SCHROFF Europe, Middle East & Africa
STANDARD TERMS AND CONDITIONS OF SALE
Except as otherwise agreed, in writing, by nVent and/or its affiliates (collectively, “Seller”), the following standard terms and conditions of sale will apply to all orders received and all sales made by Seller:
Our total deliveries and services are subject solely to the following conditions. Any conflicting conditions of purchase of our customers shall not have effect. Amendments to our Terms of Delivery and Payment only apply if these are expressly agreed in writing. Verbal arrangements are ineffective and all agreements require written form. Furthermore, our respective written confirmations of orders apply.
2. Prices and payment
Our prices are quoted acc. Incoterms 2010 ex-works (FCA, free carrier) in Euros, but exclusive of packaging which will be charged at cost price. The invoice is issued on the day of consignment. Protective devices are only included in the delivery to the extent that this has been expressly agreed in writing.
For orders with a total net price below 300.00 Euro we invoice a minimum order surcharge of max. 50.00 Euro net.
Payments are due to be made within 10 days from the date of the invoice with 2% discount, but without deduction after 30 days at the latest. We may require payment in advance of our delivery for initial orders. We shall be entitled to charge interest on arrears for a delayed payment. The rate of default interest shall amount to 5 percentage points above the base lending rate per annum. The rate of default interest shall amount to 8 percentage points above the base lending rate if our customer is not a consumer. The claim to further damages for arrears remains reserved. Promissory notes and cheques shall only be accepted on account of payment. Costs arising there from shall be paid without delay in cash within one week following notification at the latest. Our customer may only set off such claims which are uncontested or declared to be legally valid. Our claims from all existing contracts including any deferred as a result of acceptance of a bill shall be payable immediately if our customer shall become in arrears with payment or if insolvency proceedings are instituted against him or if he enters into a scheme of arrangement with creditors. We are entitled to assign claims.
Delivery dates given by us shall be observed as far as possible, but are not binding upon us. Observance of delivery dates in particular assumes that our customer produces in proper time all documentation, necessary consents, approvals and plans to be supplied by him and observes the agreed terms of payment and other obligations. The time limits shall be appropriately extended if these pre-requisites are not fulfilled.
An appropriate extension of delivery times shall also arise if non-observance of the dates can be attributed to force majeure, for example, mobilisation, war, insurrection or similar occurrences, for example strike or lock-out.
Any claim to damages by our customer shall be limited in amount as follows to the extent that we shall be in delay with the delivery: 0.5% for each complete week of the delay but at maximum a total of 5% of the agreed purchase price for that part of the delivery which could not be usefully used on account of the delay.
Not only claims to damages by our customers on account of delay in delivery, but also claims to damages in place of performance which exceed the said specified limits are excluded in cases of delayed delivery. This shall not apply where liability is imposed by law in cases of wilfulness, gross negligence or on account of death, bodily injury or impairment to health.
The customer may only cancel the contract within the scope of statutory provisions, provided that we are responsible for the delay in delivery. A change in the onus of proof to the detriment of the customer is not incidental to the said provision.
Storage charges in the amount of 0.5% of the price of the delivery item but at maximum 5% in total may be charged to the customer from the month following notification of readiness for dispatch for each commenced month, if shipment is delayed at the request of the customer. It shall remain free to both contractual parties to prove higher or lower storage expenses.
Return of delivery for whatever reason may only be made following prior agreement and issue of a return number. We reserve the right to return the consignment and charge costs if no agreement or no return number is present on receipt of the goods at our premises. The consignment shall be properly packed and the freight charges shall be borne by the party who made the return delivery. The return delivery shall be accompanied by a delivery note stating particulars of the reason for the return, the return number, the delivery note number, the product number, the delivery date and nVent’s order number. We shall charge 30% of the value of the goods but at minimum EUR 40.00 to cover costs incurred, if with our agreement, goods are returned or exchanged for reasons for which we are not responsible. Items made to special order and modified parts as well as damaged articles are excluded from return or exchange.
4. Industrial property rights
The illustrations, photographs, drawings etc. accompanying our quotations and deliveries remain in our ownership and may not be duplicated, used, nor made accessible to a third party in any form whatsoever without our prior written consent.
