GENERAL TERMS AND CONDITIONS OF SALES
CMP Cologne GmbH
(hereafter referred to as "CMP")
- Agreement(s) as used herein shall mean any order confirmation issued by CMP or any other contractual arrangement between CMP and Buyer. These general terms and conditions shall apply to and form part of all Agreements. The Agreement constitutes the complete and entire understanding and agreement between CMP and Buyer. No other general terms and conditions will have an effect on the Agreement. Deviations from the Agreement, including these general terms and conditions, shall be valid only if expressly agreed in writing by the parties. In the event of a conflict between these general terms and conditions and the terms of an CMP order confirmation, the latter category shall prevail.
- Title to the product shall transfer from CMP to Buyer simultaneously with the transfer of risks as per Incoterms. All references to Incoterms shall mean ICC Incoterms 2010. If Buyer is requesting a different delivery modality or quantity than the standard delivery and CMP incurs additional costs as a result of such request. CMP may apply a surcharge to cover such additional costs.
- CMP will use reasonable efforts to meet the planned delivery date which shall be deemed to be only approximate, if not otherwise expressly agreed in individual cases.
- If Buyer is responsible for the transport of products, Buyer shall ensure that the means of transport is clean and dry, suitable for loading and carrying the products, and complies with the safety standards of CMP and with the legal standards for such means of transport. In the case of non- or incomplete compliance with the above requirements, CMP will be entitled not to load or cause to load this means of transportation, without any obligation to compensation.
- If delivery takes place on reusable pallets (regardless of whether they are property of CMP), Buyer will maintain these pallets in good condition and make them available on request for collection by or on behalf of CMP.
- CMP shall determine the quantity and quality and inform the customer of this. Without prejudice to the foregoing, Buyer has the right to have a representative present at said determination, at its own cost. Buyer shall, directly after receiving the good, check the determination of CMP for correctness, with regard to quantity and quality. Should there be an error, then Buyer shall inform CMP immediately of this. Should, at a later time, it be clear that there is an error in these determinations, which could not have been detected in an orderly and conscientious initial inspection, then Buyer shall indicate this error immediately on discovery. Buyer shall immediately search for signs of such errors. Should Buyer, in contravention of the above regulations, not indicate such an error immediately, then the good or delivery shall be considered as having been accepted. Buyer shall prove the correctness of the indication.
- The prices shall be based on the level of wages, material, purchasing and manufacturing costs, as well as taxes, duties, shipping costs, logistics costs and conversion rates of appropriate foreign currencies at the time of contract completion. Should, by the time of delivery, significant changes to key cost elements have occurred, then CMP shall be authorised to adjust the prices accordingly, if there are more than four months between contract completion and delivery, provided that CMP is not responsible for this period of time or CMP shall be culpable for such circumstances. Should this price increase be more than ten percent compared to the agreed price or be unacceptable to Buyer due to a change in the calculation and business basis, then Buyer shall be permitted to withdraw from the Agreement.
- Prices are exclusive of the appropriately valid rate of taxation. VAT and excise tax exemptions granted on request of Buyer in accordance with legislation or administrative regulations imposed by any lawful authority, shall be the exclusive responsibility of Buyer, which shall indemnify CMP in respect of any VAT or excise Tax liabilities arising therefrom.
- CMP will invoice Buyer and Buyer will pay the invoice in the currency stated on the invoice, without any discount or deduction, so that CMP's designated bank account is credited with the full invoiced amount within 30 days from the invoice date. Buyer shall not enjoy a right of retention, if it is not based on the same legal relationship or is not based on uncontested or legally-based counterclaims. Offsetting by Buyer shall only be permitted if the counterclaim is not contested and is legal or is a counterclaim connected to a claim requiring reciprocal performance.
- Failure by Buyer to pay on the due date shall make all sums owing by Buyer to CMP for services provided on any account whatsoever immediately and automatically due and payable, without prejudice to CMP's right to charge automatically and without giving any notice the statutory late payment interest rate as defined in applicable legislation on combating late payment in commercial transactions.
