Terms & Conditions - Europe
MOMENTIVE’s CONDITIONS OF SALE
Version: (November 2010)
Definitions: In these Conditions of Sale:
“Momentive” shall mean: the Momentive legal entity (or company) as mentioned on the Order, Order Acknowledgement, Price Letter, Sales
Agreement and / or Invoices which refer to these Conditions of Sales
“Product” shall mean: any and all materials sold by Momentive to Buyer
“Buyer” shall mean: any person, firm, company or corporation that requested Momentive to provide a quotation or which placed an order for delivery of Product by Momentive
- CONTRACT DEFINED: If the sale of Product by Momentive to Buyer is not otherwise covered by a written agreement between Momentive and Buyer, Momentive’s acceptance of the quantity of Product specified on Buyer’s purchase order together with these Conditions of Sale will constitute the entire sales contract between Momentive and Buyer (hereinafter “Contract”). If there is any conflict between any written agreement between Momentive and Buyer and these Conditions of Sale, the written agreement shall prevail. Momentive’s acceptance of Buyer’s order or proposal is expressly conditioned on Buyer’s assent to these Conditions of Sale and Buyer is hereby notified of Momentive’s objection to, and rejection of, any terms and conditions on Buyer’s order or other document that are inconsistent with, or are in addition to, these Conditions of Sale and such terms and conditions shall not become a part of this Contract unless accepted in writing by Momentive.
- QUANTITY: Momentive shall be allowed a quantity tolerance for delivered Product of plus or minus five percent (+/- 5%) of the ordered quantity on all bulk, truck, or Iso-tank shipments. Momentive’s quantity determination will govern unless proven in error by more than: (i) one-half of one percent (0.5%) for deliveries above 25.000 kg or (ii) one percent (1%) for deliveries up to 25.000 kg. Momentive’s Product specifications may be changed at any time upon written notice to Buyer.
- SHIPMENTS: Momentive will select the origin of shipment and the carrier. Buyer will promptly unload each shipment at its own risk and expense, including any demurrage or detention charges. Risk of loss or damage to Product shall pass to Buyer upon delivery of the Product to the carrier at Momentive’s loading site. Momentive shall retain title to the Product delivered/or to be delivered to Buyer, until Momentive has received payment in full of the purchase price for the Product.
- PRICE AND PAYMENT TERMS: Product price is subject to change by Momentive at any time prior to shipment upon written notice to Buyer. Payment terms shall be as established by Momentive from time to time. Failing specified payment term Buyer shall make payment within thirty (30) days of Momentive’s invoice date by electronic fund transfer to an account designated by Momentive. Any tax (other than on Momentive’s income), duty, or other governmental charge imposed on the Product shall be paid by Buyer. Momentive reserves the right to charge interest on overdue accounts at the rate of up to four per cent (4%) per annum above the base lending EURIBOR rate of the time being.
If Buyer fails to pay for any one or more shipments when due, then Momentive shall have the right, in addition to other remedies, either (a) to suspend or cancel deliveries, or (b) to require cash payment on deliveries. Should Buyer’s financial responsibility become unsatisfactory to Momentive, cash payment or satisfactory security may be required by Momentive before proceeding with deliveries.
Should payment of any invoice become overdue or should Buyer become insolvent, go into liquidation, have a winding up order made against it or have an administrator or an administrative receiver appointed over its assets, income or any part thereof or enter into an arrangement with its creditors, all sums owed to Momentive shall become immediately due and payable and Momentive shall be entitled to recover and resell any unpaid Product, Momentive shall further have the right to terminate the Contract with immediate effect without any compensation to Buyer.
- WARRANTY: Momentive warrants that the Product will meet Momentive’s published specifications. MOMENTIVE MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY CONTRACT, STATUTE, OR OTHERWISE, AND MOMENTIVE EXPRESSLY EXCLUDES AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
- FORCE MAJEURE: Either Party will be excused from the obligations of this Agreement (other than the payment of money) to the extent that performance is delayed or prevented by any circumstance (except financial) reasonably beyond its control or by fire, explosion, mechanical breakdown, strikes or other labor trouble, plant shutdown, unavailability of or interference with the usual means of transporting the Product or compliance with any governmental requirement or request. In addition, Momentive will be excused if it is unable to acquire from its usual sources and on terms it deems reasonable, any material necessary for manufacturing the Product. If, because of such circumstances, there is a shortage of Product, Momentive will not be obligated to purchase Product in order to perform this Agreement and may apportion its available Product among all its customers and its own internal use in such manner as Momentive finds fair and reasonable; provided, however, that Momentive will not be obligated to apportion or otherwise make available to Buyer, Product which Momentive obtains by purchase or exchange for its own internal use. Quantities of Product consequently not shipped will be deducted from the applicable remaining quantity obligation unless the Parties agree otherwise.
