Terms and conditions
Terms And Conditions
Except as agreed in writing the following terms and conditions apply without
exception to all sales and services by PEHA GmbH & Co. KG, Daimlerstr. 4,
58553 Halver, Germany (“PEHA”) to Buyer within the territory of the Federal
Republic of Germany.
Last revised: May 2020
1. Sole Terms
PEHA‘s sale is expressly limited to the terms herein and refers to all goods
sold and services provided by PEHA. Any additional or different terms or
conditions on Buyer‘s purchase order or any other instrument, agreement,
or understanding are deemed to be material alterations and are rejected
and not binding upon PEHA. PEHA‘s acceptance of Buyer‘s purchase order
is expressly conditional upon Buyer‘s assent to the terms and conditions
contained herein in their entirety. Buyer‘s acceptance of delivery from PEHA
constitutes Buyer‘s acceptance of these terms and conditions in their entirety.
2. Quote/Prices
a) Information in any quotations and in attached drawings and illustrations
about the goods, their measurements and weights are only approximate
unless they are expressly stated as being binding.
b) Content and scope of the supply are determined exclusively on the basis of
PEHA‘s written quotation and order confirmation.
c) PEHA‘s quotations are subject to change until accepted by the Buyer. If an
offer is stated as being binding, it shall be binding for 3 months from its date
of issue.
d) PEHA reserves the right to make technical changes to construction, form
and material of good – also during the delivery time – providing these
changes are reasonably acceptable to Buyer. If agreed by the parties,
changes to goods or services to be supplied, PEHA is entitled to claim additional
costs with immediate effect and is not obliged to perform the contract
until Buyer agrees to make such payments.
e) Buyer must request shipment of the entire quantity of goods ordered within
12 months from date of order; otherwise, PEHA‘s standard prices at time
of shipment may, at PEHA‘s option, apply to those quantities actually
delivered,
even if already invoiced.
f) Prices are EX WORKS PEHA (Incoterms 2010). Unless specifically agreed in
writing prices for goods do not include the cost of packaging, or services
such as shipment, installation, start-up, commissioning or maintenance. If
PEHA has expressly agreed to ship goods, shipment costs will be as per the
quote or if none mentioned the relevant catalog.
g) All tooling, designs, drawings, and other intellectual property produced or
delivered hereunder are owned by PEHA.
h) Order values less than the amount as set out in the price list published
by PEHA from time to time (“Minimum Order Value”) will be subject to a
handling
fee defined in the then current PEHA‘s price list.
3. Payment
a) Payment terms are thirty (30) days from (I) with respect to Products, delivery
of Products by PEHA to a carrier; and (II) with respect to services, the date of
invoice for services performed. Partial shipments will be invoiced as they are
shipped. If Buyer fails to pay any amounts when due (I) Buyer will pay PEHA
a late payment charge equal to 1.5 % per month on such unpaid amounts
(but in no event higher than the maximum amount allowed by law), together
with all costs and expenses, including reasonable attorneys‘ fees, incurred
by PEHA in collecting such overdue amounts; (II) Buyer will not set off or
recoup invoiced amounts or any portion thereof against sums that are due
or may become due from PEHA, its parent, affiliates, subsidiaries or other
divisions or units; (III) PEHA may exclude delinquent amounts from any rebates,
marketing development funds (co-op), or any other incentive calculations;
(IV) PEHA may withhold or deem forfeited all rebates, benefits,
funds, allowances, or incentives that Buyer otherwise may be entitled under
this Agreement; (V) PEHA may withhold all or partial future shipments until
delinquent amounts are paid in full. Buyer will be responsible for all PEHA
storage and carrying costs for any products withheld in connection with delinquent
amounts; (VI) PEHA may suspend performance on any of its obligations
in this Agreement, including any amounts owed by PEHA to Buyer,
until delinquent amounts are paid in full; (VII) PEHA may request cash in
advance for future orders until delinquent amounts are paid in full; (VIII)
PEHA may terminate this Agreement for cause if payment on delinquent
amounts is not received within 10 business days of written notice of breach;
(IX) PEHA may refuse to process Buyer credit; and (X) Buyer may be invoiced
a service fee in the amount of 100.00 EUR for each occurrence for its failure
to include the remittance detail and minimum information described
above.
b) Disputes as to invoices are deemed waived 15 days following the invoice
date. PEHA reserves the right to correct any inaccurate invoices.
