PANASYSTEM – FZCO 1. Validity/conditions.
Unless otherwise agreed in writing or in an individual case, these Sales Terms and Conditions (hereinafter – «the Terms and Сonditions») shall apply to all - including future – supply relationships, irrespective of whether the orders were made by the Buyer telephonically, by fax or in writing. All modifying provisions, conditions or supply proposed by the Buyer will be valid only if the Seller agrees to such modifications in writing. Acceptance of delivery of the Goods shall be deemed as conclusive evidence of the Buyer's acceptance of these Terms and Сonditions. The Buyer accepts the present Terms and Сonditions when ordering the Goods at the Seller. Any agreements to be concluded with the Seller must be in writing to be valid. Thus, even agreements which deviate from our terms and conditions shall be in written form to be valid. 2. Limited Warranty.
Subject to Paragraph 3, and unless otherwise expressly provided herein, the Seller warrants that the Goods will conform to the Producer's published specifications, if any, of those other quality standards and/or measurements set forth herein. The Seller has based any recommendations to the Buyer for the use of the Goods upon information considered reliable by the Seller and received from Producer by the Seller, but the Seller gives no warranty regarding the results that the Buyer can obtain in any particular application of the Goods. The Seller makes no representation or warranty of any kind with respect to the Goods, express or implied, respecting merchantability or fitness for any particular purpose, the Seller makes no warranties extending beyond the description of the Goods, whether used alone or in combination with any other substance or in any process. These warranties extend only to the Buyer. 3. Limitation of liability.
The Buyer will examine the Goods promptly after receipt for damage, defects, short-weight, foreign inclusions in the Goods and non-conformance. The Buyer must give the Seller a written notice of the existence of each claim involving the Goods (whether based in contract, breach of warranty, negligence, strict liability, other tort or otherwise) within three (3) days after receipt of quantity of the Goods forming the basis for the claim: a failure by the Buyer to give such written notice within the applicable time constraint will constitute an absolute and unconditional waiver of all such claims irrespective of whether the Buyer has discovered the facts giving rise to such claim, or whether further processing, manufacture, other use or resale of such Goods has actually occurred. The Buyer assumes all risk of patent infringement by reason of any use the Buyer makes of the Goods in combination with other substances or in the operation of any process. The Seller's liability to the Buyer for damages, whether under breach of warranty or any other cause whatsoever, and whether under these Terms and Conditions or otherwise shall in no event exceed that part of the purchase price applicable to the portion of the Goods giving rise to the Buyer's claim for such damages, in no event will the Seller have liability to the Buyer's claim for such damages, in no event will the Seller have liability to the Buyer for any incidental, consequential or special damages.
The following procedures/rules should be performed/applied by the Buyer when accepting the Goods for detecting visible obvious defects:
INSTRUCTION ON THE PROCEDURE FOR DETECTING DAMAGED GOODS OR SHORTAGE OF THE GOODS
In case of detection of damaged Goods (including significant and minor packaging damage, traces of packaging repair (patches, scuffs, punctures, etc.), traces of humidity of the packaging, broken Big Bag slings, damaged pallets etc.), a foreign inclusions in the Goods (including pieces of rope, stones, any kind of wire, metal inclusions in the form of scale, etc.) or shortage of the Goods in the process of unloading/loading a vehicle, it is necessary to undertake the actions provided for in cl.1-9.
However the Goods arrive in a closed container or silotruck, the Buyer should first take the actions indicated in Appendix 2 and only then proceed to perform the actions specified in cl.1-9
1. Stop unloading/loading.
2. Report the damage or other mismatch to the driver and the Seller asap and wait for instructions of Seller's managers on further actions as maximum during 1 (one) hour. After his waiting period the Service Provider should make actions specified in cl.3-9 of this Instruction. The driver of the vehicle should also wait. Don't let the driver of the vehicle go away from the warehouse before receipt of instructions from Seller's managers and before the end of unloading of Goods.
3. Make pictures. Pictures have to include the following:
a. Picture of the truck plate number,
b. Picture of each damaged Goods (pallet, big-bag), so that the damage can be clearly seen on the photo,
c. The picture of goods' location inside the vehicle,
d. The picture of the empty vehicle after unloading to detect the pollution. This is applied if it is assessed to be safe to unload the Goods.
