KROHNE Group – Terms and Conditions
Standard Terms and Conditions of Sale and Delivery of the KROHNE Group
a. Contract means the written agreement, including these Terms and Conditions, and any attachment/addendum to them together with the relevant Seller’s quotation and the Order made between Seller and Purchaser for the supply of the Goods, Software and/or provision of Service. If the scope of Supply includes Software, these Terms and Conditions will be supplemented by Software License Terms provided by the Seller. If the scope of Supply includes erection and installation of the Goods and Software, these Terms and Conditions will be supplemented by erection and installation services addendum mutually agreed in writing between the parties.
b. Contract Price means the price payable to Seller by Purchaser for the Goods, Software and/or Services.
c. Order means a purchase order issued by Purchaser that specifies only the quantity and type of Supply ordered, Supply descriptions, Goods specifications, shipment and invoice information and shipping instructions accepted in writing by the Seller, and excluding any of Order terms whether printed, stamped, typed, written, or sent by any electronic means.
d. Purchaser means any person, firm, entity, company or corporation that purchases Goods, Software and/or Services from the Seller.
e. Seller means Ludwig KROHNE GmbH & Co. KG or any affiliate of the KROHNE Group of companies which is identified in the Contract.
f. Software means software provided by Seller, and all related documentation (if agreed upon in writing to be provided by Seller). Software includes any updates, upgrades, error corrections, changes or revisions if agreed upon in writing to be provided by Seller to Purchaser under the Contract.
g. Supply means products and parts (collectively ”Goods”), documentation, services (“Services”) and Software to be supplied or licensed by the Seller to the Purchaser under the Contract.
1.2 The Contract shall represent the entire agreement between the Seller and the Purchaser, and shall take precedence over any terms and conditions issued by the Purchaser at any time. No additions or qualifications to the Contract shall be valid unless they have been accepted by the Seller as a formal Order/Contract amendment signed by the Seller’s relevant authorized staff.
1.3 Seller shall acknowledge and accept the relevant Order issued by the Purchaser within 14 working days of the Order being received; hard copy confirmation to follow by form of acknowledgement within 21 working days. The acceptance of the Order by Seller shall not be construed as a legal counteroffer by Purchaser.
1.4 In case certain provisions of these Terms and Conditions and/or the Contract will be regarded as invalid, the validity of the remaining provisions of these Terms and Conditions and of the Contract shall not be affected. Purchaser and Seller will replace the invalid provisions by such valid provisions being legally permitted and corresponding as close as possible to the legal and economic sense and purpose of the invalid provisions.
1.5 Purchaser acknowledges and hereby expressly consents, as follows:
(a) in the performance of the Contract, and the delivery of any documentation hereunder (“Purpose”), Personal Data (as defined below) may be generated, disclosed to the Purchaser and/or incorporated into files processed by Seller or by the Seller’s affiliates;
(b) Personal Data will be stored as long as such data is necessary for the Purpose, and must be deleted immediately after it has been used for the Purpose.
(c) it represents and warrants that it shall not disclose the Personal Data to third party without the prior written consent of the Seller.
(d) it shall comply with its respective obligations under applicable data protection and privacy laws to the extent that, in connection with the Purpose and the provision of the obligations under the Contract, the Purchaser processes (i.e. collects, stores, transfers, etc.) Personal Data.
Upon becoming aware of a security incident, the Purchaser shall inform the Seller without undue delay and shall provide all such timely information and cooperation as the Seller may reasonably require to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) applicable data protection law.
As used herein, “Personal Data’ means any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
2. VALIDITY OF THE QUOTATION, ORDER ACKNOWLEDGEMENT AND VARIATIONS
2.1 All quotations are subject to alteration until the Order is accepted by Seller in writing.
2.2 Unless previously revoked by Seller, the Seller’s quotation is open for acceptance within the period stated therein or, when no period is so stated, within 30 days after its date of submission.
2.3 The Contract shall become effective only upon the date of acceptance of Purchaser’s Order by the Seller with a written acknowledgement of the Order, and the date of fulfilment of all conditions precedent stipulated in the Contract, whichever is the later (the "Effective Date").
2.4 The Order acknowledgement by Seller shall also be valid without hand-written signature. If the delivery of the Supply has taken place without prior written Order acknowledgement, the Contract takes effect and precedent upon delivery. Confirmed Orders cannot be put on hold or cancelled by the Purchaser without Seller’s expressed written approval.
