In these Terms and Conditions of Service, “Provider” means Allt Hitt ehf, the legal entity behind zappkit.com and manufacturer of the Z-Amplifier; “Client” means the person, firm, company or corporation acquiring a Z-Amplifier along with its . “Product” means “Z-Amplifier” along with its accessories or any other services offered by Provider and paid for by Client.
- THE CONTRACT:
2.1 All purchases from Client are received and accepted subject to these Terms and Conditions have been agreed upon. If a Client makes a purchase, these terms and conditions apply. No terms or conditions put forward by Provider and no representations, warranties, guarantees or other statements not contained in the Provider’s quotation or Acknowledgement of Purchase nor otherwise expressly agreed in writing by Provider shall be binding on Provider.
2.2 The Contract shall become effective only upon the date of acceptance of Client’s order on Provider’s Acknowledgement of Order form via email or upon Provider shipping of the Z-Amplifier or upon the date of fulfillment of all conditions precedent stipulated in the Contract, whichever is the later (the “Effective Date “). If the details of the product described in the Provider’s quotation differ from those set out in the Acknowledgement of Order Form the latter shall apply.
2.3 No alteration or variation to the Contract shall apply unless agreed in writing by both parties. However, Provider reserves the right to effect minor modifications and/or improvements to the product before delivery provided that the performance of the product is not adversely affected and that neither the Contract Price nor the delivery date is affected.
- VALIDITY OF QUOTATION AND PURCHASE AMOUNT:
3.1 Unless previously withdrawn, Provider’s quotation is open for acceptance within the period stated therein or, when no period is so stated, within fourteen days after its date.
3.2 Purchase amounts are firm for delivery of Product within the period stated in Provider’s quotation.
3.3 Purchase amounts (a) are for Products delivered Ex works Provider’s shipping point, exclusive of freight, insurance and handling unless otherwise stated in the Provider’s order confirmation.
4.1 Purchases shall be made: (a) in full amount as described by Provider for Provider to be obligated to dispatch Products.
- DELIVERY PERIOD:
5.1 Unless otherwise stated in Provider’s purchase confirmation, all periods stated for delivery or completion run from the Effective Date and are to be treated as estimates only not involving any contractual obligations.
5.2 If Provider is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Client or its agents (including but not limited to failure to provide specifications and/or fully dimensioned working drawings and/or such other information as Provider reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract purchase amount shall both be adjusted accordingly.
5.3 If delivery of Product is delayed due to any act or omission of Client, or if having been notified that the Product is ready for dispatch, Client fails to take delivery or provide adequate shipping instructions, Provider shall be entitled to reclaim the Product and is not obligated to ship the Product to Client unless additional shipping costs are supplied by Client.
- FORCE MAJEURE:
6.1 Force Majeure of any kind, unforeseeable production, traffic or shipping disturbances, war, acts of terrorism, fire, floods, unforeseeable shortages of labor, utilities or raw materials and supplies, strikes, lockouts, acts of government, and any other hindrances beyond the control of the party obliged to perform which diminish, delay or prevent production, shipment, acceptance or use of the Product, or make it an unreasonable proposition, shall relieve the party from its obligation to supply or take delivery, as the case may be, as long as and to the extent that the hindrance prevails. If, as a result of the hindrance, supply and/or acceptance is delayed by more than ten weeks, either party shall have the right to cancel the contract. Should the Provider’s suppliers fail to supply him in whole or in part , the Provider shall not be under obligation to purchase from other sources. In such cases, the Provider shall have the right to distribute the available quantities among his Clients while at the same time taking into account his captive requirements.
- DELIVERY, RISK & TITLE:
7.1 Unless otherwise expressly stated in the Contract, the Product will be delivered Ex Works to the destination named in the Contract. Risk of loss of or damage to the Product shall pass to Client upon delivery as aforesaid and Client shall be responsible for insurance of the Product after risk has so passed. Delivery terms used in the Contract shall be defined in accordance with the latest version of Incoterms.
7.2 Title to the Product shall pass to Client upon delivery. The Client is directly responsible for any results of any use of the Product. The Client accepts the Product “as is”, meaning that the Product is not considered a complete product, or ready for market distribution, but only for collection of data at the Client’s personal risk.
- DEFECTS AFTER DELIVERY:
8.1 Provider warrants (i) subject to the other provisions of the Contract, good title to and the unencumbered use of the Product; (ii) that Product manufactured by Provider and/or Provider’s Affiliates shall conform with Provider’s specifications therefore and be free of defects in materials and workmanship. Provider will make good by the supply of a replacement part or parts, any defects which, under proper use, care and maintenance, appear in Product of Provider’s Affiliates’ manufacture and which are reported to Provider within 12 calendar months after their delivery (the “Warranty Period”) and which arise solely from faulty materials or workmanship: provided always that defective items are returned to Provider at Client’s cost carriage and insurance prepaid within the Warranty Period. Repaired or replacement items will be delivered by Provider at Provider’s cost to Client. Product replaced in accordance with this Clause 10.1 shall be subject to the foregoing warranty for the unexpired portion of the Warranty Period or for ninety days from the date of their return to Client (or completion of correction in the case of Services), whichever expires later.
8.2 Notwithstanding Clause 8.1, Provider shall not be liable for any defects caused by: fair wear and tear; materials or workmanship made, furnished or specified by Client; non-compliance with Provider’s storage, installation, operation or environmental requirements; lack of proper maintenance; any modification or repair not previously authorized by the Provider in writing. Provider’s costs incurred in investigating and rectifying such defects shall be paid by Client upon demand. Client shall at all times remain solely responsible for the adequacy and accuracy of all information supplied by it.
