Sales terms and conditions applied to the sales of PanaSystem Handels GmbH
1. Validity/conditions. Unless otherwise agreed in writing or in an individual case, these Standard Terms and Conditions shall apply to all- including future – supply relationships, irrespective of whether the orders were made by the Buyer telephonically, by fax or in writing. All modifying provisions, conditions or supply proposed by the Buyer will be valid only if Seller agrees to such modifications in writing. Buyer shall acknowledge and accept present Terms, at the latest, upon the acceptance of the Product (in the sense of the present Terms means all marks, of Carbon Black available for selling by Seller). Acceptance of delivery of the Products shall be deemed as conclusive evidence of the Buyer's acceptance of these Terms. Any agreements to be concluded with Seller must be in writing to be valid. Thus, even agreements which deviate from our terms and conditions shall be in written form to be valid.
2. Limited Warranty. Subject to Paragraph 3, and unless otherwise expressly provided herein, Seller warrants that Product will conform to Producer's published specifications, if any, of those other quality standards and/or measurements set forth herein. Seller has based any recommendations to Buyer for the use of the Product upon information considered reliable by Seller and received from Producer, by Seller, but Seller makes no warranty of the results Buyer might obtain in any particular application of Product. Subject to the foregoing, and except as otherwise expressly provided herein. Seller makes no representation or warranty of any kind with respect to product, express or implied, respecting merchantability or fitness for any particular purpose, seller makes no warranties extending beyond the description of the product, whether used alone or in combination with any other substance or in any process. These warranties extend only to Buyer.
3. Limitation of liability. Buyer will examine Product promptly after receipt for damage, defects, short-weight and non-conformance. Buyer must give Seller written notice of the existence of each claim involving Product (whether based in contract, breach of warranty, negligence, strict liability, other tort or otherwise) within three (3) days after receipt of quantity of Product forming the basis for the claim: a failure by Buyer to give such written notice within the applicable time constraint will constitute an absolute and unconditional waiver of all such claims irrespective of whether Buyer has discovered the facts giving rise to such claim, or whether further processing, manufacture, other use or resale of such Product has actually occurred. Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the Product in combination with other substances or in the operation of any process. Seller's liability to Buyer for damages, whether under breach of warranty or any other cause whatsoever, and whether under this terms or otherwise shall in no event exceed that part of the purchase price applicable to the portion of product giving rise to Buyer's claim for such damages, in no event will Seller have liability to Buyer's claim for such damages, in no event will Seller have liability to Buyer for any incidental, consequential or special damages.
4. Ordering & Limits. Seller deserves a right to discontinue any Product sold hereunder at any time, unless Buyer and Seller are bound by a pre-existing master agreement/ contract (a contract signed between parties, in which the parties have agreed the terms of work), which would prohibit such discontinuance. The orders from the Buyer are deemed to be concluded when the Seller sends to Buyer a written notice (including by fax or e-mail) as confirmation that Buyer`s order is accepted and Products will be delivered within agreed period of time.
5. Credit. Unless otherwise directed or agreed to by Seller, Buyer will make all payments hereunder in cash with wire bank transferring to Seller's bank account. If Seller determines that the financial responsibility of Buyer has become impaired or otherwise unsatisfactory to Seller, Seller may require advance cash payments or the posting of satisfactory security by Buyer, and may withhold shipments until Buyer makes such cash payments or posts such security; such action by Seller shall not constitute a change of payment terms hereunder.
6. Governmental Constrains. If a present or future law, governmental decree, order, regulation, or ruling under any existing or future legislation prevents Seller from increasing or revising the price as provided herein, or nullifies or reduces any price or price increase hereunder, upon written notice from one the other Seller and Buyer will attempt to identify mutually agreeable changes to conform this terms with such law, decree, regulation or ruling. If the parties cannot agree upon and implement such changes within sixty (60) days after such notice, Seller shall thereupon have a right to terminate the shipments forthwith by written notice to Buyer.
7. Price and Terms Adjustment. Seller and Buyer coordinate the prices with the next possible ways:
7.1. Signing the fix-term contract with the calculation of prices on a base of formula specified in the contract;
7.2. Arrangements for prices with confirming the orders received from Buyers by written or electronic (via e-mail) notice.
8. Taxes. Buyer will reimburse Seller for all federal, state, local or other taxes (other than income taxes), excises or charges, which Seller is required to pay in connection with the supply of Product hereunder, but only to the extent not already included in the price specified herein.
9. Risk of Loss. Risk of loss to the Product shall be determined with the basis of delivery of the Product in according with INCOTERMS 2010. Buyer assumes all risks and liabilities arising out of unloading, discharge, handling and use of the Product, or arising out of compliance or non-compliance with federal, state, municipal or local laws and regulations governing or controlling such activity, except to the extent, if any, attributable to Seller's gross negligence or willful misconduct. Seller has no liability for the failure of discharge or unloading the Product used by Buyer, whether or not supplied by Seller. Except to the extent attributable to the Product sold hereunder failing to meet the express warranties set forth in paragraph 2, Buyer will indemnify, defend and hold Seller harmless from all costs, expenses, damages, judgments or other loss, including costs of investigation, litigation and reasonable attorneys'' fees, arising out of Buyer's selection, use, sale and further processing the product sold hereunder.
