These Terms and Conditions apply for all Deliverables from Elster GmbH.
1. APPLICABLE TERMS & CONDITIONS: These terms and conditions of sale establish the rights, obligations and remedies of the applicable Honeywell entity ("Honeywell" and buyer "Buyer" which apply to any order issued by Buyer for the purchase of Honeywell's equipment and parts (collectively “Products”), services (“Services”) as well as software and firmware including all related documentation, data files, modules, libraries, and elements, updates, upgrades, error corrections, changes or revisions each supplied or licensed by Honeywell to Buyer under the Order ("Software") (each "Products", "Services" and "Software" hereinafter also referred "Deliverable"). Unless otherwise stated in a written agreement signed by authorized representatives of Honeywell and Buyer and covering the specific Deliverables that are the subject of any Buyer's order, Honeywell's acceptance of Buyer's order is made expressly conditional on Buyer's acceptance of the terms and conditions of sale included herein. No additional or different terms or conditions, whether contained in Buyer's order form or any other document or communication pertaining to Buyer's order, will be binding upon Honeywell unless accepted in writing, and Honeywell hereby expressly objects to any such terms and conditions which shall be deemed ineffective and are rejected. In addition these terms and conditions of sale shall apply for any framework agreement between Honeywell and Buyer with respect to the sale of Deliverables ("Framework Agreement") if and so far not otherwise stated in writing in such Framework Agreement, any Buyer's order accepted by Honeywell and/or any Framework Agreement are hereinafter referred to as the "Agreement".
2. GENERAL DEFINITIONS
2.1. “Order” means a Buyer purchase order accepted by Honeywell.
2.2. “Party” means Honeywell or Buyer and “Parties” means both.
3. DELIVERY AND ACCEPTANCE
3.1. Delivery terms are EX-Works (INCOTERMS 2010) Honeywell’s facility, unless otherwise is agreed in writing. Honeywell will schedule delivery in accordance with its standard lead time unless Buyer’s order requests a later delivery date; or Honeywell agrees in writing to a separate delivery date. If Honeywell prepays transportation charges, Buyer will reimburse Honeywell upon receipt of an invoice for those charges.
3.2. Buyer shall promptly inspect any Products delivered and shall notify Honeywell of any nonconformance detectable in the due course of an intake inspection without undue delay in writing at the latest however within ten (10) days after delivery. Buyer shall notify any nonconformance which cannot be detected within the due course of an intake inspection, without undue delay at the latest however within three (3) days after discovery of the defect. Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Honeywell within the deadlines stipulated above.
3.3. If Services are qualified as work pursuant to Section 631 German Civil Code or an acceptance is agreed, Sec. 640 German Civil Code shall apply for such acceptance of Services.
4. RETENTION OF TITLE
4.1. Honeywell reserves title in all Products until receipt of all payments under the business relationship with Buyer (hereinafter: "Reserved Products"). If a current account relationship exists as part of the business relationship, Honeywell shall retain title in the Reserved Products until receipt of all payments from acknowledged balances. In this case, reservation of title shall serve as security for the balance. For the duration of the reservation of title Buyer may not pledge the Reserved Products nor use the same as security.
4.2. If Buyer combines or mixes any Reserved Products in which Honeywell has reserved title with other items to form a new unit in such a way that one of the other items must be regarded as the main constituent, Honeywell shall have pro rata (co-)title in the new unit created, such (co-)title being in the ratio of the value of the Reserved Products to the value of the combined or mixed items at the time of such combining or mixing, and Buyer hereby transfers (co-)title and possession in the combined or mixed item to Honeywell. Honeywell hereby accepts this transfer. Buyer shall keep possession of the combined or mixed item which has thus been created for Honeywell in trust free of charge.
4.3. If Buyer or third parties acting on behalf of Buyer process or modify the Reserved Products (co-) owned by Honeywell, this shall be deemed to have been carried out for Honeywell. If Buyer acquires sole title in the new main unit created by way of such processing or modification, the parties shall be deemed to have agreed that Buyer hereby transfers to Honeywell (co-) title and possession therein in the ratio of the value of Reserved Products (co-) owned by Honeywell to the value of the combination or modification and that Honeywell hereby accepts such transfer. Buyer shall keep possession of the sole or co-owned items which has thus been created for Honeywell in trust free of charge. If the Reserved Products owned by Honeywell have not yet been inextricably combined or mixed with other items or otherwise processed or modified since supply, their value at the time of combining, mixing, processing or modification shall be deemed to be the amount billed for the Reserved Products by (including VAT).
