General Terms and Conditions

1. Applicability.

(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods” or “Products”) by ELATEC Inc., the seller named on the reverse side of these Terms (“Seller”), to Customer (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

(b) The accompanying quotation, confirmation of sale, and/or invoice (the “Sales Confirmation” and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
 

2. Delivery.

(a) The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit and time shall not be of the essence.

(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to 1995 SW Martin Hwy, Palm City FL, 34990 (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within five business days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.

(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.

(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

 

3. Non-Delivery.

(a) The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s Delivery Point is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.

(b) The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within two calendar days of the date when the Goods would in the ordinary course of events have been received.

(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

 

4. Quantity.

If Seller delivers to Buyer a quantity of Goods of up to 50% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.

 

5. Shipping Terms.

All deliveries are made EX WORKS Delivery Point according to Incoterms 2020, unless otherwise agreed in writing by both Seller and Buyer.

 

6. Title and Risk of Loss.

Title and risk of loss passes to Buyer upon delivery of the Goods EX WORKS at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code (“UCC”), and Buyer grants to Seller the right to file a related UCC financing statement.

 

7. Amendment and Modification.

These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

 

8. Inspection and Rejection of Nonconforming Goods.

(a) Buyer shall inspect the Goods within five (5) business days of receipt (” Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) Goods shipped are different than those identified in Buyer’s purchase order; or (ii) the Goods’ labeling and/or packaging incorrectly identify the shipment.

(b) If Buyer timely notifies Seller per Section 8(a) of this Agreement of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price (as defined below) for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 1995 SW Martin Hwy, Palm City FL, 34990. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

 

9. Price.

(a) Buyer shall purchase the Goods from Seller at the prices (the “Prices”, or in the singular use, the “Price”) set forth in Seller’s published price list or formal quotation in force as of the date that Seller accepts Buyer’s purchase order. If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.

(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.

 

10. Payment Terms.

(a) Buyer shall pay all invoiced amounts due to Seller within thirty (30) calendar days from the date of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer, check, or other mutually acceptable payment method and in US dollars.

(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for three business days following written notice thereof.

(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

 

11. Limited Warranty.

(a) Product Warranty: For applicable Product warranty term, please contact Seller at Sales-ElatecUSA@elatec.com or from Buyer’s local sales representative, and any relevant warranty terms included with the Product documentation. Seller’s Goods are intended for consumer applications. Seller assumes no liability for the performance of Goods, except as set forth in the General Warranty Policy. Seller’s Goods are not suitable for use in biological hazard applications, nuclear control applications, radioactive areas, or any applications that provide life support or any critical function necessary for the support or protection of life, property or business interests, unless expressly set forth herein or in applicable Goods documentation. Buyer assumes all responsibility and liability for the use of any Goods in any of the foregoing applications.

(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(c) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(d) The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) unless: (i) Buyer gives written notice of the defect, reasonably described to Seller within five business days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.

(e) The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.

(f) Subject to Section 11(d) and Section 11(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the Price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.

(g) THE REMEDIES SET FORTH IN SECTION 11(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(A).

(h) Unless otherwise agreed in writing or per email, the Warranty Period will be for a period of twelve (12) months from the date of delivery to the Buyer.

 

12. Limitation of Liability.

(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED ONE TIME THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER or $500.00, WHICHEVER IS LESS.

 

13. Compliance with Law.

Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

 

14. Termination.

In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

 

15. Waiver.

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

16. Confidential Information.

All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, Buyer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. A disclosure of Confidential Information by the Buyer in response to a valid court or governmental order shall not be considered a breach of the Agreement or a waiver of confidentiality for other purposes; provided, however, the Buyer shall give the Seller prior written notice of such order and shall provide reasonable assistance so as to afford the Seller the opportunity to object or obtain a suitable protective order.

 

17. Force Majeure.

The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic and pandemic lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

18. Assignment.

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

 

19. Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

20. No Third-Party Beneficiaries.

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

 

21. Governing Law.

All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.

