Issue No.1 of 12/18/2008
1. Terms Exclusive
Unless otherwise expressly agreed upon in writing, all sales shall solely be subject to the General Terms and Conditions of Sale hereunder, save for those stipulations in the Acceptance of Order which shall take precedence in the event of conflict with these General Terms and Conditions of Sale.
Brabender Messtechnik® GmbH & Co. KG ( hereinafter referred to as Brabender® ) hereby offers for sale to the party named on the face of form or other kind of document ( hereinafter referred to as the Buyer) the listed product(s) ( hereinafter referred to as the [Software] Products) on the express condition that the Buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any form issued by the Buyer shall not operate to vary any of the terms and conditions set forth herein unless expressly agreed to by Brabender® in writing.
If the Buyer objects to any term or condition set forth herein, this objection must be in writing and received by Brabender® at its permanent business address prior to Brabender® ’s delivery of any of the Products. Brabender® ’s failure to object to terms and conditions contained in any communication from the Buyer shall not be deemed to be a waiver of these General Terms and Conditions of Sale hereunder.
2. Specification of Products, Purchase Proposal
Unless otherwise stated hereinafter specification of the Products published in Catalogues, leaflets, or by means of digital media and any verbal statement given with regard to any specification of the Products shall neither be deemed a warranty of quality nor a warranty of accomplishment of any particular result.
Brabender® reserves – as stipulated hereunder – all rights with regard to purchase proposal and its constituent elements, i.e. – where applicable – cost estimate, drawing and calculation, sample etc. and may – unless otherwise agreed upon – request prompt return of such purchase proposal from the( potential ) Buyer. Non-return of purchase proposal shall not be deemed a waiver of any of its rights by Brabender® .
The Buyer shall treat any and all purchase proposal, sample and Software Products with strict confidentiality and shall not be entitled to disclose same to any Third Party, unless authorized so to do by Brabender® in writing.
Purchase proposal shall be subject to confirmation in writing by Brabender®.
3. Scope of Supply and Services, Modification
All orders and – in a like manner – any change of or addition to the scope of supply and services, if so agreed upon, shall be subject to acceptance in writing by Brabender® except for purchase proposal unconditionally and timely accepted by the Buyer.
Brabender® reserves the right to modify the design, fabrication materials, and Software Products incorporated in the Products provided that any such modification does not have any substantial nor any adverse impact on the Products, nor renders the Products unfit for the intended usage or the purpose according to contract, and may – upon request – disclose such modification to the Buyer.
All prices quoted or published by Brabender® may be changed at any time without prior notice. Unless otherwise agreed upon all prices for the Products shall be as specified by Brabender® or, if no price has been specified or quoted, shall be Brabender®’s price in effect at the time of shipment. All prices shall be subject to adjustment on account of specifications, quantities, shipment arrangements, or other terms or conditions that are not part of Brabender® ’s original purchase proposal.
Prices for the Products shall be “Free on Board” ( F.O.B. ) Brabender® ’s facility in the City of Duisburg, State of North Rhine-Westfalia, Federal Republic of Germany ( FRG ) and exclusive of all taxes, duties, and other levies imposed by governmental authorities, all of which must be borne by the Buyer.
On-site work, putting into operation of or maintenance on the Products and other kinds of services shall be subject to separate agreement and shall be invoiced on basis of material and/or time sheets as confirmed by the Buyer.
5. Packing & Delivery
Brabender® shall be entitled to determine the packing method and packing materials – the latter where applicable inclusive of material certificates – and to back-charge to the Buyer any and all costs as they may accrue.
Brabender® will – whenever possible – select packing materials with environmentally friendly and recyclable properties and the Buyer shall under his sole responsibility dispose of such waste packing materials in compliance with the regulations on the disposal of waste at the place of use of the Products.