4. Delivery, Examination, Retention Of Title, Cooperation
a) All delivery dates are estimates unless agreed otherwise by PEHA in writing.
b) PEHA may make deliveries under any order in one or more shipments, to the
extent that this is reasonably acceptable to Buyer and may issue separate
invoices.
c) Any fixed dates for deliveries agreed in writing are conditional upon the
timely provision of all documents by the Buyer, any required authorizations
and approvals, in particular of plans and the provision of all necessary information.
If these requirements are not fulfilled in a timely manner, the fixed
dates will be extended accordingly. This does not apply if PEHA is responsible
for the delay.
d) PEHA may demand an appropriate extension of the delivery date in the
event of subsequent changes agreed.
e) Delivery terms for goods are EX WORKS PEHA (Incoterms 2010) with all risk
of loss or damage to goods passing to Buyer upon delivery to carrier.
f) Buyer must inspect all goods upon delivery without undue delay and must
report (I) obvious defects, transport damages, discrepancies and shortages
without undue delay, and in no event later than 10 days after delivery, (II)
hidden defects without undue delay, and in no event later than 10 days after
detection in writing to PEHA. Otherwise all goods will be deemed delivered
and accepted, unless PEHA fraudulently neglected to disclose such faults.
Buyer will return to PEHA any goods that are rejected at its own expense. In
the event Buyer refuses to accept delivery, Buyer shall be liable for increased
costs incurred by PEHA in accordance with section 7c).
g) PEHA shall retain title in all goods delivered by PEHA until payment has
been made in full. In the event Buyer has credit with PEHA, retention of title
shall serve as security for any balance due to PEHA.
h) Until title in the goods is transferred to Buyer, Buyer shall treat the goods
with care; in particular it shall insure them sufficiently against fire, water and
theft at reinstatement value at its own cost.
i) In the event of seizure or any other measure taken by third parties in relation
to the goods, Buyer shall notify PEHA in writing without undue delay so that
PEHA can initiate legal proceedings pursuant to § 771 of the German Code
of Civil Procedure in order to prevent execution of any court order. If the third
party is unable to reimburse the costs incurred in court and out of court of
a claim pursuant to § 771 of the German Code of Civil Procedure, Buyer is
liable for the damages incurred hereby.
j) Any processing of or alteration to the goods carried out by Buyer shall always
be carried out for PEHA. If the goods are processed using other items,
which do not belong to PEHA, PEHA shall acquire co-ownership of the new
item in the ratio of the value of the object delivered to the other processed
items at the time of processing.
k) If the goods are irreversibly mixed using other items, which do not belong to
PEHA, PEHA shall acquire co-ownership of the new item in the ratio of the
value of the object delivered to the other mixed items at the time of mixing.
If the mixing process takes place in such a way that Buyer‘s item must be
regarded as the principal item the parties shall be deemed to have agreed
that Buyer shall transfer shared title to PEHA pro rata.
l) Should Buyer sell the goods delivered, whether processed or not, in due
course of business, it hereby assigns any claims from selling the goods with
all ancillary rights vis-à-vis its customer to PEHA.
m) On good cause Buyer is obliged, if requested by PEHA, to inform PEHA of
any assignment to a third-party purchaser and to give PEHA all information
required for the assertion of its rights and to hand over any documents.
n) Should the realizable value of PEHA‘s security exceed the debt claim to be
secured by more than 10 % PEHA shall release part of the security, at its
discretion,
at the request of Buyer.
o) Buyer shall make available in time all equipment and grant access to all facilities
which PEHA may require to perform any services.
5. Taxes
The amount of any and all applicable taxes will be added to the price and paid
by Buyer, unless Buyer has provided PEHA with exemption certificates acceptable
to the taxing authorities.
