General Term and Conditions of Sale of Semperit Investments Asia
(Version last updated in 2013)
1. General
1.1 These General Terms and Conditions of Sale ("GTC") will apply to the entire business relationship between a customer and Semperit in particular to the present supply agreement and any supply agreements to be concluded in the future. Deviating provisions shall be ineffective even if Semperit does not expressly object thereto. Deviations from these GTC proposed by a customer, if any, shall only be effective if Semperit accepts the same in writing prior to conclusion of the contract of sale.
1.2 An offer (Purchase Offer) in writing from a customer made to Semperit shall be binding on Semperit only if Semperit accepts the same and acknowledges it in writing. The offer so accepted/acknowledged by Semperit or the counter offer accepted by a customer, pursuant to GTC 1.3 below shall constitute contract of sale.
1.3 The offer shall be valid for a maximum period of four weeks as of its date of issue.
1.4 The mere mailing of a Semperit price list which will be only indicative shall not be construed to be an offer from Semperit to any recipient thereof.
1.5 Agreements concluded orally or over the telephone as well as written and oral agreements with agents of Semperit will only be binding on Semperit if Semperit has acknowledged them in writing.
1.6 Instructions/information provided by Semperit in brochures, instructions for use or other product information shall be strictly complied with by a customer in order to prevent damage. Semperit expressly warns the Customer against any use or treatment of the products beyond the defined areas of application. The Customer shall ensure that any further customer or user will be instructed sufficiently, at the risk and cost of the customer.
1.7 The price shall be quoted in in US Dollar.
1.8 The Customer shall, at the time of delivery of goods, before according his acceptance, inspect the goods. Claims due to patent defects and quantity variances can only be taken into account if they are recorded immediately upon receipt of the goods on the shipping document directly at the carrier and submitted in writing to Semperit by no later than three working days of such receipt. If the Customer fails to do so, it shall have no right to reject the goods thereafter.
2. Terms of Delivery
2.1 Deliveries will be made and invoiced at the prices as agreed and on the terms and conditions applicable on the date of delivery of the goods by Semperit.
2.2 The Incoterms applicable from time to time shall apply to all trade clauses. The presently applicable Incoterms are `Incoterms 2010‘. Unless otherwise agreed between Semperit and the customer, Semperit will deliver FOB from the closest appropriate seaport.
2.3 The measurements provided for by the relevant applicable standards and the statutory provisions shall be complied with.
2.4 Partial shipments shall be permitted. Further, if delivery is to be made to a customer in installments, then each installment shall be deemed to constitute a separate contract and failure by Semperit to deliver any one or more of the installments in accordance with these conditions shall not entitle the customer to treat the contract as a whole as repudiated.
2.5 Risk shall pass to the customer upon delivery pursuant to GTC 2.2 above.
3. Packaging and Storage
3.1 Semperit shall, at its own expense, package the goods in a manner appropriate for their transport, unless the customer has notified Semperit of specific packaging requirements before the contract of sale is concluded, in which case the additional cost of packaging shall be borne by the customer.
3.2 Customer shall store the goods in line with accepted industry recommendations for the storage of rubber products following Semperit’s storage instructions.
4. Delivery periods
4.1 Semperit undertakes to observe delivery periods as stipulated in the relevant contract of sale, provided only that there is an undisturbed course of production and delivery. For the avoidance of doubt, unless previously agreed to by Semperit in writing, the time for delivery shall not be of the essence.
4.2 The Production and Delivery shall be deemed to be disturbed on account of Force Majeure as mentioned below.
4.3 Force Majeure and consequence thereof:
Force Majeure shall include occurrence of any unforeseeable event which is beyond the control of Semperit or third parties with whom Semperit maintains business relations. The term “Force Majeure” shall include interruptions of operations or traffic, fire, floods, lack of workforce, energy or raw materials, strike, lock-out, civil commotion, war (either declared or not), cyclone or tempest or the like, official measures or the like. The consequences of Force Majeure will release Semperit from its obligation of timely delivery and grant Semperit, in addition, the right to discontinue further deliveries without having to pay damages and without being obliged to make subsequent deliveries.
5. Passing of Property
5.1 It is the express intention of Semperit and the customer that the Property (Title) in the goods shall pass only upon receipt of full payment of agreed price.
5.2 Without prejudice to the Transfer of Title retained by Semperit till payment of total price as agreed is received, pursuant to these GTC, the goods shall remain at the customer’s risk immediately upon delivery of the goods including part shipment, to the customer on Ex-Works basis or upon the readiness on the part of Semperit to delivery on Ex-Works basis but where delivery is delayed through the fault of the customer.
