1.1. “Applicable Laws” means any law, statute, regulation, ordinance, code, rule or standard of any governmental authority or entity applicable to a Party.
1.2. “Buyer” means the individual or legal entity that buys Products from the Seller.
1.3. “General Terms and Conditions” means the general terms and conditions set forth herein.
1.4. “Incoterms” means Incoterms® 2020 determined by the International Chamber of Commerce (ICC).
1.5. “Party(ies)” means the Seller or the Buyer individually or collectively, as applicable.
1.6. “Products” means the products sold by the Seller under these General Terms and Conditions.
1.7. “Seller” means Durabilis USA LLC, a Delaware limited liability company.
2.1. These General Terms and Conditions are applicable to each order or purchase of Products that the Buyer buys from the Seller, including all documents that relate to such purchase, including, without limitation, the Seller’s confirmation and acceptance of purchase orders and all other documents specifically incorporated into Seller’s acceptance or that otherwise state that such document or agreement is governed by these General Terms and Conditions. Notwithstanding any other provision in these General Terms and Conditions to the contrary, in case and to the extent of a conflict between the provisions of these General Terms and Conditions and a separate written agreement executed between the Buyer and the Seller, the provisions of the separate written agreement shall control and prevail.
2.2. The Seller may update or modify the General Terms and Conditions at any time and at its sole discretion. The modified terms and conditions shall apply to each sale of the Products by the Seller to the Buyer from the date they are updated or modified by the Seller. Seller shall notify Buyer of any such updates or modifications to the General Terms and Conditions by posting of such updates or modifications on its website: https://durabilissweet.com/
2.3. Any notices and communications between the Parties relating to these General Terms and Conditions shall be made in writing, including by way of electronic communication to the address or contact information set forth in an applicable invoice or confirmation of a purchase order.
2.4. Any terms or conditions not included in these General Terms and Conditions or any other separate written agreement executed between the Parties shall not apply to the sales of the Products unless the Parties explicitly agree otherwise in writing.
3. Purchase order and specifications.
3.1. None of the purchase orders placed by the Buyer shall be deemed accepted by the Seller unless and until the purchase order is explicitly confirmed and accepted in writing by an authorized representative of the Seller.
3.2. The Buyer shall not have the right to cancel or amend a purchase order sent to and accepted by the Seller, without the written consent of the Seller.
3.3. The specifications of the Products shall be referenced in the confirmation of the purchase order sent by the Seller. No other specifications for the Products sold shall be applicable to the Buyer’s purchase except as set forth in such confirmation of the purchase order or as otherwise explicitly accepted in writing by the Seller.
4.1. The Buyer shall pay the sale price according to the conditions set forth in the confirmation of the purchase order provided by the Seller.
4.2. The Buyer shall pay the sale price set forth in the applicable invoice upon the receipt of such invoice from the Seller and in any event in advance of delivery of the Products, unless the Buyer and the Seller explicitly agree otherwise in writing. No delivery of the Products shall take place prior the payment of the entire sale price by the Buyer, unless the Buyer and the Seller explicitly agree otherwise in writing. Buyer hereby grants Seller a lien and security interest in and to the Products sold to Buyer and any proceeds obtained therefrom by Buyer until Buyer pays the sales price and any applicable interest or other fees and expenses for the Products in full. Buyer further authorizes and agrees that Seller may file from time to time such financing statements, notices, registrations and other documents as it deems necessary or appropriate in order to evidence or perfect such lien and security interest. Buyer shall not grant or authorize any other lien, security interest or encumbrance upon the Products as long as Seller continues to hold a lien and security interest in and to the Products pursuant to these General Terms and Conditions.
4.3. All payments by the Buyer shall be made without offsets or counter claims, as well as without any deduction for any other applicable fees, taxes, charges, assessments or other costs of any kind. A late delivery or a complaint shall not release the Buyer from its obligation to pay the invoices in accordance with these General Terms and Conditions.
4.4. In the event of the failure of the Buyer to timely pay the sale price in accordance herewith, the outstanding amount of the sale price shall automatically and without prior notice accrue interest at a rate of ten percent (10%) per year.
