General Terms
Purchase Terms
1 Scope of application
1.1 Orders placed by Photonics Systems GmbH, Pionierstraße 6, 82152 Krailling (hereinafter referred to as "Purchaser") shall be governed exclusively by these General Terms and Conditions of Purchase (hereinafter referred to as "GTCP"). Confirmation or execution of the order by the supplier (hereinafter "Supplier") shall be deemed as acceptance of the GTCP. Subject to the Supplier's written consent, the Purchaser shall not recognize any deviating, conflicting or supplementary terms and conditions of the Supplier, even if the Purchaser does not expressly object to them.
1.2 These GTCP apply exclusively to entrepreneurs within the meaning of Section 14 (1) of the German Civil Code (BGB) as well as public corporations and special funds under public law. Individually negotiated agreements (e.g. framework agreements or quality agreements) and individual details in the Purchaser's purchase orders shall take precedence over these GTCP.
1.3 In addition, the INCOTERMS® 2020 shall apply insofar as they do not contradict the GTCP or other agreements made between the Purchaser and the Supplier.
1.4 These GTCP shall also apply to future transactions with the Supplier of expiring business relationships, even if they are not separately agreed again.
1.5 References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCP.
2 Order and order confirmation
2.1 Orders placed by the Purchaser are only valid if they are made in writing. Orders placed orally require written confirmation by the Purchaser (text form is sufficient), unless the Purchaser accepts orally ordered deliveries without reservation. Subsidiary agreements must be set out in writing. Insofar as the Purchaser's orders do not expressly contain a binding period, the Purchaser shall be bound by them for one week after the date of the offer. Decisive for the timely acceptance is the receipt of the declaration of acceptance by the Purchaser. A delayed acceptance by the Supplier shall be deemed and considered a new offer and requires acceptance by the Purchaser.
2.2 Orders placed by the Purchaser must be confirmed by the Supplier in writing within 3 (three) working days, stating the reference number.
2.3 The Purchaser reserves the right of ownership or copyright to the orders, commissions and drawings, illustrations, calculations, descriptions and other documents provided to the Supplier by the Purchaser. The Supplier may neither make them accessible to third parties nor use or reproduce them itself or through third parties without our express consent. He must return these documents in full to the Purchaser at the latter's request if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of an agreement. In this case, any copies made by the Supplier shall be destroyed; the only exceptions to this are storage within the scope of statutory retention obligations and the storage of data for backup purposes within the scope of normal data backup.
3 Scope and content of the obligation to perform
3.1 The scope of the Supplier's obligation to perform shall be determined by the specifications and service descriptions provided upon conclusion of the agreement or, in the absence thereof, by the information in the Supplier's offers and brochures.
3.2 All deliveries must comply with the latest DIN and/or VDE standards as well as other industry or EU standards and regulations, unless expressly agreed otherwise in writing.
3.3 The Purchaser shall only accept the quantities or numbers of items ordered. Over- or under-deliveries are only permitted after prior agreement with the Purchaser. If partial quantities have been agreed, the Supplier shall be obliged to inform the Purchaser of the remaining quantity for each partial delivery.
3.4 The Supplier shall not be entitled to make partial deliveries without the prior written consent of the Purchaser.
3.5 The Supplier shall pack, label and dispatch the goods in accordance with the relevant regulations of the countries of origin, transit and destination and shall observe the applicable regulations "Delivery of goods for external Suppliers" of the Purchaser.
4 Delivery dates and contractual penalties
4.1 Dates and delivery deadlines are binding.
4.2 The Purchaser is entitled to change the time and place of delivery as well as the type of packaging at any time by written notification with a notice period of at least 7 (seven) calendar days before the agreed delivery date. The same shall apply to changes to product specifications insofar as these can be implemented within the framework of the Supplier's normal production process without significant additional expense, whereby in these cases the notification period in accordance with the preceding sentence shall be at least 14 (fourteen) calendar days. The Purchaser shall reimburse the Supplier for any proven and reasonable additional costs incurred as a result of the change. If such changes result in delays in delivery which cannot be avoided in the Supplier's normal production and business operations with reasonable efforts, the originally agreed delivery date shall be postponed accordingly. The Supplier shall notify the Purchaser in writing of the additional costs or delays in delivery to be expected by him on the basis of a careful assessment in good time before the delivery date, but at least within 3 (three) working days of receipt of the Purchaser's notification in accordance with clause 4.2 sentence.
4.3 In the event that it becomes apparent that the Supplier will not be able to meet delivery dates fully or partially, the Supplier must inform the Purchaser of this in writing without undue delay, stating the reason und the expected duration of the respective delay. In the event of a culpable breach of this obligation, the Supplier shall be liable for the resulting damage.
4.4 If the Supplier does not provide its service, does not provide it within the agreed delivery time or is in default, the rights of the Supplier – in particular withdrawal or compensation – shall be determined in accordance with the applicable statutory provisions. The following provisions shall however remain unaffected.
4.5 In the event of delays in delivery, the Purchaser shall in any case be entitled, after prior written warning to the Supplier, to demand a contractual penalty amounting to 0.5% of the respective order value for each commenced week of delay in delivery, up to a maximum of 5% of the respective net order value. The Purchaser reserves the right to prove that greater damage has been incurred. The Supplier reserves the right to prove that no damage at all or only insignificantly less damage has been incurred. The contractual penalty shall be set off against the damage caused by delay to be compensated by the Supplier.
4.6 The Purchaser may demand an agreed contractual penalty up to the final payment, even if he has accepted the delivery or service without prior special reservation.
4.7 If delivery "free works" (DDP in accordance with INCOTERMS® 2020) has not been agreed and the Purchaser has agreed to take over the transportation of the goods, the Supplier shall make the goods available in good time, taking into account the time to be agreed with the carrier for loading and dispatch. In other cases, the Supplier shall be liable in accordance with this clause 4 for delays in delivery caused by the freight forwarder.
5 Shipping instructions and shipping notifications
5.1 The shipping documents must bear the reference number prescribed by the Purchaser. The dispatch note shall be sent digitally to the address the Purchaser specified immediately after dispatch. The dispatch note must contain the exact description, quantity, weight (gross and net), type and packaging of the goods and the item.
5.2 If the requested or necessary shipping documents for a delivery are not delivered on time for reasons for which the Supplier is responsible, or if essential and necessary information is missing from the shipping documents, the goods shall be stored at the Supplier's expense and risk until the shipping documents or the completed shipping documents arrive.
6 Transfer of risk / Prices
6.1 In the absence of an express written agreement to the contrary, the delivery clause CPT carriage paid to the named place of destination in accordance with INCOTERMS® 2020 shall apply. The prices quoted by the Supplier and the agreed prices shall also apply CPT including all ancillary costs such as customs duties.
