GENERAL CONDITIONS OF SALE
ICL Performance Products Europe
of the Prolactal GmbH
Hereinafter referred to as Prolactal
1. GENERAL APPLICABILITY
These General Conditions of Sale and the express terms contained in any related Contract for Sale constitute the complete agreement of the seller (the “Seller”) and the buyer (the “Buyer”). These General Conditions of Sale prevail over any other terms and conditions (oral or written) pertaining to the sale of the Seller’s products to the Buyer, and may be amended or supplemented only by written document duly signed by an authorized representative of each party. Neither receipt by the Seller of any form of terms and conditions or other document, nor annexing or enclosing the same to any document, shall be deemed to amend the terms hereof, incorporate such terms herein or shall constitute Seller’s acceptance of them.
Throughout these General Conditions of Sale, the following terms shall have the respective meanings set forth below:
“Applicable Law and Regulations” means laws and regulations (i) applicable to the Seller in all places where the Seller does business, (ii) applicable to the Products provided pursuant to this Agreement, including without limitation, such laws and regulations applicable at the place of delivery, or (iii) required by the law governing these General Conditions of Sale.
“Contract for Sale”means, collectively, this General Conditions of Sale, the Purchase Order and the Order Confirmation, whereby Seller and Buyer agree, among other things, the type and quantity of the Products to be sold by Seller and purchased by Buyer, the term of the contract, the pricing of the Products, and the payment terms.
“Incoterms” means the International Commercial Terms published by the International Chamber of Commerce as per the edition stated in the Contract of Sales.
“Order Confirmation”means a confirmation issued by Seller to Buyer as a response to a Purchase Order, confirming the Products to be supplied by Seller pursuant to the Contract for Sale.
“Products means products sold by Seller to Buyer pursuant to the Contract for Sale.
“Purchase Order means an order issued by Buyer to Seller for the supply of Products by Seller.
3. ESTABLISHMENT OF THE AGREEMENT
Any offer or quotation issued by the Seller and any Purchase Order issued by the Buyer shall bind the Seller only after the issuance by the Seller of an Order Confirmation.
The prices of the Products shall be as specified in the Contract for Sale or the Order Confirmation, subject to adjustment in accordance with these General Conditions of Sale.
5. DELIVERY AND RISK
– 5.1 Delivery terms are subject to and shall be interpreted in accordance with the terms of the Incoterms set forth in the Contract of Sale.
– 5.2 The Seller may deliver the Products in partial deliveries and invoice the Buyer for each such partial delivery accordingly.
– 5.3 The Seller shall deliver the Products to the location specified in the Order Confirmation. Risk of loss or damage to the Products shall pass to the Buyer on delivery on the location as set out in the Order Confirmation, in accordance with the provisions of the agreed Incoterms. Seller shall have no liability regarding the Products once they are delivered to the Buyer, except as explicitly provided herein.
– 5.4 Each delivery shall be considered as separate from other deliveries and the failure of any delivery shall not be a breach of the Contract for Sale as to others.
– 5.5 If delivery is delayed through the Buyer’s default or if the Buyer rejects or delays accepting delivery of the Products for more than three (3) business days from the date of delivery set forth in the Purchase Order, then the Seller may (without prejudice to any other right or remedy available to it) do the following:
– a) Sell the Products for the Seller’s account; and/or
– b) Claim from the Buyer any costs and expenses incurred by the Seller as a result of such rejection or delay; and/or
– c) Store the Products for the Buyer at the Buyer’s expense; and/or
– d) Cancel the delivery of the Products ordered under the relevant Purchase Order or cancel the Contract for Sale with regard to any Products that remain to be delivered under the Contract for Sale.
– 5.6 The Seller’s rights under this Section shall not be deemed waived or otherwise prejudiced by the Seller’s delivery of the Products under an Order Confirmation.
– 5.7 Buyer shall inform Seller, upon request, if he intends to re-export the Products from the country of destination.
