General Conditions of Sale KRONOS INTERNATIONAL, Inc. KRONOS TITAN GmbH July 1, 2013

Transcription

1 General Conditions of Sale KRONOS INTERNATIONAL, Inc. KRONOS TITAN GmbH July 1, General (1) These General Conditions of Sale shall be an integral part of the sales contract. Conflicting conditions of purchase made by the buyer shall not be effective unless KRONOS expressly accepts them in writing. (2) These General Conditions of Sale are available in the current version on the KRONOS website. The buyer agrees to these General Conditions of Sale. Buyer s acceptance of any goods for delivery from KRONOS constitutes buyer s acceptance of these General Conditions of Sale. These General Conditions of Sale will be the applicable regulations even if they have not been forwarded with the order confirmation or the forwarding has been omitted. 2 Offers, orders It is explicitly stated that all orders are processed via data processing systems. In order to settle the contract personal data is saved. Delivery dates and deadlines set by KRONOS shall not be binding without KRONOS s express written consent to be bound by such deadlines. 3 Remuneration The prices invoiced shall be the KRONOS prices effective at the time of shipment. Any increase in freight rates or additional cost arising after confirmation of the order are at buyer's account 4 Payment (1) Payment have to be made into the banking account of KRONOS. Payment shall not be deemed to have been effected until the amount has been cleared into the KRONOS account. (2) Payment of invoices is due 30 days from the invoice date. In case of default of payment within the stipulated time period, default interest on arrears of 8% above the European Central Bank base rate is due and payable. Buyer further agrees to pay all collection and other costs incurred by KRONOS, including but not limited to, reasonable attorney s fees.

2 (3) The handing in of bills of exchange shall be subject to KRONOS prior consent. The maturity of bills of exchange shall not exceed 90 days from the invoice date. Discount expenses, bill charge, bill tax and similar expenses incurred shall be for the buyer s account. (4) Where KRONOS has reason to doubt the buyer s solvency or creditworthiness or the buyer does not fulfill his obligation of payment, or disposes of the supplied goods, KRONOS shall have the right to cancel that portion of the contract which has not yet performed. KRONOS shall also have the right to enter the buyer s store to remove the supplied goods. (5) Notwithstanding any custom or practice permitting the ordering or invoicing for products in Euros, customer hereby acknowledges and agrees that each order placed by customer may be priced by KRONOS, in its discretion, to the relevant US Dollar cross rate at the point of invoicing. KRONOS retains the right at any time without prior notice, to require payment in US Dollars for all orders at the applicable FX cross rate at the time of invoicing regardless of the form of currency used to place or accept the order. The applicable FX rate will be that of the European Central Bank daily FX reference rate normally quoted at hrs Central European Time 5 Delivery (1) KRONOS shall make every effort to effect delivery as early as possible. There shall be no fixed periods for delivery. Performance under the contract shall be subject to the punctual delivery of the appropriate goods by KRONOS s own suppliers. (2) In the event of any inability, for any reason, to supply the total demands for the goods specified in buyer s order, KRONOS may allocate its available supply of goods among any or all purchasers on such basis as KRONOS, in its sole discretion, may deem fair and practical without liability for any failure of performance that may result therefrom. (3) If the buyer defaults on his obligations to KRONOS, KRONOS shall have the right, without granting a respite to claim for compensation. 6 Passing of the risk The risk of destruction, loss or damage shall pass to the buyer upon dispatch of the goods. If not agreed upon by separate agreement for all sales the terms of sale are EXW / FCA Incoterms 2010 rules by the International Chamber of Commerce (ICC).

3 7 Retention of Title (1) Title to the goods shall not pass to the buyer until he has fulfilled all liabilities arising from his business connection with KRONOS, which shall include settling accessory claims and claims for damages and honouring checks and bills. Title to the goods shall also remain if the buyer has not fulfilled his obligations from former claims. (2) The buyer shall be under the obligation to provide, on behalf of KRONOS adequate storage of the item to which the contractor retains title. The buyer shall not have the right to pledge, chattel, mortgage or otherwise encumber the goods to which KRONOS retains title. Any acts of third parties aimed at seizing goods to which KRONOS retains title shall be brought to KRONOS attention by the buyer immediately. (3) As long as the buyer duly meets his liabilities to KRONOS, he shall have the right, in the normal course of business, to do as he wishes with the goods to which KRONOS retains title. When reselling the goods the buyer shall make the passing of the title subject to full payment of the goods by his customers. Should the goods be resold by buyer to third parties, buyer shall indemnify and hold KRONOS harmless against claims by buyer s customers or any other third parties and their respective insurers, successors and assigns. (4) KRONOS title shall thus extend to the products resulting from the processing of the goods by buyer. If goods to which title is retained by KRONOS are processed together with, mixed with or attached to goods to which title is retained by third parties, KRONOS shall acquire co-ownership of the resulting products in the ratio of the invoice value of the goods owned by him to the invoice value of the goods owned by those third parties. If the goods, as a result of such mixing or attaching, become part of a principal matter of the buyer, the buyer, by accepting these conditions, assigns in advance his title of the new item to KRONOS. 8 Warranty; Complaints (1) KRONOS warrants that at the time of delivery to buyer, the goods shall conform in all material respects to the specifications for such goods published by KRONOS and furnished to buyer. KRONOS warrants that it will convey to buyer good title to the goods free from any lawful encumbrance. (2) Notifications of defects shall only be recognized if filed in writing within 8 days of receipt of the goods. If the goods do not conform in all material respects to the KRONOS published specifications, KRONOS s liability is limited to the purchase price of the relevant goods. If the damage is less than the amount attributable to the value of the consumed goods the lesser amount shall prevail as described in 10 below. There is no liability for so-called indirect damages, e.g. loss in production.

