TERMS AND CONDITIONS OF COMMERCIAL SALE
(the “Terms and Conditions”)
1. SALES ORDER, CONFIRMATION OR AGREEMENT
Any Sales Order is expressly made conditional on Buyer’s assent to all of the terms contained in the Sales Order without deviation. Acceptance by Buyer of an Sales Order may be evidenced by (i) Buyer’s written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer’s acceptance of delivery of the Products or payment of purchase price for the first installment of the Products (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Sales Order.
Crevel’s Sales Orders are open for acceptance within the period stated by Crevel in the Sales Order or, when no period is stated, within five (5) days from the date of the Sales Order, but any Sales Order may be withdrawn or revoked by Crevel at any time prior to the receipt by Crevel of Buyer’s acceptance related thereto.
If Crevel receives an order from Buyer for the sale by Crevel and purchase by Buyer of Products and such order is not a response to an Sales Order by Crevel, or if Crevel receives an order or acceptance by Buyer which deviates from Crevel’s Sales Order, such order or acceptance, respectively, shall be deemed to be a request for an Sales Order only.
An acceptance by Buyer of any Sales Order made by an order gatherer, liaison officer, agent or sales representative for Crevel shall constitute an Agreement between Crevel and Buyer upon explicit Confirmation by Crevel itself.
2. PRODUCTS, QUANTITIES AND PRICING
Unless otherwise specifically agreed in written, prices in any Sales Order, Confirmation or Agreement are in Euros and do not include any taxes, duties, transport costs or similar levies, now or hereafter enacted, applicable to the Products. Crevel will add taxes, duties, transport costs and similar levies to the sales price where Crevel is required by law to pay or collect them and will be paid by Buyer together with the price.
- Unless agreed otherwise between Crevel and Buyer in writing, all sales made by Crevel shall be deemed as performed Ex Works, at Mrazirny StoXFrost, s.r.o. Prerusena 189, 16000. Prague – Czech Republic.
- Crevel will invoice invoice Buyer for the price of the Products prior to delivery. Net payment is due within five (5) days of date of invoice unless agreed otherwise between Crevel and Buyer in writing. All payments shall be made to the designated Crevel’s address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Crevel. Interest will accrue on all late payments, at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is lower, from the due date until payment in full.
- All deliveries and performance of work agreed to by Crevel shall at all times be subject to credit approval of Crevel. If, in Crevel’s judgment, Buyer’s financial condition at any time does not justify performance of work or delivery on the above payment terms, Crevel may require full or partial payment in advance or other payment terms as condition for delivery, and Crevel may suspend, delay or cancel any credit, delivery or any other performance by Crevel.
- Buyer shall not offset, withhold or reduce any payment(s) due by it to Crevel. The payment of fees and charges is a covenant of Buyer that is independent of the other covenants made by the parties hereunder.
- If Crevel incurs exchange rate losses due to Buyer’s failure to pay when payments are due, Crevel shall be entitled to equivalent compensation from Buyer for such losses.
- In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Crevel shall have the right to refuse performance of any work and delivery of any Products until payments are brought current and Crevel may suspend, delay or cancel any credit, delivery or any other performance by Crevel. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under these Terms and Conditions or at law or in equity.
4. DELIVERY AND QUANTITIES
- Products shall be sold Ex Works Free Carrier (EXW) Incoterms® at Mrazirny StoXFrost, s.r.o. Prerusena 189, 16000. Prague – Czech Republic or other facility designated by Crevel, unless otherwise agreed in writing between Crevel and Buyer.
- Upon request of Buyer, Crevel can assist and coordinate and the pickup and delivery of the Products sold to the address designated by Buyer. Any delivery dates communicated or acknowledged by Crevel are approximate only, and Crevel shall not be liable for, nor shall Crevel be in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. Crevel agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order, delivery information and requirements (including import/export documentation) sufficiently prior to the agreed delivery date.
- In the event Buyer contests delivery, Buyer must request a proof of delivery from Crevel within ninety (15) days of the date of Crevel’s invoice, otherwise delivery shall be deemed completed.
