1. CONTRACT – These terms and conditions, together with any other supplemental written terms we give you pertaining to your order or service agreement, form a contract between you, the buyer of certain equipment (including parts and other merchandise), software, software licenses, and/or services (the "Buyer"), and us, the Mettler-Toledo entity identified on the quote, order acknowledgement, service agreement, invoice, or other order document we give you ("MT"). The rights and obligations identified in this contract apply to Buyer's purchase of the equipment, software, software licenses, and services identified in the MT order documents. If Buyer's order includes software subject to an end user license agreement ("EULA"), the terms of the EULA also apply and have priority over these terms. Terms and conditions that are different or changed from these only apply if both parties agree to them in writing. Terms or conditions included on Buyer's forms, including Buyer's standard terms and conditions of purchase and documents presented to MT's field service representatives, are not part of this contract. Buyer's receipt of equipment, software, software licenses, and/or services establishes its unqualified acceptance of these terms and conditions and any applicable EULA available at www.mt.com/legal.
2. GRANT OF LICENSE – If there is no EULA, MT grants Buyer a non-exclusive, non-sublicensable, and non-transferable right to use the software ordered for Buyer's internal purposes only. Buyer may not reverse engineer, decompile, or disassemble any software it licenses from MT.
3. QUOTATIONS, PUBLISHED PRICES, AND PRODUCT INFORMATION – Quotes and other offers of sale automatically expire 30 calendar days from the date issued unless otherwise stated, and unless MT withdraws the quote or offer earlier, which it may do any time prior to Buyer's acceptance of the quote or offer. Quotes and offers relating to custom equipment or software may rely on certain information and circumstances, including information Buyer provides. If information or circumstances on which a quote or offer relies change, MT may adjust its quote or offer. Published prices are not offers to sell and may be changed without notice. MT may change equipment or software specifications without notice unless it agreed to the specification(s) in writing. Prices do not include any taxes, shipping, packaging, handling, insurance, duties, inspection fees, permit fees, installation, or other costs or services unless otherwise specified in the MT order documents. MT may choose to accept or reject any order; MT will indicate order acceptance: (a) with a written order confirmation; or (b) by executing the order. Specific product characteristics, including but not limited to product weight, dimensions, value, return on investment, load, tolerance, and other technical data are not guarantees of those characteristics and are provided for information only. Buyer is not permitted to disclose any quotes, prices, specifications, or product information to any third party without MT's prior written consent.
4. TAXES – If local law requires MT to collect any tax from Buyer it will be added to Buyer's invoice and Buyer will be responsible to pay it, unless Buyer gives MT a valid tax exemption certificate. If an exemption certificate Buyer gives MT is later determined to be invalid, then Buyer will pay the previously unpaid tax.
5. TERMS OF PAYMENT – Payment terms are stated on the MT order documents. If no payment terms are stated, payment is due net 30 calendar days from the date of invoice. Buyer may not retain any payment it owes MT under this contract, or otherwise set-off any amount it owes MT under this contract, for disputed claims.
6. SHIPPING, HANDLING, AND DELIVERY – Shipping terms are stated on the MT order documents. If no shipping terms are stated, shipping is Ex Works. Delivery and service dates are estimates unless MT expressly agrees in writing to a fixed date or schedule. MT will use commercially reasonable efforts to meet delivery and service date estimates. All delivery and service dates are conditioned on MT's timely receipt of all necessary information and approvals. If Buyer causes a delay in delivery MT will store and handle all items at Buyer's risk and will invoice Buyer for the unpaid portion of the contract price, plus applicable storage, insurance, and handling charges. MT may make partial shipments. MT will not accept responsibility for any shortages or damages unless Buyer retains all shipping containers and packing materials for inspection.
