- GENERAL APPLICABILITY
- These General Conditions of Sale shall be applicable to all sales documents, offers, agreements, quotations, Order Confirmations, invoices, payment reminders and deliveries by Dorot Management Control Valves Ltd. (“Seller”) to the Buyer detailed in the Purchase Order (“Buyer”), constituting an integral part of the Agreement. Each of Seller and Buyer in the Agreement, a “Party” and collectively “Parties”.
- Any conditions submitted, proposed or stipulated by Buyer in whatever form, whether written or oral, whether submitted in a later document or contained in any Purchase Order, offer, acceptance or counter offer made by Buyer are hereby expressly waived and excluded, unless agreed to by the Seller in writing.
- In this Agreement, headings are for ease of reference only and shall not affect construction.
Capitalized terms used throughout the Agreement, shall have the respective meanings set forth below:
“Agreement”: These General Conditions of Sale, and any Order Confirmations, written sales, distribution or other agreements, duly executed by authorized representatives of the Seller, offers, quotations, invoices, payment reminders, written technical specifications, written manuals, written commercial terms and deliveries issued and delivered by Seller. Documentation delivered by Buyer shall constitute a part of the Agreement to the extent they are confirmed and agreed to in writing by authorized representatives of Seller.
“Incoterms”: the most updated version of the terms and conditions, published by the International Chamber of Commerce as INCOTERMS.
“Order Confirmation”: a written confirmation issued by Seller to Buyer as a response to a Purchase Order confirming the Products to be supplied by Seller, including quantities, price, delivery terms and payment terms.
“Products”: any product sold by Seller under Seller's products specifications.
“Purchase Order”: an order issued by Buyer for the supply of Products by the Seller, including quantities and requested dates of delivery, however, subject to Seller’s Order Confirmation.
3.ESTABLISHMENT OF THE AGREEMENT
- Any Purchase Order made by Buyer and any offer or quotation made by Seller shall bind Seller only after the issue by Seller of an Order Confirmation.
- The Buyer acknowledges that the Products have been ordered and manufactured specially in accordance with Buyer’s requirements, needs or specifications. Therefore, Purchase Orders are irrevocable and may not be terminated by Buyer, upon execution by Seller of the Order Confirmation, and without limiting the foregoing, Products supplied to Buyer in accordance with the applicable Purchase Order, cannot be returned to Seller. Buyer acknowledges that any purported cancellation of any Purchase Order or delivery thereof, or breach of this Agreement, may cause the Seller extensive loss. The Buyer agrees to compensate and indemnify the Seller for such loss, including without limitation loss of profits.
- The prices of the Products shall be as specified in the Order Confirmation. The prices do not include the costs of shipment and insurance, which shall be added thereto.
- Prices are exclusive of sales related taxes, which will be added, where applicable, at the appropriate rate including without limitation, value added tax, custom duties, taxes, fees, levies, excise tax and other compulsory payments, if any, shall be added to the Seller’s invoices and paid by Buyer in addition to the prices of the Products, unless otherwise explicitly specified in writing in the Seller’s Order Confirmation.
- Seller may change the prices by a 60 (sixty) days advance notice; the changes shall not apply to Order Confirmations outstanding on the date of such notice.
- Any purchase order less than US $500 will be charged of an additional US $30 (handling charge).
- Delivery terms are subject to and shall be interpreted in accordance with the terms of Incoterms.
- Except as otherwise specifically agreed in writing by the Seller and Buyer, the Seller will deliver the Products to the Buyer FCA Israeli Port. For the clarification of any doubt, seller will be responsible for the risk of damages to the Products until the place of delivery at a port or terminal in Israel, however, before downloading. The Buyer will be responsible for the risk of any damages to the Products from downloading (inclusive) at the Israeli port of departure.
- The delivery dates are intended as estimates only.
- Seller may deliver the Products by installments and invoice Buyer for each such installment.
