General terms and conditions (ver. 1.2 dd. 20.12.2022)
Payment terms and Invoicing
1.1. The price of the Goods is agreed by the Parties for each order in separate Agreements to these Conditions, which are its integral part.
1.2. The GTC shall govern and be incorporated into every Contract. Execution of the Contract by the Buyer shall (without affecting any other manner in which acceptance of the GTC may otherwise be evidenced) be deemed to constitute unqualified acceptance of the GTC. If there is any conflict between the terms of the Contract and the GTC, the Contract shall prevail. The GTC shall apply to the exclusion of, and shall prevail over, any terms or conditions contained in or referred to in the Buyer’s acceptance of the Contract, or in any other documentation submitted by the Buyer, or in any correspondence or elsewhere, or implied by trade custom, practice or course of dealing, unless specifically excluded or varied in writing by any authorized representative of the Seller. If, subsequent to any Contract which is subject to the GTC, a Contract is made with the Buyer in any form without reference to any conditions of sale or purchase, the GTC shall apply to the new Contract.
1.3. Seller shall issue an invoice to Buyer showing sufficient detail to determine the amount due, how such amount was calculated, and when the payment is due.
1.4. The price shall comprise all costs based on the agreed contracted Incoterm as defined in the Incoterms, latest edition. Consequently the Seller will bear all expenses in accordance with Incoterms 2020. No price variation shall be accepted between the time of the order and delivery, neither for inflation, possible increase in the Seller’s costs, nor for any reason whatsoever.
1.5. Buyer shall make payment in U.S. dollars or in Euros (as determined in related Agreements).
1.6. Payment terms shall be stated in the relevant Agreements to the present General terms and conditions which is an integral part hereof. The Buyer agrees to comply with such payment terms as determined in the relevant Agreement.
1.7. The payment for the Goods is to be made via bank transfer to the Seller’s bank account. Time for payment shall be of the essence. Bank details of the Seller shall be indicated in the invoice. The Buyer shall effect the payment in accordance with the Article I of the Contract by telegraphic transfer and, unless otherwise follows from the context or specifically provided in the Contract or the GTC, with indicating the number and the date of the Contract/Amendment and the number and the date of the invoice issued by the Seller in the payment reference (the purpose of payment). The Buyer shall
provide the Seller with a copy of SWIFT confirmation within 1 (one) Business Day after the payment has been effected. Unless otherwise expressly defined in the Contract the Price is exclusive of any VAT and the Seller shall have the right to invoice the Buyer for any such VAT in so far as such taxes are not for the account of the Seller according to the Contract. The date of payment is considered the date of crediting of the Seller’s bank account for 100% (one hundred per cent) of the amount specified in the Seller’s invoice. Unless otherwise expressly agreed to the contrary in the Contract, all payments due or payable to the Seller under the Contract shall be paid in full, regardless of whether the Buyer is required to withhold or to apply any Taxes on payments made under the Contract. If the Buyer is required to withhold or to apply any Taxes on payments made under the Contract, then Buyer shall gross up such payments so that the Seller receives after the deduction of Tax, the full sum due and payable under the Contract as if no such Taxes had been deducted, regardless of any withholdings or application of any Taxes on payments made under the Contract. The Total Goods Value and all other amounts payable by the Buyer to the Seller under the Contract shall be payable without the right to any discount, deduction, set-off, lien, claim or counterclaim.
1.8. Commission from sender account and commissions of intermediary banks from beneficiary shall be paid by the Sender of funds.
1.9. In case of violation of payment terms, except for cases of force majeure and National holidays, the Buyer shall pay a penalty in the amount of 0.5% of the total amount specified in the Agreement to these General terms and conditions for each day of delay within 3 days from the date of Seller’s invoice. The Invoice shall be paid via payment or via released credit note.
If the conditions or terms of payment are breached by the Buyer the Seller may, at the Seller’s option, either suspend delivery of the Goods to the Buyer or unilaterally terminate the Contract. Such suspension shall not constitute a delay for the purposes of liquidated damages. The Seller has the right to suspend the execution of services if the Buyer should fail to meet one or more of its obligations.