2.5 The Order acknowledgement shall govern the extent of the deliveries to be performed according to the Contract. Any information regarding the quality or characteristics of the Supply outside the Order acknowledgement, for example, in advertising material, shall be without any legal effect.
2.6 Any documents relating to the offer or the Order acknowledgement, such as sketches, drawings, dimensions and weights shall not be binding unless they are expressly specified and agreed in writing by the parties.
2.7 In case of variations which affect or may affect the Order, each Party shall notify the other Party in writing. Upon Seller’s receipt (or issuance) of such notification, Seller will inform Purchaser in writing: (i) whether or not such variations are acceptable, (ii) price and/ or schedule impact (if any) and (iii) any other commercial or technical impacts or conditions (if any). Only upon receipt of Purchaser’s written confirmation of acceptance of Seller’s informed/proposed impacts and conditions and upon Purchaser’s compliance with any consequent obligations (if applicable) such as advanced payments, amendments of payment vehicles or the submission of additional information, Seller shall incorporate and proceed with the above variations after signature by both Parties of the relevant variation Order.
3.1 The Supply will materially comply with specifications, drawings, samples or other description of the Supply provided by Purchaser (collectively hereinafter referred to as “Purchaser’s Specifications”) to the extent accepted by the Seller in writing. Provided however, Purchaser’s Specifications and application of the Supply are Purchaser’s sole responsibility and Seller shall not be liable for any damage, loss, claim, cost, expense and the like arising out of or in connection with Seller’s compliance with Purchaser’s Specifications and/or Purchaser’s application of the Supply. The Seller may, at its sole discretion, make suggestion or improvement of Purchaser’s Specifications based on its core competence.
3.2 Functional Design Specification (FDS); Delivery of FDS (if applicable) shall be deemed to have taken place as long as the FDS has been submitted to Purchaser. The content of the FDS shall be exclusively applicable to the Supply. The FDS shall be approved by Purchaser in writing within the agreed period. From the date the FDS has been agreed, FDS is firm and fixed, and any further deviations from the FDS will require variation Order subject to Clause 2.7.
3.3 The Seller reserves the right to alter the manufacturing, choice of material, Seller’s products specifications and the design even after the acceptance of the Order to the extent that such alterations are not in conflict with the Order. In addition, the Seller reserves the right to effect minor modifications and/or improvements to the Supply before delivery provided that the performance of the Supply is not adversely affected and that neither the Contract Price nor the delivery date is affected.
4. DRAWINGS, TECHNICAL DATA, CERTIFICATION, INSPECTION
4.1 The Seller agrees, when requested by Purchaser and agreed in the Order, to provide against extra charge certified drawings, technical data and certification in association with the Goods. All other sketches, drawings, descriptive matters, weights, dimensions and shipping specifications provided by the Seller and the descriptions and illustrations contained in the Seller catalogues, price lists and other advertising matter are approximate only, and are intended merely to represent a general idea of the Goods and shall not form part of the Contract.
4.2 Goods will be inspected by Seller or manufacturer pursuant to the Seller's or manufacturers standard inspection and tests procedure before dispatch. Any additional tests or inspection (including inspection by Purchaser or its representative, or tests in the presence of Purchaser or its representative and/or calibration) or the supply of test certificates and/or detailed test results shall be subject to Seller's prior written agreement and at Purchaser’s expense. If Purchaser or its representative fails to attend such tests, inspection and/or calibration being notified by Seller with seven days' notice, the tests, inspection and/or calibration will proceed and shall be deemed to have been made in the presence of Purchaser or its representative. The Seller's statement that the Goods have passed such testing and/or inspection and/or have been calibrated shall be conclusive and final.
5. DELIVERY TERMS, ACCEPTANCE AND DISPATCH
5.1 Delivery terms are Ex-Works (Incoterms 2020 or the newest edition), unless other delivery term is agreed by parties in writing. The Goods are packed in accordance with Seller’s standard packing procedure, unless otherwise agreed between the parties in writing.
5.2 The Seller will endeavor to comply with the confirmed delivery time. The statements regarding delivery times are made according to Seller’s commercially reasonable discretion without being binding unless the delivery date has been agreed upon by Seller in writing as a fixed date.
5.3 The delivery time commences after Effective Date upon technical and commercial clarification of the Order and submittal of all required approvals, documentation and information by Purchaser. If the Purchaser does not fulfil its material contractual and payment obligations the delivery time shall be extended reasonably at Seller’s discretion. Delivery time shall be reached when the Purchaser is notified by Seller within the agreed delivery time of the readiness of the Goods for shipment. Any alterations of the Order demanded by the Purchaser within the agreed delivery time shall interrupt or extend the delivery time accordingly.