- In any of the following circumstances, CMP shall have, in addition to any other rights and remedies available to it under the Agreement or applicable law, the right to suspend deliveries if:
- Buyer does not comply with the agreed payment terms;
- Buyer’s creditworthiness is downgraded by an independent and reputable credit rating agency;
- Buyer enters insolvency proceedings as defined in EU Regulation No. 2015/848 on insolvency proceedings, or similar proceedings in jurisdictions not covered by said regulation;
- The credit limit assigned to Buyer from time to time pursuant to CMP credit policy is exceeded (in which case CMP’ right to suspend deliveries shall be limited to the extent the delivery exceeds the credit limit);
- A Creditor or other third party seizes or attaches any assets, rights or property of Buyer and such seizure or attachment is not released within 48 hours;
- Buyer does not provide requested payment security in accordance with the terms and conditions of the Agreement, or when payment security provided by Buyer to CMP expires, or is voided or annulled; or
- In any other circumstances where based on objective criteria, CMP has concluded that Buyer's creditworthiness is impaired.
In such cases, CMP may make the resumption of supplies dependent upon Buyer complying with amended payment or credit terms (including payment on delivery) or Buyer providing payment security or additional payment security including Letter of Credit or Bank Guarantee acceptable to CMP.
CMP reserves the right to amend credit limits and payment terms from time to time based on CMP's credit policy, mainly dependent on volumes purchased by Buyer (and factors associated therewith) or when Buyer's financial situation deteriorates.
If it is not reasonable for CMP to continue the Agreement, due to the above conditions, then CMP shall be permitted to withdraw or terminate this Agreement. However, this shall not apply if, in the case of the opening of insolvency proceedings on the assets of Buyer, the right of the liquidator according to § 103 of the German Insolvency Code to choose whether an Agreement which is not yet or not completely completed is continued could be impaired, also if concerning measures in § 225a Para. 2 of the German Insolvency Code regarding the conversion of creditor claims into equity interest or membership rights of the debtor, capital decrease or increase, the provision of assets in kind, the exclusion of entitlements or the payment of compensation to departing shareholders) or § 225a Para. 3 of the German Insolvency Code (any regulation valid under company law, particularly the continuation of a dissolved company of the transfer of share or membership rights).
- Health and safety information relating to handling and use of products are in the Safety Data Sheets (SDS) that CMP has sent or will send to Buyer. Buyer shall be obliged, according to § 377 of the German Commercial Code, to check whether it has received the safety datasheets by delivery at the latest. Buyer shall notify CMP if Buyer has not received such information by the delivery date. CMP will assume that Buyer has received the necessary information absent notification from Buyer. Buyer shall provide such health and safety information to anyone including without limitation its employees, contractors, agents or customers who may be exposed to the product. Buyer warrants that it possesses the necessary expertise for handling products of the type being supplied hereunder and that it will take the steps necessary to review and understand that information contained on the SDS for each product it purchases. While the SDS is being supplied in good faith, no guarantee is made as to the accuracy or completeness of any data or statements contained therein. Such data and statements are offered only for Buyer's and its users' and customers' considerations, investigation and verification.
- CMP gives no guarantees or warranties, express or implied, as to the quality, merchantability, fitness for purpose or suitability of the products except that the product sold pursuant to the terms of this Agreement shall meet the relevant CMP standard specification in force at the time of loading or such other specification or requirement which may be explicitly agreed in writing between the parties.
Without limiting the foregoing, CMP does not recommend nor endorse the use of products) in any medical application and specifically disclaims any representation or warranty, express or implied, of suitability or fitness for use, or otherwise with respect to products' use in any medical application. Buyer represents and warrants that no product(s) purchased hereunder will be used in or resold in any commercial or developmental manner in connection with medical applications without CMP's prior express written acknowledgement. Further, Buyer agrees that it will make no representations, express or implied, to any person to the effect that CMP recommends or endorses the use of produces) purchased hereunder in any medical application.
- The liability of CMP shall be aligned to the following specifications. The liability exclusions and limitations below shall also apply to criminal claims, should they compete with contractual claims.
- For damage intentionally or negligently caused by CMP;
- In cases of slight negligence for damage caused by injuries to life or health, and – subject to the regulations below – for damage caused by an infringement of key contractual obligations by CMP. Key contractual obligations are all obligations whose fulfilment make the correct execution of the Agreement possible and which the customer regularly expects and may continue to expect.
- In cases of negligent infringement of key contractual obligations, CMP's liability shall – with the exception of damage to life or health – be limited to the contractually typical damage which could be foreseen by CMP on completion of the Agreement or on incurring the violation of duty.
