General Terms and Conditions
General Terms of Trade of ams AG,
Tobelbader Strasse 30, 8141 Unterpremstaetten, Austria (hereinafter referred to as "ams") and its affiliates
The terms contained herein apply to all deliveries made and services rendered by ams. Any changes in or amendments to these terms shall only become effective after having been officially agreed to in writing by ams. "Affiliate" shall mean a corporation, company or other entity, which directly or indirectly (i) is controlled by ams or (ii) controls ams. For this purpose “control” means that more than fifty percent (50%) of controlled shares of such corporation, company or other entity or ownership interest representing the right to make decisions for such corporation, company or other entity are owned or controlled, directly or indirectly, by the controlling corporation, company or other entity. Such corporation, company or other entity shall be deemed to be a Affiliate only so long as such ownership or control exists.
All quotations made by ams are binding within their binding period. All purchase orders placed with ams or any of its branch offices shall only become effective upon written acknowledgement by ams which results in a delivery contract to which the General Terms of Trade of ams shall apply. Such delivery contract explicitly precludes the application of any terms and conditions of purchase contained in purchase order forms or other correspondence of Buyer.
The prices quoted in the acknowledgement of purchase order are generally understood to be in EURO. In case of quotations and acknowledgements of purchase orders in foreign currency, the prices shall be bound to the respective foreign currency
only as long as the exchange rate of same in relation to the EURO has not changed by more than ±5 % between the date of acknowledgement of purchase order and the date of delivery. ams reserves the right, in case of variations by more than ±5 %, to fix a new price according to the change in the exchange rate for the deliveries outstanding at the moment of such change.
4. Conditions of Delivery
ams reserves the right to effect part shipments and to submit invoices for partial shipments. All prices are understood to be either FCA (Graz, Austria), FCA (Manila, Philippines) or FCA (place of delivery determined by supplier as appropriate) in accordance with Incoterms 2010, excluding customs duties and taxes, but including packing. For all products specially developed for Buyer ams reserves the right to ship a quantity which is within ±10 % of the total quantity ordered. Buyer will be charged for the actual quantity delivered.
5. Terms of Payment
Invoices have to be paid net within 30 days, as of date of invoice. The non-compliance with the terms of payment or any circumstances reducing Buyer's credit-worthiness which become known to ams only after entering into the contract may entail the immediate falling due of all payments outstanding and entitle ams, with a reasonable respite, to withdraw from the contract. Payments overdue shall be charged subsequently with past-due interest of 1.25 % per month, as of the first day of their falling overdue. ams reserves the right to change credit or payment terms at any time in case Buyer´s financial condition or Buyer´s payment record does not justify terms of payment specified herein.
6. Time of Delivery, Change of Purchase Order
The times of delivery indicated in the acknowledgement of purchase order are not binding. There shall be no unilateral right of rescission for an acknowledged purchase order by Buyer. Any claims for damages caused by delayed delivery, short delivery, or non-delivery are excluded. Unforeseeable events incurred through no fault of ams or extraordinary events at ams or its subcontractors or other impediments impossible for ams to foresee shall entitle ams to defer the date of delivery for a period equal to the time lost by reason of such event or impediment. In any case Buyer shall be obliged to purchase all products already finished or begun in consequence of the purchase order placed. Notwithstanding ams may enforce subsequent charges or claims for damages caused by reduced purchase quantity.
7. Reservation of Proprietary Rights
Until complete payment of all invoices the products shall remain the property of ams. Buyer does not acquire any proprietary rights by incorporating the products into other devices. Any processing of the products delivered by ams is done on behalf of ams. If Buyer incorporates the products into outside goods, ams shall become co-owner of the new goods created, and this according to the proportion of the values of its products to those of the outside products jointly used. Until revoked, Buyer shall be entitled to resell, under reservation of the proprietary rights, the goods delivered or products created by their processing within the frame- work of his regular business activity. Until complete payment of the purchase price Buyer shall cede all claims due to him as a result of such resale to ams, in the amount of the value of the products, delivered to ams. Until revoked, Buyer shall be entitled and obliged to collect the claims ceded. ams shall be entitled to secure the property under reservation if Buyer does not comply with his contractual obligations, in particular if he handles the property under reservation in an improper manner or comes in default with payment of purchase price. Execution of restitution and securing shall not be deemed a rescission of the contract and shall not revoke Buyer's obligations, in particular payment of purchase price.
8. Patent Rights and Copyrights
Buyer shall hold ams harmless against any expense or loss resulting from the infringement of patent rights or copyrights and arising from compliance with Buyer's designs, specifications, or instructions. By selling a product to Buyer, ams shall in no case convey any patent right to Buyer. ams agrees to hold Buyer harmless if any claims resulting from the infringement of a patent tight or copyright applicable in Austria are being asserted against Buyer and if Buyer has notified ams promptly in
writing of such assertion. ams reserves the right to choose appropriate means of defense, including settlements out of court. Should it not be possible for Buyer to use the products under reasonable circumstances, ams' liability shall be limited to either changing or replacing the product so that it constitutes no infringement of patent rights or, at its discretion, taking back products not yet incorporated and refunding the purchase price. ams shall not be liable for any claims founded on an infringement of patent rights arising from a use of the product contrary to the terms of the contract.
For software programs, pertaining documents, and all subsequent additions, Buyer shall have a nonexclusive and non-transferable right of use with the products for which such software programs have been delivered unless otherwise provided in a software license agreement between ams and Buyer. All other rights shall remain with ams or the program author respectively. Buyer has to guarantee that these programs, documents, and subsequent additions are not accessible to third parties or third countries without ams’ express consent. Buyer shall not, under any circumstances reverse engineer, reverse compile, decompile, decrypt or disassemble the software, in whole or in part, except to the extent expressly authorized by ams.
