1. Definitions:
1.1. In these Conditions:
"Company" means ITOCHU Deutschland GmbH;
"Contract" means the acceptance of the Order, including these Conditions, whether by written or oral confirmation by the Selle effecting delivery of the Goods;
"Goods" means the goods agreed in the Contract to be purchased by the Company from the Seller;
"Order" means the Company’s written order and instructions to supply the Goods;
"Seller" means the person who accepts the Company’s Order.
2. Application of Terms:
2.1. These Conditions are the only conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions.
2.2. Each Order for Goods by the Company from the Seller shall be deemed to be an offer by the Company to purchase the Goods subject to these Conditions and no Order shall be accepted until the Seller either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer. Any Order that is not accepted by the Seller within 10 days of receipt of the same shall be deemed automatically revoked.
2.3. No terms or conditions endorsed upon, delivered with or contained in the Seller’s quotation, acknowledgement or acceptance of order, specification or similar document will form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.
2.4. These Conditions apply to all the Company’s purchases and any variation to these Conditions shall have no effect unless expressly agreed in writing by the Company.
3. Quality and Defects:
3.1. The Company’s rights under these Conditions are in addition to the statutory conditions implied in favour of the Company by the applicable law.
3.2. The Company has the right to inspect the Goods immediately after delivery. If the result of such inspection or testing causes the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.
3.3. Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the quality of the Goods, and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations under the Contract exempt from the limitations of liability pursuant to section 377 of the German Commercial Code. The Company shall reserve the right to claim the Goods in compliance with the Order and the terms of the Contract to the Seller pursuant to section 433 para. 1 of the German Civil Code.
4. Delivery:
4.1. Delivery of the Goods shall be effected in accordance with any applicable Incoterms (if agreed in writing as part of the Contract) and otherwise as referred to in clause 4.2.
4.2. The Goods shall be delivered, carriage paid, to the Company’s place of business or to such other place of delivery as agreed by the Company in writing prior to the delivery of the Goods, the Seller shall off-load the Goods as directed by the Company
4.3. The date for delivery shall be specified in the Order, or if no such date is specified then delivery shall take place within [28] days of the Order.
4.4. An invoice shall be issued in accordance with any applicable Incoterms and payment terms (both, if agreed in writing as part of the Contract). Otherwise, the Seller shall invoice the Company only upon dispatch of the Goods to the Company.
4.5. The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
4.6. Time for delivery shall be of the essence. If the Goods are not delivered on time stipulated in the Order, the Seller shall provide to the Company the remedies pursuant to the German Civil Code of (i) supplementary performance, (ii) compensation for damages in lieu of delivery, (iii) compensation for damages besides the delivery, (iv) reimbursement of expenses, (v) compensation for damages due to the delay of delivery, (vi) withdrawal from the Contract .
4.7. Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the Company in normal business hours.
4.8. If the Seller requires the Company to return any packaging material to the Seller, that fact must be clearly stated on any delivery note delivered to the Company and any such packaging material will only be returned to the Seller at the Seller’s cost.
4.9. Where the Company agrees in writing to accept delivery by instalments, the Contract will be construed as a single contract in respect of each instalment, and the agreed dates for each delivery shall become binding on the Seller.
4.10. If the Goods are delivered to the Company in excess of the quantities ordered ("Excess Items"), the Company shall be entitled to keep any Excess Item so delivered without any additional consideration, provided that the quantity of Excess Items does not exceed 5% of the ordered quantity of the same kind as set out in the relevant Order. In any other case, the Company may, at its sole discretion, pay the Seller for any Excess Item at the same price as in the Order (in which case the Excess Items will be deemed automatically purchased by the Company without any further action), or notify the Seller in writing to retrieve any Excess Items at its own expense, it being understood in this latter case that: (a) the Seller shall assume all liability for the custody of the Excess Items until they are collected from the Company; and (b) in the event that the Seller does not collect any Excess Items within 10 days of being requested to do so, title to such Excess Items will automatically pass to the Company without consideration.
5. Risk/Property:
The Goods shall remain at the risk of the Seller until delivery to the Company is complete (including off-loading and stacking) when ownership of the Goods shall pass to the Company.