7. RETURNS – Equipment, or licenses on software, that is engineered, modified, customized, or configured especially for Buyer cannot be returned unless there is a valid warranty claim, and the equipment or software cannot be repaired. Buyer cannot return equipment that is altered, damaged, used, or previously installed. Unless MT makes a shipping error or Buyer makes a valid warranty claim, unused off the shelf equipment may be returned only if Buyer contacts MT for approval and return instructions prior to returning anything. At its discretion, MT may charge Buyer a restocking fee for any return.
8. CANCELLATION – With MT's written approval, Buyer may cancel its order prior to the shipment of equipment or software, or prior to the beginning of a service contract. MT may cancel Buyer's order or require payment in advance if Buyer transfers assets for the benefit of its creditors, or if MT has reason to believe Buyer is unwilling or unable to perform its commitments. If Buyer cancels its order other than as permitted by this section, Buyer must pay MT all amounts due pursuant to the order. If Buyer's order is cancelled for any reason, Buyer will pay MT for reasonable costs and expenses (including engineering expenses and all commitments to MT's suppliers and subcontractors) incurred prior to MT receiving notice of cancellation, plus MT's usual rate of profit for similar work. The minimum cancellation charge is 15% of the price.
9. CHANGES – Buyer may make changes to its order if MT consents in writing. To accommodate Buyer's request for changes MT may change pricing and delivery schedules. If MT performed work or purchased materials in anticipation of Buyer's order, and the change Buyer requests makes that work or materials unnecessary, Buyer is still responsible for paying for them.
10. RETENTION OF TITLE – MT retains title to the sold equipment until complete payment of all current and future receivables arising from the service or sales contract and from the ongoing business relationship between MT and Buyer. In case of a current account, the retained property shall be deemed security for MT´s balance claim.
Buyer shall handle the equipment with due care and insure them at its own expense against fire, water, and theft in the amount of the replacement value of the purchased equipment. Insofar as maintenance or inspection services are required, Buyer shall carry them out at its own expense.
Buyer may resell equipment subject to the above retention of title only in the course of its regular business and may neither pledge them nor assign them as security. Buyer shall immediately inform MT in writing if and to the extent that third parties access the equipment belonging to MT. To secure MT`s payment claims, Buyer hereby assigns all payment claims and related rights against customers arising out of a resale of the equipment.
Any processing or alteration of the retained equipment shall be carried out on behalf of MT as producer. MT and Buyer agree that if retained goods are combined or amalgamated with other items that are not the property of MT, MT shall acquire co-ownership in the new items in proportion of the value of the retained goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new items are considered as retained goods.
11. WARRANTIES – ABSENT A SEPARATE WRITTEN WARRANTY MT ISSUES BUYER, MT WARRANTS ITS EQUIPMENT, SOFTWARE, AND SERVICES SOLELY AS SET FORTH IN THIS SECTION. TO THE FULLEST EXTENT ALLOWED BY LAW, MT DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). THESE WARRANTIES MAY BE TRANSFERRED TO A SUBSEQUENT PURCHASER OF EQUIPMENT OR A SUBSEQUENT LICENSEEE OF SOFTWARE ONLY WITH MT'S PRIOR WRITTEN CONSENT. IN ADDITION, THE FOLLOWING CONSTITUTES BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH BY MT OF THIS WARRANTY.
A. SPECIFICATIONS OF PRODUCTS – The agreement about specifications between MT and Buyer is the basis for the statutory warranty. The MT product specifications MT provided to Buyer in relation to the contract are deemed to be agreed specifications.
B. TERM – For products and replacement parts the statutory warranty period is limited to 18 months from the date it is shipped from MT, or 12 months from the day of original installation or use, whichever occurs first. For service contracts, the term of the statutory warranty is limited to one year from the completion of service work.
C. GENERAL – If products or services are defective MT may, in the first instance, remedy the defect. MT may make at least two attempts to remedy. MT will, at its option, refund the purchase price, replace the equipment, or correct the defects by furnishing replacement parts and labor free of charge. If MT cannot remedy the defect, Buyer may withdraw from the contract or reduce the purchase price and demand damages. Buyer's right to remedy a defect on its own (Selbstvornahme) is excluded. Claims for damages are governed by section 18.
