1. General Terms.
All sales and other transactions for the provision of goods (collectively, “Products”) by Shure Europe GmbH or any direct or indirect subsidiary of Shure Europe GmbH (individually and collectively, “Seller”) to any person or entity (“Purchaser”) shall be subject to and governed by these Terms and Conditions of Sale (these “Terms”).
These Terms shall be considered incorporated into and form a part of each agreement, contract, or other legally-binding offer or commitment of Seller to sell or provide Products (a “Sale Agreement”). No modification, waiver, or other variance of these Terms shall be valid or enforceable, unless specifically agreed to by Seller.
No terms or conditions appearing in any purchase order, confirmation, acknowledgement, or other document of Purchaser (including any electronic form) shall be binding upon Seller or be deemed to be part of any Sale Agreement, unless specifically agreed to in writing by Seller with reference to those terms or conditions. Any terms or conditions not specifically agreed to in writing by Seller shall be deemed waived by Purchaser.
2. Product Orders and Acceptance of Products.
Seller reserves the right to accept or reject any order for Products (“Order”), or any change to an Order, for any or no reason. Seller shall not be deemed to have accepted any Order or any change to an Order, unless Seller has expressly accepted it.
All Products shall be fully inspected by Purchaser at its sole expense at the time and place of delivery or, if not possible at that time, then as soon as practicable (but not later than seven days) after delivery. In the event that the inspection reveals any damage or other non-conformity of the Products to the Sale Agreement, Purchaser shall notify Seller and the carrier, if any, of the non-conformity in writing promptly (and in any event within one day), describing the non-conformity in reasonable detail.
If Purchaser fails to inspect the Products or fails to notify Seller and the carrier, if any, of a non-conformity as provided above, then Purchaser shall be deemed to have irrevocably accepted the Products delivered and irrevocably waived any and all rights and remedies Purchaser may otherwise have had against Seller with respect to any non-conformity of the Products, except for any right or remedies it may have under an applicable Product warranty described in Section 7 of these Terms.
Seller shall not be obligated to accept Products for return after the Products are accepted or deemed accepted by Purchaser, except as may be required under that warranty.
The price for the Products and any discounts offered or granted to Purchaser shall be specified in the relevant Sale Agreement and shall supersede all prior price and discount offers, quotes, and estimates. Subject to the terms of an existing Sale Agreement, all prices and discounts offered are subject to change by Seller, in its sole and absolute discretion, without prior notice at any time.
All prices and other amounts are stated in euros (€), unless otherwise specified or agreed by Seller.
4. Terms of Payment.
Seller, in its sole and absolute discretion, may extend credit from time to time to Purchaser on any terms and conditions Seller elects. Seller also reserves the right, in its sole and absolute discretion, to modify, suspend, or terminate any terms or conditions of credit at any time for any or no reason.
Except in instances where Seller expressly agrees in writing to any other payment terms, Purchaser shall pay Seller in full for each Order at the time the Order is placed. If Seller permits Purchaser to purchase Products on credit, then Purchaser shall pay Seller in full for each purchase within thirty days after the relevant invoice is issued by Seller (i.e., Net 30 Days), unless Seller agrees in writing to other payment terms in any instance.
However, if at any time the amount owing to Seller by Purchaser exceeds its credit limit, if any, then permitted by Seller for any reason (including a reduction by Seller in the credit limit), then Purchaser shall promptly pay to Seller the amount of the excess. Time is of the essence for Purchaser’s payments due under each Sale Agreement.
All amounts owing by Purchaser to Seller at any time shall be paid in euros (€) in immediately available funds, without deduction, recoupment, withholding, or set-off against a claim the existence or amount of which is disputed or not confirmed by a final and non-appealable judgment, unless otherwise agreed in writing by Seller in any instance.
5. Shipment and Delivery.
All dates quoted by Seller for shipment or delivery of Products shall be considered estimates only and not guaranteed. Seller may make partial shipment or deliveries of Products. Seller shall endeavor to meet the quoted shipment or delivery dates, but shall have no liability for any delay in shipment or delivery unless such delay is due to gross negligence or willful misconduct. Seller reserves the right of carrier selection.
All Products are shipped and delivered by Seller to Purchaser F.O.B. (or at Seller’s election, Ex Works) Seller’s facility. Unless otherwise specified in the applicable Sale Agreement, Purchaser shall pay all freight, insurance, and other costs with respect to the shipment and delivery of Products and all prices quoted by Seller are exclusive of those costs.