4. Unload the Goods from the vehicle. This is applied if it is assessed to be safe to unload the Goods.
5. Weight the damaged Goods to define the weight of loss. The weighting of loss might be based on packing documentation and not actual weighting. Where possible, weighting should confirm the information.
6. Prepare the written Act of acceptance of the damaged Goods, a foreign object in the Goods or shortage of the Goods (Appendix № 1), which includes the plate number of the vehicle, nature of damage, units of damaged goods, the weight of the lost goods, the name of the packaging manufacturer, which is indicated on each package, description of a foreign object. Act of acceptance of the Goods has to be signed by the truck driver and all parties responsible for Goods acceptance. The Act of acceptance of the Goods can not be changed/updated after it was signed by the driver. All the necessary information including units and weight of the damaged goods, a foreign object in the Goods or shortage of the Goods has to be clearly stated in the Act of acceptance of the Goods.
7. Provide one copy of the signed Act of acceptance of the Goods to the truck driver.
8. Make a note to CMR about the damaged Goods or shortage of the Goods, indicating the weight of lost Goods.
9. Send copies of all the documents (Act of acceptance of the Goods, CMR, Pictures) to the Seller asap.
Do not give documents to the driver without his signature in the Act and CMR. If the driver refuses to sign the Act of acceptance of the Goods, necessary to make a note in the Act of acceptance of the Goods. If the driver has any comments, the driver notes it in the Act of acceptance of the Goods.
The term for objections to the instructions is 10 days. If no objection is submitted, it shall be deemed that it has been fully accepted and is enforceable.
If you do not comply with the requirements of this instruction, claims for reimbursement of the cost of the damaged Goods or shortage of the Goods will not be accepted and will not be satisfied.
Appendix № 2 to the Instruction on the procedure for detecting damaged Goods or shortage of the Goods
Necessary actions of the Buyer in case of accepting the Goods in a closed container or silotruck before performing the actions indicated in the Instruction on the procedure for detecting damaged Goods or shortage of the Goods (cl.1-9):
1. Upon receipt of Goods from the Seller, the Buyer should inspect the external condition of the container/silortuck for presence of holes, dints, other damage, and also check the conformity of the container/silortuck number and seal number to the data indicated in the shipping documents.
2. If the specified in article 1 of this Appendix damages or inconsistencies are present – stop accepting the Goods (the container).
3. Report the damage or other mismatch to the driver and the managers of the Seller asap and wait for instructions of Seller's managers on further actions as maximum during 1 (one) hour. After his waiting period the Buyer should make actions specified in cl.4-8 of this Appendix. The driver should also wait. Don't let the driver go away from your territory before receipt of instructions from Seller's managers and before the end of unloading of Goods.
4. Make pictures and send it to Seller's managers. Pictures have to include the following:
a. A picture of the container/silortuck and seal number,
b. A picture of container's/silortuck's location,
c. A picture of damaged Goods, so that the damage can be clearly seen on the photo.
d. A picture of the shipping documents.
5. Prepare a written Report and an Act of acceptance of the damaged Goods, a foreign object in the Goods or shortage of the Goods (Appendix 1), which includes a container/silotruck and seal number, nature of damage, shortage, a picture of shipping documents, a foreign object in the Goods. The report and Act have to be signed by the driver and all parties responsible for Goods acceptance-transfer. The Report and Act can't be changed/updated after it was signed by the driver. All the necessary information has to be clearly stated in the Report and Act.
6. Provide one copy of the signed Report and Act to driver.
7. Make a note to CMR about the damaged/improper Goods (the container).
8. Send the Act, Report, CMR, pictures to the manager of the Seller asap. 4. Ordering & Limits.
The Seller deserves a right to discontinue any Goods sold hereunder at any time, unless the Buyer and the Seller are bound by a pre-existing master agreement/contract (a contract signed between parties, in which the parties have agreed the terms of work), which would prohibit such discontinuance. The orders from the Buyer are deemed to be concluded when the Seller sends to the Buyer a written notice (including by fax or e-mail) as confirmation that the Buyer`s order is accepted and the Goods will be delivered within the agreed period of time. 5. Credit.