- Title in the Products shall pass to Buyer upon Crevel’s issuance of an invoice, and payment in full of the purchase price in respect thereof will be mandatory. Risk of loss in the Products shall pass to Buyer upon time in which Crevel makes the Products available to Buyer at Mrazirny StoXFrost, s.r.o. Prerusena 189, 16000. Prague – Czech Republic or other facility designated by Crevel.
- If Buyer fails to take delivery, then Crevel may retain the Products in consignment at Buyer’s costs and expenses.
- In the event of shortages Crevel shall allocate its available Products, in its sole discretion, among its customers and as a result may sell and deliver to Buyerfewer Products than specified in Crevel’s Sales Order, Confirmation or Agreement, as the case may be.
Prices are subject to change, at any time, by Crevel prior to the issuance of a Sales Order, Confirmation or Agreement, as the case may be.
6. RESCHEDULING AND CANCELLATION
No confirmed Sales Order may be rescheduled or cancelled without Crevel’s prior written consent. Any Sales Order, that has been confirmed by the Buyer for over twenty (24) hours, can be cancelled upon an agreement between Buyer and Crevel. In any such case, Crevel has the right to charge an administration fee of One Hundred Euros (100€).
7. FORCE MAJEURE
Crevel shall not be liable for any failure or delay in performance if:
- such failure or delay does not result from its fault; or
- such failure or delay is caused by Force Majeure as defined below or by law.
In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Crevel being responsible or liable to Buyer for any damage resulting therefrom.
The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond Crevel’s reasonable control (whether or not foreseeable at the time of the Sales Order, Confirmation or Agreement) as a result of which Crevel cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, terrorism, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, nonavailability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Crevel to extend for a period of three (3) consecutive months), Crevel shall be entitled to cancel all or any part of the Agreement without any liability of Crevel towards Buyer. Crevel shall have the right to allocate its available Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in Crevel’s Sales Order, Confirmation or Agreement, as the case may be.
8. LIMITED WARRANTY AND DISCLAIMER
- Crevel’s sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims with regards to the Products shall be limited, at Crevel’s option, either to (a) the replacement or repair of a defective or non-conforming Product, or (b) an appropriate credit for the purchase price thereof. Crevel will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become Crevel’s property as soon as they have been replaced or credited for.
- Notwithstanding the foregoing, Crevel shall have no obligations if the alleged defect or non-conformance is found to have occurred as a result of: misuse, neglect, improper handling, accident, improper repair, alteration, modification, improper storage, improper transportation or improper handling of the Products, after the risk of loss in the Products has passed to Buyer.
- Buyer may ship Products returned under claims to Crevel’s designated facility only so long as the returns are in conformance with Crevel’s then-current return material authorization policy and are accompanied by a duly completed return material authorization form issued by Crevel. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.
9. LIMITATION OF LIABILITY
- NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST SAVINGS, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CREVEL BE LIABLE FOR ANY DAMAGE, COSTS OR EXPENSES ASSOCIATED WITH PRODUCT COMPLIANCE OR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS, WHETHER FOR THE REPLACEMENT OR RECALL OF PRODUCTS, OR OTHER COSTS INCURRED BY BUYER AND, IN PARTICULAR, ANY COSTS RELATED TO THE REMOVAL OR RECALLING OF ANY PRODUCTS AS REQUIERED BY THE CORRESPONDING AUTHORITIES.
Except for non-confidential documentation provided to Buyer for distribution with a corresponding Product, Buyer acknowledges that all commercial and financial information disclosed to Buyer by Crevel is the confidential information of Crevel. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transactions contemplated herein.
11. COMPLIANCE WITH LAWS
Each party hereto represents that it is duly authorized to enter into these Terms and Conditions and represents that with respect to its performance hereunder, it will comply with all applicable laws.
If the delivery of Products under these Terms and Conditions is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Crevel may suspend its obligations and Buyer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Crevel may even terminate any Agreement related to such Products, without incurring any liability towards Buyer.
