GENERAL TERMS AND CONDITIONS OF SALES AND PURCHASE

Goods and services are sold and supplied by Polyfil Ltd ("Seller") on the following General Terms and Conditions of business ("General Terms") unless otherwise expressly agreed in writing between Polyfil Ltd and the Buyer.

1- General

These terms form part of any quotation or contract to which they are attached, and any goods to be supplied, or supplied, by the Seller.

If there is any inconsistency or variance between the provisions of any quotation by the Seller and these terms then the former shall prevail to the extent of the inconsistency or variance provided such that notwithstanding any acceptance by the Seller of any order or offer to purchase from the Buyer that may contain any provision inconsistent with or purporting to vary or reject any of these terms, any contract between the Seller and the Buyer arising from the Seller's acceptance of such order or offer to purchase shall be subject to these General Terms unless and to the extent only that the Seller expressly agrees in writing to any variation thereof.

If one or more clauses of these General Terms or any provisions included in any quotation or contract arising between the Seller and the Buyer is declared legally invalid, the remainder of these General Terms and any such provisions shall be in no way affected.

2- Orders

Orders as well as any amendments thereof are not to be construed as accepted until confirmed in writing by the Seller.

Buyer's cancellation of an order accepted by the Seller shall cause the Buyer - within 30 days as from the date of cancellation - to reimburse the Seller for all costs, expenses and disbursements (including costs and expenses for performed preparatory works and any financial commitments made to Seller's suppliers and other third parties). In addition, the Buyer shall additionally pay a cancellation penalty amounting to 25% of the amount subject to reimbursement, as described here-above.

3- Prices

Unless otherwise clearly indicated, all prices are in Swiss Francs (CHF). Exchange rate variation payable shall be calculated at the rate of exchange actually paid by the Seller against the exchange rate in the quotation. If prices are expressed in different currencies and the Buyer seeks or requires payment in any different currency, the Buyer shall bear any foreign exchange risk arising from such payment.

The products are supplied at the prices applicable at the time the order is processed by the Seller. All prices are considered EXW Zug (Incoterms 2010) without packaging.

Charges specifically excluded in any quotation shall be to the Buyer's account at cost. Unless otherwise stated in writing in any quotation sales tax or any other tax, levy or the like imposed on either the sale, manufacture, dealing with, distribution, import or use of goods or measured by the selling price of goods or otherwise howsoever levied against or added to the price of goods shall in all cases be an excluded cost that shall be added to the price for payment by the Buyer.

Special packing, labelling, certificates, test reports, documentation, etc., which are not included in the standard product, are at the expense of the Buyer.

The Seller will give the Buyer reasonable notice of any increase in the prices quoted where the amount of such increase is, in the Seller’s opinion, substantial. Upon receipt of such notice, the Buyer may terminate the contract with the Seller without liability, provided that the Buyer gives the Seller 5 business days’ notice in writing of such termination and provided that it has first made payment to the Seller for any goods and/or services supplied by the Seller to the Buyer prior to such termination.

4- Payment

Payments shall be made by the Buyer through bank wire transaction to the account communicated by the Seller. All bank wire charges shall be borne by the Buyer.

Unless otherwise agreed in writing by the Seller and the Buyer, payment shall be due as follows:

  1. as to 10% of the contract price on lodgement with the Seller of the Buyer's order; and thereafter
  2. within 30 days of the Buyer's receipt of the Seller's invoice. The Seller is entitled to issue partial invoices at any time.

Should the Buyer make default in respect of any payment due to the Seller then the Seller shall have the right, in addition to all other rights to which it is entitled by law, to:

  1. charge interest on the overdue amount at five percent (5%) calculated from the due date of payment to the actual date of full and final payment. Any payment subsequently made by the Buyer to the Seller shall be credited first against any interest so accrued;
  2. suspend all deliveries or works and any contract period shall be extended by the period of the suspension; or
  3. request prepayment prior to the execution of any remaining deliveries or works, and refuse beginning or continuing any delivery or work before requested prepayment amount has been received by Seller
  4. terminate the contract.

An election to apply any one of the above remedies shall not preclude the Seller from subsequently electing another of them.

If as a result of the Buyer’s default in payment, a solicitor or debt collector is instructed by the Seller, the Buyer agrees to pay the solicitor's or debt collector's fees and disbursements and charge to the Seller in full. The Seller shall be entitled at any time to assign to any other person all or any part of the debt owing to the Seller and the assignee thereof shall be entitled to claim full rights of set-off or counter-claim against the Buyer as charge holders or successors in respect of the debt or part thereof so assigned.

5- Time / Date for Supply

All dates or times quoted for completion or delivery, including partial delivery, shall be calculated from date of acceptance by the Seller of the Buyer's order. The Seller will use reasonable endeavours to meet any delivery or completion date or period quoted but such date or time is a bona fide estimate only and is not to be construed as a fixed date or time unless specifically agreed to by the Seller in writing.

