Terms and Conditions of Sale of Honeywell CPG Products and Customer Purchase Order Acknowledgement |
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THESE TERMS AND CONDITIONS APPLY FOR SALES FROM THE FOLLOWING HONEYWELL ENTITIES: HONEYWELL BREMSBELAG GmbH, FEDERAL REPUBLIC OF GERMANY; HONEYWELL FRICCION ESPANA S.L., SPAIN; OR HONEYWELL MATERIAUX DE FRICTION SAS, FRANCE, SELLING CPG/FRICTION PRODUCTS IN EMEA.
1. ACCEPTANCE AND APPLICABLE TERMS AND CONDITIONS: This document sets forth the terms and conditions of sale and/or acknowledgement of a buyer’s purchase order (“Terms” or “Acknowledgment”) for the specified products (“Products”) manufactured by the Honeywell affiliate responding to the purchase order from the original purchaser thereof (“Buyer”) or that Honeywell International Inc. designates on its behalf as the intended selling Honeywell affiliate (“Honeywell”). UNLESS OTHERWISE STATED IN A PREVIOUSLY EXECUTED WRITTEN PURCHASE AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF HONEYWELL AND BUYER AND COVERING THE SPECIFIC PRODUCTS THAT ARE THE SUBJECT OF BUYER’S PURCHASE ORDER, HONEYWELL’S ACCEPTANCE OF BUYER’S PURCHASE ORDER IS MADE EXPRESSLY CONDITIONAL ON ASSENT BY BUYER TO THE TERMS AND CONDITIONS OF SALE INCLUDED IN THIS DOCUMENT. NO ADDITONAL OR DIFFERENT TERMS OR CONDITIONS, WHETHER CONTAINED IN BUYER’S OWN PURCHASE ORDER FORM OR ANY OTHER DOCUMENT OR COMMUNICATION PERTAINING TO BUYER’S ORDER, WILL BE BINDING UPON HONEYWELL UNLESS ACCEPTED IN WRITING, AND HONEYWELL HEREBY EXPRESSLY OBJECTS TO ANY SUCH TERMS AND CONDITIONS WHICH SHALL BE DEEMED INEFFECTIVE AND ARE REJECTED. These Terms establish the rights, obligations and remedies of Honeywell and Buyer which apply to Buyer’s order accepted by Honeywell herein (“Contract”) for the purchase of Honeywell’s products (“Products”). Buyer’s assent to these Terms shall be conclusively presumed from a) Buyer’s receipt of this Acknowledgment without written objection within ten (10) days of receipt of this Acknowledgment, b) Buyer’s instructing Honeywell to begin work or to ship any Products after receipt of this Acknowledgment, or c) acceptance by Buyer of all or any part of the Products ordered.
2. DELIVERY
Unless otherwise agreed, delivery shall be accomplished EX-WORKS Honeywell (as defined by the International Chamber or Commerce Incoterms 2000). In the event Honeywell prepays transportation charges, Buyer shall be obligated to reimburse Honeywell upon receipt of an invoice for such charges. Honeywell shall use commercially reasonable efforts to deliver the Products ordered herein within the time specified on the face of this Contract or, if no time is specified, within Honeywell’s normal lead-time necessary for Honeywell to deliver the Products sold hereunder. Title and risk of loss, damage or destruction of goods shall pass to Buyer upon delivery of the Products EX-WORKS Honeywell’s factory. Buyer’s request for expedited delivery of Products may be subject to additional charges quoted by Honeywell upon receipt of a request for expedited delivery.
3. RETENTION OF TITLE - RESERVED
The applicable Article varies whether the Products are sold from the Federal Republic of Germany, France or Spain. Please see below
4. INSPECTION - RESERVED
The applicable Article varies whether the Products are sold from the Federal Republic of Germany, France or Spain. Please see below.
5. PRICES AND ORDER SIZES
All prices are in the applicable currency of the Agreement, unless otherwise agreed to by Honeywell, in writing, and are based on delivery EX-WORKS as stated in Paragraph 2 above. All prices are quoted based on these Terms. To the extent Buyer’s standard terms and conditions are deemed to apply, Honeywell reserves the right to modify the prices (including retroactively) according to the additional level of risk and responsibility that Buyer’s terms and conditions require Honeywell to undertake. Prices do not include any charges for services such as preservation packaging; insurance; brokerage fees; sales, use, inventory or excise taxes; import or export duties; special financing fees; value added taxes; income or royalty taxes imposed outside the United States; consular fees; special permits or licenses; or similar charges imposed upon the production, sale, distribution, or delivery of Products hereunder. Buyer shall either pay any and all such taxes and charges or provide Honeywell with acceptable exemption certificates, which obligation shall survive performance under this Contract. Honeywell reserves the right to establish minimum order sizes or to reject purchase orders if Honeywell does not have sufficient capacity to fulfill such orders.
