General Terms and Conditions of Sale – March 2021 revision
Article 1 – General
1.1 These general terms and conditions of sale (“General Terms and Conditions of Sale”) govern the offering, sale and delivery of all products (“Products”) from or on behalf of Sumitomo Chemical Europe NV/SA (with registered office at 1830 Machelen, Woluwelaan 57, CBE nr.0453.622.676) (“Seller”) to any person (“Purchaser”)
1.2 The General Terms and Conditions of Sale shall also apply to any similar dealings (e.g. additional orders, subsequent deliveries or re-assortments of orders) between Seller and Purchaser without having to be expressly restated on every occasion.
1.3 These General Terms and Conditions of Sale shall apply in preference to and supersede any and all terms and conditions of any order placed by Purchaser and any other terms and conditions submitted by Purchaser. Failure of Seller to object to terms and conditions set by Purchaser shall in no event be construed as an acceptance of any such terms and conditions. Neither Seller’s commencement of performance nor Seller’s Delivery shall be deemed or constituted as acceptance of any of Purchaser’s terms and conditions. If these General Terms and Conditions differ from any terms and conditions of Purchaser, these General Terms and Conditions and any subsequent communication or conduct by or on behalf of Seller, including without limitation, Seller’s Confirmation (as defined in Article 2.2) and delivery of Products, constitutes a counteroffer and not an acceptance as such terms and conditions submitted by Purchaser. Any communication or conduct of Purchaser which confirms an agreement for the delivery of Products by Seller, as well as acceptance by Purchaser of any delivery of Products from Seller, shall constitute an unqualified acceptance by Purchaser of these General Terms and Conditions of Sale.
Article 2 – Formation of the contract
2.1 Quotations made by Seller, in whatever form, are not binding upon Seller unless explicitly stated otherwise. All quotations issued by Seller are revocable and subject to change without notice. Quotations remain valid for a limited and maximum period of one (1) month, unless otherwise provided or agreed upon in writing. Quotations based upon estimated quantities are subject to increase in the event that actual quantities purchased during the specified period are less than the estimated quantities.
2.2 Orders are not binding until accepted by Seller in writing (“Seller’s Confirmation”). Seller shall be entitled to refuse an order without indication of its reason. Purchaser will not be able to cancel an order after a Seller’s Confirmation, unless explicitly otherwise agreed upon in writing.
Article 3 – Delivery and acceptance
3.1 Unless otherwise stated and expressly agreed upon in writing by seller, delivery terms shall be interpreted in accordance with the INCOTERMS latest published by the International Chamber of Commerce and for each order one of the INCOTERMS conditions shall be used and reflected in the Seller’s Confirmation. Title to the Products shall pass to purchaser in accordance with Article 6 below.
3.2 Quantities of the Products to be delivered are stated with a tolerance of + 0,5%. Such deviations of Products delivered shall not give Purchaser the right not to accept the Products.
3.3 The delivered Products, may deviate from the descriptions provided by Seller to reflect improvements, experience gained or technical advantages.
3.4 Upon prior notice by Seller, partial deliveries are entitled to be performed by Seller and delivery of the Products in two or more installments shall be allowed. Each delivery and/or installment of the Products shall be treated as a separate transaction and may be invoiced separately and any failure to deliver/install shall have no consequences for other deliveries/installments.
3.5 Any delivery time or date specified by Seller is non-binding and is only given as an estimate unless explicitly stated otherwise by Seller. In no event shall Seller be liable for any delay in delivery.
3.6 Products shall be packed and marked by Seller in accordance with applicable legal requirements and customs for the specific Products concerned, and special arrangements requested by Purchaser are subject to additional charges to be paid by Purchaser.
3.7 If Purchaser’s shipping instructions are delayed or provide for later delivery than specified in the Seller’s Confirmation, delivery shall be deemed complete and Seller will store the Products for Purchaser at Purchaser’s expense.
