General Terms and Conditions of Sale and Delivery of ACTEGA Colorchemie Polska sp. z o.o. 1. GENERAL PROVISIONS 1.1 These General Terms and Conditions of Sale and Delivery (hereinafter referred to as OWU ) of ACTEGA Colorchemie Polska sp. z o.o. (hereinafter referred to as ACP ) apply solely in relation to the buyers of products and services offered by ACP that are enterprises (hereinafter referred to as Clients ). 1.2 If these OWU have been applied to a transaction with a Client, they shall continue to apply to all further commercial contacts between the Client and ACP, unless agreed otherwise in writing. 1.3 Solely these OWU shall apply. No general contractual terms and conditions of the Client shall apply that may be contradictory or different from these OWU unless approved by ACP in writing. 2. OFFERS, ORDERS 2.1 ACP s are not binding upon ACP unless explicitly designated by ACP as binding. Such offers shall constitute only as invitations to Clients to place a binding order on that basis. A contract become effective only when ACP confirms in writing (also by fax or e-mail) acceptance of the Client's order or delivers goods to the Client. The content of the goods delivery contract shall rely on the order confirmation made by ACP. In the case of immediate delivery of goods, order confirmation by ACP may be replaced with an invoice issued by ACP. 2.2 ACP guarantees the properties of the delivered products specified as to its type only when ACP has guaranteed specific properties in writing. 2.3 ACP is not obliged to confirm receipt of an order sent by the Client by e-mail. Incoming e-mail messages received by ACP on working days between 00:00 hours and 16:00 hours shall be deemed as received at 16:00 hours unless an earlier readout of such message is documented. Incoming e-mail messages received by ACP on between 16:00 hours and 23:59 hours shall be deemed as received on the following working day at 16:00 hours unless an earlier readout of such message is documented. 2.4 At delivery of goods manufactured in accordance with the Client s design, ACP reserves the right to make small differences in quality, colour and finish resulting from the manufacturing technology or product development. Such differences shall not be treated as defects. 2.5 The date in ACP s product information cards and in other information materials shall be treated as approximate average values. They become binding in delivery contracts only when this is explicitly confirmed in writing by ACP. Information on the possibilities of processing and application of ACP products, technical advice and other details are not binding and ACP shall provide such information without any liability on its part unless explicitly agreed otherwise. 3. PAYMENT TERMS, SECURITY 3.1 The prices are fixed and net of VAT (net prices). Unless agreed otherwise explicitly in writing, payments shall be made to ACP s bank account, designated in the invoice, within the time agreed between ACP and the Client. Bank fees shall be paid by the Client. If goods are exported, any costs related to payment shall be covered by the Client if originating in its country. 3.2 Acceptance by ACP of an order and performance of deliveries may be made subject to the Client providing a security or making a down payment. ACP may also demand payment at delivery. 1
3.3 If after conclusion of a contract, the Client s economic situation is materially deteriorated either as a result of the Client filing a bankruptcy motion, bankruptcy proceedings are initiated against the Client, the Clients liquidation is opened or an arrest warrant is issued against the Client or payments are suspended not related to the suspension right or other rights, or otherwise, then apart from the rights of ACP as provided in clause 3.2, ACP shall be entitled to terminate the contract with immediate effect. 3.4 Client s right to suspend or set off payments shall apply solely to such mutual claims that are undisputed or lawfully confirmed unless such counter claim results from breach by ACP of material contractual obligations (pursuant to clause 8.1). The Client may exercise the right to withhold only when its claims against ACP result from the same contractual relation. 4. DELIVERY AND SHIPPING 4.1 In order to be binding upon ACP, delivery time shall be agreed explicitly in writing. With respect to non-binding or approximate delivery times (determined with such phrase as about, more of less, etc.), ACP shall take all reasonable efforts to keep such delivery times. Unilateral guidelines of the Client shall not be binding upon ACP unless approved explicitly by ACP in writing. Transactions where time is of essence shall be clearly identified as such and confirmed by ACP in writing. 4.2 ACP reserves the right to deliver quantities of each product larger by maximum 10% than ordered which may be due to technological processes and to record such surplus in the invoice. 4.3 When for reasons for which ACP is not responsible, ACP fails to receive deliveries of goods or services from ACP's counterparties or when such goods or services are provided incorrectly or with a delay, or in the case of force majeure, ACP shall notify the Client thereof in writing, by fax or e-mail with appropriate advance. In this situation, ACP shall be entitled to postpone the delivery time by the period of disturbance or cancel the unperformed part of the contract in whole or in part as long as ACP has notified the Client thereof and is not exposed to the nondelivery risk. Force majeure shall be understood for instance as: strike, lockout, interference by public authorities, unavailability of energy or raw materials, delays in transport, disturbance in the operation of ACP s production facilities resulting for instance from: fire, flood or damage to machines and all other disturbances for which ACP is not liable. If a delivery time has been agreed and for reasons specified above the agreed delivery time is delayed, after the expiry of such delivery time the Client shall be entitled to terminate the contract to the extent not performed by ACP if for objective reasons the Client may not be expected to continue being bound with the contract with ACP. In such situation, the Client shall not be entitled to any further claims. 