6. Price:
6.1. The price of the Goods shall be stated in the Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges.
6.2. The Seller shall not purport to make any variation in the price of the Goods or apply any extra charge (for any reason) without the Company’s prior written consent, any such variation shall not be binding on the Company.
7. Payment:
7.1. Unless otherwise agreed, the Company shall pay the price of the Goods within 30 days of delivery of the Goods to the Company.
7.2. Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Seller to the Company against any amount payable by the Company to the Seller under any Contract.
8. Confidentiality:
The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Company or its agents and any other confidential information concerning the Company’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations as bind the Seller.
9. The Company’s Property:
Materials, equipment, tools, dies, moulds, copyright, design, rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by the Company to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Company, but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and shall not be disposed of other than in accordance with the Company’s written instructions, nor shall such items be used otherwise than as authorised by the Company in writing.
10. Force Majeure:
The Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of Gods, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
11. General:
11.1. The headings appearing in these Conditions are for guidance only and shall not in any way be deemed to affect the interpretation or effect thereof.
11.2. The Seller shall not be entitled to assign, transfer or dispose of any interest in this Contract without the written consent of the Company. The Company may assign and transfer its rights and obligations hereunder to any person effective by delivery of a notice to that effect to the Seller signed by the Company and the assignee and/or transferee.
11.3. Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
11.4. Failure or delay by the Company in enforcing or partially enforcing any provision of the Seller will not be construed as a waiver of any of its rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of any Contract by the Seller will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of such Contract.
11.5. Any notice or other communication to the Seller or the Company may be given by post or email. Communications shall be deemed to be received and given 48 hours after posting or at the time of transmission, if posted or sent by email.
11.6. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the condition in question shall not be affected.
11.7. If more than one person or entity undertakes to sell the Goods to the Company under the same Contract, each of these persons shall be jointly and severally liable for the obligations of the Seller under such Contract, and any reference to "Seller" in these Conditions shall be construed accordingly.
11.8. The Conditions, the Contract and all matters arising out of or relating to them shall be governed by and construed in accordance with the laws of Germany, expressly excluding any conflict of law provision or the application of the Vienna Convention on the sale of movable goods (CISG). The Courts of Düsseldorf shall have jurisdiction on any claim or controversy whatsoever related to or arising out of these Conditions or the Contracts, provided however that the Company (but not, avoidance of doubt, the Seller) shall at its sole discretion have the right to bring an action relating to the aforementioned disputes also in any other court of competent jurisdictions.
Itochu Deutschland GmbH (2018) ©
1. Definitions:
In these Conditions:
"Affiliate" means, in respect of any person, any company that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with that person (each of the words "control" or "controlled" meaning ownership of the issued voting capital of any such party which is not less than 50%);
"Business Day" means any day other than Saturday and Sunday or a public holiday in Germany when banks are open for business in Germany;
"Buyer" means the buyer (including any agent of the buyer) who orders the Goods;
"Contract" means the agreement for the sale and purchase of the Goods of which these Conditions form a part; "Contract Price" means the amount shown on the applicable invoice as the price of the Goods; "Delivery" means delivery of the Goods in accordance with clause 6;
"Goods" means the goods to be provided by the Seller under the Contract; "Seller" means ITOCHU Deutschland GmbH and Affliate thereof.
2. Application of Terms:
2.1. All quotations are given and all orders accepted by the Seller are issued and accepted subject to these Conditions, which supersede any other terms and conditions appearing in the Seller’s catalogue or elsewhere and override and exclude any other conditions stipulated or incorporated or referred to by the Buyer, whether in the order or in any negotiations, and any course of dealing established between the Seller and the Buyer. All orders made by the Buyer after written express acceptance of these Conditions shall be deemed to be made subject to these Conditions and the Buyer’s acceptance of any Goods shall constitute acceptance of these Conditions.
2.2. The Buyer acknowledges that there are no representations outside these Conditions which have induced the Buyer to enter into any Contract and that these Conditions are the only conditions which regulate the Contracts.