Violation by the Buyer of payment obligations gives the Seller the right, at his choice:
(I) to refuse to fulfill the Agreement unilaterally with the possibility of selling the goods to third parties;
(II) to suspend the delivery of the Goods under the relevant supplementary agreement until the Buyer fulfills its payment obligations;
(III) to refuse to supply the Goods under the relevant supplementary agreement and not make up for the admitted shortage of the Goods under this supplementary agreement upon the expiration of the delivery period specified in it without paying a penalty for non-delivery (not delivery).
1.10. The date of fulfillment by the Buyer of the monetary obligation is the date of receipt of the funds by the Seller on his account.
1.11. Both Parties shall perform any and all acts and execute and deliver any and all documents as may be necessary and proper under applicable law or under the circumstances in order to accomplish the intents and purposes of the Contract and to carry out its provisions.
VAT registration number
2.1. Parties undertake to provide each other with their correct VAT registration numbers, and to immediately notify each other of any change therein.
2.2. The Parties shall be liable in the amount of documented damages arising from the violation of such an obligation.
Execution of services
3.1. Execution of obligations must be effected in the manner and at the time as set out in Agreements related to these General terms and conditions. The delivery shall be in accordance with relevant Incoterms subject to provisions of the Contract and GTC. The Seller shall use its reasonable endeavours to deliver the Goods on the date or between the dates (as the case may be) as specified in the Contract, but the time of delivery shall not be of the essence. The Seller shall notify the Buyer immediately if the delivery dates for the Goods cannot be met; in such a case the Parties shall re-schedule in good faith.
3.2. Fulfillment of obligations under the contract and agreements is completed when all terms of the Agreements will be done, the volume contracted in the Agreements to General terms and conditions will be supplied by the Seller.
The Seller is entitled to refuse at any time to undertake or complete the delivery if:
a) the delivery under an intended or customary route to the Place of Destination becomes unable whatsoever reason beyond the Seller’s control;
b) the cost of the delivery to the Place of Destination (including Taxes) and/or insurance, if applicable, has been significantly increased (more than by 20 (twenty)% within 1 (one) month), which could not be expected by the Seller acting reasonably; and/or
c) at any time after the Good’s loading but before the commencement of the Goods unloading:
i. importation of the Goods at the Place of Destination is prohibited under the laws of the country
in which such the Goods were produced, or by regulations, rules, directives or guidelines applied by
the government of that country or any relevant agency thereof; and/or
ii. the country, state, territory or region at which the Place of Destination becomes affected by the Sanctions,
d) Should the Seller agree to undertake or complete the delivery under an alternative route or at
an alternative Place of Destination nominated by the Buyer, that is not subject to any such prohibition and that is acceptable to the Seller (which acceptance shall not be unreasonably withheld), or under changed circumstances as the case may be, the Buyer shall reimburse the Seller for any additional costs and/or expenses incurred by the Seller.
3.3. The Seller may instruct third parties to carry out services related to transferring of the goods in accordance with terms of delivery indicated in related Agreements.
Delivery of the goods
4.1. Delivery of goods and services should take place in the manner and at the place and time set out in related Agreements. Should the Buyer fail to timely submit shipping information, the Seller may, at their sole discretion, choose to extend the time for delivery of the Goods which, if so extended, will not constitute a waiver of the Buyer’s breach of the Contract. The Seller shall send the shipping details to the Buyer via facsimile or by other means agreed upon by the Parties within 5 (five) Business Days after shipment of the Goods. The shipping details shall include: transport details/Vessel name, the Goods quantity and ETA at the Place of Shipment or the Place of Destination (whichever is applicable).
Any delays in loading the Goods at the Place of Shipment (including circumstances where the Seller is entitled to delay shipment) or in unloading the Goods at the Place of Destination caused by the Buyer’s failure to provide any necessary information, or as a result of omissions or inaccuracies in the information provided, will be for the Buyer’s account.
The Buyer shall indemnify the Seller for all costs, losses and damages, including, but not limited to, demurrage and/or detention incurred by the Seller as a result thereof. In cases where the Seller directly or indirectly provided the Buyer with several different dates during the agreed period of arrival of the transport with the Goods loaded on it (if applicable according to the Incoterms basis), deliveries can be made on any of the specified days.
The Buyer warrants that the Place of Destination shall be safe and well suited for delivery of the Goods. The Buyer shall be liable for and shall indemnify the Seller in respect of any loss or damage, including but not limited to any liability for damage to auto truck(s), surroundings, environment and people, additional costs or expenses arising out of and in relation to any failure of the Buyer to nominate a safe Place of Destination.
