TERMS AND CONDITIONS FOR SUPPLY OF SCITEC NUTRITION PRODUCTS
*I. Terms and Conditions*
I.1. The following Terms and Conditions (the “ *Terms and Conditions* ”) are applied in the supply of SCITEC NUTRITION products by SCITEC to the customers without having a detailed distribution, supply or similar agreement in place between the Parties.
I.2. These Terms and Conditions shall be applied in the supply of the Products, even if any offer, order acknowledgement or other similar document refer to any other general terms and conditions. These Terms and Conditions shall overrule any such other terms and conditions. Any conflicting purchasing and/or payment terms and conditions of Customer are hereby expressly rejected. Any amendments or deviations from these Terms and Conditions must be agreed in writing specified in detail in a contract.
I.3. Supplier may update these terms from time to time; the Customer is required to check the then-current version before it places its order. In case of update to these terms, Supplier will give the Customers at least 14 days’ notice in a way which Supplier consider is reasonable, for example by sending via e-mail or website. If any change in Supplier’s Terms and Conditions will not disadvantage the Customer, Supplier may include it without telling the Customer.
I.4. The Customer agrees to keep these Terms and Conditions, when it place an order at Supplier.
*II * *Definitions* *:*
II.1. In these General Terms and Conditions the following terms shall have the meaning defined herein:
“ *Contract* ” means a confirmed purchase order or the like regarding the supply of the Products entered into between the Customer and the Supplier.
“ *Incoterms 2010 DAP – Delivered at Terminal* ” means the rules for transport where Supplier clears the Products for export and bears all risks and costs associated with delivering the goods to the named place of destination not unloaded. Customer is responsible for all costs and risks associated with unloading the goods and clearing customs to import the goods into the named country of destination;
“ *Incoterms 2010 FCA – Free Carrier* ” means the rules for transport where the Supplier delivers the Products to the carrier or another person nominated by the Customer at the Supplier’s premises or another named place;
“ *IPR* ” means all trademarks, service marks, and trade names, all copyright in any written material, plans, designs or other work relating to the manufacture, marketing or supply of Products, all design rights relating to the manufacture or supply of Products, all know how, technical or other information or expertise, patents, trade secrets or confidential information relating to the manufacture or sale of Products, all registrations of, and applications to register, any of the above, all rights in the nature of the above in any jurisdiction and all rights in the nature of unfair competition rights or rights to sue for passing off relating to Products, in each case belonging to Supplier or one or more of its related companies.
“ *Minimum Purchase Requirements* ” means an amount of USD of the Products or such other quantity per purchase as may be agreed in writing between the Parties.
“ *Products* ” means solely the products manufactured (or have them manufactured), sold or distributed by Scitec Group, including, without limitation, those products manufactured (or have them manufactured), sold or distributed by any related company of Scitec Group, that are set forth in the actual price list. The Supplier may discontinue products, and may revise the Price List to add or remove products, in the Supplier’s sole discretion.
“ *Supplier* ” means SCITEC USA Inc
*III. Scope*
III.1. The Supplier shall sell and the Customer shall buy the Products in accordance with the terms and conditions of the Contract and these Terms and Conditions.
III.2. No exclusivity or similar rights of any kind are granted to the Customer.
III.3. The relationship established by the Contract between Supplier and Customer shall be solely that of seller and buyer and/or of licensor and licensee. In making and performing under the Contract Parties act and shall act at all times as independent contractors, nothing contained in the Contract shall be construed or implied to create the relationship of partners, agents or of employer and employee
III.4. The Contract shall not be considered distribution or wholesale agreement, shall not grant any other rights or licenses to the Customer, but solely those which are essential to sell the Products in course of a retail business to end-users and consumers in the country, where the Customer is located. The Parties may agree in a distribution agreement, which agreement governs their rights and obligations in details.
III.5. Customer shall buy and sell the Products in its own name on its behalf.
III.6. The Customer shall sell the Products in the same condition as they are received and may not alter, remove or in any way tamper with any marks, brands, labels or numbers thereon nor open or tamper with containers in which the Products are supplied. Any such changes to the packaging or labels for the Products shall be subject to the Supplier's approval.
