SELLERS TERMS AND CONDITIONS
1. COMPLETE AGREEMENT: These Seller’s Terms and Conditions (the “T&C”) are attached to and an integral part of the Quotation for the sale of products to Buyer (the “Product”) for the project referenced therein (the “Quotation”) between the Seller (named in the Quotation) and the Buyer (named in the Quotation). Such Quotation shall become effective upon the Seller’s receipt and acceptance of the Buyer’s written purchase order, order, acceptance, confirmation or acknowledgment (herein the “PO”). Any PO submitted by the Buyer must contain, reflect, acknowledge, refer to or accept the terms and conditions contained in the Quotation. The Quotation, these T&C, the Credit Approval (as herein defined) and the PO represent the complete agreement between the parties (the “Contract”). No terms or conditions made by the Buyer verbally, in the PO or otherwise in any way adding to, modifying or otherwise changing the provisions stated in the Quotation, the T&C and the Credit Approval shall be binding upon the Seller. The Contract supersedes all prior agreements, understandings, writings, proposals, representations and communications, oral or written, of either party with respect to the subject matter hereof and the transactions contemplated hereby. No amendment of any provision of this Contract shall be valid unless made in writing and signed by both parties specifically referencing the portion of the Contract being amended.
2. PAYMENT AND CREDIT: Buyer agrees that terms of payment shall be set in the invoice or the Credit Approval, and Buyer shall pay such amounts without any compensation or reduction of any kind by Buyer (including those for alleged damages). The Buyer may only set off (aufrechnen) a claim against a claim of Seller, if Buyer’s claim is (i) undisputed or ready for decision or legally binding, or (ii) to the extent it is based on the same contractual relationship. Invoices not paid when due will be subject to the interest rate in case of payment default, as provided for in statutory law on the unpaid balance. In the event Seller has had to refer to a third party for collection, Buyer agrees to pay collection and reasonable attorney fees incurred to effect collection of amounts owing and unpaid culpably caused by Buyer. Any sale to Buyer is subject to Seller’s approval of the Buyer’s credit worthiness, and Seller reserves the right to set such conditions, or to require Buyer to post a confirmed letter of credit in Seller’s favor for the full amount of the purchase price or to make other payment arrangements acceptable to Seller prior to approving and/or granting credit to Buyer (the “Credit Approval”). For greater certainty, in the event the Buyer has accepted the Quotation provided by the Seller prior to the Credit Approval, the PO shall remain subject to the terms and conditions, or the credit and payment schedules contained in the said Credit Approval, it being understood that the Seller will in no way be bound by any terms and conditions stipulated in the PO. If Buyer fails to make payment in accordance with the terms of the Contract or otherwise fails to comply with any provision hereof, Seller may, at its option and subject to the legally required prerequisites (and in addition to other remedies), cancel any unshipped portion of the order or any other order.
3. PRICES: All prices are subject to (i) shipping terms as per Incoterms 2020 specified in the Quotation and (ii) to any adjustment to Seller’s prices as specified in the Quotation. Any increase in transportation rates or any changes in routing resulting in an increase in transportation costs shall be paid and borne by the Buyer unless otherwise specified.
4. TAXES AND IMPORT DUTIES: The prices quoted are without and exclusive of any sales, goods, service, excise and similar taxes (the “Taxes”). Such Taxes are to be added to the price agreed by the parties and to be paid by Buyer. Buyer must provide Seller with a sales tax exemption certificate in order to avoid payment of sales tax imposed by law. All Taxes now or hereafter levied by any governmental authority, either directly or indirectly, upon the sale or transportation of any Product covered hereby shall be paid and borne exclusively by the Buyer. Buyer agrees that if or to the extent that Seller is charged with any such Taxes, Buyer shall reimburse Seller for same within fifteen (15) bank business days upon receipt of the final tax assessment document from Seller. Buyer will be at all times the importer of record for purposes of applicable import laws in the destination country (“Import Laws”). Buyer will be responsible for filing import documentation and paying associated import taxes, duties and charges in accordance with the provisions of the Import Laws. Buyer will reimburse Seller for any such import taxes, duties and charges arising now or in the future within fifteen (15) bank business days upon receipt of the import documents in the event Seller is charged with same. Buyer will be responsible for paying any additional taxes, duties, charges or any expenses incurred now or in the future in the event that the import documentation does not comply with the provisions of the Import Laws due to any erroneous, incomplete or untimely information provided by Buyer.
