Terms and Conditions of Sale
The following General Terms and Conditions of Sale (these "Terms and Conditions") shall govern all sales made by Entegris GmbH Germany, hereinafter referred to as "Entegris". These Terms and Conditions shall apply to the sale of the products, materials, components, goods, commodities, software, technology and any other items (the "Products") and/or services described in the Entegris Quotation, Sales Order, Invoice or other contract documentation to which these Terms and Conditions are attached or incorporated by reference. Except as expressly agreed by an authorized representative of Entegris in writing, no other terms and conditions, including any terms and conditions attached to, or contained within, Buyer's request for quotation, acknowledgment, purchase order or other contract documentation shall apply. Buyer's acceptance of the Products or services delivered by Entegris shall constitute an affirmation by Buyer that these Terms and Conditions govern the purchase and sale of the Products or services.
THESE TERMS AND CONDITIONS SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS PROPOSED BY BUYER OR CONTAINED ON BUYER'S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER.
2. Conclusion of the Contract
2.1 Entegris as referred hereto, is only bound by undertakings, made in writing and signed by a duly authorized representative of Entegris.
2.2 Unless otherwise agreed, Entegris quotations are valid within 30 calendar days as from the date as they are made. Orders are submitted to the written acceptance of Entegris, unless otherwise agreed. In case of any discrepancy between the order and the acceptance, the order acceptance given by Entegris shall prevail.
2.3 After being established, these Terms and Conditions may no longer be modified, except by a written agreement of both parties.
2.4 Once accepted by Entegris, no order may be cancelled. By exception, an order may be cancelled only before delivery of the Products, with the express agreement of Entegris and with the consent of the Buyer to indemnify Entegris for any loss incurred. Products built to order are subject to cancellation under no circumstances.
2.5 Entegris reserves the right, among other remedies, either to terminate or suspend further deliveries under these Terms and Conditions in the event Buyer fails to pay for any shipment or release when the same is due in accordance with Entegris' invoice.
3. Description of the Products
The specifications of Entegris Products, such as weights, prices, dimensions, capacities and other indication contained in the Entegris documentation represent only indicative values, and Entegris reserves right to change product specifications without prior notice, provided it does not restrict the function and the intended use of the Products.
4. Prices, Payment and Taxes
4.1 All prices are firm unless otherwise agreed to in writing. Entegris reserves the right to change the prices and specifications of its Products at any time without notice (however, agreed firm contracts and firm delivery obligations of Entegris with a Buyer remain unaffected, unless Entegris has reserved the right to change the prices and specifications of its Products for a specific reason in such contract). Unless otherwise agreed and specified, the price stated in the offers, quotations and invoices of Entegris are DDP (Delivered Duty Paid). Prices will be changed within the time if required to integrate delivery and duty costs effectively paid by Entegris.
4.2 Payment terms shall be net 30 days after shipment by Entegris. In the event that payment is not received within such 30-day period, any unpaid balance shall bear interest according to Section 288 (2) of the German Civil Code (9% above the base interest rate). The invoices issued by Entegris are payable by bank transfer, unless otherwise agreed in the confirmation order. All payments made by the Buyer shall be made without any deduction or deferment in respect of any disputes or claims whatsoever and/or in respect of any taxes imposed by or under the authority of any government or public authority.
4.3 In addition Entegris reserves the right to require prepaid payment terms from any Buyer whose account is overdue for a period of more than 60 days or who has an unsatisfactory credit or payment record. Entegris may also refuse to sell to any person until overdue accounts are paid in full. If doubts arise on the ability or the willingness of the Buyer to make payment because of a deterioration of its financial situation which occurs or become known afterwards, Entegris will be entitled to request prepayment (if the delivery has not yet been made) or immediate cash payment of the still outstanding claims or, if the Buyer does not fulfill this demand within an appropriate deadline established in writing, to withdraw from the contract.
4.4 The minimum order value amounts to 5OO €/$; ordering lower than this amount could affect a service charge of 50 €/$.
4.5 To take advantage of the tax exempt sales at the time of invoicing, the Purchaser must provide Entegris with the documents justifying such a tax exemption when he places the order; the late sending of such documents may not constitute an obstacle to the payment of the invoices on the due date, and any reimbursement of exonerated taxes and the accounting adjustments may only be made after receipt of such documents.
5. Delivery Conditions
5.1 Entegris reserves the right to make partial deliveries with corresponding partial invoicing. All partial deliveries will be separately invoiced by Entegris and shall be paid for when due by Buyer regardless of the timing of any subsequent delivery. Any delay in delivery of any partial installment shall not relieve Buyer of its obligation to accept remaining deliveries.
