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SALE TERMS AND CONDITIONS
Last amended and in effect as of March 25th, 2021
These standard terms and conditions of sale (the "Terms and Conditions") constitute an integral part of HMount Ltd.'s., a company duly incorporated under the laws of the state of Israel, ("Supplier") purchase order form /quotation (the "Purchase Order") and apply to any sale of products sold by Supplier (the "Products") to the purchaser (the "Purchaser") following their effective date. The provisions of these Terms and Conditions shall prevail over any inconsistent or additional provisions, rights and obligations contained in any document related to these Terms and Conditions passing between the Parties hereto including any purchase order, acknowledgment, confirmation or notice.
Purchaser accepts the Terms and Conditions hereof. Supplier reserves the right, in its sole discretion, to modify these Terms and Conditions, at any time by posting the modified provisions at: HMount website https://hmounts.com, or by sending it by email, and Purchaser shall be responsible for reviewing and becoming familiar with any such modifications. Any modifications shall become effective immediately upon posting. Purchaser acknowledges that he/it has read and understood the Terms and Conditions, that these Terms and Conditions constitute a binding and enforceable legal contract between Supplier and Purchaser, and Purchaser agrees to be bound by them. IF PURCHASER DOES NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, HE/IT SHALL NOT PURCHASE THE PRODUCTS OF SUPPLIER.
Purchaser and Supplier shall hereinafter be referred to jointly as the "Parties," or singularly as a "Party".
1. SUPPLY; ORDERS AND DELIVERY
1.1 Supplier agrees to supply the Products specified in the Purchase Order, subject to the acceptance by Supplier of the Purchase Order and subject to the terms hereof. Supplier will have no obligation to deliver the Products to Purchaser until prior payment of the Advance Payment (as defined in Section 2.2 below) in full.
1.2 Purchaser shall order Products only by sending written Purchase Orders to Supplier. Each Purchase Order shall be subject to these Terms and Conditions and shall include (i) the Purchase Order number, (ii) the Product name and number of units of each type (by part number) of Products ordered, (iii) Product size and color, (iv) the Product Price of each item ordered, (v) the requested delivery date, which date shall be at least 90 (ninety) days prior to such desired date of delivery, (vi) the billing address, and (vii) the signature of (and the date of signing by) the Purchaser. Purchaser shall use the Purchase Order form provided by Supplier.
1.3 Supplier reserves the right to accept or reject any Purchase Order. No Purchase Order shall be binding on Supplier unless and until Supplier accepts it in writing. Each Purchase Order shall be for at least 54 (fifty four) units overall (3 HMount Packages). Supplier reserves the right to require that any Purchase Order will be effective only upon receipt of an irrevocable letter of credit confirmed by a bank approved by Supplier or of any other security as instructed by Supplier. If Supplier discontinues the manufacture of distribution or any Products, it may cancel any order (in whole or in part) for such Product(s) and shall promptly refund to Purchaser any payment which it may have received with respect to that portion of the order which it cancels.
1.4 Supplier reserves the right at all times to make partial deliveries.
1.5 With regard to dimensions and quantities, Supplier always reserves minor deviations customary/accepted on the market.
1.6 Before any agreement is formed, Purchaser must notify Supplier in writing of any particular requirements with respect to the Products. Unless such particular requirements are notified by Purchaser and explicitly accepted by Supplier when the Purchase Order is placed, Products must be accepted by Purchaser as provided, to the extent such Products comply with the standards specifications of Supplier.
1.7 Delivery of Products shall be Ex Works Supplier’s warehouse at Netherlands / Israel, Incoterms 2010, unless another delivery location is agreed between the Parties in writing. Supplier shall provide Purchaser notice of delivery (the "Delivery Notice").
1.8 All delivery dates are approximate. Supplier will not be liable for any damage as a result of any delay or failure to deliver.
