SA, 6854 Lugano-Stabio, Switzerland (APTM) as Seller issues quotations
that expire sixty (60) days after the date of the quotation or, if
earlier, at the end of the ordering period of any purchase agreement
against which the quotation is issued.
otherwise agreed in writing by APTM, all prices quoted are stated
in Swiss Francs, (i) are FOB Point of Shipment, (ii) do not include
any options, modifications or extras to comply with any governmental
regulation, request or order, and (iii) are exclusive of transportation
and insurance costs, and all taxes. Buyer agrees to pay or reimburse
APTM for all such taxes unless Buyer has provided APTM with an exemption
resale certificate in the appropriate form for the jurisdiction of
Buyer's place of business and any jurisdiction to which any equipment
purchased hereunder is to be directly shipped by APTM, or such sale
is otherwise exempt from such taxes.
AND SECURITY TERMS
otherwise agreed in writing by APTM, Buyer shall make the payment
in full to APTM of the purchase price for any equipment purchased
hereunder as follows: forty (40%) of the purchase price at the time
of order, fifty (50%) before shipment and ten (10%) net within thirty
(30) days from the date of shipment. Interest on late payments will
be assessed at the rate of one and one-half percent (1-1/2%) per month,
or the maximum amount permitted by law, whichever is less, and Buyer
agrees to pay or reimburse APTM for all costs or collection, including
reasonable attorneys' fees.
may from time to time demand different terms of payment whenever it
reasonably appears to APTM that Buyer's financial condition requires
such change, and may demand assurance of Buyer's ability to pay whenever
it reasonably appears to APTM that such ability is in doubt. APTM
may suspend production, shipment and/or delivery until such arrangements
hereby grants APTM a Purchase money security interest in all equipment
purchased hereunder, and in any proceeds thereof, for the amount of
the purchase price. Buyer, in accepting any equipment hereunder, agrees
that the security interest of APTM attaches to the equipment. Upon
request by APTM, Buyer shall sign any document required to perfect
or continue such security interest. Payment in full of the purchase
price for any equipment purchased hereunder shall release the security
interest with respect to that equipment.
RISK OF LOSS AND TITLE
shall be F.O.B. Point of Shipment. APTM shall ship in accordance with
Buyer's shipping instructions. In the absence of specific instructions
or if Buyer's instructions are deemed unsuitable, APTM reserves the
right to ship by the most appropriate method and such method shall
be deemed to be in accordance with Buyer's instructions. APTM shall
use reasonable efforts to meet any delivery date(s) quoted or acknowledged.
However, APTM will not be liable for its failure to meet such date(s).
risk of loss or damage to any equipment purchased hereunder shall
pass from APTM to Buyer upon delivery to the carrier, regardless of
which party selected the carrier. Buyer assumes the responsibility
for filing claims for loss or damage against the carriers and other
agents involved. Title to purchased equipment passes from APTM to
Buyer upon payment in full of the purchase price thereof, and Buyer
agrees to maintain adequate insurance to protect APTM's interests.
Terms and Conditions of Sale take precedence over Buyer's additional
or different terms and conditions, to which notice of objection is
hereby given by APTM. Acceptance by Buyer is limited to these Terms
and Conditions of Sale. Neither APTM's commencement of performance
nor delivery shall be deemed or construed as acceptance of Buyer's
additional or different terms and conditions.
purchase of any equipment hereunder represents acceptance of these
Terms and Conditions of Sale, which constitute the entire agreement
between the parties and supersede all prior proposals, communications,
representations and agreements, whether verbal or written, with respect
to the subject matter hereof. These Terms and Conditions of Sale may
not be amended or modified, nor may any right hereunder be waived,
unless in writing and signed by the party against which the same is
sought to be enforced. Any purchase order or acknowledgement of Buyer
shall be considered solely for the convenience of Buyer and shall
not amend or modify these Terms and Conditions of Sale, regardless
of whether APTM may have signed or accepted the same.