*IV. Obligation of Supplier*
IV.1. Supplier shall keep Customer informed of its range of available publications and the product manuals produced for the promotion, usage and service of the Products. This information is available at Supplier’s WEB sites.
IV.2. All Products supplied by Supplier under Contract, and the ingredients therein shall be of merchantable quality and are in compliance with the US and the relevant EU regulations and/or standards.
IV.3. The Products are labelled and packed in compliance with the regulations in force in USA and in the EU.
IV.4. The Supplier shall ensure that the evaluation of risks caused to human health when using the Products is made at least according to the laws and common prevailing practices of the European Union. The Supplier may ask more information about the use of the Products at Customer’s site, if it is necessary for risk evaluation mentioned above, or for legal registration.
IV.5. The Supplier may accept return in its sole discretion subject to the prior agreement between the Parties. Products with guaranteed quality date below 1 (one) year, changed label or without the original label may not be subject to negotiations on returns, unless the Parties agree otherwise. The Supplier neither accepts Products as return in open or destroyed container.
*V. Ordering and Delivery*
V.1. The Products shall be delivered in accordance with the Contract and within the term indicated in the Contract.
V.2. Supplier shall deliver the Products ordered by the Customer to the delivery point (Incoterms 2010 DAP) or to the carrier (Incoterms 2010 FCA) agreed by the Parties.
V.3. Supplier agrees to supply Products in quantity equivalent to or exceeding the Minimum Purchase Requirements to Customer provided that (i) the products are available at the time of the order, (ii) Supplier’s accepts the order and (iii) the Customer is in full compliance not only with the terms of relevant order, but (iv) also with this Terms and Conditions.
V.4. The Customer shall place the purchase orders either in writing or telefax or email purchase orders or via Supplier’s web site (following the implementation of a solution for ordering via web site). In its sole discretion the Supplier may accept orders via phone. Upon acceptance Supplier shall confirm the receipt of the Customer’s order and will advice the Customer about the details of the delivery. In its response the Customer shall acknowledge the confirmation by Supplier, including the payment and delivery terms.
V.5. For administrative purpose telefax orders shall be confirmed in writing. All orders must comply with Supplies’ order procedures and are subject to acceptance by the Supplier. No purchase order shall be deemed accepted unless and until the Supplier, at its sole discretion, provides an express written acceptance thereof.
V.6. The Customer may cancel any purchase order prior to the Supplier’s acceptance of such purchase order. The Customer may not cancel any purchase order accepted by Supplier.
V.7. The Customer shall immediately notify Supplier in writing of (i) any shortfall in the quantity delivered and (ii) any defect by reason of which Customer alleges that the Products delivered are defective and which should be apparent on reasonable visual inspection. If the quantity of the Products exceeded 200 items the Customer shall have five (5) days for this notification. If Customer fails to give such a notice then except in respect of any defect which would not be apparent on
reasonable visual inspection, the Products shall be conclusively presumed to be in all respects in compliance with the Supplier's obligations, and accordingly Customer shall be deemed to have accepted the delivery of the Products in question and Supplier shall have no liability to Customer with respect to that delivery. If Customer rejects any delivery of the Products which are allegedly short or defective, Supplier shall as soon as practical supply replacement Products which are compliant in which event Supplier shall not be deemed to be in breach of the agreement or have any liability to Customer. Suppliers reasonable opinion as to whether the Products are compliant or defective shall be binding on both Parties.
*VI. Price and payment*
VI.1. The actual prices of the Products are determined – subject to the prevailing Purchase Order - as site prices in respect of Incoterms 2010 DAP (Delivered at Place) parity or as prices calculated on delivery to free carrier in respect of Incoterms 2010 FCA (Free Carrier) parity.
VI.2. Supplier calculates the applicable prices on the date of order, such prices being either in USD or in EUR unless otherwise stipulated, plus additional amount for VAT if/as applicable from time to time.