4.4. Buyer may sell the Reserved Products in the course of ordinary business activities, however all claims equal to the final invoice amount (including VAT) accruing to Buyer against its customers or third parties from the resale are hereby already assigned to Honeywell. Honeywell herewith accepts such assignment. Buyer may not sell the Reserved Products to customers that have excluded or limited the assignment of payment claims against them. After the assignment, Buyer retains the right to collect the claims. This shall not affect Honeywell's entitlement to collect the claims itself. However, Honeywell shall not collect the claims as long as (1) Buyer fulfill its payment obligations from the proceeds taken in, or (2) Buyer is not in default of payment or (3) Buyer has not filed an application for the opening of insolvency proceedings and has not suspended its payments. If any of this is the case, Honeywell may request Buyer to disclose the assigned claims and their respective debtors, to furnish all data required for collection, to hand over all documents pertaining thereto and to inform the debtors of the assignment. If such a case occurs, Buyer’s right to collect the claims is extinguished. To the extent that a current account relationship exists between Buyer and its customers pursuant to Sec. 355 of the German Commercial Code (Handelsgesetzbuch), the claim assigned to Honeywell in advance by Buyer shall also relate to the acknowledged balance, as well as to the balance surplus existing from the closing balance in the case of the customer's insolvency.
4.5. Buyer is obliged to notify Honeywell in writing without undue delay of all seizures, attachments and other interference by third parties with respect to the Reserved Products. Moreover, Buyer shall notify such third parties of the reservation of title. To the extent the third party is unable to reimburse Honeywell for the court and out-of-court costs of a legal action pursuant to Sec. 771 of the German Code of Civil Procedure (Zivilprozessordnung), Buyer shall be liable for the loss thus incurred to Honeywell.
4.6. Buyer is obliged to treat the Reserved Products with care; in particular, Buyer is obliged to have the same at its own expense sufficiently insured at replacement value against fire, damage by water and theft. To the extent that maintenance or inspection work is required, Buyer must carry this out in good time at its own expense.
4.7. At Buyer's request Honeywell shall release the securities held by Honeywell to the extent their realizable value exceeds the claims to be secured by 10% or more whereby Honeywell may select the securities to be released.
4.8. In case that Honeywell in its formal position of remaining titleholder of the Reserved Products shall under any laws be obliged to pay any taxes referring to the title of the Reserved Products Buyer shall indemnify Honeywell from those tax obligations.
5. PAYMENT & SET-OFF
5.1. Payment terms are net 14 days from date of invoice. Payments shall be made in immediately available funds through electronic transfer.
5.2. If Buyer is in payment default Honeywell may at its option charge interest on delinquent amounts at the statutory interest rate. In addition, Honeywell may charge damages (e.g. costs of collection, including attorneys’ fees) and lump sum damages for delay (Sec 288 para 6 German Civil Code) subject to statutory law.
5.3. Additionally, if Buyer is delinquent in its payment obligation to Honeywell, Honeywell may upon written notice to Buyer stop work and withhold future shipments until all delinquent amounts and late interest, if any, are paid.
5.4. Buyer may only set off any invoiced amounts against claims that are undisputed or declared final and absolute by a competent court.
5.5. Honeywell’s extension of credit is subject to Buyer maintaining an acceptable credit standing.
6.1. If not otherwise agreed in writing, all prices for Deliverables are subject to Honeywell's actual price list at the date of placement of Buyer's Order as amended from time to time in Honeywell's sole discretion. Honeywell will inform Buyer on any price increases with 30 day's written notice.
6.2. All prices are in the applicable currency of the Agreement and are based on delivery EX WORKS (Incoterms 2010), Honeywell´s facility. Prices do not include any charges for services such as packaging, insurance, or brokerage fees. Honeywell’s pricing excludes all applicable taxes (including but not limited to, sales, use, excise, value-added, and other similar taxes), duties and charges. If Honeywell is required to impose, levy, collect, withhold or assess any such taxes, duties or charges on any transaction, then in addition to the purchase price, Honeywell will invoice Buyer for such taxes, duties, and charges unless at the time of order placement Buyer furnishes Honeywell with an exemption certificate or other documentation sufficient to verify exemption from such taxes, duties or charges..
6.3. The minimum value of Orders acceptable for Honeywell is Euro 200. Should the value of an Order fall below a purchase price of Euro 200, Honeywell is entitled to a surcharge in the amount of Euro 55.
7. FORCE MAJEURE AND DELAY
7.1. Except payment obligations, neither Party is liable for failure to meet its obligations affected by a force majeure event. If performance is so delayed longer than 90 days, either Party can terminate the Order with notice.
