Terms and conditions

I. General

All our business transactions are governed by the terms and conditions below, unless special written agreements are reached before order confirmation in individual cases. The terms and conditions of our contract partners are not binding to us unless agreed to by us in writing and before order confirmation.

II. Conclusion of contracts

1.          
Our offers are subject to change. Prior sale reserved. The offers are limited to those goods and services explicitly listed in the offer and strictly exclude any building, assembly or installation work not mentioned, including installation material or site work. Consultation or offers are free of charge and to the best of our knowledge, but non-binding. All documentation accompanying offers remains our property. Documentation may not be copied or disclosed to third parties without our permission and shall, on our request, be returned without delay.

2.           

Unless we have submitted an offer in writing, contracts with us presuppose our letter of acceptance or our deliveries and/or services to be effective. Verbal or telephonic orders are also accepted only via our written confirmation or by dint of our delivery and/or service.

The dimensions and weights quoted in our printed matter are only definitive provided they have explicitly been declared binding to the order in question, otherwise such dimensions, weights, illustrations and descriptions are approximate only, with no obligation to inform about any changes made.

 

III.         Delivery and delay in delivery

1.
All delivery times given in our written offers or mentioned elsewhere are approximate only and therefore non-binding. The delivery period starts on the day the order is confirmed or when the buyer takes cooperative actions which may be required (e.g. payment of an agreed advance payment).

The period is interrupted should a payment not be made on time, as agreed, or should the buyer / orderer not provide outstanding data or specifications needed for the design of the apparatus or plant at the agreed time.

 The period starts again as soon as we receive the overdue payment or the delayed technical data are transmitted.

2.
Non-compliance with the delivery time does not release the orderer from the order. The buyer may demand delivery from the seller 6 weeks after expiry of a non-binding delivery date or non-binding delivery period. The seller shall be in default on receipt of the demand. Should the orderer be entitled to claim compensation for damages caused by the delay, then this amount shall, for slight negligence of the seller, be limited to no more than 5% of the agreed price. Should the orderer, in addition, wish to withdraw from the contract or demand compensation for damages in lieu of the service, then he is obliged, after expiry of the 6-week period pursuant to Clause 2, to set a reasonable time limit for delivery.

Should the buyer be entitled to claim for damages in lieu of the service, the amount of the claim shall, for slight negligence, be limited to no more than 25% of the agreed purchase price. Claims for damages following slight negligence are excluded if the buyer is a corporate body under public law, a special fund under public law or a contractor acting in his commercial or independent professional capacity on conclusion of the contract. Should it, by chance, become impossible for the seller to deliver whilst he is in default, he shall be liable subject to the above agreed limits of liability.

The seller shall not be liable if the damage would have occurred despite delivery on schedule.

3.
Unforeseen impediments for which we cannot be held responsible – irrespective whether they arise in our own factory or at the sub-supplier - such as: force majeure events, mobilisation, war or other delays for which we can-not be held responsible, such as production faults, general material procurement problems, operational faults, transport delays and similar circumstances preventing on-schedule and professional performance at the agreed price, are justified reasons for us to cancel the delivery obligations, fully or in part, or to extend the delivery period by the duration of the obstructions.

The buyer may withdraw from the contract should relevant faults lead to a delay in performance of more than 4 months. Other rights of withdrawal shall remain unaffected thereby.

Partial deliveries for the account of the orderer are permitted in this respect, unless they are obviously of no interest to him.

 

IV. Packaging

 Packaging of any kind is calculated at own cost and cannot be returned.

V. Prices

1.             

Our prices are ex-factory, excluding packaging and insurance and without installation, except if agreed or offered differently.

2.             

For shipments with delivery addresses in Germany valued from € 500 net, we deliver free to door, plus 1.0% transport insurance. This excludes our concrete range. For foreign deliveries outside Germany, separate and individual agreements are valid.

3.             

For island deliveries, the additional cost of shipping freight and island freight forwarder shall be invoiced separately. We reserve the right to make reasonable price adjustments to meet changing cost scenarios, without thereby granting the orderer a right to withdraw from the contract, provided the period between conclusion of the contract and delivery is longer than 4 months and the increase no higher than 5% of the originally agreed price. Statutory value added tax is included in the price, only if this is expressly pointed out in the offer or the confirmation.