5.4 Unforeseeable events entitle the Seller to postpone delivery for so long as the impediment persists plus an appropriate additional period. Unforeseeable events are such circumstances as those which cannot be avoided by reasonable care due to circumstances, including without limitation: war, currency and economical or other sovereign measures, civil disturbance, natural events, fire, flood, storm, pandemic disease, quarantine, explosion, earthquake, riots, strikes, labour disputes, lock-outs, non-supply of materials arising through no fault of the Seller, traffic obstructions, operation interruptions, any law or regulation changes, any decision by any judicial or arbitral tribunal or any other acts of any government or any agency or instrumentality thereof or persons purporting to act with governmental authority, or any other cause beyond the reasonable control of Seller or which Seller is not able to overcome by the use of reasonable measures or which Seller is able to overcome only at substantial expense ("Unforeseeable Events”).
Should the Seller directly or indirectly be prevented from carrying out its obligations under the Contract before or after the due date for delivery owing to any Unforeseeable Events, (whether in the Seller's business or that of any of its suppliers or sub-contractors) the Seller reserves the right (without prejudice to any other rights it may have at law or under the Contract) in its absolute discretion and at the Seller's election, and without any obligation or liability, to do one or more of the following:-
a. To suspend or delay dispatch or delivery of the Supply until such time as it may be reasonably practicable to dispatch or deliver the same.
b. To use substituted materials for any Goods specified in the Contract provided that such substituted materials are in the Seller's view an adequate substitute for the Goods so specified.
c. To cancel the Contract or any uncompleted portion thereof. In such cases, the Seller is entitled to cancel the Contract without any liability or obligation to pay any costs, expenses, losses and damages whatsoever. The Purchaser may not refuse partial deliveries or partial fulfilment. Purchaser shall be obliged to pay the reasonable cost and expense of any work in progress and to pay for all Supply delivered and/or ready for shipment as at the date of termination.
5.5 Both parties are aware of the current COVID-19 pandemic and agree that the delivery date/schedule may be affected by measures implemented by government, federal, municipal and recognized health authorities requiring companies to interrupt business operations, imposing quarantines or any other measures to prevent the spread of COVID-19 (“COVID-19 Events”). In case of COVID-19 Events, Seller may adjust the delivery dates/schedule accordingly, and Seller shall not be liable for any damages, including liquidated damages, for any delay caused by COVID-19 Events.
5.6 If delivery of Supply is delayed for reasons other than Unforeseeable Events, the Purchaser shall grant an appropriate extension of time in writing.
5.7 In all cases claims of the Purchaser for damages due to delayed delivery are excluded. This shall not apply to the extent the Seller is in delay due to its willful actions or gross negligence.
5.8 In case that no fixed dates for acceptance have been agreed upon, the Purchaser shall accept the Supply within 7 working days after delivery/completion. If Purchaser fails to notify the Seller for its acceptance/rejection of the Supply within the agreed fixed dates for acceptance or 7 working days after delivery/completion, whichever is applicable, Supply is deemed accepted. In case the Supply is rejected partially or entirely, Seller will, at its option, repair, replace, or re-perform rejected Supply.
5.9 If the Purchaser has submitted an “open purchase order”, he is committed to accept all the ordered Goods by such “open purchase order” within 12 months after the issuance date of Order.
If the Purchaser does not pick up or accept the delivery of the Supply at the agreed delivery date, Purchaser shall be obliged to pay the invoices issued for the Supply, prior to the delivery of the Supply pursuant to the agreed payment terms. Notwithstanding any further rights and remedies provided at law or under the Contract, the Seller shall be entitled to arrange the storage of the Supply at the expense and risk of the Purchaser.
7. PASSING OF RISK
7.1 The risk shall pass on to the Purchaser upon delivery pursuant to EX-works delivery terms or other delivery terms agreed between the parties in writing (Incoterms 2020 or the newest edition). Purchaser shall be responsible for insurance of the Goods after risk has so passed. The Seller shall not be liable for any loss or damage to the Supply after the risk has been transferred to the Purchaser pursuant to delivery terms provided above.
7.2 If the Software is provided via electronic communication media (e.g., via the internet), the risk shall pass when the Software leaves the sphere of influence of the Seller (e.g. when making a download).