3.8 In the event that Purchaser desires to place an order for Products requiring urgent/special delivery, Purchaser shall notify Seller and Seller shall provide Purchaser with an estimate of any additional costs that would be incurred to meet the urgent/special delivery. Seller will only supply Products if the Purchaser agrees in writing to pay the additional costs set forth in the quotation.
3.9 The Purchaser shall be in charge of the unloading and discharge of the Products. The Purchaser shall ensure that unloading operations are carried out under site supervision.
3.10 The Purchaser will be granted a period of two (2) hours from the arrival of the truck at the Purchaser’s delivery destination to unload the Products. If the 2-hour period is exceeded the Purchaser will be charged with the additional fee charged by Seller’s Logistics Service Provider
3.11 If the Purchaser declines the delivery on site due to packaging and the packaging is conform to Seller’s Confirmation, then the Purchaser shall be in charge of any and all additional cost that this may cause.
Article 4 – Purchaser’s Information Requirement
In respect of the Products concerned, Purchaser shall immediately communicate to Seller:
- information on uses made of the Products by Purchaser or by any customers of Purchaser;
- any new information on hazardous properties, regardless of the uses concerned;
- no later than when the Products are supplied, any other information that might call into question the appropriateness of the risk management measures identified in a safety data sheet supplied to Purchaser (together with the Products)
Article 5 – Inspection and conformity with Specifications
5.1 Upon receipt of the Products, Purchaser shall immediately examine the Products and satisfy itself that the Products delivered are conform to the Specifications and meet all other contractual requirements. Any claims concerning the quantity or apparent quality of the Products delivered or other inherent defects or lack of conformity which would be apparent from a reasonable inspection on delivery shall be notified by Purchaser to Seller in writing within seven (7) calendar days from the date of receipt of the Products. Any other defect which could not be detected at the time of delivery shall be notified by Purchaser to Seller in writing within seven (7) calendar days after the discovery of the defect or after the moment at which such discovery reasonably should have occurred, but in no event later than three (3) months from the date of delivery of the Products.
5.2 Purchaser’s failure to give notice of any claim beyond the stated time period shall constitute a waiver by Purchaser of all claims with respect thereto. Use or processing of the Products shall be deemed to be an unconditional acceptance of the Products and a waiver of all claims in respect of the Products.
5.3 Defective Products shall not be destroyed or returned to Seller without prior written consent of Seller. Defects in parts of the Products stated in Seller’s Confirmation do not entitle Purchaser to reject the entire delivery of the Products. Complaints, if any, do not affect Purchaser’s payment obligations. Upon receipt of a notice of defect, Seller is entitled to suspend all further deliveries until complaints are established to be unfounded, refuted, and /or until the defect has been cured.
Article 6 – Transfer of title and risk
6.1 The title to the Products delivered shall remain vested in Seller until the invoices covering Products delivered has been paid in full. In other words the title in the Products shall pass to the Purchaser only when payment in full (including any applicable costs and charges, interests for late payment and indemnities) has been received by the Seller for all Products whatsoever supplied (and, if appliable all services rendered) at any time by the Seller to the Purchaser. The Purchaser shall permit the servants or agents of the Seller to enter into the Purchaser’s premises and repossess the Products at any time prior thereto.
6.2 During the period the title is retained by Seller, Purchaser shall hold the Products in trust for Seller, if Purchaser fails to pay the purchase price of the Products in accordance with the payment terms stated on the invoice, Seller shall have the right to repossess the Products, without any prior notice being required and at the expense of Purchaser. As long as the payment has not been affected, the Purchaser cannot sell, pledge or offer the Products as guarantee or collateral security.
6.3 In the case of non-payment at the due date and upon first demand the Purchaser must return forthwith to the Seller and all Products and all merchandise unpaid for.
6.4 The risk of the Products shall pass to Purchaser in accordance with the agreed delivery term pursuant to Article 3.1. Products for which delivery is suspended pending payment by Purchaser, as well as Products of which delivery is wrongfully rejected or not accepted by Purchaser, shall be held and stored by Seller at the risk and expense of Purchaser.