6. HARDSHIP
If for any reason Honeywell’s production or purchase costs for the Product (including without limitation costs of energy, equipment, labor, regulation, transportation, raw material, or Product) increases over Honeywell’s production or purchase costs for the Product on the date of entering into this Agreement, then Honeywell may, by written notice to Buyer of such increased costs, request a renegotiation of the price of the Product under this Agreement. In the event the Parties are not able to agree on a revised Product price within 10 days after a request for renegotiation is given, then Honeywell may terminate this Agreement on 10 days written notice to Buyer.
7. PAYMENTS
All payments shall be made in accordance with the written terms of this Contract. All payments shall be made in the applicable currency of the Agreement. Honeywell will submit invoices to Buyer upon readiness of goods for shipment. Invoices shall be due and payable NET 30 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by check to Honeywell at the above address or by wire transfer to the account stated on the front of Honeywell’s invoice. In the event payments are not made in a timely manner, Honeywell may, in addition to all other remedies provided at law: (1) declare Buyer’s performance in breach and terminate this Contract for default; (2) withhold future shipments until delinquent payments are made; (3) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (4) charge interest on the delinquency at the local statutory rate, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (5) repossess the Products for which payment has not been made; (6) recover all costs of collection including reasonable attorney’s fees. Buyer is prohibited from setting off any and all monies owed under this from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with Honeywell, its divisions, subsidiaries or affiliates. Should Buyer’s financial responsibility become unsatisfactory to Honeywell in its reasonable discretion, Honeywell may require cash payment or other security. If Buyer fails to meet these requirements, Honeywell may discontinue manufacture and/or delivery of goods and treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due Honeywell.
8. SET OFF
Buyer will not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from Honeywell, its parent, affiliates, subsidiaries or other divisions or units.
9. INDEMNIFICATION
Honeywell will indemnify Buyer only in the circumstances and only to the extent set forth in paragraph 10 below regarding patent protection. Neither Honeywell nor its successors-in-interest, assignees, affiliates (as defined in Black’s Law Dictionary), or directors, officers, or employees of Honeywell or of Honeywell’s successors-in-interest, assignees, or affiliates (collectively, the “Honeywell Entities”) shall be responsible to indemnify Buyer in any other circumstances.
10. PATENT PROTECTION
Subject to the paragraph below entitled “Limitation on Liability”, Honeywell shall, with respect to any Products of Honeywell’s design or Honeywell’s manufacture, indemnify Buyer from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement of any United States patent (or European patent for Products that Honeywell sells in any member state of the E.U. and which Buyer incorporates into an engine within the E.U.) that has issued as of the delivery date, solely by reason of the sale or normal use of any Products sold to Buyer hereunder and from reasonable expenses incurred by Buyer in defense of such suit if Honeywell does not undertake the defense thereof, provided that Buyer promptly notifies Honeywell of such suit and offers Honeywell either (i) full and exclusive control of the defense of such suit when Products of Honeywell only are involved, or (ii) the right to participate in the defense of such suit when products other than those of Honeywell are also involved. Honeywell’s warranty as to use patents only applies to infringement arising solely out of the inherent operation of the Products according to their applications as envisioned by Honeywell’s specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, Honeywell shall, at its own expense and at its option, either procure for Buyer the right to continue using such Products or replace them with non-infringing products, or modify them so they become non-infringing, or remove the Products and refund the purchase price (prorated for depreciation) and the transportation costs thereof. The foregoing states the entire liability of the Honeywell Entities for patent infringement by the Products. Further, to the same extent as set forth in Honeywell’s above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless the Honeywell Entities for patent infringement related to any equipment or any part thereof that is manufactured to the Buyer’s design, or related to Honeywell’s Products when used in combination with any other devices, parts or software not provided by Honeywell hereunder.