Unless otherwise directed or agreed to by the Seller, the Buyer will make all payments hereunder in monetary form wire bank transferring to the Seller's bank account. If the Seller determines that the financial responsibility of the Buyer has become impaired or otherwise unsatisfactory to the Seller, the Seller may require the advance payments or the posting of satisfactory security by the Buyer, and may withhold shipments until the Buyer makes such cash payments or posts such security; such action by the Seller shall not constitute a change of payment terms hereunder. 6. Governmental Constrains.
If a present or future law, governmental decree, order, regulation, or ruling under any existing or future legislation prevents the Seller from increasing or revising the price as provided herein, or nullifies or reduces any price or price increase hereunder, upon written notice from one the other the Seller and the Buyer will attempt to identify mutually agreeable changes to conform these Terms and Conditions with such law, decree, regulation or ruling. If the parties cannot agree upon and implement such changes within sixty (60) days after such notice, the Seller shall thereupon have a right to terminate the shipments forthwith by written notice to the Buyer. 7. Price and Terms Adjustment.
The Seller and the Buyer coordinate the prices with the next possible ways:
7.1. Signing the fix-term contract with the calculation of prices on a base of formula specified in the contract;
7.2. Arrangements for prices with confirming the orders received from the Buyer by written or electronic (via e-mail) notice. 8. Taxes.
The Buyer will reimburse the Seller for all federal, state, local or other taxes (other than income taxes), excises or charges, which the Seller is required to pay in connection with the supply of the Goods hereunder, but only to the extent not already included in the price specified herein. 9. Risk of loss or damage. The right of ownership.
The risk of loss or damage to the Goods shall be determined with the delivery basis in accordance with INCOTERMS 2010. The Buyer assumes all risks and liabilities arising out of unloading/discharge (if this doesn't contradict to the applicable Incoterms delivery basis), handling and use of the Goods, or arising out of compliance or non-compliance with the federal, state, municipal or local laws and regulations governing or controlling such activity, except to the extent, if any, attributable to the Seller's gross negligence or willful misconduct. The Seller has no liability for the failure of discharge/unloading the Goods exercised by the Buyer. Except to the extent attributable to the Goods sold hereunder failing to meet the express warranties set forth in paragraph 2, the Buyer will indemnify, defend and hold the Seller harmless from all costs, expenses, damages, judgments or other loss, including costs of investigation, litigation and reasonable attorneys'' fees, arising out of the Buyer's selection, use, sale and further processing the Goods sold hereunder.
The right of ownership to the delivered Goods passes from the Seller to the Buyer from the moment of signing by the Parties of the CMR/delivery note/other document confirming the acceptance-transfer of the Goods to the Buyer. 10. Force Majeure.
Either party may suspend performance hereunder (except to pay for the Goods already received) in the event of:
(1) acts of God, fire, explosion, flood, hurricanes;
(2) strikes, lockouts or other industrial disturbances or riots:
(3) war, declared or undeclared;
(4) compliance with any federal, state, provincial, municipal or military law, regulation, order, or rule, foreign or domestic, including priority, rationing, allocation or preemption orders or regulations, or cancellation of license of the Producer of the Goods or the Buyer's to operate their plant;
(5) shortage or other failure of facilities used for manufacture or transportation, shortage of labor, power, fuel or raw materials;
(6) total or partial shutdown due to normal turnaround of a Producer's plant;
(7) any other cause or causes of any kind or character reasonably outside the control of the party failing to perform, whether similar or dissimilar from the enumerated causes ("force majeure").
In the event of force majeure renders a party unable to perform its obligations under sales according to these Terms and Conditions, such party shall give written notice to other party, with the full particulars including the expected duration of such force majeure, not later than 72 hours after the occurrence of the cause relied on, and upon the giving of such notice such party may suspend its obligations hereunder to the extent affected by such force majeure for the duration of the force majeure, but no longer. The documents issued by competent bodies confirming facts of the force majeure shall be considered as the proper evidence of commencement and duration of the said circumstances. Upon cessation of the force majeure, performance shall resume, but such delay shall not, except by mutual agreement, operate to extend the term of this contract or obligate the Seller to make up deliveries or the Buyer to purchase quantities so missed. The settlement of strikes or lockouts involving the parties hereto shall lie entirely within the discretion of the party having the difficulty, and the above requirements for remedy of any force majeure with all reasonable dispatch shall not require the settlement of strikes or lockouts by acceding to the demands of the employees involved, when deemed inadvisable by the party having the labor difficulty. 11. Safety and Health Indemnity.