5.2 Entegris will make every effort to ship the Products within the delivery deadline but the delivery times specified in the contract do not constitute a firm commitment on the part of Entegris, which accepts no penalties for late delivery, unless expressly specified otherwise in the contract.
5.3 Entegris delivery times are quoted under the express reserve that its suppliers fulfill their obligations undertaken with respect to Entegris (subject to the right of self-delivery). If this is not the case or if unusual circumstances for which Entegris is not responsible occur, this will relieve Entegris from the obligation to deliver.
6. Shipment - Transfer of Risk & Ownership
6.1 Unless expressly specified otherwise in the order acceptance, all sales are deemed made "FCA". The term "FCA" will be interpreted in accordance with the INCOTERMS published by the International Chamber of Commerce and including, for each party, the obligations which fall to them under the terms of the said INCOTERMS.
6.2 Shipment will be organized as given in Entegris standard. In the case of regular shipment with orders inferior to 5000€, specific additional fees can be charged as determined in the quotations. In the case of express shipment and for all special shipment required by the Buyer, shipment costs will be charged on a case by case whatever is the order amount.
6.3 In case of other shipment conditions, all terms will be interpreted in accordance with the INCOTERMS published by the International Chamber of Commerce and including, for each party, the obligations which fall to them under the terms of the said INCOTERMS.
6.4 The transfer of title and risks for the Products sold are deemed to take place upon the occurrence of the following events: a) when the point of origin of the shipment is within the country of destination, upon the shipment of the Products from the Entegris facility; b) when the point of origin of the shipment is not within the country of destination, upon the arrival of the products at the Port of Entry of the destination country. Any and all claims for loss or damage to the Products in transit should be made directly to the carrier and not to Entegris. Any transfer of title is subject to a reservation of title as provided for in Clause 11.
7. Late collection
7.1 If for any reason whatever beyond the control of Entegris, the Buyer does not take delivery at the place and on the date specified in the contract, he will nevertheless be obliged to respect the contractual arrangements regarding payment, as if the Products had effectively been collected.
7.2 If three (3) months after the delivery date stipulated in the contract and eight (8) calendar days after the expiry date of an official notification by a registered letter left without remedy the Buyer has not taken delivery, Entegris will be in its rights, without having to obtain a court order for termination, to withdraw from the contract as far as the said Products are concerned. Any amounts due by the Buyer for Products already delivered will become payable immediately; furthermore, Entegris will have grounds for seeking full compensation for the loss that it has incurred.
8.1 Only unused Products in their original packaging (except to the extent that the Buyer needs to unpack in order to inspect the Products), which have been invoiced by Entegris within 30 days, may be returned. Products accepted for credit are subject to minimum re-storage costs of 25%. Moreover, all the transport costs (shipment to the client and return to Entegris) are payable by the Buyer.
8.2 Special Products (manufactured, built to order or modified according to the specifications of the Buyer) are not subject to return for credit in no case. The returned Products must be securely packed to reach Entegris undamaged.
9. Cancellation Prior to Shipment
In the event Buyer requests that an order for Products or services which it has placed with Entegris be cancelled prior to shipment, and with which request Entegris agrees, Buyer shall be liable to Entegris for all Products already manufactured at the time of notice of cancellation and all costs incurred by Entegris as a result of such cancellation, including but not limited to, cancellation costs to suppliers and un reimbursed advances on Products, if any, together with any specifically identifiable incidental and consequential expenses.
Unless otherwise agreed to in writing, Entegris reserves the right to make design changes which Entegris believes and by an objective standard will improve its Products. Entegris may also satisfy customer purchase orders by shipping 90-110% of ordered quantities for nonstandard Products depending on actual yield from such nonstandard Product runs. Entegris shall only charge Buyer for actual quantities shipped. The quantity shipped during any month may be limited by Entegris to either: (a) the average of the monthly quantities purchased by Buyer for the preceding month(s) or (b) the maximum quantity to be purchased divided by the number of months in the period of the contract documentation.
11. Reservation of Title
Entegris hereby reserves title to all Products delivered ("Secured Products") until all claims of Entegris against Buyer arising from the relevant delivery have been fully satisfied. If the total value of the security furnished to Entegris should exceed the value of all secured claims by more than 20%, Entegris shall release a proportional part of such security upon request. For the duration of the reservation of title, Buyer may not pledge or assign any Secured Products for security purposes, and further may resell such Products only in the ordinary course of business and under the condition that the Buyer receives payment from the purchaser or reserves title to the Products until all of the purchaser's payment obligations have been fully satisfied.