Accordingly, with respect to any such failure, the Buyer shall be responsible to pay
the Seller a lump sum of ten percent (10%) of the total amount of the invoice with a minimum of USD$150.00 per invoice. The foregoing shall not limit or otherwise affect the Seller’s other rights and remedies hereunder or otherwise under law or equity. The Buyer shall also reimburse the Seller for all costs and expenses (including costs of collection) that the Seller incurs as a result of the failure by the Buyer to timely pay the amount hereunder and the Seller’s exercise its rights under these General Terms and conditions. Notwithstanding anything herein to the contrary, the Seller shall be entitled to immediately suspend and withhold any outstanding deliveries of Products until all outstanding and due amounts are paid in full in accordance with this Section 4
4.5. If the Buyer breaches any provision of these General Terms and Conditions or of any purchase order or confirmation thereof or any other document incorporating these General Terms and Conditions, the Seller may, without prejudice to or otherwise limiting any other terms hereof, upon delivery of written notice, either immediately suspend the performance of its obligations or immediately terminate the applicable purchase order or confirmation and these General Terms and Conditions, notwithstanding and without affecting the right of the Seller to claim any compensation for damages suffered due to the breach of the General Terms and Conditions by the Buyer.
5.1. The Parties hereby expressly agree that the expected date and time slots for the delivery of the Products included in the purchase order confirmation provided by the Seller are reasonable estimates for delivery that rely upon external factors that fall outside the control of the Seller. The Seller shall exercise reasonable efforts to deliver the Products on the date set forth in the purchase order confirmation. The Seller shall in no case be held liable or responsible in case of a delay in the delivery of the Products. In addition, the delivery timeframe included in the purchase order confirmation may be extended for an additional reasonable period of time as a result of (i) any import licenses or other similar documents that are not timely delivered to the Seller; or (ii) a force majeure event pursuant to Section 9.
5.2. The Seller shall have the right to deliver the Products in parts or multiple shipments.
5.3. The delivery of the Products takes place in accordance with the Incoterm EX WORKS, unless the Parties agree otherwise in writing.
5.4. In the event any delivered Products are wrongfully rejected or not accepted by the Buyer, the Seller will retain and store such Products at the Buyer’s sole cost. After three (3) calendar days following such wrongful rejection or failure to accept the Products by the Buyer, the Seller may resell the Products. In that case, the Buyer shall indemnify and reimburse the Seller for any losses, damages, liabilities, costs, or expenses incurred by the Seller or its affiliates due to such wrongful rejection or failure to accept the delivered Products by the Buyer.
6. Visual defects and damages.
6.1. Upon delivery, in whole or in part, the Buyer shall immediately inspect the Products and verify the quantity and any possible visual damage or defect of the Products and the package. The Buyer shall also immediately verify that the Products correspond with the Products described in the applicable purchase order.
6.2. Any visual damage or defect of the Products or the package or any difference between the purchased Products and the delivered Products must be reported in writing (including by email) to the Seller as soon as possible, and, in any event, within twenty-four (24) hours after delivery (the “Inspection Period”). The Buyer shall immediately separate the batch with the alleged defective or damaged Products from any other Products to avoid any potential cross contamination. The Buyer must enclose a quality report in its notice of defects that clearly describes the alleged defects or damages as well as pictures showing such defects or damages, along with a copy of the transportation documents. Unless the Buyer notifies the Seller of its rejection of any Products in accordance with the specific terms of this Section 6.2 within the Inspection Period, the Buyer shall be deemed to have accepted the Products, and the Products shall be deemed to be correctly delivered in accordance with the applicable purchase order.
6.3. In the event the Buyer properly rejects delivered Products, the Buyer may only be entitled to receive a reimbursement of the entire sale price or a part of the sale price so long as the Products are returned in the same conditions as they were delivered. Upon the arrival of the returned Products at the premises of the Seller, the Seller will perform a visual and quality inspection. If the quality or the quantity of the Products is not the same as when delivered to the Buyer, the Buyer shall not be entitled to any reimbursement of the sale price.
7. Quality defects.
7.1. Following the Inspection Period, the Seller shall only be responsible for quality defects that were not reasonably visible at the moment of the delivery and that render the Products unsuitable, provided that the Products have not been processed or otherwise modified or tampered with in the meantime by the Buyer or any third party, and provided further that the Seller was aware of the defects.
7.2. In the event that the Buyer identifies any non-conformance of delivered Products to the technical data sheet for such Products that were not reasonably visible at the moment of delivery and that render such Products unsuitable, the Buyer shall notify Seller in writing (including by email) a claim with proof of such non-conformance within fourteen (14) days after delivery of the Product, which notice must contain a detailed description of the alleged defect. The Buyer must enclose in such notice a quality report which clearly details the defects and pictures showing such defects. If the Buyer fails to provide such notice during such fourteen (14) day period, the Product shall be deemed to be accepted by the Buyer in accordance with the technical datasheet as agreed between the Buyer and the Seller. As soon as reasonably possible, and upon receipt of such properly delivered claim, the Seller shall initiate an inspection taking the respective Certificate of Analysis (COA), that has been provided by Buyer together with the Product, as a reference point.
