GENERAL CONDITIONS OF SALE (ref. Ducor Petrochemicals B.V. 04-2015)
1. General
1.1. The terms and conditions included in this document (the “General Conditions”) shall be applicable to all offers, order confirmations, deliveries and contracts entered into by and between Ducor Petrochemicals B.V. (the “Seller”) and any customer or buyer of services, products or goods from Seller (the “Buyer”). The General Conditions shall form an integral part of any contract entered into between Seller and Buyer.
1.2. Seller reserves the right to periodically amend and update the General Conditions. By entering into a contract with Seller, Buyer accepts these General Conditions, without limitation or qualification, and accepts any future periodical update and modification of it. No other general terms and conditions shall be applicable or set aside these General Conditions unless expressly agreed in writing by Seller.
1.3. No waiver of any breach or default under these General Conditions or any of the provisions hereof shall be effective unless such waiver is in writing and has been signed by the party against which it is asserted. No waiver of any such breach or default shall constitute a waiver of any other or subsequent breach or default.
1.4. Any quotation made by Seller to a (potential) buyer shall be without engagement and cannot be construed as a binding offer but as an invitation to submit a binding offer. The contract between Seller and Buyer can also be formed by the confirmation of the order by Seller.
1.5. Unless otherwise agreed in a contract between Seller and Buyer, any and each order or sale of goods between Seller and Buyer shall each form an individual (sale) contract between Seller and Buyer. Nevertheless, If it is legally established that the contract between Seller and Buyer can be interpreted as a continuing performance agreement, Seller shall be entitled to terminate such continuing performance agreement, in whole or in part, without having to pay any damages, losses or costs, by giving a three months notice to Buyer.
2. Obligations of Seller
Delivery and transfer of risk
2.1. Delivery and transfer of risk terms will be interpreted in accordance with the Incoterms of the International Chamber of Commerce as specified in the contract. Unless specified otherwise any term of delivery included in the contract is indicative and implies a best effort duty on behalf of Seller.
Conformity
2.2. The goods conform to the contract when the specifications expressly provided in the contract are met or the usually acceptable and reasonable variations thereof. Buyer accepts that quantities of the goods may vary within reasonable limits. Unless provided otherwise in writing by Seller, Seller does not warrant that the goods are fit for any specific purpose. It is Buyer’s duty to investigate and test the goods in respect of its purpose and to check the compliance of its import, delivery, storage and compliance with the laws of the countries concerned. Any possible advice by Seller, technical or other, with regard to the goods and their applications is not part of Seller’s obligations under the contract and is only given for Buyer’s convenience and to Seller’s best knowledge, without any liability on Seller except in case of willful misconduct.
2.3. Buyer shall forfeit its right to claim conformity of the goods if Buyer does not provide detailed notice to Seller (specifying the nature and extent of the alleged lack of conformity) within 10 days after receipt of the goods and to the extent such non conformity cannot be discovered by reasonable examination, within 10 days after Buyer discovered or ought to have discovered such non conformity, and in any event within one year from the date the goods were actually handed over to Buyer.
2.4. Unless agreed upon otherwise in the contract, It is Buyer’s responsibility to seek compensation from the carrier for damaged or missing freight. Notice of claims arising out of damage in transit must be lodged by Buyer directly to the carrier within the period specified in the contract of carriage, providing Seller with a copy thereof. Seller shall not be liable for any claims or damages resulting from a delay in delivery or failure to perform by the carrier.
Liability and remedies
2.5. Seller will not be liable if, as a consequence of an event or circumstance reasonably beyond Seller’s control, and/or any circumstance which Seller is unable to prevent, the performance of an obligation is rendered reasonably impossible or commercially impractical such as, but not limited to, strikes, lock-outs or other industrial actions, shortages of raw materials, water or energy, obstruction of transportation, sabotage, breakdown of manufacturing equipment, governmental intervention, unexpected default of suppliers or subcontractors of Seller, riots and other disturbances, periods of national mourning stipulated by the authorities, fire, etc.
2.6. If Seller is unable to execute a contract temporarily or permanently as a result of force majeure, as provided in clause 2.5, or if after concluding the contract circumstances arise that could not have been reasonably foreseen at the time of concluding the contract and which are of such a nature that by standards of reasonableness and fairness Buyer cannot demand from Seller that the contract is maintained unchanged, Seller is entitled, without legal intervention and without being obliged itself to pay any compensation for loss or damage, to dissolve the contract either in its entirety or in part.
Limitation of damages
2.7. In no event shall Seller be liable for indirect or consequential damages, including but not limited to loss of production, profit loss, personnel costs, loss of opportunities and/or damage to any third party, arising out of or in connection with the goods sold under the contract. In no event shall Seller’s liability exceed the higher of the purchase price of the goods in question or the amount paid out by the liability insurance of Seller for the incurred damages.
