Fibicon Terms and conditions
1. Definitions
In these terms, “Seller” means the seller of the Goods as defined herein; “Buyer” means the entity purchasing the Goods, including any successors thereof; “Goods” means the goods, products, services and/or materials manufactured, imported, supplied and/or delivered for or by Seller to Buyer; “Contract” means the contract concluded by Seller and Buyer for the supply of Goods either as specified in the Seller’s pertinent invoice or as otherwise contemplated therein, whether expressly or impliedly, including by actual acceptance of the Goods by Buyer and/or by any payment therefor, whereby it is expressly agreed that the conclusion of which shall be deemed to constitute full consent to performing all transactions contemplated thereby on the sole and exclusive basis of these General Terms and Conditions, unless otherwise confirmed in writing by Seller.
2. Payment
Unless otherwise specifically agreed in writing, payment for Goods shall be due on or prior to the delivery date of Goods and no discount may be taken. Payments received after the due date specified in the invoice shall bear a service charge which will accrue from the due date whether inscribed on the relevant invoice or otherwise agreed, at the maximum lawful interest rate applicable, and if none – at the annual rate of 5% above the base rate (as of the due date of the relevant payment) of the central bank of the place of Buyer’s incorporation. All payments shall be made to Seller’s designated bank account in the same currency and for the same amounts as specified in the Seller’s pertinent Invoice.
3. Prices, Duties and Taxes
Unless otherwise specifically agreed in writing, prices set in Seller’s pertinent invoice are net, excluding packaging, and shall be deemed Ex-works (Incoterms 2010 as amended). Prices are based on production costs for supplies, labor, deliveries, duties and services current on the order date. In the event of material increase in any such costs, Seller reserves the right to either adjust the prices for Goods accordingly, or to cancel any certain part of the sales relating to undelivered Goods. Duties, taxes, fees, levies and other compulsory payments applicable to the sale of Goods at any time, as well as freight, express, insurance and delivery charges, shall all be borne and paid in full by Buyer, unless otherwise expressly confirmed in writing by Seller.
4. Delivery
Any delivery dates noted on the Seller’s pertinent Invoice are subject to reasonable adjustment. The acceptance of shipment by a common carrier or by any licensed public truckman shall constitute proper delivery. Risk associated with the Goods shall pass to Buyer on delivery, upon any collection of the Goods by the Buyer or with the passing of title in the Goods, whichever occurs first; provided however, that where delivery is delayed due to circumstances caused by or within the responsibility of Buyer, risk of loss shall pass to Buyer upon Seller’s notification that Goods are ready for dispatch. Unless otherwise specified in writing in the Seller’s pertinent invoice or Contract, all charges, expenses or taxes associated with the delivery shall be paid by the Buyer.
5. Retention of Title
Title shall pass to Buyer only upon full payment by Buyer of the price of the Goods and following all other outstanding debt payable by Buyer to Seller (if any). Buyer shall, at Seller’s request, take any measures necessary under applicable law to protect Seller’s title in the Goods, and lawfully notify Buyer’s present or potential creditors of Seller’s title on and interest in the Goods. Buyer acknowledges that so long as title has not been transferred in the Goods, it holds the Goods as place for storage of goods and fiduciary agent for the Seller and shall safely and securely store and keep the Goods separate and in good condition, clearly showing the Seller’s ownership of the Goods and shall respectively record the Seller’s ownership of the Goods in its books. Notwithstanding the above, Buyer may use Goods for its own use, or sell Goods, as fiduciary agent for the Seller, to a third party in the normal course of business by bona fide sale at market value, whereby proceeds of such storage, usage or sale of Goods, as the case may be, shall, to the extent of the amount being owed by Buyer to Seller at the time of receipt of such proceeds, be held by Buyer on trust for Seller and specifically ascertained, until payment in full for all payable debts by Buyer to Seller.
6. Warranty
In the case of well-founded and timely notices of defects Fibicon shall improve the goods, grant a price reduction or make a substitute delivery (replacement) or take the goods back against refund of the purchase price in adequate consideration of the Customer’s interests. Fibicon shall choose the remedy under warranty. If Fibicon do not comply with the warranty obligation, the Customer shall be entitled to reduce the price reasonably or to rescind the contract. Any other claims to Fibicon, in particular for direct damages or consequential damages, shall, to the extent permitted by law, explicitly be excluded. Fulfilment of a well-founded warranty obligation shall not affect any guarantee commitments made to third parties. Accordingly, such fulfilment shall not extend the period, neither with regard to warranty, nor with regard to guarantee.