4.4 Any claims for damages against ACP for delayed delivery shall be limited to maximum 0.5% of the net sales price of undelivered goods per each full week of delay, however up to maximum 5% of the net sales price. If the delay results from wilful action or gross negligence or a breach of material contractual duty by ACP, it shall be subject to statutory liability principles the amount of which in the case of a breach by ACP of a material contractual obligation without its fault shall always be limited to the amount of foreseeable damage. 4.5 If as a result of delayed delivery, the Client designates a reasonable additional delivery time to ACP which expires without effect, the Client may terminate the contract; any claims for damages due to non-performance of the contract by ACP in the amount of foreseeable damage shall be held by the Client only when such non-performance was due to wilful action or gross negligence or a breach of a material contractual obligation by ACP; in other instances, liability for damages by ACP shall be limited to foreseeable typical damage, however up to maximum four times the value of the order received from the Client. 4.6 The restriction to liability as per clause 4.3 and 4.4 shall not apply if the contract was covering a term transaction; the same applies when due to a delay by ACP, the Client shall be entitled to terminate the contract. 4.7 ACP shall not be deemed to be in delay as long as the Client is in delay in complying with its own obligations to ACP, also under other contracts. 2
4.8 Unless agreed otherwise, loading and dispatch shall be performed without insurance at the Client s risk from ACP s facilities or shipping warehouse. 4.9 ACP shall select the route and means of transportation. ACP shall take all reasonable efforts to comply with the Client s wishes in selecting the manner and means of shipping; any resultant expenses also when a delivery without costs of transport is agreed shall be charged to the Client. 5. PRICES 5.1 Orders placed with ACP shall be executed on the basis of pricelists valid on delivery dates. The prices in the pricelists shall be increased by VAT at the applicable rates. Unless agreed otherwise, delivery prices shall be understood for deliveries in disposable packaging (buckets and jerrycans) as a net price per 1 kilogram, at the expense of ACP to the place of delivery in Poland/at Polish border without customs duties if the place of delivery is outside of Poland. Should the Client request express or air delivery, the Client shall be charged with additional costs. 5.2 In the case of an increase in the prices of raw materials or costs of production, taxes, salaries (including overheads) and the costs of energy and environmental fees, ACP shall be entitled to increase the prices adequately if the period between the contract date and the delivery exceeds two months. Any increase as specified above shall not be applied if with reference to the overall costs of the delivery, an increase of any of the above costs is compensated with a reduction of other costs. 6. RETENTION OF TITLE 6.1 ACP reserves the title to all delivered goods (hereinafter jointly referred to as the reserved goods ) until full payment to ACP of all monies due under commercial contracts with the Client, including any future claims under future contracts. 6.2 The Client shall be obliged to insure such reserved goods, primarily against fire and theft. Any claims under such insurance for damages in such reserved goods are being assigned herewith to ACP in the value of such reserved goods. 6.3 The Client may resell the delivered goods within its normal business operations. However, such goods may not be disposed otherwise the goods may not be pledged or no security interest may be established on the goods. If at the sale of the goods by the Client to a third party, the Client fails to make immediate payment for such reserved goods, the Client shall be obliged to make such sales solely subject to reservation of the title. The Client s right to resell expires in each case the Client suspends its payments of is late with payments to ACP. 6.4 The Client assigns to ACP all receivables, including any security interest and related rights that it may acquire in from a final buyer or a third party due to or as a result of sale of reserved goods. The Client may not enter into any agreements with its buyers that may in any matter infringe upon or restrict the rights of ACP or that may cancel the assignment of future receivables. When the Client sells reserved goods jointly with other goods, the Client s claims against such buyer of the goods shall be deemed to have been assigned to ACP in the amount equal to the price agreed between ACP and the Client if on the basis of the relevant invoices it is impossible to determine the amounts related to specific goods. 6.5 The Client shall be entitled to collect the receivables assigned to ACP until such assignment may be revoked. When so requested by ACP, the Client shall be obliged to provide ACP with the required information and documents related to the receivables assigned to ACP and unless ACP does it on its own the Client shall forthwith notify its buyers of the assignment n favour of ACP. 6.6 If the Client includes its receivables for sales of reserved goods to its settlement agreement with its buyers in a current account, the Client assigns herewith to ACP the final balance in its favour equivalent to the amount of the total amount of receivables for reserved goods included in its settlement agreement with its buyers in a current account. 3