11.1 Buyer hereby assigns to Entegris for security purposes any and all future claims with all ancillary rights including all claims for a balance of account against purchasers arising from the resale of any Secured Products. The foregoing assignment shall be effective without any further actions or representations by Customer. If any Secured Products should be resold in conjunction with any other goods, then, if no separate price has been stipulated for the Secured Products, Buyer shall assign to Entegris a prior ranking claim for payment of that part of the total price which corresponds to the price of the Secured Products as invoiced by Entegris.
11.2 Provided that Entegris demonstrates a legitimate need, Buyer shall provide to Entegris all information and documents necessary for the assertion of Entegris' rights against the purchaser.
11.3 Until revoked, Buyer shall have the right to collect all assigned claims resulting from a resale of Secured Products. Entegris may revoke such right for good cause. Entegris further shall have the right, upon reasonable prior notice, to disclose the security assignment to third parties, to realize the assigned claims, and to demand that Buyer discloses the security assignment to its customers.
11.4 Buyer may process, transform or combine Secured Products with any other goods. Any processing, transformation or combination of Secured Products shall be made for and on behalf of Entegris. Buyer shall store the resulting products for Entegris with the care and diligence of a reasonable businessman. The resulting products shall be deemed Secured Products.
11.5 In the event of paragraph 11.4 hereof, Entegris shall acquire a co-ownership interest in the resulting products equal to the relative value of such Secured Products as of the time of processing, transformation or combination. Entegris and Buyer agree that in the event that Buyer should acquire exclusive title to the resulting products, Buyer shall assign to Entegris a co-ownership interest thereto equal to the relative value of the Secured Products as of the time of processing, transformation or connection.
11.6 Buyer hereby assigns to Entegris for security purposes all rights and claims accruing to Buyer from any resale of the Secured Products referred to under paragraph 11.4 (i.e. Secured Products that have been processed, transformed or combined by the Buyer and subsequently sold to a third party in accordance with paragraph 11.4). The foregoing assignment shall be effective without requiring any further action by Buyer. However, the foregoing assignment shall be limited to the value of the Secured Products processed, transformed or combined as invoiced by Entegris. In each case, the part of the claim assigned to Entegris hereunder shall be paid first. Paragraph 11.3 shall apply, mutatis mutandis, to the right to collect assigned claims and the revocation of such right.
11.7 Paragraph 11.4 hereof shall apply, mutatis mutandis, in the event of connection of any Secured Products to any personal or real property with respect to the claim to compensation for such connection.
The Buyer is required to carry out a meticulous inspection of the Products within as short a period as is practicable in the circumstances. In case of a lack of conformity or of the non completeness of the Products, Buyer must give notice thereof to Entegris within a maximum period of four (4) working days after receipt of the Products. In the absence of such notification within this period, the Products are deemed accepted by the Buyer. Entegris must be informed immediately of any later discovery of a latent defect.
The Products shall be covered by the applicable Entegris standard warranty. NO OTHER EXPRESS OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE PRODUCTS. ENTEGRIS EXPRESSLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Any model or sample furnished to the Buyer is merely illustrative of the general type and quality of goods and does not represent that the Products will conform to the model or sample. Buyer's remedies under Entegris' warranty shall be limited to repair or replacement of the Product or component thereof which failed to conform to Entegris' warranty.
14. LIMITATION OF LIABILITY
ENTEGRIS (INCLUDING ITS AFFILIATES AND SUBSIDIARIES) SHALL ONLY BE LIABLE FOR INTENT (VORSATZ) AND GROSS NEGLIGENCE (GROBE FAHRLÄSSIGKEIT). ENTEGRIS SHALL ALSO BE LIABLE FOR SLIGHT NEGLIGENCE (LEICHTE FAHRLÄSSIGKEIT) IN CASE OF (A) DAMAGES ARISING FROM INJURY TO LIFE, BODY OR HEALTH (B) DAMAGES ARISING FROM THE VIOLATION OF ESSENTIAL CONTRACTUAL OBLIGATIONS (A DUTY WHOSE PERFORMANCE IS BASIS FOR THE PROPER EXECUTION OF THE AGREEMENT AND ON WHOSE ABIDANCE THE CONTRACTUAL PARTNER HAS RELIED ON REGULARLY AND MAY RELY ON) LIMITED TO DAMAGES THAT TYPICALLY CAN OCCUR IN CONNECTION WITH THE AGREEMENT AND THAT WERE FORESEEABLE IN ITS NATURE AND EXTENT FOR THE BUYER, UNLESS ONE OF THE OTHER CASES LISTED IN THIS CLAUSE APPLIES OR (C) TO LIABILITY PURSUANT TO THE GERMAN PRODUCT LIABILITY ACT (PRODUKTHAFTUNGSGESETZ).
