1. GENERAL
1.1 These General Terms and Conditions of Sale (“Conditions”) govern the
offering, sale and delivery of all goods and/or services (hereinafter jointly
referred to as the “Products”) from or on behalf of DSM Vitamins (Shanghai)
Ltd, DSM Vitamins (Shangdong) Ltd, DSM Vitamins (Hunan) Ltd, DSM Vitamins
(Changchun) Ltd, DSM Fine Chemicals (Shanghai) Ltd or any other DSM
Nutritional Products entity in China (“DSM”), to customer (“Customer”) and
apply to all transactions between DSM and Customer.
1.2 By contracting on the basis of the Conditions, Customer agrees to the
applicability thereof in respect of all future dealings, even if this is not
explicitly stated.
1.3 DSM explicitly rejects the applicability of any general terms and
conditions of Customer. Furthermore, the Conditions supersede any and all
terms of prior oral and written quotations, communications, agreements and
understandings of the parties in respect of the sale and delivery of the
Products and shall apply in preference to and supersede any and all terms and
conditions of any order placed by Customer and any other terms and conditions
submitted by Customer. Failure by DSM to object to the terms and conditions
set by Customer shall in no event be construed as an acceptance of any of the
terms and conditions of Customer. Neither DSM’s commencement of performance
nor DSM’s delivery shall be deemed as acceptance of any of Customer’s terms
and conditions. If the Conditions differ from any of the terms and conditions
of Customer, the Conditions and any subsequent communication or conduct by or
on behalf of DSM, including, without limitation, confirmation of an order and
delivery of Products, constitute a counter-offer and not acceptance of such
terms and conditions submitted by Customer. Any communication or conduct of
Customer which confirms an agreement for the delivery of Products by DSM, as
well as acceptance by Customer of any delivery of Products from DSM shall
constitute an unqualified acceptance by Customer of the Conditions.
1.4 The current version of the Conditions is available at
www.dsmnutritionalproducts.cn, www.dsm-nutritionalproducts.com and
HTTPS://WEBSHOP.DSM.COM/WWWASERA/HTML/. DSM reserves the right to amend the
Conditions at any time. DSM will notify Customer of any such amendments by
sending the amended Conditions to Customer, posting them on the aforementioned
Internet site or otherwise. The amended Conditions will take effect on the
date of notification of these amendments. The amended Conditions shall apply
to all transactions concluded between Customer and DSM after the date of such
notification.
1.5 Any electronic communication between DSM and Customer shall be effective
as originals and shall be considered to be a “writing” between the parties.
The electronic communication system used by DSM will serve as sole proof for
the content and the time of delivery and receipt of such electronic
communications.
2. QUOTATIONS, ORDERS AND CONFIRMATION
2.1 Unless stated otherwise by DSM, quotations made by DSM in whatever form
are not binding to DSM and merely constitute an invitation to Customer to
place an order. All quotations issued by DSM are revocable and subject to
change without notice. Orders are not binding until accepted by DSM in writing
(“the Confirmed Order”). DSM shall be entitled to refuse an order without
indicating the reasons.
2.2 Price quotations based on estimated or projected quantities are subject to
increase in the event that actual quantities purchased during the specified
period are less than the estimated or projected quantities.
2.3 Each delivery shall stand as a separate transaction and any failure to
deliver shall have no consequences for other deliveries.
3. PRICES
3.1 Prices and currencies of DSM’s Products are as set out in the Confirmed
Order. Unless otherwise agreed, DSM’s prices include standard packaging but do
not include Value Added Tax or any other similar applicable taxes, duties,
levies or charges in any jurisdiction levied in relation to the Products or
the delivery thereof (“Taxes”). The amount of any Taxes levied in connection
with the sale of Products to Customer shall be for Customer’s account and
shall either be added to each invoice or separately invoiced by DSM to
Customer. If DSM grants a discount, this discount only relates to the delivery
specifically mentioned in the Confirmed Order.
