General Terms and Conditions of Sale
1.1. All products and services of NETZSCH TAURUS Instruments GmbH are sold exclusively under the following General Terms and Conditions of Sale and the terms in the applicable expert dealer price lists as amended from time to time. These shall apply also to all future business transactions, even if not expressly agreed upon again. These Terms and Conditions shall be deemed accepted when the products or services are accepted by the customer, at the latest.
1.2. Reference is also made to the manufacturer’s licencing terms provided with the contractual products. Any customer’s contradicting terms of business shall not be effective, unless they have been acknowledged by NETZSCH TAURUS Instruments in writing. Any affirmation to the contrary referencing their general terms and conditions by any party to a contract with NETZSCH TAURUS Instruments is contradicted herewith.
1.3. Any amendment and supplement to these General Terms and Conditions shall be made in writing to be valid.
1.4. No oral promise and arrangement shall be valid unless it is confirmed by NETZSCH TAURUS Instruments in writing.
- Products and Services
2.1. Offers made by NETZSCH TAURUS Instruments are subject to change and not binding. A contract comes into being when NETZSCH TAURUS Instruments confirms in writing an order placed by a customer, or when the customer accepts the goods, at the latest.
2.1.1 If the customer has not expressly accepted any delivery, the goods shall be deemed accepted, unless the customer notifies NETZSCH TAURUS Instruments in writing within two weeks of taking delivery that the goods are not accepted. The relevant date is the date such declaration is received by NETZSCH TAURUS Instruments.
2.1.2 Should a contract not be brought about by acceptance of the goods and should such contract involve a right of withdrawal pursuant to section 355 German Civil Code (BGB), NETZSCH TAURUS Instruments shall have the right not to perform before such withdrawal period has elapsed, unless the customer declares in writing to NETZSCH TAURUS Instruments to waive exercising its right of withdrawal.
2.2. NETZSCH TAURUS Instruments shall have the right to divert from the customer’s order and deliver modified and adapted contract goods, if such diversion does not affect their functionality and is customary in the trade.
2.3. NETZSCH TAURUS Instruments expressly reserves the right to make and bill partial shipments.
2.4. Unless expressly agreed otherwise in writing, delivery dates agreed shall be deemed met if the contractual product was handed over to the carrier on the agreed date.
2.4.1 Delivery dates or lead times, which may be agreed with or without binding effect, need to be in writing and will depend on the probable performance capacity of NETZSCH TAURUS Instruments.
2.4.2 NETZSCH TAURUS Instruments assumes no liability for any delay in its contractual performance caused by force majeure or any event causing delivery to be considerably more difficult or impossible for NETZSCH TAURUS Instruments; such as, in particular, force majeure, any government action, refusal by authorities to grant permits, industrial action of any kind whatsoever, sabotage, lack of raw materials, delayed material deliveries not attributable to NETZSCH TAURUS Instruments, even where such lead times were agreed to be binding. Thus, NETZSCH TAURUS Instruments shall have the right to postpone performance for the duration of such disrupting event plus a reasonable starting period and, with respect to the part not yet performed, to withdraw from the contract in part or in full. This shall also apply where NETZSCH TAURUS Instruments is in default.
2.5 Should NETZSCH TAURUS Instruments be in default with respect to a certain delivery by more than four weeks, the customer may terminate the contract after setting a reasonable period of grace in writing. The grace period shall start when such grace period notice is received into NETZSCH TAURUS Instruments.
2.6 Unless otherwise agreed, NETZSCH TAURUS Instruments shall have the right, but not be obliged, to take out at the customer’s expense insurance for the goods to be shipped against any risk in transit whatsoever. At the customer’s request, shipments will be ensured in its name and at its expense. Risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out the shipment, or has left the premises of NETZSCH TAURUS Instruments for despatch. Where despatch is postponed at the customer’s request, risk shall pass with the notification to the customer that the goods are ready for despatch. This shall also apply in the case of any return shipment following remedial action under warranty or any paid-for service.
