Condizioni generali di vendita
GENERAL TERMS AND CONDITIONS
1. Interpretation of Trade Terms
Trade terms shall be interpreted in accordance with the edition of INCOTERMS 2020 (“INCOTERMS”). If this Contract does not specify trade terms as defined in INCOTERMS, risk of loss (but not title) shall pass to Buyer upon delivery into the custody of the carrier.
2. Seller’s Commitments
2.1 Seller undertakes that the Product will at the time of delivery meet Seller’s then current Sales Specifications, or if different, such specifications that are acknowledged and agreed by the Parties in writing to be binding in relation to a Product, (in each case, “Specifications”). Seller will notify Buyer if the Specifications are changed. All descriptions, drawings, photographs, illustrations, performance and technical data, dimensions, weights and the like, contained in any promotional or technical literature issued by Seller are subject to variation without notice and are not designed to constitute Specifications. Seller may cancel this Contract on 15 days’ notice if Buyer fails to comply with any of its commitments under this Clause 2.
2.2 Seller will supply Buyer with current Safety Data Sheet ("SDS") as provided by Regulation (EC) No. 1907/2006 (the REACH Regulation) regarding the Product. The uses identified in the SDS applicable to the Product within the meaning of the REACH Regulation do not constitute an agreement between the Parties as to the technical and commercial specification of the Product or any specific application.
2.3 Subject to Clause 8 hereof, Seller will convey the Product with good title, free from any lawful lien or encumbrance.
3. Responsible Practices
3.1 Buyer will (i) familiarise itself with any product literature or information Seller provides under Seller’s product stewardship program, including SDS, (ii) follow safe handling, use, selling, storage, transportation, and disposal practices, including special practices as Buyer’s use of the particular Product requires, and instruct its employees, contractors, agents and customers in these practices and (iii) take appropriate action to avoid spills or other dangers to persons, property or the environment.
3.2 Buyer shall not on-sell and/or supply any Product to any Third Party Buyer without Seller’s prior written consent, which consent is in Seller’s sole discretion. In the event Seller gives such consent, Buyer acknowledges and agrees that any such on-sale and/or supply by (or on behalf of) Buyer will always and exclusively be conducted on the basis that (i) the respective transaction (on-sale and/or supply) will be executed and/or conducted in Buyer’s name, and (ii) Buyer is solely and exclusively responsible and liable for that transaction vis-à-vis the Third Party Buyer with no recourse whatsoever to Seller. For the purposes hereof, “Third Party Buyer” means any entity that is not an Affiliate of Buyer and buys (the) Product(s) from Buyer.
3.3 Buyer represents and warrants that (1) it will use the Product in compliance with applicable export control and sanctions laws and any diversion or transfer contrary to such laws is prohibited, (2) it is not subject to any economic sanctions that would prohibit Seller’s delivery of Product to Buyer, (3) Product will not be used in connection with or support of any chemical, biological or nuclear weapons activities, including activities related to missiles capable of delivery of such weapons, and (4) Product will not be exported, reexported or transferred to (i) any individual or entity subject to United Nations, U.S. or EU economic sanctions, (ii) any country or territory subject to United Nations, U.S. or EU economic sanctions, and (iii) any individual or entity who is a military end-user or for military end uses, unless authorized under applicable law. Breach of this representation or warranty is grounds for immediate termination of this Sales Contract without liability to Seller.
3.4 Seller may cancel this Contract on 15 days’ notice if Buyer fails to comply with any of its commitments under Clauses 3.1, 3.2 and/or 3.3 above.
3.5 Buyer will indemnify Seller for all claims, damages and related costs, including reasonable attorney fees, arising out of and incurred or to be incurred in relation to Buyer’s noncompliance with any of its commitments under Clauses .3.1, 3.2 and/or 3.3 above.
4. Patents/Trademarks
Seller warrants only that the manufacture of the Product covered by this Contract does not infringe any Letters Patent of the country of manufacture. Buyer assumes all responsibility for use of any design, trademark, trade name, or part thereof, appearing on the Product at Buyer’s request.