Save where otherwise stated, delivery shall be made at Buyer’s risk and account. Risk of loss of the Products shall pass to the Buyer upon delivery of possession of the Products by Brabender® to the carrier or, if delivery is delayed due to any cause within the Buyer’s control, at the time the Buyer is being notified by Brabender® of the readiness for shipment of the Products ( the “Date of Shipment” ).
The Products shall be insured in transit at the expense of the Buyer, unless otherwise agreed upon. Any claims for damage to, or loss of the Products shall be filed directly with the carrier by the Buyer.
The Products shall be shipped to the destination specified by the Buyer. Unless otherwise agreed upon, Brabender® shall select the carrier for shipment of the Products, but in no event shall Brabender® be deemed to assume liability – be it freight, routing, timely delivery, or others – in connection with such shipment, nor shall the carrier be deemed to act in the name and on behalf of Brabender®.
6. Delivery Date, Delay in Shipment, Force Majeure
Delivery time shall commence on the date of Acceptance of Order by Brabender®, provided that the Buyer’s financial standing is proved to be positive. All shipping dates are approximate only, and Brabender® reserves the right to stop delivery of the Products in transit and to withhold shipment in whole or in parts, if the Buyer fails to make any (down-) payment to Brabender®when due, or otherwise fails to perform its obligation under the contract.
Brabender® shall be entitled, at its own discretion, to make partial shipments of the Products and to invoice each shipment separately.
Delivery time and shipping date shall be deemed to be according to contract when the consignment of the Products was made or the Buyer was notified of the readiness for shipment of the Products in time. The Buyer irrevocably consents to the domicile of Brabender® to be the place of performance of its obligations hereto.
In the event of a delay due to any cause beyond Brabender® ’s reasonable control, in particular, but not limited to circumstances of Force Majeure, industrial action, action by government etc., Brabender® shall reserve the right to withdraw from the order with the Buyer or to reschedule the shipment of the Products within a reasonable period of time, not exceeding the time such circumstances had an impact on Brabender® ’s production schedule, and the Buyer shall not be entitled to refuse delivery, or otherwise be relieved of any of its obligations under the contract as the result of such delay.
The Products as to which delivery is delayed due to any other unforeseen reason will be adequately rescheduled by Brabender®. Upon notification thereof, the Buyer shall be deemed to grant its consent to such extension of delivery time, unless the Buyer forthwith contradicts and enters into negotiations with Brabender® so as to seek an appropriate solution.
Notwithstanding any contrary contained herein or in the Acceptance of Order, Brabender® shall not be deemed to have fallen behind delivery schedule, insomuch as the delay in shipment does not exceed a grace period of 14 working days in general or 1 month respectively in case of tailor-made Products, but in no case – except for gross negligance or willful act – shall Brabender®be liable for any direct or indirect, special, consequential, or incidental damages as set forth hereinafter.
7. Data & Documents, Privacy
Brabender® will provide instruction manual ( for on–site installation, operation, and maintenance ), Declaration of Conformity, test report(s) and Software Products – as agreed upon – by means of printed and/or electronic data media. Data, documents, and Software Products will be compiled with due care and will enable the Buyer to make use of the Products as intended. The Buyer’s right to copy data, documents, and Software Products shall be strictly limited to backup copies for its archives. Subject to the provisions hereunder Brabender® shall not be liable – except for gross negligance or willful act – for any faulty or incomplete data, documents, or Software Products.
The Buyer shall – in this respect – be obliged to examine in minute detail all safety and operation instructions as provided for by data, documents, and Software Products, and to operate the Products with qualified personnel, only.
The Buyer agrees to hold any and all data, documents, and Software Products in confidence and shall not be entitled to disclose or pass the same on to any Third Party – be it as a whole, in parts or in extracts -, unless authorized so to do by Brabender® in writing, nor shall the Buyer grant unauthorized access to data, documents, Software Products, and any archival backup copies thereof.
Trademarks, and, in particular, copyright marks may not be modified nor may they be removed from data, documents, or Software Products by the Buyer.