11. TRADEMARKS AND OTHER LABELS
(11.1)Buyer acknowledges Honeywell's (or its licensors, if applicable) ownership of and/or right to the copyright and other intellectual property rights contained on or within the Products. The Buyer shall not acquire any copyright and/or other intellectual property rights (including but not limited to) patents, trademarks, trade names, logos, industrial designs whose ownership correspond to Honeywell or to its licensors, if applicable. Buyer acknowledges and agrees that the Buyer use of the copyright and other intellectual property rights in and/or derived from the Products, pursuant to these Terms shall not give the Buyer any right, title or interest in or to the copyright and other intellectual property rights in the Products. By virtue of these Terms the Buyer does not acquire any rights in the Products other than the right to use the same as expressly permitted by these Terms. (11.2) Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast or machined components.
12. LIMITED WARRANTY - RESERVED
The applicable Article varies whether the Products are sold from the Federal Republic of Germany, France or Spain. Please see below.
13. NONDISCLOSURE AND NON-USE OF HONEYWELL’S CONFIDENTIAL INFORMATION
“Confidential Information” means any information, technical data or know-how in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, mask works and artwork, which Honeywell considers proprietary or confidential. The Honeywell Entities may disclose Confidential Information during the performance or fulfillment of this Contract. Buyer and its customers, employees and agents shall keep all such Confidential Information confidential for a period of 10 years following the date of disclosure. Neither Buyer, its customers, employees, or agents shall transfer or disclose Honeywell’s Confidential Information without Honeywell’s prior written consent, and Buyer agrees that it will not use Honeywell’s Confidential Information for the manufacture or procurement of Products that are the subject of this Contract or any similar products, or cause such products to be manufactured by or procured from any other source, or reproduce the Confidential Information or otherwise appropriate it without Honeywell’s prior written consent. All Confidential Information obtained from or through the Honeywell Entities shall remain property of Honeywell. No right or license is granted hereby to Buyer or its customers, employees or agents, expressly or by implication, with respect to the Confidential Information or any patent, patent application or other proprietary right of the Honeywell Entities, notwithstanding the expiration of the confidentiality obligations stated herein.
14. PUBLICITY
Any news release, public announcement, advertisement, publicity or any other public disclosure concerning this Agreement requires prior written approval of the parties, which approval will not unreasonably be withheld.
15. CHANGES
Buyer may request changes to the design of Products that Buyer has ordered, where the Products to be furnished by Honeywell are to be specifically manufactured for Buyer. If any such change causes an increase in the cost of or in the time required for Honeywell’s performance hereunder, or if such change results in rework or obsolescence charges, an equitable adjustment shall be made and the Contract modified accordingly, provided that Honeywell in its reasonable discretion first accepts in writing the request for such changes. Honeywell reserves the right to make changes in design or additions or improvements to any products of the same general class as Products being delivered hereunder, without liability or obligation to incorporate such changes, additions or improvements to Products ordered by Buyer unless specifically agreed upon in writing reasonably in advance of such Products’ delivery date.
16. EXPORT AND IMPORT LICENSES
Unless otherwise specified in this Contract, Buyer shall be responsible for obtaining any required export or import licenses.
17. COMPLIANCE WITH LAWS
All Products delivered hereunder will be produced and supplied in compliance with all applicable laws and regulations. Buyer shall comply with all local laws and regulations applicable to the installation, use, or import of all Products delivered hereunder. Buyer shall comply with all applicable export control laws and regulations of the United States, the European Union and any other country having proper jurisdiction and shall obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered hereunder. Buyer shall not sell, transfer, export or re-export any Honeywell Products or technology for use in activities which involve the design, development, production, use or storing of nuclear, chemical or biological weapons or missiles, nor use Honeywell Products or technology in any facility which engages in activities relating to such weapons.
18. FORCE MAJEURE
Honeywell shall be excused from delays in delivery and performance of other contractual obligations under this Contract caused by acts or omissions that are beyond the control of Honeywell, including but not limited to Government embargoes, blockages, seizures or freeze of assets, delays or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to Honeywell by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms and payments under any letters of credit shall be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, Honeywell may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.
19. NON ASSIGNMENT
Buyer shall not transfer or assign in whole or in part this Contract or any rights or interests hereunder, including without limitation any transfer or assignment pursuant to a merger agreement or assignment or substantially all or the assets of Buyer, without the prior written consent of Honeywell.
20. WAIVER
Failure of either party to insist upon strict performance of any of the terms and conditions of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract shall not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same shall continue and remain in force and effect as if no waiver had occurred.
21. LIMITATION OF LIABILITY - RESERVED
The applicable Article varies whether the Products are sold from the Federal Republic of Germany, France or Spain. Please see below.