5. Warranty/Liability
5.1 The commitments set out in Clauses 2.1 first sentence, 2.3 and 4 above are Seller’s sole warranties in respect of the Product. ANY OTHER CONDITION OR WARRANTY AS TO THE QUALITY OF THE PRODUCT SUPPLIED UNDER THIS CONTRACT OR FITNESS FOR ANY PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
5.2 Buyer shall inspect the Product supplied under this Contract immediately after delivery. If any of the supplied Product is rejected because of nonconformity to the Specifications, Buyer shall have the right to return it to Seller only after inspection by Seller and receipt of definite shipping instructions from Seller, such inspection to be made and instructions to be given by Seller within thirty (30) days after written notice of rejection by Buyer. Either, (1) failure to give written notice of any claim within thirty (30) days from the date of delivery or, (2) use of the Product supplied under this Contract, constitutes an unqualified acceptance of such Product by Buyer and a waiver by Buyer of all claims against Seller in respect of such Product. In case after inspection Seller decides that Buyer has a right to return the Product because of its non-conformity to the Specifications, Seller has the right to choose between (i) rectification of the non-conformity of the originally delivered Product, (ii) replacement and delivery of a new Product to Buyer, or (iii) credit the invoice value of the Product, however, any such rectification, replacement or credit will be in full satisfaction of any claim by Buyer.
5.3 Buyer is responsible for the use of the Product once it has taken delivery thereof. Under the REACH Regulation, Buyer must, in particular, ensure that the conditions in which it is used comply with those described in the SDS. Notwithstanding any other clause of this Contract, Seller cannot be held liable in the event of (i) the non-compliant and/or unlawful use of one of its Products, (ii) inability to or (iii) delay in the performance of its obligations resulting from compliance with statutory or regulatory obligations, in particular in relation to the application of the REACH Regulation.
5.4 In the event of any liability by either Party whether arising from breach of contract, statues, including tort, or otherwise it is agreed that the maximum amount of damages recoverable by the respective other Party in relation to that liability shall be limited to the contract price for the Product with respect to, or in connection with, which damages are claimed, unless (i) such damages are directly caused by a the respective Party’s wilful intent or gross negligence, or (ii) where such liability is for death or personal injury caused directly that Party. In no event shall either Seller or Buyer be liable for indirect, consequential, special, punitive or exemplary damages in connection with or arising out of this Contract.
6. Price and Terms
6.1 Seller may change the previously agreed price, terms and conditions of payment or of transportation, or the minimum requirement per shipment at any time, by fifteen (15) days prior written notice to Buyer. Buyer’s failure to make written objection to the change prior to the effective date shall be considered acceptance. If Buyer objects within the fifteen (15) day period, Seller shall have the option (a) to continue to supply on the terms and conditions in effect prior to the announced change, or (b) to cancel the affected Product quantities immediately and shall advise Buyer accordingly within fifteen (15) days from receipt of Buyer’s written objection.
6.2 Seller reserves the right by written notice given at any time before shipment to increase the price under this Contract if there is any increase in the price or cost of the Product to Seller by virtue of foreign exchange fluctuations, currency regulations, changes in duties or taxes, increase in the cost of raw materials, labour or transport or any other causes beyond the control of Seller. If Buyer is of the opinion that any such increase in price is unreasonable, it may object to such increase by written notice given within fifteen (15) days of the date of receipt of Seller’s notice; Seller shall then have the option to continue to supply Buyer at the price currently in effect if willing to do so or to cancel the Contract immediately in writing.
7. Payment terms
7.1 The Seller issues the invoices corresponding to the price of the Products.
7.2 Payment of the invoice shall be made within the time specified on the invoice or, if such time is missing, within 30 days from receipt of the invoice.
7.3 In case of late payment, late payment charges are due and payable with effect from the next day after the date of payment shown on the invoice, without a reminder being necessary. In this case, the interest rate on the late payment charges shall be equivalent to three (3) times the legal rate of interest applying in France. Moreover, in the event of late payment, Buyer shall also legally liable for a fixed-rate charge for recovery costs amounting to EUR 40 (forty).