1.9 Purchaser may not cancel or alter a Purchase Order it has submitted to Supplier except upon terms and conditions that Supplier has accepted in writing, which Supplier may accept or reject in its sole discretion. In the event that Supplier accepts Purchaser’s request to cancel a Purchase Order, Supplier will use commercially reasonable efforts to mitigate any losses it suffers because of such cancellation. Purchaser will reimburse Supplier for any losses not so mitigated.
2. PRICES AND PAYMENT TERMS
2.1 The purchase price for each Product (the "Product Price") shall be as set forth in the price list provided in the Purchase Order, Part 2 "Order details", and does not include VAT which will be added to the Product Price in accordance with applicable law. In consideration for the supply of the Products, Purchaser shall pay Supplier the price specified in the Purchase Order, based on Ex Works delivery. The Product Prices do not include any (i) shipping, handling, packaging, insurance charges, or (ii) taxes, duties, fees, or other charges which may be assessed against Supplier because of its selling, licensing, providing, shipping, exporting or importing any Products in accordance with these Terms and Conditions, all of which shall be promptly paid by Purchaser (except for any tax on Supplier’s income).
2.2 Payment will be due and payable as follows: (i) 100% of the price of the applicable Purchase Order upon acceptance by Supplier of the order, no later than five (5) business days (the "Advance Payment").
2.3 Complaints with regard to the delivered Products do not give Purchaser the right to suspend payment or to perform set off against any other outstanding amounts whatsoever.
2.4 Non-payment after expiry of the Due Date will also result in the expiry of the Warranty (as defined below); furthermore, all other amounts owed by Purchaser to Supplier by virtue of other invoices or otherwise will become immediately due and payable by operation of law, including claims against group companies.
2.5 Purchaser shall make all payments to Supplier for Products in EUR by wire transfer (with all transfer costs borne by Purchaser) to the bank account which Supplier may indicate in writing from time to time.
3. End User
HMount’s products is authorized to be use only by the end user as specified in the Purchase Order at part 1 and in part 4 “Purchaser sales rights”. HMount;s products prohibited for sale to clients and/or markets and/or countries under sanctions imposed by European Union and/or United States and/or the United Unions.
4.1 Supplier warrants to the Purchaser that the Products shall, under normal use and subject to normal wear and tear, be free from defects in materials and faulty workmanship, for a period of six (6) months from the Delivery Notice (the "Warranty", and the “Warranty Period”, respectively.)The Warranty is solely given to Purchaser. Purchaser shall solely be responsible for warranty claims made by its customers (if any).
4.2 In the event of any defect in a Product within the Warranty Period which renders the Product to be not conforming to the Warranty (a "Defect"), Purchaser shall promptly notify Supplier of the Defect, within the Warranty Period, and Supplier shall rectify the Defect by the shipment of a replacement for such Product, at its sole cost and expense and in accordance with Section 4.3 below, provided that the following conditions are met (i) the Defect is not an Obvious Defect,; (ii) the Product shall not have been altered, repaired or reworked by any party other than Supplier without Supplier’s prior written consent and the Product's manufacturing date stamp shall not have been removed or tampered with; (iii) the Defect is not the direct consequence of a cause attributable to any party other than the Supplier; (iv) the Defect did not result from Purchaser’s or Purchaser’s customers’ or any third party's use of the Product with incompatible gear; (v) the Defect was not caused (after delivery to Purchaser) by any other act outside of Supplier’s reasonable control; and (vi) the Product was at all times stored, installed and used solely in accordance with the storage, installation and user instructions supplied by Supplier.
4.3 Supplier is at all times entitled to inspect the Products with regard to which Purchaser claims that there is a Defect. All claims of Purchaser related to any such Defect shall be forfeited in case of Purchaser's failure to make these Products, or an analysis sample thereof, available to Supplier on the latter's demand.
