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 the Pentair Technical Solutions 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).
©nVent, Rev. May 1, 2018 Schroff EMEA Terms