General Terms and Conditions Balluff Asia Pte Ltd.
- General – Additional Agreements/Amendments – Offers
- Delivery – Date of Delivery – Extension of the Delivery Period – Part Performance
- Force Majeure – Cancellation – Failure of Supplier
- Retention of Title
- Passing of Risk – Incoterms
- Warranty Claims – Complaint Obligations
- Intellectual Property Rights and Copyrights – Defects of Title
- Prices – Price Increases
- Payment Terms – Late Interest – Assignment
- Obligations in case of resale
- Place of Fulfilment – Place of Jurisdiction – Arbitration
- ADDITIONAL CONDITIONS REGARDING SOFTWARE
- Rights of Use
- Passing of Risk
- Additional Obligations to Cooperate and Liability
- Warranty Claims
- Intellectual Property Rights and Copyrights – Defects of Title
In this Terms and Conditions, the terms “we”, “our”, “us” and “Balluff” shall all refer to and mean Balluff Asia Pte Ltd.
I. General – Additional Agreements/Amendments – Offers
1. All of our deliveries of products and services (hereinafter referred to as “Service(s)”) are subject exclusively to the following General Terms and Conditions (hereinafter referred to as “Terms and Conditions”). We do not accept conflicting, differing and/or terms and conditions not contained in these Terms and Conditions unless expressly agreed upon their application in writing. This also applies in cases where we perform deliveries of products and services with knowledge of conflicting, differing conditions or conditions not contained in our Terms and Conditions or if you unilaterally refer in your request, your order or in any other context to the application of other terms and conditions.
2. Our sales personnel are not authorized to amend any portions of these Terms and Conditions or make any additional agreements, oral or otherwise.
3. Unless otherwise expressly agreed upon, our offers for price and performance are not binding. The order does not become binding for us until we confirm it in writing or tacitly accept it by performance or issuance of an invoice.
4. All contracts concluded with you are under the condition precedent that the necessary export licenses will be granted upon application. In particular, there must be no conflicts and obstacles falling upon us in our position as an exporter, and there must be no conflicts with any export regulations or conditions imposed by regulators which must be observed by us or our suppliers.
5. Unless otherwise expressly agreed upon, illustrations, drawings, calculations and other product, application or project-related documents which contain valuable know-how or valuable information remain our sole property and are subject to our copyright even if handed over to you; they may not be reproduced or made available to third parties without our prior written consent.
II. Delivery – Date of Delivery – Extension of the Delivery Period – Part Performance
1. Unless otherwise expressly agreed upon, the agreed dates for performance are not fixed deadlines.
2. The delivery period and the period for service does not commence until all details are clarified and both parties have agreed on all the conditions of business. The prerequisites for adherence to delivery periods and to periods for service are:
- all documents which are to be provided by you have reached us on time;
- all approvals and releases which are to be provided by you have been issued on time;
- your contractual obligations, particularly your payment obligations, have been met in full and on time.
3. Unless otherwise expressly agreed upon, the delivery period is considered to have been met if the operational shipment has left our plant within the agreed delivery period.
4. The delivery period shall be reasonably extended if:
- the failure to comply with the delivery period is due to force majeure, i.e. an unforeseen event on which we have no influence and which we are not responsible for (e.g. official actions and orders (irrespective if they are valid or invalid), fires, floods, storms, explosions or other natural disasters). This shall also apply if force majeure occurs during an undue delay in delivery and if a supplier of us is affected by force majeure;
- necessary approvals or documentation from third parties which are to be provided by you are not presented in time;
- the necessary specifications are not made known by you, to us, in time.
5. Services may be provided in instalments insofar as you can be reasonably expected to accept this. In such event, we are also entitled to invoice such instalments separately.
6. In the event a delivery is delayed at your request or due to circumstances for which you are responsible for, we are, upon demonstration of readiness to ship, entitled to charge you the costs resulting from storage which shall be at minimum, 0.5% of the invoice amount for each week of delay (upon Balluff‘s reasonable discretion), and up to an aggregated maximum of 10% of the invoice amount. This shall not limit our rights to withdraw from the contract, to claim damages and to pursue our rights and remedies in law.
