GENERAL TERMS & CONDITIONS OF SALE
1. APPLICATION OF TERMS
These terms and conditions of sale (“Terms”) are the only terms which govern the sale of goods (the “Goods”) manufactured or supplied by GPS Internationale Handels Holding GmbH (the “Vendor”) to the purchaser of the Goods (the “Purchaser”). These Terms shall prevail over any terms and conditions of purchase provided by the Purchaser regardless of whether or when the Purchaser has submitted such terms or purchase order. Fulfillment of the Purchaser’s purchase order does not constitute acceptance of any of the Purchaser’s terms and conditions and does not in any way modify, amend or supersede these Terms. No modifications or additional terms or conditions will be binding on the Vendor unless agreed to in writing and signed by an authorized officer of the Vendor.
2. QUOTATION AND PRICE
Unless otherwise specified in writing, all written quotations shall be intended for reference purposes only, constituting neither an offer to sell nor imposing any obligations or liability on the Vendor. All written quotations and offers to sell are subject to change without notice and automatically expire 30 days from the date quoted. Quotations are based on data provided to the Vendor by the Purchaser, and the Vendor shall have no liability to the Purchaser if the data provided to the Vendor is incorrect or incomplete.
The Purchaser shall pay the fees as set forth in the order confirmation or quotation (whichever is applicable) (the “Contract Price”). The Contract Price is based on daily price for materials (paper) for production of the quotation. In case of changes of market prices of more than 3%, the Contract Price will be adjusted accordingly.
All prices are in Euros unless otherwise specified in writing by the Vendor. Prices and terms and conditions of sale are all subject to change without notice to the Purchaser.
3. TAXES
The Contract Price does not include sales, use, excise, or other taxes payable to any government authority in respect of the sale of the Goods. The Purchaser shall pay, in addition to the Contract Price, the amount of any such taxes or shall reimburse the Vendor for the amount thereof that the Vendor may be required to pay. Without limiting the generality of the foregoing, taxes shall include (a) all applicable sales, use or other taxes (notwithstanding their designation as sales tax, goods and services tax, harmonized sales tax and other taxes imposed by any governmental body upon the transaction described herein, unless the Purchaser provides the Vendor with satisfactory evidence of exemption acceptable to the taxing authorities; (b) all additional costs arising from any duties and any federal, provincial or local laws imposed as processing or any other taxes on the raw materials or manufactured product for which Vendor may be liable; and (c) all additional costs arising from any federal, provincial or local laws fixing or regulating hours and/or costs of labor producing the Goods described herein.
4. ACCEPTANCE OF ORDER
No order placed by the Purchaser shall be deemed to be accepted by the Vendor unless and until confirmed in writing through a sale order confirmation from the Purchaser.
5. PAYMENTS
Unless otherwise specifically authorized, terms of payment are 30 days Net from the date of invoice for purchasers with approved credit. The Vendor may charge interest on any outstanding balance beyond the approved payment date at the rate of 24% per annum, applied and calculated daily and compounded monthly, until such payment is received. Where such balance is payable in installments, the Vendor reserves the right to charge interest on overdue installments at the said rate from the date payment is due to the date of payment.
Pro rata payments shall become due as shipments are made and actually received. The Vendor’s shipment of a quantity of Goods on a piecemeal basis shall not entitle the Purchaser to object to or reject the Goods or any portion thereof. If shipments are delayed by or at the request of the Purchaser, payment shall become due when the Vendor is prepared to make the shipment. If the cost to the Vendor is increased by reason of delays caused by the Purchaser, such additional costs shall be paid by the Purchaser. Goods held for the Purchaser shall be at the risk and expense of the Purchaser.
The Vendor reserves the right to stop or suspend delivery of the Goods for non-payment where such failure continues 10 days after written notice thereof. The Purchaser shall not withhold payment for any amounts due and payable by reason of any set-off claim or dispute with the Vendor.
