Seller. Risk of loss or damage to the Equipment shall pass to the Buyer upon delivery of the Equipment to the Delivery Location, as specified in Schedule A to this Agreement.

 

Acceptance of Products

Upon receipt of the Equipment at the Delivery Location, the Buyer shall promptly inspect the Equipment for any discrepancies in quantity, packaging, or other visible defects. If no issues are identified at the time of delivery, the Buyer shall deem the delivery as fully accepted. Acceptance by the Buyer confirms that the delivery meets the agreed-upon terms, and no further claims regarding the condition of the Equipment will be entertained. Once the Equipment is deemed accepted, the Buyer waives any right to reject the Equipment for any reason.

Limited Warranty:

 ATMOCE Deutschland GmbH provides a standard limited warranty ("Limited Warranty"), which is separate from and supplementary to legal mandatory warranties and representations. The Buyer is tasked with conveying the Limited Warranty; however, ATMOCE's warranty obligations extend solely to the Buyer, not to End Users.

All rules and regulations regarding warranty are stipulated exhaustively in the Limited Warranty which will be agreed separately between the parties.

In a nutshell under the Limited Warranty, the Buyer returns a Product to ATMOCE within the Warranty Period and adheres to the specified procedures, ATMOCE's sole liability and the Buyer's exclusive remedy will be for ATMOCE, at its discretion, to:

(a) repair the nonconforming Product in accordance with the Limited Warranty;

(b) replace the nonconforming Product with a conforming one (see above the Seller does not bear the deinstallation and installation works and/or costs and replaces at a maximum  a delivery at Delivery Place); or

(c) refund the amount paid by the Buyer for the nonconforming Product, contingent upon proof that the Product was defective upon delivery.

The Limited Warranty excludes coverage for defects or nonconformities arising from misuse, neglect, environmental conditions, unauthorized modifications, or circumstances beyond normal use conditions. Prior to any return, the Buyer must secure an RMA number from ATMOCE and cover all return shipping costs. ATMOCE reserves the right to refuse returns that do not comply with these terms.

Except as explicitly outlined herein, and to the maximum extent permitted by law, the Products are provided "as is," with ATMOCE and its suppliers disclaiming all implied warranties, including but not limited to implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, and non-infringement. The parties, being experienced in their respective fields, explicitly exclude warranties for hidden defects.

 

Limitation of Liability

Notwithstanding anything to the contrary contained in this Agreement, the Seller's liability to the Buyer for any claim whatsoever, including but not limited to any claim relating to the Equipment's design, manufacture, delivery, or nonconformance with the specifications, whether based in contract, warranty (Limited Warranty), tort (including negligence), or otherwise, shall be limited to the Price paid by the Buyer for the Equipment. In no event shall the Seller be liable for any special, incidental, indirect, or consequential damages, including but not limited to loss of profits, loss of feed in tariffs, revenue, or data, arising out of or in connection with this Agreement or the Equipment supplied hereunder, even if the Seller has been advised of the possibility of such damages.

The limitations set forth in this section shall apply to the fullest extent permitted by law and shall survive the termination or expiration of this Agreement. The Buyer acknowledges that the Price reflects this allocation of risk and the limitation of liability specified herein.

 

Intellectual Property Rights

All Intellectual Property Rights in the Equipment, including but not limited to patents, designs, trademarks, and copyrights, that exist as of the date of this Agreement or that are developed by the Seller during the term of this Agreement, shall remain the sole and exclusive property of the Seller. The Buyer acknowledges that, in purchasing the Equipment, no transfer of ownership or license to use the Intellectual Property Rights in the Equipment is granted to the Buyer, except as expressly provided for in this Agreement.

The Buyer is granted a non-exclusive, non-transferable, revocable license to use the Equipment in accordance with the specifications set out in Schedule A, solely for the purpose for which the Equipment is intended. This license does not include the right to copy, modify, distribute, or create derivative works based on the Equipment or any part thereof, except as may be necessary for the intended use of the Equipment.

The Seller reserves the right to take legal action against any unauthorized use of the Intellectual Property Rights in the Equipment. The Buyer agrees to notify the Seller immediately of any unauthorized use of the Intellectual Property Rights in the Equipment of which the Buyer becomes aware.

This clause shall survive the termination of this Agreement.

 

Confidentiality

Both the Seller and the Buyer (collectively referred to as the "Parties") acknowledge that in the course of executing and performing this Agreement, they may have access to or be exposed to information that is proprietary or confidential to the other Party. Such information includes, but is not limited to, technical data, trade secrets, know-how, business operations, strategies, and customer information ("Confidential Information").

Each Party agrees to:

1. Keep all Confidential Information in strict confidence and to use it only for purposes of performing under this Agreement;
2. Disclose Confidential Information only to those of its
3. employees, agents, or subcontractors (the latter upon prior written consent by Seller)  who have a need to know such information for purposes of performing under this Agreement and who are bound by confidentiality obligations at least as restrictive as those contained herein;
4. Protect the Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own confidential or
5. proprietary information of a similar nature, but with no less than reasonable care;
6. Immediately notify the other Party upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and to cooperate with the other Party in every reasonable way to
7. help regain possession of the Confidential Information and prevent its further unauthorized use.

