General Sales Conditions
General Conditions of Contract (Terms of Delivery and Payment) of ColorBase Inc, Salt Lake City, UT
1. General
1.1. Orders will be accepted and carried out on the basis of the following conditions only. In placing an order the purchaser acknowledges expressively and without exception these terms. No amendment to these conditions can be accepted unless agreed by ColorBase, Inc. in writing.
1.2. Any general conditions of the buyer are rejected by ColorBase, Inc. and do not form part of the contract.
1.3. If any dispositions of these conditions are not valid or become inoperative, the validity of the remaining dispositions will not be affected thereby. Inoperative dispositions shall be replaced in the way to realize the same economic effect as envisaged.
2. Quotations/Orders/Deliveries
2.1. Our quotations and offers are not binding, unless they are explicitly declared as binding, until an order that is placed on the basis of the terms of quotation has been confirmed by us in writing. ColorBase, Inc. reserves the right of change of constructions and form. All technical data, descriptions and illustrations of the object of supply that may be given in offers, leaflets, other information, and advertising materials are not binding. The buyer will hold himself bound to his order during such period usual for getting a confirmation, but for at least 60 days.
Binding contracts and all their content will be instituted by written confirmation of ColorBase, Inc. only (confirmation of order). Should ColorBase, Inc.’s confirmation differ from the buyer’s order then only ColorBase, Inc.’s confirmation of order will be decisive, unless the buyer has given his representation immediately or at least within 8 days after receipt of ColorBase, Inc.’s confirmation.
2.2. Terms of delivery will not be binding unless confirmed in writing by ColorBase, Inc. Should the delivery not be effected within such term, that as the case may be, as it has been confirmed by ColorBase, Inc. in writing, the buyer shall grant reasonable extension of time. Should such term extended not be observed as the case may be, then both the buyer and ColorBase, Inc. are free to rescind the contract. However, there will be no damages or compensation for non-delivery. In case any damage was caused by gross negligence of ColorBase, Inc., the liability of ColorBase, Inc. is limited to 25% of the value of the order.
2.3. Any communication per e-mail shall be deemed as in writing.
2.4. All contracts and terms of delivery shall be subject to regular working conditions. ColorBase, Inc., as to non delivery or terms of delivery not observed, shall be liable for wilful refusal or gross negligence only. ColorBase, Inc. shall be released by the buyer from any liability if, as may be shown, the non-observance of the terms of delivery respectively the non-performance of the obligation to delivery is due to unforeseen events such as p.e. war, riot, strike, lock-out that may influence the departments of ColorBase, Inc.’s business responsible for the execution of order, to delay, of ColorBase, Inc.’s suppliers, difficulties in procurement of materials, carrying-out of transportation or deficiencies in electric power-supply, problems of personnel and any case of force majeure. The buyer as well as ColorBase, Inc. then may terminate the contract. ColorBase, Inc. is liable for all kinds of damages only if the damage was caused by gross negligence or by wilful act.
2.5. Delivery may be done by installments invoiced separately.
3. Retention of Title
3.1 All goods delivered will remain in title of ColorBase, Inc. until complete satisfaction of all claims of ColorBase, Inc. resulting from the business relations between ColorBase, Inc. and the buyer (reserved goods). In cases of seizure or distraint of such reserved goods by third persons the buyer will have to inform ColorBase, Inc. within 24 hours and immediately to notify ColorBase, Inc.’s retention of title to the third-party creditor as well as to the bailiff acting. The buyer is authorized to resale the reserved goods against cash. In this case, he transfers title in this cash to ColorBase, Inc. immediately. If the buyer sells the reserved goods in another way, he assigns his claims against his buyer to ColorBase, Inc. The buyer shall give notice to his buyer and to ColorBase, Inc. of such assignment. In addition, the buyer shall mark the relevant positions in his books and records. Moreover, if in the country of the place of business of the buyer any registration is necessary to render the retention of title effective, buyer shall comply with such registration needs and duly inform ColorBase, Inc. about such needs.