Any contract period shall be extended in respect of any delay relating to either instructions given by, or a lack of instructions from, the Buyer, or any other acts or omissions of the Buyer or those for whom it is responsible.

The Seller shall not be liable to the Buyer for any failure to meet any obligation under any contract arising between the Seller and the Buyer to the extent that such failure is caused by or arises from strikes, lockouts or other industrial unrest and disputes, shortages of labour or materials, delay in manufacturing by the Seller, its associates or suppliers, riot, civil commotion, fire, flood, earthquake, drought, loss or delay at sea or otherwise, breakdowns, pandemic, epidemic or war; or any other cause whether arising from natural causes, human agency or anything beyond the reasonable control of the Seller.

6- Risk

Risk in Goods the subject of any contract between the Seller and the Buyer shall remain with the Seller only until the first in time of any one of the following events:

  1. the passing of property in such goods to the Buyer; or
  2. the delivery of such goods by the Seller to the Buyer or to a carrier at the contractual point of delivery; or
  3. upon such goods leaving the Seller's premises at the request of the Buyer; or
  4. the expiry of 14 days from the date of notification by the Seller to the Buyer that such goods are ready for delivery;

and thereafter risk of damage, loss or deterioration of the goods from any cause whatsoever shall pass to the Buyer.

Any Buyer's claims related to visible defects or to the non-conformity of the supplied goods with the order or the shipping documents must be submitted in writing to the Seller within 7 (seven) open days after delivery of the respective goods.

The Buyer is required to show evidence of all anomalies and defects and to support the Seller in the verification of such defects and in their cause.

Any intervention or good modification of the Buyer shall exclude any liability or warranty of the Seller. The written consent of the Seller shall be obtained before any return of goods.

If the Buyer does not conform to or neglects to proceed as stated in this provision 6, the delivery concerned shall be deemed accepted by the Buyer, excluding any future claims against the Seller.

7- Return of Goods

For any return of prepared or delivered material, the Seller will apply a re-stocking fee in the amount of 10% of the standard pricelist price of the returned goods.

8- Warranty

The Seller hereby warrants to the Buyer that goods manufactured by the Seller, or its related companies and/or services provided by the Seller, shall be free from defects due to faulty design, materials and workmanship (except as regards defects specifically drawn to the Buyer's attention, before any contract is formed between the Seller and the Buyer or, if the Buyer examines the goods subject of such contract before such contract is formed, then except as regards defects which that examination ought to reveal).

If it is proven to the Seller's reasonable satisfaction that goods manufactured by the Seller or its related companies and/or services provided by the Seller are not free from defects due to faulty design, materials and workmanship, then the Seller shall, at no cost and at its option, either:

  1. repair such goods;
  2. replace such goods with the same or equivalent goods at the point of delivery applicable to the contract under which such goods were supplied to the Buyer by the Seller;
  3. re-perform the services or payment of the cost of having the services supplied again; or
  4. refund to the Buyer the contract price of such goods and/or services.

The warranty above does not extend to include the Seller's labour costs. Any removal, reinstallation and other consequential costs will be for the Buyer’s account. The warranty cover for repaired/replaced items will expire on the same date as the warranty for the rest of the goods and/or services. When warranty repairs are required to be carried out at locations outside of the Seller's facilities, then the cost for labour, travel, travel time and accommodation costs incurred by the Seller will be to the Buyer’s account.

This warranty does not apply in respect of defects due to or arising from:

  1. incorrect or negligent handling, disregard of operating and/or maintenance instructions, overloading, unsuitable operating conditions, defective civil or building work, lightning, accident, neglect, faulty erection (unless carried out by the Seller), acts of God, causes beyond the Seller's control or whilst unauthorised repairs or alterations have been carried out or non-compliance with goods’ power and grounding specifications;
  2. the use of goods of consumable nature; or
  3. fair wear and tear.

This warranty does not apply unless:

  1. the goods have been properly handled, located, used, maintained and stored;
  2. defects occur within 12 calendar months after the goods have or could have been delivered to the Buyer;
  3. defects occur within 6 calendar months after the services have or could have been performed;
  4. the Seller is notified in writing within - 7 working days of the alleged defect first coming to the notice of the Buyer;
  5. the Buyer returns the defective goods to the Seller, or if necessary, at the sole discretion of the Seller, to the works where such goods were manufactured or assembled, free of charge; and
  6. the Buyer has fulfilled all of his/its contractual obligations.

9- Liability and Indemnity

Notwithstanding anything else contained in these General Terms or a contract with the Buyer to the contrary, the Seller shall not be liable (to the fullest extent permitted at law) whether by way of indemnity, guarantee, or by reason of any breach of contract, or of statutory duty or by reason of tort (including but not limited to negligence) or any other legal principle or doctrine for:

  1. any loss of profits, loss of use, loss of revenue or loss of anticipated savings or for any financial or economic loss (whether direct or indirect) or for any consequential or indirect loss or damage whatsoever; or
  2. any other amount which in aggregate with any other liability (being any past, present or future liability) to which this clause applies, that exceeds the aggregate value of all payments of the contract price made under these terms.

