The following terms and conditions of sale (this "AGREEMENT") shall govern each time BUYER places an order for product ("PRODUCTS") with Polyplastics Europe GmbH ("POLYPLASTICS"). POLYPLASTICS' quotations are expressly made conditional on BUYER's assent to the terms set forth herein which represent the sole and exclusive terms and conditions upon which POLYPLASTICS offers to sell the PRODUCTS to BUYER. Conditions of BUYER which deviate or are contrary to the terms and conditions set forth herein shall not be binding on POLYPLASTICS unless POLYPLASTICS has explicitly agreed in writing:
POLYPLASTICS shall deliver the PRODUCTS to the BUYER's warehouse or any place designated by the BUYER. And risk and title to the PRODUCTS shall pass to the BUYER when the PRODUCTS are delivered to such place designated by the BUYER.
2. RETENTION OF TITLE.
The title to the PRODUCTS shall, however, not pass until POLYPLASTICS has received full payment of all outstanding receivables under the current business relationship with the BUYER.
The quality of the PRODUCTS shall be exclusively determined by POLYPLASTICS' specifications.
4. CLAIMS IN CASE OF DEFECTS.
If the PRODUCTS supplied by POLYPLASTICS are defective and the BUYER has claimed its rights properly by submitting a written notice of defect, POLYPLASTICS in its own discretion may within reasonable time supply a corresponding quantity of the PRODUCTS or cure the PRODUCTS (if capable of curing). Should the remedial measures fail, the BUYER shall be entitled to reasonably abate the payments for the defective quantity of the PRODUCTS or to demand further remedial measures. If and to the extent POLYPLASTICS fails to remedy the defect, the BUYER may with regard to the quantity of the PRODUCTS not remedied refuse acceptance or abate the payments. Furthermore, the BUYER may be entitled to reimbursement for its expenditures incurred in connection with POLYPLASTICS' remediation except for expenditures caused by transferring the PRODUCTS to a location other than the place of delivery originally agreed upon.
5. DISCLAIMER OF FURTHER WARRANTIES.
Except as set forth above, POLYPLASTICS makes NO WARRANTIES, representations or conditions OF ANY KIND, express or implied, under this agreement and/or in connection with the PRODUCTS (INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS OF THE PRODUCTS FOR A PARTICULAR PURPOSE OR FOR ANY USE CONTEMPLATED BY THE BUYER) and none shall be implied by law.
6. EXCLUSIONS AND LIMITATION OF LIABILITY.
Irrespective of the legal basis, POLYPLASTICS shall not be liable for loss or damage (including expenses) suffered by the BUYER as a result of (i) POLYPLASTICS' slight negligence or the slight negligence of its legal representatives, employees, workers, agents and vicarious agents and (ii) gross negligence of its non-executive employees or ordinary agents. This exclusion shall not apply to claims relating to a breach of material contractual obligations, the fulfillment of which is essential to the proper implementation of the contract and whose fulfillment the BUYER may therefore normally rely on (cardinal duties). Insofar as POLYPLASTICS is liable on the merits for damages pursuant to foregoing, its liability for all damages and reimbursements, whether contractual, non-contractual or otherwise and regardless of their legal nature, shall be limited in terms of amount to foreseeable damages typical for the respective contract. The above exclusions and limitations of liability shall not apply to claims relating to death, personal injury and impaired health or for claims under the German Product Liability Act. Mandatory provisions of the law shall therefore remain unaffected. POLYPLASTICS will not be liable to the BUYER for any loss, damage or injury to persons or property resulting from the handling, storage, transportation, resale or use of the PRODUCTS in manufacturing, processes, or in combination with other substances, or otherwise.
7. HANDLING, LOADING, UNLOADING AND CONTAINERS.
The BUYER acknowledges that the PRODUCTS may require special handling, storage, transportation, labeling, packaging, treatment or use to comply with applicable laws (including without limitation, safety and environmental laws) and will take all reasonable action to comply with these laws and avoid spills or other damage to persons, property or the environment.