15. Technical Advice
Entegris may, at Buyer's request, furnish technical assistance, advice and information with respect to the Products, if and to the extent that such advice, assistance and information is conveniently available. It is expressly agreed that there is no obligation to provide such information which is provided without charge at the Buyer's risk, and which is provided subject to the disclaimers set forth in paragraph 13.
16. Agents, etc.
No agent, employee or other representative has the right to modify or expand Entegris' standard warranty applicable to the Product(s) or to make any representations as to the Product(s) other than those set forth in Entegris' Product literature and any such affirmation, representation or warranty, if made, should not be relied upon by Buyer and shall not form a part of these Terms and Conditions.
Buyer acknowledges that Products sold by Entegris under these Terms and Conditions may be subject to U.S. and international export control laws and regulations, including without limitation, the Export Administration Regulations, 15 C.F.R. Parts 730 to 774; the International Traffic in Arms Regulations, 22 C.F.R. Parts 120 to 130; and the Foreign Assets Control Regulations codified at 31 C.F.R. Chapter V. Buyer agrees that it will not transfer, export or reexport the Products sold hereunder except in compliance with all applicable export laws and regulations. Each party shall obtain, at its own expense, licenses, export and import documents, and other approvals as are necessary for each party to fulfill its obligations under these Terms and Conditions. As appropriate, Entegris may inform Buyer of applicable export license terms and conditions; Buyer agrees to abide by such terms and conditions. Entegris may terminate, cancel or otherwise be excused from performing any obligations it may have under these Terms and Conditions if (1) an export license or other approval required to be obtained by Entegris is not approved by the a federal government, (2) an existing license or approval is revoked for any reason by a federal government, and/or (3) a federal government changes the applicable export control laws or regulations thereby making it impermissible for Entegris to provide the subject items.
18. Equal Employment Opportunity
Entegris is an Equal Opportunity Employer. It does not discriminate in any phase of the employment process against any person because of race, color, creed, religion, national origin, sex, age, veteran or handicapped status. The Entegris Equal Opportunity Certificate, which is mailed annually to all vendors and vendees, is incorporated into these Terms and Conditions by reference.
19. Modifications, Waiver, Termination
These Terms and Conditions may be modified, and any breach hereunder may be waived, only by a writing signed by the party against whom enforcement thereof is sought.
20. Force Majeure
In the event of a case of Force Majeure or of circumstances that occurred beyond the control of the parties (in particular general strike, fire, labour conflicts, riots, war, lack of means of transport, general lack of supplies, i.e. unavailability of materials, embargo, mobilisation, natural disaster), constituting an obstacle to or rendering unreasonably costly the performance of the obligations imposed by the contract, the time allowed for the fulfillment of these obligations will be extended by the duration of the said events and these obligations must be performed as the said events cease. If the performance of the obligations can no longer be fulfilled due to Force Majeure the parties shall be excused from their obligations.
21. Reusable Containers
Where reusable cylinders, ampoules, diptubes and/or other containers (collectively, "reusable containers") are delivered to Buyer: (i) title to such reusable containers shall at all times remain with Entegris together with title to residue in a de minimis amount acceptable to Entegris in Entegris' absolute discretion; (ii) risk of loss of such reusable container shall pass from Entegris to Buyer at the time of delivery to Buyer, Buyer's carrier or Buyer's logistic provider and shall pass back from Buyer to Entegris when such reusable containers are delivered to Entegris or Entegris' carrier; and (Hi) such reusable containers are loaned to Buyer (and not sold) subject to these Terms and Conditions unless otherwise expressly stated with respect to such reusable containers on the face of Entegris' quotation and acknowledgement in accordance with Entegris' customary practice of indicating "-S". Until such reusable containers are delivered to Entegris or Entegris' carrier, Buyer shall be conclusively presumed to have possession of such reusable containers. Buyer shall not, without the prior written consent of an authorized representative of Entegris: (a) encumber, pledge, assign or otherwise transfer possession or control of (or permit any of the foregoing to occur to) any of the reusable containers; (b) fill, refill, modify, alter, repair, disable, clean, refurbish, inspect for any purpose other than determination of nonconformity or permit any third party to access the reusable containers; or (d) use such reusable containers (I) with any material other than the Entegris Products shipped therein or as refilled in accordance with Entegris prior written instructions and consent, (II) for any application, process or other purpose other than that advertised and authorized by Entegris, or (III) for any business other than Buyer's business. Buyer shall return all such reusable containers within one hundred eighty (180) days of the date of delivery of such reusable containers and Entegris may charge Buyer a demurrage charge as specified on Entegris quotation to Buyer or, if no charge is specified on Entegris quotation, a reasonable per diem demurrage charge, for all reusable containers not returned to Entegris after such 180 day period. After 365 days, Entegris may presume such reusable containers are lost and may invoice Buyer the replacement price existing at the time of invoice for such reusable containers. Entegris or Entegris' designee shall maintain written records regarding type, quantity, and location of all reasonable containers loaned to Buyer, and such records shall be conclusive absent manifest error. Buyer hereby authorizes Entegris to file, and shall cooperate with Entegris to file, any and all necessary precautionary financing statements to reflect Entegris ownership of the reusable containers.