reserves the right to make changes in materials and design which,
in the judgement of APTM, are necessary or advisable in connection
with the operation or improvement of any equipment. No change, alteration,
modification or addition proposed or required by Buyer shall be considered
accepted by or binding upon APTM unless approved in writing by a duly
authorized representative of APTM at its corporate headquarters. In
the event Buyer requests a change in the design or specifications
of any equipment purchased hereunder after engineering work has been
performed or APTM has ordered materials or commenced production, Buyer
agrees to pay or reimburse APTM from all costs and expenses caused
by such change in design or specifications.
shipment of any order is delayed at the request of Buyer beyond the
date of completion thereof by APTM, such order shall be subject to
invoicing, payment and storage charges from the date of completion.
order for equipment hereunder, may not be cancelled by Buyer during
the last sixty (60) days before the scheduled date of shipment. unless
otherwise agreed in writing by APTM. If Buyer cancels any such order
less than sixty (60) days from the scheduled date of shipment, Buyer
shall pay APTM for all work performed through the date APTM receives
Buyer's notice of cancellation (including all costs and expenses incurred
by APTM through such date, plus a reasonable profit), provided that
such cancellation charge shall not be less than twenty percent (20%)
of the total purchase price of the equipment.
ON LIABILITY AND INDEMNIFICATION
liability hereunder for any cause whatsoever, and regardless of the
form of action (whether in contract, in tort, including negligence,
or otherwise), will be limited to general money damages (and no other
relief) in an amount not to exceed the purchase price paid by the
Buyer for any equipment to which such liability relates. In no event
will APTM be liable for any loss of profits, any claim or demand against
Buyer by any other party, or special, incidental, consequential or
indirect damages of any kind whatsoever, even if APTM has been advised
of the possibility of such damages.
shall not be liable for failure or delay in performing any of its
obligations hereunder if such failure or delay is occasioned by compliance
with governmental regulation, request or order, or by circumstances
beyond its reasonable control, including, but limited to, Act of God,
Acts of Buyer, fire, flood, accident, labour strikes, work stoppage
or slowdown (whether or not such labour event is within the reasonable
control of APTM), delay in transportation, default of supplies or
inability to obtain raw materials, supplies, power or equipment necessary
to enable APTM to perform its obligations hereunder.
agrees, with respect to any equipment purchased hereunder, to assume
responsibility for (i) its selection to achieve Buyer's intended results,
(ii) its installation and use, and (iii) the results obtained therefrom.
Buyer further agrees that, in purchasing any equipment hereunder,
it shall inspect such equipment on a continuing basis, provide proper
safety devices, instructions and other means necessary to protect
the operator(s) from any harm due to the installation, operation and
use of any such equipment, and comply with all governmental regulations,
requests and orders with respect to occupational safety in effect
from time to time.
agrees to indemnify, defend and hold harmless APTM and its affiliates,
and their respective officers, directors, employees, shareholders,
agents and authorized contractors, from and against any and all claims,
demands, damages, liabilities, costs and expenses (including, without
limitation, reasonable attorney's fees) arising out of or in connection
with (i) the negligent use or misuse of any equipment purchased hereunder
by Buyer, its employees or others, and (ii) the breach by Buyer of
any of its obligations hereunder.
orders are subject to acceptance by APTM, equipment availability and
satisfaction by Buyer of APTM's credit requirements.
typographical and clerical errors are subject to correction.
Buyer or APTM may cancel an order or any other unfulfilled obligations
hereunder without liability if (i) the other party becomes insolvent
or suspends any of its operations, (ii) any petition or order for
relief is filed or proceeding commenced by or against the other party
under any governmental law relating to bankruptcy, reorganization,
receivership or insolvency, or (iii) the other party makes an assign
for the benefit of creditors or has a receiver, trustee or similar
official appointed for all or a substantial part of its assets or
may not assign or transfer any of its rights, duties or obligations
hereunder without the prior written consent of APTM, and any purported
attempt to do so shall be void and without effect.
Terms and Conditions of Sale shall be governed by and construed in
accordance with the laws of Switzerland, and each party hereby submits
itself for the sole purpose and disputes or controversies arising
hereunder to the jurisdiction of the court of Lugano, Tessin Canton,