5. Passing of risk and acceptance
Risk, according to Incoterms 2010 for free carrier (FCA) as well as for carriage paid to (CPT), passes to the customer on delivery items loaded on the truck and handed over to the first freight carrier. The delivery is herewith according to Incoterms 2010 fulfilled. We always however obtain transport insurance for our customer in his name and on his behalf. It must always be notified to us in writing if at the request of our customer no transport insurance is to be effected. Partial deliveries shall be permissible where they are reasonable for the customer.
6. Reservation of ownership
The following security which we require and shall be released at our discretion, shall be provided to us until payment of all debts (including all balance claims arising from open accounts) to which we are entitled against the customer arising presently or in the future from the business relationship, in as far as the value of the claims persistently exceeds more than 20%:
a) The goods shall remain in our ownership. Processing or re-fashioning always takes place for us as manufacturer but without liability for us. If our (joint) ownership shall cease as a result of combination it is agreed even as from now that the (joint) ownership of the customer in the whole item passes to us proportionately in terms of value (invoice value). The customer shall hold our (joint) property in safe custody without payment. Goods in which we shall be entitled to (joint) ownership are designated in the following as “reserved goods”.
b) The customer may process and dispose of the reserved goods in the normal course of business provided that he is not in arrears. Granting a pledge or transferring by way of security is not permissible. The customer shall even as from now relinquish in full to us by way of security claims arising from re-sale or other legal grounds (insurance, tort) in respect of the reserved goods (including all balance claims arising from open accounts). We revocable authorise our customer to collect debts relinquished to us in the name of and on account of our customer. This authority for debt collection may only be revoked if the customer fails to perform his duties of payment towards us.
c) The customer shall give notice of our (joint) ownership on seizure of reserved goods by a third party and notify us without delay. The customer shall bear the costs and loss.
d) We may cancel the contract and withdraw on unavailing expiry of a reasonable period of notice set for the customer to fulfil his obligations, on conduct of the customer in breach of contract, in particular on arrears with payment. The statutory provisions in respect of dispensing with notice remain unaffected. The customer is under a liability to make restitution.
7. Liability for defects
We accept liability for defects in quality as follows:
a) All those parts or services which display a defect within the period of limitation shall at our choice be improved re-delivered or re-provided without payment irrespective of operating period, provided that the cause had already existed at the point in time of the passing of risk.
b) The limitation period for claims in respect of defects in our deliveries and services amounts to 2 years. This does not apply to the extent that statute provides longer periods according to BGB [German Civil Code] sections 438 (1) (2) (buildings and items for buildings), 479 (1) (claim under a right of recourse) and 634 a (1) (2) (defects in construction), as well in cases of death, bodily injury or impairment to health, on a wilful or grossly negligent breach of duty, and with fraudulent concealment of a defect. The statutory provisions relating to suspension of the elapse of a period, suspension of the law on limitations and re-commencement of periods remain unaffected.
c) The customer shall notify us of defects in writing without delay. Our customer may, with notifications of defects, retain payments only to the extent that they are in a reasonable relationship to the defects arising. The customer may only withhold payments if a defect is notified in connection with which no doubt can exist as to justification. We may demand from the customer reimbursement of expenses arising for us if a defect is improperly notified.
d) The opportunity for subsequent performance within a reasonable period is initially to be given to us. The customer may cancel the contract or reduce the payment without prejudice to any claims for compensation in accordance with section 11 if the subsequent performance is of no avail.
e) Claims arising from a defect shall not exist for merely trivial discrepancies from the agreed quality, merely insignificant adverse effect on use, or for normal wear or damage which after the passing of risk arise as a consequence of defective or negligent treatment, excessive use, unsuitable operating materials, defective building work, unsuitable foundation or which arise by reason of particular external influences which are not anticipated by the contract, as well as with non-reproducible software malfunctioning. There shall likewise be no claim based on defects and the consequences resulting from this, if improper modification or repair work is carried out by our customer or a third party.