6. WEIGHT AND QUANTITY
– 6.1 The Seller shall be deemed to have complied with the terms of the Contract for Sale if it shall supply an excess or deficiency of up to five (5) percent of the quantity specified in the Order Confirmation. The Buyer shall pay for the quantity actually delivered, and shall not be entitled to reject the delivery of the Products.
– 7.1 Payment shall be done in accordance with the payment instructions set out in the Order Confirmation or on the invoice.
– 7.2 If the Buyer fails to pay when such payment becomes due, the Seller may, in its sole discretion, and without prejudice to any right or remedy available to it, terminate or suspend future deliveries of Products to Buyer. If the Buyer’s financial credit worthiness becomes unsatisfactory to the Seller, the Seller may, in its sole discretion: (i) withhold future shipments of Products until Buyer’s financial credit worthiness has been established to the Seller’s satisfaction; (ii) require the Buyer to make upfront cash payments as to not delivered but confirmed orders or future shipments; (iii) require other security for payment before future shipments of Products are provided to the Buyer including but not limited to financial statements, a letter of credit by an entity approved by the Seller, or a payment guarantee by a parent or affiliate of the Buyer; (iv) demand return from the Buyer, at its sole expense, of any Products for which payment has not been made but have been delivered; or (v) cancel the Contract for Sale in accordance with Section 14. The Buyer shall be liable under the aforesaid circumstances for any and all losses and damages the Seller may suffer related thereto.
– 7.3 Without prejudice to any other right or remedy available to it, any default by the Buyer to make any payment shall entitle the Seller to the following:
– a) Calculated as of the invoice date, an interest of three months Euribor plus 2 (two) percent a year on the amount in default; and
– b) Reimbursement of all costs, including collection costs, incurred by the Seller to recover all or part of its payment claims from the Buyer.
– 7.4 The Buyer shall not be entitled to withhold payment or to deduct from the price invoiced to it, including but not limited to on the ground that it has a claim or set-off against the Seller.
– 7.5 The remedies contained in this Section are (where applicable) cumulative and shall be in addition to any other remedies available to the Seller under applicable law.
8. RETENTION OF TITLE
– 8.1 Notwithstanding actual delivery, title to the Products shall pass to the Buyer once full payment for the Products is received by Seller.
– 8.2 Until title to the Products has passed to the Buyer, Buyer is not entitled to resell the Products, grant use of the Products, or pledge or otherwise encumber the Products. At Seller’s request Buyer must immediately inform such third party of Seller’s ownership rights.
9. FORCE MAJEURE
– 9.1 Seller shall not be liable to the Buyer, nor be deemed to have breached this Contract for Sale, for any failure or delay in fulfilling or performing any term of this General Conditions of Sale or the Contract for Sale, except for any obligations to make payments to the other party hereunder, when and to the extent such failure or delay results from the following force majeure events: war, riot, sabotage, acts of terrorism, explosion, accident, flood, fire, or other acts of God, lack of adequate fuel, power, raw materials, containers or transportation facilities, compliance with governmental requests, laws, regulations, orders or actions, breakage or failure of machinery or apparatus, national defense requirements, or labor disruption, strike lockout or injunction, and in no event shall Seller be required to settle a labor dispute against its own best judgment.
– 9.2 If Seller determines that any such event has occurred, Seller shall notify Buyer of the force majeure within five (5) business days. Seller may suspend or cancel deliveries or may allocate its available supply of Products, goods or materials, in Seller’s sole discretion. Seller is not required to procure additional supplies of Products from third parties for delivery and sale to Buyer. If Seller’s performance is suspended for more than one (1) month due to force majeure, Seller may, at its option, terminate the Contract of Sale with immediate effect upon written notice to the Buyer.