The Buyer is obliged to ensure his timely presence at Place of Destination at the Delivery Date for unloading of the Goods. Buyer’s absence at the Place of Destination shall not prejudice the fact that the Seller had successfully performed Delivery of the Goods for the purpose of the Contract.
4.2. The delivery is complete at the moment when the goods have been received by or on behalf of the Buyer. The Buyer warrants that the Place of Destination is (i) reachable by the agreed means of transport and (ii) suitable and equipped, if necessary, for unloading of the Goods.
4.3. Unless otherwise agreed in writing the Seller has the right to make partial deliveries.
4.4. Seller to the Buyer at the Delivery Date, unless otherwise provided in the Contract or the GTC. The Parties agree that the transfer of risk, and title to, the Goods is not conditional upon delivery of the Transport Document or any other documentation. Neither the time, method, or place of payment, method of transportation, form of shipping document, manner of consignment nor place of acceptance of the Goods shall alter the foregoing.
4.5. For deliveries the Seller uses tare in accordance with signed Agreements.
4.6. The type of packaging is ISO container, unless it has been agreed otherwise in related Agreements.
4.7. In case the Seller provides packaging, the following terms apply:
(I) The Seller ensures for 10 CALENDAR DAYS FREE container using from the moment of announcement of the Seller regarding arrival of the tare to the depo until the time the empty container is returned to the place agreed with the owner of the container (demmurage).
(II) After free time expires the charges are: after 10 days – 50 EUR per day.
(III) In case of loss of the container the Buyer shall pay the full amount of container’s total cost (based on Invoice from the container owner) within 3 days from the invoice date by the Seller. In case of late payment, the Buyer shall pay to the Seller a penalty of 0,01% of the container’s total cost for each day of delay. In the event that the Buyer (or the Buyer’s authorized representative, or the Buyer’s Carrier, etc.) returns the Transport defective, unrepaired, or and/or affected, and or unclean, and/or not fully unloaded, and/or in other state unfit for purposes, which the Transport is usually used for (the “Defective Transport”), the Buyer shall reimburse all and any Seller’s costs and expenses arising out of or in connection with such Defective Transport.
(IV) The container is considered lost if the Buyer has not provided Interchange document from the Depot of discharge specified by the Seller after delivery of the container within 30 days from the date of transfer of the container to the Buyer or the consignee specified by him. In that case the Buyer shall pay the Seller the amount that covers value of the corresponding size and type of container, but in any case not less than the cost of the container set by the owner.
(V) The container shall be returned in accordance with return instructions of the Seller.
4.8. Buyer shall return the container in accordance with the Seller written instructions as soon as possible following the completion of the shipment and in any event within the free use period stated in the customary rules at the Place of Destination. The container is to be freed from all particles of the cargo and material used for the Goods separation. The buyer is obliged to accept and unload the entire goods. After unloading, the Seller’s equipment must be free of product residues. In the event that the Buyer has not completely unloaded the Goods and the product remains in the Seller’s vehicle, the Buyer shall reimburse in full the costs of disposal and cleaning the equipment from product residues within 5 days from the date of invoicing by the Seller. The allowable product residue in the container is 50 kg. If no motivated comments have been given within the specified 30 days period, the claim shall be deemed accepted.
4.9. Acceptance of the Goods is made by the Buyer:
(I) by weight – according to the weight certificate issued at the place of loading;
(II) by quality – according to the quality certificate.
4.10. The Parties acknowledge and agree that in no event shall the Seller be considered to be in breach under the Contract due to any late delivery and the Buyer shall not be entitled to liquidated damages until the Seller is at least more than 30 (thirty) days late under the terms and conditions specified in the Contract. The Seller shall not be liable to the Buyer in liquidated damages for delay caused by a Force Majeure Event, failure or default on the part of the Buyer, or where the Seller is entitled to delay delivery pursuant to the terms of the Contract. The Parties acknowledge and agree that in no event shall the Seller be considered to be in breach under the Contract due to any late delivery or non-delivery of the Goods and the Buyer shall not be entitled to claim any losses, or liquidated damages, or any other claims in case of the planned Manufacture production capacity repair. Provided that the Seller shall notify the Buyer of such repair not later than one week prior to the month when the repair is planned. The Parties acknowledge and agree that Seller’s notification of the repair is enough and sufficient evidence and confirmation of the planned repair.