VI.3. On completion Customer shall pay the full amount invoiced to it in the currency specified and within the payment deadline set out in the invoice. The Supplier on the basis of the customer value - including, but not limited to the value of the order, the term of the business relation between the Parties, ability and readiness of the Customer to pay and the historical records of the Customer - defines the payment deadline, which may not exceed 90 (ninety) days. In case of bank transfer all bank charges and exchange costs shall be borne by the Customer.
VI.4. In case Supplier offers a deferred payment to Customer, Supplier may request Customer to provide Supplier with bank guarantee, parent company guarantee, caution or suretyship on the agreed terms to secure the Customer’s payments.
VI.5. Time of payment shall be of the essence. If payment deadlines are not met, this will automatically give rise to all of the statutory consequences of default, without any special reminder being required.
VI.6. If Customer fails to pay any charges when due, Supplier may (i) charge Customer a late interest on amounts overdue at the maximum rate allowed under applicable law - the minimum late interest rate shall be 2* (1 month EURIBOR + 2%) - on the past-due balance; (ii) cancel or delay shipment of the Products; (iii) repossess the Products already delivered and/or (iv) terminate the Contract. For the purposes of exercising said right of repossession, Customer hereby grants a perpetual license to Supplier, and its employees or agents, to enter upon any premises in which the products may be stored.
VI.7. Customer shall not withhold payments to Supplier due to any set-off, counter-claim, or similar deduction.
VI.8. In case of non-payment of Customer Supplier may transfer its claim to a third party to collect the Customer’s outstanding debts.
VI. 9 Free shipping thresholds are not calculated based on the Full List Price of Products purchased, but Total Cart Value. In case Customer is using coupons or other discount tools and as a result the Total Cart Value decreases below the free shipping threshold, Supplier is not obligated to offer free shipping to Customer.
*VII. Title retention*
VII.1. Notwithstanding delivery and the passing of risk of damage or loss Supplier retains ownership (title) of Products until full payment is received for them unless otherwise stated in the order confirmation. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of the Contract.
VII.2. The Products shall be at the Customer's risk on delivery of Products.
VII.3. Until ownership of Products passes to Customer, Customer must:
(i) hold the Products on a fiduciary basis as the Supplier’s bailee;
(ii) store Products (at no cost to Supplier, unless otherwise agreed in writing) separately from all other products of Customer or any third party so as to remain readily identifiable as Supplier's property;
(iii) not remove, deface or obscure identifying marks or packaging on or relating to Products;
(iv) maintain the Products in satisfactory condition insured on Supplier’s behalf for their full price against all risks to Supplier’s reasonable satisfaction. On request Customer shall produce the insurance policy to the Supplier;
(v) hold insurance proceeds on trust for Supplier and not mix them with other money, nor pay the proceeds into an overdrawn bank account
(vi) not pledge or transfer the ownership by way of security of the Products under retention of title,
(vii) notify Supplier immediately if it becomes subject to bankruptcy, liquidation, volunteer dissolution or if it makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statute for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal).
*VIII Product recall*
VIII.1. Each Party shall give the other Party immediate notice of any occurrence that comes to its attention that involves:
(i) any material complaint about the safety or effectiveness of the Products, including a claim for damages in connection with injury of life, physical integrity or health following consumption of such
Products (that is plausibly related to the consumption of such Products);
(ii) the removal of any item manufactured by either Party from the market for food safety reasons by a retailer or any governmental authority of any country; and
(iii) any other matter arising out of the Contract that must be reported to a governmental authority.
VIII.2. The costs of a recall of a Product, including the cost of replacement quantities of recalled Product, shall be borne as follows:
(i) in the event that the principal reason for the recall of the Product in question is Customer's negligence or failure to store the Products in satisfactory manner, by Customer;
(ii) in the event that the principal reason for the recall is (a) the Supplier's negligence and /or its failure to comply with any of the terms of the Contract or (b) was a consequence of an administrative order, by Supplier.;
(iii) in the event that the reason of the recall of the Product was legally required, provided that this was not a consequence of matter detailed in Clauses VIII.2.(i) or VIII.2.(ii) above, by the Parties equally.