6. Force Majeure, Delay
a) PEHA is not liable for any delay in production or delivery of goods if due to a
force majeure event, which includes, among other things, shortages or
inability
to obtain materials or components, or refusals to grant an export
license
or the suspension or revocation thereof, or any other acts of any government
that would limit PEHA‘s ability to perform, fire, earthquake, flood,
severe weather conditions, or any other acts of God, quarantines, epidemics,
pandemics, or other regional medical crisis labor strikes or lockouts, riots,
strife, insurrection, civil disobedience, armed conflict, terrorism or war (or
imminent threat of same), or any other cause whatsoever beyond PEHA‘s
reasonable control.
b) If the force majeure event continues for longer than 90 days, either party
may terminate Buyer‘s purchase order. If Buyer terminates the order, Buyer
will pay PEHA for work performed prior to termination and all reasonable
expenses incurred by PEHA prior to termination. In the event of delays in
delivery or performance caused by force majeure or Buyer, the date of delivery
or performance shall be extended by the period of time PEHA is actually
delayed or as mutually agreed. Any claims for damages, costs or losses howsoever
construed shall be excluded.
c) If, for reasons other than the foregoing, PEHA should default or delay or not
deliver goods, Buyer‘s sole remedy against PEHA is an option to cancel
Buyer‘s purchase order, through prior written notice to PEHA. In as far as
Buyer incurs damages due to a delivery delay, PEHA‘s liability is limited to
0.5 % of the order value of the delayed delivery per week up to a maximum
amount of 5 % of the order value of the delayed delivery. Buyer is only
entitled
to claim damages in lieu of performance in accordance with section
10 (limitation of liability).
7. Termination, Return Of Goods
a) Buyer may not terminate or cancel a purchase order without PEHA‘s prior
written consent. Goods scheduled for shipment within 30 days cannot be
rescheduled. Goods scheduled for shipment between 30 and 60 days may
be rescheduled with PEHA‘s prior written consent and if rescheduled beyond
60 days that quantity may not be further rescheduled. Buyer is nonetheless
liable for termination charges, which may include (I) a price adjustment
based on the quantity of goods delivered, (II) all costs, direct and
indirect, incurred and committed for Buyer‘s terminated purchase order, (III)
the full cost of all unique materials required for custom goods, and (IV) a
pro-rata compensation covering the pro-rated expenses and anticipated
profits consistent with industry standards.
b) PEHA may terminate a Buyer‘s purchase order in whole or in part upon
Buyer‘
s breach of these terms and conditions or Buyer‘s bankruptcy, insolvency,
dissolution, or receivership proceedings without any further liability.
c) Returns of goods are only accepted in their original packed and sealed condition
within 6 months after shipment. Software, customized products and
products in opened packaging, lacquered und non-reusable parts cannot
be returned. Goods can only be returned with an authorization number
(RMA) obtained from PEHA in advance of shipment to PEHA. The RMA is
specific to the relevant goods and quantity. PEHA reserves the right to (I)
reject any return of other goods than specific to the RMA or (II) charge an
additional 25.00 EUR per return. In case of accepted returns, the purchase
price shall be repaid with a deduction of up to 25 % for processing, testing,
administration
and other overheads. The minimum charge for returns is
50.00 EUR per invoice. This does not affect the purchaser‘s rights under the
product warranty. If the Purchaser withdraws from the Contract and is not
entitled to do so, or if the Purchaser refuses to accept the delivery and is
unjustified in doing so, the Seller is entitled to 15 % of the agreed price as
liquidated damages, unless the Purchaser proves that the Seller has not
suffered any damage or to a lesser extent reserves the right to claim further
damages.
8. Intellectual Property And Infringement Indemnification
a) Copyright, design right and all other rights in the design and manufacture
of goods supplied by PEHA remain PEHA‘s property and none is acquired by
Buyer.
b) Any software provided by PEHA is hereby licensed and not sold. The use of
software, if provided separately or installed on a good supplied, is governed
by the following terms unless a software license agreement is included with
such software. The license is nonexclusive and is limited to such equipment
and/or location(s) as are specified on the purchase order for which this instrument
serves as either a quotation or acknowledgment. No other use is
permitted. PEHA retains for itself (or, if applicable, its suppliers) all title and
ownership to any software delivered hereunder, all of which contains confidential
and proprietary information and which ownership includes without
limitation all rights in patents, copyrights, trademarks and trade secrets.