8. RETENTION OF TITLE. PURCHASER’S FINANCIAL CONDITIONS
8.1 The Goods shall remain in the property of the Seller until Purchaser pays the Goods in full. Regarding a running account of the Purchaser, the property to which the Seller has reserved title shall be the security for the outstanding balance on Purchaser’s account.
8.2 The Purchaser is not entitled to pledge or transfer as a security any Goods being subject to retention of title. The Purchaser shall immediately inform the Seller about attachments or seizures or other disposals by third parties.
8.3 In case the retention of title will be qualified as invalid in the country to which the Goods are delivered, such security for the purchase price claim of the Seller shall be deemed to have been agreed upon, which can be validly stipulated in the respective country and which corresponds as close as possible to the retention of title from the economical point of view. The Purchaser shall take and perform all steps and measures insofar as actually or legally necessary.
8.4 If the Purchaser fails to pay the Goods within the agreed payment terms, the Seller may recover all or any of the Goods from the Purchaser without notice at any time they are in the possession of the Purchaser and for that purpose the Seller and its servants and agents may enter upon any land or building upon which the Goods are situated.
8.5 In case of material changes in the financial condition of the Purchaser after the Effective Date, Seller shall be entitled, without any liability, to refuse to deliver until the Purchaser has provided to the Seller corresponding security or pays the Supply in advance. If before all due invoices under the Contract are paid, the Purchaser (being an individual or individuals) shall be the subject of a receiving order in bankruptcy or shall make any assignment or deed of arrangement for, or any composition with creditors generally, or (being a company or companies) shall become the subject of a winding-up order or of the appointment of a receiver or receiver and manager, or shall make any arrangement with its creditors generally, or if any execution is levied or any distress is threatened or made at any premises occupied by the Purchaser, or if the Purchaser ceases to carry on business, then without prejudice to the rights of the Seller to exercise any other remedies under the Contract or at law, the Seller shall be entitled, without any liability, to rescind the Contract by giving written notice to the Purchaser.
9. PRICES AND PAYMENT CONDITIONS
9.1 The prices provided in the Seller’s quotation and the Contract are Ex-works (Incoterms 2020 or the newest edition) excluding packaging and other costs for handling and transportation, and excluding any and all taxes, duties, levies and the like including without limitation: (a) Value Added Tax; (b) sales tax and (c) any similar and other taxes, duties, levies or other like charges.The actual valid prices for the Goods/Supply to be supplied under the Contract shall be the list prices based on Seller’s current international price list as of the date of the Goods/Supply shipment/ Services performance, as confirmed in the Seller order acknowledgement.Prices may be subject to escalation by Seller due to currency fluctuation, changes in the price of materials, components and labor during the performance of the Order. The Purchaser will be informed in writing at least 90 days in advance before price changes will be applied.
9.2 The Seller reserves the right to require a € 200, - minimum order amount (or equivalent of local currency), per delivery, in response to Orders unless waived by Seller in writing.
9.3 The packaging shall be calculated at cost (minimum of 1% of Contract Price) and cannot be returned. If applicable, the prices shall be increased by the value added or applicable sales tax as required by law.
9.4 Should it be necessary for any reason to dispatch any major item comprised in the Supply separately this will be invoiced and the invoice will be payable by the Purchaser when such item is available for packing, notwithstanding that any other items comprised in the Supply not essential for the work in hand shall not be available for packing.
9.5 In case of a material and unforeseeable alteration of the Supply not under control of the Seller, the Seller reserves the right to agree with the Purchaser on a price deviating from the Contract.
9.6 In case of changes required by the Purchaser after dispatch of the Order acknowledgement, any potential additional costs will be invoiced to the Purchaser.
9.7 Any payments shall be made by the Purchaser within 30 days after the date of invoice. Payment shall be made in full without set-off, counterclaim or withholding of any kind.
9.8 Seller reserves the right to charge interest for delayed payment on any overdue invoiced sums at 8% above the local bank base lending rate (or such higher rate stipulated by applicable law) during the period of delay. Seller reserves the right to suspend performance of the Contract (including withholding any further shipments) in the event that Purchaser fails, or, in Seller’s reasonable opinion, it appears that Purchaser is likely to fail to make payment when due under the Contract or any other contract. Seller may at any time require such reasonable security for payment as Seller may deem reasonable.
9.9 Bills of exchange, cheques or payment by a third party (if explicitly agreed in writing by the Seller) do not count as payment until they are cashed, bank and other charges shall be borne by the Purchaser.