If at any time the Vendor determines in good faith that the Purchaser’s financial condition or credit rating does not justify a sale on credit or if the Purchaser is at any time in default of any undelivered indebtedness or obligation owed to the Vendor, then the Vendor may: (a) suspend further delivery of the Goods until payment is received in full; and/or (bi) require cash payment in advance of the delivery of the Goods; and/or (c) refuse to deliver any undelivered Goods, without incurring any liability to the Purchaser for non-delivery or any delay in delivery; and/or (d) terminate this agreement, and any other agreement with the Purchaser, with immediate effect upon written notice to the Purchaser. The Purchaser agrees to submit such financial information from time to time as may be reasonably requested by the Vendor for the establishment and/or continuation of credit terms. The Purchaser agrees to pay any and all legal fees associated with payment collection.
6. CHANGES
The Vendor will not accept changes to the order or specifications unless such changes are requested in writing by the Purchaser and approved in writing by an authorized representative of the Vendor.
The Purchaser agrees to pay, in addition to the Contract Price, a set sum determined by the Vendor to accommodate or effectuate such change or changes.
7. CANCELLATION
Once an order has been accepted by the Vendor, it is not subject to cancellation without the prior written consent of an authorized representative of the Vendor. Cancellations are subject to a reasonable charge based upon expenses already incurred, commitments made by the Vendor, overhead and reasonable profit.
8. DELIVERY
Any indicated dates of delivery, performance dates or dates of completion of deliverables are approximate only, but the Vendor will attempt to meet them where commercially reasonable. The Vendor shall not be liable to the Purchaser, in any manner whatsoever, for delays in manufacturing or delivery. The Vendor will not be bound by any penalty clause contained in any specification or order submitted by the Purchaser unless such clause is specifically agreed to in writing by an authorized representative of the Vendor.
Unless otherwise agreed to by the Vendor, delivery of the Goods shall be FCA (Incoterms 2020) from the Vendor’s facility. Delivery shall be deemed to have taken place when the Goods is delivered into the custody of the Purchaser or the Purchaser’s carrier/agent (the “Delivery Time”). The Vendor shall not be liable or responsible to the Purchaser, nor be deemed to have defaulted or breached any agreement with the Purchaser, for any failure or delay in performing under this agreement to the extent such failure or delay is the result of Force Majeure or causes beyond the Vendor’s reasonable control. Each delivery of Goods will constitute a separate sale, and the Purchaser shall pay for all Goods delivered whether in whole or in part.
The Vendor shall not be liable to Purchaser for any delay or failure to deliver Goods due to any cause beyond the Vendor’s reasonable control, including, without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, pandemic, illness or injury to workers, delayed or failed deliveries by subcontractors, power failure, damage or destruction of production facilities, riot, insurrection, transportation delays or defaults, delay in supply or shortages of fuel, components, raw materials or supplies, labour shortage, acts or omissions of third parties, action of any governmental authority, or any other cause beyond the reasonable control of the Vendor (the “Force Majeure“). In such event, the Vendor must promptly provide Purchaser with written notice of the Force Majeure. The Vendor’s time for delivery and/or performance will extended for a period equal to the time lost by reasons of the Force Majeure without subjecting the Vendor to any liability or penalty. If the Force Majeure event lasts longer than sixty (60) days, the Vendor may immediately terminate all or part of these Terms, without incurring any liability or penalty, by providing written notice of such cancellation to Purchaser.
9. TITLE AND RISK OF LOSS
The Purchaser assumes and shall bear the entire risk of loss of or of damage to the Goods from any cause whatsoever from the Delivery Time.
TITLE TO AND OWNERSHIP OF THE GOODS WILL NOT TRANSFER TO THE PURCHASER BUT WILL REMAIN WITH THE VENDOR UNTIL SUCH TIME AS ALL AMOUNTS OWING TO THE VENDOR IN RESPECT TO SUCH GOODS, INCLUDING INTEREST, COSTS AND EXPENSES ARE FULLY PAID, NOTWITHSTANDING THE TRANSFER OF RISK TO THE PURCHASER PURSUANT TO CLAUSE 9 HEREOF.
As collateral for the payment of the Goods and the due performance by the Purchaser of its obligations hereunder, the Purchaser hereby grants to the Vendor a lien on and security interest in and to the right, title, and interest of the Purchaser in, to, and under the Goods, wherever located or however arising whether now or hereafter, and all substitutions, replacements and additions thereto and the proceeds (including insurance proceeds) therefrom. The Purchaser hereby grants to the Vendor whatever power and authority necessary to protect and perfect that security interest, including power for the filing of financial statements or other similar documents.