6.5 Until payment for the Products has been completed,
6.5.1 Purchaser is entitled to use the Products solely to the extent required in its ordinary course of business, and to the extent possible, (i) shall keep the Products separate and in a clearly identifiable manner, (ii) notify Seller immediately of any claims by third parties which may affect the Products, and (iii) adequately insure the Products; and
6.5.2 Should the Products (or any parts thereof ) in the meantime be converted into a new product, whether or not such conversion involves the admixture of any other goods or thing whatsoever and in whatever proportions, the conversion shall be deemed to have been effected on behalf of the Seller and the Seller shall have the full legal and beneficial ownership of the new products, but without accepting any liability whatsoever in respect of such converted products in relation to any third party, and the Purchaser hereby shall indemnify the Seller in relation thereto.
Article 7 – Price
7.1 The price is exclusive of VAT and any applicable VAT will be charged in addition to the price.
7.2 The price and currencies of Seller’s Products are set out in Seller’s Confirmation. Unless agreed otherwise, the price of the Products, as well as the duties, taxes and other public charges applicable in any jurisdiction levied in relation to the Products or the delivery thereof (“Taxes”) is based on the exchange rate at the date of Seller’s Confirmation. In case of any change in the relevant exchange rates, or in the applicable duties, taxes or public charges after the date of the Seller’s Confirmation, Seller shall have the right to adjust the price accordingly.
The amount of any Taxes levied in connection with the sale, transportation and delivery of the Products to Purchaser shall be for Purchaser’s account and shall be added to each invoice or separately invoiced by Seller to Purchaser.
7.3 In case of an increase in the prices of energy, raw and auxiliary materials, products obtained from third parties, government charges, freight costs and insurance premiums or other resources necessary for the manufacture and transportation of the Products (“Valid Reason”) occurring prior to the agreed date of delivery, Seller shall have the right to increase the price of the Products ordered in proportion thereto by giving written notice to Purchaser provided that Purchaser shall have the right to cancel the sales agreement within seven days of following receipt of such notice.
Article 8 – Payment
8.1 The price shall be in accordance with the payment terms stated in the invoice to a bank account designated by Seller. If Purchaser fails to pay any amount when due then Seller will automatically, without notice and without prejudice to any other rights of Seller be entitled to:
8.1.1 charge late payment interest at the interest rate of one percent (1%) per month commenced on any amount outstanding, from the due date computed on a daily basis until all amounts outstanding are paid in full;
8.1.2 a compensation from Purchaser of all costs and expenses incurred in order to obtain payment of the amount due (including, without limitation, attorney’s fees, court costs and other expenses of litigation);
8.1.3 an indemnity of ten (10) percent on the total amount due;
8.1.4 suspend its performance of all its obligations until payment of all outstanding debts has been received even those not yet due
8.2 Every payment by Purchaser shall be in the first place serve to pay the judicial and extra-judicial costs and the interest owed by it and afterwards shall be deducted from the oldest outstanding claim regardless of contrary advice from Purchaser.
8.3 Purchaser is not entitled to any set-off and does not have any right of retention unless Purchaser’s claim is not contested by Seller in writing or has been confirmed by a definitive binding court decision.
8.4 If after the Seller’s confirmation, Seller becomes aware of circumstances that adversely affect the credit worthiness of Purchaser or its ability to perform, or if Purchaser has not paid any due amount for a period of more than fourteen (14) days, the Seller shall be entitled to postpone the performance of its obligations until all outstanding accounts receivable have completely been settled and to demand prepayment of any and all accounts receivable under all orders and Seller’s Confirmation concluded with Purchaser.
If Purchaser does not comply with Seller’s request for prepayment within five (5) business days, Seller is entitled to postpone the performance of all orders concluded and – after giving a grace period of further five (5) business days – to refuse the fulfillment of quotations and orders not yet accepted or performed and, in addition, to claim from Purchaser any damages suffered.
8.5 The date of receipt of payment shall be the day on which the Seller has received the amount due or the day on which it has been credited to the Seller’s account. The Purchaser shall bear the risk of transfer of payment.