9.10 In the event the Purchaser fails to pay in full the whole or any part of the price payable under the Contract when due, the Seller shall be released from the Contract and shall be entitled to sell the Supply or any part thereof without notice to the Purchaser, and to recover from the Purchaser any loss incurred due to the Purchaser’s default. The rights conferred on the Seller in this Clause shall not prejudice any other right it may have under the Contract or at law.
9.11 In all cases time of payment is of the essence of the Contract.
10.1 The Seller warrants that Seller’s Goods, under normal use and services installed and operated in accordance with the Seller’s installation manuals, comply with applicable current Seller products specifications and are free from defects in material and workmanship for a period of 12 calendar months computed from the date of commissioning or 18 months from the date of delivery, whichever comes first (“Goods Warranty Period”). Where the Seller is supplying services, Seller warrants that Services materially comply with the agreed requirements for 6 calendar months from date of the performance of the Services (“Services Warranty Period”).
10.2 During the Goods Warranty Period Seller will, at its option, repair or replace defective part of the Goods. Repair / replacement of any defective parts in the Goods shall be limited to the cost of repairing the part or the cost of the replacement part provided that the part or parts are returned to the Seller's factory by the Purchaser carriage paid. During the Services Warranty Period, Seller’s warranty obligations for Services are limited to re-performance of the non-conforming Services.
10.3 The Seller shall be under no liability under the above warranty or for any other warranty, condition or guarantee, if the total price for the Supply has not been paid by the due date for payment.
10.4 Notwithstanding the warranty provided by the Seller in this clause 10, the Purchaser is solely responsible for determining the suitability of the Goods for the Purchaser’s use as well as for the selection of materials associated with the combination of process fluid properties, operating process and environment, and Seller shall not be liable for any damage, loss, claim, cost, expense and the like arising out of or in connection with Purchaser’s and/or its customers’ use of the Goods as well as for the selection of materials associated with the combination of process fluid properties, operating process and environment.
10.5 The Purchaser shall examine the Goods immediately after receipt with responsible care; defects discovered shall be reported to the Seller within a preclusive period of 7 working days in writing. Not recognizable defects shall be reported in writing to the Seller within 2 weeks after discovery during the Goods Warranty Period.
10.6 The Seller adheres to the basic principle that functionally adequate spare parts for each Seller Goods or each important accessory part of it will be kept available for a period of 5 years after delivery of the last production run for the respective Seller Goods. This regulation only applies to spare parts which are under normal operating conditions subject to wear and tear. After the expiry of the Goods Warranty Period, Purchaser may purchase such spare parts at the Seller’s then current prices.
10.7 Spare parts, parts being subject to wear and tear, consumables and parts being designated to become a part of or to be converted into other products are not subject to warranty. The repair or replacement of such parts are at Purchaser’s expense. The Purchaser is committed to examine such parts and give notification of defects within the acceptance period provided in Clause 10.5. Any warranty claims are excluded after installation or conversion.
10.8 In case the Purchaser requests examination of the delivered Goods by the Seller and alleges a defect for which the Seller would be responsible according to this Clause 10, the Purchaser shall bear the associated costs incurred by the Seller in case the delivered Goods are free from such defects.
10.9 To the extent permitted by the applicable law, other or further claims of the Purchaser based on defects including without limitation claims for indirect costs and expenses, direct, indirect or consequential damages and/or losses, are expressly excluded.
10.10 The Purchaser undertakes to ensure that it and all its employees, servants and agents will observe all safety and technical instructions in the Seller’s or manufacturer's installation and operating instructions/manuals, bulletins and other directions being made available to the Purchaser by the Seller. This obligation also applies to Purchaser’s responsibility to select the material as set forth in clause 10.4.
10.11 The Seller is not liable, and will not be liable for defects: (i) if the Goods delivered have been dismantled by a party that is not authorized by the Seller; or (ii) if the Goods are altered by the incorporation of parts produced elsewhere and the cause of the damages relates to such alterations; (iii) if the Purchaser does not duly observe the Seller’s instructions for handling the Goods (installation & operation instructions/manuals); or (iv) if the Goods are repaired or replaced by Purchaser or a third party not authorized by the Seller; or (v) for ensuring that any combination of equipment included in the Goods of which all or part has been selected, free issued or nominated by the Purchaser (and not manufactured by the Seller) is in any way satisfactory or fit for the purpose for which it is intended and the onus of ensuring this shall be on the Purchaser.