- Should the customer by a commercial agent or entrepreneur, then its damage claims for slight negligence on the part of CMP shall be excluded, if they are not exerted in court within a period of 3 months – after CMP or its insurance company has rejected the claims – with appropriate notice being given to CMP or its insurance company. CMP or its insurance company must inform the customer of this period of limitation in its rejection.
- Claims by Buyer regarding damages or the reimbursement of expenses, for whatever legal reason, in particular with regard to the infringement of obligations from the Agreement and from improper actions shall be excluded.
- This exclusion shall not apply
- The above liability exclusions or limitations shall also apply to the liability of organs, employees or assistants of CMP as well as the personal liability of the organs, employees and assistants of CMP.
- The above liability exclusions and limitations shall not apply if insurance cover exists in the form of indemnity insurance. They shall also not apply for claims made according to the Product Liability Act, providing that liability is claimed according to the appropriate standards of product liability law for people and damage to property.
Rights of recourse by the customer against CMP (recourse of the entrepreneur) shall only exist insofar as the customer has not made any agreements with its own customer extending beyond statutory liability claims.
- CMP makes no representation or warranty of any kind, express or implied, that the products sold hereunder, or the use of such products, or articles made therefrom, either alone or in conjunction with other materials, will not infringe any patent or trademark rights. Buyer agrees that it will promptly notify CMP of any claim or suit involving Buyer in which patent or trademark infringement is alleged with respect to the products sold hereunder, and that Buyer will permit CMP, at its option and expense, to control completely the defence or settlement of any such allegation of infringement
- Neither party shall be liable for any delay in performance or non-performance in whole or in part caused by circumstances beyond the reasonable control of the party affected including but not limited to, acts of God, fire, flood, war, terrorist activity, or the threat of one of these events, criminal acts or sabotage, diminishment or failure of power, telecommunications, data systems or networks, accident, explosion, equipment breakdowns, labor disputes, shortage or inability to obtain energy, utilities, equipment, transportation, the Product, or the feedstock from which the Product is directly or indirectly derived; or good faith compliance with any regulation, direction or request (whether ultimately determined to be valid or invalid) made by governmental authority or any person or persons purporting to act for such an authority.
Notwithstanding any other notice requirement in this Agreement actual notice (e.g., phone to be confirmed in writing as soon as possible, email, letter) to a counterparty of delay or failure described in this provision will constitute effective notice for purposes of this provision.
"Product Shortage" means any situation where, for any reason for which CMP is not responsible or culpable, including a Force Majeure Event, supplies of CMP Products (or of the feedstock from which CMP Products are directly or indirectly derived) from any of CMP's then existing sources of supply (including supplies manufactured at CMP's plants) are curtailed, cut off, or otherwise inadequate to meet CMP's own requirements and its obligations towards its customers (including CMP Affiliates).
In cases of Product Shortage:
- CMP shall have the right, during such Product Shortage, to apportion fairly available CMP products among its own captive use (if any) and its categories of customers (including CMP Affiliates), such as customers under contract or not and branded or unbranded customers;
- CMP may, based upon such fair apportionment, delay the delivery and reduce delivered quantities. CMP will inform Buyer of such delay, reduction or cancellation. If, due to the delay or reduction in delivery quantity, it is not reasonable for Buyer to accept the delivery or service, then it shall be permitted to withdraw from the Agreement through an immediate written declaration to CMP. In that case, CMP shall reimburse any considerations without delay.
If the named circumstances render the delivery or execution impossible or make it very difficult, then CMP shall be permitted to withdraw from the Agreement. CMP shall be liable for damages if CMP intentionally or negligently caused the key circumstance and/or is liable for damage from the injury to life and health or for infringing the Product Liability Act or other key statutory liability regulations. Otherwise, liability shall be limited to contractually-typical and foreseeable damage, if CMP caused the key circumstance through slight negligence. Liability shall be excluded in all other cases.
In cases of Product Shortage, CMP shall not be obliged to:
- Purchase or otherwise obtain alternative supplies of CMP products deliverable under this Agreement or the feedstock from which the CMP products are directly or indirectly derived, if not economically viable;
- Settle labour disputes, run down inventories, adapt or vary its manufacturing plan or process, or to take any other steps to replace the supplies of CMP products that are curtailed or cut off, if not economically viable.