Confidential Information does not include information that:

1. Is or becomes publicly known through no breach of this clause by the receiving Party;
2. Is received from a third party without breach of any obligation of confidentiality.
3. Is independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information.
4. Was known to the receiving Party prior to its disclosure by the disclosing Party without breach of any obligation of confidentiality.
5. This confidentiality obligation shall survive the termination or expiration of this Agreement for a period of five (5) years.

Compliance with Laws

Both the Seller and the Buyer shall comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption, including, but not limited to, the German Penal Code and Anti-Corruption Laws. Each Party shall not engage in any activity, practice, or conduct that would constitute an offence under these laws. Each Party shall comply with all applicable sanctions, export control laws, and regulations of Germany and the European Union in relation to the Equipment and its delivery. The Seller and the Buyer each agree to promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by them in connection with the performance of this Agreement. Furthermore, each Party agrees to maintain throughout the term of this Agreement, at its own expense, all necessary licenses, permissions, authorizations, consents, and permits needed to carry out their obligations under this Agreement. Failure by either Party to comply with this clause shall be deemed a material breach of this Agreement, entitling the other Party to terminate this Agreement immediately upon written notice to the non-compliant Party. In such event, the non-compliant Party shall be liable for any damages, losses, or expenses incurred by the other Party as a result of such breach.

 

Force Majeure

Neither Party shall be liable for any failure to perform its obligations under this Agreement if such failure is caused by the occurrence of any unforeseen event beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, industrial disputes, embargo, explosion, civil commotion, or any acts by government or public authority ("Force Majeure Event"). Upon the occurrence of a Force Majeure Event, the affected Party shall promptly notify the other Party in writing, detailing the nature of the event, its anticipated duration, and any actions being taken to mitigate its effects. The obligations of the affected Party under this Agreement shall be suspended for the duration of the Force Majeure Event. However, the affected Party shall use all reasonable endeavours to continue to fulfil its obligations as far as practicable. If the Force Majeure Event continues for a period exceeding thirty (30) days, either Party may terminate this Agreement upon written notice to the other Party, without liability.

 

Termination

This Agreement may be terminated by either Party under the following conditions:

1. By Mutual Agreement:The Parties may terminate this Agreement at any time by mutual written agreement.
2. By Notice for Breach:Either Party may terminate this Agreement upon providing thirty (60) days written notice to the other Party in the event of a breach of any material provision of this Agreement by the other Party, provided such breach remains uncured at the expiration of such notice period.
3. Insolvency:Either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party becomes insolvent, files for bankruptcy, or is otherwise unable to pay its debts as they become due.
4. Force Majeure:Either Party may terminate this Agreement if a Force Majeure Event continues for more than sixty (60) days, affecting the performance of the Agreement.

Upon termination of this Agreement, the Buyer shall pay the Seller for all Equipment delivered up to the date of termination that has not yet been paid for. All sections of this Agreement that by their nature should survive termination will remain in effect, including, but not limited to, Intellectual Property Rights, Confidential Information, and liability limitations.

Dispute Resolution

In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, including the breach, termination, enforcement, interpretation, or validity thereof ("Dispute"), the Parties shall first seek to resolve the Dispute amicably through good faith negotiations (friendly negotiations) within thirty (30) days from the date on which either Party notifies the other Party of the Dispute. If the Dispute cannot be resolved through negotiations, the Parties agree to submit the Dispute to Ordinary Courts of Frankfurt am Main, Germany. The lawsuit shall take place in Frankfurt am Main, Germany, and shall be conducted in German language. Each Party shall bear its own costs in connection with the prior friendly negotiations, and the Parties shall equally share the fees of  external mediators, if the case may be.

Governing Law

This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. The Parties irrevocably agree that the courts of Frankfurt am Main, Germany, shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). This revised clause aligns the governing law and jurisdiction with the German legal system, ensuring compatibility with German law.

 

Miscellaneous

Any notices required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service, or by commercial courier, to the other party at its address set forth in this Agreement or such other address as may be specified by the relevant party by notice in writing to the other party in accordance with this clause.

All notices given by post shall be deemed to have been received on the second business day after posting; notices sent by courier shall be deemed to have been received on the date of signature of the courier's delivery receipt.

Neither party shall be liable to the other for any failure to perform any obligation under this Agreement due to a Force Majeure Event. If such event continues for more than three months, either party may terminate this Agreement without liability to the other by giving 60 days' written notice.

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement.

Any provision of this Agreement that is held to be invalid, illegal, or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality, or unenforceability without rendering invalid or unenforceable the remaining provisions hereof; and any such invalidity, illegality, or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

Hotline Service

ATMOCE Deutschland GmbH offers a web-based hotline service ("Hotline Service") available at a specified URL in conjunction with certain Products. Buyer agrees to, and will ensure that its distributors and installers also, notify each end user of the Products purchased by Buyer from Seller ("End Users") that their use of the Hotline Service is subject to Seller's Terms of Service, which can be found at the specified URL ("Hotline TOS").

Buyer acknowledges that the Hotline Service is provided as an additional support service for the Products and does not replace or diminish any warranties or support obligations set forth in this Agreement. The Hotline Service is intended to assist End Users in resolving issues and answering questions related to the use and operation of the Products.

Use of the Hotline Service by End Users is voluntary and at their own risk. Seller makes no representations or warranties, express or  implied, regarding the Hotline Service, except as provided in the Hotline TOS. Buyer shall indemnify and hold Seller harmless from any claims arising out of or related to the use of the Hotline Service by End Users, except to the extent caused by Seller's negligence or wilful misconduct.