6.2 The risk of accidental loss or accidental deterioration shall be borne by the Supplier until the transfer of risk (delivery or acceptance, if such is provided for or agreed by law). This shall also apply if the delivery is already at the agreed place of delivery.
7 Receipt and inspection of the goods
7.1 The statutory provisions shall apply in the event of default of acceptance. However, the Supplier must also expressly offer its performance if a specific calendar time has been agreed for an action or cooperation of the Purchaser (e.g. the ordering of material by the Purchaser).
7.2 In the event the Purchaser is in default of acceptance, the Supplier may demand compensation for its additional expenses in accordance with the applicable statutory provisions. If the respective agreement relates to a non-fungible item to be manufactured by the Supplier (individual production), the Supplier shall only be entitled to further rights if the Purchaser undertakes to cooperate and if the Purchaser is responsible for the failure to cooperate as agreed.
7.3 Cases of force majeure and other unforeseeable events for which the Purchaser is not responsible, such as strikes, lockouts and natural disasters, shall entitle the Purchaser to postpone acceptance accordingly.
7.4 In the event of excess deliveries that exceed the customary amount, the Purchaser reserves the right to return the excess goods at the Supplier's expense.
7.5 Acceptance of the goods shall be subject to inspection, in particular for freedom from defects and completeness.
7.6 Any inspection obligations of the Purchaser shall be limited to the immediate inspection of the delivery to determine whether it corresponds to the ordered quantity and the ordered type as well as to externally recognizable transport damage and externally recognizable defects. Insofar as the Purchaser is obliged to give notice of defects without delay, this shall in any case be deemed timely if externally recognizable defects are notified within 10 (ten) working days of the transfer of risk or receipt (depending on which occurs later) and hidden defects within 10 (ten) working days of discovery. If a longer period is required for the inspection of the delivery, the longer period shall apply. In this respect, the Supplier waives the objection of delayed notification of defects.
7.7 In the case of a consignment consisting of a large number of goods, the Purchaser shall only inspect 3% of the delivered goods for defects. If the goods become unsaleable as a result of the inspection, a random sample of 0.5% of the delivered items is sufficient. If individual samples of a consignment of goods are defective, the Purchaser may, at its own discretion, demand that the defective items be separated out by the Supplier or assert claims for defects in respect of the entire consignment of goods. If, as a result of defects in the goods, it becomes necessary to inspect the goods beyond the usual scope of the incoming goods inspection, the Supplier shall bear the costs of this inspection.
7.8 If claims are asserted against the Purchaser by third parties due to defects in the goods purchased from the Supplier, the Supplier shall be entitled to recourse against the Purchaser; the preceding clauses shall apply accordingly.
7.9 Acceptance or approval of samples or specimens submitted shall not constitute a waiver of warranty claims by the Purchaser.
8 Payment and invoices
8.1 The price stated in the order is binding.
8.2 Unless otherwise agreed in writing, the price includes delivery and transportation to the shipping address stated in the agreement, including packaging.
8.3 Unless otherwise agreed, payment shall be made at the Purchaser's discretion within 60 (sixty) days, calculated from receipt of invoice and complete performance. The occurrence of a delay in payment by the Purchaser at an earlier point in time is excluded. In the event of a time limit that can be determined, the Purchaser shall only be in default following a prior reminder from the Supplier.
8.4 In the event of non-contractual, in particular defective delivery, the Purchaser shall be entitled to withhold payment until proper fulfillment without loss of rebates, discounts or similar payment benefits.
8.5 All payments are subject to invoice verification in the event of subsequent objections.
8.6 The Supplier's invoices must be provided with the Purchaser's order data and submitted digitally to the address indicated by the Purchaser. A copy of the delivery bill must be enclosed.
8.7 The date of receipt of the invoice shall be the date of receipt at the invoice address specially marked in the order letter. Payment periods shall commence upon receipt of the invoice by the Purchaser, but under no circumstances before the agreed delivery date.
8.8 If the Supplier's invoices do not identify the Purchaser's ordering department or the order number provided to the Purchaser, the Purchaser shall not be in default until forty days after the due date and receipt of the consideration.
8.9 Any down payments and interim payments shall not constitute recognition of conformity with the agreement or fulfillment of the service by the Supplier.
9 Warranty
9.1 The Supplier undertakes to comply with the recognized rules of technology and in particular the regulations, standards and guidelines issued by the legislator, the supervisory authorities, the employers' liability insurance associations and the VDE with regard to execution, accident prevention and environmental protection in Germany or, if another country of destination has been specified to the Supplier, in the country of destination. This also applies to export regulations. The standards and guidelines specified by the Purchaser shall apply in the latest version at the time of delivery.
9.2 The Purchaser shall be entitled to the statutory warranty rights (claims for defects) in full. In particular, the Purchaser objects to any restrictions of the statutory warranty rights, including the resulting claims for damages. In particular and in addition to the claims for defects, the Purchaser is entitled to the legally stipulated claims for expenses and recourse within a supply chain, e.g. supplier recourse in accordance with Sections 478, 445a, 445b or 445c, 327 (5) and 327u BGB without restriction.
9.3 Unless otherwise agreed, the limitation period for claims for defects shall be 36 (thirty-six) months after delivery or, if such a period is prescribed by law or expressly agreed, after acceptance. In the case of longer statutory periods, these shall apply. Clause 9.5 of these GTCP shall apply to the limitation period for claims for defects due to defects of title.
9.4 Notwithstanding the Purchaser's statutory rights, the following shall apply: If the Supplier fails to fulfill its obligation to provide subsequent performance – at the Purchaser's discretion by remedying the defect (rectification) or by delivering a defect-free item (replacement) – within a reasonable period stipulated by the Purchaser, the Purchaser may remedy the defect itself in order to prevent imminent disproportionate damage and demand reimbursement of the necessary expenses or a corresponding advance payment from the Supplier. In the event subsequent performance has failed or is unreasonable for the Purchaser, no deadline needs to be set. The Purchaser shall inform the Seller of such circumstances immediately after becoming aware of them.
9.5 The Purchaser's claims for defects due to defects of title shall become statute-barred 2 (two) years after knowledge or ought to have been known, but no later than 5 (five) years after the transfer of risk.
9.6 The Supplier shall indemnify the Purchaser against all claims asserted by third parties against the Purchaser due to defects or faults in the goods.