3. Obligations of Buyer
Price and payment
3.1. All prices are exclusive of any VAT and any other taxes, if applicable. Regardless of the place of delivery of the goods and documents, the place of payment shall be Seller’s place of Seller’s registered office.
3.2. The prices for products ands services provided by Seller shall be as stated on Seller’s price list, which can be amended and updated by Seller from time to time without prior notice. The list prices in effect at the date of delivery shall apply; if a list price in effect at the date of delivery deviates from the price mentioned on an order confirmation, Sellers’s has the right to charge the list price at the date of delivery to Buyer.
3.3. Payments shall be made by Buyer within 30 days of the date of the invoice unless agreed upon otherwise by parties. In case of late payment Seller shall be entitled, without prior notice to charge interest at a rate of 10% per year over the outstanding amount of the invoice and/or an indemnity for the administrative costs incurred by Seller at a rate of 5% of the outstanding amount of the invoice. Any of the foregoing shall be without prejudice to Seller’s right to compensation for additional actual damages and costs suffered, such as legal costs. Delay in payment is a fundamental breach if it persists after notice.
3.4. All sums payable by Buyer shall be paid free and clear of all deductions or withholdings for whatever reason and if such may be required by law the person being obliged to make such payment will make such additional payment to Seller that Seller will be paid in full.
3.5. Any claim on Buyer may be pledged by Seller to Deutsche Bank A.G., Amsterdam Branch, Lichtenauerlaan 150, 3062 ME Rotterdam, the Netherlands. In such case Buyer will find such information in the invoice and/or order confirmation. Payment with valid discharge can then only be done in the currency of the invoice into Deutsche Bank’s bank account 319.853.454 (IBAN NL47DEUT0319853454 SWIFT DEUTNL2N) held with Deutsche Bank Amsterdam. Please make reference to the name of Ducor Petrochemicals B.V. and the invoice number(s) in your order confirmation.
3.6. Buyer may not grant any pledge, privilege or any other security interest on the goods and will immediately inform Seller of any right, claim or action invoked by any third party regarding the goods. Buyer shall on first request, provide Seller with the identity and address of (the owner of) the premises where the goods are stored..
Remedies
3.7. In case of any (anticipatory) breach by Buyer, bankruptcy or liquidation of Buyer, attachment of Buyer’s assets or any insolvency proceeding, Seller shall be entitled, without prejudice to any other remedies (such as damages and exercise of its retention of title), to suspend the performance of its own obligations, even if these obligations relate to another contract, or to declare the contract avoided by written notice.
Retention of title
3.8. The right of property in the products and services delivered by Seller shall remain vested in Seller until the purchase price has been paid in full by Buyer including any damages, costs and interest. Seller shall be entitled to repossess, process and/or resell the goods, until then Seller shall keep the goods individualized.
3.9. The retention of title shall (to the fullest extent possible under the applicable law) also apply to (i) the finished products if the goods have been processed; (ii) the price to be received by Buyer when reselling the goods or the finished products; (iii) the retention of title to be agreed between Buyer and its own customer if said customer did not pay the full purchase price in advance or upon delivery. Buyer assigns to Seller all its claims arising from such resale, including the retention of title.
4. Miscellaneous
4.1. Should any part, term or provision of the contract and/or these General Conditions be declared invalid, void or unenforceable, all remaining parts, terms and provisions hereof shall remain in full force and effect and shall in no way be invalidated, impaired or affected thereby. Parties will substitute the invalid, void or unenforceable provision with a valid and enforceable provision which reflects as near as possible the intention of the Parties as referred in the provision to be substituted.
4.2. The obligations of the parties under the contract and these General Conditions which by their nature would continue beyond termination, cancellation or expiration of the contract and these General Conditions will survive termination, cancellation and/or expiration.
4.3. Unless explicitly stipulated otherwise in the contract, the contract and/or the General Conditions do not contain any third-party stipulation in the meaning of Section 6:253 of the Dutch Civil Code.
4.4. These General Conditions are available in German and English. If there is any discrepancy between the German text and the English text, the latter shall be binding.
Dispute resolution
4.5. The contract between Seller and Buyer, these General Conditions and/or any non-contractual obligation in connection with it or arising out of it, shall be governed by and construed in accordance with the United Nations Convention on Contracts for the International Sale of Goods (even when both contracting parties are both located and/or have their registered office in the same country) and complementary thereto by the laws of the Netherlands.
4.6. All disputes arising out or related to any contract, these General Conditions or any non-contractual obligation in relations thereto shall be settled by the courts of the Rotterdam, The Netherlands. Seller may however, at its sole discretion, commence proceedings before the courts of Buyer’s registered offices.