8.6 Any complaint with respect to the invoice, in order to be valid, must be notified in writing to Seller within fourteen (14) days after the date of invoice. Thereafter Purchaser shall be deemed to have approved the invoice. No ground, such as, e.g. the filing of a complaint regarding the delivered Products, shall free Purchaser from its payment obligations.
Article 9 – Warranties
9.1 Seller solely warrants that on the date of delivery the Products shall comply with the Specifications, that Seller will convey good title thereto, and that such Products shall be delivered free from any lawful security interest or encumbrance unknown to Purchaser.
Seller rejects all other express or tacit guarantees and conditions, and makes no other representation or warranty, express, implied, by operation of law, by course of dealing, usage of trade or otherwise nor does Seller warrant that the Products are suitable or fit for any particular purpose, goal or use Purchaser has in mind unless confirmed in writing in accordance with Article 9.3.
Purchaser shall be exclusively responsible for (i) ensuring compliance with all laws and standards associated with its intended use of the Products; and (ii) obtaining all necessary approvals, permits or clearances for such use.
9.2 If and to the extent Products fail to meet such warranty as defined in Article 9.1 and as shall be determined in accordance with the provisions of Article 5, Seller may at its own option within a reasonable time replace the Products at no charge to Purchaser.
Seller’s obligation to replace shall be contingent upon receipt by Seller of timely notice of any alleged non-conformity of products and, if applicable, the return of the products, in accordance with Article 5.
9.3 Any other recommendations or statements about the Products shall never constitute a warranty unless confirmed in writing. Purchaser must determine for itself by tests or otherwise, the suitability and merchantability or fitness of the Products for the intended purpose, goal or use with due regard to all factors influencing such use and in particular taking into account the Specifications of the Products.
In particular, if Seller has agreed to carry out tests of research on behalf of Purchaser no responsibility is assumed for:
a) use of the results for a certain purpose unless such use has been clearly confirmed in writing
b) interpretation of developed data other than explicitly stated and
c) deviations from the results because of factors other than defined parameters or appearing outside of laboratory environment.
9.4 Purchaser represents that it is a professional user or trader specialized in the sale and distribution of the products concerned, the use and/or processing of such Products and further manufacturing of related products. Purchaser represents that it has the requisite knowledge and understanding of the Products, its specifications and their properties. Purchaser acknowledges that there may be hazards associated with the use of the Products, that it understands any such hazards, if any, and that it is Purchaser’s responsibility to warn and protect its own employees and agents, its customers and their personnel, and generally all those exposed to such Products.
Article 10 – Limitations of Liability
10.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
10.1.1 SELLER’S TOTAL LIABILITY FOR ANY CLAIM, LIABILITY OR EXPENSE OF ANY NATURE SHALL NOT EXCEED THE LOWER OF (i) THE SUM OF PURCHASER’S PAYMENTS TO SELLER FOR THE PORTION OF THE PRODUCTS THAT ARE THE SUBJECT OF THE CLAIM AND (ii) THE SUM OF PURCHASER’S PAYMENTS TO SELLER IN THE TWELVE (12) MONTHS’ PERIOD PRECEDING THE DATE THE CLAIM AROSE;
10.1.2 SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, DISRUPTION OF THE BUSINESS, CLAIMS FROM THIRD PARTIES, DAMAGES DUE TO BUSINESS INTERRUPTION OR LOST PROFITS, RISE IN GENERAL COSTS, DAMAGE TO REPUTATION, EMPLOYEES’ COSTS, LOSS OF TIME, OF INCOME, OF DATA, OF SAVINGS, OF COMPETITIVE ADVANTAGE, OF OPPORTUNITIES OR OF GOODWILL WHETHER OR NOT FORESEEABLE, AND REGARDLESS OF OTHER CAUSE OF SUCH DAMAGES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE UNDER ANY LEGAL THEORY (TORT, CONTRACT OR OTHERWISE).
10.2 Nothing in these General Terms and Conditions of Sale shall exclude or limit Seller’s liability for fraud and willful misconduct.