- In the case of any material breach of the terms and conditions contained in the Agreement by the Buyer, CMP may terminate or withdraw from the Agreement. Prior warning or a period of grace shall not be required if that is not viable for CMP in the individual case.
- Buyer may not assign its rights from this Agreement without the prior written consent of CMP .
- Any information relating to an identified or identifiable natural person ("individual"), in particular business contact details of Buyer's personnel and contractors, which is communicated by or on behalf of Buyer to CMP ("personal data”), will be subject to data processing by CMP in accordance with the General Data protection Regulation.
- Notwithstanding any other provision in this Agreement or any other document, neither this Agreement nor any other document shall constitute an agreement by CMP to take any action or refrain from taking any action that is in conflict with, penalised under or compliance with which is prohibited by the laws or regulations of the United States, the European Union (EU), any EU member State, the United Kingdom and/or Norway, as applicable. The parties furthermore represent, warrant and undertake to each other on a continuous basis that they shall comply with all applicable sanction and export control legislation, anti-bribery and anti-money laundering laws, rules and regulations of any government relevant to the transaction, including the US Foreign Corrupt Practices Act and the applicable country legislation implementing OECD Convention on Combating Bribery of Foreign Public Officials in international business transactions as such laws and regulations may be updated or amended from time to time.
- To the extent permitted by law, in the event that Buyer becomes aware that it will or may undergo a Change of Control ("Affected Party") within the following three (3) Months, it will notify CMP without delay after it becomes so aware. Together with such notification, Buyer will supply CMP with sufficient information to allow CMP to reasonably assess the impact that such Change of Control may have on CMP and/or its Affiliates, on Buyer’s creditworthiness, and on Buyer's ability to perform its obligations under this Agreement.
In the event that such a Change of Control, if it is implemented, may cause:
- Buyer being subjected to any fact, matter, event, circumstance, condition or change which materially and adversely affects, or could reasonably be expected to materially and adversely affect, individually or in aggregate, the business, operations, assets, liabilities, condition (whether financial, trading or otherwise), prospects or operating results of Buyer;
- Buyer’s creditworthiness to be reduced; and/or
- Buyer’s ability to perform its obligations under the Agreement to be negatively affected;
then CMP shall be permitted to exert the rights named in Point 11.
As used above, "Change of Control" means any of the following: (i) any transaction, or series of transactions, that would result in the transfer of at least fifty percent (50%) of the equity interest in a party (or of at least fifty percent (50%) of the equity interest in any business entity that owns or controls, directly or indirectly, at least fifty percent (50%) of the equity interest in a party ("Party’s Parent*)) to a single transferee or multiple transferees under common control; (ii) any transaction that would result in a Party’s (or Party’s Parent's) merging with one or more other entities.
22.a. This Agreement between CMP and Buyer shall be governed by the laws of the Federal Republic of Germany (excluding its rules on conflict of laws). Neither the Uniform Law on the International Sale of Goods ('ULIS’), nor the United Nations Convention on Contracts for the International Sale of Goods 1980 ('CISG') shall apply.
22.b.(i) If Buyer is an entrepreneur in the sense of the Commercial Code, corporate body under public law or a special fund under public law, then the only – also international – place of jurisdiction for any conflicts resulting directly or indirectly from the contractual relationship shall be the place of business of CMP in Cologne, Germany. The same shall apply if Buyer is an entrepreneur in the sense of § 14 of the German Civil Code. CMP shall also, however, be permitted in every case, to make claims at the place of execution of the delivery obligation or at Buyer's general place of jurisdiction. Overriding statutory obligations, particularly with regard to sole responsibilities, shall not be affected by this..
22.b.(ii) If Buyer’s registered office is located outside the territory of the EEA, any disputes arising out of or in relation to this Agreement shall be finally settled under the CEPANI Rules of Arbitration by three (3) arbitrators appointed in accordance with said Rules. The seat of the arbitration shall be Brussels. The arbitration shall be conducted in the English language.
23. The provisions of this Agreement are severable. Should any provision hereof be invalid or unenforceable, it will automatically be deemed omitted from this Agreement, without affecting the remaining provisions of this Agreement, which shall remain in full force and effect to the fullest extent permitted by law.
If any provision of this Agreement is invalid or unenforceable, but would be valid and enforceable if some part thereof were deleted, or its period or scope of application reduced, such deletion or reduction shall automatically apply insofar as may be necessary to make the provision valid and enforceable to the fullest extent permitted by law.