KROHNE, Inc. Standard Terms and Conditions
TERMS AND CONDITIONS
1. DEFINITIONS:
“Contract” means the written agreement, including these Terms and Conditions, and any attachment/addendum to them together with the Order made between KROHNE, INC. (“KROHNE”) and Purchaser for the supply of the Goods, Software and/or provision of Services. If the scope of Supply includes Software, these Terms and Conditions will be supplemented by Software License Terms provided by KROHNE. If the scope of Supply includes installation of the Goods and Software, these Terms and Conditions will be supplemented by erection and installation services addendum mutually agreed in writing between the parties.
“Contract Price” means the price payable to KROHNE by Purchaser for the Goods, Software and/or Services.
“Goods” means goods as defined Article 2 of the Uniform Commercial Code, as in effect in the State of Delaware.
“Intellectual Property” means all copyrights (including software), trademarks, service marks, trade secrets, patents, utility models, designs, know-how, inventions and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations therefor.
“Order” means a purchase order issued by the Purchaser that specifies only the quantity
and type of Supply ordered, Supply descriptions, Goods specifications, shipment and invoice information and shipping instructions accepted in writing by the KROHNE, and excluding all other any terms whether printed, stamped, typed, written, or sent by any electronic means.
“Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Purchaser” means any person, firm, entity, company or corporation that purchases Goods, Software and/or Services from KROHNE, INC. (“KROHNE”).
“Software” means software provided by KROHNE, and all related documentation (if agreed upon in writing to be provided by KROHNE). Software includes any updates, upgrades, error corrections, changes or revisions to be provided by KROHNE to Purchaser under the Contract.
“Supply” means the materials, products, parts and other Goods, documentation, services (“Services”) and Software to be supplied or licensed by KROHNE to the Purchaser under any Order or the Contract.
“Unforeseeable Events” means circumstances which cannot be avoided by reasonable care due to circumstances, including without limitation: war, currency and economical or other sovereign measures, civil disturbance, natural events, fire, flood, storm, pandemic disease, quarantine, explosion, earthquake, riots, strikes, labor disputes, lock-outs, non-supply of materials arising through no fault of the KROHNE, traffic obstructions, operation interruptions, any law or regulation changes, any decision by any judicial or other tribunal having competent jurisdiction, or any other acts of any government or any agency or instrumentality thereof or persons purporting to act with governmental authority or instrumentality, or any other cause beyond the reasonable control of KROHNE or which KROHNE is not able to overcome by the use of reasonable measures or which KROHNE is able to overcome only at substantial expense.
2. ACCEPTANCE: Orders shall be subject to and effective only upon written acceptance by KROHNE, in Beverly, Massachusetts, or in the office of a manufacturing affiliate. Orders are limited to the quantities of Goods, Software, Services and other items specifically stated in the Order accepted by KROHNE. For the avoidance of doubt, KROHNE assumes no responsibility for furnishing other goods, software, services, equipment or material shown in any plan or specification.
3. PRICES: Prices are FOB Beverly, Massachusetts, unless otherwise specified in KROHNE's written quotation and shall remain in effect for thirty (30) days from the date of the quotation. All quotations are subject to alteration until the Order is accepted by KROHNE, as herein provided. Prices include packing for transportation. Special packing instructions may result in additional charges. KROHNE reserves the right to withdraw any quotation at any time prior to acceptance along with the right to extend any quotation beyond such thirty (30) day period.
4. TAXES: Liability for all taxes, licenses or other fees imposed by any municipal, state, or government authority upon the production, sale, shipment, and/or use of equipment or services covered by this proposal shall be assumed and paid for by the Purchaser and the Purchaser shall indemnify KROHNE against any such liability. Applicable sales and/or use taxes will be billed by KROHNE unless suitable exemption certificate is furnished by Purchaser at the time of KROHNE’s quotation.
5. SHIPMENT: Delivery terms are Ex-Works (Incoterms 2020 or the newest edition), unless other delivery terms are agreed upon by KROHNE in writing. The Goods shall be packed in accordance with KROHNE’s standard packing procedure, unless otherwise agreed upon by KRONE in writing. Shipment shall occur upon delivery of the Goods by KROHNE to a carrier at KROHNE’S factory in Beverly, Massachusetts. KROHNE shall use commercially reasonable efforts to effect shipment within the time specified by KROHNE after its receipt of technical and commercial clarification of the Order and submittal of all required approvals, documentation and information by Purchaser. If the Purchaser does not fulfill its material contractual and payment obligations the delivery time shall be extended reasonably at KROHNE’s discretion. Purchaser agrees to furnish complete shipping instructions to KROHNE within a reasonable period of time after acceptance of the Order. KROHNE shall not be responsible for any delay in manufacturing or delivery to a carrier arising out of Unforeseeable Events. KROHNE shall not be responsible for any damage which may occur during shipment, and no such damage shall relieve Purchaser of any obligations hereunder. If the Purchaser fails for any reason to pick up or accept delivery of the Supply at the location and on the delivery date specified in the Contract or the Order, Purchaser shall nevertheless be responsible pay all invoices issued for such Supply without setoff or counterclaim, in accordance with the terms of the Contract and the Order.