f) Claims by our customer for expenses necessarily incurred for the purposes of subsequent performance, in particular costs of shipping, transport, work and materials are excluded to the extent that the expenditure increases because the subject matter of delivery has been taken to a location other than the premises of the customer, unless the transfer is in accordance with his use as agreed.
g) Claims against us by our customer under a right of recourse in accordance with section 478 BGB (recourse by an undertaking) shall only exist to the extent that our customer has not entered into agreements with his customer in excess of the statutory right to claim for defects. Sub-section f) before shall further correspondingly apply to the extent of the claim under a right of recourse of the customer against us pursuant to section 478 (2) BGB.
h) Otherwise, section 11 (other claims for compensation) shall apply for claims for damages. Further or other claims of the customer other than as provided for in section 9 against us or our servants on account of defects in quality are excluded.
Impossibility, amendment of contract
a) Our customer may demand compensation to such an extent as the delivery shall be impossible unless we are not responsible for the impossibility. However, the claim to compensation by the customer is limited to 10% of the value of that part of the delivery which on account of the impossibility cannot be used for its purpose.
This limitation does not apply to the extent that liability is imposed by law in cases of wilfulness, gross negligence or on account of death, bodily injury or impairment to health. A change in the onus of proof to the detriment of the customer is not incidental to this. The right of the customer to cancel the contract remains unaffected.
b) The contract shall be suitably amended with regard being paid to good faith, where unforeseeable events within the terms of section 2 substantially alter the commercial importance or the content of the deliveries or substantially affect our business. We shall have the right to cancel the contract to the extent that it is not economically justifiable. Where we exercise this right of cancellation, we shall notify the customer without delay following knowledge of the implications of the circumstances, including where at first an extension to the delivery time has been agreed with our customer.
Other claims for compensation
We only accept liability for compensation or reimbursement of expenses (referred to as “liability for damages” in the following) irrespective of legal grounds, in particular, on account of breach of duties arising from the contractual relationship and for tortious acts, to such an extent as we, our legal representative or our servants have acted wilfully or with gross negligence or if the duty which has been breached is of essential importance for achieving the purpose of the contract (referred to here as “cardinal obligations”). The claim for damages for breach of cardinal obligations is however limited to foreseeable damage of a kind typical of contract, and shall amount at maximum to double the invoice value of the goods concerned. The exclusion or limitation of liability shall not apply where liability is imposed on us by law in the case of death, physical injury or impairment to health, or for damage to privately used items pursuant to the law relating to product liability or other grounds.
A change in the onus of proof to the detriment of the customer is not incidental to the said provisions.
The said provisions shall lapse on expiry of the period applicable for claims for defects according to sub-section 9 b) to the extent that the customer is entitled to claims for damages according to these. The statutory provisions apply to claims for damages under the law relating to product liability.
Place of jurisdiction and applicable law
The place of jurisdiction shall be the place of registered office of our company if the customer is a registered trader. The general place of jurisdiction for the customer shall in addition apply if we institute legal proceedings. German substantive law shall apply to all legal relations between us and the customer to the exclusion of United Nations treaty on international sale of goods (CISG).
The following terms and conditions supersede any contrary terms above and are considered a material part of these terms. For these purposes, the nVent refers to the applicable nVent entity with whom the customer is doing business, and the Customer is the legal entity doing business with nVent.
a. Customer understands and agrees that Customer and any Third Parties engaged by Customer will not unlawfully offer, promise or provide any payments (or otherwise transfer anything of value) to any Government Official or private party for the purposes of obtaining an improper business advantage, or otherwise engage in activities which may constitute commercial or public bribery, corruption, or kickbacks under the U.S. Foreign Corrupt Practices Act, the United Kingdom Bribery Act, the OECD Anti-Bribery Convention, or any other law of similar effect in the jurisdictions where nVent and Customer conduct business (“Anti-Corruption Laws”) in connection with any of the activities contemplated under this Agreement. To this end, Customer and any Third Parties engaged by Customer will not directly or indirectly pay, offer, authorize or promise any monies or anything of value (such as gifts, contributions, travel, or entertainment) to any person or organization, including any employee of Third Party’s or nVent’s customers, or any Government Official (including any employee or official of any governmental authority, government owned or controlled entity, public international organization or political party or any candidate for political office) for the purpose of influencing their acts or decisions.