7.2. Force majeure events may include but are not limited to the following no matter whether they incur at Honeywell or any of its sub-suppliers: (1) delays or refusals to grant an export license or the suspension or revocation thereof, (2) any other acts of any government that would limit the ability for performance consistent with the Agreement, (3) fires, earthquakes, floods, severe weather conditions, or any other acts of God, (4) quarantines or regional medical crisis’, (5) labor strikes or lockouts, and (6) riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property).
7.3. If a force majeure event causes a delay, then the date of performance will be extended by the period of time that the non-performing party is actually delayed or for any other period as the parties may agree in writing.
7.4. If Buyer causes delay, Honeywell is entitled to adjust price, schedule and other affected terms.
8.1. Honeywell warrants to Buyer that for Products at the time of deliver and for Services at the date of acceptance: (i) the Deliverable will be free from defects in workmanship and materials, and (ii) the Deliverable will comply with the agreed specifications. Deliverables in which there is no defect found will not be considered Nonconforming.
8.2. The warranty period is for Products twelve months upon delivery of the Product from Honeywell to Buyer and for Services twelve months upon acceptance of Services by Buyer. This warranty period of twelve months shall not apply in the following cases: (i) fraudulently concealed defects (arglistiges Verschweigen eines Mangels), and (ii) defects for which a guaranty for the quality of the Deliverable (Beschaffenheitsgarantie) was given; in the case of claims for damages, this shall also not apply in the following cases: (i) personal injury (Verletzung von Leib, Leben oder Gesundheit), (ii) intention (Vorsatz), and (iii) gross negligence (grobe Fahrlässigkeit). Subsequent Performance will be effected by Honeywell without acknowledgement of any legal duty (Anerkenntnis). For repaired Deliverables the remainder of the original Warranty Period shall run from the return of the repaired Product; the same shall apply for replaced Deliverables.
8.3. If during the Warranty Period hereunder a Deliverable shows a defect which already existed at the time of transfer of risk from Honeywell to Buyer and Buyer notifies such defect to Honeywell pursuant to section 3, Honeywell will at its own choice repair the defect (Nachbesserung) or replace the defective Deliverable (Nachlieferung) (“Subsequent Performance”, Nacherfüllung). If Subsequent Performance fails, Buyer shall be entitled to rescind the affected Order of Product or Service (Rücktritt) or in case of Services also remedy the defect himself and demand reimbursement for required expenses (Selbstvornahme), whereas the right to reasonably reduce the purchase price of the affected Order (Minderung) is excluded. Further-reaching claims for defects are excluded, without prejudice to any claims for damages under section 9.
8.4. This Limited Warranty shall not apply to ordinary or normal wear and tear resulting from use of the Deliverable during the Warranty Period or to improper use of the Deliverable. Honeywell shall not assume any liability for defects caused by improper storage, effects of the climate or other circumstances not under Honeywell’s control.
8.5. Buyer shall provide Honeywell with a detailed description of any claimed nonconformance and permit Honeywell to preserve evidence, test the Deliverable, and investigate the cause thereof. Buyer shall give Honeywell prompt and continuing access to the Deliverable for inspection and testing, to the environment and location of the Product, and shall cooperate with Honeywell by promptly furnishing all relevant information, data, test results, witnesses, and other information relative to any occurrence, accident or claimed Nonconformance in the Deliverable .
8.6. If Buyer accepts a defective Service, even though he knows of the defect, he only has the rights under this section 8 if he reserves his rights with regard to the defect when he accepts the Service.
9. LIMITATION OF LIABILITY
9.1. Honeywell is only liable for damages caused by slight negligence (einfache Fahrlässigkeit) if such exist due to the breach of duties which are material for fulfilling the contract and on which the Buyer relies and is entitled to rely on being fulfilled. In this case, the liability is limited to the damage which is typical and foreseeable.
9.2. In all the cases mentioned in section 9.1 Honeywell´s liability is limited to a maximum amount of EUR 1,000,000.
9.3. Honeywell is liable in accordance with statutory law (i) under the German Product Liability Act (Produkthaftungsgesetz), (ii) in case of fraudulently concealed defects (arglistiges Verschweigen eines Mangels), (iii) in case of defects for which a guaranty for the quality of the Product (Beschaffenheitsgarantie) was given, (iv) for personal injury (Verletzung von Leib, Leben oder Gesundheit) and (v) in the event of gross negligence and willful intent.