Buyer is only entitled to remedy under the statutory warranty if it provides prompt written notification to MT, not later than ten (10) business days from the day on which Buyer knew, or reasonably should have known, of the defect, and is further subject to the following general conditions: (i) consumables, accessories, normal wear and tear, wear parts, and perishables are expressly excluded. (ii) If Buyer requests warranty work during non-standard work times. Buyer will be charged for premium time. (iii) Buyer will be charged for additional costs and expenses MT incurs when the warranted products were relocated from the original place of fulfillment without MT's express written consent. (iv) The warranty does not apply where MT's equipment and/or software has been subjected to: accident, alteration, misuse, abuse, failure by Buyer to ensure proper storage, operation and/or maintenance, installation or servicing by personnel MT doesn't authorize, the addition or supply of equipment or software not approved for incorporation into MT equipment or software, environmental or operational conditions, or software or interfacing Buyer or a third party provide and any other causes MT is not responsible for, unless Buyer proves these actions are not related to the defect. (v) MT does not warrant the calibration of any equipment. MT does, however, warrant its equipment to be capable of being adjusted to meet MT's printed specifications, if any, for accuracy for the period of warranty above stated when properly installed and used. (vi) If MT repairs equipment, such repair work will not extend existing nor generate new warranty coverage for the equipment as a whole or for those parts not repaired or replaced by MT. Unless Buyer gives MT written notice in advance, and MT agrees its warranty still applies, all warranties are void if product is moved outside the country MT delivered it to.
D. METHODS OF CORRECTION OF DEFECTS DURING WARRANTY – MT may attempt to diagnose and resolve defects over the telephone or electronically. Certain equipment contains remote support capabilities for direct problem reporting, remote problem determination, and resolution. When Buyer contacts MT for warranty work, Buyer must follow the problem determination, resolution, and procedure that MT specifies. MT may require return of the part or equipment to its depot for service or to assist in problem determination. If MT determines on-site work is required, a service technician will be scheduled. If Buyer gives MT notice of a defect and requests on-site work when the defect could have been remedied remotely, or if MT responds to Buyer's notice of defect and no defect is found for which MT is liable, MT is entitled to compensation for any work performed and costs it incurred as a result of Buyer's request. Failure to install and use available remote connectivity tools and equipment for direct problem reporting, remote problem determination, and resolution may result in increased response-time and additional costs to Buyer.
12. INDEMNITY – If MT is obligated to settle damage caused to third parties, Buyer must grant MT the sole and exclusive right to manage the defense of any claim related to it, and MT is authorized to settle or compromise such claims. At MT's request, Buyer must cooperate in the defense of all claims and shall not unreasonably withhold consent to any action or statement to the extent MT requests it.
13. PATENT INFRINGEMENT – MT will defend any suit brought against Buyer if it is based on a valid claim that equipment or software of MT's design that Buyer purchased under this contract, or any part thereof, constitutes an infringement of any applicable patent. MT's obligation arises only if: (a) Buyer promptly notifies MT of the claim, in writing, and gives MT the authority, information, and assistance necessary to defend the claim; and (b) the alleged infringement is not the result of a design or other special requirement specified by Buyer, or the result of the application or the use to which Buyer or others put the equipment or software. MT will pay all damages and costs finally awarded against Buyer only if MT has the exclusive right to defend, settle, or compromise the suit and Buyer takes no action that damages MT's ability to conduct an effective defense, settlement, or compromise. Upon receiving notice from Buyer of an allegation that equipment, software, or a part infringes any patent, MT may, at its expense and option, either: (i) obtain for Buyer the right to continue using such equipment, software, or part; (ii) replace the equipment, software, or part with non-infringing equipment, software, or part; (iii) modify the equipment, software, or part so that it becomes non infringing; or (iv) remove the equipment, software, or part and refund the purchase price and all related transportation and installation costs. This is MT's entire liability to Buyer for patent infringement.