Buyer shall not attempt any sale, transfer, sublicense, reverse compilation
or disassembly or redistribution of the software. Nor shall Buyer copy, disclose
or display any such software, or otherwise make it available to others
(except as PEHA authorizes in writing). If the software is delivered with a
good, Buyer may only transfer its license of the software to a third party in
conjunction with the sale by Buyer of the good on which the software is installed.
PEHA may terminate this license if Buyer breaches fundamental
provisions under these terms and conditions.
c) PEHA agrees to defend or settle any claim, suit, or proceeding brought
against Buyer based upon a claim that any product manufactured and provided
by PEHA hereunder directly infringes any third party patent, copyright,
or maskwork in the European Union and to pay costs and damages
finally awarded to the third party, provided that: (I) PEHA is notified promptly
in writing of such claim; (II) PEHA is provided sole control of such defense
or settlement using counsel of PEHA‘s choice; (III) and Buyer provides PEHA
with all available information and assistance. PEHA shall not be responsible
for any settlement or compromise of such claim made without PEHA‘s written
consent.
d) PEHA shall have no such obligation in respect of claims arising: (I) from
goods not in PEHA‘s catalogue or goods developed pursuant to Buyer‘s direction,
design, or specification; (II) from goods developed by PEHA using
any process required by Buyer; (III) from the combination of any goods with
other elements if such infringement would have been avoided by the product
not in such combination; or (IV) from goods that have been modified if
such infringement would have been avoided by the unmodified product.
Buyer agrees to defend, indemnify, and hold harmless PEHA from and
against any claims, suits, or proceedings whatsoever arising from such exclusions
identified in (I)–(IV) above.
e) At any time after such a claim has been made or PEHA believes is likely to be
made, or a court of competent jurisdiction enters an injunction from which
no appeal can be taken, PEHA will have at its option the discretion to: (I)
procure for Buyer the right to continue using such product; (II) replace or
modify such product; or (III) accept the product‘s return and refund the purchase
price less twenty percent (20 %) annual depreciation from shipment
date. In no event shall PEHA be liable for any consequential, incidental, special,
or punitive damages. The foregoing states PEHA‘s entire liability and
Buyer‘s exclusive remedy for any actual or alleged infringement of third
party rights. This section 8 is in lieu of and replaces any other expressed,
implied, or statutory warranty against infringement.
9. Warranty
a) To the extent permitted by law PEHA shall only be liable in accordance with
the following warranty conditions, which replace any other warranties or
guarantees. Any other claim shall be excluded. In particular (unless otherwise
agreed in writing) PEHA does not warrant the fitness of the product for
any specific use which would not be the use for which the product was designed
by its manufacturer.
b) Except as otherwise expressly provided herein, PEHA warrants goods in all
material respects to be free of defective materials and faulty workmanship
and as conforming to applicable specifications and/or drawings.
c) Unless otherwise agreed in writing commencing with PEHA‘s date of shipment,
the warranty period shall run for 12 months. This does not apply to
damage claims according to Section 10. These claims are subject to the
statutory limitation periods. Also excluded from this limitation are recourse
claims in case of consumer products.
d) Goods can only be returned with an authorization number (RMA) obtained
from PEHA in advance of shipment to PEHA. The RMA is specific to the
relevant
goods and quantity. Non-complying goods returned to PEHA in
accordance
with Section 4 f) will be repaired or replaced (subsequent performance),
at PEHA‘s option, and return-shipped at the lowest cost, transportation
prepaid. The costs of transportation to PEHA have to be borne by
Buyer.
