T&Cs
ProTools Europe Terms of Sale
1. DEFINITIONS
In these Terms and Conditions of Sale, "Seller" means the selling entity listed on the order acknowledgement and invoice to Buyer, either Ridge Tool GmbH & Co OHG or Gustav Klauke GmbH; "Buyer" means the entity, firm, company or corporation by whom the order is given; "Goods" means the goods (including any Software and Documentation, as defined in Clause 9) described in Seller's Acknowledgement of Order form; “Services” means the services described in Seller’s Acknowledgement of Order Form; "Contract" means the written agreement (including these Terms and Conditions) made between Buyer and Seller for the supply of the Goods and/or provision of Services; "Contract Price" means the price payable to Seller by Buyer for the Goods and/or Services and “Seller Affiliate” means an Emerson Group company which is an affiliate within the meaning of Section 15 AktG (German Stock Corporation Act); “Terms” mean these Terms and Conditions of Sale.
2. THE CONTRACT
2.1 All orders must be in writing and are accepted subject to these Terms. No terms or conditions put forward by Buyer and no representations, warranties, guarantees or other statements not contained in Seller's quotation or Acknowledgement of Order nor otherwise expressly agreed in writing by Seller shall be binding on Seller. The Terms apply to all future dealings with Buyer.
2.2 The Contract shall become effective only upon the date of acceptance of Buyer's order on Seller's Acknowledgement of Order form. If the details of the Goods or Services described in Seller's quotation differ from those set out in the Acknowledgement of Order Form the latter shall apply.
2.3 No alteration or variation to the Contract shall apply unless agreed in writing by duly authorized agents of both parties. However, Seller reserves the right to effect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Contract Price nor the delivery date is affected.
2.4 If there are any conflicts, discrepancies or ambiguities, the following order of priority applies: (1) the Acknowledgment of Order Form , (2) these Terms, (3) the order, and (4) Seller’s quotation. Clauses 9 and 12 of these Terms take priority over the rest of these Terms.
3. VALIDITY OF QUOTATION AND PRICES
3.1 Unless previously withdrawn, Seller's quotation is open for acceptance within the period stated therein or, when no period is so stated, within thirty (30) days after its date of creation.
3.2 Prices are firm for delivery within the period stated in Seller's quotation and are exclusive of (a) Value Added Tax and (b) any similar and other taxes, duties, levies or other like charges arising outside Germany in connection with the performance of the Contract.
3.3 For Goods made from electrolytic copper a separate copper surcharge may be applied based on the proportion of electrolytic copper present in the Good according to the “Copper (Cu)” quotation price of Euro per 100KG as published at www.suedmetall.de/metallnotierungen before the day of the placement of the order or quotation at the discretion of Seller.
4. PAYMENT
4.1 Payment shall be made: (a) in full without set-off, counterclaim or withholding of any kind (save where and to the extent that this cannot by law be excluded); and (b) in the currency of Seller's quotation within thirty days of receipt of invoice unless otherwise specified by Seller’s Finance Department. Goods will be invoiced at any time after their readiness for despatch has been notified to Buyer. Services will be invoiced upon completion. Without prejudice to Seller's other rights, Seller reserves the right to: (i) charge interest on any overdue sums at 8% above the base lending rate of Section 247 BGB (German Civil Code) during the period of delay; (ii) suspend performance of the Contract (including withholding shipment) in the event that Buyer fails or in Seller’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Contract or any other contract; and (iii) under the same conditions require reasonable security for payment.
4.2 Buyer may set off counterclaims only if recognised or non-appealable by Seller. A right of retention may be exercised by Buyer only if it concerns the same contractual relationship.
5. DELIVERY PERIOD
5.1 Unless otherwise stated in Seller's quotation, all periods stated for delivery or completion run from the effective date and are to be treated as estimates only not involving any contractual obligations. Seller reserves the right to make partial shipments.
5.2 If Seller is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents (including but not limited to failure to provide specifications and/or fully dimensioned working drawings and/or such other information as Seller reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract Price shall both be adjusted accordingly.