LIQUIDATED LOSSES SPECIFIED THIS AGREEMENT TOGETHER WITH THE RIGHT TERMINATION SPECIFIED IN THE GTC MUST BE THE ONLY ONE AND EXCLUSIVE REMEDIES FOR ANY SUBSEQUENT
DELIVERY OF ANY PRODUCT OR PART THEREOF AND THE SELLER WILL NO LONGER HAVE OF ANY KIND OF RESPONSIBILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY).
In the event that the Buyer fails or refuses to accept delivery of the Goods or any part thereof pending laytime (i.e. have not commenced the accepting and unloading/loading of the Goods as the case may be; or furnished the Seller with explanation of delay and further instructions as regards the Goods satisfactory for the Seller); provided that such Goods have been delivered in accordance with the terms of the Contract, without prejudice to the Seller’s other rights under the Contract or the applicable Law, the Seller is entitled to pass the Goods to a proximate logistic company or keeper at the Buyers risk and expense of which the Buyer shall be notified within reasonable time. The Seller is entitled to exercise its right hereunder irrespective of whether the title to the Goods has passed to the Buyer under the Contract or not. The quantities of the Goods passed confirmed by such a logistic company or keeper shall be deemed as due confirmation of the quantities of the Goods delivered by the Seller. The Seller shall be entitled to claim without limitation all and any transport and/or insurance cancellation costs, storage costs, additional transport costs, customs duties, demurrage and other similar or related costs and all expenses arising out of or in connection with such late acceptance from the Buyer till the moment when the Goods are taken by the Buyer. The Seller’s disposal rights. In the event that the Buyer (or the Buyer’s authorized representative, or the Buyer’s Carrier, etc.) fails or refuses to accept delivery of the Goods or any part thereof within 5 (five) days after the Delivery Date unless otherwise mutually agreed by the Parties, entirely without prejudice to the Seller’s other rights under the Contract or the applicable Law, the Seller shall at its sole discretion be entitled to sell the quantity of the Goods which were not taken by the Buyer. The Seller is entitled to exercise its right hereunder irrespective of whether the title to the Goods has passed to the Buyer under the Contract or not. The Seller is also entitled either (i) to demand the Buyer to reimburse all Seller’s costs of sale including, without limitation, storage costs, additional transport costs, customs duties, and other similar or related reasonable costs and expenses together with any difference in the price obtained for the Goods when compared to the Price of the Goods set out in the Contract; or (ii) to deduct the amount of the received advance payment (applicable to the prepayment or CAD) for the damages incurred by the Seller as a result of such refusal; after calculating the damages the remaining part of the advance payment shall be either returned to the Buyer or offset against further deliveries. The Seller is entitled to exercise its right hereunder irrespective if the title to the Goods has passed to the Buyer under the Contract or not.
4.11. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE WHETHER IN THE CONTRACT, IN TORT (INCLUDING GROSS NEGLIGENCE), UNDER ANY WARRANTY OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR EXEMPLARY OR PUNITIVE LOSSES OR
DAMAGES, OR ANY LOSS OF PROFITS (SAVE IN RELATION TO SELLER’S LOSS OF PROFIT ARISING FROM THE BUYER’S FAILURE OR REFUSAL TO TAKE OR ACCEPT DELIVERY OF THE GOODS OR ANY PART THEREOF CONTRARY TO THE TERMS OF THE CONTRACT) OR REVENUES, OR ANY COST OF LABOR, RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THE GOODS OR SELLER’S PERFORMANCE UNDER, OR BREACH OF, THE CONTRACT, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY SHALL UNDERTAKE ITS BEST EFFORTS TO MITIGATE ITS LOSSES.
FOR THE AVOIDANCE OF DOUBT, EITHER PARTY MAY SEEK TO RECOVER FROM THE DEFAULTING PARTY ANY ACTUAL DIRECT DAMAGES INCURRED AS A RESULT OF THE DEFAULTING PARTY’S BREACH OF CONTRACT (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES AND COSTS); PROVIDED, HOWEVER, THAT NOTWITHSTANDING ANYTHING CONTAINED HEREIN, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SELLER’S LIABILITY IN CONNECTION WITH THE GOODS OR THE CONTRACT EXCEED THE TOTAL GOODS VALUE (INCLUDING, BUT NOT LIMITED TO TRANSPORTATION COSTS, STORAGE COSTS, ETC.) PAID TO THE SELLER BY THE BUYER FOR THE GOODS.
