for the sales and all contracts of BOZZETTO GmbH (Baekerpfad 25, 47805 Krefeld)1. GENERAL TERMS AND CONDITIONS OF SALE
All our supplies and all contracts concluded with us are exclusively subject to the following terms and conditions of sale (the “General Terms and Conditions of Sale”). When Purchaser sends us a purchase order or accepts the delivery of the ordered goods, it accepts the General Terms and Conditions of Sale, which become immediately binding and fully effective. Where a continuing business relationship exists, all future contracts, supplies and services are also subject to these General Terms and Conditions of Sale. Our General Terms and Conditions of Sale shall only apply vis-à-vis business undertakings.
2. OFFER, ORDERS, EXECUTION OF CONTRACT
Our offers are subject to change and are not binding. Orders are only valid and binding if confirmed by us in writing or if recognized by us through the act of delivery. Any additional agreement, amendment and modification is valid only if confirmed in writing.
3. DELIVERY AND DEFAULT
3.1. Goods supplied shall be delivered Ex Works (Incoterms 2010). All risks of loss and damage to the goods supplied shall transfer to Purchaser upon dispatch in case the Purchaser demands shipment.
3.2. Unless otherwise agreed, the date quoted for delivery is for information only and is not binding on us.
3.3 We are entitled to make partial deliveries which Purchaser may not unreasonably refuse. The corresponding invoices issued are due and payable without regard to whether the ordered delivery has been made in whole.
3.4 Whether delivery is in default shall otherwise be determined pursuant to the statutory provisions. However, a delivery reminder by the Purchaser shall in any case be required. If we are in default of delivery, the Purchaser may claim liquidated damages in an amount of 0.5% of the net price (delivery value) for each completed calendar week the default situation persists, at a maximum not more than 5% of the delivery value of the goods that are behind schedule. We may assert that the Purchaser has not incurred any damage or significantly lower damages.
Except for cases with respect to which it is expressly provided for by the applicable laws or agreed upon in writing, Purchaser shall not return any packaging (e.g. pallets, barrel, IBCs) to us.
5. PRICES, PAYMENT TERMS AND RETENTION OF TITLE
5.1. Unless otherwise expressly agreed in writing, prices are quoted "Ex Works". Therefore, delivery and shipping costs and any applicable tax are not included and are at the Purchaser's charge.
5.2. The prices of the delivered goods are indicated in the relevant invoice. Payment shall be due according to the payment terms provided for in the relevant supply agreement and/or indicated in the relevant invoice. If no payment term is provided, goods shall be payable upon delivery. Purchased goods shall remain our property until all claims resulting from the business relation have been settled. Until such time as title to the goods passes, the Purchaser shall hold goods as our fiduciary agent and shall keep them properly stored, protected and insured. He shall be prohibited from transferring ownership by way of security, pledging, or otherwise disposing of the reserved goods in any manner which thwarts or impedes the reservation of title in functioning as security and shall immediately inform us in case third parties take up steps to seize or otherwise dispose of the goods. The Purchaser shall be entitled to resale of the reserved goods within the scope of its ordinary course of business. In the event of resale of the goods, the Purchaser assigns to us in advance and by way of security its claims against its customers arising from this resale, whether or not the goods have been processed. Any processing or alteration of the goods is carried out on our behalf. In the event of processing, combination or mixing of the reserved goods with other goods, we shall be entitled to the resulting fractional share of co-ownership of the new item, in accordance with the ratio between the value of the reserved goods (invoiced price including VAT) and that of the other goods utilised at the time of processing, combination or mixing. Should the Purchaser acquire sole ownership based on combination or mixing of the new item, due to the fact that the new item is deemed to constitute the main item, we and the Purchaser already hereby agree that the Purchaser assigns co-ownership of the new item in proportion to the value of the reserved goods and we herewith accept such assignment. The sole or joint ownership created in such manner shall be held in safe custody by the Purchaser for us free of charge. Furthermore, the same provisions shall apply to any new item created through processing, combination or mixing as to the reserved goods. At our request the Purchaser shall be obliged to notify its customer of the above transfer and provide us with the information required to assert our rights against the customer as well as the appropriate documentation. The Purchaser shall be entitled to collect the amounts receivable from the resale in spite of the above transfer, however, only insofar as he duly meets his obligations towards us. At the Purchaser’s request, we undertake to release security at the Purchaser’s discretion where the total realisable value of such security exceeds the value of our claims against the Purchaser arising from current business dealings by more than 10%.