 

22. Submission to Jurisdiction.

Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Stuart and County of Martin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

 

23. Notices.

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing or per email and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing or per email.

 

24. Severability.

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

25. Survival.

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.

 

26. Standard Product.

“Standard Products” are defined as Products that meet Seller’s published description and specifications. Standard Products may contain Seller’s then current version of standard firmware in effect at the time the order is placed. None of the following are considered Standard Products: cards, tags, keys, and transponders. For additional description of items that are outside of the scope of Standard Products, please see the definition of “Custom Products,” below. Buyer may submit changes and cancellations to orders for Standard Product at no additional cost to Buyer within twenty-four (24) hours of Seller’s confirmation of Buyer’s order. Thereafter, order changes shall be subject to a surcharge of ten percent (10%) of the then current chargeable amount for the affected portion of the order; and order cancellations shall be subject to a surcharge of thirty percent (30%) of the then current chargeable amount for the affected portion of the order. Acceptance of any changes or cancellations and the imposition of any of the aforementioned surcharges shall be at Seller’s sole discretion.

 

27. Custom Products.

“Custom Products” are defined as (a) pre-programmed card readers (b) preprogrammed cards, tags, keys, and transponders, (c) card readers, cards, tags, keys and transponders with custom marking and/or printing, and (d) any Product subject to custom-engineering or modification. By way of example only, custom-engineering or modification may include, but are not limited to, such things as custom firmware, Product housings that are not Seller’s published standard colors or sizes, and changes made to a Product when it is received by Reseller, including changes to housings, programming, and operating parameters. ORDERS FOR CUSTOM PRODUCTS ARE NON-CHANGEABLE AND NON-CANCELABLE. ORDERS FOR CARDS OR OTHER CREDENTIALS PLACED BY BUYER ARE NON-CHANGEABLE AND NON-CANCELABLE. Custom Products require a signed approval of the Product specification by both Seller and Buyer, a formal quotation from the Seller, a purchase order by Buyer, and an order acceptance by Seller.

 

28. Availability and Design.

Seller reserves the right to discontinue the manufacturing of any of the Goods, to make changes in the design of Goods, or to make modifications to the Goods at any time that do not affect the form, fit or function of the Goods without prior notice to Buyer. In any such event, Seller will not be required to change Goods previously sold to Buyer. No part of this Section will be deemed to affect any Buyer orders that have been previously accepted by Seller.

 

29. Ownership.

Seller and its licensors retain all right, title and interest in any software product, firmware, documentation and any Seller trademarks made available to Buyer under this Agreement; all translations and derivatives works of the foregoing; and all Seller intellectual property rights embodied in or relating to the foregoing as well as all Seller intellectual property rights embodied in or relating to the Seller hardware. All software is licensed, not sold. No right or license is granted to Buyer except as expressly set forth herein and Seller hereby reserves all rights not expressly granted to Buyer in this Agreement. Buyer shall take no action that might impair in any way any right, title, or interest of Seller in or to the software, firmware, documentation or trademarks or other Seller intellectual property or confidential information made available to Buyer. Buyer agrees to maintain the copyright, trademark and other notices that appear on the Seller items and associated media.

 

30. Third Party Technologies.

The Goods may include or be bundled with other technology or software programs licensed under different terms and/or licensed by a vendor other than Seller. Use of any software programs accompanied by a separate license agreement is governed by that separate license agreement. Any third-party software that may be provided with the Goods is included for use at Buyer’s option. Seller is not responsible for any third party’s software and shall have no liability for Buyer’s use of third-party software. Goods that include third party technology may be subject to use restrictions as notified by Seller. Buyer acknowledges actual notice of any such restrictions and agrees to use and sell such Goods and otherwise operate Buyer’s business in accordance with such restrictions. Buyer will also indemnify and hold Seller harmless from any claim, demand, cause of action or damage for which Seller might become liable, arising from or in connection with Buyer’s use of such Goods or otherwise not in compliance with such restrictions.