10. Trade Acceptance
The products delivered have to be taken over by Buyer, even if they have insignificant defects. The acceptance test shall be carried out by Buyer within 14 days, as of date of delivery. Should the take-over be delayed by reason of circumstances
outside ams' responsibility, the written communication of readiness for dispatch by ams to Buyer shall be considered the date of delivery. In default of any written communication of inability to take delivery by Buyer within the time for taking delivery, the products shall be deemed accepted. The criteria for acceptance or refusal shall be, in case of products specially developed for Buyer, the specifications or test conditions jointly agreed upon or, in case of standard products, the data sheets issued by ams effective at the moment of placing of purchase order.
ams warrants that the products will be free from defects in material and workmanship under normal use in conformity with the terms of the contract. ams' obligations under this warranty shall be discharged, at its option, by repairing, replacing, or giving credit for defective products. Buyer has to grant ams a reasonable period for removing the defects; if Buyer refuses to grant such period, ams shall be released from warranty.
The period of warranty is 24 months (except for software products), as of the acceptance of the products by Buyer (see clause 10). Buyer has to give ams notice of defects, in writing and stating sufficient reasons, immediately but within 30 days as of delivery of products at the latest. Any defects that could not be detected within that period in spite of careful examination must be communicated to ams, in writing and stating sufficient reasons, immediately after becoming known. In default of such immediate communication, any warranty shall be excluded. The warranty shall be ruled out if the products, after their acceptance, are handled in an improper manner, are defective due to misuse, neglect or accident or are handled not in conformity with the instructions recommended by ams. No warranty shall apply to any products which have been modified or altered by persons other than ams’ authorized personnel or have been received from any source other than ams or its authorized resellers.
Returns shall only be accepted after previous consent by ams and shall be accompanied by an ams` Return Material Authorization (RMA) number obtained from ams. For return shipment buyer shall use ams' original packing in order to avoid any
damage of the products. In case of warranty claim ams shall bear the transportation cost. A case of warranty shall not prolong the initial period of warranty of 24 months. In case of unjustified complaints Buyer shall reimburse ams for all expenses arising from such complaints. Any claims of Buyer beyond the obligations under this warranty are excluded.
If the products contain software, ams warrants that the software will not fail to meet its programming specification and workmanship at the time of delivery when properly installed and used on the hardware defined by ams. ams does not warrant that the software meets requirements specified by Buyer, is error-free or without interruption. No warranty applies for defects that appear due to e.g. incorrect storage of data medium, supplementary installation of other outside software, operating system modifications or hardware modifications or similar events. The warranty for software and for Updates/Upgrade of existing Software or parts of it is limited to a period of 3 months.
12. Force Majeure
ams shall not be liable for delays and damages caused by cancellation or postponement of the event due to force majeure. Force majeure conditions include all circumstances beyond ams’ control which ams could not have reasonably anticipated and whose consequences ams could not have reasonably avoided or overcome. Force majeure conditions include but are not restricted to: natural disaster, war, civil war, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, unforeseeable operating, traffic or shipment disturbances, unforeseeable lack of labor forces, energy, raw materials or auxiliary materials. Strikes, lockouts, boycotts and other labor disputes are considered force majeure even when ams itself is the target of or a participant of said actions. Force majeure conditions affecting a subcontractor hired by ams shall also be grounds for absolution of the ams’ liability. In the event
that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by ams to extend for a period of three (3) consecutive months), ams shall be entitled to cancel all or any part of the Agreement without any liability of ams towards Buyer.
13. Limitation of Liability
Apart from warranties expressly stated herein in no event ams and its affiliates shall be liable toward Buyer in contract or otherwise for loss or damage to property, loss of use, loss of anticipated revenues, interruption of operation, expenses
including costs of capital, claims of Buyer`s client, loss of profits or revenues or for other indirect, incidental or consequential loss or damage whatsoever. The maximum overall liability for ams shall in no event be more than one times the annual turnover between the parties for the product in question.
If ams incurs any liability towards any third party for any loss or damage howsoever arising in the connection with the performance of the Services or Products supplied, Buyer shall indemnify, defend and hold ams harmless to the extent that ams’ liability is limited as stated in these General Terms of Trade.
Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by ams and/or its Affiliates is the confidential information of ams and/or its Affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed between ams and Buyer.
16. Other Matters
Place of performance and place of jurisdiction for all claims under a deliver contract according to clause 2 shall be Graz, even if any deliveries have been effected by any branch office of ams. All delivery contracts shall exclusively be governed by the laws of Austria. Any disputes arising out of or in connection with this Agreement shall be settled in compliance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) Paris by one or three arbitrators appointed according to said rules. The arbitration proceedings shall be held in Vienna, Austria. The language of the Arbitration shall be either German or English pursuant to mutual agreement. Buyer can pass on his rights and obligations arising under such delivery contracts only upon ams' written consent.
The products delivered may be subject to the export control regulations of Austria, the European Union or any other state. Their re-export may require the approval by the competent authorities. Buyer shall be liable for the observance of the
export control regulations up to the end user, if applicable, and explicitly agrees to hold ams fully harmless.
Should any clauses of these General Terms of Trade be or become inoperative, the other clauses shall not be affected thereby.
ams AG, Unterpremstaetten,
Updated: August 2012