UNDER NO CIRCUMSTANCES SHALL THE SELLER BE LIABLE FOR THE BUYER’S LOSS OF PROFIT, NON RECEIPT OF REVENUE, BUSINESS INTERRUPTIONS, THE SUSPENSION OF COMMERCIAL ACTIVITIES, OR FOR ANY INDIRECT LOSS IRRESPECTIVE OF ITS CHARACTER AND REASON.
BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITIES SET FORTH HEREIN WERE BARGAINED FOR ON AN EQUAL FOOTING AND ARE CONDITIONS OF THE CONTRACT.
NOTHING IN THE CONTRACT SHALL LIMIT OR EXCLUDE THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR FOR FRAUDULENT MISREPRESENTATION.
If the Incoterms basis assumes, Seller may arrange shipment under the Bills of Lading which incorporate charterparty conditions normally in use for Vessels. Without prejudice to the generality of the foregoing, such conditions shall be deemed to include:
i. the provision that the Goods shall be unloaded from the Vessel at the Buyer’s expense; and
ii. the provision that where, at any time after loading, but before the commencement of unloading:
- importation of the Goods at the Place of Destination is prohibited under the laws of the country in which such the Goods were produced, or by regulations, rules, directives or guidelines applied by the government of that country or any relevant agency thereof; and/or
- the country, state, territory or region at which the Place of Destination becomes an embargoed country, the Goods shall be unloaded at an alternative safe port nominated by the Buyer that is not subject to any such prohibition and that is acceptable to the Seller (which acceptance shall not be unreasonably withheld).
In such circumstances, such alternative port of unloading shall be deemed to be the unloading port stipulated under the contract for the shipment in question and all extra expenses (if any) involved in the Vessel’s reaching such alternative Place of Destination and/or in the unloading of the shipment thereat shall be for the Buyer’s account.
Quality of the Goods
5.1. The quality of the supplied Goods must correspond to the technical standard indicated in related Agreements. The Buyer must accept the Goods.
5.2. Unless otherwise agreed by the Parties in the Contract, quality and quantity inspection is to be determined at the Place of Shipment (applicable for EXW, FCA, CPT, CIF, FOB, CFR) or the Place of Destination (applicable for DAP, DDP) (as may be applicable in accordance with the Contract or the GTC) by an Inspector such as SGS or similar internationally recognized inspection company mutually agreed between the Parties and in accordance with the standard practice (i) at the place of the inspection or (ii) of the Inspector if there is no standard practice at the place of inspection, unless the Contract or the GTC provides otherwise.
The inspection results shall be documented in the Inspector’s Report and shall be conclusive and binding on the Parties for invoicing purposes, for quality purposes and/or for quantity purposes and shall be final and binding for both Parties, except in case of fraud or manifest error.
The costs of inspection (in accordance with the terms of this paragraph)) must be incurred by the Buyer in full, and then reimbursed by the guilty party. Any other inspections and related services, if required by the Buyer, are paid exclusively by the Buyer; provided, however, that only the results of the inspections provided for in this paragraph will be final and binding on the Parties.
The Inspector should send his report to the Seller and the Buyer as soon as possible. The inspector must keep the samples taken for at least 90 (ninety) days from the date of inspection.
5.3. The Buyer is at all times entitled to subject the goods to be delivered to an inspection or to have these subjected to an inspection, or to investigate whether the services provided have been executed in conformity with the Agreement and the General Purchase Conditions. The Seller is obliged to give its full cooperation to the inspection or the investigation.
5.4. The Parties can agree on a claim procedure for quality and quantity in the Agreements to these General terms and conditions.
5.5. Claims on the product will be considered only if the heated container was opened in the presence of a representative of the survey organization that approved it by the Parties.
5.6. The call of the surveyor will be organized by the Buyer at the place of loading and/or unloading, while the surveyor must indicate in the report that the seals were removed in his public access.
The cost of calling the inspector will be initially paid by the Buyer, and then reimbursed by the guilty party.