 

31. Press Releases.

Any and all press releases and other public announcements relating to the existence or terms of this Agreement or the underlying transactions between the Parties, or referring to the other Party in relation to this Agreement, including the method and timing of such announcements, must be approved in advance by the Parties in writing.

 

32. Independent Contractor.

Nothing in this Agreement is intended to create a partnership, franchise, joint venture or agency, or a fiduciary or employment relationship. Neither Party may bind the other Party. Except as otherwise set forth herein, each Party shall bear its own costs and expenses in performing this Agreement.

 

33. Services.

If Buyer is purchasing any services from Seller (the “Services”), either directly or indirectly through Seller’s sales channel, unless Buyer and Seller have signed a written agreement to the contrary, the following terms shall apply to those Services. Seller provides for a limited warranty that all Services will be performed in a professional manner consistent with generally accepted industry standards. If there is a breach of the foregoing limited warranty, Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive liability, will be to re-perform the Services at no additional charge to Buyer. For the avoidance of doubt, the limitation and exclusions of liability in Section 12 above shall also apply to any Services. If any inventions, technology, developments or other work product (collectively, “Work Product”) result from the Services, Seller shall own all right, title and interest in and to such Work Product. All Work Product and Services shall be deemed accepted upon delivery or completion of the Services, as applicable.

2.1 Our quotations are subject to confirmation.

2.2 A contract is concluded exclusively by our confirmation of order, either in writing or some other form of text message. The confirmation of order contains our supply obligations and determines the nature of the contractual products (hereinafter the "Goods") to be supplied. The product descriptions and data of our respective valid sales catalogue at the time of conclusion of the contract are intended to inform the Customer generally about the products and services described. They are only then considered to contain a promise of quality if the respective item number of the catalogue is listed in the order confirmation and referred to respectively. Promotional material and publications contain no promise of quality and are neither a part of the contract nor the basis for a transaction.

2.3 Promises and guarantees can only be agreed with the Customer outside the order confirmation in order for them to be effective in separate written form.

2.4 ELATEC is entitled to use sub-contractors for the performance of its contractual duties without prior approval of the Customer. Having its obligations performed by sub-contractors shall not relieve ELATEC from the duty to adhere to its contractual obligations.

3.1 The time of delivery shall be deemed to be agreed approximately. It shall only be deemed as a fixed date when this is expressly described as such.

3.2 If ELATEC is hindered or impeded in fulfilling its contractual duties by the occurrence of unforeseen circumstances outside of the control of ELATEC, e. g. a breakdown, measures undertaken by authorities, embargo, risk of war, force majeure or strike, then the delivery time shall be prolonged by the duration of the impediment, plus a reasonable extension for resuming the delivery or service. If the listed circumstances make the delivery or service impossible, ELATEC is no longer obligated to honor the delivery commitment. The contractual duties of ELATEC are subject to a correct and timely self-equipment of ELATEC with products and supplies required for the performance of ELATEC, provided that ELATEC has properly concluded contracts on such products and supplies, and the defective or delayed provision of such products and supplies is not attributable to ELATEC.

3.3 Shipment of the Goods to another location than the premises of ELATEC is always performed on behalf and on request of the Customer. The risk for respective deliveries passes to the Customer with dispatch of the Goods from the point of delivery Puchheim/Germany and transfer to the forwarding agent/freight carrier. All deliveries are made EX WORKS according to Incoterms 2010, unless otherwise agreed with the Customer.

3.4 Costs for packaging/shipping and handling shall be borne by the Customer. ELATEC shall be entitled to determine how the Goods are shipped in its reasonable discretion. Potential duties to be paid shall be borne by the Customer.

3.5 If possible, everything is delivered in one shipment. Partial deliveries and partial performance are possible and permitted. Additional costs will be borne by ELATEC. Partial deliveries and partial performance can be charged by ELATEC together with the delivery.

4.1 Upon taking possession, the Customer shall immediately
(a) check quantities and packaging and record any objections thereto; and
(b) conduct quality checks on a spot check basis and, for such purpose, open the packaging (cartons, bags, tins, foils etc.) to check the quality of the Goods to be sold.