The passing of risk to the customer is not influenced by the latter accepting to pay costs of transport.
- Failure to Take Delivery on the Part of Customer / Damages
3.1. Should the customer fail to take delivery on the agreed date, then NETZSCH TAURUS Instruments shall be entitled, at its discretion, either to determine a new delivery date or terminate the contract.
3.2 Should NETZSCH TAURUS Instruments terminate the contract it shall be entitled to compensation amounting to 15 % of the agreed consideration, unless the customer is able prove that no or a significantly lower damage has occurred.
- Warranty / Limitation of Liability
4.1. In the event that a consignment should be defective or lack any quality agreed in writing, NETZSCH TAURUS Instruments shall at its discretion replace the defective goods or rectify the defect. Rectification by NETZSCH TAURUS Instruments will follow statutory regulations.
4.2. Not until any attempted cure by NETZSCH TAURUS Instruments should fail, may the customer assert any warranty claim (reduce the purchase price or terminate the contract), but shall not lodge any claim for damages from NETZSCH TAURUS Instruments.
4.3. Any obvious defects shall be notified in writing to NETZSCH TAURUS Instruments without delay, within two weeks of taking receipt at the latest. Such defective delivery items shall be kept for NETZSCH TAURUS Instruments to visit and inspect them in the condition they were in when the defect was detected. Failure to comply with the foregoing obligation shall void all warranty claims against NETZSCH TAURUS Instruments.
4.4. The client shall have no right to attempt any rectification of its own. Failure to comply with this rule shall void any warranty claims against NETZSCH TAURUS Instruments.
4.5. NETZSCH TAURUS Instruments shall provide information and advice on customers’ requests to the best of its knowledge. Liability as described in the following paragraph, however, shall not apply unless a special remuneration has been agreed.
4.6. Any claims for damages based on any fault on the part of NETZSCH TAURUS Instruments shall not be accepted, neither against NETZSCH TAURUS Instruments nor against any subcontractor or vicarious agent of NETZSCH TAURUS Instruments, insofar as such damage was not caused deliberately or by gross negligence. This shall not apply to any claim for damages based on any undertaking as to quality intended to protect the customer from any risk of consequential damage.
4.7. NETZSCH TAURUS Instruments warrants that the contractual products are in general described correctly in our product information and are suitable for use within these limits. The specifications and product descriptions in our product information alone do not constitute any warranty of any particular quality. NETZSCH TAURUS Instruments will not accept any responsibility for the program functionalities meeting the client’s requirements or interacting in the arrangement chosen by the customer. State-of-the-art software does not allow any error to be excluded in any particular conditions of application.
4.8. Not covered by warranty will be in particular any fault or defect attributable to: normal wear and tear in operation / improper use, operator error and negligence on the part of the customer / operation using wrong type of current or voltage, or connection to unsuitable power sources/fire, lightning, explosion or grid-borne overvoltage / moisture of any kind whatsoever / wrong or faulty program, software and/or processing data, and any consumables, unless the customer should prove that the defect notified is not attributable to these circumstances. Also, warranty will not be accepted where serial number, type designation or similar identifiers have been removed or made unintelligible. In the event of rectification under warranty NETZSCH TAURUS Instruments shall bear any costs of labour, materials, transport and travel.
4.9. Should the inspection following a notice of defect show that there is no warranty case, then NETZSCH TAURUS Instruments shall be entitled to charge remuneration for all its expenditure. Costs of the inspection and repair shall be charged for at the NETZSCH TAURUS Instruments service prices current at the given time.
4.9.1. For any claim under warranty / guarantee and for any chargeable repair order and return deliveries of any kind the customer shall comply with the processing rules of the service department as amended from time to time.