- VAT: If the supply qualifies as an intra-community transaction as defined in Article (28) (c) (A) of EEC Council Directive 91/680, Buyer will notify Momentive, in writing and before the supply takes place, which VAT number he will use for each transaction and, in case transport is not arranged by or on behalf of Momentive, that the Product will be transported by him or on his behalf to another EC Member State. If, in the above described situation, Momentive has sufficient confidence that it will receive the evidence required in time, and, therefore, invoices Buyer with 0% VAT, Buyer shall provide Momentive as soon as possible with documents proving that the Product has been transported to another EC Member State. Buyer is liable for any VAT and fines due by Momentive if the documents mentioned are not received in time by Momentive. If the VAT number can not be verified with fiscal authorities in due time, or if fiscal authorities can not validate the number at verification, the supply will be deemed to be a national supply and VAT will be levied accordingly. If goods are transported by or on behalf of Momentive and fiscal authorities do not accept the proof that the Product has been transported to another EC Member State, Buyer will do his utmost to provide Momentive with additional information and to assist Momentive in having the proof accepted.
- EXCISE DUTIES: At Buyer’s request, and if Momentive reasonably believes this can be complied with, Momentive shall draw up an administrative accompanying document (AAD) for the transport of the Product to a tax warehouse designated by Buyer, or to a registered or a non-registered company. Buyer will timely notify Momentive in writing before the drawing up of the AAD of the regarding excise number as well as the name and signature of the person(s) who are authorized to sign for acceptance of the goods. In case of FOB/FCA deliveries, Buyer is liable for all taxes, increases and fines which are the result of infringements during the transport of the goods or any shortage observed on acceptance of the goods by the addressee of the AAD. In case of CIF/CFR deliveries, Buyer is liable for all taxes, increases and fines which are the result of any shortage observed on acceptance of the goods by the addressee of the AAD. Buyer will return to Momentive the return sheet of the AAD signed by an authorized person within fourteen (14) days after the date of the AAD.
- REACH: Buyer shall comply with its obligations arising from the Regulation of the European Parliament and of the Council concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), and shall provide such assistance as Momentive may reasonably require in view of the provisions set out in REACH and in any other laws, rules and regulations applicable to the Products and its chemical elements from time to time.
- EXPORT CONTROL: Momentive is subject to application of United States, EU and national export control laws. In this capacity Momentive is prohibited from directly or indirectly exporting and/or selling products, or allowing third parties to directly or indirectly sell and/or export products, into certain embargoed countries and to certain restricted or denied customers under the export control laws of the United States, the EU and/or the UN. Prohibited transactions include any transaction in which our products are shipped to or through the embargoed countries or which involve the restricted or denied customers. Penalties for violation of these laws are severe.
The Buyer shall not directly or indirectly, sell or export the products purchased from Momentive to any of these embargoed, restricted or denied persons, entities or countries, nor sell or otherwise transfer any such product to any customer under circumstances where it has knowledge or reason to believe that the product will be sold or exported to any such embargoed, restricted or denied person, entity or country. The Buyer further certifies that to the best of its knowledge, the product sold and delivered by Momentive will not in any way be used for purposes that are prohibited under national and international regulations, including without limitation, the manufacture of weapons or materials used in the weapons industry.
Buyer is required to consult www.bis.doc.gov/policiesandregulations/regionalconsiderations.htm and www.bis.doc.gov/complianceandenforcement/liststocheck.htm for more details about US export control laws, and http://www.un.org/sc/committees/1267/consolist.shtml, http://ec.europa.eu/external_relations/cfsp/sanctions/measures.htm and http://ec.europa.eu/trade/issues/sectoral/industry/dualuse/index_en.htm for more details about UN embargoes and EU export control laws.