- Seller is only responsible for delivering the Products to the location specified in the Order Confirmation.
- Each delivery shall be considered as separate from other deliveries and the failure of any delivery shall not affect the Agreement as to others and shall not justify any setoff.
- If delivery is delayed as a result of Buyer's default or if Buyer declines or delays accepting delivery of Products for more than three days from the scheduled date of delivery, then in any such case Seller may (without prejudice to any other right or remedy available to it) do any of the following, at any time:
- terminate the Agreement in whole or any part thereof, at its discretion, by a 14 (fourteen) days prior written notice to Buyer, without prejudice to any other remedy to Seller, and Seller may sell the Products to any third party; and/or
- claim from Buyer any costs and expenses incurred by Seller as a result of such delay; and/or
Seller's rights under this Section shall not be prejudiced by the fact that any delivery has been effected after the stipulated time.
If Buyer's shipping instructions are delayed or provide for later delivery than the date set out in the Order Confirmation, Seller will store the Products for Buyer at Buyer's expense, however, without limiting Seller’s rights and remedies in the Agreement or pursuant to applicable law.
7.CHANGES AND IMPROVEMENTS
Seller may, from time to time, at Seller's sole discretion, improve or otherwise change the Products.
- Payment shall be as provided in the Order Confirmation and in accordance with the payment terms stated in the Order Confirmation and in the invoice.
- If any payment becomes overdue; or if before the fulfillment of this Agreement, Buyer shall suspend payment or give notice that it is about to suspend any payment; or commit an act of bankruptcy, whether voluntary or involuntary; or, being a company, shall be unable to pay its debts, either in fact or in law; or have an order made or pass a resolution for winding up or liquidation (other than for the purpose of reconstruction, merger or amalgamation); or have a receiver appointed; then, until payment in full thereof has been made or until Buyer has fulfilled all its obligations, Seller may (without prejudice to any other right or remedy available to it):
- Withhold future deliveries of Products to Buyer until such default has been cured or Buyer's financial responsibility has been established to Seller's satisfaction; and/or
- Require payment in advance as to current deliveries; and/or
- Require a payment guarantee by a parent or affiliate of Buyer, at Seller’s discretion and satisfaction; and/or
- Require the provision of a letter of credit or bank guarantee by an entity approved by Seller at its discretion and satisfaction; and/or
- Demand return from Buyer of any Products under the Agreement for which payment has not been made; and/or
- Cancel or terminate the Agreement, in full or in part, upon 10 (ten) calendar days advance written notice.
The Buyer shall be liable under the aforesaid circumstances for damages the Seller may suffer due to the above.
- Without prejudice to any other right or remedy available to it, any default by Buyer to make any payment shall entitle Seller to all of the following:
- Calculated as of the invoice date, an interest on the amount of default equal to the default interest used by Leumi Bank of Israel Ltd. at the time of default, compounded on a monthly basis; and
- Buyer shall reimburse all costs, including collection costs, incurred by Seller to recover all or part of claims from Buyer.
- In the event of default in any payment by Buyer, Seller retains the right to collect the Products without warning, notice of default, or legal intervention, such without prejudice to any Seller's other rights regarding such late payment.
- Buyer shall not be entitled to withhold payment, setoff or to deduct from the price invoiced to it including without limitation on the ground that it has a claim or set-off against Seller.
- The remedies contained in this Section are (where applicable) cumulative and shall be in addition to any other remedies available to Seller under applicable law.
9.RETENTION OF TITLE
Title to Products shall pass to Buyer once the purchase price is paid in full and risk of loss or damage to the Products shall pass to Buyer on delivery, in accordance with the provisions of these General Terms. Notwithstanding the aforesaid, it is clarified that Seller shall have no liability regarding the Products once they are delivered to Buyer, except as specified in the Warranties and Claims and Limitation of Liability clauses herein.