4.2 In case of a notice of defect the Customer shall comply with the following procedure and deadlines: The notification shall be made no later than five (5) working days after the date on which possession of the Goods has been taken. In the event of an objection to a hidden defect which, despite a first inspection in accordance with Section 4.1 above, remained undiscovered, a different deadline regime shall apply. In such case the objection must be raised within the five working days after the defect has been discovered. For keeping these deadlines, the sending of this objection in the time frame of the deadline is sufficient.

4.3 The detailed notice shall be delivered to ELATEC in writing. The notice must clearly specify the kind and amount of the alleged defect.

4.4 The Customer agrees to make available for inspection the objected Goods at the place of inspection; such inspections may be done by ELATEC or any other expert ELATEC may have designated.

4.5 Any Good to which objections shall not have been raised in accordance with the procedures and deadlines set out above shall be regarded as approved and accepted.

5.1 With the exception of defective Goods, ELATEC only accepts the return of products if this has been expressly agreed and confirmed by ELATEC. Such deliveries have to be prepaid by the Customer; otherwise, they will not be accepted.

5.2 With the exception of defective Goods, the return of the Goods presupposes that we are notified of the batch number with the delivery note and that the product is returned in the undamaged original packaging, as we distribute products to our Customers.

5.3 For each product return, customer shall obtain an RMA number (Goods Return Authorization number) from ELATEC, which is to be indicated on the package in the case of returning.

6.1 In general, ELATEC will issue invoices together with the delivery of the Goods or after performance of its services. ELATEC reserves the right to request pre-payments or perform deliveries and/or services on the basis of cash on delivery or a direct debiting scheme.

6.2 Invoices must be paid without any deduction in Euro currency. Exchange rates apply on the invoice issue date.

6.3 Prices of ELATEC do not include Value Added Tax (VAT) that may be applicable to the transaction.

6.4 If payments of the Customer are delayed, ELATEC shall, notwithstanding his other rights, have the right to claim interest payments of 9 percentage points over the current Base Lending Rate. The right of ELATEC to prove exceeding damages shall not be excluded.

6.5 In the absence of any express prior agreement to the contrary, ELATEC shall not be obligated to accept for payment any draft, cheque or other instrument. The costs for discounting and collection of such instruments shall be borne by the Customer. All such means of payment are accepted only conditionally pending receipt of the funds by the Supplier.

7.1 The Customer is only entitled to withhold payments on the basis of claims that are undisputed by ELATEC, or claims that have been held to be valid by a court of final jurisdiction.

7.2 ELATEC may offset on the basis of any claim which ELATEC may have against the Customer, irrespective of whether or not such payments are due and payable at that date.

8.1 ELATEC shall retain full title of any delivered Goods until the Customer has discharged all claims arising from the business relationship with ELATEC. In case of breach of contract by including, without limitation, default in payment, ELATEC is entitled to take possession of the Goods.

8.2 The Customer shall have the right to dispose of the Goods within the ordinary course of business. ELATEC may withdraw the sales authority of the Customer through a written notice if the Customer is in breach of any obligation owed to ELATEC in particular in payment default or if ELATEC shall become aware of other incidents that give rise to doubts about the creditworthiness of the Customer.

8.3 The Customer's right to process the Goods delivered shall also be subject to the limitations set out in 8.2 above. The Customer shall not acquire title to the fully or partly processed Goods; the processing shall be free of charge for ELATEC's benefit as manufacturer in the sense of Section 950 of the German Civil Code. If ELATEC should, for whatever reason, lose its right under the retention of title, then it is hereby agreed between the Parties that ELATEC shall acquire title upon processing of the Goods and the Customer shall remain custodian of the Goods which shall be free of charge.

8.4 If the Goods in which ELATEC has retained title are inseparably assembled or mixed with the Goods that are third party property, then ELATEC shall acquire co-title in the new Goods or the mixed stock. The proportion of title shall follow from the proportion of the invoice value of the Goods sold under retention of title and the invoice value of the other Goods.