10.12 This clause 10 shall not apply to Goods delivered by Seller that are manufactured by a third party. In case the Goods are not manufactured by the Seller, it shall transfer to the Purchaser the third party warranties, if any, to the extent Seller has the right to transfer.
10.13 Software Warranty: Software is not warranted under these Terms and Conditions. Software is warranted pursuant to the Software License Terms provided by the Seller.
10.14 TO THE EXTENT PERMITTED BY THE APPLICABLE LAW, WARRANTIES IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE REMEDIES IN THIS SECTION ARE PURCHASER’S ONLY REMEDIES FOR BREACH OF WARRANTY.
11. GENERAL LIMITATION ON LIABILITY
11.1 Subject to clauses 11.2 and 11.3, Seller does not attempt to exclude any liability for:
(i) for damages caused by Seller’s wilful action or gross negligence;
(ii) for personal injury or death resulting from the Seller’s negligence;
(iii) personal injury or damages to property according to the German Product Liability Act based on a defect of the delivered Goods;
(iv) for any matter for which Seller may not exclude or attempt to exclude its liability under applicable law.
11.2 In no event shall Seller and Seller’s affiliates be liable whether in contract, tort (including, without limitation, negligence), misrepresentation or otherwise howsoever arising for any special, indirect or consequential loss, cost, expense or damage, nor for a) any loss of profits; (b) loss of anticipated profit, (c) loss of business, (d) increased costs; (e) loss of revenue; (f) loss of production, (g) loss of contracts/ opportunity; (h) loss of use; (i) loss of data; (j) recall of product, and/or (k) pollution and /or environmental damage.
11.3 Subject to clause 11.2, Seller’s and Seller’s affiliates’ total aggregate liability under the Contract shall be limited either to the amount of the purchase price of the Supply payable under the Contract or €1,000,000 (euro one million), whichever is lower. Seller’s and Seller’s affiliates liability under this Contract shall expire with the expiry of the applicable Warranty Period.
11.4 Except for Seller’s gross negligence or willful misconduct, the Purchaser shall, at its expense, indemnify, defend and hold harmless Seller and Seller’s affiliates from and against any and all damage, loss, cost, expense, claim and liability the Seller and/or any Seller’s affiliate may incur at any time whether in tort or otherwise to any employee or agent of the Purchaser in respect of any defect or failure of the Supply caused by Purchaser’s misapplication of Seller’s Supply due to incorrect process design provided by the Purchaser.
11.5 Purchaser shall assume responsibility for, and shall indemnify Seller and Seller’s affiliates from and against, any and all costs, expenses, damages and liabilities relating to the control and removal of pollution or contamination connected with the performance of the Contract:
11.5.1 that originates from spills of crude fuels, fuels, lubricants, motor oils, pipe dope, paint, solvents, ballast, bilge and garbage, debris or any other substances in Purchaser’s possession or control or originating property of Purchaser; or
11.5.2 that otherwise results from performance of the work hereunder by Purchaser.
12. TERMINATION & CANCELLATION
12.1 No cancellation or termination of the Contract and/or Order of the Purchaser shall be accepted 4 weeks after the Order acknowledgement by Seller.
12.2 Subject to Clause 12.1, any purported cancellation of the Contract by the Purchaser within the 4 weeks period from the Order acknowledgment by the Seller shall be effective only:
12.2.1 If made in writing by the Purchaser and
12.2.2 Only If accepted in writing by the Seller and
12.2.3 On payment by the Purchaser of:
a. Minimum of 30% Contract Price and charge of work performed to date of cancellation (including compensation fee for loss of profit) of the Supply;
b. Such expenses as may be notified to the Purchaser by the Seller as the Seller may have incurred in connection with the Contract.
12.3 If the Purchaser is in default or commits any breach of its obligations to the Seller, then the Seller shall immediately become entitled (without prejudice to any other rights or claims which it may have at law or under the Contract) to suspend further performance of or to terminate the Contract.
13. EXPORT COMPLIANCE
13.1 Seller shall have no obligation to supply any Goods, software, services or technology unless and until any necessary licenses or authorizations or qualification for general licenses or license exceptions are received under applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time (including without limitation those of the United States, the European Union and the jurisdiction in which Seller is established or from which the items are supplied). If for any reason any such licenses, authorizations or approvals are denied or revoked, or if there is a change in any such applicable laws, regulations, orders or requirements that would prohibit Seller from fulfilling the Contract, or would in the reasonable judgment of Seller otherwise expose Seller and/or Seller’s affiliate(s) to a risk of liability under applicable laws, regulations, orders or requirements, Seller shall be relieved without any liability of all obligations under the Contract.