4.4 Supplier’s obligation and Purchaser’s remedy under the Warranty is limited to the replacement of the defective item at no charge to Purchaser. To exercise the Warranty, Purchaser must, following its prompt notification to Supplier of the Defect, ship defective Products to Supplier's warehouse at Logistic Centre, Netherlands / Israel, or such other location notified in writing by Supplier, within the Warranty Period. Any shipment of defective Products shall include at least 54 units ( 3 HMount packages) and Purchaser shall at its cost store defective Products until such minimum threshold is reached. Supplier shall then replace defective Products, provided that the defect is within the scope of the Warranty. Purchaser shall pay for the cost of shipping items to Supplier. Supplier shall credit Purchaser for the cost of shipping items replaced (under the Warranty) at standard DHL shipping rates; provided that, if no Defect is discovered by the Supplier, Purchaser shall also bear return shipping costs. Purchaser shall bear the risk of loss of the item being returned until it is received by Supplier. Upon its receipt of the item, Supplier shall then assume and bear the risk of loss until the item is redelivered in accordance with the terms of Section 1.7.
4.5 EXCEPT AS SET FORTH IN THIS SECTION 4, TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SUPPLIER PROVIDES PRODUCTS TO PURCHASER STRICTLY "AS IS." SUPPLIER MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. Purchaser acknowledges that it has not relied on any other warranties or representations. Purchaser understands and agrees that Supplier is not responsible for, and will have no liability for any gear or other items to be used in connection with the Products.
4.6 To the extent Products are purchased for resale (as shall be agreed in writing by Supplier), Purchaser is not authorized to make any modifications or additions to the Warranty, and it shall provide its customers only with terms which do not exceed the above Warranty and with no additional warranties or guarantees on the Products.
5. LIMITATION OF LIABILITY
5.1 In no event shall Supplier or any of its officers, directors, agents or employees have any liability for loss of profits or income, or any special, incidental, consequential, or indirect damages arising from these Terms and Conditions or for any loss or damage relating to the use or inability to use the Products, either separately or in combination with any other item or from any other cause. In no event shall Supplier's (and its officers’, directors’, agents’ and employees’) total liability relating to these Terms and Conditions exceed the amount of the Product Price paid to Supplier for such Product(s) relating to that claim. Purchaser acknowledges that Supplier would not accept any Purchase Order without these limitations on its liability and that these limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
5.2 To the extent Products are purchased for resale (as shall be agreed in writing by Supplier), Purchaser will indemnify, defend and hold harmless Supplier and its affiliates, subsidiaries, agents, servants, employees, officers, directors and customers, from any claim, suit, demand, loss, liability, damage, cost or expense (including, without limitation, attorneys’ fees), arising out of or relating to (i) any advertising, distribution, sale or marketing of Products by Purchaser or a party on Purchaser’s behalf; (ii) any breach or failure of Purchaser to perform its obligations under these Terms and Conditions; (iii) any claims or suits against Supplier by Purchaser’s employee’s or agents; or (iv) any claims or suits against Supplier by reason of or alleging (a) any unauthorized or infringing use by Purchaser of any patent, process, trade secret, copyright, trademark, or publicity right or other similar property right; or (b) any claim of false or misleading advertising (collectively, "Indemnified Matters").
5.3 In the event that Supplier is unable to deliver Products or fails to deliver Products to Purchaser for any reason, Purchaser’s sole and exclusive remedy is cancellation of the applicable Purchase Order for the Products and return of prepaid funds, if any.
6. INTELLECTUAL PROPERTY; CONFIDENTIALITY
6.1 All right, title and interest in all tangible and intangible property, patents, trademarks, trade names, logos, copyrights, trade secrets, designations, work products, ideas, inventions, discoveries, improvements, and any and all other intellectual property rights, whether or not patentable, whether in existence at present or in the future, owned by Supplier (the "Intellectual Property") shall remain the sole property of Supplier. Purchaser acknowledges that Supplier owns and retains all copyrights and other proprietary rights in the Products and the related documentation (including translations), if applicable, and Purchaser will not at any time (i) contest, or aid others in contesting, or do anything which might impair the validity of, any or all of the Intellectual Property or the exclusive ownership thereof by Supplier, or, more generally, (ii) assert or claim any interest in or do anything which may adversely affect the validity or enforceability of any Intellectual Property (including, without limitation, any act or assistance to any act which may infringe or lead to the infringement of any copyright in the Products).