5.7. The Buyer must examine each batch of the Goods, and notify the Seller in writing within 10 calendar days after receiving the Goods about any noticeable defect in the delivered Goods. Claims are submitted by e-mail with the attachment of all necessary documents confirming the claim. If the Buyer falls to make a claim within the agreed period of 5 days after the Delivery Date such claim will automatically be considered as time barred, null and void, and such delivered the Goods shall be deemed accepted by the Buyer and in accordance with all terms and conditions of the GTC and further claims in respect of the quality and/or quantity of the Goods are not permitted and may not be enforced.
The Buyer shall not be entitled to use a claim in relation to a particular shipment of Goods as a basis for the refusal to accept other shipments of the Goods delivered under the Contract, or the Goods
delivered pursuant to any other Contract agreed between the Parties.
5.8. If the Buyer has accepted a batch with the Goods and found nonconformity of the quality of the Goods, the Buyer shall have no right to open other containers from this batch. The Buyer must not discharge and shall immediately contact with the Seller to arrange a survey inspection of the containers. The survey organization must be agreed and confirmed by both parties. Report issued with participation of the representative of the third independent party e.g. Chamber of Commerce or other independent party agreed party shall confirm nonconformity of the quality of the Goods. In this case, if such examination is performed, prior to its beginning, the containers shall be still sealed with seals and unopened. Seals must match with documents. If the above-mentioned requirements are not fulfilled, the Buyer’s claims against the Seller will not be accepted. The Seller has the right, without agreeing on the examination of the Goods, to refuse delivery, if it is reliably established that the Goods are of poor quality, immediately dispose of them at its own discretion – the Buyer in this case will not have any claims against the Seller due to non-delivery of the Goods or claims to the quality of the Goods. If prepayment has been made, it shall be returned to the Buyer no later than 10 calendar days after the Seller refuses or the Seller receives a request for a refund.
The Seller shall not be liable for any cost, loss or damage resulting from the receipt of the Goods in non-compliant storage facilities. The Buyer shall indemnify the Seller against any claim which any third party might have or bring against the Seller in this respect.
Any advice given by the Seller concerning storage, transport, use or application of the Goods delivered shall be on a without prejudice basis and the Seller shall not be liable for any loss, damage or expense resulting from observance of such advice.
5.9. Product which fails to meet the Product Specification as provided in related Agreements shall be deemed to be off-specification Product (“Off-Spec Product”).
5.10. In case of delivery of an Off-Spec Product, Buyer may,
(I) at Buyer’s sole discretion, reject the Off-Spec Product without obligation to pay for it to Seller, in which case, the Off-Spec Product will be delivered back to Seller in accordance with Seller’s reasonable instructions and at Seller’s cost and risk; and
(II) at Buyer’s sole discretion and at Seller’s cost, require Seller to replace the Off-Spec Product with a new Product (that is not Off-Spec Product) without undue delay, in which case, payment of the Contract Price will be postponed accordingly.
6.1. Should any circumstances beyond the reasonable control of the performing party (“force-majeure”) arise (including but not limited to fire, flood, earthquake or strikes), the delivery date shall be extended for a period of such circumstances as long as these circumstances affect considerably the performance of the Agreement.
6.2. The Seller or the Buyer shall immediately advise the other Party by e-mail about the beginning and the end of force-majeure circumstances preventing the performance of the present Agreement. The above notification is to be confirmed by the respective Chamber of Commerce.
6.3. If these circumstances are valid for more than 2 months, then each of the parties has the right to withdraw from the Agreement unilaterally, making all payments with the other party.
Amendments, Termination and Suspension of Agreements
7.1. Save as expressly provided in the Contract, no amendment or variation of the Contract shall be effective unless in writing in substantially the format set out at Annexes attached hereto and signed by a duly authorized representative of each of the Parties to it. Without prejudice the above, the Seller is entitled to unilaterally change the GTC from time to time by putting on the new version
of the GTC on the Seller’s website at www.wesp.hu/GTC . The new version of the GTC shall come into force within 10 (ten) days after such putting.
7.2. Notwithstanding any other provisions of the Agreement, either Party may terminate the Agreement by notifying the other Party in writing 30 days prior to the date of termination of the Agreement.