10. ECONOMIC HARDSHIP
The Seller may, at any time during the term of the Contract for Sale and with reasonable notice to the Buyer (i) adjust the price of the Products for reasons including but not limited to, changes in market conditions, changes in applicable rates, duties, taxes or changes relating to the Products and/or increases in the prices of energy, raw materials or other materials necessary for the manufacture of the Products or (ii) to terminate the Contract of Sale.
In addition to the other rights and remedies of the Seller set forth herein, if at any time during the term of the Contract for Sale, the Seller experiences any event that causes the continued manufacture or sale of the Products to the Buyer to be uneconomical, or otherwise creates an economic hardship for the Seller, then the Seller may, at its sole option and upon written notice to the Buyer, either (i) increase the price of the Products, unless the price has been indicated as final by the Seller, to cover such economic hardship; or (ii) terminate the Contract of Sale upon thirty (30) days prior written notice to the Buyer.
11. REPRESENTATIONS AND WARRANTIES
– 11.1 The Seller warrants that, as of the date of the delivery by the Seller, the Products delivered in accordance with the Contract for Sale meet the Seller’s specifications for the Products. This warranty is specifically made and limited to Buyer in respect of the Products delivered to it in accordance with the Contract for Sale. The Seller makes no other representation or warranty of any kind, express or implied, as to merchantability, fitness for particular purpose, or any other matter with respect to the Products. Warranties and other certificates of the Products are only valid for in the country of destination set forth in the Contract of Sales. In the event the Products are sold on the basis of samples, the sample shall be deemed indicative only.
– 11.2 Buyer, and its affiliates, hereby represents and warrants to Seller that it is not listed on any sanctioned party list issued by any nation, including, without limitation, the United States of America, any member state of the European Union or the place where the order is to be delivered. Buyer shall notify Seller immediately in the event Buyer, any of its affiliates, or their respective employees, officers and directors are so listed. The Seller may terminate the Contract for Sale immediately, without any liability and payment of any costs or damages, in the event of breach by the Buyer of its representation and warranty.
– 11.3 In the event that Seller imports the Products into the European Union for the Buyer, Buyer hereby represents and warrants that it shall observe all relevant customs laws and regulations applicable. Upon request of Seller, Buyer shall provide Seller with all information and documents required by Seller to comply with the Applicable Laws and Regulations.
– 11.4 The Buyer represents and warrants that it is aware that the Products, by their very nature, may be hazardous and, if so, shall apply the necessary professional and legal standards of diligence and shall strictly follow the Seller’s instructions regarding the use, handling, storage and maintenance of such Products.
– 11.5 For the purposes of the sale of the Product contemplated under the Contract for Sale, the Buyer shall be the sole responsible for the approval of the Products under the foodstuffs regulation in the country of destination.
12. INSPECTION; INDEMNIFICATION; LIMITATIONS OF LIABILITY
– 12.1 Delivered goods must be inspected immediately upon receipt and before processing or transferring them to third parties. All claims for any cause whatsoever shall be deemed waived unless made in writing and received by the Seller within twenty (20) days of the delivery of the Products giving rise to such claim. For any claims that cannot be reasonably discovered within this period, Buyer shall have sixty (60) days from the date of the Buyer’s receipt of the Products giving rise to the claim to make such claim in writing to Seller, or fifteen (15) days from the date Buyer learns of the facts giving rise to such claim, whichever occurs first. Failure by the Buyer to provide the Seller with written notice of any claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or whether processing, further manufacture, other use or resale of the Products shall have then taken place. In no event shall the Seller be liable for transportation charges for the return of the Products unless authorized in writing and in advance by the Seller. Once the delivered Products are treated or processed, mixed or combined with other materials, they shall be deemed to have been approved by Buyer as complying with the Contract for Sale. Any warranty claim, in particular claims for damages, shall be excluded thereafter.
