General Terms and Conditions of Sale and Delivery
The following general terms and conditions of sale and delivery (hereinafter referred to as “General Terms and Conditions”) of KRÜSS Scientific Instruments apply to all offers and order acceptances as well as to any deliveries, Service, other services, and information provided. For the purposes of these General Terms and Conditions, a “Service” includes without limitation services, laboratory measurements, consultation services, assessments, and development of methods and processes. Deviating conditions, if any, shall be ineffective unless expressly confirmed by us in writing. Our General Terms and Conditions shall apply even if we accept the customer’s performance without reservation despite being aware of the customer’s terms and conditions contrary to or deviating from our General Terms and Conditions.
1. Conclusion of contract/Special right of rescission
1.1. We reserve the right to accept orders or the placement of orders within a period of two weeks. Order acceptance shall be affected in form of a written order confirmation. Neither a handwritten signature nor an electronic signature is required for the fulfillment of the requirement of written form. Notifications via fax, e-mail or otherwise in text form are sufficient to fulfill the requirement of written form. The registration for seminars become binding as soon as KRÜSS receives the written registration notification (e-mail, mail, fax, web registration form). Registrations generally relate to companies, not to individuals.
1.2. Subsequent changes or amendments shall not be binding to us unless expressly confirmed by us in writing. Drawings, illustrations, weights, and other documents relating to the offer generally apply subject to the usual tolerances, unless otherwise expressly confirmed by us. The customer shall bear the risk of incorrect information (sketches etc.) or wrong transmission of essential measurements. The customer shall be obliged to accept and pay for custom-made goods.
1.3. We shall rescind the contract if the customer is included in one of the terrorist lists of the EU, US or other countries, or if delivery is prohibited by other binding export restrictions. The right of rescission shall remain in effect until the date of delivery. In addition, we reserve the right to charge the customer's account with any costs incurred up to the date of rescission.
2. Prices and terms of payment
2.1. In case of changes of the order data that are mutually agreed upon or demanded by the customer, all previously stated prices become ineffective. The prices are stipulated Exworks, Matthews, NC (“EXW”, Incoterms 2020) or FOB, Matthews, NC unless otherwise expressly agreed upon. The customer shall bear the costs for shipment and the sales and/or import taxes applicable at the time of delivery. After order confirmation, any additional costs for changes made to the item or to the service upon the customer's request shall be charged to the customer.
2.2. Unless otherwise expressly agreed upon, all payments are to be made net without deductions within 30 days after the date of invoice. Seminar fees are payable in advance (“Prepayment”). If a booked seminar is cancelled less than 14 days before its commencement, 50% of the seminar fees must be paid. Payments shall be made in USD. In case of any delay in payment, interest will be charged at 1.5% per month, or the highest rate permissible under applicable law, calculated daily and compounded monthly.
2.3. Deliveries to customers outside of the US and Canada are subject to prepayment (cash in advance) or to a confirmed and irrevocable letter of credit issued by a lending institution acceptable to us.
2.4. Sales tax exempt deliveries can only be affected if the customer provides us with the customer’s tax exemption certificate or direct pay permit.
2.5. If payment is not made on time, we reserve the right to refuse to execute subsequent orders or to revoke net payment terms until open credit is re-established.
2.6. We are entitled to refuse to perform if it becomes obvious after conclusion of the contract that our claim for payment is endangered due to the customer’s lack of financial capacities. The right to refuse performance does not apply if the payment is made or if a security, acceptable to us in our sole discretion, is provided. We shall be entitled to set a reasonable period during which the customer is obliged to effect counter-performance or to provide security concurrently against the chosen performance. After this period has lapsed without success, we shall be entitled to rescind the contract.
2.7 All “stock items” (i.e. goods which are kept in stock and are not customized at the time of customer order) that are not defective in design or manufacture and are in “new condition”, as deemed by the Supplier, may be returned by the Purchaser and shall incur a restocking fee of 15% of the total invoice price. Customer shall bear the shipping cost and any taxes or duties incurred as a result of the return. Customized products or items which have been used may not be returned unless explicitly negotiated in writing with the Supplier.
3. Customer’s right of setoff and retention
3.1. The customer has no right of setoff or retention except and to the extent the customer’s claims forming the basis of such right of setoff or retention are undisputed or established by declaratory judgment. Moreover, the customer may only exercise a right of retention if the customer’s counterclaim is based on the same contractual relationship.
4. Term of delivery and delay in delivery; delivery by sub-suppliers; force majeure
4.1. The term of delivery we stated will not commence until all technical and regulatory issues, including those referenced in Section 1.3 above, are satisfied and the customer’s obligations are fulfilled properly and in due time. To the extent import licenses or other approvals are required in the country of destination, the customer shall be obliged to provide us with the number, date of approval and term of validity thereof.