Article 11 – Force Majeure
11.1 Neither party shall be liable for a delay in performing or failure to perform its obligations as a result of any event beyond its reasonable control that affects the performance of its obligations, including but not limited to natural disasters, elements of nature, acts of God, (pan) epidemics, riots, war and military operations (including actual or threatened terrorist attacks), civil disorders, rebellions, revolutions, national or local emergencies, actions or omissions of the government, economic disputes or whatever nature, shortage of raw materials or other production resources, failure by a utility provider (including electricity, gas, network or telecom provide) to provide services, unavailability of transport facilities, strikes or other labour conflicts and actions of employees, sabotage, accident or breakdowns of plant or machinery, fire, flooding, lighting strikes, explosions, collapses, as well as any action or omission of a person or entity beyond the reasonable control of the affected Party (“Force Majeure”) .
11.2 Upon the occurrence of any Force Majeure Event, the affected party shall forthwith notify the other party thereby specifying the estimated delay resulting therefrom, and the obligation to deliver shall be automatically suspended for a period equal to the time loss by reason of the Force Majeure Event.
11.3 Should the Force Majeure Event continue for a period extending to more than three (3) months after the initial delivery date, Seller is entitled to cancel the affected orders and the Seller’s Confirmation without liability to Purchaser,
Article 12 – Hardship
If, prior to the date of delivery of the Products, the circumstances that existed at the date of the Seller’s Confirmation should change to such an extent that the fulfillment of one or more of the obligations should become unreasonably burdensome and such change could not have been reasonably foreseen by the Seller, then Seller may request an extension and/or revision of the Seller’s Confirmation, including prices agreed, which shall not be unreasonably rejected by Purchaser. The request will include (i) a statement that it is based on the provision of this Article 12, (ii) a description of the unforeseen circumstances, and (iii) a statement of extra costs or changes that must be introduced into the contractual conditions.
If no agreement is reached within a reasonable time, then Seller shall be entitled to terminate the Seller’s Confirmation with respect to the orders affected without any liability to Purchaser.
Article 13 – Intellectual Property and confidentiality
13.1 The name(s), trademark(s) and trade name(s) utilized and/or owned by Seller and all intellectual property rights and/or other right, title and interest therein, are the sole property of and vest in Seller and/or its licensors. Unless expressly otherwise agreed, Purchaser shall not use the name(s), trademark(s) or trade name(s) utilized by Seller in the conduct of its business without prior written acceptance by Seller.
13.2 Purchaser recognizes that the intellectual property rights to the Products and their packaging are and will remain the exclusive property of Seller and that Purchaser is not permitted in any way to reproduce or to alter Products or any possible related design, files, data, databases, codes, works, topography, domain name, drawings, copyrights, brand names, logos and/or images without the prior written consent of Seller.
13.3 Seller has not verified the possible existence of third party intellectual property rights that may be infringed upon as a consequence of the sale of delivery of the Products or the use thereof by Purchaser and Seller cannot be held liable for any loss or damages in that respect.
13.4 Seller remains the exclusive owner of all its intellectual property rights and the sale, delivery and use of the Products shall not, by implication or otherwise, convey any license under any intellectual property rights relating to the compositions and/or applications of the Products, and Purchaser assumes all risks of any intellectual property infringement by reason of the purchase and/or use, whether single or in combination with other materials or in any processing operation.
13.5 Purchaser shall not disclose, publish or disseminate the terms of these General Terms and Conditions of Sale (including any applicable commercial term) without Seller’s prior written consent. This obligation of confidentiality shall not apply to information that is part of the public domain or in the event disclosure is required under applicable law or order of competent authority or court.
Article 14 – Data Protection
14.1 Within this Article 14, “Data Protection Laws” means the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and the applicable national laws implementing and supplementing the GDPR. “Data Controller”, “Data Processor”, “Personal Data”, and “Data Subjects” have the meaning as in the Data Protections Laws.