b. Customer and its Representatives will maintain complete and accurate books and records in accordance with generally accepted accounting principles in Customer’s and its Representative’s jurisdiction, consistently applied, properly and accurately recording any commission, compensation, reimbursement or other payment (“Payments”) made by Customer and its Representatives in performance of, on behalf of or related to work for nVent. Customer and its Representatives will maintain a system of internal accounting controls reasonably designed to ensure that its assets are used only in accordance with its management directives and that it maintains no off-the-book accounts.
a. Customer understands and agrees that any Products or services sold or otherwise provided hereunder (regardless of quantity or value) may be subject to economic sanctions, export controls and other restrictive trade measures with certain countries or parties, and may be subject to various licensing requirements under the applicable laws and regulations of the United States and other jurisdictions. Customer will determine whether such licenses are required before shipping products to restricted countries, parties, or territories, and will obtain any necessary licenses whenever such requirements apply to any Product, any Customer, or the Customer’s business with nVent. Additionally, nVent will not directly or indirectly sell, ship, re-export, disclose or otherwise transfer any Products or services supplied under this Agreement for use in nuclear related activities or facilities, chemical/biological weapons, missile or rocket systems, or unmanned air vehicles. Notwithstanding the foregoing, nothing in this paragraph will be construed to override or waive any prohibitions or restrictions on shipping Product outside the Territory set forth herein.
b. nVent is committed as a matter of company policy to strict compliance with any applicable economic sanctions, export control laws, and restrictive trade measures regulations of the countries in which nVent conducts business, including, but not limited to, U.S. economic sanctions, export control, and anti-boycott regulations. Customer agrees to comply with these legal requirements whenever they apply to it business with nVent, the sale, shipment, or provision of nVent’s Products, and any other activities that may arise under the commercial relationship contemplated in this Agreement.
c. Notwithstanding any other provision of this Agreement to the contrary, Customer agrees that it will not directly or indirectly sell, ship, re-export, disclose or otherwise transfer any Products or services supplied under this Agreement to IRAN, NORTH KOREA, SYRIA, CUBA and the disputed CRIMEA REGION, to any entities or persons located in those countries or territories, or to any entities or persons from these countries or territories located that are located elsewhere. Customer agrees that it will not directly or indirectly sell, ship, re-export, disclose or otherwise transfer any Products or services supplied under this Agreement to any other countries or parties except in full compliance with all applicable governmental requirements, including, but not limited to: (i) the economic sanctions administered by the U.S. Treasury Department and U.S. State Department; (ii) the International Traffic in Arms Regulations administered by the U.S. State Department and the Export Administration Regulations administered by the U.S. Commerce Department; or (iii) any other applicable laws of similar effect administered by the European Union, United Kingdom, United Nations, or any other jurisdictions where the nVent and Customer conduct business (hereinafter “Trade Compliance Laws”).
d. Notwithstanding any other provision of this Agreement to the contrary, and consistent with the requirement imposed under applicable Trade Compliance Laws, nVent will not directly or indirectly sell, ship, re-export, disclose or otherwise transfer any Products or services supplied under this Agreement to person, entity, organization or other party identified on the U.S. Department of Commerce's Denied Persons or Entity List, the Department of State's Debarred Parties List, the various economic sanctions lists administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or the U.S. State Department, or any other applicable government-issued restricted party list, as maybe published and revised from time to time.
e. Customer will not take any action or make any requests that causes Customer or nVent to violate any applicable provisions of U.S. anti-boycott laws, including the various regulations enforced by the U.S. Commerce Department and U.S. Treasury Department. To that end, Customer will not request any information necessary to comply with the Arab League Boycott of Israel, take and action to comply with said boycott, or otherwise offer or promise to comply with said boycott. Customer will also not request any information from nVent or any Third Party related to the race, religion, nationality, or sex of any individual when such requests are related to compliance with the Arab League Boycott of Israel or any other boycott that is not sanctioned under the laws of the United States.