9.7 The limitation period for warranty claims shall be suspended upon receipt of the Purchaser's written notification of defects by the Supplier until the Supplier rejects the claims or declares the defect to be remedied or otherwise refuses to continue negotiations on the claims. In the event of replacement delivery and rectification of defects, the warranty period for replaced and repaired parts shall commence anew, unless the Purchaser had to assume from the Supplier's conduct that the Supplier did not consider itself obliged to take the measure, but only carried out the replacement delivery or rectification of defects as a gesture of goodwill or for similar reasons.
10 Liability for damages / product liability
10.1 The Purchaser shall be entitled to the statutory claims for damages in full.
10.2 The Supplier shall indemnify the Purchaser against claims for damages asserted against the Purchaser due to defects in a product delivered by the Supplier upon first request, insofar as the defect is caused within the Supplier's sphere of control and organization and the Supplier itself is liable in relation to third parties.
10.3 The Supplier shall also reimburse the Purchaser for all reasonable expenses pursuant to Sections 683, 670 and Sections 830, 840, 426 BGB incurred by the Purchaser due to an error caused by the Supplier arising from or in connection with a recall or information campaign carried out by the Purchaser (e.g. warnings in the media), unless the Purchaser had to assume at the time of the campaign under the circumstances known to it that such a campaign was not necessary. The Purchaser shall inform the Supplier of the scope and content of the measures to be carried out - as far as possible and reasonable - and give the Supplier the opportunity to comment. Other statutory claims of the Purchaser shall remain unaffected.
10.4 The Supplier undertakes to maintain product liability insurance with a minimum cover of EUR 2,500,000.00 per liability case and to maintain the insurance cover even after complete fulfillment of the mutual contractual obligations for a period of ten years after the processed delivery items have been placed on the market by the Purchaser. At the Purchaser's request, the Supplier shall be obliged to provide evidence of the conclusion of a corresponding insurance policy and the payment of the corresponding premiums. If the Supplier is liable to the Purchaser in the internal relationship due to a product defect, the Supplier shall be obliged to assign its insurance claims to the Purchaser upon first request in the amount of the damage incurred by the Purchaser. Insofar as an assignment is not permitted under the insurance agreement, the Supplier hereby irrevocably instructs the insurance company to make any payments only to the Purchaser. Payments to the Purchaser from these assigned insurance claims shall be offset against the Purchaser's claims against the Supplier.
10.5 Unless otherwise agreed, the Supplier shall be obliged to label its delivery items in such a way that they are permanently recognizable as its products.
11 Industrial property rights
The Supplier shall be liable for ensuring that the delivery item or the service is free of third-party rights in Germany or, if the Supplier is aware of another country of destination at the time of conclusion of the agreement, in the country of destination. In the event of an infringement of third-party industrial property rights for which the Supplier is responsible, the Supplier shall be obliged to compensate the Purchaser for all damages incurred by the Purchaser as a result. However, this does not apply if the Supplier proves that it is neither responsible for the infringement of the property right nor should have been aware of it at the time of delivery if it had exercised due commercial care. If the Supplier is unable to eliminate the industrial property rights of third parties within a reasonable period of time, the Purchaser shall also be entitled to obtain, at the Supplier's expense and for a customary and reasonable fee, authorization from the holder of such industrial property rights, in particular for the delivery, commissioning, use, further sale of the delivery goods or the service to the extent required for the purpose of the agreement.
12 Secrecy, drawings
12.1 The Supplier is obliged to treat the Purchaser's order and all related commercial and technical details as strictly confidential. Information provided by the Purchaser, drawings etc. prepared by the Purchaser or the Supplier on the basis of such information may only be used or exploited elsewhere with the written consent of the Purchaser. Unless otherwise agreed, the obligations under this clause 12.1 shall apply in perpetuity.
12.2 The Supplier shall obligate subcontractors accordingly in accordance with clause 12.1 of these GTCP.
12.3 Acceptance or approval of drawings, plans and samples submitted by the Supplier shall not affect the Supplier's sole responsibility for the correctness of the performance. Specific confidentiality agreements and statutory provisions on the protection of trade secrets, in particular in accordance with the German Trade Secrets Protection Act (Gesetz zum Schutz von Geschäftsgeheimnissen), remain unaffected.
13 Assignment, prohibition of set-off, retention of title
13.1 Rights arising from this order may only be assigned to third parties with mutual consent. The Purchaser's consent shall be deemed to have been given if the Supplier has granted its Supplier an extended reservation of title in the ordinary course of business.
13.2 Tools, devices and models which we make available to the Supplier or which are manufactured for contractual purposes and charged to the Purchaser separately by the Supplier shall remain our property or shall become our property. They must be marked by the Supplier as our property, stored carefully, protected against damage of any kind and used only for the purposes of the agreement. The costs of their maintenance and repair shall be borne equally by the contracting parties, unless otherwise agreed. However, if these costs are attributable to defects in such items manufactured by the Supplier or to improper use by the Supplier, its employees or other vicarious agents, they shall be borne solely by the Supplier. The Supplier shall notify the Purchaser immediately of any damage to these items that is not merely insignificant. Upon request, he shall be obliged to return the items to the Purchaser in proper condition if they are no longer required by him to fulfill the agreements concluded with the Purchaser.
13.3 Set-offs and offsetting against the Purchaser are only permitted if the Supplier's claims are undisputed or have been legally established. The same applies to rights of retention and rights to refuse performance.
13.4 Retention of title by the Supplier shall only apply insofar as it relates to our payment obligation for the respective products to which the Supplier retains title. In particular, extended or prolonged reservations of title are not permitted.
14 Vicarious agents
The Supplier shall be responsible for the deliveries and services of its suppliers in the same way as for its own deliveries and services; the Supplier's suppliers shall therefore be deemed to be its vicarious agents.
15 Place of performance, law and jurisdiction
15.1 The place of performance for deliveries and services is the place of destination, for payment the registered office of the Purchaser.
15.2 German law shall apply to all claims arising from and in connection with this GTCS, but excluding the UN Convention on Contracts for the International Sale of Goods.
15.3 If the Supplier is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be Munich. However, the Purchaser may also sue the Supplier at its registered office.
15.4 Should individual provisions of these GTCS or the respective agreement be or become invalid, this shall not affect the validity of the remaining contractual provisions.
(Status: August 05, 2024)
Sales Terms
1 Scope of application
1.1 These General Terms and Conditions of Sale (hereinafter "GTCS") apply to all business relationships between Photonics Systems GmbH, Pionierstraße 6, 82152 Krailling (hereinafter "Seller") and its customers (hereinafter "Buyer"). The GTCS shall only apply if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch "BGB"), a legal entity under public law or a special fund under public law.
1.2 The GTCS apply in particular to agreements for the sale and/or delivery of movable goods ("Goods"), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (Sections 433, 650 BGB).