6.7 The Client shall be obliged ACP forthwith if it has assigned to any third persons any receivables from the sale of goods delivered or to be delivered by ACP, in particular in the form of complete or incomplete factoring, or when it has entered into other agreements pursuant to which any existing or future security interest in favour of ACP may become restricted. In the case of incomplete factoring, ACP may terminate the contract and demand return of the goods that have already been delivered. The above shall further apply to complete factoring, if pursuant to the contract with the factor the Client may not freely dispose of the purchase price of such receivables. 6.8 If the Client fails to comply with its contractual obligations, primarily if it is late with payments, ACP shall be entitled without prior termination notice to repossess all reserved goods and the Client shall be obliged to hand them over forthwith. To review the condition of the goods delivered by ACP, representatives of ACP may at any time enter the Client s premises during normal working hours. Repossession of reserved goods shall be equivalent to terminating the contract by ACP only when ACP states so explicitly in writing or when so required by the applicable legal regulations. The Client shall notify ACP forthwith in writing about any interference by third parties to the served goods or any receivables assigned in favour of ACP. 6.9 If the value of security interest held by ACP in accordance with the above provisions is in excess of the secured receivables by over 10 %, then upon a request of the Client ACP shall be obliged to release an excess of security of its choice. 6.10 In the case of processing or irreversible combination of any reserved goods with other goods not owned by ACP, ACP shall acquire co-ownership of the new product in proportion to the invoiced value of ACP s goods to the invoiced value of such processed or combined products. If ACP s goods are combined into one uniform product that is to be perceived as a primary product, the Client assigns herewith the co-ownership of the new product to ACP. The Client shall maintain such ownership or co-ownership free of charge for ACP. Any resultant coownership rights shall be treated as reserved goods. Upon ACP s request, the Client shall at any time provide ACP with information as may be required to claim ownership or co-ownership rights by ACP. 6.11 From the moment of payment suspension by the Client or filing a bankruptcy motion the Client, it shall no longer be entitled to sell, process, combine or mix reserved goods. In that situation, the Client shall be obliged to store separately and mark the reserved goods and to keep on trust for ACP any amounts that it may receive and that are due to ACP as the assigned receivables for any delivered goods. 6.12 If this agreed reservation of title is not recognised or when it is recognised solely subject to complying with other legal regulations of the country of delivery, the Client shall call ACP s attention thereto latest at conclusion of the contract. If the law of the country does not permit reservation of title or extended reservation of title while permitting ACP to reserve other rights to the delivery that will serve as security in a similar way, ACP declares herewith that it shall resort to such rights. The Client shall collaborate in performing any required action in relation to exercising such rights (primarily to comply with formal requirements). 7. STATUTORY WARRANTY, REPORTING OF DEFECTS 7.1 The Buyer shall forthwith inspect the quality and properties of the delivered goods as far as possible by test processing and shall forthwith within maximum 14 days from delivery report any defects; otherwise, the goods shall be deemed as accepted. Any defects that may not have been detected at such inspection, shall be reported to ACP as soon as detected. Complaints shall be made in writing with details of the order as well as invoice and delivery number. Late complaint shall preclude any claims by the Client for incorrect performance of the contract by ACP. Any latent defects shall be reported as soon as detected, latest within the limitation period specified in clause 9.6. Any complaints related to defects shall provide a detailed description of such defects. 4