*IX. Communication*
IX.1. Supplier will send the Customers notices by email, post, text or other form of electronic message to the contact details the Customer gave to Supplier. It is the Customer’s sole liability to keep its business data and contact details updated.
*X. Intellectual property rights*
X.1. IPRs made available by the Supplier to the Customer for the supply of the Products shall remain the property of the Supplier.
X.2. Customer shall use the IPRs for the purpose of identifying and advertising the Products within the scope of the Contract and in Supplier’s sole interest. Customer may use the IPRs as long as customer is selling the Products in accordance with Contract.
X.3. Customer will use and display the IPRs only in furtherance of the Contract and in the form and manner designated or approved by Supplier. Customer acknowledges that any goodwill derived from Customer’s use of the IPRs shall inure to the benefit of Supplier.
X.4. Customer shall not, and has no power to, sublicense or transfer any rights set forth in this Clause to any third party or authorize any third party to use, in whole or in part, the marks, and any such attempted sublicense, transfer or authorization is and will be null and void.
X.5. Customer agrees neither to register, nor to have registered Supplier IPRs (or which are identical or confusingly similar to the Supplier’s). If Customers registers any domain name in violation of this clause, then Customer shall transfer - free of charge or royalty – the domain name to Supplier immediately upon notice from Supplier without compensation.
*XI. Liability and limitations*
XI.1. Supplier will be legally responsible to Customer if Supplier’s negligence causes injury of life, physical integrity or health. Supplier will not be legally responsible to Customer for (i) loss of income, (ii) loss of use of the products, (iii) lost business or missed opportunities or (iv) any loss or damage that is not directly caused by Supplier or which Supplier did not reasonably expect at the time Customer places its order at Supplier; Supplier’s liability shall be limited to typical contractual loss or damage that was foreseeable at time the order was placed. Unless Supplier’s negligence causes injury of life, physical integrity or health, Supplier’s liability to Customer will not be more than 15% of the value of the purchase order in question for each claim or a series of related claims.
XI.2. Except in case of breach of a condition, liability for ordinary negligence is excluded.
XI.3. Supplier will not be legally responsible to Customer if Supplier cannot provide the products because of something outside its reasonable control.
XI.4. If there is a defect in the Products, the Supplier shall without delay at its own cost remedy the breach or defect.
XI.5. Customer shall notify the Supplier of the defects in the supplied Products within reasonable period after having become aware of such defect. If Customer fails to give such notification within reasonable time period, Customer shall lose its right to present claims towards the Supplier, except for apparent defects that should have been in the knowledge of the Supplier and defects that have been caused by the Supplier’s gross negligence or wilful acts or omission.
XI.6. Supplier is not liable to remedy breaches or defects that have been caused by the actions of the Customer or incorrect information provided by Customer for purposes of the supply of the Products.
*XII. Governing law and jurisdiction*
XII.1. These Terms and Conditions are governed by the laws of USA
XII.2. For the settlement of any dispute arising from this Agreement or in connection therewith, a breach, termination, validity or construction thereof, Parties abide themselves by the exclusive decision of the Budapest seated Arbitration Court attached to the USA Chamber of Commerce and Industry where the Arbitration Court conducts the proceedings under its own Rules of Proceedings. The Court proceeds in a tribunal of three arbitrators. Each Party is authorized to designate an arbitrator. The arbitrators designated by the Parties elect the presiding arbitrator. The proceedings shall be conducted in English.
*XIII. Miscellaneous*
XIII.1. Supplier may transfer the Contract between Supplier and Customer to anyone else at any time. If Customer wanted to transfer its agreement with Supplier, Customer can if Supplier agree.
*XIV. Severability*
XIV.1. In the event any portion of this Terms and Conditions or the Contract is declared void or invalid by a court or tribunal of competent jurisdiction, such provision shall be modified or severed from this
Terms and Conditions and/or the Contract, and the remaining provisions shall remain in effect, unless the effect of such severance would be toalter substantially this Terms and Conditions and/or the Contract or the obligations of the Parties, in which case this Terms and Conditions and/or the Contract may be immediately terminated.
