Standard Terms and Conditions of Sale and Delivery of Grupa Azoty ATT Polymers GmbH

Transcription

1 Standard Terms and Conditions of Sale and Delivery of Grupa Azoty ATT Polymers GmbH 1 Application 1. All deliveries of goods by Grupa Azoty ATT Polymers GmbH (Supplier) to their customers (Customers) are made strictly on the basis of these Standard Terms and Conditions of Sale and Delivery (Terms of Sale). They will become integral part of the sale and purchase contracts with the Customer (Contract). These Terms of Sale also apply to all future deliveries, services or offers to the Customer, even if they are not agreed again separately. Any variation to these Terms shall require the Supplier's express consent, even if the Supplier makes unreserved deliveries to the Customer despite the Supplier's awareness of the Customer's terms and conditions. (2) Terms and conditions of the Customer or third parties shall not apply, even if the Supplier does not reject them in the individual case. Even if the Supplier makes reference to a letter containing or referring to terms and conditions of the Customer or a third party, this shall not be construed as implying the Supplier's consent to the application of such terms and conditions. (3) These Terms of Sale apply exclusively to entrepreneurs as defined and referred to in sections 310 (1) and 14 of the German Civil Code (BGB), to legal entities under public law and special funds under public law. 2 Contract, reservation of right to cancellation (1) All offers made by the Supplier are subject to confirmation and non-binding, unless they are explicitly marked as binding or include a certain acceptance period. The Supplier's offers shall only be deemed to be invitations to the Customer to make an offer to the Supplier. The Supplier can accpet orders within fourteen (14) days from receipt. The Contract is concluded by the Customer's placement of an order (offer) and the Supplier's subsequent acceptance. The Supplier will accept orders in writing or by shipment of the ordered goods. (2) If instalment deliveries are agreed with the Customer or the Supplier has the right to make instalment deliveries, each instalment shall be deemed to be a separate transaction. Complaints regarding one instalment shall not affect the fulfilment of the remainder of an order. The Supplier will have the right to deliver in instalments if instalments can be used by Customer for the purpose specified in the Contract, if delivery of the remaining goods is ensured and if instalment deliveries do not lead to considerable expenditure or additional costs for the Customer, unless the Supplier agrees to bear such costs. (3) If it becomes apparent for the Supplier, after the Contract is concluded, that the payment of the purchase price is jeopardised by the Customer's inability to perform, for instance by filing an application for the institution of insolvency proceedings, the Supplier will have the right to refuse perfomance and cancel the Contract, with a notice period if required, in accordance with the law (section 321 of the German Civil Code). (4) The Supplier will also have the right to perform outstanding deliveries or services only against advance payment or a security deposit if the Supplier, after conclusion of the Contract, becomes aware of circumstances that are suited to significantly reduce the Customer's creditworthiness and by which payment of the Supplier's outstanding claims against the Customer under the relevant Contract (including from other individual orders to which the same framework contract applies) is jeopardised. 3 Agreed specifications (1) Only the specifications contained in the Supplier's product descriptions shall be deemed agreed. Information given by the Supplier regarding the goods to be supplied

2 2/5 or services to be performed (such as weights, functional values, technical and chemical data) and images of the same (such as drawings and pictures) are only approximate and shall not be deemed warranties of specifications. (2) Where the Supplier provides samples or prototypes to the Customer, their specifications shall be binding only if these specifications are explicitly agreed as the specifications of the goods. (3) Information on the goods, especially information on properties and usability, shall be deemed warranties only if agreed as such. 4 Delivery (1) Deliveries are made ex works. (2) Delivery dates are agreed individually with the Customer or notified with the acceptance of the order. Deadlines and dates for deliveries and services given by the Supplier shall only be approximate, unless a fixed deadline or date has explicitly been guaranteed or agreed on. (3) The fulfilment of the Contract will be conditional on timely deliveries by the Supplier's suppliers if a matching cover transaction has been entered into by the Supplier and the delay was caused by neither the Supplier's fault nor the fault of the Supplier's supplier. (4) The delivery is deemed made in time if the Goods have left the factory within the agreed timeframe for delivery. Insofar as shipment is agreed on, delivery deadlines and dates shall refer to the date of handover to the forwarder, carrier or other third party instructed to carry out the shipping. If despatch is delayed for reasons for which the Supplier is not responsible, the delivery timeframe shall be deemed met if readiness for despatch is notified within the agreed timeframe. Variation of order quantities up to plus/minus 10% shall be deemed acceptable. (5) Notwithstanding the Supplier's rights arising from the Customer's default, the Supplier may demand an extension of delivery dates and service deadlines or a postponement of delivery and service dates corresponding to the period during which the Customer does not fulfil the Customer's contractual obligations towards the Supplier. (6) The Supplier shall not be held liable if delivery is impossible or late due to force majeure events or other circumstances for which the Supplier is not responsible and which were not foreseeable at the time the Contract was concluded, such as war, civil commotions, natural disasters, also strikes and lockouts, business disruptions of any kind, machine failures, shortage of labour, power or raw materials, traffic disruptions, government measures, non-delivery, wrong or late delivery on the part of the Supplier's suppliers or other force majeure events (impossibility of performance). If the performance is only temporarily impossible, delivery and service deadlines shall be extended and the delivery and service dates shall be postponed for the duration of the hindrance plus a reasonable start-up period. Continued impossibility for more than three months will entitle the Supplier to cancel the Contract in whole or in part. 5 Shipment (1) Unless agreed otherwise, the Supplier will choose the route and type of shipment and the packaging at the Supplier's discretion. The Supplier will accommodate for requests of the Customer where this is possible. Any additional costs so caused shall be borne by the Customer. (2) The risk of accidental destruction and deterioration of the goods shall pass to the Customer no later than on hand-over of the goods; if the goods are shipped, the risk shall pass to the Buyer on hand-over of the Goods to the forwarder, carrier or any other third party instructed to carry out the shipping (the relevant point in time being the beginning of the loading process). This also applies to instalment deliveries. If shipment or handover are delayed due to circumstances caused by the Customer, the risk shall pass to the Customer on the day on which readiness for despatch has been notified. Storage costs incurred after the risk has passed to the Customer shall be borne by the Customer. If the goods are stored by the Supplier, the storage costs will amount to 2% per expired week of the amount invoiced for the goods stored.