The Buyer acknowledges that the Seller has finished the Material Safety Data sheets, which include warnings together with safety and health information concerning the Goods, for the Buyer. The Buyer will disseminate such information so as to give warning if possible hazards to persons whom the Buyer can reasonably foresee may receive exposure to such hazards, including, but not limited to, the Buyer's employees, agents, contractors and customers. If the Buyer fails to disseminate such warnings and information, the Buyer will indemnify, defend and save the Seller harmless against any and all liability arising out of or in any way connected with such failure, including without limitation, liability for injury, sickness, death and property damage. 12. Shortage of the Goods.
Unless otherwise prescribed under a pre-existing master agreement then in effect between the Buyer and the Seller, during periods when the demand for the Goods exceeds the Seller's available supply, whether due to a force majeure or otherwise, the Seller can distribute the Goods among its customers and the Buyer in such manner as the Seller in its sole discretion deems practicable. The Buyer will accept, as full and complete performance by the Seller, deliveries in accordance with such determinations as the Seller may make. The Seller has no obligation to purchase material from third parties for resale to the Buyer, nor will the Seller bears the liability for any cost increases suffered by the Buyer in purchasing substitute material from a third party. 13. Cancelation of the purchase order.
Purchase order can be cancelled only by mutual agreement of the parties of the Purchase order. In case of the refusal to accept previously ordered Goods/the Purchase order cancellation, the Buyer shall compensate the Seller for the documented losses of the Seller, in case, if the shipment of the goods from a Producer's plant or a Seller's warehouse destined to the Buyer's order has been started or transport for this shipment has already been ordered and couldn't be cancelled without fines from the Seller's side, and 10% of the price of the ordered goods, unless otherwise confirmed by the Seller in writing. 14. Claim on quality/hidden defects.
In case of claims on quality/hidden defects, the Buyer is obliged to provide the proofs with the conclusion of an independent entitled expert.
The following procedures/rules should be performed/applied by the Buyer when detecting hidden defects:
PROCEDURE FOR HANDLING GOODS WITH HIDDEN DEFECTS
Claims for hidden defects discovered by the Buyer are accepted no later than 30 days from the date of delivery of the Goods provided that the Buyer complies with the rules of storage of the Goods in accordance wit the Safety Data Sheet of Producer.
The Seller is responsible only for those defects of the Goods, which arose on the Seller's fault before the moment of transfer of the Goods to the Buyer. The proof of the moment of occurrence of defects of the Goods is the responsibility of the Buyer.
The Goods can only be declared as non-conforming if it is tested by an independent certified laboratory in accordance with ASTM standard for corresponding grade and only by the parameters agreed upon the Purchasing Specification (Manufacturer's Inspection certificates (CoA) or Test Reports). All test results, on the basis of which a decision is made on the quality of the Goods, should be provided to the Seller, indicating the methods used, conditions and procedures.
The expert test results should contain at the same time expert conclusions on the following issues:
1) whether the Goods are defective (have hidden defects), that is, does not meet the parameters specified in the CoA or Test Reports,
2) whether the defect occurred before the acceptance of the Goods by the Buyer or due to reasons that existed before the acceptance of the Goods by the Buyer.
Only unambiguous (definite) conclusions of the examination on all these issues, confirming the presence of a defect and its occurrence before the acceptance of the Goods by the Buyer or due to reasons that existed before the acceptance of the Goods by the Buyer, give the Buyer the right to make a claim to the Seller. After receiving a claim from the Buyer with an expert tests results, the Supplier can re-examine the quality of the Goods by asking other independent certified expert laboratory the same questions.
In case of the hidden defects of the Goods, established by the quality goods inspection, the Seller has to be informed and can decide if he agrees to have the material returned. Defective Goods shall be tested in an independent laboratory agreed with the Seller at the Buyer's expense.
In case according to the results of the examination the improper quality of the Goods is recognized, the Buyer's expenses for the examination shall be reimbursed by the Seller to the Buyer.
Without performing all these actions, the Buyer cannot make claims to the Seller on hidden defects (defects of quality) of the Goods. 15. Special conditions for direct delivery from a Producer's plant to the Seller.