The Buyer indemnifies the Seller and the Seller’s representatives (each an “indemnified party”) against all loss, damage, costs and expenses suffered or incurred by an indemnified party as a result of any breach by the Buyer of these General Terms, the contact or the order; or any act or omission by the Buyer or the Buyer’s representatives which, if done or omitted to be done by the Buyer, would constitute a material failure to comply with the Buyer’s legal or contractual obligations, with such debt arising from this indemnity to be immediately due and payable to the Seller on demand.

The Buyer acknowledges and agrees that such loss, damage, costs and expenses suffered or incurred by the Seller as referred to in the paragraph here-above may be an insufficient remedy for any actual or threatened breach by the Buyer or any of the Buyer’s representatives, and, without prejudice to any other rights and remedies otherwise available to the Seller, the Buyer agrees to the granting of equitable relief and remedies in favour of the Seller without proof of actual liquidated damage or equitable loss.

10- Bankruptcy, Liquidation and Default

If the Buyer makes any default under a business relationship onto which these General Terms apply, or:

  1. being a person, dies or commits an act of bankruptcy;
  2. being a company, take or shall have taken against it any action for the winding up of the company or the placing of the company under official management or receivership other than for purposes of reconstruction or has an execution levied against it;

then the Seller, at its sole discretion and without prejudice to any other rights it may have under such contract or at law, may give notice in writing to the Buyer and after 14 days from the date of such notice may, unless otherwise by law, suspend or cancel such contract (including, without deferring manufacture or delivery of goods) or require payments in cash before or on delivery of the goods notwithstanding the terms of payment specific or may cancel any undelivered or uncompleted goods then outstanding under such contract or may take possession of the goods or any part thereof and for the purpose thereof enter upon any premises where such goods are stored or reasonably thought to be stored and dispose of them in its own interest without prejudice to any claim it may have for damages for any loss resulting from such disposal and may retain any security or monies held paid by the Buyer in relation to such contract and apply such security or monies against assessed loss or damage incurred by it in relation to such default.

11- Early Termination by the Buyer

40 (forty) days after the issuance of a written warning addressed to the Seller, the Buyer is entitled to declare early termination of the business relationship based on one of the following grounds:

  1. the Seller does not perform its contractual duties for longer than 90 days;
  2. the Seller continuously and obviously neglects its contractual duties or does not perform its tasks in accordance with the terms agreed with the Buyer;
  3. the Seller ignores or rejects justified written instructions from the Buyer;
  4. the Seller becomes insolvent or is placed in bankruptcy;
  5. the Seller declares its dissolution (except in case of a wilful dissolution in the course of a merger or reorganization).

12- Ownership

Deliveries shall remain the property of the Seller until their full payment in accordance with the contract. In case of default of payment by the Buyer for part or whole of the sum due for the goods, the Seller may revoke the goods. An election for revocation shall not preclude the Seller from subsequently taking debt collection or any other legal measures.

13- References

Unless objected by the Buyer in writing, the Seller may use the Buyer's name in the Seller's reference list, on social networks, web-sites or any other means of media communications.

This provision shall not be construed to serve anyhow as ground for the disclosure of confidential information.

14- Confidential Information

All information relating to patents, designs, other intellectual property, drawings, specifications, computer programs, information, samples, prices and the like provided by the Seller shall be regarded as confidential and shall not be copied or disclosed by the Buyer to a third party except with the Seller’s prior written consent, and shall only be used pursuant to the contract for which they are provided.

15- Additional Provisions

Severance

If any provision of these General Terms or a contract, or the application thereof, is for any reason held to any extent to be invalid or unenforceable, the remainder of the provisions and application of such provisions to the other persons or circumstances will be interpreted so as reasonably to reflect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provision.

No Partnership

Nothing contained in this Agreement will be deemed or construed as creating a joint venture or partnership between any of the parties hereto. No party is by virtue of these General Terms or a contract or order authorized as employee or legal representative of any other party. No party will have the power to control the activities and operations of any other and their status is, and at all times will continue to be, that of independent contractors with respect to each other. No party will have any power or authority to bind or commit any other. No party will hold itself out as having any authority or relationship in contravention of this clause.

Costs

Each party will bear its respective expenses and fees of its own accountants, attorneys and other professionals incurred with respect to the business relationship and the transactions contemplated hereby.

The Seller's Right to Assign

The business relationship and all rights under it may be assigned or transferred by the Seller. The Buyer may not assign or otherwise transfer its rights without the prior written consent of the Seller.

16- Proper Law and Jurisdiction

These terms and conditions as well as any action resulting therefrom shall be governed by Swiss substantive law, to the exclusion of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods).

In case of dispute, each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the Canton of Zug, and waives any right to object to any proceedings being brought in those courts.

 

Polyfil Ltd, Zug, March 11th 2020/AJE