- Neither Party shall be liable in any respect for failure to perform hereunder, except with respect of payment, if hindered, delayed or prevented, directly or indirectly for a reason outside its reasonable control such as but not limited to, war, national emergency, terrorism, riot, inadequate transportation facilities, inability to secure materials, supplies, fuel or power, shortage or non- availability of raw materials, plant breakdown, fire, flood, windstorm, other natural causes, explosion, accident or other act of God, pandemic, epidemic, strike, lockout or other labor dispute, order or act of any government, whether foreign, national or local, whether valid or invalid, or any other cause of like or different kind (“Force Majeure Event”).
- If either Party is unable to perform its obligations hereunder due to a Force Majeure Event, or if either Party considers it likely that it may become so unable, then such Party shall as soon as reasonably practicable, notify the other of the estimated extent and duration of such inability. If the Force Majeure Event continues for a period exceeding 3 (three) months from the date of notification, then either Party may end the Agreement, in part or in full by registered letter and without legal intervention, without being liable for damages.
- Seller, during any period of shortage due to a Force Majeure Event, may allocate its available supply of Products among its internal requirements and its customers on whatever basis Seller may deem fair and practical.
- Any quantity of Products so affected shall be deducted from the total quantity purchased by Buyer.
- Seller shall not be required to procure Products from third parties to satisfy its obligations to Buyer hereunder during any period of shortage due to a Force Majeure Event.
- Notwithstanding anything to the contrary herein, (except as otherwise specifically agreed in writing by the Parties) Seller shall be entitled to unilaterally end the Agreement for any reason, with a 6 (six) month written notice.
- During this period of notice, the conditions stipulated in the Agreement shall remain in force without prejudice. Buyer shall not be entitled to any payment or compensation and shall have no right or claim whatsoever against Seller or anyone on his behalf in connection of the termination of this Agreement.
12.WARRANTIES AND CLAIMS
TO THE EXTENT PERMITTED BY LAW, ALL CONDITIONS, WARRANTIES OR OBLIGATIONS WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING SPECIFICALLY HOWEVER WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT OF ANY PATENT AND/OR COPYRIGHT AND/OR ANY OTHER INTELLECTUAL PROPERTY OF ANY THIRD PARTY RESULTING FROM BUYER’S USE OF ANY PRODUCTS OR SELLER’S INFORMATION, ARE EXCLUDED AND THE PROVISIONS OF THE AGREEMENT SHALL APPLY IN LIEU THEREOF.
- Seller warrants that, as of the date of the delivery by Seller, Products delivered in accordance with the Agreement meet the Seller's standard specifications for the Products or such other specifications as have been expressly agreed in writing between Seller and Buyer in the Order Confirmation; and the Products shall be delivered to the point of delivery set forth herein, free of defects in material and workmanship as customary in the applicable industry. Seller's warranties shall apply only to Products for which the purchase price was paid in full.
- Anything to the contrary notwithstanding, Seller's warranties, obligations and liability regarding any and all components, parts or raw materials used by Seller or additional products sold by Seller however manufactured by others is limited to the warranties, obligations and liability of such third parties' manufacturing such components, parts or raw materials.
- Subject to fulfillment of Buyer's obligations to inspect set forth in Section 13 below, Seller's warranties set forth herein shall extend for a period of 12 (twelve) months from the date of that relevant Product having left the Seller's premises, only regarding latent defects, and Seller shall not be liable for any defect, which can be reasonably discovered in Buyer’s inspection in accordance with Section 13 below. Without derogating from any other limitation set forth herein, at the elapse of such 12 (twelve) months, Seller shall have no liability towards Buyer unless otherwise specifically set forth in the Order Confirmation.
- Buyer undertakes to apply the necessary professional and legal standards of diligence and handle, store, use, install, operate and maintain the Products in strict accordance with required, customary or standard operating conditions, however, no less than Seller's instructions. If any claim is brought subject to the conditions mentioned above, Buyer must prove to the satisfaction of Seller that Buyer applied said standards and instructions.