5.3 If delivery is delayed due to any act or omission of Buyer, or if having been notified that the Goods are ready for dispatch, Buyer fails to take delivery or provide adequate shipping instructions, Seller shall be entitled to place the Goods into suitable storage at Buyer's expense. Upon placing the Goods into the storage, delivery shall be deemed to be complete, risk and title in the Goods shall pass to Buyer and Buyer shall pay Seller accordingly.
6. FORCE MAJEURE
6.1 The Contract (other than Buyer's obligation to pay all sums due to Seller in accordance with the Contract) shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Act of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage; governmental decisions or actions (including but not limited to prohibition of exports or re-exports or the failure to grant or the revocation of applicable export licenses), or labour trouble, strike, lockout or injunction. Seller shall have no obligation to supply hardware, software or technology or to provide Services in the absence of government permits or fulfilment of statutory conditions of exemption from such permits within the framework of import and export control (in particular, according to the regulations applicable in the United States, the European Union and the jurisdiction in which Seller has its registered office or from where components of the Goods are supplied) and the underlying circumstances could not be foreseen by Seller and are outside of Seller’s sphere of influence. In the event of revocation of issued government permits or in the event of a change in the applicable statutory import and export control regulations such that Seller is prevented from fulfilling the contract, Seller is discharged from the contractual obligation without any liability of Seller.
6.2 If either party is delayed or prevented from performance of its obligations by reason of this Clause for more than 180 consecutive calendar days, either party may terminate the then unperformed portion of the Contract by notice in writing given to the other party, without liability provided that Buyer shall be obliged to pay the reasonable cost and expense of any work in progress and to pay for all Goods delivered and Services performed as at the date of termination.
7. INCOMING GOODS INSPECTION
Buyer shall inspect the Goods without undue delay after delivery of the Goods as defined by, and at the point of delivery under the applicable Incoterms® rule specified in the Contract and in accordance with reasonable commercial practice. Such inspection shall in particular cover obvious transport damage, visible defects, incorrect quantity, incomplete delivery, and delivery of the wrong product. Buyer shall notify Seller in writing of any defects or discrepancies discoverable by such inspection without undue delay and in any event no later than seven (7) calendar days after delivery. Defects that are not reasonably discoverable by such inspection shall be notified to Seller in writing without undue delay after discovery and in any event no later than seven (7) calendar days after discovery, provided always that any such notification is made within the applicable warranty and limitation periods set out in these Terms. Failure by Buyer to comply with the foregoing inspection and notification requirements shall bar Buyer from asserting any warranty or defect claims in respect of the relevant non‑conformity, except to the extent such exclusion is not permitted under applicable mandatory law. Where notification is made in due time and in compliance with this Clause, any asserted defect shall be assessed and remedied exclusively in accordance with the warranty provisions set out in Clause 10, which shall constitute Buyer’s sole and exclusive remedies in respect of such defect.
8. DELIVERY, RISK & TITLE
8.1 Unless otherwise stated in the Contract, the Goods and Documentation will be delivered from its, its Affiliate’s or third party’s factory or warehouse (the point of delivery) Carriage Paid to (Incoterms® CPT) from its, its Affiliate’s or third party’s factory or warehouse (the point of delivery. Incoterms® used in the Contract shall be defined in accordance with the latest version of Incoterms. Seller shall be entitled to charge a flat-rate shipping charge per consignment for third party deliveries (where the delivery address differs from the ordering address). Customer will pay for freight, packing and handling at Seller’s then current rates. Unless expressly stated otherwise in this Contract, risk of loss for the Goods shall transfer to Buyer strictly in accordance with the Incoterms® rule specified in the Contract. Title to the Goods shall pass to Buyer as follows: (a) for any Goods and Documentation exported by Seller or its Affiliate from the United States, title shall pass to the Buyer when they pass the territorial limits of the United States; and (b) for all other Goods and Documentation, title shall pass to Buyer upon delivery of the Goods in accordance with the applicable Incoterms® rule as agreed in the Contract. Any shipping or commercial documentation is transferred solely for the purposes of performance of this Contract and does not affect title to the Goods and Documentation unless expressly stated otherwise.