10. Force Majeure. Either party may suspend performance hereunder (except to pay for Product already received) in the event of: (1) acts of God, fire, explosion, flood, hurricanes; (2) strikes, lockouts or other industrial disturbances or riots: (3) war, declared or undeclared; (4) compliance with any federal, state, provincial, municipal or military law, regulation, order, or rule, foreign or domestic, including priority, rationing, allocation or preemption orders or regulations, or cancellation of Product Producer's or Buyer's license to operate its plant; (5) shortage or other failure of facilities used for manufacture or transportation, shortage of labor, power, fuel or raw materials; (6) total or partial shutdown due to Producer's normal plant turnaround; or (7) any other cause or causes of any kind or character reasonably outside the control of the party failing to perform, whether similar or dissimilar from the enumerated causes ("force majeure"). In the event of force majeure renders a party unable to perform its obligations under sales according to these terms, such party shall give written notice to other party, with the full particulars including the expected duration of such force majeure, not later than 72 hours after the occurrence of the cause relied on, and upon the giving of such notice such party may suspend its obligations hereunder to the extent affected by such force majeure for the duration of the force majeure, but no longer. Upon cessation of the force majeure, performance shall resume, but such delay shall not, except by mutual agreement, operate to extend the term of this contract or obligate the Seller to make up deliveries or Buyer to purchase quantities so missed. The settlement of strikes or lockouts involving the parties hereto shall lie entirely within the discretion of the party having the difficulty, and the above requirements for remedy of any force majeure with all reasonable dispatch shall not require the settlement of strikes or lockouts by acceding to the demands of the employees involved, when deemed inadvisable by the party having the labor difficulty.
11. Safety and Health Indemnity. Buyer acknowledges that Seller has finished to Buyer Material Safety Data sheets, which include warnings together with safety and health information concerning the Product. Buyer will disseminate such information so as to give warning if possible hazards to persons whom Buyer can reasonably foresee may receive exposure to such hazards, including, but not limited to, Buyer's employees, agents, contractors and customers. If Buyer fails to disseminate such warnings and information, Buyer will indemnify, defend and save Seller harmless against any and all liability arising out of or in any way connected with such failure, including without limitation, liability for injury, sickness, death and property damage.
12. Shortage of Product. Unless otherwise prescribed under a pre-existing master agreement then in effect between Buyer and Seller, during periods when demand for Product exceeds Seller's available supply, whether due to a force majeure or otherwise, Seller may distribute Product among its customers and Buyer in such manner as Seller in its sole discretion deems practicable. Buyer will accept, as full and complete performance by Seller, deliveries in accordance with such determinations as Seller may make. Seller has no obligation to purchase material from third parties for resale to Buyer, nor will Seller bear liability for any cost increases suffered by Buyer in purchasing substitute material from a third party.
13. Cancelation of the purchase order. Purchase order can be cancelled only by mutual agreement of the parties of Purchase order. In case of the refusal to accept previously ordered goods, the Buyer shall pay the seller full price of the ordered goods, in case , if the shipment of the goods from the Producer's plant or Seller's warehouse destined to the Buyer's order has been started or transport for this shipment has already been ordered and couldn't be cancelled without fines from the Seller's side, or 10% of the price of the ordered goods, in other cases, unless otherwise confirmed by the Seller's in writing.
14. Claim on quality. In case of quality claims Buyer is obliged to provide the proofs with the conclusion of an independent entitled expert.
15. Special conditions for direct delivery from Russia to Seller with trucks. In case of direct deliveries from the Russian plant in Big Bags or Small Bags, if there is no feasibility to fulfill the delivery in time due to the lack of transport either bad weather conditions or Act of God or waiting line on the border/customs , Seller has the right:
- either to increase the delivery term having coordinated the change with Buyer without any fines for a delay in delivery;
- or to organize the delivery via warehouse provided that the price for Product will be increased by cost of extra expenses connected with warehouse procedures and an additional transport fee, at the same time such kind of the price change must be coordinated with Buyer;
- or, if parties don't manage to come to a solution under prior items of this paragraph, Seller has the right to refuse from the delivery without a reimbursement of any feasible losses to Buyer having place or supposed in future by reason of such kind refusal in the supply or partial supply. In so doing Seller is released from any responsibility for refusal in supply or in partial supply.
Supplies in Big Bags or Small Bags are possible as in tents (normal trucks) so as in box trucks (refrigerators) box trucks in case of lack of tents with defining that unloading is to be done only through back doors.
16. Lead time. In case of delivery of Product in bulk transport or in normal trucks from Seller's warehouse, minimum term of delivery since the order received is 72 hours. If there is necessity in faster delivery, Seller has the right, unless the other has been agreed in the pre-existing master agreement/contract, to increase the price for Product on cost of extra expenses incurred on the score of working of the warehouse in an overtime period if there are ones, having received acceptance of such increase from Buyer or has the right to refuse from the supply without any fines in its address.
In case of direct deliveries from Russia to Buyer with trucks the minimum time of delivery since the order received is 21 days for Buyer from the European Union and Turkey and 30 days for Buyer from other countries.
17. Time of discharge. In case of direct deliveries from Russia to Buyer with trucks, the transport unit must be discharged within working day of arrival, if it arrives not later than 2 hours before Seller's warehouse closure. In case of delivery in Bulk trucks: if the truck arrives in agreed with Buyer (period of working) time, it must be discharged within not more than 4 hours since the arrival.
For all other cases, if the truck arrives in agreed with Buyer (period of working) time, it must be discharged within not more than 2 hours since the arrival. Liability of Buyer for not the discharge during above written time in case of fines from the forwarder/carrier's side is to reimburse the full cost of such fines to Seller immediately after arising.
18. Assignment/Delegation. Buyer may assign/transfer rights and/or delegate duties/obligations hereunder only with the prior written consent of Seller.
19. Application. These terms and Conditions apply to all sales by PanaSystem Handels GmbH.
20. Governing law. These terms shall be governed, interpreted and construed by, and in accordance with, the laws of Austria. Any dispute which cannot be solved with negotiations between Buyer and Seller should be considered in Commercial court in Vienna Austria.
Updated: July, 2016