- Notwithstanding anything to the contrary, Seller's warranties, obligations and liability hereunder shall not apply to damages in respect of Products not resulted from direct breach of Seller's warranties hereunder including without limitations as a result of normal wear and tear, accidents, misuse, acts or omissions of Buyer or customer or any third parties, as a result of forces of nature (including floods, fire, earthquake and such) or from animals (including rodents and insects) exposure to undue or extreme (natural or man-made) environment conditions, or improper storage, installation, application, maintenance or use of the products, repairs or alterations by anyone who is not explicitly authorized by Seller to perform such.
- This warranty is specifically made and limited to Buyer in respect of the Products delivered in accordance with the Agreement. No warranty is made to any other person, firm or company or customer, whether subsequent buyer or user, or to any bailee, licensee, assignee, employee, agent or otherwise.
- Buyer must determine for itself, by preliminary tests or otherwise, the suitability of the Products for Buyer's purpose.
13.INSPECTION AND COMPLAINTS
- Buyer shall inspect the Products and packing materials as quickly as possible and to the extent that reasonably and/or customarily can be expected of him. Defects noted by the Buyer in the Products and packing materials during this inspection shall be reported to Seller immediately, but in any case, at the latest within 10 (ten) days from delivery in accordance with this Agreement. To limit the damage, Buyer shall follow Seller's directions regarding the handling and storage of the Products and packing material.
- Buyer shall, in case of Defective Products, make sure that the whole consignment, in respect of which a claim will be lodged, remains available for inspection by Seller; in case only part of the consignment is available for inspection, the same will constitute a waiver by Buyer of any claim with respect to the other part of the consignment. The term “Defective Products” means Products which materially do not fulfil Seller’s warranties in Section 12 above subject to the limitations therein.
- Buyer's failure to give notice of any claim within 30 (thirty) days from the date of delivery in accordance with this Agreement, shall constitute a waiver by Buyer of all claims with respect thereto and the Products so delivered shall be deemed to be in all respects in compliance with the Agreement.
- LIMITATIONS OF LIABILITY
- Seller's sole liability and Buyer's exclusive remedy for any cause of action arising out of the sale, use, or non-delivery of the Products or under any warranty or any agreement including this Agreement, is expressly limited at Seller's option to (1) replacement of the Defective Product or part thereof with the same or a product with comparable functionality, or (2) repair any such Defect, or (3) payment not to exceed the invoiced purchase price of the Product for which remedy or damages are claimed. Notwithstanding anything to the contrary Buyer shall remove and re-install any replaced part or product at Buyer's expense and Buyer shall bear the costs and risks of transportation and return of products or parts to be replaced or repaired in accordance with Seller's prior written approval. Products and replaced part supplied under the warranty are warranted only for the remaining warranty period of the defective product.
- Return consignments of Products may only take place after prior written permission under conditions determined by Seller and in accordance with Seller’s instructions.
- Seller shall not be liable towards Buyer pursuant to any cause of action including without limitation contractual, tort, strict liability or indemnity for third parties’ claims, for any loss of profits, loss of production, indirect, or other special, incidental or consequential damages and in any event Seller’s total liability towards Buyer including by way of any indemnity shall not exceed 10% of the price of the Product(s) involved in the event giving rise to any cause of action by Buyer or any third party. In the event of any claim against Seller by any third party in connection with any Purchase Order or Products supplied to Buyer, exceeding Seller’s liability herein, Buyer shall indemnify Seller for all amounts in excess of the foregoing.
- Neither party excludes or limits its liability for fraud, death or personal injury arising from its negligence or any liability to the extent the same may not be excluded or limited as a matter of applicable law.