3.2 Unless the prices have been indicated as firm by DSM in the Confirmed
Order, DSM is entitled to increase the price of the Products still to be
delivered if the cost price determining factors have been subject to an
increase. These factors include but are not limited to: raw and auxiliary
materials, energy, products obtained by DSM from third parties, wages,
salaries, social security contributions, governmental charges, freight costs
and insurance premiums. DSM shall notify Customer of such increase which shall
not exceed the increase in the determining cost factors.
4. PAYMENT AND CUSTOMER’S CREDIT
4.1 Unless stated otherwise in the Confirmed Order, payment shall be made on
the basis of net cash, to be received by DSM within 30 (thirty) days following
the date of DSM’s invoice. All payments shall be made without any deduction on
account of any Taxes and free of set-off or other counterclaims except for
set-offs with uncontested and/or enforceable counterclaims.
4.2 With regard to payment for the Products, time is of the essence. DSM may,
without prejudice to any other rights of DSM, charge interest on any overdue
payment at 12% (twelve percent) per annum from the due date computed on a
daily basis until all outstanding amounts are paid in full. All costs and
expenses incurred by DSM with respect to the collection of overdue payments
(including, without limitation, reasonable attorney’s fees, expert fees, court
costs and other expenses of litigation) shall be for Customer’s account.
4.3 Every payment by Customer shall in the first place serve to pay the
judicial and extra-judicial costs and the accrued interest and shall
afterwards be deducted from the oldest outstanding claim regardless of any
advice to the contrary from Customer.
4.4 Any complaint with respect to the invoice must be notified to DSM in
writing within 20 (twenty) days after the date of invoice. Thereafter,
Customer shall be deemed to have approved the invoice.
5. DELIVERY AND ACCEPTANCE
5.1 Unless stated otherwise in the Confirmed Order, all deliveries of Products
shall be CIP (Carriage and Insurance Paid To) place of destination. The term
CIP shall have the meaning as defined in the latest version of INCOTERMS
published by the International Chamber of Commerce in Paris, France, at the
time of the Confirmed Order.
In case the transaction under the Confirmed Order is a Chinese
domestic sale, unless stated otherwise in the Confirmed Order, Products shall
be delivered at the warehouse designated by DSM and Customer shall take
delivery from such designated warehouse. The risk of the Products shall pass
to the Customer upon delivery or as of the time the Products are ready for
delivery at the designated warehouse if Customer fails to take delivery at the
delivery date or within the delivery period.
5.2 Unless stated otherwise in the Confirmed Order, any times or dates for
delivery by DSM are estimates and shall not be of the essence. DSM is entitled
to deliver the Products as stated in the Confirmed Order in parts and to
invoice separately. Delay in delivery of any Products shall not relieve
Customer of its obligation to accept delivery thereof, unless Customer cannot
reasonably be expected to accept such late delivery. Customer shall be obliged
to accept the Products and pay the rate specified in the Confirmed Order for
the quantity of Products delivered by DSM.
6. CANCELLATION
6.1 Customer’s wrongful non-acceptance or rejection of Products or
cancellation of the Confirmed Order shall entitle DSM to recover from
Customer, in addition to any other damages caused by such action:
(i) in the case of Products which reasonably cannot be resold by DSM to a
third party, the price of such Products as quoted in the Confirmed Order; or
(ii) in the case of Products which can be resold by DSM, damages equal to 50%
(fifty percent) of the price for the Products as quoted in the Confirmed Order
as liquidated damages, unless Customer can demonstrate that the actual damages
incurred by DSM are lower than 50% of the price or were not suffered at all.
7. EXAMINATION AND CONFORMITY TO SPECIFICATIONS
7.1 On delivery and during the handling, use, commingling, alteration,
incorporation, processing, transportation, storage, importation and (re)sale
of the Products (the “Use”), Customer shall examine the Products and satisfy
itself that the Products delivered meet the agreed specifications for the
Products as stated in the Confirmed Order or, in the absence of agreed
specifications, to the most recent specifications used by DSM at the time of
delivery of the Products (the “Specifications”).