In addition, notwithstanding any further rights and remedies provided at law or under the Contract, the Seller shall be entitled to (i) arrange for the transport and storage of such Supply at the cost and expense of Purchaser, (ii) assess a monthly storage fee equal to three (3%) percent of the aggregate value of the Purchase Order of Contract, and (iii) be indemnified by the Purchaser for all claims related to the transportation and storage of such Supply including, without limitation, the loss of such Supply, which risk of loss shall be borne by the Purchase.
In no event shall KROHNE be liable for consequential damages and/ or penalties resulting from its failure to perform or delays in performing its obligations unless otherwise agreed in writing at the time of the acceptance of the Order, in each case, by an authorized KROHNE officer.
6. PAYMENT: Unless otherwise specified by KROHNE in its quotation, payment terms are thirty (30) days net from date of KROHNE’S invoice. Upon any failure of payment to as provided herein, in addition to all other available remedies, KROHNE shall have the right and Purchaser will permit KROHNE to enter the premises where the equipment is installed and peacefully repossess all Goods for which full payment has not been received by KROHNE. KROHNE reserves the right to assess a surcharge or convenience fee on all payments via credit card.
7. CANCELLATION AND RETURN EQUIPMENT: Orders may be cancelled by Purchaser only with KROHNE’S written consent and upon payment of reasonable restocking and cancellation charges, including factory costs and expense incurred by KROHNE in carrying forward an Order to the date of KROHNE’S agreement to terminate. If the Order or any part thereof, has already been shipped by KROHNE, the equipment shall be returned only when specifically authorized by KROHNE and credit for this returned Goods shall be determined by KROHNE after factory inspection.
8. CREDIT WORTHINESS OF BUYER: If an any time before shipment the financial condition of Purchaser becomes impaired, or unsatisfactory, to KROHNE, including without limitation, by reason of any cash payment or satisfactory security may be required by KROHNE before shipment, and in the event Purchaser shall generally fail to pay its bills as the come due in by reason of the commencement or authorization of the commencement of any bankruptcy, insolvency, receivership, general assignment or similar proceeding, whether voluntary or involuntary, involving as the subject thereof the Purchaser, KROHNE shall be entitled to cancel any outstanding Orders then outstanding and shall be entitled to recover reasonable expenses and cancellation charges.
9. TENDER: In the event of failure or refusal of the Purchaser to accept delivery, no physical tender of the Goods by KROHNE shall be necessary, but written notice of KROHNE's readiness and willingness to deliver any quantity of the product at any time specified shall be equivalent to physical tender thereof.
10. CATALOG AND SPECIFICATION ILLUSTRATIONS: The catalog, specifications and illustrations and engravings in KROHNE's catalogs and specification sheets are intended to show the general features of the Goods and materials, but KROHNE reserves the right to supply Goods and materials of latest design and construction. Purchaser’s drawings and specifications and application of the Supply are Purchaser’s sole responsibility and KROHNE shall not be liable for any damage, loss, claim, cost, expense and the like arising out of or in connection with KROHNE’s compliance with Purchaser’s drawings, specifications and/or Purchaser’s application of the Supply.
11. ASSIGNMENT: No rights or obligations arising under this contract may be assigned or transferred by Purchaser without the prior written consent of KROHNE in each instance.
12. ENTIRE CONTRACT: No acceptance by KROHNE of any Order shall be deemed to be an acceptance of any provision of Purchaser's purchase order form. This writing and any accompany quotation constitutes the entire agreement and understanding between the Purchaser and KROHNE as of the date of acceptance by KROHNE and shall not be modified thereafter in any way except by writing executed by a person duly authorized by KROHNE to execute the same.