6. Retention of title
6.1 As stipulated in GTC 5 above, Semperit will retain title to all goods supplied by it until receipt of full payment of the amounts invoiced. This shall also apply if the purchase price has been paid for certain shipments of goods defined by the customer.
6.2 If goods which are the property of Semperit are mixed, blended or combined with other items, the customer shall be deemed to assign its ownership rights or co-ownership rights to the new item, to Semperit and shall hold the item in safe custody for Semperit with the care of a prudent businessman.
6.3 The customer may only sell the goods which are the property of Semperit in the ordinary course of business provided that he is not in default of payment to Semperit. However, the Customer may sell the goods received from Semperit before making payment thereto only with the prior written permission of Semperit. Such failure by Customer shall be subjected to the following condition:
6.4 The customer at this point shall assign its purchase price claims from resale vis-à-vis his customers to Semperit and shall make the note which is required for this assignment clause to become effective in its books or on its invoices. In the case of assignment, Semperit shall also be entitled to notify the sub-customers of the customer. The consent to resale shall automatically expire if insolvency proceedings are commenced over the assets of the customer.
7. Reservation of right of disposal:
Semperit shall always have the right of disposal of the goods until full payment of the price as agreed is received by Semperit from the customer. Such right shall be in addition to the right which Semperit would have for receiving or recovery of the price from the customer.
8. Unpaid right of Semperit:
Semperit, as the unpaid seller of goods, has by implication of law:
(a) In the case of insolvency of the customer, a right of stopping the goods in transit after Semperit has parted with the possession of the goods;
(b) A right of resale as permissible in law.
(c) A lien on the goods for the price while he is in possession of them.
9. Terms of payment
9.1 Unless otherwise agreed, if the value of a payment which has been agreed in a currency other than US Dollar changes by more than 5% (e.g. due to a change of currency parity), Semperit will, be entitled to adjust the price accordingly.
9.2 In the case of unforeseeable increases in the cost of raw materials, energy or production Semperit will be entitled to adjust the prices accordingly as of the date of delivery.
9.3 The amounts invoiced shall be payable within 30 days after the receipt of the invoice by the customer without any deductions and shall be paid free of any other charges/fees. Each invoice shall be raised by Semperit immediately upon delivery or deemed delivery of goods on FOB - basis, pursuant to GTC 2 above.
9.4 Employees and agents of Semperit will only be authorized to accept payments if they hold collection authority. Advance payments and payments on account shall yield no interest against Semperit.
9.5 Any retention or set-off by the customer of any claims whatsoever against claims of Semperit shall be excluded.
9.6 All payments to Semperit shall be made by cheques payable at par at the place from where Semperit issued the invoice or through Banker’s Pay Order or Demand Draft, payable at par at the above said place.
9.7 Acceptance of bills of exchange in lieu of payment shall require the written consent of Semperit.
9.8 If the customer is in default of payment, Semperit shall be entitled to charge default interest at a rate of at least 12% p.a. If Semperit is entitled to a higher rate of interest due to statutory provisions or if higher interest has to be paid by Semperit due to higher borrowing costs, Semperit shall be entitled to charge such interest. In addition, the defaulting customer shall bear any and all dunning charges, collection charges, investigation and information charges incurred in connection with collection of the outstanding accounts receivable from the customer.
10. Insurance:
The customer shall obtain a suitable insurance cover for the value of the goods from the time the risk therein passes to it, pursuant to these GTC.
11. Taxes & Duties:
The customer shall bear the taxes/duties levied on the sale of goods , including, Goods and Services Tax, Value Added Tax and similar taxes.
12. Warranty
12.1 Subject as expressly provided in these conditions all other warranties conditions or terms, including those implied by statute or common law, (in particular warranties as quality or fitness for any particular purpose) are excluded to the fullest extent permitted by law.
12.2 Subject to all conditions contained in this part, from the date of delivery of any goods to the customer there shall be a warranty for those goods lasting for a period of 12 months.
12.3 During the warranty period, as stated in clause 2.2 above, Semperit will remedy any defects that occur in the goods or, at its option, rework or replace the goods.
12.4 If the items are to be in conformity with earlier deliveries, deviations will be avoided to the extent technically possible. In the case of substantial deviations Semperit shall at its option either provide substitute delivery or rescind the contract.