8.5 The Goods in which ELATEC shall acquire sole or co-title in accordance with Subsection 8.3 and 8.4 shall, the same as with regard to the Goods delivered under retention of title according to Subsection 8.1 above, be regarded as Goods delivered under retention of title for the purpose of the following paragraphs.

8.6 The Customer hereby assigns to ELATEC all claims arising from the resale of the Goods delivered under retention of title. Such claims shall also include claims against the bank which, within the scope of such sale, shall have issued or confirmed a letter of credit for the benefit of the Customer. ELATEC hereby accepts such assignment. If the Goods delivered under retention of title shall be considered as processed Goods or mixed stock, where, in addition to the Goods under this Agreement, only such Goods exist that are either the Customer's property or a third party property as a result of a (simple) retention of title, then the Customer shall assign all of the claims arising from the resale. In the other case, i.e. in the event of a conflict between pre-assignment claims by other suppliers, ELATEC shall be entitled to receive a resale proceeds on a pro rata basis which shall be determined in proportion to the invoice value of the Goods and the other processed or mixed Goods.

8.7 Where ELATEC's claim shall be undoubtedly secured through the assignment and retention by more than 125 %, any surplus of receivables and/or Goods delivered under retention of title shall, upon demand of the Customer, be released.

8.8 The Customer shall be authorised to collect any receivables arising from the resale of the Goods. Such authority shall cease to exist in the event that there shall no longer be an ordinary course of business of the Customer. Moreover, ELATEC may withdraw the Customer's authority to collect, if the Customer is in breach of any obligation owed to ELATEC, in particular in case of payment default; or in case ELATEC becomes aware of other incidents which give rise to doubts about the Customer's creditworthiness. If the above authority shall cease to exist or be withdrawn by ELATEC, then the Customer shall upon ELATEC's demand immediately specify to ELATEC its debtors in the claims assigned and provide ELATEC with all information and documentation necessary for the collection of the receivables.

8.9 In the event of any third party action against ELATEC's Goods under retention of title or any receivables assigned to ELATEC, the Customer shall notify such third party of ELATEC's property/or right and immediately inform ELATEC about such action. The Customer shall bear the costs of any intervention.

8.10 If the Customer shall be in a breach of contract, in particular in payment default, then it shall, upon ELATEC's demand, immediately return to ELATEC all Goods transferred under retention of title and assign to ELATEC any repossession claims against any third party in conjunction with such Goods. Any repossession or enforcement proceedings with regard to the Goods delivered under retention of title shall not be regarded as a rescission of this Agreement.

8.11 In the event that there shall no longer be an ordinary course of business of the Customer, ELATEC may require the Customer, to inform ELATEC about the claims arising from the resale that have been assigned to ELATEC in accordance with Section 8.6 above including its debtors. Following such information, ELATEC shall have the right to disclose the assignment as ELATEC considers appropriate.

9.1 In case of defective performance, breach of duty and/or material defects the Customer grants ELATEC the right to remedy this by replacement free of charge or by remedying the defect in any other way within an appropriate deadline. The Customer has the right to object against the chosen remedy for good cause. For clarification, the remedy does not include the removal of the defective Good or the re-installation if we were originally not obliged to install.

9.2 Unless otherwise agreed, the warranty period for all goods delivered by ELATEC shall be twelve (12) months.

10.1 ELATEC shall only be liable for damages – regardless of their legal basis – if ELATEC has caused any damage as a result of an intentional or grossly negligent act or if ELATEC has negligently breached a material contractual obligation („cardinal obligation"). Cardinal obligations are those obligations that are deemed to be substantial to the contract, upon the observance of which the Customer has generally relied and may have relied and which are deemed to be prerequisites for proper performance of the contract. For intentional and grossly negligent breaches, ELATEC's liability shall be unlimited. In the event that ELATEC is in breach of any cardinal obligations, and such breach has not been committed intentionally or with gross negligence, ELATEC shall only be liable for the damage related to and typically foreseeable under the particular contract at the time of entering into the contract. ELATEC shall not be liable for any damages caused as a result of a simple negligent breach of a non-material contractual obligation.