13.2 In no event shall Purchaser use, transfer, release, export or re-export any Goods, software or technology in violation of the applicable import, export control and sanctions laws, regulations, orders and requirements and/or the requirements of any licenses, authorizations or license exceptions relating thereto. Purchaser shall, at its expense, indemnify, defend and hold harmless Seller and Seller’s affiliates from and against any and all loss, cost, expense (including reasonable attorney and professional fees), claims, damage, or liability arising out of or resulting from or occurring in connection with Purchaser’s breach of this Clause 13.
14. SITE SERVICES
14.1 In respect of site Services to be performed by Seller, Purchaser shall ensure the following:
14.1.1 Site Services can be commenced and continued unhindered and undisturbed from the moment of arrival of Seller’s personnel.
14.1.2 Site Services can be performed during and outside normal working hours as required by the Seller.
14.1.3 Working conditions as necessary for the proper performance of the site Services are present.
14.1.4 Mandatory government permits have been obtained by the Purchaser.
14.1.5 Strict adherence to all reasonable directions given by Seller to ensure the proper performance of the Contract.
14.1.6 Availability of fully operational technical, spatial and communication facilities needed to enable any Supply to function. This includes, but is not limited to good access roads, transport facilities, adequate foundations, auxiliary supplies and equipment, power, water, light, properly air-conditioned rooms for the Supply, the presence of at least one appropriately skilled employee, as well as all other necessary aids and equipment.
14.1.7 Availability at Purchaser’s site of suitable and secure space for storing the Supply, materials and tools of Seller for performing the site Services, as well as a telephone for communications outside Purchaser’s site. Purchaser shall be liable for all damage to and loss of the Supply, materials, tools and instruments from any cause during storage at Purchaser’s site.
14.1.8 Suitable and safe facilities for Seller’s personnel in the immediate vicinity of the site Services.
14.1.9 Physical safety of Seller’s personnel; Purchaser’s Health and Safety program (including evacuation and emergency plans) shall be applicable to Seller personnel. Purchaser shall be wholly liable for damages and losses arising from the death of or physical injury to Seller’s personnel, resulting from Purchaser’s failure to meet this obligation.
14.1.10 Purchaser shall apply for and obtain all necessary site permits and licenses as required for Seller’s personnel to perform site Services, as well as prior notification to Seller of all relevant rules and procedures in connection therewith.
14.1.11 Messing facilities are available.
14.1.12 The Purchaser’s facilities and services described herein are available to Seller free of charge.
14.2 Site Services and/or service contracts are subject to annual price adjustments and additionally mutually agreed services terms and conditions addendum or a separate agreement.
Any Order accepted by the Seller and the Contract shall be treated as confidential by the Purchaser and the Purchaser shall not make use of the Seller’s name or the name of any of the Seller’s purchasers for publicity purposes without the prior written consent of the Seller. Furthermore, all designs, drawings, specifications and information supplied by Seller in connection with the Order are Seller’s confidential information and must only be used by the Purchaser solely for the purpose of this Order; the particulars contained therein and in other matter issued in connection therewith must not be disclosed to anyone other than the Purchaser’s employees without the Seller’s written consent. This Clause 15 survives the expiry or termination of the Order/Contract.
16. INTELLECTUAL PROPERTY RIGHTS
16.1 “Intellectual Property” means all copyrights (including software), trademarks, service marks, trade secrets, patents, utility models, designs, know-how, inventions and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations.
16.2 All Intellectual Property rights relating to the Supply and results of services, existing now or in the future, including any software, designs, drawings, sketches, cost estimates, documents, inventions and know-how, either conceived or developed by Seller in connection with the Contract, or existing prior to, or created independently of, the performance of the Contract, shall vest in Seller.
16.3 Purchaser is not entitled to reproduce or disclose any Supply, Goods, drawings, sketches, cost estimates and documents to third parties without the prior written consent of Seller. At Seller’s request, such documents and any duplicates shall be returned to Seller except those documents that need to be kept with the Goods or by the Purchaser and/or the end-customer for statutory reasons.