13. WARRANTY: KROHNE warrants that the Goods, under normal use and services installed and operated in accordance with the KROHNE’s installation manuals, comply with applicable current KROHNE products specifications and are free from defects in material and workmanship for a period of 12 calendar months computed from the date of commissioning or 18 months from the date of delivery, whichever comes first (“Goods Warranty Period”). Where the KROHNE is supplying services, KROHNE warrants that Services materially comply with the agreed requirements for 6 calendar months from date of the performance of the Services (“Services Warranty Period”). During the Goods Warranty Period, KROHNE will, at its option, repair or replace defective part of the Goods. Repair / replacement of any defective parts in the Goods shall be limited to the cost of repairing the part or the cost of the replacement part provided that the part or parts are returned to the KROHNE's factory by the Purchaser carriage paid. During the Services Warranty Period, KROHNE’s warranty obligations for Services are limited to re-performance of the non-conforming Services. KROHNE’s warranty obligations are further limited as follows:
a) Where Goods sold hereunder are used with attachments and/or modifications which have not been recommended or approved by KROHNE in writing, such use shall not be considered normal use and service under KROHNE’s warranty and such warranty shall not apply to such Goods.
b) KROHNE’s warranty obligations do not extend to, and KROHNE assumes no liability for, consequential, special, and /or secondary damages, or losses of any kind sustained directly or indirectly as a result of a defect in any Goods or installation Services. For the avoidance of doubt, in no event will KROHNE be liable to Purchaser in an amount exceeding the purchase price of the Supply.
c) KROHNE’s warranty obligations extend only to the repair or replacement of any and all defective material, parts or assemblies which may be returned, with freight prepaid by the Purchaser, to KROHNE's factory for repair and returned therefrom at expense to the Purchaser unless otherwise arranged by both parties. KROHNE will supply replacement parts to the Purchaser upon receipt by KROHNE of the defective material or assemblies. KROHNE shall not be liable for the cost and expense of any repair or installation of replacement parts hereunder unless the same is accomplished under the direct supervision of KROHNE or pursuant to its written authority.
d) All products sold are warrantied to function in accord with the current KROHNE product specification if installed and operated in strict accordance with accompanying installation manuals. As between the parties, the Purchaser shall be solely responsible for determining suitability for use and KROHNE shall in no event be liable in this respect. KROHNE reserves the right to determine if any Goods have been subject to misuse or misapplication beyond KROHNE's specifications.
e) KROHNE makes no warranty whatsoever with respect to equipment, material, or parts supplied or manufactured by others.
14. LIMITATIONS ON LIABILITY: KHRONE’S total liability under any Contract or Order shall not exceed the value of such Contract or Order. Notwithstanding anything contained herein, KROHNE’s limitations on liability set forth herein shall not apply to: (i) claims for damages resulting directly from KROHNE’s gross negligence or willful misconduct, (ii) personal injury or death the proximate cause of which is due to KROHNE’s gross negligence, and (iii) any claim for which it is unlawful to exclude or limit liability under applicable law.
15. EXPORT CONTROL COMPLIANCE: KROHNE shall have no obligation to supply any Goods, Software, Services or technology unless and until all necessary licenses or authorizations, including an Employer Identification Number and/or DUNS number, or qualification for general licenses or license exceptions are received under 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 United States, the European Union and any jurisdiction in which KROHNE is established or from which such Goods, Software, Services or technology are supplied). If for any reason any such licenses, authorizations or approvals are denied or revoked, or if there is a change in any such applicable laws, regulations, orders or requirements that would prohibit KROHNE from fulfilling the Contract, or would in the reasonable judgment of KROHNE otherwise expose KROHNE and/or KROHNE’s affiliate(s) to a risk of liability under applicable laws, regulations, orders or requirements, KROHNE shall be relieved, without any liability, of all obligations under the applicable Order.
In no event shall Purchaser use, transfer, release, export or re-export any Goods or Software or technology in violation of applicable import, export control and sanctions laws, regulations, orders and requirements and/or the requirements of any licenses, authorizations or license exceptions relating thereto. Purchaser shall, at its expense, indemnify, defend and hold harmless KROHNE and KROHNE’s affiliates from and against any and all loss, cost, expense (including reasonable attorney and professional fees), claims, damage, or liability arising out of or resulting from or occurring in connection with Purchaser’s breach of this Section 14.
16. INTELLECTUAL PROPERTY RIGHTS: All Intellectual Property rights relating to the Supply and results of services, existing now or in the future, including any software, designs, drawings, sketches, cost estimates, documents, inventions and know-how, either conceived or developed by KROHNE or embedded in the Supply, or existing prior to, or created independently of, the performance of the Order, shall vest in KROHNE. The Purchaser shall not decompile, reverse engineer, reproduce or disclose to third parties any Intellectual Property of KROHNE including, without limitation, any drawings, sketches, cost estimates, pricing information, specifications, performance characteristics, manuals and documents to third parties without the prior written consent of KROHNE in each instance. At KROHNE’s request, such documents and any duplicates shall be returned to KROHNE except to the extent the same are required for the operation of the Supply.
17. GOVERNING LAW: These Terms and Conditions shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to the conflicts of law provisions thereof.
Dated: März 01, 2024