7.3. A possible cancellation penalty, if any, shall be the subject of a separate arrangement.
7.4. Buyer’s default.
a) The Seller may, at its sole discretion and in addition to any other legal remedies it may have, upon giving written notice to the Buyer suspend all deliveries under the Contract and/or unilaterally terminate the Contract where:
i. the Buyer is in breach of any condition of the Contract;
ii. delivery or unloading of the Goods is delayed due to any cause(s) attributable to the Buyer and such delay is not excused by any other provision of the Contract;
iii. loading or unloading of the Goods is delayed by more than 10 (ten) hours after the NOR has been tendered or a train or truck has been arrived at the Place of Destination due to reasons attributable to the Buyer;
iv. there is a major change in the direct or indirect ownership of the Buyer or its parent company;
v. the Buyer or its parent company commences, or becomes the subject of, any bankruptcy, insolvency, reorganization, administration, liquidation or similar proceeding or is in the Seller’s reasonable opinion expected to be unable or unwilling to pay its debts as the same become due;
vi. the Buyer or its parent company ceases or threatens to cease to function as a going concern or conduct its operations in the normal course of business;
vii. a creditor attaches or takes possession of all or a substantial part of the assets of the Buyer or its parent company; or
viii. if applicable, the Buyer delays the provision of the parent company guarantee or other security of its obligations as provided in the Contract for more than 10 (ten) Business Days.
b) Where the Seller suspends delivery of the Goods due to any of the events referred to under the Clause a) the Seller may, so long as such event is continuing, at any time unilaterally terminate the entire Contract.
c) Where, pursuant to the provisions of this Clause 7.4., the Seller, under the Contract providing for multiple deliveries, temporarily suspends the delivery of the Goods and then decides to resume deliveries under the Contract, the Seller may cancel the suspended delivery and shall be under no obligation to make up for any quantity of the Goods that would have been delivered to the Buyer but for such suspension.
d) Where the Contract provides for multiple deliveries, then the rights given to the Seller in this Clause 7.4 apply to all deliveries such that where the Seller is allowed to terminate in respect of one delivery, then it is entitled to terminate all the remaining deliveries.
e) Any termination of the Contract by the Seller shall be without prejudice to the rights and obligations of each Party as accrued on the date of termination.
7.5. Entire Contract. The Contract including attachments thereto, the GTC and any addenda, or amendments constitutes the sole and entire understanding between the Parties with respect to the subject matter of the Contract and supersedes all and any prior oral or written agreements, negotiations and discussions between the Parties pertaining to the subject matter of the Contract or the Contract in whole.
Claims, applicable law/disputes arbitrations
8.1. These General terms and conditions and Agreements related to it shall govern the contractual relationship between the parties.
8.2. The Agreement implies a claim procedure before the trial. The Buyer shall examine each shipment of the Goods and notify the Seller in written form within 5 calendar days after delivery of the goods of any noticeable defect of the delivered Goods.
8.3. The response time to the claim is 10 calendar days.
8.4. In case of any dispute arising in connection with this Agreement (“Agreement” means any agreement relating to the delivery of Goods to the Buyer The seller, including the GTC itself) or in connection with it, especially in connection with its violation, termination, validity or interpretation, the parties exclude the procedure of the State court and agree to refer this matter to the exclusive and final decision of the Permanent Arbitration Court at the Hungarian Chamber of Commerce and Industry (Budapest Commercial Arbitration Court). The Arbitration Court acts in accordance with its own Rules of Procedure (supplemented by the provisions of the Accelerated Proceedings Sub-Rules). The number of arbitrators is one, the language to be used in the arbitration proceedings must be English. The Parties exclude the possibility of reconsideration of the case in accordance with section IX of Law No. LX of 2017 on arbitration. Hungarian substantive law is used to resolve a legal dispute, with the exception of its rules of private international law, conflict of laws rules and the United Nations Convention on Agreements for the International Sale of Goods.
8.5. In case of complete or partial refusal or evasion of the Buyer for any reason from the agreed delivery of the goods, including the unilateral postponement of delivery by the Buyer, the Supplier has the right to demand, and the Buyer is obliged to pay a fine of 115% of the total amount specified in the Agreement to these General terms and conditions, within 7 days after receiving the relevant claim from the Seller. The penalty for late payment is 0.1% of the amount of overdue (deferred) debt on the account for each day of delay. In the event that the Buyer makes an advance payment for the Goods, it is set off by the Supplier towards the payment of the above penalty, with the sending of an appropriate information letter with the justification for the withholding and the amount of the additional payment of the fine.