1.3 Unless otherwise agreed, the GTCS in the version valid at the time of the Buyer's order or in any case in the version last communicated to the Buyer in text form shall also apply as a framework agreement for similar future agreements, without the Seller having to refer to them again in each individual case.
1.4 These GTCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the agreement if and insofar as the Seller has expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the Buyer refers to its own General Terms and Conditions in the respective order and the Seller does not expressly object to them.
1.5 Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in the Seller's order confirmation shall always take precedence over these GTCS. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the agreement.
1.6 Legally relevant declarations and notifications by the Buyer in relation to the agreement must be made in writing. Written form within the meaning of these GTCS includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected.
1.7 References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCS.
2 Order and order confirmation, conclusion of the agreement
2.1 The Seller's offers are subject to change and non-binding. This shall also apply if the Seller has provided the Buyer with catalogs, technical documentation (e.g. drawings, calculations, plans or references to applicable DIN standards), other product descriptions or documents - also in electronic form - to which the Seller reserves ownership rights and copyrights.
2.2 The Buyer's order shall be deemed a binding offer. Unless otherwise stated in the Buyer's order, the Seller is entitled to accept this contractual offer within 21 (twenty-one) calendar days of receipt of the respective offer.
2.3 Acceptance can be declared either in writing (e.g. by sending an order confirmation) or by delivery of the Goods to the Buyer.
2.4 Drawings, illustrations, dimensions, weights or other performance data are only binding if this has been expressly agreed in writing.
3 Delivery period and delay in delivery
3.1 The delivery period shall be agreed individually between the contracting parties or specified by the Seller upon acceptance of the order.
3.2 If the Seller is unable to meet binding delivery deadlines for reasons for which it is not responsible (e.g. in the event of non-availability of the service), the Seller shall inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, the Seller shall be entitled to withdraw from the agreement as a whole or partially; in this case, the Seller shall immediately reimburse any consideration already paid by the Buyer. Non-availability of the service shall be deemed to exist, for example, in the event of late delivery by the Seller's supplier, if the Seller has concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if the Seller is not obliged to procure the Goods in individual cases.
3.3 The occurrence of a delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the Buyer is required.
3.4 If the Seller is in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the Goods delivered late. The Seller reserves the right to prove that the Buyer has suffered no loss at all or only a significantly lower loss than the above lump sum.
3.5 The rights of the Buyer pursuant to clause 8 of these GTCS as well as the statutory rights of the Seller, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
4 Delivery, transfer of risk, acceptance and default of acceptance
4.1 At the request and expense of the Buyer, the Goods shall be shipped to another destination (sale to destination). In this event and unless otherwise agreed, the Seller shall be entitled to determine the type of shipment, in particular the transport company, shipping route and packaging.
4.2 The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest upon handover. In the event of a sale involving the carriage of Goods, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall pass to the Buyer upon delivery of the Goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment or transport.
4.3 If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the German law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
4.4 The Buyer may request a postponement of the originally agreed delivery date in writing by and provided that he notifies the Seller in writing at least 30 (thirty) calendar days prior to the delivery date specified in the Seller's original confirmation order or the latest estimated delivery date confirmed by the Seller (hereinafter jointly referred to as "Estimated Delivery Date"). The Seller may accept or reject any such request for postponement of the Estimated Delivery Date in its sole discretion. For accepted postponements of the Estimated Delivery Date, the Buyer agrees to pay the Seller a fee amounting to 0.1% of the purchase price per day after the Estimated Delivery Date, up to a maximum of 5% of the purchase price. In this event, the Buyer also undertakes to reimburse the Seller for all costs incurred by the Seller in connection with the rescheduling of the delivery. If a postponement of the delivery date or delay for which the Buyer is responsible lasts longer than 120 calendar days, the withheld delivery shall be deemed to have been canceled. Clause 4.5 of these GTCS shall remain unaffected in this case.
4.5 In the event the Buyer is in default of acceptance, fails to cooperate or if the Seller's delivery is delayed for other reasons for which the Buyer is responsible, the Seller shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, the Seller shall charge a lump-sum compensation amounting to 0.1% of the purchase price per calendar day, beginning with the delivery period or - in the absence of an agreed delivery period - with the notification that the Goods are ready for dispatch.
Proof of higher damages and the Seller's statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected by this; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that the Seller has suffered no loss at all or only a significantly lower loss than the above lump sum.
5 Prices and terms of payment
5.1 Unless otherwise agreed in individual cases, the Seller's current prices at the time of conclusion of the agreement shall apply, ex warehouse, plus statutory VAT.
5.2 In the case of sale by delivery to a place other than the place of performance (see clause 4.2 of these GTCS), the Buyer shall bear the transportation costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
5.3 The purchase price is due and payable within 14 (fourteen) days of invoicing and delivery or acceptance of the Goods. However, the Seller is entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. The Seller shall declare a corresponding reservation at the latest with the order confirmation.
5.4 The Buyer shall be in default upon expiry of the above payment deadline. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. The Seller reserves the right to claim further damages for default. The Seller's claim against merchants for commercial maturity interest (Section 353 German Commercial Code (Handelsgesetzbuch "HGB")) shall remain unaffected.
5.5 The purchaser shall only be entitled to set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defective Goods, the Buyer's counter-rights shall remain unaffected.
5.6 If it only becomes apparent after conclusion of the agreement (e.g. by filing for insolvency proceedings) that the Seller's claim to the purchase price is jeopardized by the Buyer's inability to pay, the Seller shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the agreement in accordance with Section 321 BGB. In the case of agreements for the manufacture of non-fungible Goods (custom-made products), the Seller may declare its withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
6 Retention of title
6.1 Until full payment of all current and future claims of the Seller arising from the purchase agreement and an ongoing business relationship (secured claims), the Seller retains the title to the Goods sold.
6.2 The Goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer shall notify the Seller immediately in writing if an application for the opening of insolvency proceedings is filed or if the Goods belonging to the Seller are seized by third parties (e.g. attachments).
6.3 If the Buyer acts in breach of agreement, in particular in the event of non-payment of the purchase price due, the Seller shall be entitled to withdraw from the agreement in accordance with the statutory provisions and to demand the return of the Goods on the basis of the retention of title. If the Seller takes back the Goods, this shall constitute a withdrawal from the agreement. If the Buyer does not pay the purchase price due, the Seller may only assert these rights if it has previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
6.4 If the Buyer is not in default, he is entitled to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
6.4.1 The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of the Seller's Goods, whereby the Seller shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with Goods of third parties, their right of ownership remains, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined Goods. In all other respects, the same shall apply to the resulting product as to the Goods delivered under retention of title.