7.2 Complaints about the Products shall be made in writing and must reach DSM
not later than 7 (seven) days from the date of delivery in respect of any
defect, default or shortage which would be apparent from a reasonable
inspection on delivery, and 7 (seven) days from the date on which any other
claim (e.g. hidden defects) was or ought to have been apparent, but in no
event later than (i) 6 (six) months from the date of delivery of the Products
or (ii) the expiry of the Products’ shelf-life whichever is the earlier. Any
Use of the Products shall be deemed to be an unconditional acceptance of the
Products as of the date of delivery and a waiver of all claims in respect of
the Products.
7.3 A determination of whether or not delivered Products conform to the
Specifications shall be done solely by DSM analysing the samples or records
retained by DSM and taken from the batches or production runs in which the
Products were produced in accordance with the methods of analysis used by DSM.
In case of a disaccord between the parties concerning the quality of a batch
or production run of Products supplied by DSM to Customer, DSM will submit
representative samples of said batch or run to an independent laboratory
reasonably acceptable to Customer to have determined whether or not the batch
or run in question has met the Specifications. The results of such analysis
shall be binding upon the parties and the party unable to uphold its position
shall bear the related costs of the laboratory.
7.4 Defects in parts of the Products do not entitle Customer to reject the
entire delivery of the Products, unless Customer cannot reasonably be expected
to accept delivery of the remaining non defective parts of the Products.
Complaints, if any, do not affect Customer’s obligation to pay as defined in
Article 4.
8. TRANSFER OF RISK AND PROPERTY
8.1 The risk of the Products shall pass to Customer according to the
applicable Incoterm (see Article 5.1) or the relevant provision of Article 5.1.
8.2 The title to the Products shall not pass to Customer and full legal and
beneficial ownership of the Products shall remain with DSM unless and until
DSM has received payment in full for the Products, including costs such as
interest, charges, expenses etc.
8.3 In the event of termination on the basis of Article 16, DSM shall, without
prejudice to any other rights of DSM, be entitled to require immediate return
of the Products, or to repossess the Products, for which it may invoke a
retention of title.
9. LIMITED WARRANTY
9.1 DSM solely warrants that on the date of delivery the Products shall
conform to the Specifications. If and to the extent Products are in breach
with such warranty, as determined in accordance with Article 7, DSM may at its
own option and within a reasonable time either repair or replace the Products
at no charge to Customer, or issue a credit for any such Products in the
amount of the original invoice price. Accordingly, DSM’s obligation shall be
limited solely to repair or replacement of the Products or for credit of the
Products.
9.2 DSM’s obligation to repair, replace, or credit shall be contingent upon
receipt by DSM of timely notice of any alleged non-conformance of Products
and, if applicable, the return of the Products, in accordance with Article 7.
9.3 The foregoing warranty is exclusive and in lieu of all other warranties,
representations, conditions or other terms, express, implied, statutory,
contractually or otherwise, including, without limitation, any warranty of
merchantability, suitability or fitness for any purpose, or absence of
infringement of any claim in any intellectual property right covering the
Products.
10. LIMITED LIABILITY
10.1 DSM’s liability for any and all claims arising out of or in connection
with the Products and the Use thereof shall per occurrence be limited to
direct damages of Customer and shall under no circumstances exceed the sales
value of the defective batch of the relevant Product supplied to Customer.
10.2 DSM shall under no circumstances be liable to Customer or any other
person for any kind of special, incidental, indirect, consequential or
punitive damage or loss, cost or expense, including without limitation, damage
based upon lost goodwill, lost sales or profit, delay in delivery, work
stoppage, production failure, impairment of other goods or based on any other
cause, and whether arising out of or in connection with breach of warranty,
breach of contract, misrepresentation, negligence or otherwise.