 
VI. Terms of payment

1.             

Invoices for deliveries are payable with 2% discount within 14 days after date of invoice, or without discount after 30 days at the latest. Default is automatic hereafter. Invoices for service, repairs and maintenance are payable immediately, strictly net. Set-off is permitted only in the case of undisputed or res judicata claims of the orderer. Only persons with authority to collect are per-mitted to accept payment by cash or cheque. Payment by bill of exchange is permitted only after prior agreement. The basic obligation to pay is not affected by notifications of defects. The orderer is not entitled, should part of the delivery be missing, to defer payment of the full amount until the order is complete. Interest of 5% over the applicable base lending rate is due on payments in arrears. Interest is charged at 8% over base lending rate if the buyer is a corporate body under public law, a special fund under public law or a contractor acting in his commercial or independent professional capacity on conclusion of the contract. We reserve the right to provide evidence of and claim greater damages. Should the orderer default on the payment of a due invoice, fully or in part, then all invoices shall be due immediately, even should their otherwise applicable payment period not have expired yet. Deliveries to unknown companies shall be exclusively against prepayment and cash on delivery for the remaining amount due. The goods remain in our ownership until fully paid.

 

VII. Retention of title

1.             

Goods delivered by us remain in our ownership until all our accounts have been paid, including future receivables, irrespective of legal grounds, even if payments have been made for special, designated receivables.

Should the buyer be a corporate body under public law, a special fund under public law or a contractor acting in his commercial or independent professional capacity on conclusion of the contract, then retention of title shall apply also for claims of the seller against the buyer based on the current business relationship, until such time as the claims related to the purchase have been settled.

2.             

To the extent that ownership of goods is transferred to third parties by dint of incorporation into property and the like, the buyer shall cede his claims against such parties to us as collateral for our claim, until the latter has been fully settled. With current accounts, the reserved property shall serve as col-lateral for our balance claim.
The seller is obligated to waive the retention of title on request of the buyer if the customer has incontestably satisfied all the claims associated with the purchased object and if the current business relationship offers sufficient security for the remaining claims. We undertake to release the collaterals due to us on request of the orderer to the extent that the realizable value of our collaterals exceeds the secured claims by more than 20%; the selection of released collaterals shall be at our discretion. The customer may sell goods subject to retention of title only in the course of normal business and is not permitted to pawn these or offer them as collateral.

3.             

In the event that the orderer should violate the contract, especially with payment default, the supplier is entitled, after dunning and setting a reasonable deadline, to withdraw, whereupon the orderer is obligated to surrender the goods.

If the seller, over and above this, has a claim for damages in lieu of the service and if he repossesses the purchased object, then seller and buyer shall agree that the seller shall pay the usual market value of the purchased object at the time of repossession. The buyer shall bear all costs associated with the repossession and utilization of the purchased object. In the absence of proof otherwise, the cost of utilization shall amount to 5% of the normal market value. This may be increased or decreased should seller or buyer provide proof of higher or lower costs respectively.

VIII. Shipment

Shipment is always at the risk of the orderer, also in the case of freight prepaid or part delivery, with passing of risk at the time the order is ready for shipment. We accept liability for shipment-related damages only in the event that we carried out the delivery ourselves and if such damage was caused by at least gross negligence on our side. We shall support the customer in asserting his claims for compensation against the carrier if shipment was handled by a third party.

Such claims should initially be against the carrier (railways, post office, freight forwarder). Replacements are provided only on the basis of a new order at currently valid prices. Any deviations in the delivery note or the invoice as well as transport damage should be reported to us in writing immediately, no later than within 3 days of receipt of the goods.


IX. Material defects

1.

The supplier shall remedy defects in the delivered objects, including other documentation, after relevant notification, within the legally prescribed period of 2 years from delivery to the carrier, if the defect was verifiably caused by flawed materials, bad workmanship or construction, or from delivery to the customer if we made the delivery ourselves. Defects are remedied either by free rectification on location or at our factory, with simultaneous provision of a replacement unit or delivery of a replacement, at the discretion of the buyer. The buyer is obligated to return the defective object in the case of delivery of a replacement.