Subsequent performance shall not include removing/de-installing the defective
good or re-installing the repaired good or replacement good, unless
PEHA in the first place undertook to install the good.
e) In the event PEHA fails to repair or replace the non-complying good within a
reasonable time limit set by Buyer, PEHA shall accept the return of such
goods and refund the purchase price less 20 % annual depreciation from
shipment date.
f) The foregoing states Buyer‘s exclusive remedy in case of defects. Buyer is
only entitled to claim damages subject to section 10 (limitation of liability).
g) If so requested by PEHA, the Buyer shall give PEHA sufficient opportunity to
verify any fault, in particular to provide faulty goods and their packaging to
PEHA for inspection. If the Buyer refuses, PEHA shall not be liable for such
defects.
h) Goods subject to wear and tear or burnout through usage shall not be
deemed defective because of such wear and tear or burnout. No warranty
shall apply if the defect or damage was caused by or related to installation,
combination with other parts and/or products, modification to or repair of
any goods other than by PEHA, the Buyer‘s failure to apply required or
recommended
updates or patches to any software or device in the goods
network environment, or resulted from Buyer‘s acts, omissions, misuse, or
negligence.
i) Repaired or replaced goods shall be warranted for the remainder of the unused
warranty term or for 90 days from shipment, whichever is longer.
j) It is Buyer‘s responsibility to ensure that the Goods are fit for the application
in which they are used.
k) Software, if supplied separately or installed on goods supplied, and
warranted
by PEHA, will be furnished on a medium that is free of defect in
materials or workmanship under normal use for so long as the hardware
and/or system is under warranty. During this period, Buyer has the rights
listed in section 9 d) with regard to any defects of the software. Unless
stipulated
otherwise in a separate software license agreement no further
warranty is given in respect of software.
l) If PEHA provides any services to the Buyer, including but not limited to training
or assistance with configuration and installation of the goods, PEHA
shall provide such services in accordance with normal industry practice at
such rates as may be specified by PEHA in its price list from time to time. In
case of non-conformance which PEHA has been notified of correctly and
promptly, PEHA will repeat services and/or correct accordingly. To the extent
permitted by law PEHA accepts no liability to the Buyer arising out of
the provision of such services.
m) PEHA does not represent or warrant that the goods may not be compromised
or circumvented or that the goods will prevent any personal injury or
property loss, burglary, robbery, fire or otherwise, or that the goods will in all
cases provide adequate warning or protection. Buyer understands that a
properly installed and maintained alarm may only reduce the risk of burglary,
robbery, fire or other events occurring without providing an alarm,
but it is not an insurance or guarantee that such will not occur or that there
will be no personal injury or property loss as a result.
n) These warranties are for the benefit of the Buyer only and are not assignable
or transferable.
o) Subject to appropriate storage and handling according to the manual PEHA
grants a guarantee of durability (in the meaning of § 443 II German Civil
Code) for 24 months from delivery date to the customer. Excluded are
device
software, consumables and spare parts. At PEHA‘s discretion the
product will either be replaced or repaired. Defects which occur within the
guarantee period must be reported in writing immediately on detection or if
earlier when it should have been recognized.
p) In the event of the supply of a consumer product any recourse claims remain
unaffected. Any other recourse claims are excluded.
10. Limitation Of Liability
a) PEHA is liable for intent and gross negligence on its part, on the part of its
legal representatives and vicarious agents. If PEHA has not acted intentionally
PEHA‘s liability is restricted to typical, foreseeable damage.
b) PEHA shall also be liable in the event of negligent injury to life, body and
health caused by PEHA, its legal representatives or vicarious agents and in
the event of malicious failure to disclose a defect. Where a guarantee is
provided
by PEHA, then the extent of PEHA‘s liability is to be determined
pursuant to the guarantee declaration.
c) PEHA shall also be liable for the negligent failure to comply with any of its
obligations that are fundamental to the purpose of the agreement. If PEHA
has not acted intentionally PEHA‘s liability is restricted to typical, foreseeable
damage.
d) Additionally, PEHA shall be liable in cases of mandatory statutory liability,
for example pursuant to the Product Liability Act.
e) Buyer shall indemnify PEHA against any claims, damages, losses, costs and
expenses incurred by PEHA as a result of either claims made against PEHA
by third parties arising out of the combination or use of the goods with any
incompatible ancillary products that may be connected to the goods, failure
to apply required or recommended updates or patches to any software or
device in the goods network environment or any other matter for which
PEHA would not be liable to Buyer under these terms and conditions.
f) Buyer acknowledges that PEHA has no obligation to provide any form of
cybersecurity or data protection relating to the operation of the goods,
software
or the network environment. PEHA may provide Internet based
services with the goods. It may change or cancel those services at any time.