12.5 During the period of warranty, before rejected goods are returned, Semperit's consent shall be obtained. The goods shall be returned to Semperit’s premises as agreed by Semperit and shall be free of any charge to Semperit. Semperit, shall return the goods to the customer after remedying defects or deficiency, at Ex-Works of Semperit. However, at its option, Semperit may carry out the repairs or remedial action at the place of the customer, in which case, the customer shall pay for the cost incurred by Semperit including travel cost of personnel.
In cases where Semperit agrees to substitute goods, Semperit shall deliver the substitute goods on Ex-Works of Semperit.
12.6 Special warranty conditions may apply to the customer’s purchase and shall be furnished separately, if applicable.
12.7 To the extent the special warranty conditions deviate from the general warranty conditions contained herein they shall replace the same; for the rest they shall supplement the general warranty conditions.
12.8 The warranty for any goods delivered to the customer, as stated in clause 12.3 above, shall always be subject to the following conditions:
(a) Semperit shall be under no liability whatsoever in respect of any defect in any goods arising after the expiry of the warranty period stated in clause 12.2 above.
(b) Semperit shall be under no liability in respect of any defect arising from unsuitable or improper use, fair wear and tear, willful damage, negligence or misuse, alteration or repair of the goods without Semperits’s approval.
(c) Semperit shall be under no liability whatsoever for any visual or minor defects in respect of goods sold as inferior grade or low quality.
12.9 The remedies set out in this Clause 12 are the customer’s sole and exclusive remedies for non-conformity of or defects in the goods.
12.10 Before rejected goods are returned, Semperit’s consent shall be obtained.
13. Liability
13.1 No liability shall be assumed by Semperit (a) for indirect or consequential loss or damage; for (b) lost profit or other economic loss; (c) for disadvantages due to business interruptions caused thereby; (d) for transportation costs incurred in connection with replacing the defective goods; (e) for costs of dismantling or installation, if any; (f) for damage to items that are in the custody of Semperit for processing resulting from a violation of duties relating to custody or occurring during processing, or (g) for claims asserted vis-à-vis the customer by the sub-customers of the customer, regardless of whether such liability arises due to delayed or defective or non delivery, and regardless of the legal basis of such liability.
13.2 Liability for damage to property will only be accepted by Semperit if suffered by a consumer and is otherwise excluded.
13.3 If items are produced or distributed on the basis of drawings, specimens or other documents or instructions of the Customer and rights of third parties are infringed thereby (in particular industrial property rights of third parties), the Customer shall indemnify and hold Semperit harmless.
13.4 Notwithstanding any other provision herein, Semperit’s maximum and cumulative total liability in respect of any and all claims for defective or non performance, breach of contract, compensation, indemnity, tort, misrepresentation, negligence at law or equity and any other damages or losses which may arise in connection with its performance or non-performance of any obligation, shall not exceed the total price of the goods concerned (as provided for in the individual contract relating to those goods).
14. Miscellaneous
14.1 The laws of Singapore shall apply. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
14.2 Unless mandatory statutory regulations to the contrary exist, warranty claims shall be asserted in court within 1 year and Semperit shall not be liable for any claim made on it beyond the above limits.
14.3 Semperit and all of its affiliated companies will be entitled to offset claims against accounts receivable, whether already due or not, including future accounts receivable to which Semperit is entitled vis-à-vis the customer or to which the customer is entitled vis-à-vis Semperit.
14.4 If any provision of these GTC or any contractual agreement between Semperit and the customer is held by any court or other competent authority to be void, illegal or unenforceable in whole or part, the other provisions of these GTC as well as the remainder of the affected provisions shall continue to be valid, in force and binding. The void, illegal or unenforceable provision shall be automatically deemed replaced by such valid, legal and enforceable provision that comes closest to the business purpose of the replaced provision.
14.5 If after conclusion of the contract Semperit learns that the financial situation of the customer has developed unfavourably or that insolvency proceedings have been initiated or have not been initiated for lack of assets or that proper fulfillment of the contract is not secured, Semperit may demand advance payment or collateral security equal to the value of the delivery. If the customer fails to fulfill this request, Semperit shall be entitled to rescind the contract with immediate effect, without prejudice to its other rights either under the contract or law.
14.6 In the event of any disputes arising in relation to these GTC or any contractual agreement between Semperit and the customer, the dispute shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC") for the time being in force, which rules are deemed to be incorporated by reference to this clause. The place of arbitration shall be Singapore, the language of the arbitration shall be English. The Tribunal shall consist of a single arbitrator, to be appointed by the Chairman of SIAC. The decision of such Tribunal shall be final and binding upon the parties. Notwithstanding the aforesaid, Semperit may at its option elect to seek judicial relief at the court of Customers place of business or any other juristiction applicable.