3 3/5 (3) Goods to be shipped will be insured by us against theft, breakage, damage in transit, damage caused by fire or by water or other insurable risks only at the express request of the Customer and at the Customer's expense. 6 Prices, payment terms (1) The prices charged by the Supplier for the goods will be in line with the current pricing at the time the Contract is entered into. Unless agreed otherwise, prices are quoted in EURO 'ex works', exclusive of shipment fees, VAT, freight, duties, costs incurred by sideagreements on import and exclusive of packaging, which will be charged extra. (2) Invoices are payable net 30 days from delivery. The payment is deemed made at the time the monies are credited to the Supplier's bank account. Subject to their receipt, bills of exchange, promissory notes and cheques are credited, after deduction of expenses, for value on the date on which the money is freely available to the Supplier. Bills of exchange and promissory notes will only be accepted after prior agreement, expenses, taxes, costs and commissions shall be borne by the Customer. Acceptance of bills of exchange, promissory notes and cheques shall not lead to a change of the place of payment. If the Customer defaults on a payment, all invoices outstanding at the time of the default event shall become payable net immediately. If the Customer defaults on a payment, the Supplier shall have the right to demand default interest of 9% p.a. above the then current base rate of the German Federal Bank (Deutsche Bundesbank). In addition, the Customer shall pay a default fee of EUR 40. This shall be without prejudice to any claims for further damage (default fee deducted). (3) The Supplier's pricing is based on costs at the time the order is placed. If costs change significantly after the placement of the order, specifically the costs of production and operating materials, energy, wages and salaries, the Supplier shall have the right to change the prices accordingly. (4) The Customer shall be entitled to set-off only if the Buyer's counterclaim is uncontested or finally established in law. The Buyer shall be entitled to make retentions only if the Customer's counterclaim is based on the same contract and uncontested or finally established in law. 7 Retention of Title (1) We shall remain the owner of the delivered goods until they have been paid in full. If the Customer has paid the purchase price for the delivered goods and there are other outstanding amounts owed by the Customer under any other contract with us, we further reserve property in and title to the delivered goods until all amounts owed to us have been paid in full, including any negative current account balance (Retained Goods). (2) The Customer will store the Retained Goods free of charge for us. (3) The Customer is not entitled to pledge or assign the goods as security until all our claims from the purchase contract and the business relationship have been paid in full. The Customer shall promptly inform us of any access by third parties to any goods or any assigned receivables. (4) If the Customer processes Retained Goods, it shall be deemed agreed that they are processed on behalf and for account of the Supplier as the manufacturer and, if the new products are made from materials of several owners or the value of the new product is higher than the value of the Retained Goods, the Supplier will acquire co-ownership of the new product in proportion of the value of the Retained Goods to the value of the other goods at the time they were processed (prorata ownership). If the Supplier does not acquire any such ownership, the Customer already now assigns the Customer's future ownership or co-ownership (in the above proportion) of the new product as security to the Supplier. (5) If the Retained Goods are inseparably linked or intermixed with other goods not pertaining to the Supplier, the Supplier shall acquire coownership of the new product in proportion of the value of the Retained Goods (invoiced price inclusive of VAT) to the value of the other goods at the time they were linked or intermixed. Should the Retained Goods be