22. Confidentiality and Intellectual Property
22.1 Any order received by Entegris will be treated as confidential and will not be disclosed or publicized to any third party for any reason without the prior written consent of Buyer. Neither shall Entegris use Buyer's name or other identity for advertising or publicity purposes without Buyer's prior written consent.
22.2 Buyer acknowledges that the Products, components of the Products, and methods of making and using the Products are protected by intellectual property rights owned by Entegris. Entegris is and shall remain the sole and exclusive owner of any software and any intellectual property incorporated into or embodied in the Products at all times.
22.3 The Products are offered for sale and sold by Entegris hereunder expressly subject to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any intellectual property rights of Entegris with respect to any invention of Entegris or any third party, patented or not patented, embodied in Entegris' Products, processes, sales literature or manufacturing operations; except that Entegris hereby grants to Buyer, under Entegris' intellectual property rights, a limited, non-exclusive, non-transferable, non-sublicensable, nonassignable license to use such Entegris intellectual property solely as necessary to use the Products in Buyer's business. Entegris expressly reserves all of its rights under such intellectual property rights, and no manufacture to Buyer's specifications grants any ownership by or conveyance to Buyer of or to any property right in any invention of Entegris.
22.4 Buyer shall not attempt to reverse engineer or otherwise discover Entegris' intellectual property, patentable, patented or non-patented inventions, trade secrets, secret processes or other confidential information embodied or contained in Entegris' Products.
23. Tool Ownership
All tools, dies and patterns produced by or at the request of Entegris, or otherwise utilized by Entegris in the production of any Products sold to Buyer, shall remain the exclusive property of Entegris. Entegris reserves the right to advertise and/or sell any of the foregoing items and any of its Products produced therewith, unless otherwise specifically agreed to in writing by an authorized representative of Entegris.
24. Applicable Law, Place of Jurisdiction
24.1 These Terms and Conditions shall be governed by German law.
24.2 Provided that the contractual partner of the user are merchants, legal persons under public law, or special assets (Sondervermögen) under public law, for all disputes arising from the contractual relationship the action shall be filed with the court having jurisdiction at the registered office of Entegris.
25. General Provisions
25.1 The failure of Entegris to enforce at any time any of the provisions of these Terms and Conditions, to exercise any election or option provided herein, or to require at any time performance by Buyer of any of the provisions herewith shall in no way be construed to be a waiver of any such provisions, or the right of Entegris thereafter to enforce each and every such provision.
25.2 The above conditions and the additional agreements reached on the conclusion of the contract are complete and replace all earlier written or spoken agreements.
25.3 Buyer warrants that it has not offered or given and will not offer or give to any employee, agent or representative of Entegris any gratuity with a view toward influencing such person with respect to these Terms and Conditions or any contracts with Entegris.
25.4 Entegris and Buyer are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other.
25.5 If any provision of this Agreement is found to be illegal or unenforceable, such provision shall be deemed not to be a part of this Agreement. The Agreement shall continue in full force and effect, but shall be interpreted to give effect to the extent feasible to the original written intent of the parties.
25.6 The terms and provisions of these Terms and Conditions which by their nature are required to survive the expiration or earlier termination of these Terms and Conditions shall survive such termination or earlier termination.
25.7 The original text of the Entegris Terms and Conditions of Sale is drawn up in English. In case of being translated, the English text shall prevail.