9. DOCUMENTATION AND SOFTWARE
9.1 Title to and ownership of the copyrights in software and/or firmware incorporated into or provided for use with the Goods ("Software") and documentation supplied with the Goods ("Documentation") shall remain with the relevant Seller or Affiliate (or such other party as may have supplied the Software and/or Documentation to Seller) and is not transferred hereby to Buyer.
9.2 Except as otherwise provided herein, Buyer is hereby granted a non-exclusive, royalty-free, revocable limited licence to use the Software and Documentation in conjunction with the Goods, provided that and for so long as the Software and Documentation are not copied (unless expressly authorised by applicable law) and Buyer holds the Software and Documentation in strict confidence and does not disclose them to others, or permit others to have access to them (other than Seller's standard operating and maintenance manuals). Buyer may transfer the foregoing limited licence to another party which purchases, rents or leases the Goods, provided only that the other party accepts and agrees in writing to be bound by the conditions of this Clause 9.
9.3 Notwithstanding Sub-clause 9.2, Buyer’s use of certain Software, (as specified by Seller) shall be governed exclusively by the applicable Seller Affiliate or third party licence agreement.
9.4 Seller and Seller Affiliates shall retain ownership of all inventions, designs and processes made or evolved by them.
9.5 Except set out in this Clause 9 no other rights in intellectual property are hereby granted
10. WARRANTY FOR DEFECTS
10.1 Seller warrants that upon passing of the risk the Goods and Services will have the quality agreed upon. Unless otherwise agreed by both parties in writing, the quality agreed upon shall meet Seller's specifications as valid and published at the time of the order confirmation.
10.2 If, upon passing of the risk, the Goods or Services do not have the quality agreed upon, Seller warrants to provide subsequent performance by either, at its option, repairing or replacing the concerned parts (subsequent rectification) or by replacing the Goods or Services by such Goods or Services which are free from defects (subsequent delivery).
10.3 Seller may rectify any defect several times and may decide at its discretion to change from rectification to subsequent delivery. Seller shall be responsible for all costs incurred in connection with its subsequent performance, especially the transport, shipping, labour and material cost, unless such costs are incurred as a result of the Goods being taken to a place other than the place of delivery. Buyer may set a reasonable period of at least four (4) weeks to Seller for him to provide subsequent performance and, if subsequent performance fails during such period, may demand reduction of the Contract Price after expiry of that period or, unless the defect is insignificant, may rescind the Contract. Damages may only be claimed in line with Clause 12.
10.4 Any claims and rights based on defects will become time-barred, except in the case of intent, after expiry of twelve (12) months since taking into operation of the Goods, however no later than eighteen (18) months since delivery. Claims to damages based on defects will become time-barred after expiry of the statutory period if they result from a violation of another's life, health or body, or from Seller's gross negligence.
10.5 Seller assumes no warranty for normal wear and tear, material provided by Buyer, processing of the Goods made by Buyer, damage due to improper storage, operation or due to inadequate maintenance, or damage resulting from any modification or repair not approved beforehand by Seller in writing. Seller will not be liable where any non-authorised software or non-authorised repairs to Goods occurs including the use of non-authorized spare or replacement parts. Any costs incurred by Seller for examining and removing such defects not covered under this limited warranty will be borne by Buyer upon demand. Buyer will always be responsible alone for the completeness and correctness of any information provided by it to Seller.
10.6 Buyer may only use the Goods for their intended purpose and must ensure that these Goods are only resold to persons familiar with the risks and hazards associated with the Goods. When using the Goods as starting material or components of Buyer’s own products, Buyer shall be obliged, when introducing the finished product to the market, to include an appropriate warning in respect of the Goods supplied by Seller. Upon first request, Buyer shall indemnify Seller from claims against Seller in the event Buyer has not included such a warning.
10.7 Regarding Goods or Services sourced by Seller from a third party (other than a Seller Affiliate) for resale to Buyer, Seller assigns to Buyer all warranty rights against such third party. In addition, Seller remains obliged to assume the warranty set forth the preceding clauses towards Buyer, however, only under the restriction that Buyer has beforehand unsuccessfully tried to execute the assigned warranty rights against the third party.