PEHA has no obligation to provide any form of cybersecurity or data protection
relating to such Internet based services.
g) Other than stated herein any liability of PEHA is excluded, regardless of the
theory of liability, whether based in contract, tort, indemnity or otherwise.
h) Buyer shall notify and consult with PEHA without undue delay and comprehensively
if it intends to take legal recourse in accordance with the aforementioned
provision. Buyer has to allow PEHA to investigate and examine
the damages.
11. Recommendations
Any recommendations or assistance provided by PEHA concerning the use, design,
application, or operation of the goods shall not be construed as representations
or warranties of any kind, express or implied, and such information is
accepted by Buyer at Buyer‘s own risk and without any obligation or liability to
PEHA. It is the Buyer‘s sole responsibility to determine the suitability of the
goods for use in the Buyer‘s application(s). Other than in cases of statutory obligations
the failure by PEHA to make recommendations or provide assistance
shall not give rise to any liability to PEHA.
12. Laws
a) Buyer will comply with all applicable laws, regulations, and ordinances of
any governmental authority in any country having proper jurisdiction, including,
without limitation, those laws of the United States of America or
other countries that regulate the import or export of the goods provided by
PEHA and shall obtain all necessary import/export licenses in connection
with any subsequent import, export, re-export, transfer, and use of all goods,
technology, and software purchased, licensed, and received from PEHA .
Unless otherwise mutually agreed in writing, Buyer agrees that it will not use
or permit third parties to use the goods in connection with any activity involving
nuclear fission or fusion, any use or handling of any nuclear material,
or any nuclear, chemical, or biological weapons.
b) Buyer shall not sell, transfer, export or re-export any goods or software for
use in activities which involve the design, development, production, use or
stockpiling of nuclear, chemical or biological weapons or missiles, nor use
the goods or software in any facility which engages in activities relating to
such weapons or missiles. In addition, the goods or software may not be
used in connection with any activity involving nuclear fission or fusion, or
any use or handling of any nuclear material until Buyer, at no expense to
PEHA, has insurance coverage, indemnities, and waivers of liability, recourse
and subrogation, acceptable to PEHA and adequate in PEHA‘s
opinion
to protect PEHA against any type of liability.
c) Goods and services delivered by PEHA hereunder will be produced and supplied
in compliance with all applicable laws and regulations in the Federal
Republic of Germany. Buyer confirms that it will ensure that all goods are
properly installed and used in accordance with the applicable safety at work
laws and regulations, and Buyer will indemnify PEHA in respect of any costs,
claims, actions or liability arising out of that Act, or otherwise arising out of
the supply by Buyer or use by others of the goods, unless this is not caused
by Buyer‘s failure.
13. Preclusion Against Setoff
Buyer is only entitled to set off any amount against any amount due or to
become
due from PEHA to Buyer or its affiliates that are undisputed or final
absolute.
14. WEEE
a) Prices do not include the costs of recycling goods covered by the European
WEEE Directive 2002/96/EC and such costs may be added to the prices
quoted.
b) Unless a charge has been made therefore under section 14 a) above, if the
provisions of the WEEE Directive 2002/96/EC as implemented in any local
jurisdiction apply to goods, the financing and organization of the disposal
of waste electrical and electronic equipment are with the exception of goods
which are b2c as per PEHA catalog the responsibility of the Buyer who herewith
accepts this responsibility, and Buyer will indemnify PEHA in respect of
all such liabilities. The Buyer will handle the collection, processing and
recycling
of the goods in accordance with all applicable laws and regulations
and shall pass on this obligation to the final user of the goods. Failure
by the Buyer to comply with these obligations may lead to the application of
criminal sanctions in accordance with local laws and regulations.
15. Applicable Law
These terms and conditions are subject to the Laws of the Federal Republic of
Germany. These terms and conditions are excluded from the United Nations
Convention on Contracts for the International Sale of Goods, 1980, and any
successor thereto. The competent court at the seat of PEHA will have exclusive
jurisdiction to adjudicate any dispute related to these terms and conditions.
