1. Entire agreement
Except as may otherwise be specifically provided for by written agreement accepted by both Parties, the sales order (the “Sales Order”) and these General Terms and Conditions constitute the entire agreement (the Sales Order and these General Terms and Conditions hereinafter referred to together as the “Contract”) between the Parties for the sale and purchase of the product designated in the Sales Order (“Product”).
2. Controlling provisions
These General Terms and Conditions shall apply to all orders between the Parties to the exclusion of any other terms and conditions. Unless expressly agreed to in writing by the Parties, any modification to or anything contrary to or inconsistent with any of these General Terms and Conditions shall be inapplicable and without effect.
The provisions of the United Nations Convention on contracts for the International sale of goods adopted at Vienna, Austria, on 10 April 1980 shall, unless otherwise agreed by the Parties in writing, also be inapplicable.
3. Applicable law
The Contract shall be exclusively governed by and construed in accordance with the laws of the state of Ohio (USA) and only the courts of the State of Ohio (USA) shall have jurisdiction.
4. Delivery and risk of loss
Unless expressly set forth on the Sales Order or otherwise agreed to by the Parties in writing, Product shall be delivered “CPT (named place of destination)”. All terms of shipment shall be interpreted in accordance with the rules set forth in “INCOTERMS 2000 – ICC Official Rules for the Interpretation of Trade Terms”, or a successor publication by the International Chamber of Commerce.
When delivery dates are mentioned, they are estimates only and Seller shall not be liable for reasonable delays.
5. Price and payment
Unless expressly set forth on the Sales Order or otherwise agreed in writing:
a) applicable prices are Seller’s prices in effect at the time of shipment;
b) the terms of payment for all shipments of Product made hereunder will be 30 days from date of shipment.
Buyer hereby grants to Seller a security interest in Product until the purchase price is paid in full.
Seller will be entitled to charge interest on any overdue amounts (as well as on any judgment for the same) at the rate of 1.5% per month (18% per annum), such interest to be calculated from the due date for payment, on a daily basis.
The prices of Products established hereunder are exclusive of any value added tax, goods and services tax, sales and use tax, consumption or harmonized tax and any other similar tax, and, in the event Products have been manufactured in a jurisdiction other than the jurisdiction where the Products are sold or delivered hereunder (which the Buyer acknowledges may be the case), any customs duty, registration tax, import or export tax (including any form of tax penalty for imports), and any other similar duty, tax, charge or fee that may be imposed, claimed or levied by any governmental agency or authority on the Products, their manufacture, sale, import, export or delivery, which taxes, duties and other charges shall be the sole responsibility of and shall be paid by Buyer.
Seller reserves the right to reduce the credit or payment terms set forth herein or to require Buyer to provide security in the form of a letter of credit, guaranty or other security (which security shall be in a form and substance and in an amount acceptable to Seller), at any time, on written notice to Buyer, if Seller determines, in its sole discretion, that any such security is required as a result of any negative change to Buyer’s financial condition, creditworthiness or payment history or if a bank or other financial institution does not, or ceases to, accept the assignment by Seller of any of Buyer’s accounts receivable in relation to Products supplied under the Contract pursuant to factoring or other similar accounts receivable financial arrangements.
Seller warrants to Buyer that, at the time of delivery, it has good title to Product, free and clear of all liens, claims and encumbrances and has full right and authority to transfer such title to Buyer. Seller further warrants that
a) product will conform to the description thereof set forth in the Sales Order or otherwise agree to by the Parties in writing, and;
b) such Product will not be defective in materials or workmanship.