4.2. The term of delivery is subject to the proviso that our sub-suppliers supply us correctly and in due time. The term of delivery shall be deemed observed if we inform the customer that the goods are ready for dispatch within the term of delivery. Such notification obliges the customer to accept the goods immediately. Any changes to the design of the item to be delivered the customer requests during the term of delivery shall interrupt and extend the term of delivery accordingly.
4.3. If the payment mode is “Prepayment”, the stated term of delivery will commence upon full receipt of the amount in the account stated by us.
4.4. We shall be entitled to deliver before the agreed date. Partial deliveries and services are admissible to the extent this is reasonable. If we are unable to deliver by the agreed date of delivery, we shall be entitled to stipulate a reasonable new term of delivery.
4.5. If the customer is in delay in acceptance or otherwise culpably violates their obligations to cooperate, we shall be entitled to claim compensation for any related damage incurred, including any additional expenses, e.g. storage costs. We reserve the right to assert further claims.
4.6. In case of force majeure or other unforeseeable, exceptional circumstances that are not within our control and that prevent us from fulfilling our obligations in due time, the term of delivery shall be extended accordingly. Force majeure includes government measures, epidemics and pandemics, riots, strikes, lock-outs, fire, terrorism, acts of god, machine defects, difficulties to obtain materials or energy, transport delays and other reasons beyond our control. To the extent a delay in delivery due to force majeure is longer than three months or performance of one of the parties becomes unreasonable due to one or more of the above reasons, the parties shall be entitled to rescind the contract. If the term of delivery is extended or we are exempt from the obligation to deliver, the customer shall not be entitled to assert any claims for damages based thereon.
5.1. Delivery shall be made Exworks, Matthews, NC (EXW Incoterms 2020) or FOB Matthews, NC. Shipment of the item will be affected at the customer’s risk. Upon making available the goods for dispatch, the risk will pass to the customer, irrespective of whether shipment is made from the place of performance and irrespective of which party bears the shipping costs.
5.2. If the goods are ready for dispatch and dispatch or acceptance thereof is delayed for reasons not attributable to our obligations hereunder, the risk shall pass to the customer at the time the customer is informed that the goods are ready for dispatch.
5.3. Transport insurance or technical insurance shall only be taken out upon the customer’s express demand and at the customer’s expense or if pre-paid and added to the invoice as a customer expense.
5.4. The interpretation of alternative terms of delivery, if so, agreed in writing by the parties, such as FOB, CIF, C&F shall be subject to the Incoterms, as amended, issued by the International Chamber of Commerce (ICC).
6. Retention of title
6.1. We shall retain the title to the goods delivered until we receive payment in full and full payment of all claims resulting from the business relationship with the customer.
6.2. If the customer processes goods subject to retention of title, the customer shall do so in our name and we shall have no obligations with respect thereto. We shall have the title to the new items in their respective state of processing. If goods subject to retention of title are processed, treated, mixed, blended or combined with third-party items, we shall have a pro-rata title to the new item corresponding to the ratio between the invoiced price of the goods subject to retention of title and the invoiced price of the third-party products.
6.3. The customer shall be entitled to sell the goods that are subject to our retention of title or co-title in the ordinary course of business; any pledge or transfer by way of security or assignment for security purposes of the goods subject to retention of title is inadmissible. Effective immediately, the customer shall assign to us in advance any and all claims the customer is entitled to from the proceeds of the resale of the goods subject to retention of title or of the goods produced by processing, treatment, mixing, blending or combination, even if such goods are sold together with third-party products at a total price. If any third party acquired title or co-title to the goods due to statutory provisions based on processing, treatment, mixing, blending or combination, the customer – also effective immediately – shall assign to us in advance any claims the customer may have vis-à-vis such third party. For the purposes of this paragraph, assignments shall always only be made up to the amount of the invoiced price of the goods subject to retention of title. The customer shall be entitled to collect the assigned claims. Such entitlement may be revoked at any time by us.
6.4. Effective immediately, we accept the assignments made by the customer in accordance with this section 6.
6.5. We undertake to release any security provided to us in accordance with the above provision, in our discretion and upon the customer's request to the extent they exceed the value of the claims to be secured by more than 10%.
6.6. If any action by the customer is required for the effectiveness of the retention of title, e.g. in case of registrations, and if such actions are required in accordance with the law applicable to the country of the customer, the customer shall be obliged to take such actions.
6.7. If the customer is in delay in payment, we shall be entitled to prohibit the customer from disposing of the goods subject to retention of title in whole or in part, e.g. we may prohibit the customer from selling or processing such goods.