6.4.2 The Buyer hereby assigns to the Seller by way of security any claims against third parties arising from the resale of the Goods or the product in total or in the amount of any co-ownership share of the Seller in accordance with the above clause. The Seller accepts the assignment. The obligations of the Buyer stated in clause 6.2 of these GTCS shall also apply with regard to the assigned claims.
6.4.3 The Buyer shall remain authorized to collect the claim in addition to the Seller. The Seller undertakes not to collect the claim as long as the Buyer meets its payment obligations to the Seller, there is no deficiency in its ability to pay and the Seller does not assert the retention of title by exercising a right in accordance with clause 6.3 of these GTCS. If this is the case, however, the Seller may demand that the Buyer informs it of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, the Seller shall also be entitled to revoke the Buyer's authorization to resell and process the Goods subject to retention of title.
6.4.4 If the realizable value of the securities exceeds the Seller's claims by more than 10%, the Seller shall release securities of its choice at the Buyer's request.
7 Warranty claims for defects
7.1 Unless otherwise stipulated below, the Buyer's rights in the event of material defects and defects of title shall be governed by the statutory provisions.
7.2 In all cases, the statutory provisions on the sale of consumer Goods (Sections 474 et seqq. BGB) and the rights of the Buyer arising from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.
7.3 The basis of the Seller's liability for defects is above all the agreement reached on the quality and the intended use of the Goods (including accessories and instructions). All product descriptions and manufacturer's specifications which are the subject of the individual agreement or which were made public by the Seller (in particular in catalogs or on our Internet homepage) at the time of conclusion of the agreement shall be deemed to be an agreement on quality in this sense. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (3) BGB). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the label of the Goods, shall take precedence over statements made by other third parties.
7.4 In the event software is part of the delivered Goods, it is always inherent to the service and its use for other services or systems is prohibited. In case of Goods with digital elements or other digital content according to the BGB, the Seller shall only be obliged to provide and, if necessary, update the digital content if this is expressly stated in a quality agreement between the parties.
7.5 The Seller assumes no liability in this respect for public statements made by the manufacturer and other third parties.
7.6 The Seller shall not be liable for defects which the Buyer is aware of or is grossly negligent in not being aware of when the agreement is concluded (Section 442 BGB). Furthermore, the Buyer's claims for defects presuppose that he has complied with his statutory inspection and notification obligations (Sections 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later point in time, the Seller must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 5 (five) working days from delivery and defects not recognizable during the inspection must be reported in writing within the same period from discovery.
7.7 If the Buyer fails to properly inspect the Goods and/or report defects, the Seller's liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions. In the event of Goods intended for assembly, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, the Buyer shall in particular have no claims for reimbursement of corresponding costs ("removal and installation costs").
7.8 If the delivered item is defective, the Seller may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by the Seller is unreasonable for the Buyer in the individual case, the Buyer may reject it. The Seller's right to refuse subsequent performance under the statutory conditions remains unaffected by this.
7.9 The Buyer shall give the Seller the time and opportunity required for the subsequent performance owed, in particular to hand over the defective Goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item at the Seller's request in accordance with the statutory provisions; however, the Buyer shall not be entitled to return the item.
7.10 The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs as well as any dismantling and installation costs, shall be borne or reimbursed by the Seller in accordance with the statutory provisions and these GTCS if a defect actually exists. Otherwise, the Seller may demand compensation from the Buyer for the costs arising from the unjustified request to remedy the defect if the Buyer knew or could have recognized that there was in fact no defect.
7.11 Claims of the Buyer for reimbursement of expenses pursuant to Section 445a (1) BGB are excluded, unless the last agreement in the supply chain is a consumer Goods purchase (Sections 478, 474 BGB) or a consumer agreement for the provision of digital products (Sections 445c sentence 2, 327 (5), 327u BGB). Claims of the Buyer for damages or reimbursement of futile expenses (Section 284 BGB) also exist in the event of defects in the Goods only in accordance with the following Sections 8 and 10 of these GTCS.
8 Other liability
8.1 The Seller shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions, unless otherwise provided for in these GTCS, including the following provisions.
8.2 The Seller shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in cases of intent and gross negligence. In the event of simple negligence, the Seller shall be liable, subject to statutory limitations of liability, such as care in its own affairs or insignificant breaches of duty, only
8.2.1 for damages resulting from injury to life, limb, body or health;
8.2.2 for damages arising from the breach of an essential contractual obligation, i.e. an obligation whose fulfillment is essential for the proper execution of the agreement and on whose compliance the contractual partner regularly relies and may rely. In this case, however, our liability shall be limited to compensation for foreseeable, typically occurring damage.
8.3 The limitations of liability resulting from clause 8.2 of these GTCS shall also apply to third parties and in the event of breaches of duty by persons (including in their favor) whose fault the Seller is responsible for in accordance with statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the Goods has been assumed or for claims of the Buyer under the Product Liability Act.
8.4 The Buyer may only withdraw from or terminate the agreement due to a breach of duty that does not consist of a defect if the Seller is responsible for the breach of duty. A free right of termination of the Buyer (in particular pursuant to Sections 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
9 Intellectual Property
9.1 Copyrights, patent and trademark rights as well as know-how and the associated practical experience, as disclosed by the Seller in offers, design, drawings, projects, software, etc., shall remain the property of the Seller.
9.2 The Buyer is not permitted to reproduce, duplicate, otherwise use, pass on to third parties or communicate with others about the above mentioned rights without the prior written consent of the Seller.
10 Statute of limitations
10.1 Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
10.2 Special statutory provisions on limitation periods shall remain unaffected.
10.3 The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the Goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases.
10.4 The Buyer's claims for damages pursuant to clause 8.2 of these GTCS and under the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
11 Choice of law, place of jurisdiction and other matters
11.1 These GTCS and the contractual relationship between the Seller and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
11.2 If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Munich. The same applies if the Buyer is an entrepreneur according to Section 14 BGB.
In all cases, however, the Seller shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or an overriding individual agreement or at the Buyer's general place of jurisdiction.
11.3 Overriding statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.
11.4 Should individual provisions of the agreement or these GTCS be or become invalid or contain loopholes, this shall not affect the validity of the remaining provisions. To fill the gaps, those legally effective provisions shall be deemed to have been agreed which the contracting parties would have agreed in accordance with the economic objectives of the agreement and the purpose of these GTCS if they had been aware of the loopholes or ineffectiveness.