2.3. No modification of these Conditions (including any special terms and conditions agreed between the parties) shall be effective unless made by an express written agreement between the parties.
3. Specification and Quantities:
Unless otherwise specified in the Contract, if the Seller delivers to the Buyer a quantity of the Goods of up to 10% more or less than the quantity ordered by the Buyer, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for the Goods actually delivered at a pro rata rate to the Contract Price.
4. Title:
4.1. Until all claims arising from the business relationship have been paid, including any refinancing or reverse bills, the Seller reserves the right of ownership to his deliveries of Goods, which may only be sold in the ordinary course of business.
4.2. Until such time as the Buyer becomes the owner of the Goods pursuant to clause 4.1 above, the Buyer will maintain records of them and store them on its premises separately from its own goods or those of any other person and in a manner which makes them readily identifiable as the Goods of the Seller. The Seller shall be entitled to inspect the Goods at all reasonable times without prior notice and the Buyer shall not remove any mark placed on any of the Goods or packaging by the Seller identifying such Goods or packaging as being supplied by and belonging to the Seller.
[4.3. By processing these Goods, the Buyer shall not acquire ownership of the Goods manufactured in whole or in part; the processing shall take place free of charge exclusively for the Seller. Should the retention of title nevertheless expire due to any circumstances, the Seller and the Buyer hereby agree that the title to the Goods shall pass to the Seller with the processing, who shall accept the transfer of title. The Buyer remains their custodian free of charge.]
[4.4. In the case of processing with Goods still owned by third parties, the Seller acquires co-ownership of the new items. The extent of such co-ownership shall be determined by the ratio of the invoice value of the Goods delivered by the seller to the invoice value of the remaining Goods.]
[4.5. The Buyer hereby assigns to the seller the claim arising from the resale of the reserved Goods, including to the extent that the Goods have been processed. If the processed product contains, in addition to the reserved Goods of the Seller, only such items which either belong to the Buyer or have only been delivered under the so-called simple retention of title, the Buyer shall assign the entire purchase price claim to the Seller. In the other case, i.e. if the advance assignment to several suppliers coincides, the Seller is entitled to a fraction of the claim, corresponding to the ratio of the invoice value of his reserved Goods to the invoice value of the other processed items.]
[4.6. At the Buyer's request, the Seller undertakes to release the securities to which he is entitled in accordance with the above conditions at his discretion, insofar as the realisable value of the securities exceeds the claims to be secured by more than ten percent.]
[4.7. As long as it meets its payment obligations to the Seller, the Buyer may collect the outstanding amounts for itself until revoked. The right to resell or process the Goods and to collect the receivables shall lapse upon cessation of payments, the filing or opening of judicial insolvency proceedings or out-of-court composition proceedings, a cheque or bill protest or a seizure. Any assigned accounts receivable received thereafter shall be accumulated immediately in a special account.]
[4.8. Any return of Goods shall always only take place as security; this shall not constitute a withdrawal from the contract, even if partial payments were subsequently permitted.]
5. Transfer of Risk:
5.1. The risk of loss of and damage to the Goods shall pass to the Buyer in accordance with any specified Incoterms, if applicable, and, otherwise, on Delivery, and the Buyer undertakes to act as a custodian for any Goods so delivered until title to them has passed to it pursuant to clause 4.1 above.
5.2. To the maximum extent permissible under the applicable law, the Seller shall not be liable for any loss of any kind to the Buyer arising from any damage to the Goods occurring after the risk has passed to the Buyer however caused, nor shall any liability of the Buyer to the Seller be diminished or extinguished by reason of such loss.
5.3. The Buyer will indemnify the Seller in respect of all loss, damage, actions, claims, demands, suits, charges, costs, fees and expenses arising from damage to the Goods occurring after the risk has passed to the Buyer, however caused in compliance with clause 5.1 above.
5.4. From the time when the risk has passed to the Buyer until the Contract Price is paid in full and title in the Goods shall have passed to the Buyer, the Buyer shall: (a) indemnify the Seller against all loss and damage to the Goods; (b) insure and keep insured the Goods in an amount at least equal to the Contract Price; (c) hold for the Seller all proceeds of such insurance; and (d) adequately store the Goods in accordance with the Seller’s instructions.