9.4. In all other cases the liability of Honeywell shall be excluded irrespective of the legal basis.
9.5. The above limitations of liability shall also apply in the case of Buyer’s claims for damages against an officer, executive, employee or agent of Honeywell, if any.
10.1.If Software is included in an Order the Buyer is only granted a nonexclusive license limited to such equipment and/ or location(s) as are specified in the Order or otherwise confirmed in writing by Honeywell. No other use is permitted and Honeywell retains for itself (or, if applicable, its suppliers) all title and ownership to any software delivered hereunder. Without Honeywell's written consent Buyer shall not attempt any sublicense, copy, amendment, reverse compilation or disassembly of software (save to the extent expressly permitted by law). Nor shall Buyer except for back-up copies which need to be marked as such copy, disclose or display any such software, or otherwise make it available to others (except as Honeywell authorizes in writing).
10.2.If not otherwise stated herein or in a written agreement with Honeywell, Buyer shall comply with the terms and conditions of Honeywell's licence agreement for end-users as provided by Honeywell (Endnutzer Lizenzvereinbarung)
11. PATENT AND COPYRIGHT INDEMNITY
11.1.Buyer shall notify Honeywell immediately if a third party raised a claim against Buyer arising out of any actual or alleged patent or copyright infringement of a valid patent or copyright, to the extent based on the Deliverable as delivered by Honeywell. Honeywell may then in its sole discretion decide whether it wishes to defend the claim at Honeywell’s expense and indemnify Buyer for any final judgment assessed against Buyer resulting from such claim. In this case Buyer shall be obliged to grant sole and complete authority to defend the claim to Honeywell and Buyer shall provide Honeywell with all required information for the defense of the claim. Honeywell will not be responsible for any waiver, acceptance, compromise or settlement made without Honeywell’s written consent. Honeywell will have no obligation or liability with respect to: (a) Deliverables provided pursuant to Buyer’s designs, drawings or manufacturing specifications; (b) Deliverables used other than for their ordinary purpose; (c) claims of infringement resulting from combining any Deliverable furnished hereunder with any article not furnished by Honeywell; (d) use of other than the latest version of software Deliverable released by Honeywell; or (e) any modification of the Deliverable other than a modification by Honeywell.
11.2.Further, Buyer agrees to indemnify and defend Honeywell to the same extent and subject to the same restrictions set forth in Honeywell's obligations to Buyer as set forth in section 11.1 for any suit against Honeywell based upon a claim of infringement resulting from (a), (b), (c), (d) or (e) of the preceding paragraph unless Buyer did not act culpable. Because Honeywell has exclusive control of resolving infringement claims hereunder, in no event will Honeywell be liable for Buyer's attorney fees or costs. If a claim is made against a Deliverable Honeywell may, at its option, and at its expense, (i) procure for Buyer the right to continue using the Deliverable; or (ii) replace or modify the Deliverable so that it becomes non-infringing. Further, if a claim of patent or copyright infringement is made against a Deliverable Honeywell may cease shipping infringing Deliverables without being in breach of this Agreement. Any liability of Honeywell under this Article is subject to the provisions of the "Limitations of Liability" Article of this Agreement. This Article states the parties’ entire liability, sole recourse and their exclusive remedies with respect to infringement. All other warranties against infringement of any intellectual property rights, statutory, express or implied are hereby disclaimed.
12. CHANGE ORDERS
Either Party may make changes within the scope of an Order subject to acceptance by the other Party. Honeywell will inform Buyer if the change causes a price or schedule adjustment. The change will be effective and Honeywell may begin performance upon the Parties’ authorized signature of a change order.
13. INVENTIONS AND INTELLECTUAL PROPERTY
13.1.“Intellectual Property” means all copyrights, trademarks, trade secrets, patents, utility models and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations.
13.2.If not otherwise agreed in writing, no right, title or interest in Intellectual Property provided by Honeywell is transferred to Buyer under the Agreement, including Intellectual Property existing prior to, or created independently of, the performance of the Agreement. If not otherwise agreed in writing, all Intellectual Property and results of Services, including software, models, designs, drawings, documents, inventions, and know-how (“Inventions”), conceived or developed by Honeywell in connection with the Agreement, are the sole property of Honeywell and Buyer assigns any rights it may have in such Inventions to Honeywell.