Purchaser shall bear all of the risk of loss with respect to the Products while in transit or shipment to Purchaser or to any other location requested by Purchaser and, without limiting Seller’s rights, Purchaser shall be responsible for pursuing all claims with the carrier or the carrier’s insurer. Notwithstanding the foregoing, Seller shall have the right to stop, divert, or reclaim any Products while in transit following a Default or if Seller anticipates a Default.
Unless otherwise specified in any Sale Agreement, in addition to the purchase price of the Products and any other amounts required to be paid by Purchaser under the applicable Sale Agreement or otherwise, Purchaser shall be solely responsible and liable for, and upon Seller’s demand shall pay to Seller, the amount of all governmental taxes, duties, and other charges (collectively, “Taxes”) imposed under any existing or future law upon or with respect to the sale, purchase, delivery, storage, use, transportation, importation, or disposal of any Products in any applicable jurisdiction (excluding income taxes imposed upon Seller).
7. Warranties and Limitations on Liability.
Unless otherwise specified in writing by Seller at any time, all Products will meet and be subject to the Product manufacturer’s standard written warranty applicable to the Products from the time they are sold by Seller. (Currently, most Shure® Products include a two-year limited warranty with certain exclusions.
More information concerning these warranties can be obtained from Seller or found at www.shure.com.)
SELLER MAKES NO OTHER REPRESENTATION, WARRANTY, OR GUARANTEE OF ANY KIND WITH RESPECT TO ANY PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
OTHER THAN IN CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT SELLER SHALL NOT BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR LOSS OF BUSINESS OR PROFIT OR ANY OTHER ECONOMIC LOSS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT SELLER HAS BEEN APPRISED OR IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
IN ADDITION TO ANY LIMITATIONS SPECIFIED IN THE WARRANTIES DESCRIBED ABOVE, SELLER’S WARRANTIES SHALL NOT APPLY TO ANY PRODUCTS WHICH HAVE BEEN ALTERED, CONVERTED, CHANGED, OR USED IN MANUFACTURE BY PURCHASER OR ANY THIRD PARTY. NOTWITHSTANDING THE FOREGOING, PRODUCTS SOLD AS “SECONDS” OR “USED” (OR A COMPARABLE DESIGNATION) ARE SOLD “AS IS” WITHOUT ANY REPRESENTATION, WARRANTY, OR GUARANTEE OF ANY KIND.
Purchaser warrants to Seller that that Purchaser shall:
(i) make no false or misleading representations with regard to Products;
(ii) not publish or disseminate, or cooperate in the publication or dissemination of, any false, misleading, or deceptive advertising with regard to Products;
(iii) make no representations, warranties, or guarantees with respect to the specifications, features, or capabilities of Products that are inconsistent with the applicable Product specifications, features, or capabilities of Products identified in writing by Seller;
(iv) store, use, sell, transport, and dispose of Products only a normal, intended, customary, and lawful manner; and
(v) comply with all applicable laws in any jurisdiction regarding its purchase, resale, export, storage, use, transportation, or disposal of any Products (including export control laws and regulations of the European Union or the United States of America that may apply).
Each of the following constitutes a “Default”:
(a) Purchaser or any present or future guarantor or other obligor (each a “Guarantor”) with respect to any liabilities or obligations of Purchaser to Seller shall fail to pay or satisfy when due and at the latest thirty days after the receipt of the relevant invoice, or shall otherwise breach or violate, any indebtedness, liabilities, obligations, representations, or warranties to Seller, whether existing now or in the future, and whether arising pursuant to a Sale Agreement or otherwise, however evidenced or arising (collectively, the “Obligations”); or
(b) Purchaser or any Guarantor becomes insolvent or fails to pay its debts generally as they become due, or any action or proceeding is commenced by or against Purchaser or any Guarantor as debtor, or against either’s property, under any bankruptcy, receivership, reorganization, debt arrangement, insolvency, or similar law.
9. Remedies after Default.
If a Default occurs, or if Seller reasonably anticipates that a Default will occur, Seller, at its option, shall have:
(a) all rights and remedies available to it following under any Sale Agreements;
(b) any other rights or remedies provided to a creditor or secured party under applicable laws;
(c) the right to suspend or terminate any of Seller’s obligations to Purchaser or any rights, benefits, or privileges afforded to Purchaser;
(d) the right to declare any or all sums owing by Purchaser or any other obligations to be immediately due, whereupon all such obligations shall become immediately due, without further notice, demand, or presentment of any kind; and
(e) the right to receive from Purchaser, on demand, interest on any unpaid amounts from the due date until paid in full at the annual rate of fifteen percent (15%) or, if less, the highest lawful rate of interest then in effect, as well as the payment of all of Seller’s reasonable costs and expenses (including reasonable attorneys’ fees) incurred in enforcing its rights and remedies. All rights and remedies of Seller shall be cumulative.