6. Delivery:
6.1. Delivery of the Goods shall be effected in accordance with any applicable Incoterms (if agreed in writing as part of the Contract) and otherwise as referred to in clause 6.2 or 6.3 (as the case may be).
6.2 Where delivery of the Goods is to be effected or arranged by the Seller, Delivery shall be deemed to have occurred when the Goods are passed to the carrier, whether or not the Seller’s or the Seller’s supplier’s agent.
6.3. Where delivery of the Goods is not to be effected or arranged by the Seller, the Buyer shall collect and remove the Goods from the Seller’s or, as the case may be, the Seller’s supplier’s premises, no later than [3] Business Days after the Seller shall have notified to the Buyer that the Goods are ready for collection and Delivery shall occur when the Goods are actually collected by or on behalf of the Buyer. In the event of failure by the Buyer to arrange collection of the Goods as set out above, the Seller shall be entitled to charge the Buyer a deposit fee established in good faith by the Seller for each day of delay and, if the delay in collection persists for longer than 30 calendar days, to terminate the related Contract by giving written notice thereof to the Buyer.
6.4. Save where stipulated in the Contract, insurance will not be effected by the Seller. Where so stipulated, insurance will be effected by the Seller at the risk and for the account of the Buyer on terms within the Seller’s discretion.
6.5. The Seller shall be entitled to deliver the Goods in one or more consignment unless otherwise expressly agreed and each consignment or delivery shall constitute a separate and independent contract.
6.6 The Seller shall not be under liability of whatsoever kind for lack of or delay in Delivery of the Goods or any part thereof due to causes beyond the control of the Seller including but not limited to war, riot or other civil disobedience, supplier or other third party failure, acts of government or any agency or sub-division thereof, labour dispute, lock-out, strike, embargoes, accident, fire , explosion flood or other acts of God, delay in delivery to the Seller, shortage of labour or materials. In any such event the Seller may without liability cancel the Contract or extend the time of performance of the Contract for a period at least equal to the time lost by reason of such causes.
6.7. Except for what foresee under clause 8, if the Buyer has defaulted on any payment to the Seller under a Contact or if the Seller reasonably believes that an event referred to in clause 10 has or may occur, the Seller may at its discretion stop any Goods in transit prior to Delivery. In the event that the Seller exercises this right the Buyer shall not be required to pay for the Goods which have not been delivered but the Seller shall in no circumstances be liable to compensate the Buyer in damages or otherwise for loss of profits or late Delivery or non-Delivery of the Goods or any of them for whatever reason or for any loss consequential or otherwise.
7. Liability and Indemnity:
7.1. The Seller’s liability for damages exempt from guaranteed characteristics and from injuries to life, limb or health, whether impliedly or expressly, shall be limited in accordance with this provision insofar as the damages were caused by the Seller’s negligence. The limitation of the Seller’s liability shall be applied in particular, for impossibility, delay, defects or incorrectness in respect of the Goods and/or delivery of the Goods, a breach of the Contract and/or a breach of pre-contractual obligations and/or tort.
7.2. In the event of simple negligence the Seller shall not be liable to the extent that the obligation does not constitute a breach of essential contractual obligations. The essential contractual obligations include the obligation to deliver the Goods free from defects which more than insignificantly impair their functionality and the fitness for purpose on time, the obligation to provide protection, care and safety for customers and/or the end-users of the Goods.
7.3. If the Seller is liable under clause 7.2, the liability shall be limited to the damages that (i) the Seller foresaw it as a possible consequence of a breach of the Contract at the time of entering into the Contract; or (ii) the Seller should have foreseen it if it had exercised a reasonable care. Indirect and consequential damages and/or losses resulting from defective Goods shall only be eligible for compensation if such a damage and/or loss is typically to be expected only where the delivery of the Goods is used for the intended purposes.
7.4. The above exclusions and/or limitations of liability shall apply the same extent to the Seller and its legal representatives, employees and agents.