8. Title
8.1 If Products are delivered to destinations in France or to other destinations where reservation of title of goods is permissible, title to the Product shall remain with Seller until payment in full has been received by Seller. Until the title to the Product has transferred:
(a) the Product shall so far as practicable be kept separate from other goods on the premises of Buyer so as to be readily identifiable as goods of Seller;
and
(b) Buyer shall be entitled to use or (if so expressly permitted by Seller according to Clause 3.2 above) sell the Product in the ordinary course of business however, such liberty shall be deemed automatically terminated without the need for notice if Buyer shall fail to make any payment when it becomes due, or shall default in due performance or observance of any material obligation under this Contract, or shall enter into or apply for liquidation or receivership. Seller may then by notice in writing to Buyer terminate the Contract. Upon such termination Seller shall be entitled to enter upon Buyer’s premises in order to remove any of the Product to which Seller has retained title and for this purpose Buyer shall afford Seller all reasonable assistance to locate and take possession of the Product.
8.2 If Products are delivered to destinations where reservation of title of goods is not permissible, title to the Products shall pass at the same time as the risk of loss passes to Buyer.
8.3 For the purpose of the foregoing paragraph of this Clause and in the absence of evidence to the contrary, Product supplied by Seller to Buyer at any time shall be deemed to have been used or processed (or if so authorised, on-sold) in the order in which Product was supplied. Nothing herein shall give Buyer the right to return the Product to Seller.
9. Schedule of Deliveries
Buyer shall schedule deliveries of the Product uniformly throughout the calendar year. Not more than ten percent (10%) of the annual quantity of the Product shall be scheduled for delivery in any calendar month, except with Seller’s prior written consent.
10. Transportation
Where the price provides for absorption by Seller of any portion of the freight charges or where Seller provides the transportation equipment at its cost, Seller shall have the right to select the means of transportation. Where the price provides for payment by Buyer of any portion of the freight charges, the freight charges will be those in effect at the date of shipment.
11. Delivery Equipment
During the time that Seller’s delivery equipment is in the possession of Buyer, Buyer shall be liable to Seller for damages or destruction of such equipment attributable to Buyer. All repairs to equipment shall be made under the supervision or direction of Seller.
12. Force Majeure
In the event of accident, mechanical breakdown of facilities, fire, flood, strike, labour trouble, riot, revolt, war, acts of governmental authority, acts of God, or contingencies beyond the reasonable control of the Party affected, including pandemics and their consequences, and cyber-attacks, interfering with the performance of this Contract, (each a “Force Majeure”), upon written notification of the affected Party to the respective other announcing Force Majeure the quantity of Product provided for in this Contract shall be reduced by the amount so affected without liability but the Contract shall otherwise remain unchanged. The decision of the Party affected as to the quantities of Product affected shall be final and binding.
13. Governmental Controls
13.1 If the price, freight allowance or terms of payment or any price increase or change in freight allowance or terms of payment under this Contract or Seller’s ability to make any such increase or change, should be altered or prohibited by reason of any law, government decree, order or regulation, Seller may cancel this Contract upon fifteen (15) days written notice. However, at its option Seller may by written notice elect to postpone the effective date of any price increase or proposed change to the extent so prevented until such date or dates as it is not so prevented. By electing to postpone rather than cancel, Seller will not waive its right to cancel thereafter because of such continued or further alterations or prohibitions.
13.2 In the event of a governmental intervention, trade restrictions, and/or quotas, which may delay or prevent delivery of the Product or any part thereof, Seller, at Seller’s option, may cancel the unshipped balance of the Product without liability. In the event any of the Product shall become subject to any governmental fees or duties not presently in effect or to any increase in any existing fee or duty, including any antidumping duty or countervailing duty, Seller shall have the right to cancel the unshipped balance of the Product without liability.
14. Non-performance
14.1 If Buyer fails to perform any of the terms of this Contract when due, Seller may, at its option, decline to make further deliveries against this Contract except for cash, or may recall or defer shipments until such default is made good, or may treat such default as final refusal to accept further shipments and cancel this Contract.
14.2 Seller reserves the right, without prejudice to Buyer’s liability to pay on the due date, to charge interest on any overdue balance at a rate of 1 month LIBOR plus 5%. Such rights are in addition and without prejudice to any other rights Seller may have under this Contract. Should the LIBOR reference rate cease to be published, the default fallback rate should be the risk-free rate generally accepted by the market as a replacement at such time.
15. Performance by Affiliates
At Seller’s option, any Contract obligation may be performed by Trinseo Export GmbH, Horgen, Switzerland or any of its Affiliates. Any deliveries made under this Clause 14 may be invoiced by such Affiliate and shall constitute performance of this Contract by Seller.