8.3 Subject to Clause 10.1, the foregoing constitutes Provider’s sole warranty and Client’s exclusive remedy for breach thereof. No representations, warranties or conditions of any kind, express or implied, shall apply as to satisfactory quality, merchantability, fitness for any particular purpose or any other matter with respect to any of the Product.
- PATENT, ETC. INFRINGEMENT:
9.1 Subject to the limitations set forth in Clause 10, Provider shall indemnify Client in the event of any claim for infringement of Letters Patent, Registered Design, Design Right, Trademark or Copyright (“Intellectual Property Rights”) existing at the date of formation of the Contract arising from the use or distribution of the Product, against all reasonable costs and damages awarded against Client in any action for such infringement, or for which Client may become liable in any such action, provided always that Provider shall not be liable to so indemnify Client in the event that:(i) such infringement arises as a result of Provider having followed a design or instruction furnished or given by Client, or the Product having been used in a manner or for a purpose or in a country not specified by or disclosed to Provider prior to the date of the Contract or in association or combination with any other equipment or software, or (ii) Provider has at its expense procured for Client the right to continue to use the Product or has modified or replaced the Product so that the Product no longer infringe. (iii) Client has failed to give Provider the earliest possible notice in writing of any claim made or to be made or of any action threatened or brought against Client and/or Client has failed to permit Provider, at Provider’s expense, to conduct and control any litigation that may ensue and all negotiations for a settlement of the claim, or (iv) Client has made without Provider’s prior written consent any admission which is or may be prejudicial to Provider in respect of any such claim or action, or (v) the Product have been modified without Provider’s prior written authorization.
9.2 Client warrants that any design or instructions furnished or given by it shall not cause Provider to infringe any Intellectual Property Rights in the performance of Provider’s obligations under the Contract and shall indemnify Provider against all reasonable costs and damages which Provider may incur as a result of any breach of such warranty.
- LIMITATION OF LIABILITY:
10.1 Supplier’s maximum aggregate liability for any and all losses, liabilities, expenses (including legal expenses), damages, claims or actions incurred under or in connection with a specific order or a particular blanket order (CALL-OFF order) issued, arising in or by virtue of breach of contract, tort (including negligence), misrepresentation, breach of statutory duty, strict liability, infringement of intellectual property rights or otherwise, shall in no circumstances exceed a sum equal to the total price of the Call -Off in question.
11 STATUTORY AND OTHER REGULATIONS:
11.1 If Provider’s obligations under the Contract shall be increased or reduced by reason of the making or amendment after the date of the Provider’s quotation of any law or any order, regulation or bye-law having the force of law that shall affect the performance of Provider’s obligations under the Contract, the Contract Price and delivery period shall be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.
- COMPLIANCE WITH LAWS
Client agrees that all applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation those of the United States, the European Union and the jurisdictions in which Provider and Client are established or from which items may be supplied, and the requirements of any licenses, authorizations, general licenses or license exceptions relating thereto will apply to its receipt and use of Product. In no event shall Client use, transfer, release, export or re -export any such Product in violation of such applicable laws, regulations, orders or requirements or the requirements of any licenses, authorizations or license exceptions relating thereto. Client agrees furthermore that it shall not engage in any activity that would expose the Provider to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper Purchases, including but not limited to bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. Client agrees to comply with all appropriate legal, ethical and compliance requirements.
- DEFAULT, INSOLVENCY AND CANCELLATION:
13.1 Providers shall be entitled, without prejudice to any other rights it may have, to cancel the Contract forthwith, wholly or partly, by notice in writing to Client, if (a) Client is in default of any of its obligations under the Contract and fails, within 30 (thirty) days of the date of the Provider’s notification in writing of the existence of the default, either to rectify such default if it is reasonably capable of being rectified within such period or, if the default is not reasonably capable of being rectified within such period, to take action to remedy the default or (b) on the occurrence of an Insolvency Event in relation to Client. “Insolvency Event” in relation to Client means any of the following: (i) a meeting of creditors of Client being held or an arrangement or composition with or for the benefit of its creditors being proposed by or in relation to Client; (ii) a charge holder, receiver, administrative receiver or similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of Client; (iii) Client ceasing to carry on business or being unable to pay its debts; (iv) Client or its directors or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of , an administrator; (v) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of Client; or (vi) the happening in relation to Client of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets. Provider shall be entitled to recover from Client or Client’s representative all costs and damages incurred by Provider as a result of such cancellation, including a reasonable allowance for overheads and profit (including but not limited to loss of prospective profits and overheads).
14.1 No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
14.2 If any clause, sub-clause or other provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.
14.3 Client shall not be entitled to assign its rights or obligations hereunder without the prior written consent of Provider.
14.4 Provider enters into the Contract as principal. Client agrees to look only to Provider for due performance of the Contract.
14.5 Product PROVIDED HEREUNDER ARE NOT SOLD OR INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR RELATED APPLICATIONS. Client (i) accepts Product in accordance with the foregoing restriction, (ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users and (iii) agrees to defend, indemnify and hold harmless Provider from any and all claims, losses, liabilities, suits, judgments and damages, including incidental and consequential damages, arising from the use of Product in any nuclear or nuclear related applications, whether the cause of action be based in tort, contract or otherwise, including allegations that the Provider’s liability is based on negligence or strict liability.
14.6 The Contract shall in all respects be construed in accordance with the laws of Belgium excluding, however, any effect on such laws of the 1980 Vienna Convention on Contracts for the International Distribution of Product and to the fullest extent permitted by law, shall be without regard to any conflict of laws or rules which might apply the laws of any other jurisdiction. All disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the Belgium courts.
14.7 The headings to the Clauses and paragraphs of the Contract are for guidance only and shall not affect the interpretation thereof.
14.8 All notices and claims in connection with the Contract must be in writing.