8. Price and Payment:
8.1. The Contract Price is strictly net unless otherwise quoted. The Seller shall be entitled to add to the Contract Price value added tax, import or customs duty (and any other applicable taxes) at the rate applicable on Delivery.
8.2. The Seller will exercise the right to the fullest extent to claim the payment in accordance with the invoice that it issues to the Buyer. The Seller reserves the right to charge interest (both before and after judgement) on any overdue account at the rate of 9% above base rate from time to time without prejudice to its other right as agreed, in case of missing payment within the term of the Contract, even of one single order, the Seller reserves the right to suspend totally or a part of the execution of the Contract and/or the Delivery of the further orders done by the Buyer until the payment in full, and to immediately terminate any outstanding Contract.
8.3. The Seller will also be entitled to reimbursement of all external or additional costs and expenses reasonably incurred in the enforcement of its rights under this Contract, including but not limited to, the payment of legal fees and expenses whether incurred before or after the commencement of legal proceedings.
9. Defects:
9.1. The Buyer shall accept the Goods from the Seller’s carrier only after ensuring, in its presence, that the package does not show any appearance of damage of any kind and shall inspect the Goods for any damage, defects or no-conformity of the Goods from the agreed specifications (each a "Defect"). If the Buyer believes that the Goods are affected by a Defect, then it shall promptly give written notice thereof to the Seller, together with any reasonable evidence supporting the claim (a "Claim Notice").
9.2. In any event, the Buyer shall not return any Goods without the prior written agreement of the Seller. If the Goods are returned without such consent the costs and expenses of re-delivery to the Seller and the risk of loss and damage to the Goods will remain with the Buyer. The Seller’s certificate as to the weight or quantity of returned Goods received by it shall be final and binding in the absence of manifest error.
10. Default and Insolvency:
The Seller shall also be entitled to terminate any Contract by giving notice thereof to the Buyer with immediate effect if: (a) the Buyer becomes insolvent or the Seller reasonably considers that the Buyer may become so within the following 3 months; (b) the Buyer takes any action or is subject to third party actions which materially reduce its ability to freely dispose of its assets, and the Seller has reason to believe that such depletion of assets may impact on its ability to regularly and promptly meet its obligations towards the Seller; and/or (c) the Buyer disposes of or ceases or threatens to cease to carry on all or a substantial part of its business.
11. General:
11.1. The headings appearing in these Conditions are for guidance only and shall not in any way be deemed to affect the interpretation or effect thereof.
11.2. The Buyer shall not be entitled to assign, transfer or dispose of any interest in this Contract without the consent of the Seller. The Seller may assign and transfer its rights and obligations hereunder to any person effective by delivery notice to that effect to the Buyer signed by the Seller and the assignee and transferee.
11.3. Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
11.4. Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contact will not be construed as a waiver of any of its rights under the Contract.
11.5. Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
11.6. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the condition in question shall not be affected.
11.7. The Buyer shall not, without the written consent of the Seller, disclose to any third party, any technical data, know-how or confidential information disclosed by the specifications, drawings and technical descriptions supplied by the Seller to the Buyer shall remain the property of the Seller.
11.8. Any notice or other communication to the Seller or the Buyer may be given by post or email. Communications shall be deemed to be received and given 48 hours after posting or at the time transmission, if posted or sent by email.
11.9 If more than one person or entity undertakes to purchase the Goods from the Seller under the same Contract, each of these persons shall be jointly and severally liable for the obligations of the Buyer under such Contract, and any reference "Buyer" in these Conditions shall be construed accordingly.
11.10. These Conditions, the Contract and all matters arising out of or relating to them shall be governed by and construed in accordance with the laws of Germany, expressly excluding any conflict of law provisions or the application of the Vienna Convention on the sale of movable goods (CISG). The courts of Düsseldorf shall have jurisdiction on any claim or controversy whatsoever related to or arising out of the Conditions or the Contract, provided however that the Seller (but not, for the avoidance of doubt, the Buyer) shall at its sole discretion have the right to bring an action relating to the aforementioned disputes also in any other court of competent jurisdiction.
Itochu Deutschland GmbH (2018) ©