16. Data Protection
Notice In order to execute this Contract, the Seller may, if applicable, need to collect and process some personal data relating to the Seller, its personnel, agents or representatives (the "Data Subjects").
In particular, the personal data will be collected in accordance with Seller’s and Seller’s Affiliate’s Privacy and Cookie Policy as published on https://www.trinseo.com/Privacy in its current version.
17. Assignment/Transfer
Save in relation to a transfer and/or assignment of this Contract or any rights and/or obligations hereunder (and any information relating hereto) in connection with (i) a securitization, factoring or alike financial transaction, or (ii) the sale, divestment and/or reorganization of all or part of the business to which this Contract relates, in each case by Seller, neither this Contract nor any of the rights and obligations hereunder are transferable and/or assignable by either Party without the other Party’s prior written consent except that Buyer hereby consents to Seller’s potential future assignment of (x) some or all of Seller’s obligations hereunder to a Seller Affiliate, or (y) this Contract including all of the Seller’s rights and obligations to a Seller Affiliate. In furtherance of the foregoing, the assignment and/or transfer of this Contract or any of the rights and obligations hereunder by Buyer to a Third Party Buyer is expressly prohibited.
18. Non-waiver
Failure to exercise any rights under this Contract upon any occasion shall not waive the right to exercise the same on another occasion.
19. Severability of Provisions
If any provision of this Contract should be held invalid or unenforceable, the validity and enforceability of the remaining provisions shall not be affected. Any invalid or unenforceable provision shall be replaced with a new provision which will allow the parties to this Contract to achieve the intended economic result in a legally valid and effective manner.
20. Applicable Law and Venue
This Contract shall be governed by and construed in accordance with the laws of France excluding its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (1980) shall not apply to this Contract.
Any dispute that may arise between the Parties concerning the Contract and any sales contract concluded hereunder shall be submitted to the Paris Commercial Court.
21. Controlling Terms & Amendments
By ordering any of the Product detailed in this Contract, Buyer agrees to all the terms and conditions set forth herein which override any additional or different terms or conditions included in Buyer’s purchase order or referred to by Buyer. Any amendments or additions to this Contract shall be valid only if in writing and signed by both parties. The giving by Buyer of any delivery instructions for any Product, or the acceptance by Buyer of delivery of any Product, or any conduct by Buyer in confirmation of the transaction set out on the basis hereof after receipt by Buyer of this Contract shall constitute unqualified acceptance by Buyer of this Contract.
22. Definitions.
For the purposes hereof,
(i) "Affiliates" means any entity that directly or indirectly, through one or more intermediates, now or hereafter, controls or is controlled by, or is under common control with either of Seller or Buyer (as the case may be) or any entity controlling Seller or Buyer respectively. For the purposes herein, the term "control" (including the terms "controls", "controlled by", and "under common control with") means the possession, direct or indirect of 50% or more of the ownership.
(ii) “Force Majeure” has the meaning given in Clause 11 above
“Specifications” shall have the meaning given in Section 2.1 above.
(iv) “Third Party Buyer” shall have the meaning given in Section 3.2 second paragraph.
IF APPLICABLE:
23. Special Terms for Distributors
If Buyer purchases the Products from Seller in its function as a distributor, the following special terms and conditions shall apply: In compliance with Section 3.2 hereunder Buyer shall be entitled to resell the Products in the field of use (“Field of Use”) and in the territory (“Territory”) both as separately agreed between the Parties. Unless otherwise agreed between the Parties, Buyer shall be considered a non-exclusive distributor for the Field of Use in the Territory. Unless otherwise agreed between the Parties, Buyer shall not act as Seller’s agent and shall not accept orders on Seller’s behalf or otherwise assume or create any obligation of responsibility, express or implied, on behalf or in the name of Seller, or bind Seller in any manner whatsoever. Unless otherwise agreed between the Parties, Seller reserves the right to directly or indirectly supply the Products to customers in and outside the Territory, including without limitation via agents and distributors, via online platforms, and via any other current or future sales channel. In the event of expiry, cancellation or termination of this Contract, regardless of reason, neither Party shall be obliged to indemnify the other by reason of such cancellation or termination. In particular, any and all rights of the Buyer are waived and excluded regarding any compensation for loss of business or loss of good will in case of expiry of the Agreement or termination by Seller.