*I. Terms and Conditions*
I.1. The following Terms and Conditions (the “ *Terms and Conditions* ”) are applied in the supply of SCITEC NUTRITION products by SCITEC to the customers without having a detailed distribution, supply or similar agreement in place between the Parties.
I.2. These Terms and Conditions shall be applied in the supply of the Products, even if any offer, order acknowledgement or other similar document refer to any other general terms and conditions. These Terms and Conditions shall overrule any such other terms and conditions. Any conflicting purchasing and/or payment terms and conditions of Customer are hereby expressly rejected. Any amendments or deviations from these Terms and Conditions must be agreed in writing specified in detail in a contract.
I.3. Supplier may update these terms from time to time; the Customer is required to check the then-current version before it places its order. In case of update to these terms, Supplier will give the Customers at least 14 days’ notice in a way which Supplier consider is reasonable, for example by sending via e-mail or website. If any change in Supplier’s Terms and Conditions will not disadvantage the Customer, Supplier may include it without telling the Customer.
I.4. The Customer agrees to keep these Terms and Conditions, when it place an order at Supplier.
*II * *Definitions* *:*
II.1. In these General Terms and Conditions the following terms shall have the meaning defined herein:
“ *Contract* ” means a confirmed purchase order or the like regarding the supply of the Products entered into between the Customer and the Supplier.
“ *Incoterms 2010 DAP – Delivered at Terminal* ” means the rules for transport where Supplier clears the Products for export and bears all risks and costs associated with delivering the goods to the named place of destination not unloaded. Customer is responsible for all costs and risks associated with unloading the goods and clearing customs to import the goods into the named country of destination;
“ *Incoterms 2010 FCA – Free Carrier* ” means the rules for transport where the Supplier delivers the Products to the carrier or another person nominated by the Customer at the Supplier’s premises or another named place;
“ *IPR* ” means all trademarks, service marks, and trade names, all copyright in any written material, plans, designs or other work relating to the manufacture, marketing or supply of Products, all design rights relating to the manufacture or supply of Products, all know how, technical or other information or expertise, patents, trade secrets or confidential information relating to the manufacture or sale of Products, all registrations of, and applications to register, any of the above, all rights in the nature of the above in any jurisdiction and all rights in the nature of unfair competition rights or rights to sue for passing off relating to Products, in each case belonging to Supplier or one or more of its related companies.
“ *Minimum Purchase Requirements* ” means an amount of USD of the Products or such other quantity per purchase as may be agreed in writing between the Parties.
“ *Products* ” means solely the products manufactured (or have them manufactured), sold or distributed by Scitec Group, including, without limitation, those products manufactured (or have them manufactured), sold or distributed by any related company of Scitec Group, that are set forth in the actual price list. The Supplier may discontinue products, and may revise the Price List to add or remove products, in the Supplier’s sole discretion.
“ *Supplier* ” means SCITEC USA Inc
*III. Scope*
III.1. The Supplier shall sell and the Customer shall buy the Products in accordance with the terms and conditions of the Contract and these Terms and Conditions.
III.2. No exclusivity or similar rights of any kind are granted to the Customer.
III.3. The relationship established by the Contract between Supplier and Customer shall be solely that of seller and buyer and/or of licensor and licensee. In making and performing under the Contract Parties act and shall act at all times as independent contractors, nothing contained in the Contract shall be construed or implied to create the relationship of partners, agents or of employer and employee
III.4. The Contract shall not be considered distribution or wholesale agreement, shall not grant any other rights or licenses to the Customer, but solely those which are essential to sell the Products in course of a retail business to end-users and consumers in the country, where the Customer is located. The Parties may agree in a distribution agreement, which agreement governs their rights and obligations in details.
III.5. Customer shall buy and sell the Products in its own name on its behalf.
III.6. The Customer shall sell the Products in the same condition as they are received and may not alter, remove or in any way tamper with any marks, brands, labels or numbers thereon nor open or tamper with containers in which the Products are supplied. Any such changes to the packaging or labels for the Products shall be subject to the Supplier's approval.