6.2 Nothing contained in these Terms and Conditions shall give Purchaser any right, license or interest in any of Supplier’s Products or Intellectual Property, other than the use of the Product.
6.3 Purchaser shall not attach any additional trademarks, trade names, logos, or designations to the Product. Purchaser further shall not affix any Supplier's trademark, trade name, logo, or designation to any non-Product. Purchaser shall not display, advertise or otherwise use any Supplier's names, marks, logos, and designations, and shall not use, advertise, or display any name, mark, or logo which is or any part of which is, similar to or confusing with any such designation associated with the Products.
6.4 Purchaser shall not acquire any right to or under any of the Intellectual Property. If any such rights should become vested in the Purchaser by operation of law or otherwise, the Purchaser hereby irrevocably assigns any and all such rights to Supplier, and Purchaser undertakes to execute any documents required for such assignment.
6.5 Purchaser shall promptly notify Supplier in writing of any unauthorized use of Intellectual Property or any adverse use of marks confusingly similar to any of the Supplier's marks and shall take no action of any kind with respect thereto, except upon the express written authorization of Supplier.
6.6 Purchaser shall acquire no rights under these Terms and Conditions to any information related to the Supplier, its business, its Products, its Intellectual Property and/or related documentation (“Confidential Information”), and agrees (a) not to disclose and to treat as confidential, and preserve the confidentiality of, all Confidential Information; (b) to use the Confidential Information solely for the purposes of execution of these Terms and Conditions and related Purchase Orders; (c) not to copy such Confidential Information unless specifically authorized by Supplier.
7. SPECIFIC REMEDY.
Due to the unique nature of the Products, Intellectual Property and Confidential Information, Purchaser understands that Supplier will suffer irreparable harm in the event of any breach of these Terms and Conditions and that monetary damages will be inadequate to compensate Supplier for any such breach. Accordingly, Purchaser agrees that Supplier will, in addition to any other remedies available at law or in equity, be entitled to seek injunctive relief to enforce the terms of these Terms and Conditions.
8. INDEPENDENT CONTRACTOR
Purchaser is an independent contractor and shall not be considered an agent or employee of Supplier. Purchaser has no authority to bind Supplier by contract or otherwise without Supplier’s prior written authorization. Purchaser will not make any representation, warranty or guarantee to anyone with respect to any contract or otherwise act in a manner that may obligate Supplier without Supplier’s prior written authorization. Purchaser hereby warrants and represents that it is aware that Supplier is accepting Purchase Orders from Purchaser in reliance on Purchaser's status as an independent contractor, as set forth in this Section 8.
9. FORCE MAJEURE
9.1 For purposes of these Terms and Conditions, “Force Majeure” means an event beyond the control of the other Party, which could have been foreseen or not, which prevents such other Party from complying with any of its obligations under these Terms and Conditions, including but not limited to an act of God (such as, but not limited to, fires, pandemic, explosions, earthquakes, drought, tidal waves and floods), war, hostilities (whether war be declared or not), invasion, embargo, rebellion, revolution, insurrection, military or usurped power, civil war, riot, commotion, strikes, lock outs, industrial actions, acts or threats of terrorism, that causes serious disturbances in the Party's business or in the business of its suppliers.
9.2 The Party subject to Force Majeure shall not be considered in breach of these Terms and Conditions to the extent that performance of its obligations (excluding payment obligations) is prevented by such event of Force Majeure that arises after the date hereof.
9.3 The non-performing Party shall provide the other Party notice describing clearly the particulars of the occurrence giving rise to the Force Majeure claim. Following such notice, the non-performing Party shall keep the other informed regarding the likely duration and extent of the disruption.
9.4 If performance of the Terms and Conditions is suspended or extended due to Force Majeure, then Supplier may cancel the pending Purchase Orders or delay the execution of its obligations.