14. REGULATORY LAWS AND OR STANDARDS – MT behaves in accordance with relevant laws. MT also takes reasonable steps to keep its equipment compliant with standards and regulations that may apply to Buyer's use of MT's products. However, MT's equipment is utilized in many regulated applications and from time to time applicable standards and regulations are in conflict with each other. MT makes no promise or representation that its equipment will conform to any laws, regulations, codes, or standards, except as explicitly specified and agreed upon in writing by an authorized officer. Buyer is responsible for the correct installation, operation, and calibration of the equipment in compliance with all applicable laws and regulations.
15. PRODUCT MANUALS – It is essential for Buyer to follow the installation information, product, and system manuals, operating and safety instructions, and other documentation and specifications MT provides with the equipment; MT disclaims any liability, including warranty liability, if Buyer does not.
16. INTELLECTUAL PROPERTY – Unless MT expressly agrees in a writing to the contrary, MT does not transfer to Buyer any right of ownership in any patents, copyrights, trademarks, technologies, designs, specifications, drawings, or other intellectual property relating to the equipment, software, and/or services. Except as otherwise provided in an applicable EULA, the software license rights granted are non-exclusive, non-sublicensable, non-transferable, and limited to use for agreed purposes only.
17. SOFTWARE SERVICES LIABILITY LIMITATION – Unless agreed otherwise in writing, all software services and software specifically developed, amended, or customized for Buyer are provided under a service agreement (Dienstvertrag). MT provides no warranty for the functionality or fitness for purpose of such software. The foregoing also applies to any new versions, updates, upgrades, and software patches MT may deliver in the future.
18. LIMITATION OF LIABILITY – Regardless of legal reason, MT will be liable without limitation for its deliberate fault and gross negligence and for injuries to life, limb, and health. In the case of an ordinarily negligent breach of a material contractual duty (a contractual duty, whose fulfillment is necessary to achieve the objective of the contract and on which a contracting party regularly does and may rely) MT's liability will be limited to the foreseeable loss in accordance with standard contract conditions. In other respects, MT's liability will be excluded. These limitations on liability will not apply to the extent that MT has maliciously concealed a defect or has given a guarantee for the respective characteristics of the goods. The same provision will apply for claims by Buyer based on the Product Liability Law. The personal liability of MT's legal representatives and vicarious agents, if it is incurred, will be limited like MT's own liability in accordance with the above provisions.
Buyer may not transfer, assign, or lease the equipment sold or software MT licensed to it to any third party without first securing from them the protection afforded to MT in this section.
19. NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE – Except for fraudulent misrepresentations, MT is not responsible for any information, assistance, or advice given to Buyer if such information, assistance, or advice was not required by this contract.
20. INSURANCE – Upon request, MT will provide reasonable evidence of insurance showing its standard coverage and limits or relevant sublimits. Buyer agrees to keep such information strictly confidential. MT does not provide third parties direct access to its insurance or give additional rights to its insurance, such as naming additional insured parties.
21. FORCE MAJEURE – Except for payments owed by Buyer, the period for performance of this contract will be reasonably extended if a party defaults or is delayed in performing their obligations under this contract, for reasons beyond their reasonable control. Strikes, insurrection, acts of God, war, terrorist activities, emergencies, shortages or unavailability of materials, weather, change in law, and other similar causes are among the reasons, but are not the only reasons, that are beyond a party's reasonable control.
22. EXPORT CONTROL – Buyer acknowledges that the equipment or software may include technologies and software that are subject to export control regulations in Europe, the United States of America, or other countries in which the equipment or software is delivered or used. Buyer is solely responsible for complying with these restrictions if exports or re-exports the equipment or software. Buyer agrees to indemnify and hold MT harmless from any violation of export restrictions by Buyer or Buyer's employees, consultants, agents, or customers cause.