*IV. Obligation of Supplier*
IV.1. Supplier shall keep Customer informed of its range of available publications and the product manuals produced for the promotion, usage and service of the Products. This information is available at Supplier’s WEB sites.
IV.2. All Products supplied by Supplier under Contract, and the ingredients therein shall be of merchantable quality and are in compliance with the US and the relevant EU regulations and/or standards.
IV.3. The Products are labelled and packed in compliance with the regulations in force in USA and in the EU.
IV.4. The Supplier shall ensure that the evaluation of risks caused to human health when using the Products is made at least according to the laws and common prevailing practices of the European Union. The Supplier may ask more information about the use of the Products at Customer’s site, if it is necessary for risk evaluation mentioned above, or for legal registration.
IV.5. The Supplier may accept return in its sole discretion subject to the prior agreement between the Parties. Products with guaranteed quality date below 1 (one) year, changed label or without the original label may not be subject to negotiations on returns, unless the Parties agree otherwise. The Supplier neither accepts Products as return in open or destroyed container.
*V. Ordering and Delivery*
V.1. The Products shall be delivered in accordance with the Contract and within the term indicated in the Contract.
V.2. Supplier shall deliver the Products ordered by the Customer to the delivery point (Incoterms 2010 DAP) or to the carrier (Incoterms 2010 FCA) agreed by the Parties.
V.3. Supplier agrees to supply Products in quantity equivalent to or exceeding the Minimum Purchase Requirements to Customer provided that (i) the products are available at the time of the order, (ii) Supplier’s accepts the order and (iii) the Customer is in full compliance not only with the terms of relevant order, but (iv) also with this Terms and Conditions.
V.4. The Customer shall place the purchase orders either in writing or telefax or email purchase orders or via Supplier’s web site (following the implementation of a solution for ordering via web site). In its sole discretion the Supplier may accept orders via phone. Upon acceptance Supplier shall confirm the receipt of the Customer’s order and will advice the Customer about the details of the delivery. In its response the Customer shall acknowledge the confirmation by Supplier, including the payment and delivery terms.
V.5. For administrative purpose telefax orders shall be confirmed in writing. All orders must comply with Supplies’ order procedures and are subject to acceptance by the Supplier. No purchase order shall be deemed accepted unless and until the Supplier, at its sole discretion, provides an express written acceptance thereof.
V.6. The Customer may cancel any purchase order prior to the Supplier’s acceptance of such purchase order. The Customer may not cancel any purchase order accepted by Supplier.
V.7. The Customer shall immediately notify Supplier in writing of (i) any shortfall in the quantity delivered and (ii) any defect by reason of which Customer alleges that the Products delivered are defective and which should be apparent on reasonable visual inspection. If the quantity of the Products exceeded 200 items the Customer shall have five (5) days for this notification. If Customer fails to give such a notice then except in respect of any defect which would not be apparent on
reasonable visual inspection, the Products shall be conclusively presumed to be in all respects in compliance with the Supplier's obligations, and accordingly Customer shall be deemed to have accepted the delivery of the Products in question and Supplier shall have no liability to Customer with respect to that delivery. If Customer rejects any delivery of the Products which are allegedly short or defective, Supplier shall as soon as practical supply replacement Products which are compliant in which event Supplier shall not be deemed to be in breach of the agreement or have any liability to Customer. Suppliers reasonable opinion as to whether the Products are compliant or defective shall be binding on both Parties.
*VI. Price and payment*
VI.1. The actual prices of the Products are determined – subject to the prevailing Purchase Order - as site prices in respect of Incoterms 2010 DAP (Delivered at Place) parity or as prices calculated on delivery to free carrier in respect of Incoterms 2010 FCA (Free Carrier) parity.
VI.2. Supplier calculates the applicable prices on the date of order, such prices being either in USD or in EUR unless otherwise stipulated, plus additional amount for VAT if/as applicable from time to time.