5. DELIVERY AND RISK: Shipment to Buyer’s site shall start at the latest 30 days after acceptance of Buyer’s PO by Seller. For any shipment, Seller will send Buyer a dispatch advice at least three (3) business days prior to the arrival of the Products at Buyer’s site. If the Buyer is not ready or able to receive the Product on the date set out on the dispatch advice, the Buyer will have to pay all costs of handling, transport and storage fees that will apply for all the Product which the Buyer cannot take possession, unless the Buyer has pre-notified the Seller in writing of Buyer’s impediment within twenty-four hours after the receipt of the Seller’s dispatch advice. Subject to the preceding sentence, if the Seller’s facility cannot store the Product that was originally set to be shipped to the Buyer, the Seller will have the right to move and store the Product at another facility at the Buyer’s expense. If the production of the Goods is being delayed by the Buyer (e.g. because Buyer fails to timely provide information) and the aforementioned 30-day delivery period cannot be met by Seller due to Buyer’s fault or a breach to its co-operation obligations, the Seller will not be liable to the Buyer for any damage. Seller will use all reasonable efforts to comply with Buyer’s requests as to the method of shipment, but Seller reserves the right to use an alternate equivalent method of transportation or route of shipment if substantial delay might otherwise occur. In such case, Seller will notify Buyer of such changes as soon as reasonably possible. If the quoted price for the Product includes the freight charges from the Seller’s manufacturing facility to the Buyer’s facility or job site, the cost of freight has been determined as of the date of the quotation. Buyer acknowledges and agrees that if Seller receives notification of a fuel surcharge from its carriers after the date of the quotation and prior to the start of delivery, then that fuel surcharge will be passed on to Buyer for Buyer’s account. The Seller will inform Buyer promptly, at the latest three (3) business days after receipt of the information of the fuel surcharge from its carriers. If Seller’s selected carriers refuse to deliver any Product to Buyer due to a Force Majeure Event (as herein defined), the Seller will promptly inform the Buyer, and the Buyer has the option of arranging for shipment at its expense and receiving a credit from Seller for the freight charges in the amount agreed in the Quotation. Delivery and risk of loss shall be in accordance with the Incoterms 2020 specified in the Quotation. Title of the Product shall remain vested in Seller until full payment by the Buyer.
6. INSPECTION AND RETURN/CANCELLATION POLICIES: The Buyer shall carefully examine the Product upon receipt in the ordinary course of its business. If Buyer receives a Product which it considers damaged, non-conforming, not within specification or otherwise unacceptable (the “Rejected Product”), Buyer must so notify Seller no later than fourteen (14) days after receipt of the Product or prior to installation, whichever shall occur first (the “Rejected Product”). Non-visible defects must be notified by the Buyer to Seller accordingly after detection. Failure of such notice shall be deemed acceptance of the Product as received. Seller shall have an opportunity to inspect any Rejected Product. The Rejected Product may be returned, if the statutory requirements for return under German law are fulfilled. Any request to cancel a PO may be subject to a cancellation charge as specified in the cancellation policy, which can be found by clicking on to the website link https://www.solmax.com/en/lp/return-and-cancellation-policies.
7. WARRANTY: Subject to the exclusions contained hereunder and in the Exceptions Notes of the Quotation, the sole and exclusive warranty of Seller as to any Product shall be as specified in the Quotation and in these T&C and the written limited warranty issued by Seller in favor of the owner of the project, a copy of which is available upon request or by clicking on to the website link https://www.solmax.com/en/lp/limited-warranty (the “Limited Warranty”). It is the responsibility of the Buyer to provide a copy of the Limited Warranty to the owner of the project.Seller disclaims any and all implied warranties, including, but without limitation any warranty of merchantability or, fitness for a particular purpose, unless the parties agreed on a specific merchantability or fitness for a particular purpose. Seller neither makes nor intends, nor does it authorize any agent or representative to make any other warranties or representations, express or implied.Any warranty right of the Buyer except for a claim for damages for financial losses will become time-barred one (1) year upon handing over (Übergabe) of the respective Product to the Buyer by the Seller. Subject to Buyer’s fault, Buyer agrees to indemnify, defend and hold Seller harmless from and against all claims, demands, causes of action, damages and losses of every kind and character (including reasonable attorney’s fees) arising out, relating to or resulting from a third party’s (in particular, Buyer’s customers) claim.
8. NO LIABILITY AND TECHNICAL ASSISTANCE: Buyer acknowledges and agrees that Seller does not furnish or provide any technical assistance or information with regard to any Product or as to the installation or the usage of such Product. Seller is a seller of the Products and not a design professional. Unless otherwise agreed between the parties, Seller shall thus have no design responsibility or liability with regard to (a) any project plans or specifications, (b) the application or use of the Product to any particular system, project, purpose, installation or specification or (c) any installation, means, methods or techniques at the project. Buyer acknowledges and agrees that it has the project or purpose of use reviewed and approved by a project design professional and/or owner of the project, who solely decides of the intended use of the Product. Furthermore, any proposed product, including the Product, is thoroughly evaluated for its intended application by the Buyer. The parties expressly agree that the sale hereunder is for commercial or industrial use only and is not a consumer transaction.
9. LIMITATION OF LIABILITY: Seller’s liability for damages shall be excluded. This shall not apply, however, to loss or damage arising from injury to life, limb or health based on an intentional or negligent breach of duty on the part of Seller or a legal representatives or vicarious agent of Seller; to loss or damage based on an intentional or grossly negligent breach of duty on the part of Seller a legal representative or vicarious agent of Seller;to loss or damage based on the violation of a material contractual obligation. A material contractual obligation shall in particular be an obligation that is such that the contract can only be duly and properly executed if it is fulfilled and the other party generally can and does rely on compliance therewith. In such a case, Seller’s liability shall be limited to compensation of the foreseeable, typically occurring loss or damage at the time of the conclusion of the agreement; to loss or damage resulting from a violation of a guarantee issued by Seller;to claims arising from mandatory statutory liability, in particular such as pursuant to the German Product Liability Act.The provisions of this clause shall not affect the statutory allocation of the burden of proof.