III. Force Majeure – Cancellation – Failure of Supplier
1. If it is impossible for us to fulfil the performance within an appropriate period of time due to force majeure (refer above Section II.4), both parties are entitled to withdraw in full or in part from the contract. The same applies to subsequent impossibility of performance of contract which we are not responsible for. No damages may be claimed for such a withdrawal. If one party intends to withdraw from the contract due to force majeure reasons it must inform the other party without delay.
2. You agree that we are released from our contractual obligations without any fault on our part if our suppliers does not supply us in time with the correct goods needed to fulfil our contractual obligations with you.
IV. Retention of Title
1. We reserve the title to all purchased goods until we receive complete payment of all amounts and claims due to us in connection with our provision of the Service(s). This also applies in cases where payment is due for certain requests made by you. If the retention of title is linked to special prerequisites or forms in your country, you are required to notify us promptly and to ensure fulfilment at your sole expense.
2. Linkage, blending or processing of our products shall take place on behalf of us as the manufacturer, but without any obligation for us. If (joint) title is terminated due to linkage, blending or processing, it is agreed that we shall acquire joint title to the new item in proportion to the value of the product supplied by us compared with the other goods at the time of linkage, blending or processing. You have to store the new item(s) of which we have (joint) title for us at no charge to ourselves.
3. Authorized resellers are permitted to resell the goods in the course of ordinary business unless revoked by us. We may revoke this right of resale if (a) you stop payment, (b) you are in delay of payment, (c) if there are indications of deterioration of property, or (d) other facts after conclusion of contract are given that corroborate the belief that our claim and rights are prejudiced due to a lack of performance. For goods in which we have (joint) title, you hereby assign to us by way of security all rights arising from resale of the items delivered to third parties or from any other cause in law in the sum of the invoice value of the corresponding item. On demand you are obliged to provide us with written declarations of assignment. You are authorized to collect the assigned claims against the third party in the course of ordinary business in your name. This collection authorization may be revoked by the same reasons as the right of resale.
4. Prior to the transference of title from us to you, pledges and transfers by way of security are not permitted. You must inform us without delay of any attachment of property, distraught or any other disposals or interferences by third parties.
V. Passing of Risk – Incoterms
1. Unless otherwise expressly agreed upon, delivery of Service(s) will take place “Ex works” (Incoterms in their applicable version, currently Incoterms 2010) at the place indicated in our offer or in our acceptance or if in our offer or our acceptance no place is indicated “Ex works” Singapore.
2. Unless otherwise expressly agreed upon, the risk of accidental destruction or accidental deterioration of the products passes on to you as soon as the products have been handed over to the person fulfilling the transport delivery obligations, and at the latest when the products leave our distribution centre. This also applies if we have to handle delivery. If shipment is delayed for reasons you are responsible for, the risk of accidental destruction or accidental deterioration of the products shall pass on to you upon us informing you that the products are ready for delivery.
3. If internationally customary shipping and risk bearing clauses are used in the contract, these are to be interpreted according to the international Rules for Interpretation of Trade Terms (Incoterms in their applicable version, currently Incoterms 2010).
VI. Warranty Claims – Complaint Obligations
1. Unless otherwise expressly agreed upon, quality and usability are listed exclusively and exhaustively in the technical data sheet or in the instruction manual of the respective product.
2. In the event of a claim for supplementary performance (subsequent improvement or additional delivery) Balluff shall have the right to choose the most cost-effective alternative, provided that this alternative is not to your detriment.
3. Complaints due to incomplete or incorrect delivery must be made to us in written form immediately but not later than within one week following delivery (apparent defects) or discovery of the defect. Otherwise the assertion of a claim for warranty shall be excluded.
4. Warranty claims are subject to a limitation period of 24 months following transfer of risk. This shall not apply to warranty claims pertaining to products subject to wear (e.g. photoelectric sensors, mechanical sensors, micropulse transducers, magnetically coded position and rotary encoder systems, inductive couplers and accessories which is classified as accessories by Balluff (e.g. cable, connectors, angle brackets etc.), etc.); these warranty claims are subject to a limitation period of 12 months following transfer of risk. This limitation shall not apply in cases of injury to body or health, death, and in cases of willful, intentional or gross negligence or misconduct by us.