16. Indemnification
Buyer shall indemnify PEHA for all costs and damages, including attorneys‘
fees, suffered by PEHA as a result of Buyer‘s culpable actual or threatened
breach of these terms and conditions.
17. Buyer‘s Obligations Relating To Cybersecurity Event
a) In order to facilitate PEHA‘s investigation of any cybersecurity event
involving
the goods or software, Buyer agrees to cooperate with PEHA in any
investigation, litigation, or other action, as deemed necessary by PEHA to
protect its rights relating to a cybersecurity event.
b) PEHA does not represent that the goods or software is compatible with any
specific third party hardware or software other than as expressly specified
by PEHA. Buyer is responsible for providing and maintaining an operating
environment with at least the minimum standards specified by PEHA. Buyer
understands and warrants that Buyer has an obligation to implement and
maintain reasonable and appropriate security measures relating to the
goods or software, the information used therein, and the network environment.
This obligation includes complying with applicable cybersecurity
standards and best industry practices including those recommended by
any national institutions in the Buyer‘s territory. If a cybersecurity event
occurs,
Buyer shall promptly notify PEHA of the cybersecurity event. Buyer
shall promptly use its best efforts to detect, respond and recover from such
a cybersecurity event. Buyer shall take reasonable steps to immediately
remedy any cybersecurity event and prevent any further cybersecurity event
at Buyer‘s expense in accordance with applicable laws, regulations, and
standards. Buyer further agrees that Buyer will use its best efforts to preserve
forensic data and evidence in its response to a cybersecurity event.
Buyer will provide and make available this forensic evidence and data to
PEHA.
c) PEHA shall not be liable for damages caused by a cybersecurity event resulting
from Buyer‘s failure to comply with these terms or Buyer‘s failure to
maintain reasonable and appropriate security measures.
d) Buyer agrees to comply with all applicable data security laws and standards,
and shall indemnify and hold PEHA harmless for Buyer‘s failure to comply.
18. Miscellaneous
a) The parties may exchange confidential information during the performance
or fulfilment of any supply. Confidential information includes any information
or data that are provided by one party (the disclosing party) to the other
party (the recipient) in any form, including any information or data relating
to the operation or performance of products and all data generated by the
products which are aggregated and de-identified. However, such information
or data may be used by PEHA in accordance with section 18 b) below. All
confidential information shall remain the property of the disclosing party
and shall be kept confidential by the recipient for a period of 10 years following
the date of disclosure. These obligations shall not apply to information
which is: (I) publicly known at the time of disclosure or becomes publicly
known through no fault of recipient, (II) known to recipient at the time of
disclosure through no wrongful act of recipient, (III) received by recipient
from a third party without restrictions similar to those in this section, or (IV)
independently developed by recipient. Each party shall retain ownership of
its confidential information, including without limitation all rights in patents,
copyrights, trademarks and trade secrets. A recipient of confidential
information may not disclose such confidential information without the
prior written consent of the disclosing party, provided that PEHA may disclose
confidential information to its affiliated companies in the sense of
§§ 15 et seq. AktG, and its and their employees, officers, consultants, agents,
and contractors.
b) Subject to compliance with all applicable data protection laws and regulations,
PEHA retains the right to utilize any and all data and information that
is collected, generated, processed or transmitted by or through the products
and all data and information provided or transmitted to PEHA regarding
the operation or performance of the products in an aggregated or anonymized
form for any business purpose, including product, software or
service development, marketing or sales support or other analytics. To the
extent that Buyer does not own any such information or data, Buyer grants
PEHA and its affiliated companies in the sense of §§ 15 et seq. AktG (or shall
procure for PEHA and its affiliated companies in the sense of §§15 et seq.
AktG the grant of) a perpetual right to use and make derivative works from
such information and data for any lawful purpose.
c) PEHA as a data processor will process Buyer‘s personal data as necessary to
sell the products and/or to provide the services to Buyer and to meet PEHA‘s
obligations under any purchase order and applicable law. PEHA shall process
Buyer‘s personal data during the period of performance of any Buyer‘s
purchase order governed by these terms and conditions and thereafter.