2.

Should it not be possible to remedy a defect within the reasonable period of 6 weeks or as agreed, or if rectification or replacement delivery is for other reasons considered unsuccessful, then the buyer has the option of demanding a discount or to withdraw from the contract. Rectification shall be considered failed if the supplier was afforded adequate opportunity for rectification or delivery of a replacement, yet without success, if rectification or replacement delivery is impossible, if the supplier refuses or unreasonably delays this, if the chances for success are justifiably considered slight, or should the remedies be unacceptable for other reasons.

3.

The buyer is obligated to inspect the delivered goods for evident defects which would be obvious to the average customer. Obvious defects include, for instance, missing manuals and considerable, quite evidently damaged goods. This furthermore includes all cases where the wrong objects or insufficient quantities were delivered. Such obvious defects shall be reported to the supplier in writing without delay, but no later than 3 days after receipt of the goods. The user shall report defects which only become obvious later to the supplier immediately when identified. The goods shall be deemed approved in respect of the relevant defect if the duty to inspect and notify should be violated.

4.

Pursuant to legal regulations, the warranty period for motors designated for continuous operation becomes time barred 2 years after delivery of the purchased object. Application for and purchasing of power (power distributor) is the responsibility of the orderer.

5.

Pursuant to legal regulations, we shall remedy defects in concrete shafts, for which we continue to carry responsibility after acceptance, for a period of 2 years. Such rectification shall be free of charge. Should it not be possible to remedy a defect within a reasonable period or if rectification is for other rea-sons considered unsuccessful, then the buyer has the option of demanding a discount or to withdraw from the contract. Section IX 2. Para. 2 correspondin-gly applies. Please note that rectification on concrete shafts legally implies a works contract, for which a 2-year term applies (§ 634 a No.1 BGB [German Civil Code]).

6.

Further claims shall remain unaffected in the event of fraudulent conceal-ment of defects or assumption of a guarantee for the properties.

7.

The buyer may assert claims, based on the purchase contract, for remedia-tion of material defects in parts built in for remediation of defects, up to the end of the legal period of limitation for the purchased object. Cession of the above warranty claims is excluded. We do not accept claims for damage due to flooding or moisture in unventilated rooms, nor for installation errors. We accept no liability for damage due to natural wear and tear, wrong or negli-gent handling and improper installation. No responsibility is accepted for repairs or modifications made by the customer and all claims shall be null and void. In the event that unjustified complaints result in extensive investi-gations, the costs of testing and the arising freight cost shall be for the account of the orderer.

8.

 The legal period of limitation in the event of a delivery recourse pursuant to §§ 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective object.

 

X. Liability / Indemnity

1.

Should the legal regulations mandate that the seller be held liable for a damage caused by slight negligence, the seller’s liability shall be limited. Liability is limited to breach of significant duties under the contract and to typical foreseeable damage on conclusion of the contract.This limitation does not apply to injury to life and limb and to health. Insofar as the damage is covered by an insurance taken out by the buyer for the particular damage event, the seller is liable only for any associated prejudice to the buyer, such as increased insurance premiums or loss of interest until loss adjustment by the insurer.

2.

Irrespective of the seller’s culpability, the potential liability of the buyer shall remain unaffected in the event of fraudulent concealment of a defect, the assumption of a guarantee or a procurement risk and under the Product Liability Act.

3.

Liability due to late delivery is conclusively regulated in Section III.

4.

Personal liability of the legal representatives, vicarious agents and staff of the seller is excluded in the event of damage caused by slight negligence of the seller.

 

Xl. Customer Service work

1.     

Sections IX and X are analogously applicable to Customer Service work. If our Customer Service is required to perform work beyond our contractual and agreed services or beyond rectification under Section IX, the applicable Customer Service rates at the time of service provision shall be charged.

2.    

Our Customer Service shall inform the customer of its visit in good time. The customer shall undertake to assure unhindered and free access to all the plants and facilities necessary to perform customer services. Any costs ari-sing from a violation of this duty by the customer shall be for the account of the orderer of the Customer Service.