6. DELAYED PAYMENT OR DEFAULT
6.1. Payments shall be made in the currency indicated in the invoice to one of our bank accounts which we have notified in writing to Purchaser.
6.2. All payments shall be net of any bank deduction or transfer charges, taxes or other duties.
6.3. In case of delayed payment or default in the payment of any invoice, we have the right to late payment interests in accordance with the applicable German statutory provisions, without prejudice to our right to claim any greater damages, if any.
6.4. Should there be any reasonable doubts as to Purchaser's solvency or credit rating or in case of recurring delayed payments we are entitled to require payment in advance for deliveries not yet made and to require immediate payment of all our claims arising from the business relation, without prejudice to any other claim or action.
6.5. Any arrangement regarding a payment plan, deferred payments or alike, shall be agreed upon in writing by our and Purchaser’s duly empowered representative.
7. FORCE MAJEURE
Any event and/or circumstance whose occurrence is beyond our control, including but not limited to strike, lock out, fire, explosion, flood, acts of God, natural disasters, shortage of raw material required for the productions of goods supplied, pandemics, wars (declared or undeclared) or acts of terrorism, (a “Force Majeure Event”), to which we are subject, shall, to the extent we are affected, discharge us from the performance of our obligations and Purchaser shall not have any right to reimbursement of costs or expenses, claim for damages or termination of any agreement or cancellation of any order.
8. QUALITY AND QUANTITY/WARRANTY
8.1. All goods supplied shall conform to the agreed specifications indicated - inter alia - in the sale statement sent by us to Purchaser upon the first delivery with respect to each product (i.e. trade name). The said specification or any other product descriptions and information describe only the nature of our products and services and do not constitute any quality or durability guarantee within the meaning of § 443 German Civil Code.
8.2. We shall notify in writing any change to any specifications of any sale statement already sent to Purchaser.
8.3. The quantity of the goods supplied is indicated in the bill of transport. Provided that notice is given to us in accordance to sections 8.4 and 8.5 below, Purchaser has the right to complain only if the discrepancy between the quantity stated in the bill of transport and the quantity supplied exceeds 0,5%.
8.4. Purchaser undertakes to examine and inspect the goods immediately after delivery; provided, however, that in case of supply of goods in liquid form through tanker, such goods shall be inspected immediately upon delivery prior to the pouring of such goods in any Purchaser’s barrel or any other kind of container. It being understood that in no case we shall be responsible for any defect of quality and/or quantity of the delivery identified after the goods have been used and/or mixed with other substances by Purchaser.
8.5. Purchaser shall notify us within 10 (ten) business days after the delivery - or in case of hidden defects within 10 days after their detection - if the goods supplied do not conform to the specifications indicated in the sale statement or if there is a material discrepancy, pursuant to art. 8.3 above, in the quantity indicated in the bill of transport. In case of a quality complaint Purchaser shall send a sample of the goods together with a report of the tests performed. Failure to proceed in the aforesaid manner shall result in the exclusion of warranty claims. We reserve the right to review Purchaser’s complaints.
8.6. Any material shortage of quantity, pursuant to art. 8.3 above, and ascertained and notified in accordance to sections 8.4 and 8.5 above, will be made up in the next delivery of goods unless this proves unreasonable under the specific circumstances, in which case we will issue a credit note.
8.7. In case all or part of the goods delivered do not conform to the specifications indicated in the sale statement, Purchaser is entitled to return to us at our costs such non-conforming goods and we will promptly replace such goods with goods that conform to the relevant specifications and, at our own discretion, we will either recollect the non-conforming goods or pay for documented disposal costs of such goods by Purchaser.