14.2 Parties may share and use Personal Data, such as professional contact details, job title and other limited business information, of its representatives, employees, agents or contractors (each individual being a Data Subject) in connection with these General Terms and Conditions of Sale. Unless otherwise agreed in writing, both parties will independently act as Data Controller for the processing of Personal Data.
14.3 Either party will lawfully use the Personal Data in accordance with the Data Protection Laws and either party is responsible for compliance with its own obligations under the Data Protection Laws.
14.4 In this context, Purchaser undertakes to inform Data Subjects of Seller’s external privacy statement prior to sharing of Personal Data of its representatives, employees, agents or contractors with Seller, Seller’s privacy statement is available at https://sumitomochemicaleurope.eu/privacy.
Article 15 – Competition law
15.1 The Parties acknowledge the legislation of any jurisdiction which governs the conduct of companies or individuals in relation to restrictive or other anti-competitive agreements or practices (including, but not limited to, cartels, pricing, resale pricing, market sharing, bid rigging, terms of trading, purchase or supply and joint venture), dominant or monopoly market positions (whether held individually or collectively) and the control of acquisitions or mergers (“Competition Law”) and undertake to act in accordance with such legislation in the course of the business relationship between them and to refrain from any conduct prohibited thereunder.
15.2 The Purchaser acknowledges that compliance with Competition Law is an essential element of the activities of the entire Sumitomo Chemical Group to which the Seller belongs.
Article 16 – Miscallaneous
16.1 The parties’ rights and obligations arising our or in connection with Seller’s Confirmation and these General Terms and Conditions of Sale shall be governed by and interpreted in accordance with the Belgian law, without regard to its conflict of law provisions. The parties specifically disclaim application of the United Nations Convention on Contracts for the International Sales of Goods 1980 (CISG)
16.2 The parties agree that any actions or proceedings that may be instituted by any party shall be exclusively before the Dutch speaking courts of Brussels, Belgium.
16.3 Seller’s waiver of any term or condition set forth herein shall not preclude Seller from seeking to enforce that term or condition on any other prior or subsequent occasion and shall not constitute a waiver by Seller of any other term or condition herein.
16.4 The parties agree to be bound by electronic signatures in order to accelerate a more lean execution of documents, agreements and contractual processes. The parties hereby expressly accept and acknowledge the evidential value of an electronic signature and they expressly waive any defences based on the fact that a signature was processed and/or sent by electronic transmission only. The parties acknowledge that in case electronic signature is opted for, no hard copy of the agreement will be issued or provided.
16.5 If a provision of these General Terms and Conditions of Sale is finally determined to be, or becomes invalid, then such provision shall, if possible, and insofar as such clause is invalid illegal or unenforceable, be replaced by a valid, legal and enforceable clause reflecting as close as possible the initial intentions of the original provisions to the maximum extent permitted by law. If the invalid, illegal or unenforceable provision cannot be validly replaced, then no effect shall be given to said clause and it shall be deemed not to be included in these General Terms and Conditions of Sale, such without affecting or invalidating the remaining provisions of these General Terms and Conditions of Sale.
16.6 Neither party may assign any of the rights or obligations under Seller’s Confirmation without the prior written consent of the other party, provided however, that Seller may assign such rights and obligations, wholly or partly, to any of its parent companies, subsidiaries or affiliates or to a third party acquiring all or a substantial part of Seller’s assets or business relating to the Products.
16.7 Seller and Purchaser are independent parties, and the relationship created hereby shall not be deemed to be that of principal or agent. No sale to or obligation of either party towards a third party shall in any way bind the other party.
16.8 The parties’ rights and obligations shall be binding upon and inure to the benefit of the parties and their respective successor, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the rights and obligations of the parties, for whatsoever reason, shall not affect the provisions of these General Terms and Conditions of Sale which are intended to continue to have effect after such termination.
16.9 These General Terms and Conditions of Sale have been drawn up in English and its provisions will be interpreted in accordance with their generally accepted meanings in the English language. Any translation of these General Terms and Conditions of Sale is for the convenience of Purchaser only and shall not be binding towards any party. In the event of any inconsistency between the English original and its translation, the provisions of the English version shall prevail.