22. APPLICABLE LAW AND DISPUTE RESOLUTION
(22.1) If Honeywell is a legal entity formed in the United States, then the construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the State of New York, U.S.A. without regard to or application of its principles or laws regarding conflicts of laws, and excluding the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto). Any dispute not resolved by the parties shall be adjudicated in order of preference (i) by a Federal or State court of competent jurisdiction in the State of New York, U.S.A. if Buyer has minimum contacts with New York and the United States, (ii) by a Federal or State court of competent jurisdiction elsewhere in the United States if Buyer has minimum contacts with the United States but not New York, or (iii) by a Federal or State court of competent jurisdiction in a neutral location if Buyer does not have minimum contacts with the United States. For those Honeywell Entities from a country not identified above selling Honeywell Products, the laws of the country and (if applicable) province or state where its main office is located will apply.
(22.2) If Honeywell is a legal entity formed outside of the United States, then the construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws: a.) of the Federal Republic of Germany, if the Products are sold from the Federal Republic of Germany, without regard to or application of its principles or laws regarding conflicts of laws, and including the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto). In the event that the parties are unable to resolve the disputes, the parties shall submit the disputes to the commercial court of Hamburg, the Federal Republic of Germany. b.) of Spain, if the Products are sold from Spain, without regard to or application of its principles or laws regarding conflicts of laws, and including the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto). In the event that the parties are unable to resolve the disputes, the parties shall submit the disputes to the commercial court of Barcelona, Spain. c.) of France, if the Products are sold from France, without regard to or application of its principles or laws regarding conflicts of laws, and including the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto). In the event that the parties are unable to resolve the disputes, the parties shall submit the disputes to the commercial court of Paris, France.
23. SEVERABILITY
If any provision of this Agreement is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of this Agreement will not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there will be added, as part of this Agreement, one or more provisions as similar in terms as may be legal, valid and enforceable under applicable law.
I. If the Products are sold by Honeywell Bremsbelag GmbH from the Federal Republic of Germany following Terms & Conditions are included:
3. RETENTION OF TITLE
(3.1) Honeywell reserves title in all goods until receipt of all payments under the business relationship. If a current account relationship exists as part of the business relationship, Honeywell shall retain title in the goods until receipt of all payments from acknowledged balances.
(3.2) In the event of a breach of contract, notably default of payment, Honeywell shall be entitled to recover the goods in which title is reserved (hereinafter referred to as "Reserved Goods"). In the event of default of payment, the advance setting of a time period is not required. Withdrawal from the order concerned is not a pre-requisite for the recovery of the Reserved Goods. Withdrawal is possible only by express declaration in writing. Honeywell shall be entitled to enter the business premises of Buyer during normal business hours for the purposes of recovering the Reserved Goods. After recovery of the Reserved Goods, Honeywell shall upon prior warning be entitled to realise the Reserved Goods in a reasonable manner; the realisation proceeds shall be applied to the liabilities less reasonable realisation costs.
(3.3) For the duration of the reservation of title Buyer may not pledge the Reserved Goods nor use the same as security. Buyer may sell the Reserved Goods in the course of ordinary business activities, however all claims equal to the final invoice amount (including VAT) accruing to Buyer against its customers or third parties from the resale are hereby already assigned to Honeywell. Buyer may not sell the Reserved Goods to customers that have excluded or limited the assignment of payment claims against them.
(3.4) After the assignment, Buyer retains the right to collect the claims. This shall not affect the Buyer’s entitlement to collect the claims itself. However, Honeywell shall not collect the claims as long as Buyer fulfill its payment obligations from the proceeds taken in, is not in default of payment and notably has not filed an application for the opening of insolvency proceedings and has not suspended its payments. If any of this is the case, Honeywell may request Buyer to disclose the assigned claims and their respective debtors, to furnish all data required for collection, to hand over all documents pertaining thereto and to inform the debtors of the assignment. If such a case occurs, Buyer’s right to collect the claims is extinguished.
(3.5) To the extent that a current account relationship exists between Buyer and its customers pursuant to Sec. 355 of the German Commercial Code (Handelsgesetzbuch), the claim assigned to Honeywell in advance by Buyer shall also relate to the acknowledged balance, as well as to the balance surplus existing from the closing balance in the case of the customer's insolvency.
(3.6) Buyer is obliged to notify Honeywell in writing without undue delay of all seizures, attachments and other interference by third parties with respect to the Reserved Goods. Moreover, Buyer shall notify such third parties of the reservation of title. To the extent the third party is unable to reimburse Honeywell for the court and out-of-court costs of a legal action pursuant to Sec. 771 of the German Civil Code (Zivilprozessordnung), Buyer shall be liable for the loss thus incurred to Honeywell.