4 4/5 linked or intermixed in such a way that the Customer's goods are to be regarded as the main goods, the Supplier and the Customer agree already now that the Customer will assign to the Supplier pro-rata ownership. The Supplier accepts this assignment. The Customer shall preserve such sole ownership or co-ownership for us. (6) The Customer may use the goods delivered by the Supplier in the ordinary course of business if the Customer meets the obligations from the business relationship on time. At the time of the conclusion of the Contract, the Customer assigns to the Supplier all claims from the sale of goods to which the Supplier has retained title. The same shall apply to other claims replacing the Retained Goods or otherwise arising in connection with the Retained Goods, such as insurance claims or claims in tort in the event of damage or destruction. At the time of the conclusion of the Contract, the Customer assigns to the Supplier acknowledged current account receivables from the Customer's customers in the amount of the Supplier's claims against the Customer. (7) Upon request, the Customer shall give the Supplier all necessary information on the amount of goods in our ownership and the receivables assigned to the Supplier. Upon request of the Supplier, the Buyer shall also label the goods in our ownership accordingly and inform the Customer's customers of the assignment. (8) If the Customer defaults on payment, the Supplier will have the right to rescind the Contract in accordance with the law and/or request immediate temporary return, at the Customers's expense, of the goods in our ownership. Such request shall not be construed as a declaration of rescission; rather, the Supplier shall be entitled to request return of the goods only and reserve the right to rescind the Contract. (9) If the value of the securities exceeds the Supplier's claims by more than 10%, the Supplier will be obliged to release the securities upon request of the Buyer in so far. The Supplier shall select the securities to be released at the Supplier's best judgment. 8 Warranty (1) The Customer shall check the Goods immediately after receipt for quantity, quality and transport damage. The Customer shall make complaints based on transport damage directly to the carrier, with a copy to us, immedidately after delivery and together with the carrier prepare a damage report. (2) The Goods shall be deemed accepted by the Customer with all their apparent defects, including wrong or short delivery not related to transportation, and any other defects that could have been detected during an immediate throrough inspection if the Customer fails to notify the Supplier in writing of such defects within seven (7) days from receipt of the goods, detailing the reported defects. In respect of other defects, the Goods shall be deemed accepted by the Customer if no defect complaint has been received by the Supplier within seven working days from the date at which the defect became obvious; if the defect could have been discovered earlier during normal use of the goods, the defect notification period shall commence at such date. Upon request of the Supplier, the goods complained about shall be returned carriage paid to the Supplier. If the defect complaint is justified, the Supplier shall reimburse the Customer for the cheapest shipment; this will not apply if the costs increase because the delivered goods are located at a place other than the place of their intended use. In the absence of a defect report as referred to above, the Supplier shall not be liable for defects not reported. (3) If goods are defective, the Customer will have the statutory warranty rights as provided below: (a) The Supplier will first have the right, in its sole discretion, to repair the defect or deliver to the Customer goods that are free from defects (subsequent performance). (b) The Supplier reserves the right to attempt subsequent perfomance twice. If such subsequent performance fails or cannot reasonable be expected to be accepted by the Customer, the Customer may either cancel the Contract or demand a reduction of the purchase price.

5 5/5 (c) Claims for damages and for reimbursement of futile expenditure shall be governed by article 9 below. (4) The Customer's warranty rights will become time-barred after one year from the date on which the goods are delivered. In the following cases, the rights will not become time-barred after one year but in acordance with the statute of limitations: (a) liablitity for wilful acts; (b) deliberate concealing of a defect; (c) recourse claims against the supplier (section 479 of the German Civil Code). (5) No warranty is provided if the Customer modifies the delivered goods or has the goods modified by third parties without the Supplier's consent, thus making a repair of the defect impossible or rendering it unreasonably difficult. The Customer shall in any case bear the additional costs for the repair of defects caused by such modification. 9 Liability (1) The Supplier's liability for damages or reimbursement of costs, for whatever legal reason, in particular impossibility, default, defective or wrong delivery, breach of Contract, breach of duties during Contract negotiations and tort shall be limited in accordance with article 9 hereof if such liability depends on proof of fault (claims for damages). (2) The Supplier shall no be held liable for simple negligence on the part of the Supplier's corporate bodies, legal representatives, employees or other persons employed in the performance of the Supplier's obligations, unless a material contractual obligation is breached, i.e. an obligation the fulfilment of which is crucial for the proper fulfilment of the Contract and which a contractual partner may normally rely on. (4) The above exclusions and limitations of liability shall apply to the same extent for the benefit of the corporate bodies, legal representatives, employees and other persons employed by the Supplier in the performance of the Supplier's obligations. (5) The above shall be without prejudice to the Supplier's liability for culpable damage to life, limb or health, and to the liability under the German Product Liability Act (Produkthaftungsgesetz) and to events for which we have assumed a warranty for the quality of the goods. Insofar, the limitations of this article 9 do not apply. (6) Claims for damages that a Customer may make under this article 9 will become timebarred after twelve months from the delivery date. Claims for damages based on damage to life, limb, health or freedom and claims for damages under the German Product Liability Act shall become statute-barred. 10 Final Terms (1) Place of performance shall be the place of the delivering plant. (2) The courts of Cottbus shall have exclusive jurisdiction over all disputes resulting from the contractual relationship with the Customer, including actions on bills of exchange, promissory notes and cheques. The Supplier reserves the right, however, to alternatively choose as venue the place of the Customer's registered office. (3) The contracts concluded between us and the Customer are governed by the laws of the Federal Republic of Germany without regard to the United Nations Convention on Contracts for the International Sale of Goods (CISG). (3) If the Supplier will be held liable for damages on the merits under article 9 (2) hereof, such liability shall be limited to compensation of the foreseeable, typical damage.