10. INDEMNIFICATION: Subject to Buyer’s own fault or to a fault of those for whom Buyer is legally responsible, Buyer shall fully indemnify, defend and hold Seller harmless from and against any third party claims, demands, actions, suits, proceedings, investigations, liabilities, damages, costs or expenses (including reasonable attorneys’ fees) that arise from or relate to: (i) Buyer’s breach of its representations, warranties or obligations as set forth in this Contract; (ii) Buyer’s infringement of any patent, copyright, or trade secret or other third-party rights of any person, Buyer’s trademarks, or any other intellectual property developed or provided by Buyer under this Contract; and/or (iii) Buyer’s marketing, advertising or other representation of the Product.
11. FORCE MAJEURE: Seller shall not be liable for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in performance due to any cause or circumstances beyond Seller’s control and which the Seller could not reasonable foresee or prevent, including, but not limited to, any failures or delays in performance caused by any strike, lockout or labor dispute; fire; pandemic or lockdown issued by a governmental authority; act of God or the public enemy; riot; interference by civil or military authorities; compliance with the laws or with orders or policies of any governmental authority; delay in transit or delivery on the part of transportation company or communication facility or failure sources of raw material, increase in fuel surcharges by carriers increase by more than five (5) cents per gallon from the date of the quotation, shortage of raw materials, including resin, master batch, bentonite, carbon black, and zinc oxide, on an industry wide, region wide, or nationwide basis.
12. GOVERNING LAW AND ARBITRATION: This Contract, including its effective conclusion, and any dispute or claim relating to it, shall be exclusively governed by and construed according to the laws of the Germany, excluding its international private law and excluding the United Nations Convention on Contracts for the International Sale of Goods (1980). All disputes or claims arising out of or in connection with this Contract, including its effective conclusion, shall be exclusively and finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Rechlin, Germany. Arbitration shall be held in English language.
13.CONFIDENTIALITY AND TRADEMARKS: All information about Seller’s business to which Buyer gains knowledge in the course of this Contract shall be kept confidential by Buyer, shall not be disclosed to a third party and shall not be used for any other purpose than to the extent required for either party to perform its obligations under this Contract. Moreover, the parties shall keep the terms and conditions of this Contract confidential. This does not apply in the event the Buyer is obliged by mandatory law or on the basis of an enforceable court order to disclose the confidential information described in this sentence 1 and 2.No right to the use of any trade name or trademark of Seller passes to the Buyer under this Contract and the Buyer agrees to refrain, either directly or indirectly, from using any of Seller’s trade names or trademarks unless specifically authorized to the contrary by Seller in writing.
14. CODE OF ETHICS: Buyer covenants, represents and warrants that: (i) it has read Seller’s Third Party Code of Ethics at: https://www.solmax.com/en/about/ethical-code (the “Code”) ; (ii) it accepts to be bound by the terms of the Code; (iii) it will not engage in any conduct that violates the Code.
15. SANCTIONS: Notwithstanding any other provision herein, Buyer agrees to comply fully with all applicable sanctions and export control laws and regulations of Canada, the United States (“US”) and the European Union (“EU”) as applicable at the time of conclusion of this Contract. Buyer represents and warrants that, at the time of conclusion of this Contract, neither Buyer, nor any parent, subsidiary, affiliate, or associated company of Buyer, is: (a) included on any of the restricted party lists maintained by Canada, the US or EU (collectively, “Restricted Party Lists”); (b) is owned or controlled by (i) any party identified on the Restricted Party Lists; (ii) any government subject to Canadian, US, or EU sanctions; or (iii) any party acting on behalf of those identified in (a) or (b) (collectively, “Restricted Parties”). Buyer hereby acknowledges and confirms that, unless specifically authorized by Seller, it will not sell or enter into an agreement to sell the Products, directly or indirectly through third parties or otherwise, to any Restricted Parties or to North Korea, Iran, Syria, the Crimea region of Ukraine/Russia, or Cuba. Buyer undertakes to inform Seller in writing and within undue delay after gaining knowledge of any relevant change in relation to the Restricted Party Lists or the Restricted Parties as set out in this section.
16. MISCELLANEOUS: This Contract shall be binding upon the respective successor and assigns of each of the parties hereto, but, any assignment without the prior written consent of the respective other party shall be void, except where such assignment is approved in advance by the respective other party. Neither course of performance nor course of dealing nor usage of trade shall be used to interpret, construe, qualify, modify, explain, or supplement any of the terms hereof. This Contract is bilingual in both English and German. In case of any inconsistency, contradictions or conflicts, the English version shall prevail. The German version shall only be used for translation and reference purpose.