9.1. All the previous negotiations and correspondence related to the present Agreement become invalid after the Agreement signing.
9.2. All the supplements to this Agreement shall be considered as its integral part.
9.3. All provisions of the Agreement have confidential and private character upon both Parties.
9.4. These General terms and conditions comes into force from the date of its signing. The validity period is from the moment of signing until the parties fully fulfill their obligations. If neither party has notified the other in written form 2 months in advance before the expiration date about intention to terminate the contract, it is automatically extended for each subsequent calendar year. The number of auto-renewals is unlimited.
9.5. The executed Sales Agreement may be stored electronically (“Imaged Agreement”). The Imaged Agreement, if introduced as evidence in printed format, in any judicial, arbitration, mediation or administrative proceedings, will be admissible as between the Parties to the same extent and under the same conditions as other business records (including attachments related to this Agreement, Agreementual correspondence, documents etc.) originated and maintained in documentary form.
Neither Party shall object to the admissibility of the Imaged Agreement on the basis that such was not maintained in documentary form. However, nothing herein shall be construed as a waiver of any other objection to the admissibility of such evidence.
9.6. The terms and conditions of the Contract shall be binding upon, and shall inure to the benefit of, the Parties hereto and their respective permitted successors and assigns.
9.7. The relationship hereby established between the Seller and the Buyer is solely that of the Seller and the Buyer.
Each is an independent contractor engaged in the operation of its own respective business, and nothing in the Contract shall be construed to create a partnership, agency, joint venture, pooling, and franchise or employer-employee relationship between the Parties. Neither Party has the power or the authority to act for, represent, or bind the other Party (or any of the other Party’s Affiliates) in any manner.
9.8. The Seller’s warranties, guarantees and representations. The Seller warrants that it has full legal title to the Goods and that it has full right and power to convey such title to the Buyer. FOR THE AVOIDANCE OF DOUBT THE SELLER MAKES NO GUARANTEES, WARRANTIES, REPRESENTATIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS OR SUITABILITY OF THE GOODS FOR A PARTICULAR PURPOSE, CONCERNING THE GOODS. ANY WARRANTIES, CONDITIONS OR OTHER TERMS IMPLIED BY LAW, CUSTOM, CONTRACT, STATUTE OR OTHER LEGAL THEORY OR OTHERWISE, WHETHER AS TO MERCHANTABILITY, QUALITY, FITNESS FOR PURPOSE OF THE GOODS OR OTHERWISE ARE SPECIFICALLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW.
9.9. Severability. If any part of the Contract is deemed to be unenforceable, invalid or in contravention of applicable Law by a court or arbitral tribunal of competent jurisdiction, the remainder of the Contract shall remain in full force and effect. The Parties shall negotiate in good faith to replace the invalid provision with a provision which reflects, to the extent possible, the original intent of the invalid provision.
9.10. Set-off. No set-off may be made against any claims unless otherwise agreed in writing by the Seller in advance. Under no circumstances the Buyer shall be entitled to set-off against the payment (including any VAT payable) under the Contract any sums owed to the Buyer by the Seller under the Contract or any other agreement it has with the Seller. For the avoidance of any doubt the Seller shall be entitled at all times to set-off against any and all amount owing at any time from the Buyer to the Seller against any amount payable at any time by the Seller under the Contract.
9.11. Singular and plural. In the Contract and the GTC, the singular shall include the plural and vice versa and the word “including” shall be deemed to be followed by the phrase “without limitation”, references to any gender shall include a reference to the other gender; references to other agreements or to any statute, rule or regulation or instrument shall mean the same as amended, modified or replaced from time to time.
9.12. Herein, hereunder, hereinafter. The terms “herein”, “hereunder”, “hereinafter” and similar terms shall be interpreted to refer to the Contract or the GTC, when made in the Contract or the GTC respectively, unless otherwise follows from the context.
9.13. Reference to period. Where any period in days, weeks, months or years is referred to in the Contract or the GTC, such period shall be calculated in days, weeks, months or years respectively, unless expressly provided otherwise (and the day on which any such period is expressed to commence shall not be counted for the purpose of such period’s calculation).
9.14. Including. Any phrase introduced by the terms “including” or “in particular”, or any cognate expression, shall be construed as illustrative and not limiting of any preceding words.