5.1. The liability of NETZSCH TAURUS Instruments for any loss caused shall be limited to such loss as could have been reasonably predicted to occur under the circumstances known at the time the agreement was signed (predictability). NETZSCH TAURUS Instruments shall not be liable for any indirect loss, consequential damage or lost profit.
5.2. The above limitation of liability shall not apply to the liability of NETZSCH TAURUS Instruments for intentional or grossly negligent behaviour and under the provisions of the product liability act. No vicarious agent of NETZSCH TAURUS Instruments shall be held personally liable by the customer.
- Price and Terms of Payment
6.1. Prices quoted in the expert dealer price lists as amended from time to time are EXW dispatch warehouse, Weimar. The customer shall be charged value added tax and other statutory levies due in the supplier country, and packaging, transportation costs, insurance and flat rate handling costs in accordance with the respective price lists.
6.2. Payment shall be due in full within 30 days of the invoice date, the invoice will be of the date delivery is made.
6.3 Payments made by the customer will be recorded against the longest outstanding receivables with NETZSCH TAURUS Instruments at the given time, first against any interest, then against any expenses, and finally against the main amount owed.
6.4. The customer may not set off any payment against any counterclaim, unless such claim is undisputed by NETZSCH TAURUS Instruments or based on a final court decision.
6.5. Should the customer default in its payment obligations without justifiable reasons, NETZSCH TAURUS Instruments shall be entitled to make any future performance conditional upon advance payment by the customer.
- Retention of Title
7.1. Title to the contractual product shall remain vested in NETZSCH TAURUS Instruments until all amounts, including any future amounts, outstanding under this agreement, and beyond that any amounts receivable from the customer on any other legal grounds whatsoever have been paid (retention of title). The customer may dispose of the goods subject to retention of title. NETZSCH TAURUS Instruments reserves the right to withdraw this declaration. Where the customer disposes of the goods under retention of title it shall also declare to the other party to such agreement its retention of title (onward retention of title). The customer assigns to NETZSCH TAURUS Instruments in advance all amounts receivable from such third party (extended retention of title). Upon request by NETZSCH TAURUS Instruments the customer shall name the amounts receivable assigned and the third party. NETZSCH TAURUS Instruments may reveal such assignment at any time in order to secure its pecuniary claims.
7.2. The customer shall not be entitled to pledge such goods subject to retention of title nor to transfer them to any third party for security purposes. In the event that any third party should have recourse to the reserved goods, the customer shall be obliged to point out ownership by NETZSCH TAURUS Instruments and to notify NETZSCH TAURUS Instruments forthwith. If reselling to any third party, the customer shall be responsible for such third party observing the rights of NETZSCH TAURUS Instruments.
7.3. If goods subject to retention of title are combined or intermingled with goods owned by NETZSCH TAURUS Instruments, then NETZSCH TAURUS Instruments shall become co-owner at the ratio of the invoice value of such reserved goods relative to such other goods. Any processing of such reserved goods shall take place for NETZSCH TAURUS Instruments as the manufacturer within the meaning of section 950 German Civil Code (BGB), without obligation on NETZSCH TAURUS Instruments. An interest of NETZSCH TAURUS Instruments in the processed goods shall be created within the meaning of the above provisions.
7.4. If the customer defaults in its payments, also for other products or services that have been or will be delivered by NETZSCH TAURUS Instruments, or if a petition in bankruptcy is filed or the customer files an affidavit of means, NETZSCH TAURUS Instruments shall be entitled to assert its retention of title to the reserved goods by accessing areas owned by the customer and taking possession of such reserved goods. Access to such areas shall be ensured by the customer.
7.5. Such assertion of its retention of title or the attachment of such contractual product by NETZSCH TAURUS Instruments shall not be deemed termination of the agreement, if the customer is a businessman.
7.6. If the value of such collateral exceeds the outstanding payments to NETZSCH TAURUS Instruments by more than 20 %, NETZSCH TAURUS Instruments shall release such excess portion of the collateral on request by the customer.