11. FORCE MAJEURE
11.1 Neither party shall be liable in any way for any damage, loss, cost or
expense arising out of or in connection with any delay, restriction,
interference or failure in performing any obligation towards the other party
caused by any circumstance beyond its reasonable control, including, without
limitation, acts of God, laws and regulations, administrative measures, orders
or decrees of any court, earthquake, flood, fire, explosion, war, terrorism,
riot, sabotage, accident, epidemic, strike, lockout, slowdown, labour
disturbances, difficulty in obtaining necessary labour or raw materials, lack
of or failure of transportation, breakdown of plant or essential machinery,
emergency repair or maintenance, breakdown or shortage of utilities, delay in
delivery or defects in goods supplied by suppliers or subcontractors (“Force
Majeure”).
11.2 Upon the occurrence of any event of Force Majeure, the party suffering
thereby shall promptly inform the other party by written notice thereof
specifying the cause of the event and how it will affect its performance of
its obligations under the Confirmed Order. In the event of any delay, the
obligation to deliver shall be suspended for a period equal to the time loss
by reason of Force Majeure. However, should a Force Majeure event continue or
be expected to continue for a period extending to more than 60 (sixty) days
after the agreed delivery date, either Party is entitled to cancel the
affected part of the Confirmed Order without any liability to the other Party.
12. MODIFICATIONS AND INFORMATION; INDEMNITY
12.1 Unless the Specifications have been agreed to be firm for a certain
period of time or quantity of Products, DSM reserves the right to change or
modify the Specifications and/or manufacture of Products and to substitute
materials used in the production and/or manufacture of Products from time to
time without notice. Customer acknowledges that data in DSM’s catalogues,
product data sheets and other descriptive publications distributed or
published on its websites may accordingly be varied from time to time without
notice.
12.2 Customer must utilise and solely rely on its own expertise, know-how and
judgment in relation to the Products and Customer’s Use thereof. Consultation
provided by DSM shall not give rise to any additional obligations. Customer
shall indemnify and hold DSM harmless from and against any and all damages,
losses, costs, expenses, claims, demands and liabilities (including without
limitation product liabilities) arising out of or in connection with the
Products and Customer’s Use thereof.
13. COMPLIANCE WITH LAWS AND STANDARDS
13.1 Customer acknowledges that the Use of the Products may be subject to
requirements or limitations under any law, statute ordinance, regulation, code
or standard (“Laws and Standards”). Customer shall be exclusively responsible
for (i) ensuring compliance with all Laws and Standards associated with its
intended Use of the Products; and (ii) obtaining all necessary approvals,
permits or clearances for such Use.
14. INDEPENDENT CONTRACTORS
14.1 DSM and Customer are independent contractors, and the relationship
created hereby shall not be deemed to be that of principal and agent.
15. NON-ASSIGNMENT AND CHANGE OF CONTROL
15.1 Neither party may assign any of the rights or obligations under the
Confirmed Order without the prior written consent of the other party, except
that either party may assign such rights and obligations to any of its
affiliates or to a third party acquiring all or a substantial part of its
assets or business relating to the Products.
15.2 DSM shall have the right to terminate the Confirmed Order with immediate
effect if at any time during the term of the Confirmed Order a person or group
of persons, who are unrelated to the persons controlling Customer as of the
date of the Confirmed Order, acquires control, through ownership of voting
securities or otherwise, over Customer. Customer must notify DSM of such
acquisition within 10 (ten) days thereof. DSM may exercise its right to
terminate the Confirmed Order by giving Customer written notice of such
exercise within 10 (ten) days after the date of receipt of such notice.