6.8. If the customer is objectively obliged to file an insolvency petition, the customer, without request, shall refrain from disposing of the goods subject to retention of title in any manner. The customer shall be obliged to inform us immediately of the existing quantity of goods subject to retention of title. In such case, we shall also be entitled to rescind the contract and to demand that the goods subject to retention of title be returned to us. If the goods subject to retention of title were processed, treated, mixed, blended or combined with other products, we shall be entitled to demand that they are surrendered to a trustee; the customer is obliged to inform us of any co-owners of goods subject to retention of title, stating the name of company and/or the name, address and the size of the co-ownership share. The same shall apply mutatis mutandis to any claims that were assigned to us in accordance with the above paragraphs; in addition, the customer shall be obliged to inform us without request of the names and addresses of all debtors and send us copies of the documents evidencing such debts.
7. Claims based on defects and notification of defects
7.1. The customer shall only be entitled to assert claims for defects if the customer duly fulfilled the obligations to investigate and to make a complaint in respect of a defect immediately upon receipt of goods. Any complaints must be made immediately but not later than 5 working days upon receipt of the goods, for obvious defects, and for hidden defects immediately but not later than 5 working days after they were detected, or reasonably should have been detected. Otherwise the goods will be deemed accepted. In case of any suspicion of a more than merely insignificant defect of the delivered goods, the customer must inform us of such suspicion without delay, even if the goods need to be investigated more closely in order to verify the defect. Any violation of this obligation shall lead to the customer’s obligation to pay damages unless such violation of obligation is not within the customer’s sphere of responsibility.
7.2. Should the delivered goods be defective despite all due diligence and such defect existed at the time the risk was transferred, we shall, in our sole discretion, either rectify such defect or deliver replacement goods, provided the customer notified us of the defect in due time.
7.3. The customer will not be entitled to assert claims based on defects for usual wear and tear or any damage that incurred after the transfer of risk due to wrong or negligent treatment, excessive strain, unauthorized structural changes, improper repair, non-compliance with the operating manual, unsuitable equipment or special external incidents such as events of force majeure, which were not foreseen in accordance with the contract. If the customer or any third party effects improper repairs or changes, the customer will not be entitled to assert any claims based on defects with regard to such repairs or changes and any consequences thereof.
7.4. Claims based on defects shall become statute-barred 12 months from the date of shipment. Claims for damages based on defects shall be excluded therefrom; such claims shall be subject to the warranty period provided for the goods. Claims for damages incurring if we are in delay in the remedy of defects, if such remedy of defects was requested by the customer and owed by us, shall also be subject to the warranty period provided for the goods. The customer shall be obliged to obtain our consent before returning the goods.
7.5. The shipping cost incurred in connection with subsequent fulfillment by us of defective goods (notified to us in compliance with provisions of this section 7) shall be borne by us. However, should the shipping costs increase due to the fact that the customer or the customer’s customer moved the goods away from the place of performance, such increase shall be borne by the customer. The same shall apply, mutatis mutandis, to other costs we must bear in connection with subsequent fulfillment, including without limitation customs duties or other duties in the customer’s recipient country.
7.6. If our service department detects, upon testing the device, that the defect is not subject to warranty, we reserve the right to charge the customer with the costs for the return and the repair of the goods.
7.7. Warranties of quality must be expressly stipulated in writing in the written order confirmation in any case, including for follow-up transactions. In particular key word descriptions, references to generally accepted standards, the use of trademarks or quality marks or the provision of samples or patterns alone do not establish a guarantee or warranty.
7.8 We warrant to customer that for a period of one (1) year, or to the expiry date as applicable from the good’s manufacturer’s warranty, whichever period is shorter, from the date of shipment of the goods (“Warranty Period”), that such goods materially conform to the specifications set forth in our published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship.
7.9 Except for the warranty set forth in the section 7.8, we make no warranty whatsoever with respect to the goods, including any (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; or (c) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise.
8.1. Claims for damages of any kind asserted against us and our statutory representatives and vicarious agents shall be excluded except in case of willful intent and gross negligence or violation of a material contractual obligation. 8.2. For this purpose, a material contractual obligation means any obligation the fulfilment of which is a prerequisite for the due execution of the contract and on the fulfilment of which the customer may generally rely.
8.3. In case of application measurements, we agree to duly provide all contractual performance in accordance with the current state of science and technology, however, we do not undertake to provide a certain result. Our liability shall be limited to damage caused by willful intent or gross negligence and to the amount of the agreed remuneration or of the maximum insurance sum paid by a manufacturer’s liability insurance obliged to cover such damage. Our liability for slight negligence, for the compensation for any consequential damage or purely economic loss is excluded.
8.4 In no event shall we be liable to the other or any other person or entity for special, incidental, punitive or consequential damages (including, but not limited to, loss of profits, loss of data or loss of use damages) arising out of the transport, importation, sale, use or supplying of the goods, even if customer has been advised of the possibility of such damages or losses.