10.2 The Parties are in agreement that the typically foreseeable damage does not exceed the amount of fees paid by the Customer to ELATEC under this agreement, unless the Customer informed ELATEC on a higher damage risk prior to performance.

10.3 The liability limitation contained in Section 10.1,10.2 shall not apply claims of Customer because of damage to life, person, or health; nor shall it apply for claims under a guarantee of ELATEC or claims based on intentional breach or on the German Product Liability Act.

10.4 Any person making claims under this contract shall without delay inform ELATEC in writing about any potential damage for which ELATEC could be liable. If claims for damages against ELATEC are excluded or limited, this shall extend to any personal liability of any statutory organs, employees, vicarious agents or any other auxiliary personnel of ELATEC.

10.5 Any damage claims of the Customer shall become time-barred after one (1) year after occurrence of the event causing the damage.

11.1 Any cancelation request of confirmed orders needs to have the written approval from ELATEC, which will only be given in exceptional cases.

11.2 In case of approved cancelation the Customer has to cover the necessary cancelation cost.

11.3 In case of approved cancelation for the below mentioned products the costs to be borne by the Customer are based on the described calculation.
The cancelation time mentioned within this calculation is the difference between the actual from ELATEC confirmed delivery time (week) and the Calendar week when ELATEC received the cancelation requirement from the Customer.
The described cancelation procedure is applicable only for the product groups mentioned below.
Controller/Peripherie, Dev. Tools, PC-Boards/Module
Cancelation fee in % of the time week buying price

0 – 10 100 %
10 – 14 70 %
14 – 20 35 %
20 or more 0 %

For all other cancelation request a special settlement is necessary.

ELATEC collects the Customer's data in conjunction with the execution of the contract. ELATEC hereby complies with the provisions of the applicable data protection statutes, in particular the German Federal Data Protection Act (Bundesdatenschutzgesetz) and the General Data Protection Regulation (GDPR) applicable at any time.

The Customer shall be obliged to fulfill cooperation duties vis-à-vis ELATEC which may be reasonably required for ELATEC in order to properly perform its duties vis-à-vis the Customer. ELATEC shall inform the Customer about such cooperation duties in a timely manner.

14.1 The laws of the Federal Republic of Germany shall apply to all contracts between ELATEC and the Customer, to the exclusion of the UN Convention on the International Sale of Goods (CISG).

14.2 If the Customer is registered trader, a legal person under public law or a public law Special Fund, the competent court with jurisdiction all disputes arising from the contractual relations between the Customer and ELATEC shall be the regional court in Munich (Landgericht München I).

14.3 Should provisions of the contract between ELATEC and the Customer be or become invalid this shall not affect the validity of the remaining provisions of the contract. In place of the invalid provision, the parties shall endeavour to agree a valid provision which comes closest to what was originally commercially intended. If agreement cannot be reached, the relevant statutory provisions shall apply.

14.4 In the case of export of ELATEC's products – unless otherwise agreed – ELATEC shall not be liable for the exportability, the requirement of state approval, or any foreign trade regulations of the intended export country, except for cases of intentional breach or gross negligence on behalf of ELATEC. The need to comply with the national regulations of the respective export country shall be subject to the scrutiny and the responsibility of the Customer. Potential applicable duties for the export of the goods shall be borne by the Customer.

14.5 The laws of the Federal Republic of Germany shall apply for orders and deliveries between us and foreign Customers (UN commercial law, subsidiary to national law) for all business relationships, regardless upon which legal foundation they are based.

14.6 The place of fulfillment for deliveries and payments shall be Puchheim/Federal Republic of Germany.

Elatec GmbH
Zeppelinstr. 1
82178 Puchheim, Germany
Phone: +49 89 5529961 0
Fax: +49 89 5529961 129
E-mail: info-rfid@elatec.com
CEO: Gerhard Burits
COO: Paul Massey

Registration and VAT:
Commercial register: HRB 85529
VAT identification No.: DE129336743
WEEE No. DE81523527