5. If a certain number of operations or switching cycles are agreed for a product, this agreement is only valid within the limitation periods described in Section VI.5 above. If the agreed number of operations or switching cycles of a product is reached prior to the expiration of the limitation periods described in Section VI.5 above, all performance and warranty claims resulting from such an agreement shall cease with immediate effect. The agreement of a certain number of operations or switching cycles is only valid if the product is used under the environmental conditions described in the appropriate technical data sheet or in the appropriate instruction manual and within the limitation period prescribed.
6. Warranty claims are excluded among other things in cases of:
- failure of inspection and complaint of goods receivable as described in Section VI.3 and VI.4 above;
- subsequent, unauthorized modification to the product unless there is evidence that the defect was not a result of such a modification.
- defects which occur due to normal wear, improper usage or improper storage.
7. Compensation for damages shall only be made by us in accordance with Section VIII.
VII. Intellectual Property Rights and Copyrights – Defects of Title
1. Intellectual Property Rights shall mean patents, utility models, design patents, trademarks, including their applications, as well as copyrights (hereinafter referred to as “Intellectual Property Rights”). Unless otherwise expressly agreed upon, we are obliged to fulfil our contractual obligations free of Intellectual Property Rights only in the countries where the goods are produced or where delivery of the goods is made. Insofar as a third party raises any justified claims against you due to an infringement of Intellectual Property Rights through performances by us and used in conformity with the contract, we shall be liable to you within the period defined in Section VI.5. We shall at our discretion and at our expense either (a) acquire the rights of use for the performances in question, (b) alter them in such a manner that the Intellectual Property Rights are not infringed, or (c) exchange them. Should this not be possible for us at suitable conditions, you are entitled to withdraw from the contract or obtain a reduction in the price. Compensation for damages may only be provided in accordance with Section VIII.
2. The obligations mentioned in Section VII.1 exist only if and insofar as you (a) inform us in writing immediately concerning the third-party claims asserted, (b) do not recognize any infringement and ensure that all defensive measures and settlement proceedings remain reserved to us.
3. Your claims are excluded insofar as you are responsible for the infringement of the Intellectual Property Rights.
4. Your claims are also excluded insofar as the infringement of Intellectual Property Rights is due to your special instructions or due to any use not to be foreseen by us or has been caused by the goods being altered by you without authorization.
5. Claims against us or our agents due to deficiencies in title over and above or other than those governed in this Section VII are excluded.
6. Ownership of an Intellectual Property Right developed in the course of a contract shall reside solely with Balluff. In the event where you were significantly involved in the generation of the Intellectual Property Right, you agree to grant Balluff an irrevocable, royalty-free, non-exclusive right to use the Intellectual Property Right, unrestricted in terms of time, location and content.
1. Except for cases of willful misconduct or gross negligence by us, we shall only be liable for any justified claim for direct damages caused by defective Services or due to a breach of our contractual obligations. In no circumstance shall we be liable to you for any indirect, consequential, special, incidental or punitive damages or any lost profits, loss of use, damage to goodwill or loss of business.
2. Our maximum aggregate liability for any claims arising out of or in connection with a contract shall be capped at the total contractual amount of the particular contract.
3. All limitations of liability shall apply to the same extent to our vicarious agents.
IX. Prices – Price Increases
1. Our prices are net prices. They are “Ex works” (Incoterms in their applicable version, currently Incoterms 2010). Packing, shipping and insurance shall be billed separately unless otherwise expressly agreed.
2. In cases where the net invoice amount is below SGD 500 (or equivalent in Euro or USD), a surcharge of SGD 30 (or equivalent in EUR or USD) is chargeable by Balluff.
X. Payment Terms – Late Interest – Assignment
1. Unless otherwise expressly agreed, payment terms are cash in advance and in any case prior to deliverance of any Service(s).