14. CONFIDENTIAL INFORMATION; DATA PROTECTION
14.1.“Proprietary Information” means: 1) any information, technical data or know-how in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, maskworks and artwork, that is clearly identified as being confidential, proprietary or a trade secret, 2) business related information including but not limited to pricing, manufacturing, or marketing, 3) the terms and conditions of any proposed or actual Agreement between the Parties, 4) either Party’s business policies, or practices, and 5) the information of others that is received by either Party under an obligation of confidentiality. The receiving Party will keep all Proprietary Information disclosed hereunder confidential for a period of 7 years following the provision of the information or if the information was provided under any long term Framework Agreement following expiration or termination of this Framework Agreement. Each Party will retain ownership of its Proprietary Information including, without limitation, all rights in patents, copyrights, trademarks and trade secrets. No right or license is granted hereby to either Party or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent, patent application or other Intellectual Property of the other Party, notwithstanding the expiration of the confidentiality obligations stated herein. Honeywell agrees to use the Proprietary Information of Buyer only to provide products or services for Buyer. Buyer agrees that it will not use or disclose Honeywell’s Proprietary Information for any purpose besides the purchase or use of Products or services.
14.2.The receiving Party has no duty to protect information that is proven to be: (a) publicly known at the time of disclosure or becomes publicly known through no fault of recipient, (b) known to recipient at the time of disclosure through no wrongful act of recipient, (c) received by recipient from a third party without restrictions similar to those in this section, or (d) independently developed by the receiving Party.
14.3.Any news release, public announcement, advertisement, publicity or any other public disclosure concerning this Agreement requires prior written approval of Honeywell, which approval will not unreasonably be withheld.
14.4.The Parties shall implement, perform and apply all necessary and reasonable measures in order to ensure the protection and lawful collection, processing and use (hereinafter collectively "Data Processing") of personal data in compliance with the applicable laws, in particular to protect the personal data against loss, unauthorized access, alteration, misuse, deletion and/ or destruction. In the event that one Party shall collect and process personal data of the other Party ("Order Data Processing"), the Parties shall enter into and maintain for the term of the Data Processing a written agreement on Order Data Processing that complies with and observes the legal requirements of the applicable laws, in particular the requirements of the Regulation (EU) 2016/ 679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). In the event that either Party transfers personal data from an EU/ EEA Member State into a third country outside the EEA respectively EU, this requires an adequacy decision of the EU Commission, the existence of binding corporate rules, EU Model Clauses/ standard data protection clauses adopted by the EU Commission, legally valid consent of the data subjects concerned or other approved and appropriate safeguards.
15. DISPOSAL OF ELECTRONICAL DEVICES
15.1.After end of use Buyer is obliged to to dispose the Deliverables at its own cost. Buyer shall indemnify Honeywell from any and all obligations pursuant to Sec. 10 Para 2 ElekroG and related claims by third parties.
15.2.If Buyer sells the Deliverable to third party entrepreneur (§ 14 BGB), Buyer is obliged to agree a respective obligations to dispose the Deliverables at own cost with such third parties. If Buyer does not comply with this obligation it is obliged to retract and dispose the Deliverable himself at its own cost.
15.3.Honeywell claims under this clause 15 shall not become time-barred before lapse of two years as from end of use of the Deliverable. The two years period shall begin only on the date of receipt of a notification on the end of use by Honeywell.
16.1.Buyer is responsible for compliance with all import, export, and re-export control laws and regulations and will mutually cooperate as needed.
16.2.Honeywell may suspend Services at Buyer’s expense if Honeywell determines that performance of Services may compromise safety.
16.3.If any provision of the Agreement is determined to be illegal, invalid, or unenforceable, the validity of the remaining provisions will not be affected.
16.4.The failure of either Party to enforce at any time any provision of the Agreement may not be construed to be a continuing waiver of those provisions.
16.5.The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the Federal Republic of Germany, excluding its principles or laws regarding conflicts of laws. Application of the Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods of 1980, and any amendments or successors thereto is specifically excluded. In the event that the parties are unable to resolve the disputes, the parties shall submit the disputes to the courts of Wiesbaden, Federal Republic of Germany. .
16.6.The Agreement contains the entire agreement between the Parties and any pre-printed terms are excluded. Any terms on facility entry documents or other similar documents signed by Honeywell after the Order date are not applicable. If there is any conflict in terms, the order of precedence is the License, any Addendum, the acceptance, the Agreement (excluding the Order), and then the Order.
16.7.Buyer shall not assign any rights or obligations under this Agreement without the advance written consent of Honeywell, which consent will not be unreasonably withheld. Honeywell may assign this Agreement to any affiliate of Honeywell or in connection with the sale or transfer of all or substantially all of the assets of the product line or business to which it pertains to such party. Any attempt to assign or delegate in violation of this clause will be void.