7.7. Ownership of any goods delivered for testing and demonstration purposes shall remain vested in NETZSCH TAURUS Instruments. Their use by the customer requires separate agreement with NETZSCH TAURUS Instruments.
- Third Party Proprietary Rights and Copyright
8.1. NETZSCH TAURUS Instruments shall not accept any liability for the contractual products not infringing any third party proprietary rights or copyright. The customer shall notify NETZSCH TAURUS Instruments immediately of any such claim being raised against it.
8.2. To the extent that the products supplied have been manufactured to customer’s specifications or instructions, the customer shall indemnify NETZSCH TAURUS Instruments from all claims asserted by any third party for infringement of intellectual property right and copyright. Such indemnification shall cover legal fees and include court costs, if any. The customer shall make a reasonable advance payment towards such expenses to NETZSCH TAURUS Instruments.
- Export and Import Licences
9.1. Products and technological know-how provided by NETZSCH TAURUS Instruments shall be used or remain in the country of destination agreed with the customer. Any reexport of contractual products, either individually or as an integrated part of any system, shall require permission and is principally subject to export regulations of the Federal Republic of Germany and/or such other country of destination agreed with the customer. The customer shall itself obtain information on such German regulations by contacting the relevant federal authority, Bundesamt fuer Wirtschaft, 06236 Eschborn/Ts. 1, on US regulations by contacting the US-Department of Commerce, Office of Export Administration, Washington, D.C. 20230. Irrespective of whether it states the final destination of the contractual products supplied, the customer shall be obligated to obtain as its own responsibility any permit from the foreign trade authorities that may be required before such products may be exported.
9.2. Any onward delivery by the customer of contractual products to any third party, with or without the knowledge of NETZSCH TAURUS Instruments, shall at the same time require the transfer of the export license conditions. The customer shall be liable to NETZSCH TAURUS Instruments for ensuring that such conditions are met.
- EC Import VAT
10.1 Customers with their registered office outside the Federal Republic of Germany shall follow the relevant applicable rules regarding EC import VAT. This includes especially letting NETZSCH TAURUS Instruments know their VAT ID number without being specifically requested to do so. The customer shall upon request provide any information required with respect to its entrepreneurial status, with respect to the use and transportation of the goods supplied, and with respect to its duty to report statistics to NETZSCH TAURUS Instruments.
10.2 The customer shall reimburse any expenditure, especially any handling fee, incurred by NETZSCH TAURUS Instruments because of faulty or erroneous data provided by the customer in respect of import VAT.
10.3 NETZSCH TAURUS Instruments shall not be liable for any consequences from the import VAT information provided by the customer or from the relevant data, unless NETZSCH TAURUS Instruments or any agent of NETZSCH TAURUS Instruments acted deliberately or grossly negligent.
- General Terms
11.1 The customer shall not be entitled to assign its rights from the agreement.
11.2 NETZSCH TAURUS Instruments uses automatic data processing for handling orders. The customer herewith expressly consents to the processing of any data revealed to NETZSCH TAURUS Instruments within the contractual relationship and which are required for performing the agreement
- Jurisdiction and Applicable Law
12.1. Legal venue shall be the place where the registered office of NETZSCH TAURUS Instruments is located, if the customer is a businessman and the agreement is part of its trade operations.
NETZSCH TAURUS Instruments may also assert its claims at any court situated in the general jurisdiction of the customer. An exclusive legal venue, if any, shall not be affected.
12.2. All legal relationships between NETZSCH TAURUS Instruments and the customer shall be governed exclusively by the law regulating the legal relationships between domestic parties, the law of the Federal Republic of Germany. The Vienna UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
Should any provision of these General Terms and Conditions be or become invalid, or any of these contractual provisions be incomplete in any respect, the contracting parties shall replace or supplement such invalid or incomplete provisions with reasonable ones which correspond most closely to the commercial purpose intended. The validity of the remaining provisions shall not be affected.
Dated: 01 January, 2019