f. The obligation of nVent to furnish products or technical information or services under this Agreement is subject to the ability of nVent to supply such items consistent with all Trade Compliance Laws, U.S. anti-boycott laws, and other applicable laws and regulations of the U.S. Government and other governments. nVent reserves the right to refuse to enter into or perform any order, and to cancel any order, placed under this Agreement if nVent in its sole discretion determines that the entry into such order or the performance of the transaction to which such order relates could violate any Trade Compliance Laws, U.S. Anti-boycott laws, or other applicable law or regulation of the U.S. Government or other governments.
g. Customer agrees that any such refusal or cancellation of any order, or termination of the Agreement by nVent as described above, will not constitute a breach of any of the nVent obligations under this Agreement, and Customer hereby waives any and all claims against nVent for any loss, cost or expense, including, but not limited to, any loss of profit, loss of business, loss of or damage to goodwill and/or similar losses, loss of anticipated savings, or increased costs or for any indirect, special or consequential losses, or pure economic loss, costs, damages, charges or expenses howsoever arising, that Customer may incur by virtue of such refusal or cancellation of any order or termination of this Agreement.
Anti-Human Trafficking. Customer, its subsidiaries and affiliates will comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes in force in local, national, and international law. Customer will comply with nVent’s Anti-slavery Policy OR have and maintain throughout the term of this agreement its own policies and procedures to ensure its compliance. Customer will not engage in any activity, practice or conduct that would constitute an offence under U.S. or U.K. anti-human trafficking laws. Neither the Customer nor any of its officers, employees, agents or other persons associated with it has been convicted of any offence involving slavery and human trafficking; and has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking.Import Compliance. Unless otherwise agreed in writing, nVent will not be obligated to provide Customer with any documentation to substantiate that any of the Products sold to Customer qualify for any preferential duty treatment.
Notification. Customer will notify nVent promptly if (a) Customer or any of Representatives have reason to believe that a breach of this Section has occurred or is likely to occur; or (b) if any conflicts of interest arise after the signing of this Agreement, including potential conflicts of interest regarding its relationship with nVent, including family members who could benefit from the commercial relationship between Customer and nVent; or (c) if Customer or any of its Representatives or their family members become a government official or political party candidate in a position to influence Customer’s commercial relationship with nVent. Customer will send all such notices to [email protected].
Audit Rights. If at any time nVent believes in good faith that Customer has breached the warranties, representations or agreements in this Section, nVent has the right to select an independent third party to conduct an audit at nVent’s expense, to verify Customer’s adherence to the terms in this Section. Customer will fully cooperate in such audit. If the auditor finds the Customer in breach, Customer agrees to reimburse nVent for the cost of the audit.Compliance with Laws. Customer agrees to comply with any applicable local or national Trade Compliance Laws, U.S. Anti-boycott Laws, Anti-Corruption Laws, or other applicable regulations of the U.S. Government or any other government, notwithstanding whether or not this is contrary to any aforementioned applicable laws or regulations. Compliance with applicable legal requirements and nVent’s Position is a prerequisite for Customer to perform its obligations under this Agreement, and if the Customer fails to comply with such legal requirements, it is incapable of meeting its obligations under this Agreements.
Breach and Termination. Any breach of the warranties, representations or agreements in this Section will constitute a material breach of this Agreement and be grounds for immediate termination for cause of this Agreement and/or any order, and nVent may withhold any payments until such time that nVent has received confirmation to its reasonable satisfaction that no breach has occurred or will occur. Customer will indemnify and hold nVent harmless against any actions, legal claims, demands, proceedings, losses, damages, costs, expenses and other liabilities of whatever nature resulting from Customer’s breach of the representations, warranties and agreements contained in this Section. nVent reserves the right to refuse to enter into or perform any order, and to cancel any order, if nVent in its sole discretion determines that such order could violate any applicable law or regulation of the United States, or any other governments. The Parties agree that any such refusal or cancellation of any order, or termination of the Agreement by nVent, as described above, will not constitute a breach of any of nVent’s obligations under this Agreement, and the Parties hereby waive any and all claims against nVent for any loss, cost or expense related thereto.
©nVent, Rev. December 17, 2019 Schroff EMEA Terms