– 12.2 The Seller and its affiliates shall not be liable to the Buyer for, and the Buyer assumes all liability for, and Buyer agrees to defend, indemnify and hold Seller, its affiliates, and its and their respective directors, officers, employees, agents and suppliers, representatives, harmless against all losses, claims, suits, damages, liabilities, costs, and expenses (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) resulting from or arising out of (i) the Buyer’s breach of the Contract for Sale, (ii) the Buyer’s distribution, possession, further manufacture, transportation, use or resale of the Products or any product or waste derived therefrom, whether such Products are used alone or in combination with other goods, (iii) the negligence or willful misconduct of the Buyer or its employees or agents, (iv) the Buyer’s discharge or release of the Products or any product or waste derived therefrom into water, onto land or into the air, (v) the Buyer’s exposing any person (including the Buyer’s employees) to the Products or any product or waste derived therefrom, including failure to warn of such exposure or (vi) any act (or failure to act) by the Buyer or its employees, agents or any person or entity acting on its or their behalf, in contravention of any applicable law, or any safety procedures or instructions that the Seller provides to the Buyer or its employees, agents or any person or entity acting on its or their behalf, except to the extent such losses, claims, suits, damages, liabilities, costs and expenses are a direct result of the Seller’s gross negligence or willful misconduct.
– 12.3 The Seller’s total liability to Buyer arising out of any cause whatsoever shall in no event exceed the purchase price of the Products giving rise to such cause or, at the Seller’s option, the repair or replacement of such Products. In no event will the Seller be liable for any indirect, special, incidental, exemplary, or consequential damages, including but not limited to any loss of use or under-utilization of labor, materials or facilities, loss of revenue or (anticipated) profits, loss of goodwill, lost data, and costs of procurement of substitute products.
13. SAFETY AND HEALTH INFORMATION AND COMMUNICATIONS
– 13.1 The Buyer acknowledges that it has consulted the Seller’s documents and information concerning the Products, that it has read and it understands such information, and that it agrees to incorporate such information into its personnel safety programs.
In addition to any other remedies that the Seller may have, the Seller may terminate the Contract for Sale with immediate effect upon written notice to the Buyer, if the Buyer: (i) fails to pay any amount when due under the Contract for Sale and such failure continues for five (5) days after the Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these General Conditions of Sale or the Contract for Sale, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. INTELLECTUAL PROPERTY
– 15.1 If Buyer refills, processes mixes or otherwise modifies the Products labelled with a brand name or a trademark with other substances or the like, the brand name or trademarks may then only be used subject to Seller’s written consent.
– 15.2 Buyer shall not modify the packaging of the Products, including without limitation labelling, overprinting and instructions.
– 15.3 The Contract for Sale shall not include the transfer of any intellectual property rights, and Buyer shall not use Seller’s brand name or trademarks in any advertising or communications to the public in any format except with the prior written consent of Seller.
The Agreement shall be binding upon and inure to the benefit of the respective successors of the parties hereto, but it shall not be transferred or assigned by the Buyer without the prior written consent of the Seller. The Seller shall have the right to assign the Contract for Sale to any of its affiliates without the Buyer’s consent, including the right to assign the receivables due to it from Buyer or any other third party, as the case may be, to a third party without any limitation and without notice to the Buyer.
Delay or failure by either party in exercising any right hereunder shall not constitute a waiver of that or any other right or subsequent right in the Contract for Sale, except as otherwise specifically set forth herein.
If any provision or part of a provision of the Contract for Sale shall be, or be found by any authority, tribunal or court of competent jurisdiction to be, invalid or unenforceable, such validity or enforceability shall not affect the other provisions or parts of such provisions of the Contract for Sale, all of which shall remain in full force and effect.
19. GOVERNING LAW AND JURISDICTION
The Agreement shall be governed and construed in all respects in accordance with the laws of the jurisdiction of the Seller, without regard to the conflict of law provisions thereof. Jurisdiction and venue in any legal proceeding between Seller and Buyer will be in the courts where the Seller’s home or registered office is located. The rights and obligations of the parties under the Contract for Sale shall not be governed by or construed in accordance with the provisions of the convention for the UN International Sale of Products.