General Terms and Conditions of Delivery and Services
Endress+Hauser SE+Co. KG
The following Terms and Conditions of Purchase shall be applicable to all - also future - sales and shipments, if nothing to the contrary has been agreed in writing. General terms and conditions of customer shall only be applicable, if we consent to them in writing.
Our offers shall be subject to confirmation. Contracts shall only materialise by our written order confirmation or delivery. Our staff members shall not be authorised to make verbal additional agreements or promises which exceed the content of the written contract or change these General Terms and Conditions of Delivery and Services to our disadvantage. Technical data, illustrations, drawings, details of weight and dimension shall only be binding, if confirmed in writing. Design changes shall be reserved. Customer shall have to verify the usability of our goods at customer's own risk.
The period of delivery shall start with the order confirmation, however, not prior to the clarification of all details concerning the execution of the order as well as the receipt of documentation and approvals as well as an agreed down payment from customer. The period of delivery shall have been observed, if the goods have been made available at the plant or have been advised as ready for shipment by the expiry of the period.
We shall be entitled to reasonable part shipments.
Changes requested by customer as well as unforeseen events outside of our sphere of influence, e.g. particularly force majeure, strikes, lockouts, plant interruption, difficulties in material and energy procurement, transport delays, measures of authorities, supply failure or delay, etc. shall prolong the period of delivery or performance appropriately.
We shall be entitled to withdrawal, if the obstruction is not merely of a temporary duration. If customer cannot be expected to take delivery of the shipment due to the delay customer can rescind the contract by a written declaration to us. Claims for damages shall be excluded in such cases.
In case of default of delivery concerning ordinary negligence of our legal representatives or persons employed in performing an obligation, our liability shall be limited to 5% of the value of goods. Compensation in damages instead of performance according to Item 11 shall be unaffected.
We shall select the most secure and cost-effective solution at our discretion for shipment. Risks and costs shall pass to customer ex works.
Should the dispatch be delayed for reasons which are the responsibility of customer,
Prices shall be exclusive of packaging, freight charges, etc. and plus the respectively applicable value added tax.
Should we generally increase or decrease our prices during the period between the conclusion of the contract and delivery the price on the date of delivery shall be applicable.
Payments shall only be deemed effected to the extent we can freely dispose of them at a bank. We shall accept cheques and bills only on account of payment, discount and costs are at customer's expense. They are immediately due.
In case of delayed payment, we shall charge, without reminder, interest of 8% above the basic interest rate, at least however 10%, from the due date onwards.
If valid doubts concerning customer's solvency arise, e.g. slow payment behaviour, delayed payments, bill or cheque protest, we shall be entitled to demand securities or cash payments in contemporaneous performance. Should customer not comply with this request within an appropriate period of time we shall be entitled to rescind the part of the supply contract which has not been fulfilled. The period of grace shall be superfluous, if customer is obviously not in a position to provide securities, e.g. if an application for the institution of bankruptcy proceedings concerning customer's assets has been filed. Customer shall only be permitted to offset undisputed or final and absolute counterclaims against our accounts receivable. Customer shall not be entitled to withhold or reduce the payment of due invoice amounts in case of disputed complaints concerning the goods.
We shall reserve ownership in goods supplied until customer has paid all accounts receivable from our business relations and has honoured all bills.
Processing and utilisation of goods shall be performed for us as manufacturer, without us entering into any obligation. In case of the utilisation and combination with other goods we shall acquire joint ownership in the new goods at the ratio of the invoice amount of the conditional goods to other materials.
Customer may sell conditional goods only in the course of ordinary business activities and may neither pledge them nor assign them by way of a security; customer shall inform us immediately on possible seizure by third parties. Upon our request, customer shall insure the conditional goods against loss and damage at customer's expense; customer assigns its claims under the insurance contracts to us herewith in advance.
Customer shall fully assign its accounts receivable from the resale of the conditional goods as a security to us in advance. Customer shall be entitled to collect the accounts receivable.
The entitlement to collection shall lapse, if customer delays payment, if an application concerning the institution of insolvency proceedings has been filed or customer ceases payments. In such cases customer shall not be permitted any more to process the goods. Customer shall make it possible for us to take back the conditional goods, inform its customers of the assignment of accounts receivable and make available to us all required information and documents. We shall be entitled to disclose the assignment to its customers. Taking the conditional goods back shall not constitute a withdrawal from the contract. If we withdraw we shall be entitled to sell the conditional goods in the open market.
If the value of the securities exceeds our receivables by more than 10% we shall release, upon customer's request, securities to that extent at our discretion.
Ownership and intangible asset rights in our drawings and other documents shall remain with us in any case. They shall not be made available to third parties.
Defects in goods supplied shall be indicated to us in writing at least 8 days after the receipt of goods, hidden defects immediately after their discovery. If this deadline is exceeded the rights in respect of deficiencies shall lapse. This shall analogously be also applicable if defects are the result of improper treatment or processing. Rights in respect of defects shall lapse 12 months after receipt of goods in any case.
In case of justified complaints we shall, at our discretion, rework or replace the goods. If this is not done within an appropriate period of time, if the replacement delivery is defective or if rework fails customer shall be entitled to demand a price reduction or - if the defect is not immaterial - to withdraw from the contract and claim damages instead of performance according to Item 11.
Subject to Item 5, claims for damages shall otherwise be excluded irrespective of their type if we, our legal representatives or persons employed in performing our obligations have acted in a manner of ordinary negligence. This exclusion of liability shall neither be applicable to physical injury, nor to the assumption of a contractual warranty, nor to an infringement on material contractual obligations endangering the fulfilment of the purpose of the contract. However, in these cases our liability shall be limited to the extent of the warranty or, in an infringement on material contractual obligations in ordinary negligence, to the contract-specific and foreseeable damage. Claims in accordance with the Product Liability Act shall not be affected.
If customer withdraws from the contract for no reason or if customer does not fulfil the contract on its part, we shall be entitled to demand 25% of the order amount as compensation in damages. The assertion of provably deviating damages shall be reserved for both parties.
We shall take back transport packaging and obsolete devices at customer's expense if customer does not renounce the return. Transport packaging and obsolete devices shall be clean, free of foreign matter and sorted according to types. Otherwise, customer shall bear incurred additional costs.
The place of performance for delivery shall be our distributing warehouse, for payment Maulburg. German law is applicable.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. The place of jurisdiction for any litigation resulting from the underlying contracts shall be our place of business.
Should individual provisions of these Terms and Conditions of Delivery be ineffective, either wholly or in part, the other provisions will remain effective.