2. Prices quoted by us may be in Singapore Dollar, Euros or US Dollars. When making payment to us, you agree to make full payment in the respective currency and amount quoted.
3. If payment is made via bank transfer, you shall bear all international and domestic bank charges and any administrative charges imposed by the banks.
4. Late interest of 1% per month calculated on the total invoice amount shall be payable by you if any amount is not paid on the earlier of: (a) taking delivery of any Service(s) or (b) expiry of the payment due date of the relevant invoice.
5. Prices quoted are subject to 7% Goods and Services Tax unless it is for export shipment where the necessary export documentation are ready and presented to us (e.g. export permit, subsidiary export certificate and note of shipment document) on the date of shipment or within a week from the date of shipment.
6. Any payments made on the invoices, including deposit and late interest, are non-refundable and any Service(s) provided or to be provided are non-exchangeable.
7. If we reasonably believe that your financial situation deteriorates after conclusion of the contract or if we become aware of other facts after conclusion of the contract which justify the presumption that our claim against you is jeopardized by the inability to perform by you, we may demand corresponding adequate securities for our services and/ or revoke any payment terms granted. If you do not present the adequate securities requested by us within a reasonable time, we may withdraw from the contract without incurring any liability to you. Our existing rights to claim for Services provided and work done in anticipation of providing the Services shall remain unaffected.
8. Except with the prior written consent of Balluff, any contractual relationships and the associated rights are non-assignable.
XI. Obligations in case of resale
Where you resell any objects of delivery (i.e. Balluff products) you are obliged to observe all applicabl and relevant regulations including the:
(a) Customs Act (Cap 70);
(b) Regulation of Import and Exports Act (Cap 272A);
(c) Strategic Goods (Control) Act (Cap 300);
(d) the German Außenwirtschaftsgesetz (AWG);
(e) German Außenwirtschaftsverordnung (AWV);
(f) EU-Dual-Use-Directive (Directive (EU) Nr. 428/2009); and
(g) US Export Administration Regulations (EAR).
in their current valid version – and to obligate your customers accordingly.
2. You agree to indemnify us from all damages and costs as a result of the noncompliance with the regulations listed in this Section XI and you agree to indemnify us and keep us harmless from any claims raised against us in connection therewith.
XII. Place of Fulfilment – Place of Jurisdiction – Arbitration
1. Place of fulfilment for all duties resulting from the contractual relationship is Singapore.
2. This Terms and Conditions shall be governed by the laws of Singapore.
3. Any dispute arising out of or in connection with this Terms and Conditions, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore, with arbitration proceedings in English to be heard before a single arbitrator.
ADDITIONAL CONDITIONS REGARDING SOFTWARE
When we provide you, as a part of or in connection with our deliveries and services, with software (herei after referred to as “Software”) for usage – against payment or without charge – the following additional conditions shall apply. In the event that the conditions contained in Sections I - XII above and the following conditions contained in Sections XIII - XVII should contradict themselves regarding Software the following condition shall prevail.
XIII. Rights of Use
1. We grant you the non-exclusive right of intended use of the Software. The intended use is described in the technical data sheet or in the instruction manual referring to the respective Software. The right of use is limited to the period of time agreed between parties; in the absence of such an agreement the right of use shall be unlimited in time.
2. You may use the Software solely on the hardware referred to in the technical data sheet or in the instruction manual, in the absence of such reference, the use shall be limited to the respective hardware supplied together with the Software. The use of the Software on any other device requires our prior written consent; in case of an infringement of this obligation we are entitled to make a claim for appropriate additional remuneration which is in addition to, and shall not affect or preclude our rights, our rights at law.
3. Notwithstanding that the technical data sheet or the instruction manual refers to more than one device, you may only use the Software on a single device (Single License). Where more than one workplace exists for a specific device where the Software can be used independently, the Single License shall apply to only one workplace. This may be subject to our agreement for Multiple Licenses (refer to Section XIII.11).
4. The Software will exclusively be provided in machine readable format (object code).
5. You are entitled to make only one copy of the Software solely for back-up purposes (back-up copy). Any other duplication is allowed subject to a Multiple License agreed.