(3.7) Buyer is obliged to treat the Reserved Goods with care; in particular, Buyer is obliged to have the same at its own expense sufficiently insured at replacement value against fire, damage by water and theft. To the extent that maintenance or inspection work is required, Buyer must carry this out in good time at its own expense.
4.INSPECTION
(4.1) Buyer shall promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications such as obvious defects, Buyer shall promptly notify Honeywell of such nonconformance in writing within ten (10) days since the detection of the defects. Honeywell shall have a reasonable opportunity to repair or replace the nonconforming product at its option as set forth under section 12. Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Honeywell within ten (10) days after Buyer’s receipt of such Products.
(4.2) In any cases of hidden defects the Buyer shall notify Honeywell within ten (10) days since the detection of the defects. Honeywell shall have a reasonable opportunity to repair or replace the nonconforming product at its option as set forth under section 12. Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Honeywell within ten (10) days after Buyer’s detection of the defect of such Products.
12. LIMITED WARRANTY
(12.1) If during the limitation period hereunder a Product shows a defect which already existed at the time of transfer of risk from Honeywell to Buyer, Honeywell will at its own choice repair the defect (Nachbesserung) or replace the defective Product (Nachlieferung) (“Subsequent Performance”, Nacherfüllung). If Subsequent Performance fails finally, Buyer shall be entitled to rescind the affected purchase order (Rücktritt), whereas the right to reasonably reduce the purchase price of the affected purchase order (Minderung) is excluded. No claims for defects shall exist for non-material deviations which do not materially impair the use of the Product. Further-reaching claims for defects are excluded, without prejudice to any limited claims for damages under [Clause 21].
(12.2) The limitation period is twelve months upon delivery of the Product from Honeywell to Buyer. This shall not apply in the following cases: (i) fraudulently concealed defects (arglistiges Verschweigen eines Mangels), and (ii) defects for which a guaranty for the quality of the Product (Beschaffenheitsgarantie) was given; in the case of claims for damages, this shall also not apply in the following cases: (i) personal injury (Verletzung von Leib, Leben oder Gesundheit), (ii) intention (Vorsatz), and (iii) gross negligence (grobe Fahrlässigkeit) of an officer or executive of Honeywell.
(12.3) Subsequent Performance will be effected by Honeywell without acknowledgement of any legal duty (Anerkenntnis). For repaired Products the remainder of the original limitation period shall run from the return of the repaired Product; the same shall apply for replaced Products.
21. LIMITATION OF LIABILITY
(21.1) Honeywell is only liable for damages caused by slight negligence (einfache Fahrlässigkeit) if such exist due to the breach of a material contractual obligation in a manner endangering the purpose of the respective purchase order. In this case, the liability is limited to the damage which is typical and foreseeable. The latter shall also apply to damages caused by gross negligence (grobe Fahrlässigkeit) of an employee or agent of Honeywell, who is not an officer or executive of Honeywell.
(21.2) In cases of [Clause 21.1], the liability is in any case limited to the value of the respective purchase order.
(21.3) In cases of [Clause 21.1], the limitation period for claims for damages shall be two years from the point in time the claim arose and Buyer became aware thereof. Regardless of Buyer’s awareness, the limitation period shall be three years from the damaging event. For claims for defects the limitation period of [Clause 12.2] shall apply.
(21.4) Except for (i) liability under the German Product Liability Act (Produkthaftungsgesetz), (ii) fraudulently concealed defects (arglistiges Verschweigen eines Mangels), (iii) defects for which a guaranty for the quality of the Product (Beschaffenheitsgarantie) was given, and (iv) personal injury (Verletzung von Leib, Leben oder Gesundheit), the above limitations of liability shall apply to all claims for damages, irrespective of their legal basis.
(21.5) The above limitations of liability shall also apply in the case of Buyer’s claims for damages against an officer, executive, employee or agent of Honeywell, if any.
II. If the Products are sold by Honeywell Fricción España S.L. from Spain following Terms & Conditions are included:
3.RETENTION OF TITLE
(3.1) Honeywell reserves title and ownership in all goods until receipt of all payments under the business relationship. If a current account relationship exists as part of the business relationship, Honeywell shall retain title in the goods until receipt of all payments from acknowledged balances.