3.2 Should the buyer combine the goods delivered with premises or movables, he herewith already assigns to ColorBase, Inc. all claims due to him therefore including all other rights resulting thereof.
3.3 In case of default, the buyer will be obliged to hand over the goods reserved to ColorBase, Inc. upon the request of the latter. For the settlement of the price of taking back, ColorBase, Inc. reasonably will consider the depreciation occurred between the date of delivery and of taking back. The total of claims ColorBase, Inc. will have against the buyer immediately shall be due upon the following events: default of the buyer – even for agreed installments -, distraint or seizure of the reserved goods by third parties and in case of unauthorized removal of the reserved goods done by the buyer. ColorBase, Inc. then may recover all claims and the goods reserved wherever situated. This however for the foregoing events will not affect the crediting of the price of taking back which the buyer is entitled to, and ColorBase, Inc. will settle and credit it to the buyer within reasonable time, however by compensation and deduction of ColorBase, Inc.’s claims for damages!
4. Prices
4.1 All orders will generally be governed by the prices of ColorBase, Inc. valid at the date of delivery (Recommended Selling Price List). All prices are calculated from stock ordinary packing included. All extra packing will be charged to the buyer.
4.2 ColorBase, Inc. reserves the right to specify the currency for the clearing of deliveries and will notify currency of invoicing to the buyer at the latest when confirming the order.
4.3 Changes of order will allow compensation for variations, if necessary further invoicing for compensations of packing.
4.4 All prices are to be considered as net prices ex works Salt Lake City, duty unpaid and excluding turnover taxes/value added taxes. At all times, the agreed place for delivery of the goods will be Salt Lake City. All cost for transportation, insurance, customs clearance etc. will be borne by the buyer. If by order of the buyer ColorBase, Inc. will do the dispatch of the goods, the buyer will have to pay an advance covering the cost of freight.
5. Devolution of Risks
5.1 All risks will pass over to the buyer as soon as the goods will have left the place of ColorBase, Inc.’s dispatch. The same applies for dispatch ColorBase, Inc.’s own carriers. ColorBase, Inc. therefore will not be liable for damages by and during transportation. ColorBase, Inc. undertakes to assign to the buyer possible claims against the carrier. Insurance’s against the risk of transport, if effected, will be borne by the buyer ex place of ColorBase, Inc.’s dispatch.
5.2 Every dispatch under the foregoing dispositions will be effected at cost and risks of the buyer.
5.3 The goods will not be insured unless insurance explicitly has been agreed in writing with the buyer. ColorBase, Inc. will be ready against advanced payment of the cost to effect an insurance against the risks of transport at cost and charges of the buyer however, without assuming any responsibility thereby.
5.4 Should the insurance company for whatever reason refuse the compensation of damages if any to the buyer, the latter however will be obliged to completely pay the invoices of ColorBase, Inc. for the goods concerned without delay.
6. Payment
6.1 Payment will be done by prepayment through Stripe or ACH in favor of ColorBase, Inc. and which will be payable against original invoice and confirmation of dispatch. Expenses of foreign banks and expenses for consular invoices certificates of origin, cabled confirmations of dispatch etc. that may be required as the case may be, will be borne by the buyer. For deviating terms of payment that must be agreed in writing.
6.2 The buyer is not entitled to assertion of detention or compensation against due claims of the supplier for payment. ColorBase, Inc. at the moment of invoicing may compensate its claims resulting from supplies etc. against any claims the buyer may be entitled to against ColorBase, Inc..
6.3 Should payments remain unsettled in spite of reminders, should circumstances come into being which noticeable diminish the credit standing of the customer (e.g. futile seizure, non collection of bills of exchange or cheques, suspension of payments, petition of instituting composition or bankruptcy proceedings), then all claims which ColorBase, Inc. have against the customer are due at once and ColorBase, Inc. has the right to restrain from all orders placed, even if confirmed, and to terminate all contracts with the customer by written notice.
7. Guarantee & Complaints
7.1 Goods shall be inspected immediately on delivery. Obvious defects are to be reported in writing within 10 days after receipt of goods.