16. SUSPENSION AND TERMINATION
16.1 If Customer is in default of performance of its obligations towards DSM
and fails to provide to DSM adequate assurance of Customer’s performance
before the date of scheduled delivery; or if Customer becomes insolvent or
unable to pay its debts as they mature, or goes into liquidation (other than
for the purpose of a reconstruction or amalgamation) or any bankruptcy
proceeding shall be instituted by or against Customer or if a trustee or
receiver or administrator is appointed for all or a substantial part of the
assets of Customer or if Customer enters into a deed of arrangement or makes
any assignment for the benefit of its creditors, then DSM may by notice in
writing forthwith, without prejudice to any of its other rights:
(i) demand return and take repossession of any delivered Products which have
not been paid for and all costs relating to the recovery of the Products shall
be for the account of Customer; and/or
(ii) suspend its performance or terminate the Confirmed Order for pending
delivery of Products unless Customer makes such payment for Products on a cash
in advance basis or provides adequate assurance of such payment for Products
to DSM.
16.2 In any such event of Article 16.1 all outstanding claims of DSM shall
become due and payable immediately with respect to the Products delivered to
Customer and not repossessed by DSM.
17. WAIVER
17.1 Failure by DSM to enforce at any time any provision of the Conditions
shall not be construed as a waiver of DSM’s right to act or to enforce any
such term or condition and DSM’s rights shall not be affected by any delay,
failure or omission to enforce any such provision. No waiver by DSM of any
breach of Customer’s obligations shall constitute a waiver of any other prior
or subsequent breach.
18. SEVERABILITY AND CONVERSION
18.1 In the event that any provision of the Conditions shall be held to be
invalid or unenforceable, the same shall not affect in any respect whatsoever,
the validity and enforceability of the remaining provisions between the
parties and shall be severed therefrom. The pertaining provisions held to be
invalid or unenforceable shall be reformed to meet the legal and economic
intent of the original provisions to the maximum extent permitted by law.
19. LIMITATION OF ACTION
19.1 Unless otherwise stated hereunder, no action by Customer shall be brought
unless Customer first provides written notice to DSM of any claim alleged to
exist against DSM within 30 (thirty) days after the event complained of first
becomes known to Customer and an action is commenced by Customer within 12
(twelve) months after such notice.
20. GOVERNING LAW AND VENUE
20.1 The parties’ rights and obligations arising out of or in connection with
the Confirmed Order and/or the Conditions shall be governed, construed,
interpreted and enforced according to the laws of People’s Republic of China,
without regard to the conflict of laws provisions thereof. The United Nations
Convention on Contracts for the International Sale of Goods dated 11 April
1980 (CISG) shall not apply.
20.2 Any dispute, controversy or claims arising under, out of or relating to
these Conditions or/and the transaction hereunder shall be settled amicably
between the Parties. If no amicable settlement can be reached, both Parties
agree to submit the dispute to exclusive jurisdiction of China Economic and
Trade Arbitration Committee (“CIETAC”). The arbitration shall be conducted in
Shanghai in accordance with the Arbitration Rules of CIETAC.
21. SURVIVAL OF RIGHTS
21.1 The parties’ rights and obligations shall be binding upon and inure to
the benefit of the parties and their respective successors, permitted assigns,
directors, officers, employees, agents and legal representatives. Termination
of one or more of the parties’ rights and obligations, for whatever reason,
shall not affect those provisions of the Conditions which are intended to
remain in effect after such termination.
22. HEADINGS
22.1 The headings contained in the Conditions are included for mere
convenience of reference and shall not affect the latter’s construction or
interpretation.
23. INTELLECTUAL PROPERTY
23.1 All intellectual property rights arising out of or in connection with the
Products shall be the exclusive property of DSM.
23.2 DSM has not verified the possible existence of third party intellectual
property rights which might be infringed as a consequence of the sale and/or
delivery of the Products and DSM shall not be held liable for any loss or
damage in that respect.
23.3 The sale of Products shall not, by implication or otherwise, convey any
license under any intellectual property right relating to the compositions
and/or applications of the Products, and Customer explicitly assumes all risks
of any intellectual property infringement by reason of the Use of the
Products, whether singly or in combination with other materials or in any
processing operation.
24. LANGUAGE
24.1 The original version of the Conditions is made in the English language.
In the event of any inconsistency or contradiction between the English version
and any translation thereof, the English version shall prevail.
(Version: June 2009)