8.5 In no event shall our aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence), strict liability, or any other theory of liability, exceed the total of the amounts paid to us for the goods sold hereunder.
9. Confidentiality and industrial property rights
9.1. The customer shall be obliged to treat confidentially any and all business data and information to the extent they are not generally accessible or generally known.
9.2. We reserve title, copyright and other industrial property rights to any and all figures, drawings, calculations and other documentation provided by us in tangible or electronic form and to any and all software items. Customer shall not have or acquire any ownership of these intellectual property rights in or to the goods or services made available to customer. However, the customer shall be entitled to use the work products we provided to the extent the customer lawfully obtained such work products legally in the course of the transaction. Unless otherwise agreed upon in writing, we shall provide the results only to the principal.
9.3. We shall store and process any data of the customer we receive in connection with the business relationship in accordance with data protection regulations and not disclose them to third parties.
9.4 Customer shall not reverse engineer, duplicate, replicate, emulate, reverse assemble, or other similar act of any goods sold to customer. Customer agrees not to develop, or assist others to develop, data or systems that delivers goods that are the same or are substantially similar to the goods sold to customer by us.
10. Software use, Software Assurance
10.1. To the extent the devices delivered in accordance with the contract are software-controlled, such devices are also subject to our software license conditions (End User License Agreement - EULA) and to the provisions of the software maintenance agreement concluded with the customer, if any. In case of doubt, for software, the latter will have priority over these General Terms and Conditions.
10.2. If and to the extent KRÜSS and the customer agreed that the customer will participate in KRÜSS’ Assurance program, KRÜSS will provide to the customer software updates for the product covered by the program in regular intervals by providing a download link. These updates contain performance improvements but may also contain completely new functions. They provide a more comfortable use and increase the product’s scope of functions. In addition to these General Terms and Conditions, the Software Assurance program is also subject to the special terms and conditions “Software Assurance”. In case of doubt, for software updates, the latter will have priority over these General Terms and Conditions.
11. Place of performance, place of venue/arbitral tribunal and choice of law
11.1. Place of performance for delivery and for any warranty claims is the supplier’s works, place of fulfilment for payment shall be Matthews, NC.
11.2 Any dispute, controversy, or claim arising out of or relating to the goods or these Terms and Conditions, whether breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the American Arbitration Association rules in force as of the date of breach. It is further agreed as follows: a) the appointing authority shall be the American Arbitration Association. b) the number of arbitrators shall be three (3). c) the place of the arbitration shall be Matthews, North Carolina, United States of America. d) the language to be used in the arbitral proceeding shall be English. e) any such arbitration shall be administered by the American Arbitration Association. All communications between the parties and the arbitrators shall be made through the American Arbitration Association. Any such communication shall be deemed received by the addressee when received by the American Arbitration Association.
11.3 The Terms and Conditions shall be construed and governed according to the laws of the State of North Carolina, USA applicable to contracts made and to be fully performed therein, except that the United States Nations Convention on Contracts for International Sale of Goods shall not apply.
11.4 Any suit, action, or proceeding brought to enforce an arbitration award rendered pursuant to the provisions of these Terms and Conditions hereof shall be instituted in the state courts located in Mecklenberg County, North Carolina, or the United States District Court for the Western District of North Carolina, and the parties to these Terms and Conditions irrevocably and unconditionally submit and consent to the jurisdiction and venue of any such court for such purpose.
11.5 In addition to any remedies that may be provided under these Terms and Conditions, we may terminate these Terms and Conditions with immediate effect upon written notice to customer, if you: (i) fail to pay any amount when due and such failure continues for ten (10) days after your receipt of written notice of nonpayment; (ii) have not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) become insolvent, files a petition for bankruptcy or commences or have commenced against you proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
11.6 You shall not assign any of your rights or delegate any of your obligations under these Terms and Conditions without our written consent. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms and Conditions.
11.7 If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
11.8 You shall comply with all applicable laws, regulations and ordinances. You shall maintain in effect all the licenses, permissions, authorizations, consents and permits that customer needs to carry out its obligations under these Terms and Conditions. You shall comply with all export and import laws of all countries involved in the sale of the goods under these Terms and Conditions or any resale of the goods by you. You assume all responsibility for shipments of goods requiring any government import clearance. We may terminate these Terms and Conditions if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods.
11.9 Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions: Compliance with Laws, claims based on defects and notification of defects, Liability, Confidentiality and intellectual property rights, place of performance, place of venue/arbitral tribunal and choice of law, and Survival.
Revised: June 2022
KRÜSS Scientific Instruments, Inc., Matthews, NC, USA