- INDEMNIFICATION: Buyer shall indemnify Momentive against any liability for any claim, loss, or expense on account of any injury, disease, or death of persons (including Buyer's employees) or damage to property (including Buyer's) arising out of Buyer's unloading, storage, handling, sale, or use of the Product (except to the extent caused by Momentive's negligence.
Indemnity Agreement for Solid Products. Momentive’s solid products, including but not limited to powder and flake resin products, can be combustible and present a fire or explosion hazard under certain conditions (including but not limited to when dusts are finely divided and suspended in air, and/or allowed to accumulate on surfaces). Buyer shall comply with all laws, regulations and standards applicable to the possession, handling and use of all solid products by Buyer, including but not limited to National Fire Protection Association Standard 654, UK HSE Guidance HSG 103, European Directive ATEX 137 or other national guidance, as applicable, and shall defend, indemnify and hold Momentive Specialty Chemicals harmless from and against all claims, liabilities, costs and expenses (including but not limited to those relating to injury to or death of Buyer’s employees) arising from or connected with the possession, handling, processing or use of the products by Buyer or others.
- LIMITATION OF LIABILITY: Except for debt of Buyer to Momentive or Buyer's failure to perform its purchase obligations hereunder, neither party shall have liability to the other for any claim related to this Contract unless claimant gives the other party written notice, including the facts on which it is based, within thirty (30) days of the date such Product was received, or was scheduled to have been received, by Buyer. Momentive’s liability for defective, nonconforming, late or non-delivered Product shall not exceed the purchase price of the Product involved in the claim. In no event shall Momentive be liable to Buyer in the event of impossibility or a delay in the supply of Products hereunder, if such impossibility or delay results from compliance with regulatory obligations either in connection with the European Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) or with regulations in the area of export control, or if any other regulatory requirement for the delivery of such Product cannot reasonably be met. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR LOST PROFITS.
- GOVERNING LAW: This Contract shall be governed and interpreted in accordance with the laws of the country of registration of Momentive as Seller without reference to that jurisdiction conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded. Any dispute involving the Contract shall be exclusively submitted to the competent court of the place of business of Momentive as Seller.
Momentive is entitled to file a claim with respect to payment of outstanding invoices at the court of the place of business of the Buyer in accordance with the laws of the country of origin of the Buyer
- LANGUAGE: In the event of conflict between these Conditions of Sale in the English language and any translations thereof, the English version shall prevail.
Additional Terms: Paragraphs 15 through 18 will only apply when Buyer is located in the Asia Pacific or Middle East regions
- LETTERS OF CREDIT: If payment is to be made by letter of credit (‘LOC’), Buyer shall immediately establish an irrevocable LOC in favor of Momentive through a prime bank acceptable to Momentive. Such LOC shall be in a form and upon terms satisfactory to Momentive and shall authorize reimbursement to Momentive for such sums, if any, as may be advanced by Momentive for consular invoices, inspection fees and other expenditures for the account of Buyer. If the LOC is not honored by the bank immediately upon Momentive’s presentation of the corresponding draft, Buyer shall, upon notice from Momentive, immediately make payment in cash to Momentive directly and unconditionally. All bank charges incurred under this contract, including collection charges and stamp duties, if any, within the country of the Buyer shall be for the account of Buyer and any bank charges incurred outside Buyer’s country shall be for Momentive, unless the parties agree otherwise.
- INSURANCE: If Momentive agrees to obtain insurance on Product for Buyer’s account, Momentive will insure 110% of the invoice amount unless otherwise agreed herein.
- APPLICABLE LAW: This Contract shall, notwithstanding paragraph 11, be governed by and construed in accordance with the laws of Singapore without regard to such law’s principles of conflicts of law.
- DISPUTE RESOLUTION: Any dispute arising out of this Contract shall, notwithstanding paragraph 11, be referred to and finally resolved by arbitration in Singapore (or other location mutually agreeable to the parties), conducted in the English language and in accordance with the Arbitration Rules of the Singapore international Arbitration Centre as the exclusive means for settling the dispute. Either party can initiate arbitration by giving written notice to the other party. Each party agrees to submit to such arbitration and to be bound by the arbitrator’s orders, decisions and awards.