(3.2) In the event of a breach of contract, notably default of payment, Honeywell shall be entitled to recover the goods in which title is reserved (hereinafter referred to as "Reserved Goods"). In the event of default of payment, the advance setting of a time period is not required. Withdrawal from the order concerned is not a pre-requisite for the recovery of the Reserved Goods. Withdrawal is possible only by express declaration in writing. Honeywell shall be entitled to enter the business premises of Buyer during normal business hours for the purposes of recovering the Reserved Goods. After recovery of the Reserved Goods, Honeywell shall upon prior warning be entitled to realise the Reserved Goods in a reasonable manner; the realisation proceeds shall be applied to the liabilities less reasonable realisation costs.
(3.3) For the duration of the reservation of title Buyer may not pledge the Reserved Goods nor use the same as security. Buyer may sell the Reserved Goods in the course of ordinary business activities, however all claims equal to the final invoice amount (including VAT) accruing to Buyer against its customers or third parties from the resale are hereby already assigned to Honeywell. Buyer may not sell the Reserved Goods to customers that have excluded or limited the assignment of payment claims against them.
(3.4) After the assignment, Buyer retains the right to collect the claims. This shall not affect the Buyer’s entitlement to collect the claims itself. However, Honeywell shall not collect the claims as long as Buyer fulfill its payment obligations from the proceeds taken in, is not in default of payment and notably has not filed an application for the opening of insolvency proceedings and has not suspended its payments. If any of this is the case, Honeywell may request Buyer to disclose the assigned claims and their respective debtors, to furnish all data required for collection, to hand over all documents pertaining thereto and to inform the debtors of the assignment. If such a case occurs, Buyer’s right to collect the claims is extinguished.
(3.5) To the extent that a current account relationship exists between Buyer and its customers , the claim assigned to Honeywell in advance by Buyer shall also relate to the acknowledged balance, as well as to the balance surplus existing from the closing balance in the case of the customer's insolvency.
(3.6) Buyer is obliged to notify Honeywell in writing without undue delay of all seizures, attachments and other interference by third parties with respect to the Reserved Goods. Moreover, Buyer shall notify such third parties of the reservation of title. To the extent the third party is unable to reimburse Honeywell for the court and out-of-court costs of a legal action, Buyer shall be liable for the loss thus incurred to Honeywell.
(3.7) Buyer is obliged to treat the Reserved Goods with care and shall hold then as Honeywell's depositary ("depositario"); in particular, Buyer is obliged to have the same at its own expense sufficiently insured at replacement value against fire, damage by water and theft. To the extent that maintenance or inspection work is required, Buyer must carry this out in good time at its own expense..
4. INSPECTION
(4.1) The Parties hereby exclude the application of statutory prescription periods (statute of limitation) provided for in the Spanish Civil Code and Code of Commerce for defective products ("saneamiento por defectos ocultos y manifiestos").
(4.2) Buyer shall promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications such as obvious defects, Buyer shall promptly notify Honeywell of such nonconformance in writing within ten (10) days since the detection of the defects. Honeywell shall have a reasonable opportunity to repair or replace the nonconforming product at its option as set forth under section 12. Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Honeywell within ten (10) days after Buyer’s receipt of such Products.
(4.3) In any cases of hidden defects the Buyer shall notify Honeywell within ten (10) days since the detection of the defects. Honeywell shall have a reasonable opportunity to repair or replace the nonconforming product at its option as set forth under section 12. Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Honeywell within ten (10) days after Buyer’s detection of the defect of such Products.
(4.4) Buyer undertakes to notify immediately to Honeywell any information it may receive in connection with any claims filed by final customers or end users regarding possible defects or circumstances which may affect the safety and/or security of the Products.
12. LIMITED WARRANTY
(12.1) If during the limitation period hereunder a Product shows a defect which already existed at the time of transfer of risk from Honeywell to Buyer, Honeywell will at its own choice repair the defect or replace the defective Product (“Subsequent Performance”). If Subsequent Performance fails finally, Buyer shall be entitled to rescind the affected purchase order or to claim a reasonably reduction on the purchase price of the affected purchase order. No claims for defects shall exist for non-material deviations which do not materially impair the use of the Product. Further-reaching claims for defects are excluded, without prejudice to any limited claims for damages under Clause 21.
(12.2) The limitation period is twelve months upon delivery of the Product from Honeywell to Buyer. This shall not apply in the following cases: (i) fraudulently concealed defects, and (ii) defects for which a guaranty for the quality of the Product was given; in the case of claims for damages, this shall also not apply in the following cases: (i) personal injury, (ii) intention, and (iii) gross negligence of an officer or executive of Honeywell.