No waiver by Seller of any Default will waive any other Default or the same Default on a different occasion. Acceptance of partial or overdue payments or failure to exercise any right or remedy by Seller (regardless of any indorsement or other statement of Purchaser to the contrary) shall not be a waiver or modification of any Obligations or any rights of Seller.
10. Retention of Title.
From the time Purchaser assumes the risk of loss with respect to the Products until it has finally paid Seller in full for them, Purchaser shall keep the Products in good and safe condition, properly stored and insured and Seller shall retain exclusive title to them.
Purchaser shall be entitled to resell or use the Products in the ordinary course of its business but shall account to the Seller for the proceeds derived from a sale or other disposal of the Products including insurance proceeds, and shall keep all such proceeds separate from any moneys or properties of the Purchaser and third parties.
The retention of title shall extend to such proceeds as well as to any products which are substituted for the initial products. If third parties take up steps to pledge or to otherwise dispose of the Products, the Purchaser shall immediately notify the Seller in order to enable the Seller to seek a court decision in accordance with section 771 of the German Code of Civil Procedure.
If the Purchaser fails to do so in a timely manner it will be held liable for any damages caused. Purchaser agrees to execute any additional documents and instruments required or reasonably requested by Seller to evidence, perfect, and maintain Seller’s security and rights.
11. Intellectual Property.
If Purchaser provides or makes available to Seller any information, data, plans, specifications, drawings, samples, models, goods, copyrights, trademarks, patents, or other intellectual or proprietary property in connection with Seller’s development, manufacture, marketing, sale, provision, or distribution of any Products (collectively, “Purchaser’s Materials”), then Purchaser represents and warrants that Purchaser’s Materials, and the Products provided by Seller using such Purchasers Materials in accordance with the applicable Sale Agreement shall not violate or infringe upon any patent, copyright, trademark, or other intellectual property or proprietary right of any third party.
Purchaser grants to Seller a non-exclusive, worldwide, royalty-free license to use Purchaser’s Materials in connection with the development, production, marketing, sale, provision, and distribution of Products under the relevant Sale Agreements.
Except for Purchaser’s rights to Purchaser’s Materials, Purchaser shall not register or use, or contest Seller’s or its affiliates’ rights to, any patents, copyrights, trademarks, trade names, domain names, or other intellectual property or proprietary rights used in or associated with any Products or Seller’s business, whether owned or licensed by Seller (collectively, the “Seller’s Intellectual Property”).
Seller shall be excused for, and shall have no liability as a result of, any delays in performance under any Sale Agreement caused by acts of God, fire, flood, strikes, and other labor troubles, wars, acts of government, acts of terrorism, inability to obtain material, equipment, or transportation, damaged plant facilities, or any other cause beyond Seller’s reasonable control. In that event, the time for Seller’s performance shall be extended by the period of any such delay.
13. Governing Law and Jurisdiction.
Except to the extent Seller otherwise expressly agrees under any Sale Agreement, these Terms and all Sale Agreements shall be governed by and construed under the laws of Germany, without regard to its conflicts of laws principles. However, Seller and Purchaser exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, without implication that such Convention otherwise applies.
Any lawsuit or other legal proceeding which is commenced to resolve any matter arising under or relating to any Sale Agreement or any other matter between Purchaser and Seller shall (subject to Seller’s right to commence and prosecute any legal proceeding in any other appropriate jurisdiction or venue) be commenced and prosecuted only in the District Court (Landgericht) of Heilbronn t, in Germany.
The foregoing also shall be subject to Seller’s express written agreement under any Sale Agreement to arbitrate any matter in any other manner, jurisdiction or venue. Any litigation, arbitration or other legal proceeding against Seller for any claim or cause of action asserted in connection with a Sale Agreement, a sale of Products, or other matter must be commenced within one (1) year after the claim or cause of action in that legal proceeding shall have first accrued.
If any provision in these Terms or any Sale Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of these Terms or any Sale Agreement shall be unaffected and such provision shall be reformed to the extent necessary to be legal, valid, and enforceable.
Purchaser may not assign or delegate any of its rights or obligations under any Sale Agreement or any portion of it to any third party. Seller may assign or delegate all or any portion of any Sale Agreement to any affiliate of Seller upon notice to Purchaser or may subcontract any obligations thereunder.
No Sale Agreement may be modified or waived, in whole or in part, except in a writing expressly accepted by the party against which enforcement is sought (except as otherwise expressly set forth in these Terms). All stenographic and clerical errors contained in any Sale Agreement may be corrected by Seller without the consent of Purchaser. No course of dealing or usage of the trade shall be applicable, unless expressly incorporated into to a Sale Agreement or these Terms.