6. You are not entitled to modify, decompile, translate or isolate parts of the Software. You may not remove alphanumeric or other identifiers from the data medium and you must transfer such identifiers unchanged to any back-up copy.
7. We grant you the right – which shall be revocable for good cause – to transfer the right to use the Software to a third party. The right to use the Software may only be transferred together with the device you have purchased in combination with the Software from us. If the right to use is transferred to a third party you must ensure that the right to use granted to the third party does not exceed the scope of rights to use the Software granted to you under these Terms and Conditions and the related technical data sheet or the related instruction manual, and you must ensure that the third party shall be obliged to comply with at least the same obligations as are imposed in these Terms and Conditions. When transferring the Software, you may not retain any copies of the Software.
8. You are not entitled to grant sublicenses.
9. Where you provide the Software to a third party, you must ensure that any existing export regulations and requirements are observed; in case of any infringement you agree to indemnify us and keep us harmless from any claims raised against us in connection therewith.
10. To the extent that Software is provided to you for which we have only derived rights to use (third party software), the provisions of this Section XIII are amended and superseded by the conditions of use agreed between us and our licensor. To the extent that we have provided you with open source software, the provisions of this Section XIII are amended and superseded by the conditions of use underlying the open source software. We will point out in the technical data sheet or in the instruction manual if third party software or open source software and pertaining conditions of use exist and make the conditions of use available if so requested by you. Any breach of these conditions of use on the part of you shall entitle not only us, but also our licensor, to assert claims and rights arising therefrom in its own name.
11. The use of the Software on more than one device or simultaneously at more than one workplace by you requires a separate agreement on the right to use. The same shall apply if the Software is used in networks even if the Software is not copied for this purpose. With regard to the situations named above (hereinafter referred to as “Multiple License”) the following provisions (a) and (b) shall apply in addition to and with priority over the provisions of Section XIII.1 to XIV.10:
(a) a Multiple License requires that we expressly confirm in writing the number of admissible copies that you may make of the Software and the number of devices respectively workplaces where the software may be used. Section XIII.7 shall be applicable to Multiple Licenses provided that they may be transferred by you to third parties only if transferred in their totality and together with all devices on which the use of the Software is allowed.
(b) you must observe the duplication rules provided by us together with the Multiple License. You must keep records on the whereabouts of all copies made and submit to us upon request.
XIV. Passing of Risk
1. If the Software is provided via electronic communication media (e. g. via internet) the risk of accidental destruction or accidental deterioration shall pass when the Software leaves our sphere of influence (e. g. when making a download).
XV. Additional Obligations to Cooperate and Liability
1. You have to take all required measures to prevent or limit damage attributable to the Software. In particular, it is your responsibility to make regular back-up copies of the programs and data. We are not liable for any damages and consequential damages arising therefrom. This shall apply in particular to the lost or damaged data or programs.
XVI. Warranty Claims
1. Warranty claims regarding Software are subject to a limitation period of 12 months following transfer of risk. This limitation shall not apply in cases of injury to body or health, death, and in cases of willful, intentional or gross negligence or misconduct by us.
2. Software is considered to be defective only if you can prove that there are reproducible deviations from the specifications regulated exclusively and exhaustively in the technical data sheet or in the instruction manual. A defect shall not be deemed to exist if it does not manifest itself in the latest version of the Software supplied to you, and the use thereof by you can reasonably be required.
3. Warranty claims do not exist in any of the following cases:
- damages resulting from faulty or negligent handling of the Software;
- damages resulting from particular external influences not assumed under the contract;
- modifications made by you or third parties, and any consequences resulting therefrom;
- software extensions made by you or a third party through the use of an interface provided by us;
- incompatibility of the Software with the data processing environment of you.
4. Where necessary, a claim of supplementary performance regarding Software will be settled by us with a replacement by way of an update or an upgrade of the Software if available to us or obtainable with reasonable efforts by us.
XVII. Intellectual Property Rights and Copyrights – Defects of Title
1. If a third party claims legitimately due to an infringement of protective rights regarding Software, we are liable according to Section VII within the limitation period according to Section XVI.