(Status: August 5, 2024)
Photonics Systems USA, Inc. - General Terms and Conditions
Effective Date: June 1st, 2026
PHOTONICS SYSTEMS USA, INC., a North Carolina corporation ("PSGUSA"), provides systems, equipment, components, software, services, and related items (collectively, the "Products") subject to the following terms and conditions (these "Terms and Conditions"). By purchasing or using Products, the customer ("Customer") agrees to these Terms and Conditions. To the extent any Products include software, Customer's use of such software is additionally subject to any separate software license terms and conditions provided by PSGUSA, which shall govern in the event of any conflict with these Terms and Conditions with respect to such software.
1. Shipment and Pricing
All prices are EXW from PSGUSA's designated service facility or FCA from PSGUSA's designated shipping location, unless otherwise stated. The Incoterms EXW and FCA shall apply, as applicable, at the locations designated by PSGUSA, in accordance with the applicable version of the Incoterms rules published by the International Chamber of Commerce. Shipping, insurance, customs duties, taxes, and tariffs are the responsibility of the Customer unless explicitly included in the quotation. Customer agrees to reimburse PSGUSA for any such costs incurred on Customer's behalf. PSGUSA may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Customer shall pay for the Products shipped whether such shipment is in whole or partial fulfillment of Customer's order.
2. Payment Terms
Payment terms are prepaid unless credit terms are approved in writing. Approved accounts are net thirty (30) days from invoice date unless stated otherwise. Notwithstanding the foregoing, PSGUSA may invoice any deferred amounts on or after the agreed shipping date. Customer shall pay a late fee of the lesser of 1.5% per month or the highest rate permissible under applicable law on all amounts owing over thirty (30) days after invoice date. Customer shall reimburse PSGUSA for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. Until payment is received in full, Customer hereby grants to PSGUSA a lien on and security interest in all of Customer's rights and interest in the Products, and PSGUSA may file a financing statement under the Uniform Commercial Code ("UCC") to perfect such security interest. The security interest granted under this provision constitutes a purchase money security interest under the UCC. PSGUSA reserves the right, at any time and in its sole discretion, including within an ongoing business relationship, to require full or partial advance payment or adequate security if circumstances arise that reasonably indicate a risk to timely payment, including deterioration in Customer's financial condition or creditworthiness. PSGUSA may suspend performance or withhold Delivery (as defined below) if payment is not received when due or if such risks arise.
3. Delivery and Acceptance
Delivery and the transfer of risk are deemed to have taken place as soon as the carrier commissioned by the Customer has picked up the goods, unless otherwise stated (the "Delivery"). Unless otherwise agreed, risk of loss and damage shall pass to Customer upon Delivery. Customer shall, upon receipt of the Products at Customer's destination, promptly inspect the Products and notify PSGUSA in writing of any visible defects within ten (10) days after such receipt and any non-visible defects within ten (10) days after discovery. Failure to comply with the foregoing inspection and notification obligations shall constitute acceptance of the Products and a waiver of related claims to the extent permitted by applicable law. PSGUSA shall use reasonable efforts to replace or repair any nonconforming Products that are validated following such notice.
3.1 Buyer Delay; Storage
If Customer delays acceptance, fails to provide necessary instructions, or otherwise causes a delay in Delivery for reasons within its control, PSGUSA shall be entitled to:
a) charge reasonable storage and handling fees, including a daily fee calculated as a percentage of the order value;
b) recover all additional costs arising from such delay, including rescheduling and logistics costs.
PSGUSA's right to claim additional damages shall remain unaffected.
4. Warranty
4.1 Limited Warranty
PSGUSA warrants that all hardware components of the Products shall, under normal use and service, materially conform to the published product specifications in effect as of the agreed date of Delivery, and shall remain so for a period of one (1) year from such date unless otherwise stated. Warranty claims are subject to Customer's compliance with the inspection and defect notification obligations set forth in Section 3. Failure to comply with such obligations may result in denial of warranty claims to the extent permitted by applicable law.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, ALL PRODUCTS ARE PROVIDED "AS IS". PSGUSA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PRODUCTS OR RELATED SERVICES, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
4.2 Remedy
In the event of a valid warranty claim, Customer may return defective or nonconforming hardware components to PSGUSA's designated service facility in North Carolina, or to such other location as PSGUSA may designate in writing. PSGUSA's sole obligation, and Customer's sole and exclusive remedy, shall be, at PSGUSA's option, to repair or replace the defective or nonconforming Product or component. Customer shall be responsible for all shipping and insurance costs to PSGUSA's facility, and PSGUSA shall bear reasonable shipping and insurance costs for return of repaired or replacement Products to Customer. Title to the Products shall remain with Customer at all times, and Customer shall bear all risk of loss except while the Products are in the care, custody, and control of PSGUSA.
4.3 Replacement Components
PSGUSA may, in its discretion, satisfy its warranty obligations by providing replacement boards, modules, or components on an exchange basis. In such cases, Customer shall promptly return all replaced components to PSGUSA and shall be responsible for all associated shipping and insurance costs. Failure to return such components within a reasonable period may result in additional charges.
4.4 Conditions and Exclusions
Warranty coverage for laser systems and related components is conditioned upon Customer maintaining proper usage and operating records in accordance with applicable manuals and documentation. This warranty does not include preventative or routine maintenance and does not apply to damage resulting from misuse, improper installation, unauthorized modification, or failure to operate the Products in accordance with PSGUSA's instructions. Warranty service may be provided at PSGUSA's discretion either at Customer's site, through shipment of replacement parts, or by provision of temporary or loaner components.
4.5 Non-Availability; Supply Chain
PSGUSA shall not be liable for failure or delay in performance where such failure results from the non-availability of components, materials, or services from suppliers despite PSGUSA having exercised reasonable care in procurement. PSGUSA may, in such cases, withdraw from or delay performance without liability.
4.6 Exclusive Remedy and Limitation
THE REMEDIES SET FORTH IN THIS SECTION 4 SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO CUSTOMER. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PSGUSA SHALL HAVE NO FURTHER LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO LIABILITY ARISING FROM USE, MAINTENANCE, STORAGE, TRANSPORT, OR OPERATION, WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY.
5. Technical Support
Technical factory support for Products owned by the original purchasing Customer is provided by PSGUSA or its affiliates, provided that such Customer has retained continuous ownership of the Products. Subject to these conditions, PSGUSA or its affiliates shall make such support available for the operational life of the Products, contingent upon the Customer maintaining all applicable software upgrades and updates in accordance with PSGUSA's recommendations and requirements.
6. Extended Support Plans
Extended warranty and support services may be available for purchase at PSGUSA's sole discretion.
7. Non-Warranty Service
For Products not covered under warranty or any applicable extended service agreement, PSGUSA offers repair and service on a time-and-materials basis, either at the Customer's location or the location of PSGUSA or an affiliate, at PSGUSA's discretion. Customer shall be responsible for all shipping and insurance costs associated with transporting the Products to and from PSGUSA, as well as any travel-related expenses incurred for on-site service. Title to the Products shall remain with Customer at all times, and Customer shall bear full responsibility for the Products except while they are in the care, custody, and control of PSGUSA.