VI.3. On completion Customer shall pay the full amount invoiced to it in the currency specified and within the payment deadline set out in the invoice. The Supplier on the basis of the customer value - including, but not limited to the value of the order, the term of the business relation between the Parties, ability and readiness of the Customer to pay and the historical records of the Customer - defines the payment deadline, which may not exceed 90 (ninety) days. In case of bank transfer all bank charges and exchange costs shall be borne by the Customer.
VI.4. In case Supplier offers a deferred payment to Customer, Supplier may request Customer to provide Supplier with bank guarantee, parent company guarantee, caution or suretyship on the agreed terms to secure the Customer’s payments.
VI.5. Time of payment shall be of the essence. If payment deadlines are not met, this will automatically give rise to all of the statutory consequences of default, without any special reminder being required.
VI.6. If Customer fails to pay any charges when due, Supplier may (i) charge Customer a late interest on amounts overdue at the maximum rate allowed under applicable law - the minimum late interest rate shall be 2* (1 month EURIBOR + 2%) - on the past-due balance; (ii) cancel or delay shipment of the Products; (iii) repossess the Products already delivered and/or (iv) terminate the Contract. For the purposes of exercising said right of repossession, Customer hereby grants a perpetual license to Supplier, and its employees or agents, to enter upon any premises in which the products may be stored.
VI.7. Customer shall not withhold payments to Supplier due to any set-off, counter-claim, or similar deduction.
VI.8. In case of non-payment of Customer Supplier may transfer its claim to a third party to collect the Customer’s outstanding debts.
VI. 9 Free shipping thresholds are not calculated based on the Full List Price of Products purchased, but Total Cart Value. In case Customer is using coupons or other discount tools and as a result the Total Cart Value decreases below the free shipping threshold, Supplier is not obligated to offer free shipping to Customer.
*VII. Title retention*
VII.1. Notwithstanding delivery and the passing of risk of damage or loss Supplier retains ownership (title) of Products until full payment is received for them unless otherwise stated in the order confirmation. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of the Contract.
VII.2. The Products shall be at the Customer's risk on delivery of Products.
VII.3. Until ownership of Products passes to Customer, Customer must:
(i) hold the Products on a fiduciary basis as the Supplier’s bailee;
(ii) store Products (at no cost to Supplier, unless otherwise agreed in writing) separately from all other products of Customer or any third party so as to remain readily identifiable as Supplier's property;
(iii) not remove, deface or obscure identifying marks or packaging on or relating to Products;
(iv) maintain the Products in satisfactory condition insured on Supplier’s behalf for their full price against all risks to Supplier’s reasonable satisfaction. On request Customer shall produce the insurance policy to the Supplier;
(v) hold insurance proceeds on trust for Supplier and not mix them with other money, nor pay the proceeds into an overdrawn bank account
(vi) not pledge or transfer the ownership by way of security of the Products under retention of title,
(vii) notify Supplier immediately if it becomes subject to bankruptcy, liquidation, volunteer dissolution or if it makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statute for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal).
*VIII Product recall*
VIII.1. Each Party shall give the other Party immediate notice of any occurrence that comes to its attention that involves:
(i) any material complaint about the safety or effectiveness of the Products, including a claim for damages in connection with injury of life, physical integrity or health following consumption of such
Products (that is plausibly related to the consumption of such Products);
(ii) the removal of any item manufactured by either Party from the market for food safety reasons by a retailer or any governmental authority of any country; and
(iii) any other matter arising out of the Contract that must be reported to a governmental authority.
VIII.2. The costs of a recall of a Product, including the cost of replacement quantities of recalled Product, shall be borne as follows:
(i) in the event that the principal reason for the recall of the Product in question is Customer's negligence or failure to store the Products in satisfactory manner, by Customer;
(ii) in the event that the principal reason for the recall is (a) the Supplier's negligence and /or its failure to comply with any of the terms of the Contract or (b) was a consequence of an administrative order, by Supplier.;
(iii) in the event that the reason of the recall of the Product was legally required, provided that this was not a consequence of matter detailed in Clauses VIII.2.(i) or VIII.2.(ii) above, by the Parties equally.