Subject to early termination in accordance with Section 11 above, either party may terminate the Agreement on 30 (thirty) days prior written notice to the other in the event the other party is in default of a material obligation hereunder; provided, that if during the 30 (thirty) day notice period the defaulting party cures its default (or takes steps to cure a default that is not capable of being cured in such 30 (thirty) day period), the termination notice shall not take effect. In addition, Seller may terminate this Agreement with immediate effect and without notice if: (a) Buyer becomes insolvent or if the normal conduct of Buyer’s business shall become substantially impaired by Buyer’s credit problems, (b) Buyer shall call any meeting of creditors or if a receiver or trustee shall be appointed for such party or its assets, or (c) if any petition, proceeding or action under any bankruptcy proceedings shall be filed or instituted by or against Buyer, and in the event such proceeding is filed against Buyer, such proceeding is not dismissed within 30 (thirty) days.
The Agreement shall be binding upon and inure to the benefit of the respective successors of the parties hereto, but it shall not be transferred or assigned by Buyer without the prior written consent of Seller, which consent shall not be unreasonably withheld; Seller shall have the right to assign the Agreement without Buyer’s consent.
Delay or failure by either Party in exercising any right hereunder, subject to the limitations set forth in Sections 12, 13 and 14 above, shall not constitute a waiver of that or any other right or subsequent right in this Agreement.
If any provision or part of a provision of the Agreement shall be, or be found by any authority, tribunal or court of competent jurisdiction to be, invalid or unenforceable, such validity or enforceability shall not affect the other provisions or parts of such provisions of the Agreement, all of which shall remain in full force and effect.
The Agreement, together with any documents expressly incorporated herein by reference (subject to Section 1 above), constitutes the entire Agreement between the Parties and supersedes any previous writing or understanding relating to the subject matter. No alteration of or addition to the Agreement shall be effected by the acknowledgment or acceptance by Seller of a Purchase Order, other acknowledgment, release or any other forms or conditions. Neither Party shall claim any modification, limitation or release from any of the terms or conditions contained herein except by mutual agreement to that effect, signed by both Seller and Buyer.
Buyer shall indemnify, defend and forever hold Seller and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from any and all fines, penalties, suits, actions, claims, liabilities, judgments, costs, and expenses (including attorneys' fees and expenses) resulting or arising from any of the following:
- Buyer's liability under law including Buyer's negligence or breach of this Agreement; or
- Buyer's use, sale, handling, storage, installation or disposal of the Products or any product or waste derived therefrom; or
- The transportation of the Products after delivery by Seller in accordance with the provisions of this Agreement.
- In the event of any claim against Seller by any third party in connection with any Purchase Order or Products supplied by Seller to Buyer, exceeding Seller’s liability herein, Buyer shall indemnify Seller for all amounts in excess of Seller’s limitation of liability in Section 14 above.
The foregoing indemnification shall apply, but shall not be limited to, injury to person (including death) or damage or harm to property or the environment. Buyer shall not be obligated to indemnify Seller for any fine, penalty, suit, action, claim, liability, judgment, cost, or expense to the extent solely and directly attributable to Seller's gross negligence or willful misconduct.
Notices by either Seller or Buyer shall be made in writing only by facsimile or similar electronic transmission, or by e-mail, effective at the time sent, with confirmation, or by registered letter addressed to the other Party at its address set forth below, and shall be considered given as of the time it is sent through the post postage prepaid. Notices to Seller shall be sent to the attention of its C.F.O and V.P Marketing and Sales.
In the event of any controversy or claim arising out of or relating to the Agreement, the Parties shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If they do not reach settlement within a period of 30 (thirty) days, then they hereby consent to the exclusive jurisdiction of the competent court in Tel-Aviv, Israel for any action in connection with the Agreement.
The Agreement shall be governed and construed in all respects in accordance with the laws of the State of Israel, without regard to the conflict of law provisions thereof.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE AGREEMENT SHALL NOT BE GOVERNED BY OR CONSTRUED IN ACCORDANCE WITH THE PROVISIONS OF THE UN CONVENTION FOR THE INTERNATIONAL SALE OF GOODS.