7. Liability
- a) Unless the Seller shall within 30 days after delivery of the Goods, receive from the Buyer written notice of any matter or thing by reason whereof it is alleged that Goods are not in accordance with the Contract, Goods delivered shall be deemed to have been supplied, delivered and accepted in all respects in full conformity with the Contract and the Buyer shall be entitled neither to reject the same nor to raise any claim for damages or for other remedy in respect of any alleged negligence and/or breach of warranty and/or any condition.
- b) In any claim, brought subject to the conditions above, Buyer must prove to the satisfaction of Seller that it followed Seller’s instructions for use, care, storage, maintenance, handling and application of the Goods.
- c) Unless otherwise specifically restricted by mandatory applicable law, Seller’s liability under any claim and in connection with any possible allegation, whether based on negligence, contract, or any other cause of action, shall be limited to either (i) the replacement of the Goods or the supply of equivalent goods; (ii) the repair, or payment of the cost of repair, of the Goods; or (iii) credit in an amount equal to the purchase price specified in Seller’s pertinent invoice, or in an amount of equivalent goods, all at Seller’s sole option. Buyer acknowledges that the remedy available to him as specified herein, is in lieu of any remedies that may be otherwise available to him, now or in the future, whether in law or in equity, relating to any loss or damage, whether directly or indirectly, arising from the purchase and/or the use of Goods, including without limitation, any actual or contingent damages, loss of production, loss of profit, loss of use, loss of contracts or any other consequential or indirect loss whatsoever, whether pecuniary or non-pecuniary. Should any limitation on Seller’s liability hereunder be held ineffective under applicable law, then Seller’s liability shall in any event be limited to the minimum amount of damages to which Seller may limit its liability, where such is greater than the purchase price as specified in Seller’s pertinent invoice.
- d) Buyer, for himself and for any other party which may claim either under or through Buyer, or independently of Buyer, including Buyer’s employees, directors, officers, representatives, affiliates and personnel, shall indemnify and hold Seller harmless, from and against any claim or liability for damages for negligence including but not limited to, any claim in connection with the design, manufacture, use, care, storage, delivery, application or maintenance of any Goods sold hereunder, whether alleged to have been committed by Seller or by any other person whatsoever. Buyer’s undertaking as specified in these subsection 7(c) and 7 (d) shall extend and inure to the benefit of Seller and of Seller’s successors at any time, as well as to Seller’s affiliates, personnel, representatives, managers, directors and officers. Nothing contained herein shall take effect to exclude or limit liability where liability may not be excluded or limited under applicable law, including, without limitation, for death, personal injury and fraudulent misrepresentations.
- e) Any and all warranties, undertakings, guarantees or assurances provided herein by Seller, are specifically limited to Buyer herein, and not imputed by Seller, whether directly or indirectly, expressly or impliedly, to any other person or entity, including any subsequent buyer or user, place for storage of goods, licensee, assignee, employee and agent of Buyer.
8. Force Majeure
In the case that events of force majeure affect Fibicon or any of their upstream suppliers Fibicon shall be entitled to suspend deliveries for the time of the obstruction and a reasonable start-up period or the rescind the contract in whole or in part according to the consequences of the events of force majeure. Events of force majeure shall include but not be limited to: all impacts of the elements, such as earthquake, lightning, frost, storm, floods; war, laws, acts of authorities, seizure, transport interruption, export bans, import bans and prohibition of transit, international payment restrictions, failure of supply of raw materials or energy failure; business interruptions, such as, e.g., explosion, fire, strikes, sabotage and any other events that could only be prevented with unreasonable costs and commercially unreasonable means.
9. Consent regarding Data Protection Law
The Customer expressly agrees that personal data which has been and/or will be made available by the Customer may be collected, processed and used by Fibicon for marketing purposes or other purposes by means of a customer data base. This consent may be revoked by the Customer at any time with effect for the future.
10. Final Provisions
Bulgarian law shall apply with the exception of the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods. The venue for all disputes arising directly or indirectly from the contract shall be the court in the capital of Sofia having jurisdiction over the subject-matter. The place of performance for deliveries and payment shall be the place of the registered office of Fibicon. If individual provisions of the contract or of these Terms and Conditions should be or become ineffective in whole or in part, the validity of the remaining provisions shall not be affected. The provision that is ineffective in whole or in part shall be replaced by a provision the economic result of which comes as close as possible to that of the ineffective provision. Any and all amendments to and modifications of contracts concluded between Fibicon and the Customer shall be made in writing. This shall also apply to a waiver of this requirement of written form.