3.     

The services provided by our Customer Service in principle do not include earthworks, masonry and cutting work, repair work on components not deli-vered by us, cleaning of collection containers or cleaning shafts from debris, building rubble or other foreign matter (including grease) which is not waste water friendly under DIN EN and no cleaning of pumping plant installation areas.

4.     

The cost of remediation of defects caused by improper installation and deployment of our products, by failed safety measures, by aggressive non-DIN EN-compliant components in waste water or created by external influ-ences (unless we may be held responsible), shall be for the account of the customer requesting the customer service.

5.

Maintenance is, in principle, carried out only on special request or based on a maintenance contract, against costs.

6.

The Handicrafts Regulation Act in general prohibits our Customer Service from working on the electrical or water reticulation systems. Should such intervention nevertheless be necessary to carry out installation or repair work, the cost of commissioning a technician from the trade shall be for the account of the orderer of the Customer Service – except in the case of a warranty.

 

XII. Compliance Provisions

1. No Improper Means of Obtaining Business

Pentair and Buyer intend that no payments or transfers of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion or kickbacks, or other unlawful or improper means of obtaining business.

2. No Bribes; Anti-Boycott Laws

Buyer will not, directly or indirectly, pay, offer, authorize or promise any monies or anything of value (such as gifts, contributions, travel, or entertainment) to any person or organization, including any employee of Buyer’s or Pentair’s customers, or any Government Official (which includes any employee or official of any governmental authority, government owned or controlled entity, public international organization or political party; or any candidate for political office) for the purpose of improperly influencing their acts or decisions. Buyer will take appropriate actions to ensure that any person representing or acting under its instruction or control (“Buyer’s Agents”) will also comply with this Section. The Buyer will not request customer to take any action which is prohibited or pena-lized under any U.S. anti-boycott law or regulation, and any such apparent request will be deemed null and void. Nothing in this Agreement or in any such apparent request will be construed to require or to constitute an agreement by customer to take action which is prohibited or penalized under any U.S. anti-boycott law or regulation.

3. No Kickbacks

No part of the payment of any amounts payable under this Agreement will be distributed to Pentair, its affiliates or customers, or any of its employees or their family members.

4. No conflicts

Except as disclosed in writing to Pentair (in a questionnaire response or other-wise), Buyer represents that it does not have any reason to believe that there are any potential conflicts of interest regarding its relationship with Pentair, such as family members who could potentially benefit from the commercial relationship established by this Agreement; and neither Buyer, nor any of Buyer’s Agents, are or have any family members who are Government Officials in a position to influence your commercial relationship with Pentair.

5. Accurate Books and Records

Buyer will maintain complete and accurate books and records in accordance with generally accepted accounting principles in Buyer’s jurisdiction, consistently applied, properly and accurately recording all payments made by Buyer or Buyer’s Agents in performance of this Agreement or related to it, and any commission, compensation, reimbursement, or other payment made by or on behalf of Pentair to Buyer or Buyer’s Agents. Buyer will maintain a system of internal accounting controls reasonably designed to ensure that it maintains no off-the-book accounts and that its assets are used only in accordance with its management directives.

6. Notification

Buyer will notify Pentair promptly if (a) Buyer or any of Buyer’s Agents have reason to believe that a breach of this Section has occurred or is likely to occur; or (b) if any conflicts of interest arise after the signing of this Agreement, including if any of Buyer’s Agents or their family members become a government official or political party candidate in a position to influence Buyer’s commercial relationship with Pentair. Buyer will send all such notices to ethics@pentair.com or to such other location as Pentair may designate in writing.

7. Compliance Certification

Buyer will, when and as may be requested by Pentair from time to time, provide to Pentair a written certification in form and substance satisfactory to Pentair that Buyer is in compliance with this Section.