In case of direct deliveries from a Producer's plant in Big Bags or Small Bags, if there is no feasibility to fulfill the delivery in time due to the lack of transport either bad weather conditions or Act of God or waiting line on the border/customs, the Seller has the right:
- either to increase the delivery term having coordinated the change with the Buyer without any fines for a delay in delivery;
- or to organize the delivery via warehouse provided that the price for the Goods will be increased by cost of extra expenses connected with warehouse procedures and an additional transport fee, at the same time such kind of the price change must be coordinated with the Buyer;
- or, if parties don't manage to come to a solution under prior items of this paragraph, the Seller has the right to refuse from the delivery without a reimbursement of any feasible losses to the Buyer having place or supposed in future by reason of such kind refusal in the supply or partial supply. In so doing the Seller is released from any responsibility for refusal in supply or in partial supply.
Supplies in Big Bags or Small Bags by trucks are possible as in tents (normal trucks) so as in box trucks (refrigerators) box trucks in case of lack of tents with defining that unloading is to be done only through back doors. 16. Lead time.
In case of delivery of the Goods in bulk transport or in normal trucks from a Seller's warehouse, minimum term of delivery since the order received is 72 hours. In case of delivery of the Goods in sea containers, the term of delivery is set up according to a schedule provided by a Shipping Line (subject to change).
If there is necessity in faster delivery, the Seller has the right, unless the other has been agreed in the pre-existing master agreement/contract, to increase the price for the Goods on the cost of extra expenses incurred on the score of working of the warehouse in an overtime period if there are ones, having received acceptance of such increase from the Buyer or has the right to refuse from the supply without any fines in its address.
In case of direct deliveries from Russia to the Buyer with trucks the minimum time of delivery since the order received is 21 days for the Buyer from the European Union and Turkey and 30 days for the Buyer from other countries. 17. Time of discharge.
In case of direct deliveries from a Producer's plant to the Buyer by trucks, the transport unit must be discharged within working day of arrival, if it arrives not later than 2 hours before closure of a Seller's warehouse. In case of delivery in Bulk trucks: if the truck arrives in the delivery time agreed with the Buyer, it must be discharged within not more than 4 hours since the arrival.
For all other cases, if the truck arrives in the delivery time agreed with the Buyer, it must be discharged within not more than 2 hours since the arrival.
The liability of the Buyer for non-unloading the Goods during above written time is to reimburse the documented fines of the forwarders/carriers etc. to the Seller immediately after arising.
When the Buyer picks up and returns containers with the Goods from/to a sea port or from/to a railway terminal, the Buyer is obliged to perform these actions in a timely manner in accordance with the rules established by the port / sea line / railway terminal / freight forwarder / transport company, and otherwise the Buyer undertakes to compensate the Seller the documented losses in full. 18. Assignment/Delegation.
The Buyer may assign/transfer rights and/or delegate duties/obligations hereunder only with the prior written consent of the Seller. 19. Application.
These Terms and Conditions apply to all sales by PANASYSTEM – FZCO and prevail over other agreements of the Seller and the Buyer unless otherwise expressly agreed in a written agreement between the Seller and the Buyer. The Buyer's Terms and Conditions related to purchase of the Goods don't apply unless otherwise expressly agreed in a written agreement between the Seller and the Buyer. 20. Sanction clause.
The Buyer assures that neither it itself, nor its affiliates, employees, agents are included in the sanctions lists of the EU, USA or other states. The Buyer undertakes to immediately notify that it, its affiliates, employees, agents are included in the sanctions lists of the EU, USA or other states, or there are all reasonable grounds to assume that such inclusion is inevitable.
The Buyer, its affiliates, employees, agents are prohibited from participating in any transactions and / or using any income received as a result of the provision of services under our relations with any persons who are on the sanctions lists of the EU, USA or other states, or otherwise violate the sanctions regime imposed by any states.
The Buyer undertakes to reimburse for any incurred losses in connection with violation of the sanctions legislation of the EU, USA or other states. 21. Governing law.
These Terms and Conditions shall be governed, interpreted and construed by, and in accordance with, the laws of Austria. Any dispute which cannot be solved with negotiations between the Buyer and the Seller should be considered in commercial courts of Vienna (the Republic of Austria) or in the International Arbitral Centre of the Austrian Federal Economic Chamber (VIAC
), the Republic of Austria. The language of the trial shall be English.
The language to be used in the arbitral proceedings shall be English.