7.2 Complaints relating to defects as per clause 7.1 shall be made in writing. Complaints without complying with the required form shall preclude claims by the Client related to defects. 7.3 When any processing, combination or mixing of the goods with other goods is commenced, the Client shall be deemed to have accepted that the delivered goods meet the contractual requirements in terms of detected defects. The above applies to onward shipping from the original place of destination. 7.4 With respect to detectable defects, the claimed goods shall remain in the containers in which they were delivered so that ACP could without problems verify the ground for such complaints unless ACP waives this requirement in writing and the Client ensures separate storage of the goods covered with such complaint. 7.5 In case of justified complaints, reported within the prescribed timeframes, ACP at its own option shall remedy the defect free of charge or supply goods without defect (additional delivery). Any return dispatch of goods shall be subject to consent by ACP. The originally delivered goods shall become property of ACP. If during any designated additional timeframe, ACP fails to remedy defects or fails to perform a substitute delivery for the defective goods (ACP shall be entitled to two attempts), if ACP refuses an additional delivery or when ACP is not able to perform such delivery, than the Client in accordance with the law shall be entitled to terminate the contract, reduce the remuneration due to ACP, be refunded expenses or be paid damages within the limits specified in clause 8. The right to terminate the contract may not be exercised when the defect is minor. 7.6 ACP s liability under clause 9 shall remain unaffected. 8. THIRD PARTY RIGHTS 8.1 ACP shall be obliged to deliver goods free from any third party rights or claims resulting from industrial property rights or other intellectual property rights, known to ACP or unknown to ACP as a result of gross negligence as long as such rights or claims result from (1) the law in force in Poland if the Client has its registered office or branch in Poland; or (2) from the law of the country in which the Client has its registered office or branch; or (3) from a third country law only when ACP and the Client agreed explicitly in writing the application of such law or sale of goods in such country. 8.2 If a third party makes justified claims against the Client related to the goods supplied by ACP as per clause 8.1, ACP shall be liable to the Client in the period set in clause 9.6 in accordance with the following: (1) At its own discretion and at its own costs, ACP shall take steps to acquire the right of use of such third party rights or to modify the goods in a way that such third party rights are no longer breached, or to replace the goods. (2) The Client shall be obliged to notify ACP forthwith in writing of any third party claims reported to it, not to accept any claims reported by third parties. If the Client suspends use of the goods in order to reduce damage or for other valid reasons, it shall be obliged to declare to third parties that such suspension of the use of the goods shall in no case be deemed to admitting that the rights of such third parties have been breached. If in connection with the use of goods supplied by ACP, a third party makes claims against the Client for breach of its rights, the Client shall notify ACP forthwith thereof and enable ACP to participate in any subsequent legal dispute. In the conduct of such legal dispute, the Client shall be obliged to support ACP in any respect. The Client shall discontinue any actions that may impair ACP s legal position. 8.3 The obligations of ACP specified in clause 8.1 do not relate to the following cases: (1) when a breach of third party rights is due to the fact that during production of the goods ACP relied on information or other data provided by the Client to ACP, 5
(2) when a breach of third party rights is due to the fact that the Client modified the goods or mixed them or applied them with other products not delivered by ACP. 8.4 ACP s liability under clause 9 remains unaffected. 9. LIABILITY, EXCLUSION AND LIMITATION OF LIABILITY 9.1 ACP shall be liable for wilful or grossly negligent or incorrect performance of the contract. Material contractual terms include such obligations of ACP that protect contractually material legal position of the Client, guaranteed in terms of content and purpose by the contract; other contractual provisions are also deemed material that need to be complied with in order to ensure correct performance of the contract and the compliance of which by ACP is to be rightly expected by the Client. 9.2 If ACP cannot be charged with wilful breach of contractual obligations or when there is no hazard to life, bodily injury or disorder to health or other instances that result in lawful liability, ACP shall be liable solely for typical and foreseeable damage. 9.3 ACP's liability shall be excluded for any indirect damage or for damage resulting from defects unless ACP has acted wilfully or grossly negligent or breached a material contractual liability (as defined in clause 9.1). 9.4 Any liability for damages on the part of ACP is excluded other than provided for in clauses 9.1 9.3. 9.5The exclusion or limitation to ACP s liability under the above clauses 9.1 to 9.4 shall apply also to employees of ACP, persons collaborating with ACP and to ACP s subcontractors. 9.6 Client s rights to pursue claims for damages shall expiry after two years from the due date of payment of the price for the relevant delivered goods. 9. JURISDICTION AND APPLICABLE LAW 9.1 The competent court in Legnica shall be the court proper to resolve any disputes between ACP and the Client. 9.2 This contract is subject to Polish law with the exclusion of the United Nations Convention on the international sale of goods (CISG). 9.3 If any order confirmation by ACP includes an INCOTERMS clause, the relevant clause shall be construed in line with the version of INCOTERMS valid from time to time unless such ACP s order confirmation specifies otherwise. 10. SEVERABILITY CLAUSE If any provision of these OWU is or becomes invalid or ineffective in whole or in part, this shall be without prejudice to the other provisions. Such invalid or ineffective provision shall be replaced with an effective or valid provision, as close to the economic intent as possible to the invalid or ineffective provision. 6