8.8. Warranty claims shall become time-barred 12 months after the passing of risk.
9.1 In accordance with section 8.1 above, we warrant solely that goods supplied conform to the specifications indicated in the sale statements. Any warranty of merchantability or fitness for a particular purpose is expressly excluded.
9.2 Purchaser’s exclusive remedy and our sole obligation for any claim or cause of action, brought by Purchaser or any third party, in connection with the supply of goods governed by these General Terms and Conditions of Sale is expressly limited to either (i) the replacement of non-conforming goods pursuant to section 8 above, or (ii) payment of an amount not exceeding the invoiced price of the specific quantity of goods with respect to which damages are claimed.
9.3 Purchaser shall be the sole and exclusive responsible person for any use of the goods delivered and shall indemnify, defend and hold us harmless against, and reimburse us for all losses, damages, costs, expenses, liabilities, that we may suffer or incur, or become subject to, or any third party’s claim, as a result or in connection with the use, application, transfer or any other process of the supplied goods after delivery.
9.4 Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected by the foregoing regulations. The same applies in case of intent or gross negligence on our part.
Purchaser undertakes to keep, and cause its directors, officers, principals, employees, agents and representatives (collectively, the “Representatives”) to keep, confidential the terms and conditions of the supply performed under these General Terms and Conditions of Sale (including but not limited to payments terms, prices, quantity supplied and specifications of goods) and any information provided by us in connection with the supply of goods unless such information (i) at the time of disclosure or thereafter is generally available to the public (other than as a results of its disclosure by the Purchaser or its Representatives in breach of these General Terms and Conditions of Sale), (ii) was available to the Purchaser on a non-confidential basis prior to disclosure by us, (iii) was, is or becomes available to the Purchaser on a non-confidential basis from a person who is not bound by a confidentiality obligation with us. Purchaser will be responsible for any breach by its Representatives of this section 10.
11. PRIVACY LAW
In accordance with the applicable laws on the protection of the privacy of personal data, Purchaser’s personal data will be collected, processed, by automated or non-automated means, and used by us for commercial and administrative purposes only to the extent required for the performance of the purchase orders and the obligations provided herein.
12. CODE OF CONDUCT
Purchaser represents to have read Giovanni Bozzetto S.p.A.’s Code of Conduct, to which Bozzetto GmbH adheres, made available on the website www.bozzetto-group.com and acknowledges and agrees to comply, and cause its Representatives to comply, with the principles and rules of conducts provided therein in the relationship with us. We shall have the right to immediately terminate any agreement or commitment by giving written notice to the Purchaser for any act or conduct by Purchaser and/or its Representatives aimed to or resulting in a breach of any of the provisions of the Code of Conduct.
13. PURCHASER’S GENERAL TERMS AND/OR CONDITIONS OF PURCHASE
It is expressly agreed that Purchaser’s General Terms and/or Conditions of Purchase, if any, shall not apply to any sale of goods supplied by us, whether or not incorporated in or attached to any purchase order or other document, unless expressly acknowledged by us in writing.
14. APPLICABLE LAW
The relationship between the parties shall be governed by, and construed in accordance with, German laws excluding the applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
15. DISPUTE RESOLUTION
15.1 All disputes arising out of or in connection with the supply of goods by us to Purchaser shall be finally settled under the Rules of the German Institution for Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit) by one or more arbitrators appointed in accordance with said Rules. The seat of the arbitration shall be Duesseldorf, Germany and the arbitration shall be conducted in English language unless both parties agree on the German language. The expenses of the arbitration proceedings shall be borne by the parties in accordance with the applicable determinations of the arbitrator or the arbitration panel.
15.2 Alternatively, if the party initiating a proceeding (plaintiff) is established or incorporated in Germany, it may also choose to sue the other party before the ordinary courts of law. In such case the courts of Duesseldorf, Germany, shall have exclusive jurisdiction. If one party sues the other party before the ordinary courts of law in accordance with the afore-stated sentence, the other party shall be precluded from invoking the arbitration clause.
In case of any discrepancies or omissions between the General Terms and Conditions of Sale in the English language and versions in any other language, the English wording shall prevail.