THIS WARRANTY IS IN SUBSTITUTION FOR AND EXCLUDES ALL EXPRESS OR IMPLIED CONDITIONS, WARRANTIES OR LIABILITIES OF ANY KIND RELATING TO PRODUCT SOLD WHETHER AS TO FITNESS FOR USE AND MERCHANTABILITY OR OTHERWISE AND WHETER ARISING UNDER STATUTE OR IN TORT OR BY IMPLCATION OF LAW OR OTHERWISE AND IN PARTICULAR, ALSO EXCLUDES ANY CONDITION, WARRANTY OR GUARANTEE TO THE EFFECT THAT PRODUCT TO BE DELIVERED HEREUNER IS SUITABLE FOR USE UNDER ANY SPECIFIC CONDITIONS OR FOR ANY SPECIFIC PURPOSE ALTHOUGH SUCH CONDITIONS OR SUCH PURPOSE MAY OR OUGHT TO BE KNOWN TO SELLER.
9. Breach of warranty
Buyer shall not have any right to assert any claim against Seller that Product delivered hereunder is defective or not as described on the Sales Order unless Seller is notified of the claim within 60 days from the date of delivery, and then only after Seller has had the opportunity to inspect such material. However, the use or resale by Buyer of Product shall constitute an acceptance thereof.
Should Product be found defective or not as so described, Seller will take back such Product (and the cost of return shipment shall be for Seller’s account) and, at Seller’s option, credit Buyer accordingly, or supply new Product, but shall not be otherwise liable in connection therewith, the foregoing being Buyer’s sole and exclusive remedy.
Every right, exemption from liability and defence of whatever nature to which Seller is entitled hereunder shall extend to protect every employee or agent of Seller.
NEITHER BUYER NOR SELLER SHALL BE LIABLE HEREUNDER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES.
11. End of use responsibility
Buyer warrants and represents that it will transport, store, handle, use and dispose of Product, separately or in conjunction with other products and materials, in a manner that is safe and effective and meets all legal standards, both express and Implied. Buyer will indemnify Seller against all claims, loss, liability and expense (including reasonable attorney’s fees) arising out of breach of Buyer’s warranties set forth in this section 11, except for any portion of damages attributable directly to Seller’s negligence.
12. Intellectual property infringement
a) No license is granted for the use of trademarks or brands under which Product is delivered and these may not be used by Buyer for the products manufactured from the same nor for any other purpose especially advertising purposes, without Seller’s prior written approval.
b) Seller reserves all rights, title, interest and copyright to specimens, illustrations, drawings and other documents as well as tools which include embossing dies, press rollers or permanent moulds, developed by Seller. This applies if Buyer pays a portion of the costs for such articles.
c) Seller will indemnify Buyer against all damages, penalties, costs, and expenses with respect to any suit alleging that the manufacture or sale of Product under the Contract infringes any patent, copyright or trademark, unless Product was manufactured and sold by Seller according to drawings or other specifications of Buyer, in which case Buyer shall indemnify Seller against all damages, penalties, costs, and expenses arising from such a suit.
d) Should Seller manufacture Product from confidential drawings and specifications supplied and Identified as such by Buyer, Seller will maintain the confidentiality of these drawings and specifications and shall not, without the Buyer’s prior written consent, disclose the same to third parties. Seller’s confidentiality obligation under this subsection 12 d) shall remain in force for as long as Seller supplies Product to Buyer and for a period of three years thereafter.
13. Default and remedies
1) The following events shall place either Party to the Contract in default:
a) any breach by Buyer of its payment obligations under the Contract which has not been corrected within five (5) business days from notice to this effect given by Seller;
b) a material breach by a Party with respect to any performance obligation under the Contract (with the exception of any breach of warranty by Seller as set out in section 9 herein), which has not been corrected within ten (10) business days from notice to this effect given by the other Party;
c) the filing by a Party of a petition or other type of commencement procedure or authorisation to do so under any bankruptcy, reorganisation or similar legislation for the protection of creditors, or any such filing or petition directed against a Party;
d) a Party otherwise becomes bankrupt or insolvent
e) a Party becomes unable to pay its debts as they fall due.