4 Except for the express warranty set forth above, KRONOS makes no other warranty of any kind with regard to the goods, whether express, arising by operation of law, or implied by course of dealing, usage of trade or otherwise, including without limitation, the implied warranty of merchantability or fitness for a particular purpose. (3) KRONOS must be notified of hidden defects immediately upon discovery. The burden of proving that a defect is a hidden defect shall rest with the buyer. (4) Complaints have no bearing on the terms of payment. They are not subject to any right of retention. 9 Buyer s Rights in the event of Defects (1) Warranty claims made by KRONOS shall only entitle the buyer to the remedy described below in 10. (2) The buyer must inform KRONOS without delay of any case of recourse within the supply chain. 10 Limitation of Liability Exclusive Remedy Except as provided herein, KRONOS shall not be liable to buyer or any third parties (including, but not limited to buyer s or third parties employees, agents, workers or independent contractors) for any damages, (including, but not limited to, compensatory, incidental, indirect, special, consequential or punitive damages), whether or not arising out of negligence or any other cause of action, related to the sale of goods to buyer, or buyer s use of the goods. Buyer assumes all risk and liability that may result from the shipment or use of the goods, whether used singly or in combination with other goods. KRONOS s liability, and buyer s exclusive remedy, for any claim or cause of action arising out of the sale of goods to buyer or buyer s use of goods, including but not limited to negligence, nonconformity to specifications or breach of warranty, is limited, at KRONOS s option, to replacement of, or repayment of the purchase price for, goods with respect to which damages or costs are claimed. Buyer shall indemnify and hold KRONOS harmless against any other liability to buyer, buyer s employees, workers, contractors or any other persons arising from buyer s use of goods. No cause of action arising from buyer s purchase or use of the goods may be asserted against KRONOS more than one year after buyer s purchase of such goods.

5 If the goods sold hereunder are resold in any form without prior written consent by KRONOS, buyer shall include the following legend in a similar style and format in a conspicuous place in the resale agreement: Warranties with respect to this sale of goods are limited to those that are expressly given hereunder. Warranties of KRONOS INTERNATIONAL, Inc., KRONOS TITAN GmbH and its subsidiaries and affiliates ( Manufacturer ) have not been assigned and are excluded from this sale. Manufacturer disclaims all implied warranties of merchantability and fitness for a particular purpose. Buyer hereby releases Manufacturer from all liability whether grounded in contract, warranty, tort, negligence, strict liability or any other theory. Buyer waives all rights to hold Manufacturer liable for consequential, incidental, special or indirect damages. 11 Force Majeure, Impediments to Performance Force majeure of any kind, unforeseeable production, traffic or shipping disturbances, wars, acts of terrorism, fire, floods, unforeseeable shortages of labor, failure of production, transportation or delivery of raw materials or the materials covered by this agreement, strikes, lockouts, acts of government, and any other hindrances beyond the control of the party obliged to perform which diminish, delay or prevent production, shipment, acceptance or use of the goods, or make it an unreasonable proposition, shall relieve the party from its obligation to supply or take delivery, as the case may be as long as and to the extent that the hindrance prevails. If, as a result of the hindrance, supply and/or acceptance is delayed by more than eight weeks, either party shall have the right to cancel the contract. Should KRONOS suppliers fail to supply KRONOS in whole or part, KRONOS shall not be under obligation to purchase from other sources. In such cases, KRONOS shall have the right to distribute the available quantities among his customers while at the same time taking into account its captive requirements. 12 Protection of Trademarks (1) When using the KRONOS- products for manufacturing proposes or when processing them into new products, the buyer shall not have the right, without KRONOS s written consent, to use the KRONOS- product designations, especially the trademarks, on the resulting products or on the packaging. (2) When processing the supplied goods into new products, the buyer has to assure, that no rights or trademarks of third parties are infringed.

6 13 Applicable Law, Place of Performance and Jurisdiction (1) German law shall apply without reference to its principles to the conflict of laws. Application of the Uniform Law on the International sale of Goods shall be expressly excluded. (2) Place of performance for delivery shall be KRONOS s dispatch department. Place of performance for payment shall be Leverkusen. (3) Place of jurisdiction for both parties shall be Cologne. (4) Should any clause in this General Conditions of Sale be or become invalid in full or in part, this shall not affect the validity of the remaining clauses or remaining parts of the clause concerned. The parties shall replace any invalid arrangement by an effective one which conforms as far as possible to the economic purpose of the invalid clause. 14 Arbitration All disputes arising from or in connection with the sale of the goods shall be settled by amicable arrangement between the buyer and KRONOS. If this fails, differences of opinion or disputes shall be finally settled by a court of arbitration composed of three members. Each party shall appoint one arbitrator. The two arbitrators shall appoint a chairman, who must be qualified to hold judicial office. If a party fails to appoint an arbitrator within one month of having been requested to do so by the other party, or if the arbitrators cannot agree on a chairman within one month, the arbitrator or chairman shall be nominated by the President of Cologne Chamber of Commerce. The court of arbitration itself shall decide on its procedure, having resort to the rules of arbitration of the Deutsche Institution für Schiedsgerichtsbarkeit e.v. (German Institution for Arbitration). The court of arbitration shall be domiciled in Cologne. German law shall apply to supplement arbitration. The parties agree on English Language for the arbitration proceedings. Decisions of this court shall be final and binding. Any recourse to courts of law is excluded except the interim legal protection. KRONOS INTERNATIONAL, Inc. KRONOS TITAN GmbH Peschstrasse 5 Peschstrasse 5 D Leverkusen D Leverkusen Germany Germany