10.8 In case of Buyer purchasing Goods from Seller which are customized specifically for Buyer, it is the responsibility of Buyer to ensure that its instructions and specifications provided to Seller are correct, sufficient and suitable for the desired customized Good. To the extent permitted by law and subject to clause 12 Seller shall not be liable to Buyer for any losses caused by the Buyer’s instructions and/ or specification in respect of customized Goods, which the Seller subsequently produced in accordance with such instructions or specifications provided by Buyer.
11. LIABILITY FOR PROPRIETARY RIGHTS INFRINGEMENTS
11.1 Seller warrants that upon passing of the risk no patents or other proprietary rights of third parties exist which may be claimed with respect to the Goods or Services if these are used as intended. Clauses 10.2 to 10.5 and 10.7 shall apply correspondingly.
11.2 Seller's liability shall be excluded where a third party patent or proprietary right is infringed because Seller has adhered to a design or specification provided by Buyer or has complied with an instruction given by Buyer, or because the Goods are used in a manner, for a purpose, in a country, or in connection with other goods or services, without this having been communicated to Seller before performanceof the Contract.
11.3 During the period of Seller's warranty, Buyer has the obligation to inform Seller in writing as promptly as possible in the event that a third party claims any patent or other proprietary right or asserts any other claims in or out of court with respect to the Goods or Services. Before recognising any claim advanced by a third party in or out of court, Buyer shall give Seller the opportunity to comment. At its request, Seller shall be given the authority to handle the negotiations or legal dispute with such third party at its own cost and responsibility. Buyer shall be liable to Seller for any damage sustained by it as a result of a culpable violation of said obligations.
11.4 Buyer warrants that the use of a design provided by it or compliance with an instruction given by it will not lead to Seller infringing any patents or other proprietary rights when performing its contractual obligations. Buyer agrees to indemnify and hold Seller harmless against any reasonable cost and damages incurred by Seller as a result of Buyer's breach of this warranty.
12. LIABILITY
12.1 Seller shall be liable to Buyer only for damage caused with intent or gross negligence. In the event of breach of material contractual obligations, Seller shall, however, be liable for each fault of its personnel (statutory representatives, executive employees and other persons employed in the performance of its obligations) causing damage.
12.2 Except in case of intentional causation of damage by personnel of Seller or causation of damage with gross negligence by statutory representatives or executive employees of Seller, Seller shall not be liable for compensation for indirect damage and, in particular, Seller shall not be liable for compensation for loss of profit, unless such damage is covered by the protective purpose of a warranty explicitly assumed.
12.3 Except in case of intentional causation of damage by personnel of Seller or causation of damage with gross negligence by statutory representatives or executive employees of Seller, the liability of Seller shall, in each case, be limited in terms of amount to the damage which is typically foreseeable in the time of conclusion of the contract.
12.4 Claims to damages which result from the violation of another's life, body or health, from the violation of a guaranty given by Seller expressly in writing as well as damage claims under the Product Liability Act shall remain unaffected.
13. STATUTORY AND OTHER REGULATIONS
13.1 If Seller's obligations under the Contract shall be increased or reduced by reason of the making of amendment after the date of Seller's quotation or any law or any order, regulation or bye-law having the force of law that shall affect the performance of Seller's obligations under the Contract, the Contract Price and delivery period shall be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.
13.2 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, Buyer 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.
13.3 Buyer's personnel shall, whilst on Seller's premises, comply with Seller's applicable site regulations and Seller's reasonable instructions, including but not limited to those relating to safety, security and electrostatic discharge.
14. COMPLIANCE WITH LAWS
14.1 Buyer agrees that all 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 European Union, the United States, and the jurisdictions in which Seller and Buyer are established or from which items may be supplied, and the requirements of any licenses, authorisations, general licences or licence exceptions relating thereto will apply to its receipt and use of the Goods as well as any hardware, software, services and technology incorporated therein. In no event shall Buyer use, transfer, release, export or re-export any such hardware, software or technology of the Goods in violation of such applicable laws, regulations, orders or requirements or the requirements of any licences, authorisations or licence exceptions relating thereto.