10. INTELLECTUAL PROPERTY
The Purchaser acknowledges and agrees that the Vendor hereby reserves all right, title and interest, including all intellectual property rights, in the design of the Goods, including all copyright, patterns, illustrations, drawings, calculations and similar information, whether in electronic format or otherwise. All such intellectual property rights, including technical information and/or drawings, specifications, sales literature, quotation, etc. supplied by the Vendor in connection herewith shall be treated as strictly confidential by the Purchaser and shall not be made available to third parties both prior to or after execution of this Agreement and delivery of the Goods unless the prior written consent of the Vendor is obtained. The Vendor retains title to and reserves ownership or a license of all such intellectual property rights respecting all documents, descriptions, compilations of data, photographs, illustrations, estimates, and other l information provided to the Purchaser in connection with the quotation or with the sale of the Goods, and the Purchaser shall return same to the Vendor upon its request.
11. RETURNS
Goods must not be returned to the Vendor unless previously authorized in writing by the Company and in accordance with the Company’s return policy. Only authorized returns in re-saleable condition will be accepted and credited to the Purchaser. Unauthorized returns will not be credited to the Purchaser, but may be sent back by the Company to the Purchaser or pulped, in each case, at the Purchaser’s request and expense.
12. LIMITED WARRANTY
The Vendor warrants to the original Purchaser that the Goods shall be free from any damage or defect in workmanship for 90 days from the date of purchase of the Goods. If the Goods are covered by the warranty, the Vendor shall either replace the Goods or refund the full purchase price, at the Vendor’s sole option. The Purchaser shall make a claim against this warranty by notifying the Vendor of the specific nature of the damage or defect in writing. Upon receipt of notice, the Vendor will investigate the warranty claim and advise the Purchaser whether the claim has been accepted or rejected, as well as whether the Goods will be replaced or whether the full purchase price will be refunded. THE ABOVE WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE GOODS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES SET FORTH HEREIN SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
13. INDEMNIFICATION AND RELEASE
The Purchaser shall indemnify and agree to hold the Vendor harmless from any and all claims, charges, expenses, damages, liabilities and other costs incurred (a) as a result of any breach by the Purchaser of these Terms, (b) arising from the misuse of the Goods or the use of the Goods in a manner not consistent with industry standards, or (c) arising from any act or omission of the Purchaser, any affiliate of the Purchaser, or any agent or employee of the Purchaser.
14. LIMITATION OF LIABILITY
If a court of competent jurisdiction determines that the release contained in Clause 13 is invalid, ineffective or unenforceable, the Purchaser agrees as follows:
NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE VENDOR, ITS AFFILIATED COMPANIES, SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUPPLIERS OR SUBCONTRACTORS (COLLECTIVELY, “RELATED PARTIES”) BE LIABLE, EITHER JOINTLY OR SEVERALLY, TO THE PURCHASER FOR ANY DAMAGES, CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, LOSSES, COSTS, EXPENSES AND/OR LIABILITIES IN EXCESS OF AN AMOUNT, IN THE AGGREGATE, EQUAL TO THE PRICE ALLOCABLE TO THE SPECIFIC GOODS THAT GIVE RISE TO THE CLAIM, REGARDLESS OF WHETHER SUCH LIABILITY ARISES OUT OF BREACH OF CONTRACT, GUARANTY OR WARRANTY, TORT, PRODUCT LIABILITY, INDEMNITY, CONTRIBUTION, STRICT LIABILITY (INCLUDING PRODUCT LIABILITY CLAIMS) OR ANY OTHER LEGAL THEORY.
UNDER NO CIRCUMSTANCES WILL THE VENDOR AND ITS RELATED PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF ACTUAL OR ANTICIPATED PROFITS OR REVENUE (INCLUDING LOSS OF REVENUES), LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, BUSINESS INTERRUPTION COSTS, DOWNTIME COSTS, INJURY TO PERSON OR PROPERTY OR DEATH, PROPERTY LOSSES AND DAMAGES DUE TO THIRD PARTY CLAIMS, ARISING OUT OF THESE TERMS OR THE VENDOR’S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. THE PURCHASER WILL INDEMNIFY THE VENDOR AND ITS RELATED PARTIES AGAINST ANY SUCH CLAIMS FROM THE PURCHASER’S CUSTOMERS. IF THE PURCHASER RESELLS THE GOODS TO ANY THIRD PARTY, THE PURCHASER SHALL OBTAIN FROM SUCH THIRD PARTY A PROVISION AFFORDING THE VENDOR AND ITS RELATED PARTIES THE PROTECTION OF THE PRECEDING SENTENCE.