Failure to report defects punctually will invalidate any claims to warranty. Defects which may not be identified on arrival even not by attentive verification, must be reported immediately after identification, at the latest within 8 days after the date of identification, in writing.
In case buyer does not report any defects punctually he loses and waives all rights, including but not limited to the right to claim damages, which are derived from such defect.
7.2 For damages caused by evident defects of material or bad workmanship the obligation to guarantee will be limited to free of charge replacement of the defective parts that will be delivered free ex works. However, there will be no claim for guarantee in cases of non-authorised changes in the product by the buyer or the end-user, respectively of improper use, non-observance of instructions for installation and directions for use as well as non-observance of the directions concerned for electric connection.
The liability of ColorBase, Inc. will be limited to the value of the product delivered. This applies equally to claims arising from culpa in contrahendo, positive violation of claims and other legal grounds.
The guarantee further will not cover any damages caused by the failure of apparatus (losses of earnings and materials etc.). The recognition of guarantee claims by ColorBase, Inc. will not extend the original period of guarantee.
Labour cost for repairs of defective apparatus done by ColorBase, Inc. under guarantee will be borne by ColorBase, Inc. only when executed in its works Salt Lake City. Any cost of transportation of apparatus defective or to be replaced by guarantee will be borne by the client free works Salt Lake City respectively back ex works Salt Lake City. Should the buyer call for ColorBase, Inc.s service staff, he will have to take in charge labor cost and traveling expenses. Reference is made to all points of No.9.
7.3 ColorBase, Inc. grants a guarantee for its own products of 12 months running from the delivery to the first buyer however of at most 18 months from the delivery ex works Salt Lake City. All parts of glass, lamps and those parts subject to wear and tear are excepted from this guarantee. When ColorBase, Inc. is supplying software, only such defects can be acknowledged as are reproducible at any time. We commit ourselves to correct software errors which more than insignificantly impede the stipulated use by installing an improved version of the software or by indicating how the error may be eliminated or the effects bypassed. ColorBase, Inc. cannot offer guarantee for the uninterrupted or flawless functioning of the software.
ColorBase, Inc. cannot assume liability for the loss or transformation of data caused by program errors and are not responsible either for procuring data lost in this way, assuming procurement to be necessary.
Claims of warranty (guarantee) will not release the buyer from his agreed obligation to payment; it is reserved to ColorBase, Inc. to settle the claims of guarantee.
7.4 For damages caused by direct reaction of chemicals or by undue humidity as well as by normal tear and wear there will be no guarantee claim.
8. Rights to software
8.1 All programs remain our property. The programs, documentation and later supplements may not be made accessible to third parties without our previous written consent and may neither be copied or otherwise duplicated – not even for own use.
A non-exclusive and non-transferable user right will be granted for programs, related documentation, and later supplements for the internal use of the goods for which the programs are supplied.
9. Repairs and Returns
9.1 Defective goods may not be returned to ColorBase, Inc. unless ColorBase, Inc. has given its prior consent in writing. For the return of defective goods ColorBase, Inc.’s directions for dispatch must be observed attentively (No. 7.2 applies accordingly). Goods of other manufacturers distributed by ColorBase, Inc. (merchandise), such as lenses, never may be addressed to ColorBase, Inc. for repair but to the respective producer directly.
9.2 Other possible returns not mentioned in No. 9.1 before (p.e. wrong supply, delivery of higher quantity) without exception need prior written consent of ColorBase, Inc.. Unauthorized returns will be at the sender’s disposal respectively reimported by ColorBase, Inc. all cost thereof being in charge to the sender.
9.3 Re-calibration of devices means we will fix and repair any damage to like-new condition before returning. No exceptions will be made.
10. Any claims of the buyer others than expressingly mentioned in these conditions will be refused.
11. Place of Fulfillment and Court
11.1 Parties submit to the jurisdiction of the competent court at the place of business of ColorBase, Inc. in Salt Lake City. ColorBase, Inc. reserves its right to invoke the jurisdiction of any other court. Buyer explicitly waives and renounces its right to invoke the jurisdiction of the court, federal or state, of the United States of America.