Brabender® shall be entitled to store and process – compliant with legal and/or regulatory requirements – data of the Buyer and – vice versa – the Buyer shall be entitled do same, provided that both parties hereto will undertake to ensure adequate levels of protection of such data.
8. Software Products
With respect to any Software Products incorporated in or forming a part of the Products hereunder, Brabender® and the Buyer intend and agree that such Software Products are beeing licensed and not sold, and that the words “purchase”, “sell”, or similar or derivative words shall be understood and agreed to mean “license”, and the word “Buyer” or similar or derivative words to mean “licensee”. Notwithstanding anything to the contrary contained herein, Brabender® or its licensor – as the case may be – retains ownership of and title to all Software Products.
Brabender® grants to the Buyer – except for authorized resale – a non-exclusive, non-transferable license, without power to sublicense, to use the Software Products and the related documentation solely for the Buyer’s own business purposes on the Products provided hereunder, and the Buyer agrees not to sell, transfer, loan, or otherwise make available to Third Parties such Software Products. The license shall terminate when the Buyer’s lawful possession of the Products ceases, unless earlier terminated as provided herein.
The Buyer may not modify, enhance, or otherwise change or supplement the Software Products without Brabender® ’s prior written consent. The source code for the Software Products will not be disclosed to the Buyer, and the Buyer may not disassemble, decompile or reverse engineer the Software Products supplied hereunder.
Brabender® shall be entitled to terminate the license, if the Buyer fails to comply with any term or condition herein. The Buyer agrees, upon termination of the license, immediately to return to Brabender® all Software Products provided hereunder and all copies and portions thereof.
Certain of the Software Products provided by Brabender® may be owned by one or more Third Parties and licensed to Brabender®. Brabender® and the Buyer intend and agree that Software Products owned by Third Parties and provided hereunder are being sublicensed to the Buyer, that such Third Parties retain ownership of and title to such Software Products, and that such Third Parties may directly enforce the Buyer’s obligations hereunder in order to protect their respective interests in such Software Products. The warranty and indemnification provisions set forth herein shall not apply to Software Products owned by Third Parties and provided hereunder.
9. Terms of Payment
Brabender® may invoice the Buyer on shipment for the price and all other charges payable by the Buyer with respect to such shipment. All payments by the Buyer shall be made in EUROs [€] and in accordance with the terms in Brabender® ’s Acceptance of Order. If no payment terms are stated, payment shall be net 30 ( thirty ) days from the date of invoice. Payment shall deemed to be duely made by the Buyer only, if the invoice amount is transfered to Brabender® ’s bank account in time.
The Buyer shall not be entitled to offset any amounts for whatever reasons against any payments due, unless being authorized so to do by Brabender® in writing or by enforcing a judgement.
If the Buyer fails to pay any amounts when due, Brabender® shall be entitled to place the Products in storage at the Buyer’s risk and expense and for the Buyer’s account, and furthermore may require from the Buyer full or partial payment in advance or other security satisfactory to Brabender®, at all times that Brabender® believes in good faith that the Buyer’s financial status does not justify the terms of payment mutually agreed.
The Buyer shall pay Brabender® interest on payments overdue at a rate of 8% ( eight percent ) p.a. above the European Central Bank ( ECB ) base rate or, if lower, the highest rate permitted by law together with all costs and expenses incurred by Brabender® in collecting such overdue amounts or otherwise enforcing Brabender® ’s rights hereunder. Provided that adequate term expires, then Brabender® shall have the right to withdraw from the contract with the Buyer.
10. Changes or Cancellation by the Buyer
Orders in process may not be changed by the Buyer except with Brabender® ’s written consent and upon agreement by the parties hereto as to an appropiate adjustment in the contract price therefore.
The Buyer may withdraw – in total or in part – from the order in process only with Brabender® ’s written consent and upon payment of cancellation charges of not less than 10% ( ten percent ) of the contract price of unutilized Products, and of not less than 20% ( twenty percent ) of the contract price for Products showing traces of usage.