(12.3) Subsequent Performance will be effected by Honeywell without acknowledgement of any additional legal duty. For repaired Products the remainder of the original limitation period shall run from the return of the repaired Product; the same shall apply for replaced Products.
(12.4) If the analysis of an alleged defect shows that no defect exists, Honeywell is entitled to charge for the failure analysis at Honeywell's applicable rates. Shipment costs for the return of such products will not be reimbursed and their return shall be at Buyer's expense and risk.
13a. DATA PROTECTION
Buyer acknowledges and accepts that any personal data, contained in this document or provided by it within the context of the business relationship created under these Terms, will be collected and incorporated into personal data files in respect of which [Note: Include name and address of the Honeywell entity which collects the personal data in Spain] is the Data Controller, and that said personal data will be processed for the purposes of enforcing and managing the rights and obligations arising from or related to these Terms. To the extent that such personal data refer to third data subjects, the Buyer hereby represents and warrants that it has obtained the consent of the data subjects in order to disclose their personal data to the Data Controller and that it has informed such data subjects about (i) the identity of Data Controller as assignee of the personal data, (ii) the processing to be made by the Data Controller in connection with their personal data, and (iii) that such data subjects may exercise the rights to access, rectify and cancel their personal data, as well as to exercise their right to object to the processing of their personal data by contacting the Data Controller at the address designated in this paragraph.
21. LIMITATION OF LIABILITY
(21.1) Honeywell is only liable for damages caused by slight negligence ("negligencia leve") if such exist due to the breach of a material contractual obligation in a manner endangering the purpose of the respective purchase order. In any cases of liability, except in those provided for in Clause 21.4, Honeywell's liability is limited to the direct damage, which is typical for such agreements and which could have been reasonably foreseen. The latter shall also apply to damages caused by gross negligence of an employee or agent of Honeywell, who is not an officer or executive of Honeywell.
(21.2) In cases of Clause 21.1, the liability is in any case limited to the value of the respective purchase order.
(21.3) In cases of Clause 21.1, the limitation period for claims for damages shall be two years from the point in time the claim arose and Buyer became aware thereof. Regardless of Buyer’s awareness, the limitation period shall be three years from the damaging event. For claims for defects the limitation period of Clause 12.2 shall apply.
(21.4) Except for (i) liability under the Spanish Product Liability Act, (ii) fraudulently concealed defects, (iii) defects for which a guaranty for the quality of the Product was given, and (iv) personal injury, fraud, and willful misconduct, the above limitations of liability shall apply to all claims for damages, irrespective of their legal basis.
(21.5) The above limitations of liability (including exceptions to limitations set forth in clause 21.4 above) shall also apply in the case of Buyer’s claims for damages against an officer, executive, employee or agent of Honeywell, if any.
III. If the Products are sold by Honeywell Matériaux de Friction SAS from France following Terms & Conditions are included:
3. RETENTION OF TITLE
(3.1) Honeywell reserves title in all goods until receipt of all payments under the business relationship. If a current account relationship exists as part of the business relationship, Honeywell shall retain title in the goods until receipt of all payments from acknowledged balances.
(3.2) In the event of a breach of contract, notably default of payment, Honeywell shall be entitled to recover the goods in which title is reserved (hereinafter referred to as "Reserved Goods"). In the event of default of payment, the advance setting of a time period is not required. Withdrawal from the order concerned is not a pre-requisite for the recovery of the Reserved Goods. Withdrawal is possible only by express declaration in writing. Honeywell shall be entitled to enter the business premises of Buyer during normal business hours for the purposes of recovering the Reserved Goods. After recovery of the Reserved Goods, Honeywell shall upon prior warning be entitled to realise the Reserved Goods in a reasonable manner; the realisation proceeds shall be applied to the liabilities less reasonable realisation costs.
(3.3) For the duration of the reservation of title Buyer may not pledge the Reserved Goods nor use the same as security. Buyer may sell the Reserved Goods in the course of ordinary business activities, however all claims equal to the final invoice amount (including VAT) accruing to Buyer against its customers or third parties from the resale are hereby already assigned to Honeywell in accordance with the provisions set forth in this article 3.4 below. Buyer may not sell the Reserved Goods to customers or third party that have excluded or limited the assignment of payment claims against them. If Buyer resells the Reserved Goods to a customer, Buyer shall inform in writing such customer of the reservation of title benefiting to the Honeywell, and notify to the Honeywell the identity of such customer. Subject to article 3.4, Honeywell shall acquire automatically and without formality the full rights to the proceeds of the resale in proportion to the price of the Reserved Goods which remains unpaid.