7.3. In the event the Buyer identifies any non-conformity in accordance with Section 7.2, the Buyer shall immediately separate the disputed batch from any other Products to avoid any potential cross contamination and prevent any further inspection or access to the Products.
7.4. If the Buyer uses the Products within fourteen (14) days from their delivery date, the Buyer shall not be entitled to any claim any non-conformity of such Products to their-specifications, and the Buyer shall be solely responsible and liable for any consequences or results from the use of such Products.
7.5. In case the non-conformity to the applicable specifications relates to the analysis of the Total Stevia Glycosides, the Seller shall perform a control HPLC test (High-Performance Liquid Chromatography) or another test that it estimates adequate in its laboratory on the counter sample and send the results to the Buyer within five (5) business days after the receipt of the Buyer’s claim by the Seller. For any other parameter of the out-of-specification defect, the Seller shall send a counter sample to an independent laboratory appointed by the Seller at its own discretion, for counter testing. The Seller shall use reasonable efforts to send the results of the counter testing to the Buyer within fourteen (14) business days after sending the Product to the laboratory.
7.6. If the counter sample test result indicates that the Product complies with the specifications as described in the COA: (1) the Buyer shall bear the laboratory fees and any other charges related to the investigation; and (2) the Buyer shall indemnify the Seller against any damage to its reputation resulting from Buyer’s notice of non-conformance to the specifications.
7.7. If the test result of the counter sample indicates that the Products do not comply with the specifications as described in the COA: (1) the Seller shall bear the laboratory fees and any other charges directly associated with the investigation; (2) the Seller shall issue a credit note for the amounts paid by the Buyer for the disputed batch; and any disputed batch shall, at the Seller’s sole discretion, either be returned to Seller or destroyed (with proof of destruction); and (3) the Seller shall, upon written request of the Buyer and in the form of a new purchase order, to the extent possible and as soon as reasonably practicable, deliver replacement Products to the Buyer.
8. Limitation of liability; Disclaimer of Warranties.
8.1. THE SELLER SHALL NOT BE LIABILE OR RESPONSIBLE TO ANY THIRD PARTY FOR ANY DAMAGES, LOSSES, OR LIABILITIES RESULTING FROM THE BUYER’S OR SUCH THIRD PARTY’S USE OR SALE OF THE PRODUCTS OR ANY OTHER PRODUCTS INCORPORATIING THE PRODUCTS.
8.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SELLER ARISING OUT OF THESE GENERAL TERMS AND CONDITIONS AND ANY PURCHASE ORDER HEREUNDER OR OTHERWISE IN CONNECTION WITH THE PRODUCTS AND THE USE THEREOF, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY PAID BY THE BUYER FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE CLAIM.
8.3. IN NO EVENT SHALL THE SELLER BE LIABLE HEREUNDER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGE OR ANY LOSS, COST OR EXPENSE, INCLUDING WITHOUT LIMITATION, DAMAGE BASED UPON LOSS OF GOODWILL, LOSS OF SALES, INCOME OR PROFIT, LOSS OF CONTRACTS, WORK DISRUPTION, PRODUCTION FAILURE, IMPAIRMENT OF OTHER PRODUCTS, OR OTHERWISE, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.4. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY THE SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
8.5. (A) NEITHER THE SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OR PERFORMANCE OF THE PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) THE BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON THE SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THESE GENERAL TERMS AND CONDITIONS.
9. Force Majeure.
9.1. An event of “Force Majeure” shall mean any and all events beyond the reasonable control of the Seller or Buyer that has occurred after the confirmation of a purchase order and that hinders the performance of one or more contractual obligations by the Seller or the Buyer or otherwise make it unreasonably difficult to perform under the circumstances. Force Majeure shall include, without being limited to, the following events: strike, epidemic, pandemic, high absenteeism due to illness, floods, earthquake, volcanic activities, extreme weather conditions, an armed conflict, fire, explosion, interruption of power and telecommunications, cyberattack, machine breakdown, decisions or inventions by the government, including the refusal or withdrawal of a permit or license, fuel shortages, trade conflict, theft, terrorism, import and export embargos and errors or delays due to third parties.
9.2. In case of an event of Force Majeure, the performance of the obligations of the Seller and the Buyer shall be suspended during the period of the delay caused by the Force Majeure and the term of performance shall automatically be extended for the same period, without any sanction or penalty on the affected Party. In case the event of Force Majeure lasts longer than two (2) months or if the Force Majeure renders the performance of the contractual obligations by one Party definitively impossible or unreasonably difficult, both Parties shall have the right to unilaterally terminate the applicable purchase order and these General Terms and Conditions upon written notice thereof, without being obliged to pay any kind of compensation or liability to the other Party.