14.2 Buyer affirms that it has not and shall not, in connection with the transaction contemplated this Contract, make or promise to make any payment or transfer anything of value, directly or indirectly, to anyone working in an official capacity for a government, quasi-government entity, NGO, or to another party, if such payment or transfer would violate the laws of Germany, the United States, the European Union, the jurisdiction where the Goods will be used, other applicable international law or standard, or that may otherwise violate the Seller’s business ethics’ policies and/or code of conduct. In the event Seller learns directly or indirectly of any conditions of Buyer which seem suspicious or unethical, if Buyer or any of its owners or employees responsible for its services becomes the target of an investigation by an authority for alleged corruption, if Buyer engages in fraud or misrepresentation with respect to entering into or the performance of these Terms, or if Buyer commits a material breach of any of these Terms, then Seller may unilaterally at it sole discretion and option either terminate the Contract immediately without further obligation or withhold fulfillment and shipment of such Goods until such time as Buyer satisfies Seller of the appropriateness of the circumstance. Buyer shall immediately report to Seller any conditions which it has learned which may amount to a breach of the foregoing
14.3 The Buyer shall not sell, export or re-export, directly or indirectly, to any natural or legal person, entity or body in Russia or for use in Russia any Goods supplied by the Seller including those falling under the scope of Article 12g of the Regulation 833/2014 of 31 July 2014. The Buyer shall undertake its best efforts to ensure that purpose of this Clause 14.3 is not frustrated by any third parties further down the commercial (sales) chain, including by possible resellers. The Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of this Clause 14.3. The Buyer shall immediately inform the Seller about any problems in applying provisions of this Clause 14.3, including any relevant activities by third parties that could frustrate the purpose of this Clause 14.3. The Buyer shall make available to the Seller information reasonably required to assess Buyer’s compliance with the obligations under this Section within (2) weeks following Seller’s request. Any violation of Clause 14.3 shall constitute a material breach of an essential element of the contract pursuant to which the invoice was issued (the “Contract”), and the Seller shall be entitled to seek appropriate remedies, including, but not limited to: (i) termination of the Contract, and (ii) liquidated damages of 5% of the price of Goods sold, exported or re-exported in violation of Section 14.3 or total value of the Contract.
15. DEFAULT, INSOLVENCY AND CANCELLATION
15.1 Seller shall be entitled, without prejudice to any other rights it may have, to cancel the Contract forthwith, wholly or partly, by notice in writing to Buyer, if Buyer is in default of any of its obligations under the Contract and fails, within 30 (thirty) days of the date of Seller's notification in writing of the existence of the default, either to rectify such default if it is reasonably capable of being rectified within such period or, if the default is not reasonably capable of being rectified within such period, to take action to remedy the default.
16. MISCELLANEOUS
16.1 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.
16.2 If any clause, sub-clause or other provision of the Contract is invalid or unenforceable, this shall not affect the validity of the remainder of the Contract. Should one of the clauses be invalid or unenforceable, the parties obligate themselves to replace the invalid or unenforceable clause by such a clause which comes closest to the intended economic purpose of the invalid clause.
16.3 Buyer shall not be entitled to assign its rights or obligations hereunder without the prior written consent of Seller.
16.4 Seller enters into the Contract as principal. Buyer agrees to look only to Seller for due performance of the Contract.
16.5 GOODS AND SERVICES PROVIDED HEREUNDER ARE NOT SOLD OR INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR RELATED APPLICATIONS. Buyer; (i) accepts Goods and Services 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, judgements and damages, including incidental and consequential damages, arising from use of Goods and Services 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.
16.6 The Contract shall in all respects be construed in accordance with the laws of the Federal Republic of Germany excluding, however, any effect on such laws of the 1980 Vienna Convention on Contracts for the International Sale of Goods, and to the fullest extent permitted by law, shall be without regard to any conflict of laws or rules which might apply the laws of any other jurisdiction. All disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the Duesseldorf courts. However, Seller is entitled to sue Buyer in the court of Buyer’s residence as well.
16.7 The headings to the Clauses and paragraphs of the Contract are for guidance only and shall not affect the interpretation thereof.
16.8 All notices and claims in connection with the Contract must be in writing.