In particular, (1) Buyer is contractually prohibited from reselling, re-exporting, supplying or otherwise passing on any MT products subject to Art. 12g Regulation (EU) 833/2014 or Art. 8g Regulation (EC) 765/2006, as amended from time to time, to persons in Russia or Belarus or for use in Russia or Belarus; (2) Buyer shall undertake its best efforts to ensure that the purpose of sub-section 22(1) is not frustrated by any third parties further down the commercial chain, including by possible resellers; (3) Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of sub-section 22(1); (4) If Buyer at least negligently breaches sub-section 22(1) or 22(2) of these terms, this shall entitle MT to immediately cease further deliveries to Buyer and to terminate this contract and any contracts concluded under these terms at any time, insofar as these have not yet been fully executed. In this case, no prior warning is required. The statutory right of both parties to terminate this contract at any time for cause shall remain unaffected; (5) Buyer shall immediately inform MT about any problems in the application of sub-sections 22(1), 22(2) or 22(3), including any relevant third-party activities that could frustrate the purpose of sub-section 22(1). Buyer shall provide MT with information on compliance with the obligations under sub-sections 22(1), 22(2) or 22(3) within two weeks of informally requesting such information.
23. INTERPRETATION – If any of these terms and conditions conflicts with or is invalid under applicable law, these terms and conditions will be read as if such term or provision was not included. The invalid, illegal, or unenforceable provision will be deemed automatically modified and, as so modified, included in these terms and conditions. Such modifications will be made to the minimum extent necessary to make the provision valid, legal, and enforceable. MT's waiver or excuse of any noncompliance with these terms and conditions does not constitute a waiver or excuse of any prior or subsequent noncompliance.
24. GOVERNING LAW AND PLACE OF JURISDICTION – The performance of the parties to this contract, and the relationship between the parties, is subject to the applicable laws of the country where the Mettler-Toledo office identified on the MT order documents is located; if the Mettler-Toledo office identified on the MT order documents is located in the United States of America, the laws of the State of Delaware apply. The exclusive venue for claims arising under this contract is the court with competent jurisdiction nearest to the Mettler-Toledo office identified on the MT order documents; if the Mettler-Toledo office identified on the MT order documents is located in the United States of America, the courts of the State of Delaware are the exclusive venue. However, MT reserves the right to initiate court proceedings against Buyer at any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.
25. WEEE – When required by applicable law, MT will dispose of electrical and electronic equipment waste (WEEE) at Buyer's costs.
26. TRACEABILITY – Buyer acknowledges that MT is entitled to retrace or recall equipment or take other corrective actions to the equipment. Buyer will actively support MT when this need arises. If Buyer resells equipment to a third party, it will be considered the distributor of the equipment under applicable laws and must assume all obligations relating thereto, including but not limited to the following: (i) keep all documents and information necessary to retrace or recall equipment sold to third parties for a minimum of 10 years; (ii) immediately inform MT of any complaints or adverse incidents related to the equipment, and promptly comply with all directions MT gives regarding the investigation or handling of the matter; and (iii) comply with all applicable storage and transportation duties.
27. PERSONAL DATA AND OTHER INFORMATION – Buyer agrees MT is entitled to use, process, and store, and allow a third party to use, process, and store on MT's behalf, any data MT obtains under this contract, in accordance with relevant laws. Unless specifically agreed in the MT order documents, our sales and services to Buyer do not involve any processing by MT of personal data for or on behalf of Buyer. In the framework of our relationships with you, we may process limited personal data of some of your employees or contractors which we use in order to respond to your enquiries or requests, and to execute our contracts with you (e.g. to process & execute orders, process payments, arrange shipments and deliveries, and to provide repairs and support services). MT will use the contact details obtained from you in the context of your purchase of a product or a service for direct marketing of similar products or services. You may at any time request not to receive marketing communications by contacting us at www.mt.com/contact. For more information, please see our Privacy Policy at www.mt.com/privacypolicy.
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