8. Returns and Cancellations
8.1 Standard Products
Products consisting of standard items manufactured or purchased by PSGUSA for multiple customers ("Standard Products") may be returned only with PSGUSA's prior written authorization. Any request for return authorization must be submitted within thirty (30) days following Delivery. All approved returns of Standard Products shall be subject to an inspection and restocking fee of ten percent (10%) of the original purchase price. Upon receipt, PSGUSA shall inspect all returned Products and reserves the right, in its reasonable discretion, to assess additional charges for any damage, excessive wear, or other conditions affecting the value or resaleability of the Products. PSGUSA reserves the right to reject return requests or impose additional conditions where Products have not been properly stored, handled, or maintained by Customer.
8.2 Custom Products
Products that are manufactured or modified to meet Customer's specifications ("Custom Products") are nonreturnable and nonrefundable.
9. Leasing
Products may be offered for lease pursuant to the terms and conditions set forth in a separate written lease agreement executed between PSGUSA and Customer. All leasing arrangements are subject to PSGUSA's credit approval requirements. Applicable fees, as well as any federal, state, or local taxes, including those imposed under the laws of the State of North Carolina, may apply and shall be the responsibility of the Customer unless otherwise expressly agreed in writing.
10. Intellectual Property
All trademarks, service marks, trade names, logos, trade secrets and other intellectual property owned by PSGUSA or its affiliates shall remain the property of PSGUSA or its applicable affiliate. Customer agrees not to use, reproduce, or infringe upon any such intellectual property without the prior written consent of the respective owner.
11. Substitutions and Modifications
PSGUSA and its affiliates reserve the right to make substitutions, improvements, or modifications to the specifications or design of the Products, provided that such changes do not materially adversely affect the overall performance or intended functionality of the Products. Any such substitutions or modifications shall not relieve Customer of its obligations under these Terms and Conditions.
12. Proper Use
Customer agrees that the Products shall be used only by Customer's employees, agents, or representatives who have been properly trained and instructed in their safe and appropriate use, including adherence to all safety precautions and operating procedures made available by PSGUSA. Customer assumes full responsibility for ensuring the safe operation, handling, storage, and maintenance of the Products in accordance with all applicable instructions, industry standards, and applicable legal requirements, as well as maintaining any insurance coverage required or appropriate to be carried in connection with use of the Products.
13. Intellectual Property Indemnification by PSGUSA
13.1 Indemnification Obligations
PSGUSA shall defend, or at its option settle at its own expense, any claim, suit, or proceeding brought against Customer to the extent such claim is based on an allegation that the Products, or any component thereof supplied by PSGUSA, infringe any valid United States patent, copyright, or other intellectual property right of any third-party. PSGUSA shall indemnify and pay any damages finally awarded against Customer in such action, provided that Customer promptly provides written notice of any such claim to PSGUSA, grants PSGUSA sole control of the defense and settlement of the claim through counsel of its choosing, and provides all information, cooperation, and assistance reasonably requested by PSGUSA in connection with such defense. PSGUSA shall have no obligation or liability for any claims arising from or related to the use of the Products in combination with equipment, materials, or processes not supplied or expressly authorized by PSGUSA, or from modifications made by any party other than PSGUSA.
13.2 Infringement Remedies and Limitation of Liability
If any Product is determined by a court of competent jurisdiction to infringe on the intellectual property rights of any third-party and its use is enjoined, PSGUSA shall, within a commercially reasonable period of time and at its discretion, either procure for Customer the right to continue using the Product, replace or modify the Product so that it becomes non-infringing while substantially maintaining its functionality, or accept return of the affected Product and refund the amount actually paid by Customer for such Product, less reasonable depreciation where permitted by applicable law. This Section sets forth PSGUSA's entire obligation and liability, and Customer's exclusive remedy, with respect to any allegation or determination of intellectual property infringement, whether arising under statutory law, common law, or otherwise.
14. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, INCLUDING THE LAWS OF THE STATE OF NORTH CAROLINA, PSGUSA SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE LOSS, DAMAGE, OR EXPENSE OF ANY KIND, WHETHER ARISING DIRECTLY OR INDIRECTLY FROM THE USE, OPERATION, MAINTENANCE, STORAGE, OR TRANSPORTATION OF THE PRODUCTS OR ANY RELATED SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE THEORY OF LIABILITY ASSERTED, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER PSGUSA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IN NO EVENT SHALL PSGUSA'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO PSGUSA FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER. PSGUSA DOES NOT ASSUME, AND DOES NOT AUTHORIZE ANY OTHER PERSON OR ENTITY TO ASSUME ON ITS BEHALF, ANY ADDITIONAL OR DIFFERENT LIABILITY OR RESPONSIBILITY IN CONNECTION WITH THE PRODUCTS OR RELATED SERVICES. THE FOREGOING LIMITATION SHALL ALSO APPLY TO ANY CLAIMS BROUGHT BY THIRD PARTIES AGAINST CUSTOMER THAT ARISE OUT OF OR RELATE TO THE PRODUCTS OR THEIR USE.
TO THE EXTENT REQUIRED BY APPLICABLE LAW, THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED, INCLUDING LIABILITY FOR WILLFUL MISCONDUCT OR PERSONAL INJURY RESULTING FROM PSGUSA'S GROSS NEGLIGENCE.
15. Customer Indemnification
15.1 Customer Indemnification Obligations
Except for those intellectual property claims for which PSGUSA has expressly agreed to indemnify Customer as set forth in these Terms and Conditions, Customer shall defend, indemnify, and hold harmless PSGUSA, including the payment of reasonable attorney's fees, from and against any and all claims, demands, actions, or proceedings arising out of or relating to the Products that are asserted by Customer's customers or any third parties in privity with Customer, on any theory of liability other than product liability. The parties acknowledge and agree that PSGUSA does not control and has no responsibility for the design, manufacture, or use of any products, systems, or applications developed or produced using the Products, and PSGUSA shall have no liability with respect thereto. Customer assumes full responsibility for any and all liability to third parties arising from the use, integration, or application of the Products and shall fully defend, indemnify, and hold PSGUSA harmless from and against all such liability, including the payment of reasonable attorney's fees, to the fullest extent permitted under applicable law.