(3.4) After the assignment, Buyer retains the right to collect the claims. This shall not affect the Buyer’s entitlement to collect the claims itself. However, Honeywell shall not collect the claims as long as Buyer fulfill its payment obligations from the proceeds taken in, is not in default of payment and notably has not filed an application for the opening of insolvency proceedings and has not suspended its payments. If any of this is the case, Honeywell may request Buyer to disclose the assigned claims and their respective debtors, to furnish all data required for collection, to hand over all documents pertaining thereto.
(3.5) Buyer is obliged to notify Honeywell in writing without undue delay of all seizures, attachments and other interference by third parties with respect to the Reserved Goods. Moreover, Buyer shall notify such third parties of the reservation of title. To the extent the third party is unable to reimburse Honeywell for the court and out-of-court costs of a legal action, Buyer shall be liable for the loss thus incurred to Honeywell.
(3.6) Buyer is obliged to treat the Reserved Goods with care; in particular, Buyer is obliged to have the same at its own expense sufficiently insured at replacement value against fire, damage by water and theft. To the extent that maintenance or inspection work is required, Buyer must carry this out in good time at its own expense.
4. INSPECTION
(4.1) Buyer shall promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications such as obvious defects, Buyer shall promptly notify Honeywell of such non-conformance in writing within ten (10) days since the detection of the defects. Honeywell shall have a reasonable opportunity to repair or replace the nonconforming product at its option as set forth under section 12. Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such non-conformance in the event such a written notification is not received by Honeywell within ten (10) days after Buyer’s receipt of such Products1.
(4.2) In any cases of hidden defects the Buyer shall notify Honeywell within ten (10) days since the detection of the defects. Honeywell shall have a reasonable opportunity to repair or replace the nonconforming product at its option as set forth under section 12. Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such non-conformance in the event such a written notification is not received by Honeywell within ten (10) days after Buyer’s detection of the defect of such Products.
12. LIMITED WARRANTY
(12.1) If during the limitation period hereunder a Product shows a defect which already existed at the time of transfer of risk from Honeywell to Buyer, Honeywell will at its own choice repair the defect or replace the defective Product (”Subsequent Performance”). If Subsequent Performance fails finally, Buyer shall be entitled to rescind the affected purchase order whereas the right to reasonably reduce the purchase price of the affected purchase order is excluded. No claims for defects shall exist for non-material deviations which do not materially impair the use of the Product. Further-reaching claims for defects are excluded, without prejudice to any limited claims for damages under [Clause 21]. The provisions relating to the warranty provided under these terms are exclusive of other warranties, provided by law or otherwise.
(12.2) The limitation period is twelve months upon delivery of the Product from Honeywell to Buyer. This shall not apply in the following cases: (i) fraudulently concealed defects, and (ii) defects for which a guaranty for the quality of the Product was given; in the case of claims for damages, this shall also not apply in the following cases: (i) personal injury, (ii) intention, and (iii) gross negligence of an officer or executive of Honeywell.
(12.3) Subsequent Performance will be effected by Honeywell without acknowledgement of any legal duty. For repaired Products the remainder of the original limitation period shall run from the return of the repaired Product; the same shall apply for replaced Products.
21. LIMITATION OF LIABILITY
(21.1) Honeywell is only liable for damages caused by slight negligence if such exist due to the breach of a material contractual obligation in a manner endangering the purpose of the respective purchase order. In this case, the liability is limited to the damage which is typical and foreseeable. The latter shall also apply to damages caused by gross negligence of an employee or agent of Honeywell, who is not an officer or executive of Honeywell.
(21.2) In cases of [Clause 21.1], the liability is in any case limited to the value of the respective purchase order.
(21.3) In cases of [Clause 21.1], the limitation period for claims for damages shall be two years from the point in time the claim arose and Buyer became aware thereof. Regardless of Buyer’s awareness, the limitation period shall be three years from the damaging event. For claims for defects the limitation period of [Clause 12.2] shall apply. (21.3) Except for (i) fraudulently concealed defects, (ii) defects for which a guaranty for the quality of the Product was given, and (iii) personal injury, the above limitations of liability shall apply to all claims for damages, irrespective of their legal basis.
(21.4) The above limitations of liability shall also apply in the case of Buyer’s claims for damages against an officer, executive, employee or agent of Honeywell, if any. |
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