Credits will not be allowed for Products returned by the Buyer without prior authorization so to do by Brabender® in writing.
Notwithstanding the provisions of clause 5, subsection 3 hereabove title to and ownership of the Products shall not pass onto the Buyer before all accounts receivable by Brabender® from the Buyer will duely be settled; always provided however, that title to any Software Products incorporated within or formimg a part of the Products shall at all times remain with Brabender® or the licensor(s) thereof, as the case may be.
The Buyer shall not be entitled to dispose in any other way of the Products than processing and resale of same in the ordinary course of the Buyer’s business; in particular not to leave the Products in security.
In case of default of payment by the Buyer, Brabender® shall have the right to enjoin the Buyer from processing and reselling and may, further, claim restitution of the Products.
The Buyer shall be obliged to notify Brabender® with a minimum delay of any events and circumstances of action by government or seizure by Third Party of any of the Buyer’s assets.
Processing by the Buyer of the Products title to and ownership of which have been reserved by Brabender® shall take place in the name and on behalf of Brabender® and shall in no case back up any claim of the Buyer against Brabender®.
Processing of the Products with other goods by the Buyer shall be deemed to establish proportionate joint ownership of Brabender® in the new goods.
The Buyer shall pro rata assign accounts receivable from trading of such goods for the benefit of Brabender® and shall, until revoked, be authorized to collection of debts in the name and on behalf of Brabender®. Brabender® reserves the right to revoke authorization so to do, if the Buyer is in default of or ceases payments or goes into administration. The Buyer shall, then, be obliged to furnish Brabender® with all data and/or documents necessary for the collection of debts by Brabender® and shall notify Buyer’s debtors thereof.
Brabender® maintains an up-to-date quality control system and performs final shop tests on the Products – except for bought out spare parts -, so as to assess conformity of the Products with contract specifications, technical standards, and – where applicable – legal provisions. Test results will be recorded in a manner relevant to the case and may – if so agreed upon – be disclosed or made available to the Buyer as hardcopy.
Upon delivery, the Buyer shall perform an incoming test and shall promptly notify Brabender® in writing, if – contrary to expectations – the Products shall classified to be defective or non-compliant, adequately supported by a detailed non-conformity report ( NCR ). However, delivery by Brabender® shall be deemed to be according to contract, as long as the Buyer does not – within 10 ( ten ) days upon delivery or discovery – file an objection on account of any apparent or hidden faults as the case may be.
Brabender® warrants that the Products – except for expendable parts and consumable supplies – will operate substantially in conformance with the contract specifications as agreed upon, when subjected to normal, proper, and intended usage by properly trained and skilled personel of the Buyer, for a period of 1 (one) year from the Date of Shipment to the Buyer ( the “Warranty Period” ). Brabender® agrees during the Warranty Period, provided it is promptly notified in writing within 10 (ten) days upon the discovery of any defect and further provided that all costs of returning the defective Products to Brabender® shall be pre-paid by the Buyer, to do up or replace, at Brabender® ’s option, so as to cause the same to operate in substantial conformance with the contract specifications. Replacement parts may be new or refurbished, at the discretion of Brabender®. All replaced parts and components shall become property of Brabender®. Shipment to the Buyer of done up or replaced parts and components shall be made in accordance with the provisions of clause 5 hereto.
With regard to any Software Products Brabender® assumes – in a like manner – a limited warranty to the extent that any Software Products conform to the contractual specification and are suitable for installation and configuration by the Buyer persuant to the software installation instruction(s) provided by Brabender®; however, not to the extent, that such Software Products will be absolutely error-free or interoperable in any and all software and/or hardware environments.
In no event shall Brabender® have any obligation to make repairs, replacements or corrections required, in whole or in part, as a result of (I) use of the Products in a manner for which they are not designed, (II) misuse, fault, or negligence of or by the Buyer, (III) normal wear and tear, (IV) causes external to the Products such as, but not limited to, improper power, water, or compressed air supplies, (V) use of the Products in combination with foreign equipment and/or foreign software or (VI) insignificant modification of the product specification by Brabender®.