A Party shall also be deemed in default if an entity controlling fifty percent (50%) or more of the voting shares in that Party can be considered to be in one of the situations described in subsections 13 (1) c), d), or e).
2) Upon an event of default, the non-defaulting Party shall have the right to, as the case may be:
a) suspend or withhold any future shipments until the event of default has been corrected;
b) terminate the Contract and demand Immediate payment of any amount due thereunder as at the date of termination;
c) set off any amounts or obligations it owes or has toward the defaulting Party with any amounts or obligations the latter owes or has toward the former, in connection with any business dealing between them under the Contract or any other contract. In this paragraph 13 (2) c), the terms “non-defaulting Party” and “defaulting Party” shall include such Party’s Affiliates. For the purposes of these General terms and Conditions, the term “Affiliate” refers to any entity in which a Party controls fifty percent (50%) or more of the voting shares or an entity which controls fifty percent (50%) or more of the voting shares in a Party.
d) obtain from the defaulting Party any other losses or damages, including reasonable attorney’s fees but excluding any other indirect, incidental, consequential, special, exemplary or punitive damages, incurred in connection with the event of default;
e) any other remedies the non-defaulting Party may have whether by agreement, operation of law or otherwise.
14. Force majeure
In the event of war, fire, flood, strike, lockout, riot, act of God, or contingencies beyond the reasonable control of Buyer or Seller, Interfering with the production, supply, transportation or consumption practice of the Party at the time respecting Product, or in the event of inability to obtain on practical terms any raw material (including energy source or power) used in connection therewith, the obligations under the Contract (with the exceptionof Buyer’s obligation to pay for Product delivered) shall be suspended, but the Contract shall otherwise remain unaffected. The affected Party shall promptly notify the other Party of the Force Majeure event with mention of the possible length of its Inability to fulfill its obligations under the Contract due to the Force Majeure event. When the Force Majeure ceases to prevent the affected Party from fulfilling its obligations under the Contract, the affected Party shall promptly notify the other and all obligations under the Contract shall be reinstated. Should the affected Party be unable to fulfill its obligations under the Contract due to a Force Majeure event for more than 80 days, either Party shall have the right to terminate the Contract upon notice to this effect given to the other Party.
Seller may, during any period of shortage of such goods or raw materials due to Force Majeure as defined herein, allocate its supply of such goods or raw materials among the various uses therefore in any manner which is fair and reasonable, provided that Seller shall have no obligation to obtain goods or raw materials from an unrelated third party in order to supply Seller’s excused contractual shortfall; and provided further that any goods or raw materials obtained by Seller from a third party solely for Seller’s Internal use are not subject to allocation.
Neither Party shall assign any of its rights or obligations hereunder without the prior written consent of the other Party; except that Seller may, without Buyer’s consent, (i) assign its rights and obligations under this Agreement to one or more of its Affiliates, and (ii) assign accounts receivable in relation to Products supplied under this Agreement to banks or other financial institutions pursuant to factoring or other similar accounts receivable financial arrangements.
16. Waivers, paragraph headings
A waiver by one Party of any provision of the Contract or of any default thereof by the other Party shall not constitute a waiver of any subsequent default, nor any other provision. Paragraph headings do not form a part of the Contract.
17. Partial invalidity
If any provision of the Contact is held to be invalid, such invalidity shall not affect any of its other provisions and the Contract shall be construed as if the invalid provision has been omitted.
Any notice required or permitted under the Contract shall be in writing. If notice is sent by:
i. personal delivery;
ii. registered mail;
iii. facsimile transmission; or
iv. e-mail at the respective addresses of Seller or Buyer stated on the Sales Order, it shall be deemed to be received by the addressee on the date of personal delivery, on the fifth (5th) business day following the date of mailing by registered mail or on the same day it was sent if sent before 5:00 PM local time of addressee by facsimile transmission or by e-mail (after which time it will be deemed to have been received on the following business day), as the case may be.