*IX. Communication*
IX.1. Supplier will send the Customers notices by email, post, text or other form of electronic message to the contact details the Customer gave to Supplier. It is the Customer’s sole liability to keep its business data and contact details updated.
*X. Intellectual property rights*
X.1. IPRs made available by the Supplier to the Customer for the supply of the Products shall remain the property of the Supplier.
X.2. Customer shall use the IPRs for the purpose of identifying and advertising the Products within the scope of the Contract and in Supplier’s sole interest. Customer may use the IPRs as long as customer is selling the Products in accordance with Contract.
X.3. Customer will use and display the IPRs only in furtherance of the Contract and in the form and manner designated or approved by Supplier. Customer acknowledges that any goodwill derived from Customer’s use of the IPRs shall inure to the benefit of Supplier.
X.4. Customer shall not, and has no power to, sublicense or transfer any rights set forth in this Clause to any third party or authorize any third party to use, in whole or in part, the marks, and any such attempted sublicense, transfer or authorization is and will be null and void.
X.5. Customer agrees neither to register, nor to have registered Supplier IPRs (or which are identical or confusingly similar to the Supplier’s). If Customers registers any domain name in violation of this clause, then Customer shall transfer - free of charge or royalty – the domain name to Supplier immediately upon notice from Supplier without compensation.
*XI. Liability and limitations*
XI.1. Supplier will be legally responsible to Customer if Supplier’s negligence causes injury of life, physical integrity or health. Supplier will not be legally responsible to Customer for (i) loss of income, (ii) loss of use of the products, (iii) lost business or missed opportunities or (iv) any loss or damage that is not directly caused by Supplier or which Supplier did not reasonably expect at the time Customer places its order at Supplier; Supplier’s liability shall be limited to typical contractual loss or damage that was foreseeable at time the order was placed. Unless Supplier’s negligence causes injury of life, physical integrity or health, Supplier’s liability to Customer will not be more than 15% of the value of the purchase order in question for each claim or a series of related claims.
XI.2. Except in case of breach of a condition, liability for ordinary negligence is excluded.
XI.3. Supplier will not be legally responsible to Customer if Supplier cannot provide the products because of something outside its reasonable control.
XI.4. If there is a defect in the Products, the Supplier shall without delay at its own cost remedy the breach or defect.
XI.5. Customer shall notify the Supplier of the defects in the supplied Products within reasonable period after having become aware of such defect. If Customer fails to give such notification within reasonable time period, Customer shall lose its right to present claims towards the Supplier, except for apparent defects that should have been in the knowledge of the Supplier and defects that have been caused by the Supplier’s gross negligence or wilful acts or omission.
XI.6. Supplier is not liable to remedy breaches or defects that have been caused by the actions of the Customer or incorrect information provided by Customer for purposes of the supply of the Products.
*XII. Governing law and jurisdiction*
XII.1. These Terms and Conditions are governed by the laws of USA
XII.2. For the settlement of any dispute arising from this Agreement or in connection therewith, a breach, termination, validity or construction thereof, Parties abide themselves by the exclusive decision of the Budapest seated Arbitration Court attached to the USA Chamber of Commerce and Industry where the Arbitration Court conducts the proceedings under its own Rules of Proceedings. The Court proceeds in a tribunal of three arbitrators. Each Party is authorized to designate an arbitrator. The arbitrators designated by the Parties elect the presiding arbitrator. The proceedings shall be conducted in English.
*XIII. Miscellaneous*
XIII.1. Supplier may transfer the Contract between Supplier and Customer to anyone else at any time. If Customer wanted to transfer its agreement with Supplier, Customer can if Supplier agree.
*XIV. Severability*
XIV.1. In the event any portion of this Terms and Conditions or the Contract is declared void or invalid by a court or tribunal of competent jurisdiction, such provision shall be modified or severed from this
Terms and Conditions and/or the Contract, and the remaining provisions shall remain in effect, unless the effect of such severance would be toalter substantially this Terms and Conditions and/or the Contract or the obligations of the Parties, in which case this Terms and Conditions and/or the Contract may be immediately terminated.