Buyer as data controller acknowledges and agrees that PEHA will share personal
data with its affiliated companies in the sense of §§ 15 et seq. AktG
and may transfer the personal data to USA, India or Mexico.
d) These terms and conditions (including those agreed separately in writing)
constitute the entire agreement of PEHA and Buyer, superseding all prior
agreements or understandings, written or oral, and cannot be amended except
by a mutually executed writing.
e) Buyer may not assign any rights or duties hereunder without PEHA‘s written
prior consent. PEHA may subcontract its obligations hereunder without
Buyer‘s consent. No representation, warranty, course of dealing, or trade
usage
not contained or expressly set forth herein will be binding on PEHA.
f) Headings and captions are for convenience of reference only and do not
alter the meaning or interpretation of these terms and conditions.
g) No failure by PEHA to enforce at any time for any period the provisions hereof
shall be construed as a waiver of such provision or of the right of PEHA to
enforce thereafter each and every provision.
h) In the event any provision herein is determined to be illegal, invalid, or unenforceable,
the validity and enforceability of the remaining provisions shall
not be affected and, in lieu of such provision, a provision as similar in terms
as may be legal, valid, and enforceable shall be added hereto.
i) Provisions herein which by their very nature are intended to survive termination,
cancellation, or completion of supply shall survive such termination,
cancellation, or completion.
j) All stenographic and clerical errors are subject to correction.
k) These terms and conditions shall confer no benefit on any third party.
19. Language
The German language version of these terms and conditions will prevail in case
of conflict with any translations provided for convenience purposes.
Halver, May 2020
Additional terms and conditons for PEHA Elektro GmbH & Co. KG
PEHA Elektro GmbH & Co. KG
a Honeywell Company
Gartenstraße 49
58511 Lüdenscheid
Germany
to 7. c) Termination, Return Of Goods
Orders for custom-made products can‘t be cancelled after order. Processing
and already delivered custom-made products can‘t be returned.
to 3. a) Payment
As far as annual bonus is agreed, the bonus credit is due from 15 February of
the following year, for settlement with current deliveries. The bonus bill is thenet
invoice values of the deliveries of the relevant fiscal year without VAT (VAT) included,
netted with any credits of any kind during this fiscal year. The supplier
reserves the right to the bonus groups of the goods to be limited or objects of
the exclude benefits from the bonus ability.
to 2. h) Quote/Prices
For orders with a net value of 250.00 EUR to a single domestic shipping address
For orders with a net value of 300.00 EUR to a single domestic shipping address
is the delivery free (CPT according to Incoterms 2010). For a net value of goods
below 300.00 EUR administration and handling costs of 25.00 EUR will be applied.
For orders below 50 EUR a member of our Customer Services Team will
contact the customer and advise that any order needs to be increased and/or
consolidated to a minimum value of 50.00 EUR. Otherwise, PEHA will be unable
to process the order and it will be rejected. If the revised order value is less than
300.00 EUR it will be subject to a carriage charge of 25.00 EUR. For overnight
deliveries for goods up to 20 kg the standard administration and handling costs
of 35.50 EUR will be applied.
to 2. d) Quote/Prices
Items that are not included in the supplier‘s price list due to the special production,
or not belong to his standard production program, are subject to a surcharge,
which has to be agreed prior to placing the order. If the customer requests
the preparation of special project planning documents, or desires the
initial commissioning or the creation of programs, the supplier is entitled to
charge these costs separately.
to 2. f) Quote/Prices
If express delivery is prescribed by the orderer, he shall bear in any case, the in
excess of the general cargo costs, extra express freight costs. The supplier may,
at its discretion, also shipments unfree and compensate the buyer for the general
cargo tariff.
to 12 c.) Laws
Transport packaging is collected and recovered on the basis of the “Ordinance
on the Prevention of Packaging Waste” of 01 December 1991 via Interseroh
AG.
to 7. c) Termination, Return Of Goods
Returns are only accepted by prior, special agreement, documented by a RMA
number. If a return is accepted, the products must be in undestroyed original
packaging freight paid to be sent to our warehouse. There will be a lump sum of
25 % of the value of the goods, however at least 50.00 EUR charged.