Furthermore, if an end-user statement is required, Crevel shall inform Buyer immediately thereof and Buyer shall provide Crevel with such document upon Crevel’s first written request; if an import license is required, Buyer shall inform Crevel immediately thereof and Buyer shall provide Crevel with such document as soon as it is available.
12. ASSIGNMENT AND SETOFF
Buyer shall not assign any rights or obligations under these Terms and Conditions or any Agreement without the prior written consent of Crevel. Buyer hereby waives any and all rights to offset existing and future claims against any payments due for Products sold under these Terms and Conditions or under any other agreement that Buyer and Crevel may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf. Crevel is allowed to assign any rights or obligations under these Terms and Conditions and any Agreement to its affiliates or to any third party in connection with a merger or a change of control.
13. GOVERNING LAW AND FORUM
These Terms and Conditions, and all Sales Orders, Confirmations and Agreements, are governed by and construed in accordance with the laws of the Federal Republic of Germany. All disputes arising out of or in connection with these Terms and Conditions, or any Sales Order, Confirmation or Agreement, shall first be attempted by Buyer and Crevel to be settled through consultation and negotiation in good faith and a spirit of mutual understanding. All disputes that are not so settled within a period of thirty (30) days from the date the relevant party notified the other party to that effect, shall be submitted to the courts of Berlin, Federal Republic of Germany, provided that Crevel shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions, or any Sales Order, Confirmation or Agreement.
14. BREACH AND TERMINATION
Without prejudice to any rights or remedies Crevel may have under these Terms and Conditions or the Agreement or at law, Crevel may, by written notice to Buyer, terminate with immediate effect any Agreement, or any part thereof, without any liability whatsoever, if:
- Buyer fails to make payment for any Products to Crevel when due;
- Buyer fails to accept conforming Products supplied hereunder;
- any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or
- Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement.
Upon occurrence of any of the events referred to above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.
In the event that any provision(s) of the Agreement or these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof.
The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from any Sales Order, Confirmation or Agreement, or these Terms and Conditions, shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising therefrom preclude any other or future exercise thereof or the exercise of any other right or remedy arising from any Sales Order, Confirmation or Agreement, or these Terms and Conditions or by law.
All notices and communications to be given under these Terms and Conditions shall be in writing and shall be deemed delivered upon hand delivery, confirmed facsimile communication, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their addresses set forth on the Sales Order, Confirmations and/or Agreement.
18. ATTORNEYS' FEES
Should a dispute arise from the subject matter of any Sales Order, Confirmation or Agreement, or these Terms and Conditions, the prevailing party in any resulting litigation shall be reimbursed by the other party for any and all reasonable attorneys’ fees and expenses incurred.
19. RELATIONSHIP OF PARTIES
The parties hereto intend to establish a relationship of buyer and Crevel and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other; unless in such case in which Buyer requests Crevel to coordinate the delivery of the Products purchased.
20. MODIFICATIONS AND CHANGES
Crevel reserves the right to make any amendments or modifications to these Terms and
Conditions at any time. Such amendments and modifications shall have effect (1) on all Sales
Orders, Confirmations and Agreements referring to such amended or modified Terms and Conditions as from the date of such Sales Order, Confirmation or Agreement, and (2) on any existing Agreement thirty (30) days from notification of such amendments or modifications by Crevel to Buyer, unless Buyer has notified Crevel within such thirty (30) days period that it objects thereto.
In this Agreement the terms defined hereunder shall have the following meaning:
‘Agreement’ any agreement resulting from an Sales Order or Confirmation, and any agreement incorporating these Terms and Conditions by reference;
‘Confirmation’ all acceptances, acknowledgements or confirmations by Crevel of any order of Buyer, including without limitation orders of Buyer resulting from any pricing or other framework agreement between any Buyer and Crevel;
‘Products’ the products sold by Crevel;
‘Sales Order’ all quotations and Sales Orders of Crevel to Buyer;
‘Crevel’ Crevel Europe, GmbH, a Germany Corporation, incorporated under the laws of the Federal Republic of Germany.