16.4 Purchaser and its end-customers receives the right to use and sell the Goods as specified in the respective Goods technical specification provided by Seller on non-exclusive basis to the maximum extent grantable by Seller and limited to the territories the Goods are specified for. Except as expressly provided in the previous sentence, Purchaser shall not have any express or implied rights or licenses to the Intellectual Property owned or held by Seller.
16.5 If the Supply includes Software, it is licensed pursuant to the Software License Terms provided by the Seller. If the Purchaser does not agree to the Software License Terms provided by the Seller, Purchaser does not have any right or license to the Software.
17. SELLER’S TRADEMARKS
17.1 Purchaser shall not use, directly or indirectly, in whole or in part, any trademark, service mark, or trade name that is or may in the future be owned or licensed by Seller as part of Purchaser’s legal, official, fictitious, or other name or in any way in connection with the Purchaser’s business, except (A) to the extent Seller’s marks appear on the Goods used, stored and/or sold by Purchaser; and (B) to the extent that Seller may specifically provide its consent in writing at its sole discretion.
17.2 Purchaser acknowledges the ownership by Seller of its trademarks, service marks, and trade names, and agrees not directly or indirectly to challenge, question, or assist any other person in challenging or questioning Seller’s ownership or the validity of any or Seller’s trademarks, service marks, or trade names. Purchaser agrees not to attempt to register in its own name any Seller’s trademarks, service marks or trade names and agrees to report to Seller any known or suspected acts of infringement. Upon termination or expiry of the Contract and/or Order, Purchaser shall discontinue any previously approved use of Seller’s trademarks, service marks, or trade names.
18. DISPOSAL OF THE GOODS
18.1 Except to the extent otherwise required by applicable law, Seller shall have no responsibility for the collection, treatment, recovery or disposal of (i) the Goods or any part thereof when they are deemed by law to be 'waste' or (ii) any items for which the Goods or any part thereof are replacements. If Seller is required by applicable law, including waste electrical and electronic equipment legislation, European Directive 2002/96/EC (WEEE) and related legislation in EU Member States, to dispose of 'waste' Goods or any part thereof, Purchaser shall, unless prohibited by applicable law, pay Seller, in addition to the Contract Price, either (i) Seller's standard charge for disposing of such Goods or (ii) if Seller does not have such a standard charge, Seller's costs (including all handling, transportation and disposal costs and a reasonable mark-up for overhead) incurred in disposing of such Goods.
18.2 In case the Purchaser will pass on the delivered Goods to users other than private households the Purchaser shall be obligated to contractually commit such users to take care of the proper disposal of the delivered Goods according to the statutory and legal provisions and requirements applicable when the use of the delivered Goods has ended at his expense and shall further be obligated in case the delivered Goods are again passed to another user to agree on a respective commitment with such user. If the Purchaser failed to agree on such commitment, he shall be committed to recover the delivered Goods at his expense after the use of the delivered Goods has ended and to dispose them properly according to the statutory and legal provisions and requirements applicable as of the end of the use of the delivered Goods.
19.1 No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
19.2 Purchaser shall not be entitled to assign its rights or obligations hereunder without the prior written consent of Seller.
19.3 Seller enters into the Contract as principal. Purchaser agrees to look only to Seller for due performance of the Contract.
19.4 SUPPLY PROVIDED IS NOT SOLD OR INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR RELATED APPLICATIONS. Purchaser (i) accepts the Supply in accordance with the foregoing restriction, (ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users and (iii) agrees to defend, indemnify and hold harmless Seller and Seller’s affiliates from any and all claims, losses, liabilities, suits, judgments and damages, including incidental and consequential damages, arising from use of Supply in any nuclear or nuclear related applications, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller's liability is based on negligence or strict liability.
19.5 The headings to the Clauses and paragraphs of the Contract are for guidance only and shall not affect the interpretation thereof.
19.6 All notices and claims in connection with the Contract must be in writing.
20. JURISDICATION AND APPLICABLE LAW
20.1 The Contract, including these Terms and Conditions, and any Order shall be constructed and interpreted exclusively in accordance with the laws of Germany, excluding any choice of law rules which would cause the law of another jurisdiction to apply. The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) shall not apply to this Contract, including these Terms and Conditions, and any Order.
20.2 All disputes out of or in connection with this Contract, including these Terms and Conditions and any Order, including any questions regarding its /their existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the Rules of Arbitration of the German Arbitration Institute (DIS) (hereinafter referred to as “Rules”) by three arbitrators to be appointed in accordance with the Rules. The place of arbitration shall be Bonn, Germany. The proceeding shall be conducted in the English language.