8. No Payments for Improper Activities

Pentair will not be required under any circumstances to take any action or make any payments that Pentair believes, in good faith, would cause it or its affiliated companies to be in violation of any Anti-Corruption Laws (Anti-Corruption Laws include, collectively, the United States Foreign Corrupt Practices Act, laws under the OECD Anti-Bribery Convention and local anti-corruption laws). If Pentair at any time believes, in good faith, that a breach of any of the representations and warranties in this Section has occurred or may occur, Pentair may withhold any commission, compensation, reimbursement, or other payment until such time as Pentair has received confirmation to its reasonable satisfaction that no breach has occurred or will occur. Pentair shall not be liable to Buyer for any claim, losses, or damages whatsoever related to Pentair’s decision to withhold any commission, compensation, reimbursement, or other payment under this provision.

9. Audit rights

If Pentair at any time believes, in good faith, that Buyer has breached the warranties, representations or agreements in this Section, then Pentair will have the right to audit Buyer‘s books and records related to this Agreement in order to verify Buyer’s compliance with the provisions of this Section. The audit will be performed by individuals selected by Pentair. However, upon request by Buyer, Pentair will select in its sole discretion an independent third party to conduct an audit in order to certify to Pentair that no breach has occurred or will occur. Buyer will fully cooperate in any audit conducted by or on behalf of Pentair.

10. Termination rights

Any breach of the warranties, representations or agreements in this Section will constitute grounds for immediate termination of this Agreement and any Order for cause by Pentair and no commission, compensation, reimbursement or other payment will be due to Buyer. Buyer will indemnify and hold Pentair harmless against any actions, legal claims, demands, proceedings, losses, damages, costs, expenses and other liabilities of whatever nature resulting from Buyer’s breach of the representations, warranties and agreements contained in the Section.

11. Data Privacy Consent

Buyer consents to the collection, processing and international transfer of data and information related to the business relationship between it and Pentair, including the transfer of personally identifiable data (for example names, email addresses, telephone numbers) to and between Pentair and its affiliates wherever they may be located throughout the world, for the purposes of allowing Pentair and its affiliates to evaluate Buyer’s experience and qualifications and implement any business. Buyer has the right to: (a) request access to this data; (b) rectify or cancel any inaccurate or expired data; and (c) object to any processing that does not conform to these purposes. Buyer may exercise its rights by writing to Pentair at ethics@pentair.com or to such other location as Pentair may designate.

12. Prohibited Trade

Buyer will not sell, re-export or transfer any products or technical information or services supplied under this Agreement to any other countries except in full compliance with all applicable governmental requirements, including but not limited to applicable economic sanctions and constraints administered by the U.S. Treasury Department and applicable export control measures administered by the U.S. Department of Commerce and U.S. Department of State, any other U.S. government agencies, and measures administered by the European Union or the government agencies of any other countries.

Without limiting the foregoing, Buyer will not sell, re-export or transfer any products or technical information or services supplied by Pentair to Iran, North Korea, Syria, Cuba and North Sudan, including any entities or persons in those countries, either directly or indirectly. Any violation of the above shall be deemed a material breach of this Agreement and sufficient basis for Pentair to reject any or all orders or to terminate this Agreement.

Compliance with the above is a prerequisite for performance under this Agreement, and if there is a failure to comply with same, the parties agree that they are incapable of meeting the obligations under this Agreement. Pentair reserves the right to refuse to enter into or perform any order, and to cancel any order, if Pentair in its sole discretion determines that such order could violate any applicable law or regulation of the United States, or any other governments.

The parties agree that any such refusal or cancellation of any order, or termination of the Agreement by Pentair, as described above, will not constitute a breach of any of Pentair’s obligations under this Agreement, and the parties hereby waive any and all claims against Pentair for any loss, cost or expense related thereto.

 

XIII. Place of performance and jurisdiction

For both parties, the place of performance for all rights and duties arising from the transactions shall be Steinhagen (Westphalia) and the place of jurisdiction shall be Halle (Westphalia) or, at our discretion, Bielefeld. These terms of deli-very constitute the legal basis of the delivery contract. Through his order, the orderer accepts these as legally binding and simultaneously waives all contrary conditions which may be pre-printed or written in his order form.

 

XIV. Severability Clause

Should individual clauses of this contract be fully or partially ineffective, the legal effectiveness of the remaining clauses shall not be affected thereby. The ineffective clause shall be replaced by an effective clause which approximates the purpose of the contract as closely as possible.

Jung Pumpen, April 2016