Any installation, maintenance, repair, service, relocation, or alteration to or of, or other tampering with the Products performed by any person or entity other than Brabender® or Brabender® ’s authorized representative, or any use of replacement parts not supplied by Brabender® shall immediately void and cancel all warranties with respect to the affected Products, unless Brabender® ’s prior written approval so to do was granted to the Buyer.
If Brabender® fails to do up or replace the defective Products within a reasonable time or fails to establish substantial compliance of such Products with the contract specifications, then, the Buyer shall be entitled to request an appropiate reduction of the contract price or may – cases of negligible defects excepted – withdraw from the contract and, further, may – pursuant to the provisions of clause 13 hereto – demand compensation by reason of breach of warranty by Brabender®.
13. Limitation of Liabilility
Brabender® shall be liable to make compensations – pursuant to the legal provisions of the Liability for Defective Products Law ( ProdHaftG ) and of the German Civil Code ( BGB ) – only in cases of (I) willful act, (II) gross negligence, (III) guarantee of quality or durability, inasmuch as expressly agreed upon in writing, (IV) breach of duty as obligor, or (V) harm to persons ( damages to life, limb and healthiness ).
Any such claim for compensation by the Buyer shall, further, be limited to contract-specific damages that – with respect to the Product(s) giving rise to such liability – may reasonably be anticipated. In no event, however, shall Brabender® or its employees or agents be liable for any other damages regardless for what reason, in particular not for indirect, special, consequential, or incidental damages including, but not limited to damages for loss of use of facilities or equipment, loss of data, loss of revenue, loss of profits, or loss of goodwill.
Save as otherwise provided by law, any claim for compenstion of the Buyer shall be deemed to be in lapse after the Warranty Period of clause 12 subsection 3 hereto has expired.
14. Export Restrictions
The Products and any related Software Products supplied by Brabender® and – in a like manner – any technology including documents or other material containing technical data and other information ( the “Items” ), may be subject to export controls of German (FRG-) or European Community (EC-) legislation that may restrict the export of any of the Items from the FRG or the EuropeanCommunity/European Economic Area and their re-export from other countries.
Brabender® undertakes to comply with such Export Laws and Regulations and, thus, shall not, without first obtaining permission so to do from the government agency in charge, export or re-export any of the Items into any of those countries listed as countries subject to trade embargoes or to any persons who are specially designated nationals of such embargoed countries.
The Buyer shall cooperate fully with by Brabender® in any audit or inspection related to Export Laws and Regulations of the FRG or the EC. The Buyer shall, further, obtain and maintain, at its own expense, any governmental consents, authorizations, approvals, filings, permits, or licenses as required for the Buyer to import or re-export any of the Items from any non-FRG/ non-EC governmental body.
The Buyer agrees to indemnify and hold Brabender® harmless from, or in connection with, any violation of the provisions hereabove by the Buyer or its employees, agents, or customers.
15. Applicable Law and Venue, Severability Clause
All rights and obligations of the parties hereto shall exclusively be governed by and construed as a sealed instrument in accordance with the laws of the Federal Republic of Germany without reference to its choice of law provisions. The application of the U.N. Convention on Contracts for the Internatinal Sale of Goods ( CISG ) is hereby expressly excluded.
Each party hereto irrevocably consents to the exclusive jurisdiction of the responsible state courts at Brabender®’s domicile in the City of Duisburg, State of Nort Rhine-Westfalia, in any action arising out of or relating to the agreement(s) by and between Brabender® and the Buyer and waives any other venue to which it may be entitled by domicile or otherwise.
In the event that any or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Any such invalid, illegal, or unforceable provision shall, henceforth, be replaced by a provision that – in consideration of the purpose of the sales contract – is good under law and jurisdiction.