9.3. A Party cannot hold the other Party responsible for non-compliance with an obligation hereunder due to circumstances that can be reasonably considered as Force Majeure.
10. Risk and ownership.
The risk of damage or loss to, as well as the title of, the Products shall be transferred to the Buyer in accordance with the terms of the Incoterm EX WORKS.
11. Compliance with laws.
The Buyer acknowledges that the use of the Products may be subject to requirements or limitations under Applicable Laws. The Buyer shall be exclusively responsible for (i) ensuring compliance with all Applicable Laws relating to its intended use of the Products and (ii) obtaining all necessary approvals, permits or clearances for such use.
12. Independent parties.
The Seller and the Buyer are independent entities and the relationship that is established between the Buyer, and nothing in these General Terms and Conditions shall create or be construed as a creating any agency, joint venture, partnership, or other form of joint enterprise or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
The Buyer may not assign or transfer any of its rights and obligations hereunder to any third parties with the prior, explicit and written consent of the Seller. The Seller may freely assign its rights and obligations hereunder, in whole or in part, to any third party. These General Terms and Conditions and any purchase orders or other documents entered into hereunder shall be binding on and insures to the benefit of the Parties and their respective permitted successors and permitted assigns.
14. Severability and conversion.
If one or more provisions of the General Terms and Conditions will be considered invalid, illegal or unenforceable, such invalidity, illegality or unenforceability will in no manner affect the validity or enforceability of the other provisions of the General Terms and Conditions or any applicable purchase order and will be separated from the other provisions of the General Terms and Conditions or such applicable purchase order. In such event, the Parties shall negotiate in good faith to replace the invalid, illegal or unenforceable provision or provisions by an enforceable and valid provision that corresponds as closely as possible to the purpose and the scope of the original provision or provisions.
The Parties acknowledge they will have access to certain information and materials concerning the other Party’s business plans, customers, technology, and products, including without limitation any technical, marketing, financial, business or other proprietary or confidential information that is of substantial value to such Party. The Parties agree that they shall not disclose to any third party, any such confidential information revealed to them by the other Party. Without other notice, the Parties shall treat all information as confidential in nature, except, in each case, to the extent that such Party can show that such information (i) is generally available to and known by the public through no fault of such Party or (ii) is lawfully acquired by such Party from sources which are not prohibited from disclosing such information by a legal, contractual, or fiduciary obligation. If such Party is compelled to disclose any information by judicial or administrative process or by other requirements of Applicable Law, such Party shall promptly notify the other Party in writing and shall disclose only that portion of such information which such Party is advised by its counsel in writing is legally required to be disclosed, provided, that such Party shall reasonably cooperate with the other Party in its efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.
16. Applicable law and jurisdiction; Waiver of jury trial.
16.1. These General Terms and Conditions and all purchase orders or other documents entered into hereunder and all matters arising out of or relating hereto, are governed by and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
16.2. Each Party irrevocably and unconditionally agrees that it shall not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these General Terms and Conditions and all purchase orders or other documents entered into hereunder and all contemplated transactions, in any forum other than the courts of the State of Delaware, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the courts of the State of Delaware. Each Party agrees that a final judgment in any such action,litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by Applicable Law.
16.3. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE HEREUNDER, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED HERETO, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING HERETO, INCLUDING ANY PURCHASE ORDERS OR OTHER DOCUMENTS ENTERED INTO HEREUNDER, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17. Amendments; Waivers.
17.1. No amendment to or rescission, termination, or discharge of these General Terms and Conditions is effective unless it is in writing, identified as an amendment to this Agreement and signed by each Party.
17.2. No waiver under these General Terms and Conditions is effective unless it is in writing and signed by the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
18. Entire Agreement.
These General Terms and Conditions, including all purchase orders and any related exhibits and schedules entered into hereunder, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
19. Cumulative Remedies.
All rights and remedies hereunder are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
20. No Third Party Beneficiaries.
These General Terms and Conditions and all purchase orders or other documents entered into hereunder benefits solely the Parties hereto and their respective permitted successors and permitted assigns, and nothing herein, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason hereof.
All purchase orders and other documents entered into hereunder may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of any such purchase orders or documents delivered by facsimile, e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy thereof.
22. Further Assurances.
Upon Seller’s reasonable request, the Buyer shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to these General Terms and Conditions and any other documents entered into hereunder.