8. PAYMENT TERMS: BUYER CREDIT.
Net 30 days from the date of the invoice. Credit terms may be modified or cancelled both as to time and amount, at any time by written agreement of POLYPLASTICS and the BUYER. POLYPLASTICS shall not be obliged to make any shipment when the BUYER is in default to POLYPLASTICS under this or any other contract. The BUYER shall make no deductions (including those for alleged damages) from payments due hereunder. Retention by the BUYER shall be excluded. The BUYER is only entitled to offset if its claims are undisputed or established by a court decision as final and absolute.
9. PERIOD OF NOTICE FOR DEFECTS.
The BUYER shall test and inspect the PRODUCTS for obvious defect without undue delay upon receipt. Defects that can be discovered when the PRODUCTS are properly inspected shall be notified by the BUYER in written form giving an exact description of the defect no later than two (2) weeks following receipt of the PRODUCTS. In case of hidden defects that could not have been detected in a proper inspection it must be duly notified to POLYPLASTICS without undue delay upon discovery. If the BUYER fails to notify POLYPLASTICS of a defect within the specified time limit, the delivered PRODUCTS shall be deemed accepted. Claims of the BUYER shall be notified before any part of the PRODUCTS (except for reasonable test and inspection quantities) has been changed from its original condition. Otherwise, the BUYER will have waived any rights or claims against POLYPLASTICS. POLYPLASTICS' invoice weights, volumes, sizes and tares established in good faith will govern unless proved erroneous.
10. LIMITATION PERIODS.
Claims for defects hereunder shall be time-barred one (1) year from the beginning of the statutory limitation period. Mandatory limitation periods of law shall remain unaffected.
All technical advice, recommendations and services of POLYPLASTICS are intended for use by persons having the appropriate qualifications and skills, at their own risk, and POLYPLASTICS assumes no responsibility, and the BUYER hereby waives all claims against POLYPLASTICS, for results obtained or damages incurred from the use of POLYPLASTICS' advice, recommendations and services. The BUYER will indemnify and hold POLYPLASTICS harmless from and against all damages, costs and expenses resulting from special marking of PRODUCTS or containers in accordance with requests of the BUYER and all claims by third parties against POLYPLASTICS resulting from a breach by the BUYER of its obligations under this AGREEMENT (including without limitation the cost and expenses of defending such claims).
12. FORCE MAJEURE.
Neither party shall be liable to the other for any delay or failure in the performance of its obligations under this AGREEMENT if and to the extent such delay or failure in performance arises from any cause beyond the reasonable control of the party affected, including, but not limited to, act of God; acts of government or governmental authorities; compliance with law, regulation or orders; fire, storm, flood, or earthquake; war (declared or not), rebellion, revolution, or riots; strike or lockouts.
13. AMENDMENTS; WAIVER.
No amendments to or modifications of this AGREEMENT shall be effective for any purpose unless confirmed in writing signed by the duly authorized representative of each of the parties hereto. No failure or delay of one party to require performance by the other of any provision of this AGREEMENT shall in any way adversely affect such party's right to require full performance of such provision after that. No waiver by one party of a breach of any provision of this AGREEMENT shall be taken to be a waiver by such party of any succeeding breach of such provision.
If any authority of competent jurisdiction holds that any part of this AGREEMENT is illegal, invalid or unenforceable, then the remaining provisions or portions thereof shall remain in full force and effect and shall constitute the AGREEMENT with respect to the subject matter hereof.
All notices must be in writing and mailed or delivered to the appropriate address set forth in this AGREEMENT or otherwise as designated by BUYER and POLYPLASTICS in writing.
16. GOVERNING LAW.
This AGREEMENT shall be governed by and construed in accordance with the laws of Germany but excluding the rules of conflict of laws. The Hague Uniform Laws On International Purchases and the UNCITRAL (Vienna) Convention On Contracts For the International Sale of Goods shall not be applicable. Any questions, claims or disputes relating to or arising out of this AGREEMENT ("DISPUTE") shall be solved in good faith discussions between POLYPLASTICS and the BUYER. In case any DISPUTE cannot be solved by the parties through good faith discussions, the parties here agree that such DISPUTE shall be exclusively referred to the competent courts of Frankfurt am Main, Germany. This AGREEMENT was made in English which is the authoritative version.