10. PURCHASER’S T&C. Neither Purchaser's standard conditions of purchase nor any terms or conditions in any order forms or other documents prepared by Purchaser shall apply to the sale of the Products by Supplier to Purchaser.
11.1 Captions and paragraph headings used in these Terms and Conditions are for convenience only and shall not be used in the construction or interpretation thereof.
11.2 These Terms and Conditions together with the Purchase Order constitute the entire agreement and understanding between the Parties on the subject matter hereof. There are no letters of intent or other understandings, contracts, conditions, reservations, or representations, whether oral or written, of a date prior to the Terms and Conditions that are not superseded by the Terms and Conditions.
11.3 Oral or written modification or amendment of the Terms and Conditions by any officer, agent or employee of Supplier or Purchaser, after execution of the Terms and Conditions, is of no force or effect unless the modification or amendment is in writing, is expressly stipulated to be an amendment of the Terms and Conditions and is signed by duly authorized representatives of both Parties.
11.4 The failure of either Party at any time to enforce any of the provisions of these Terms and Conditions or any right under these Terms and Conditions will in no way be construed to be a waiver of the provisions or of the rights, or in any way to affect the validity of these Terms and Conditions. The failure of either Party to exercise any rights under these Terms and Conditions shall not preclude or prejudice the exercise of the same or any other right under these Terms and Conditions.
11.5 No waiver by either Party shall be effective unless in writing. Any waiver by either Party of any default, delinquency or other breach by the other party shall not be deemed to be a waiver of any other or subsequent default, delinquency or breach. No course of performance or other conduct hereafter pursued, accepted, or acquiesced in, and no oral agreement or representation hereafter made, by Supplier, and no usage of trade, shall modify or terminate these Terms and Conditions.
11.6 In the event that any provision of the Terms and Conditions is invalid or becomes invalid under the applicable law, then this shall have no effect on the remaining provisions. Furthermore, the Parties agree to replace any invalid provision with a new, valid provision having, as far as possible, the same intent as the provision replaced.
11.7 All obligations of the Parties that are of a continuing nature shall survive the termination or expiration of the contractual relationship between the Parties.
11.8 Other than as explicitly set forth herein, neither Party shall be entitled to assign, delegate, subcontract or otherwise transfer any of its rights or obligations under these Terms and Conditions without the prior written approval of the other Party.
11.9 All notices, requests, demands, instructions or other communications required or permitted to be given under these Terms and Conditions shall be in writing and shall be deemed to have been duly given (a) upon delivery, if manually delivered on a business day or otherwise, on the next business day; (b) if mailed by registered or certified mail, postage prepaid, after 3 business days from the date of mailing; or (c) if by fax which gives the sender proof of delivery, on the first business day after such transmission; all if delivered to the respective Party’s address at its registered offices or as set forth in the Purchase Order.
11.10 These Terms and Conditions shall be governed by, and construed in accordance with, the laws of the State of Israel without reference to its conflicts of law rules. The provisions of the United Nations Conventions on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions. Any disagreement or dispute between the Parties arising under, in connection to or in relation to these Terms and Conditions and/or any Purchase Order shall be resolved exclusively in the competent court of Tel Aviv-Jaffa, and each Party hereby submits irrevocably to the exclusive jurisdiction of such court.
11.11 Supplier reserves the right to update these Terms and Conditions from time to time, with or without notice. If so, Supplier will post its updated Terms and Conditions on Supplier's website, which updated Terms and Conditions will apply to any Purchase Order accepted following such update. If any modification is unacceptable to Purchaser, he/it may cease purchasing the Products. If Purchaser does not cease purchasing the Products, he/it will be deemed to have accepted those modifications.
11.12 In case of any questions or queries about these Terms and Conditions, Supplier's website or the Products in general, Supplier can be reached via e-mail at: [email@example.com].
PURCHASER ACKNOWLEDGES THAT HE/IT HAS READ AND UNDERSTOOD THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THEM.