15. DEFAULT AND TERMINATION
In addition to, and without limitation of, any other remedies provided to the Vendor by these Terms or by law, the Vendor may at its option, in its sole discretion, and without incurring any liability thereby, terminate this agreement, and any other agreement with the Purchaser, with immediate effect upon written notice to the Purchaser, if the Purchaser: (a) fails to pay any amount due under this agreement, (b) has not performed or complied with or otherwise defaulted on the obligations under this agreement, or (c) becomes insolvent, files a petition for bankruptcy, ceases doing business, undergoes a substantial change of ownership, or commences or has commenced against it any proceeding related to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. The Vendor shall have a right to all damages sustained by it as a direct or indirect result of the Purchaser’s default, including loss of profits
16. COMPLIANCE WITH LAWS
The Purchaser shall comply with all applicable laws and regulations, including privacy and data protection laws or trade and export control laws, economic, or financial restrictions or sanctions or trade embargoes and any amendments thereto (collectively, the “Laws”) imposed by any applicable governmental authority, including, where applicable, Canada, the United States and the European Union. The Vendor shall not be liable, and the Purchaser agrees to hold harmless and indemnify the Vendor, for any breach of such Laws. The Purchaser shall not, except as otherwise permitted under applicable Laws, transship, re-export, or otherwise divert Goods purchased from the Vendor. If applicable, the Purchaser undertakes to provide all information and documentation necessary for export, shipment and import to the Vendor is a timely manner. The Vendor shall not be liable, and the Purchaser shall hold the Vendor harmless, for delays or any other losses resulting from the Purchaser’s failure to provide accurate information and documentation, export/import reviews, or any related permitting procedures in a timely manner. To the extent permitted by law, the Purchaser shall, promptly upon becoming aware, provide to the Vendor details of any claim, action, suit, proceedings or investigation against it with respect to the Laws brought by any enforcement authority. In the event that the Vendor should believe, acting in good faith, that the Purchaser has violated, or is under investigation for violating, any Laws, or if the Purchaser is identified on any applicable sanctions list, the Vendor shall have the immediate right to terminate its relationship and/or any contract with the Purchaser, in whole or in part, without liability.
17. ASSIGNMENT
The Purchaser shall not assign any of its rights or delegate any of its obligations under this agreement without the express prior written consent of an authorized representative of the Vendor, and all purported assignments or delegations in violation of these Terms shall be null and void.
18. ENTIRE CONTRACT
These Terms, together with any and all pricing supplements, sets forth the entire agreement between the parties, and shall supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, whether written or oral.
19. WAIVER
No amendment or waiver by the Vendor of any provision of these Terms is effective unless set forth in writing and signed by of an authorized officer of the Vendor. No failure to exercise, or delay in exercising, any provision or right granted thereby of these Terms shall be construed as waiver thereof.
20. SEVERABILITY
In the event that any term or provision contained in these Terms are unenforceable or are declared invalid for any reason whatsoever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining terms or portions of these Terms, and such unenforceable or invalid warranty, representation or covenant or portion thereof shall be severable from the remainder of these Terms. If any term or provision of these Terms is found invalid, illegal, or unenforceable in any relevant jurisdiction, such invalidity, illegality, or unenforceability shall not strike, invalidate, or render unenforceable or ineffectual such term or provision in any other jurisdiction.
21. BINDING EFFECT
These Terms shall bind and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
22. FORUM AND CHOICE OF LAW
The parties hereto submit to the jurisdiction of the Courts of the Province of Manitoba,and agree that this contract shall be governed by the laws of the Province of Manitoba and the laws of Canada applicable therein.
23. LANGUAGE
All parties acknowledge having required that the present Terms and all invoices, documentation, notices, and judicial proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais des présentes conditions de vente ainsi que des tous documents, factures, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentés à la suite de ou ayant un rapport direct ou indirect avec les présentes.