15.2 Scope of Indemnification and Cooperation
Customer's obligations under this Section shall include the duty to defend, indemnify, and hold harmless PSGUSA and its officers, directors, shareholders, employees, agents, successors, and assigns from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorney's fees, arising from or related to the storage, use, maintenance, or operation of the Products. In the event of any actual or threatened claim subject to this Section, Customer shall promptly acknowledge its obligations hereunder and shall provide PSGUSA with timely written notice and ongoing updates regarding all material developments relating to the investigation, negotiation, defense, and resolution of such claim.
16. Export Compliance
Customer shall be solely responsible for obtaining and maintaining any and all consents, approvals, authorizations, registrations, and filings required under the laws and regulations of any jurisdiction in which the Products are received, used, stored, or resold, including those relating to currency controls or import regulations. All obligations of PSGUSA to provide Products, technical data, software, or related services are expressly subject to all applicable laws and regulations, including those governing the export and re-export of goods, technology, and technical data by persons subject to United States jurisdiction, including but not limited to the Export Administration Act, as amended, the Export Administration Regulations administered by the U.S. Department of Commerce, and any successor laws or regulations.
Customer agrees that it shall not, directly or indirectly, export, re-export, transfer, or transship any Products, software, or technical data received from PSGUSA, or any direct product thereof, in violation of applicable United States export control laws or regulations. Without limiting the foregoing, Customer shall not export or re-export such items to any restricted or prohibited country, entity, or end user, or for any prohibited end use, without first obtaining all required governmental approvals. Customer further agrees to comply with all applicable trade sanctions and export control requirements enforced by the United States government, including those applicable within the jurisdiction where PSGUSA is organized and conducts business.
17. Confidentiality
Customer shall not reproduce, duplicate, reverse engineer, disassemble, or otherwise use the Products or related documentation beyond the scope expressly permitted. Each party agrees that any confidential, proprietary, or non-public information disclosed by the other party in connection with these Terms and Conditions and the Products or related services shall be maintained in strict confidence and the receiving party shall implement reasonable safeguards to protect such information from unauthorized disclosure. The parties further agree to use such information solely for purposes authorized under these Terms and Conditions and to take all reasonable measures to prevent unauthorized disclosure or use, consistent with applicable law.
18. Waiver
The failure of PSGUSA at any time to enforce any provision of these Terms and Conditions, to exercise any right or option provided herein, or to require performance by Customer of any obligation shall not be construed as a waiver of such provision, right, or obligation, nor shall it in any way affect the validity of these Terms and Conditions or PSGUSA's right thereafter to enforce each and every provision in accordance with applicable law.
19. Force Majeure
Neither party shall be liable for any failure or delay in the performance of its obligations under these Terms and Conditions, other than payment obligations, when and to the extent such failure or delay is caused by or results from events beyond its reasonable control, including but not limited to acts of God, fire, flood, earthquake, epidemic, war, terrorist threat, riot or other civil unrest, labor disputes, governmental action, law or order, transportation delays, national or regional emergency and shortages of materials or energy, supply chain disruptions, or failures of suppliers, provided that such nonperformance is not caused by the negligence or willful misconduct of the affected party. Performance shall be excused only for the duration of such event and for a reasonable period thereafter to resume performance.
20. Governing Law and Disputes
These Terms and Conditions, and any disputes arising out of or relating to the Products or the relationship of the parties, shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to any choice or conflict of law principles. The parties agree that any legal action or proceeding shall be brought exclusively in a state or federal court of competent jurisdiction located within the State of North Carolina, and Customer hereby consents to the jurisdiction and venue of such courts. Any action arising out of or relating to the Products or these Terms and Conditions must be commenced within one (1) year from the date the cause of action arises, to the fullest extent permitted by applicable law.
21. Restrictions
Customer shall not make the Products available for use, analysis, or inspection by any party other than those expressly authorized under these Terms and Conditions. Customer shall not modify, enhance, reverse engineer, or otherwise alter the Products, nor shall Customer design, manufacture, market, or sell any product that is substantially similar to or derived from the Products. Customer shall use reasonable efforts to prevent its officers, employees, agents, and representatives from engaging in any such prohibited activities.
22. Severability
If any provision of these Terms and Conditions is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be enforced to the maximum extent permitted by law, and the remaining provisions shall remain valid and enforceable as if the invalid provision had not been included.
23. Time of Essence
Time is of the essence with respect to all obligations and provisions under these Terms and Conditions in which time for performance is a factor.
24. Assignment
Customer shall not assign any of its rights or delegate any of its obligations under these Terms and Conditions without the prior written consent of PSGUSA. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. These Terms and Conditions shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns in accordance with applicable law.
25. Attorney Fees
In any action, proceeding, or arbitration arising out of or relating to these Terms and Conditions, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs incurred at trial, on appeal, and in any post-judgment enforcement proceedings, to the extent permitted under applicable law.
26. Relationship of the Parties
The parties are and shall remain independent contractors, and nothing contained in these Terms and Conditions shall be deemed to create any partnership, joint venture, agency, franchise, or employment relationship between PSGUSA and Customer. Neither party shall have authority to bind or obligate the other in any manner whatsoever.
27. Construction
The headings and captions used in these Terms and Conditions are for convenience only and shall not affect the interpretation of any provision. These Terms and Conditions shall not be construed against any party by reason of authorship or drafting, and no presumption or rule requiring construction against the drafter shall apply.
28. Entire Agreement
These Terms and Conditions, together with any documents expressly incorporated herein or signed by authorized representatives of PSGUSA, constitute the entire agreement between PSGUSA and Customer with respect to the subject matter hereof and supersede all prior or contemporaneous agreements, negotiations, or understandings, whether written or oral.
29. Amendments and Interpretations
These Terms and Conditions may not be modified, supplemented, or amended except by a written agreement signed by authorized representatives of both PSGUSA and Customer. No prior course of dealing, usage of trade, or course of performance shall be used to interpret or modify these Terms and Conditions unless expressly incorporated in writing.
30. Reliance
Customer acknowledges and agrees that it has not relied upon any representations, warranties, or statements made by PSGUSA or any of its representatives except as expressly set forth in these Terms and Conditions.
31. Order Formation
Unless otherwise expressly stated, all quotations are non-binding and subject to change. Customer orders constitute binding offers. A contract is formed only upon PSGUSA's written order confirmation or shipment of Products, whichever occurs first.
32. Conflict
Any conflicting terms contained in Customer's purchase order, acknowledgment, or other documentation shall not apply and shall be of no force or effect unless expressly agreed to in a writing signed by an authorized representative of PSGUSA. PSGUSA's acceptance of Customer's order, or shipment of the Products, is expressly conditioned on Customer's assent to these Terms and Conditions and does not constitute acceptance of any additional or different terms proposed by Customer.
33. Notices
All notices, requests, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the order confirmation or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section 33.