GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY, AND
PAYMENT
of
CROWN COATING INDUSTRIES LTD and/or any associated enterprise worldwide
71-75 Shelton Street, Covent Garden
32 London WC2H 9JQ UNITED KINGDOM
1.
Scope
1.1 These General
Conditions govern all offers, invitations to treat ,
instructions, Contracts and successive Contracts, and the supply of goods and
services of CROWN COATING INDUSTRIES LLC. and/or all
worldwide enterprises associated with it now or in the future, together
referred to below as ‘CROWN COATING INDUSTRIES,’ supplied to, or entered into with, any third
party, referred to below as ‘the Client ,’ and
the performance thereof.
1.2 Associated
enterprises: all enterprises referred to in these General Conditions and all
entities not referred to by name in which CROWN COATING INDUSTRIES holds a direct or indirect
interest of at least 50 per cent.
1.3 Any deviation
from the terms of the General Conditions is only possible insofar as it has
been expressly agreed in writing by CROWN COATING INDUSTRIES.
1.4 CROWN COATING INDUSTRIES expressly
rejects any general or special terms and conditions of the Client, such as
purchase conditions, irrespective of whether reference is made to these once
these General Conditions have been received by the Client, unless CROWN COATING INDUSTRIES has
confirmed in writing that it accepts such terms and conditions.
1.5 Written
communications between CROWN COATING INDUSTRIES and the Client are deemed to include
communications sent by electronic data carriers.
1.6 These General
Conditions are available on the CROWN COATING INDUSTRIES website: www.cci.uk.net. CROWN COATING INDUSTRIES reserves the right to revise these General
Conditions at any time. CROWN COATING INDUSTRIES will notify the Client of any such revision by
a) sending the revised General Conditions to the Client, or b) uploading the
revised General Conditions to the said website, or c) by other means . The
revised General Conditions come into force as soon as the Client was able to
obtain sight of them and as from that moment they govern all orders placed by
the Client and confirmed by CROWN COATING INDUSTRIES.
1.7 No rights can be
derived by the Client in respect of future transactions by virtue of any
incidentally‐agreed deviations from these General Conditions.
2.
Offers,
instructions, and contracts
2.1 All offers from CROWN COATING INDUSTRIES
are subject to contract, unless the offer contains a period for acceptance. The
content of advertising claims, descriptions, and images in catalogues, samples,
advertising, and other materials containing information materials do not bind CROWN COATING INDUSTRIES.
2.2 No rights can be
exercised in respect of an offer if the product or service to which the offer
relates is no longer available.
2.3 All prices quoted
by CROWN COATING INDUSTRIES may be revised or withdrawn by CROWN COATING INDUSTRIES without the need to give any
prior notice. Acceptance of an offer and/or the placing of an order by the
Client cannot be cancelled.
2.4 A Contract is
only binding once acceptance by the Client of an offer made by CROWN COATING INDUSTRIES, or an
order placed by the Client, is confirmed by CROWN COATING INDUSTRIES in writing, or once CROWN COATING INDUSTRIES
has begun to perform its part of the Contract without the said written
confirmation. In the latter case, the Client is deemed to have entered into the
Contract on the basis of the terms of the offer, or in accordance with the then
current terms and conditions, and prices, as fixed by CROWN COATING INDUSTRIES.
2.5 CROWN COATING INDUSTRIES is
entitled to refuse instructions or an order at any time without the need to
give reasons. Each confirmation constitutes a separate contract for sale of the
products specified therein, and any defect in the supply of such products has
no legal or other consequences in respect of other confirmed orders.
2.6 A price quotation
relates only to the quantities for which such quotation is issued.
2.7 Any identified
inaccuracies in the confirmation of order must be notified to CROWN COATING INDUSTRIES in writing
no later than two working days after the date of the confirmation of order,
failing which the right to
rectification is lost.
2.8 Any oral
statement or promise will only bind CROWN COATING INDUSTRIES insofar as it is confirmed or
repeated in writing by CROWN COATING INDUSTRIES.
3 Information and indemnity
3.1
The Client guarantees the accuracy,
completeness, and reliability of the information supplied by, or on behalf of, the Client to CROWN COATING INDUSTRIES,
even if the information originates from a third party engaged by the Client.
3.2
If
performance or continued performance of the Contract is not possible until
further information is received from the Client, then CROWN COATING INDUSTRIES is entitled to
suspend such performance or further performance until it is satisfied that the
Client has supplied it with all information required. If and insofar as the
necessary information has not been supplied in time or at all, the Client is
liable to compensate CROWN COATING INDUSTRIES for its costs and other loss incurred in line with
the usual fees charged by CROWN COATING INDUSTRIES.
3.3
The
Client is liable for loss suffered by CROWN COATING INDUSTRIES and/or its employees as a result
of any inaccuracy or omission in the information supplied by the Client.
3.4
The
Client indemnifies CROWN COATING INDUSTRIES and its employees in respect of any third‐party
claim, including a claim by employees of CROWN COATING INDUSTRIES, for loss connected with the
performance of the Contract resulting from any act or omission of the Client,
the inaccuracy or incompleteness of any information supplied by or on behalf of
the Client, or any unsafe situation within the Client’s business premises or organization.
4 Conformity
4.1
CROWN COATING INDUSTRIES does not guarantee that the
products comply with certain statutes or regulations, decrees, rules, codes, or
standards (laws and standards), unless indicated expressly in the confirmation
or specifications.
4.2
CROWN COATING INDUSTRIES guarantees that, pursuant to
Article 6 of these General Conditions, at the time of delivery the product
complies with the specifications / product information as supplied by CROWN COATING INDUSTRIES
or, if this is not supplied, as CROWN COATING INDUSTRIES will provide on request.
4.3
CROWN COATING INDUSTRIES gives no other
express or implied
guarantee relating to the product,
not even with regard to adequate quality,
saleability,
suitability for a specific purpose,
or otherwise.
5 Prices
5.1
The
agreed prices and currency are binding for the specified period. Unless a greed otherwise, the prices from CROWN COATING INDUSTRIES
include standard packaging, and are net of VAT
and any other comparable relevant taxes , duties, or other liabilities
charge in any given country in respect of the products and/or their delivery
(‘taxes’). Taxes are paya ble
by the Client and are indicated on each invoice or separately charged by CROWN COATING INDUSTRIES
to the Client. If CROWN COATING INDUSTRIES gives any discount, such discount relates only to the
delivery specified in that particular order confirmation. All agreed prices are
net. If CROWN COATING INDUSTRIES is liable for VAT, sales
tax , usage tax, excise duties, energy tax, customs
tariffs, import or export duties, or similar taxes or government ‐imposed
surcharges relating to the sale, delivery, release from customs warehouse, or
transport of the products , the Client must pay such liabilities to CROWN COATING INDUSTRIES over
and above the agreed price, with no right to set‐off and/or suspension.
5.2
If
CROWN COATING INDUSTRIES has paid for the packaging, transport, postage ,
or insurance of products without any price having been agreed for such costs,
it is entitled to charge the Client either for the costs actually incurred or
its standard rate of costs, at its discretion.
5.3
If there is an increase in costs as a
result of any external factors once the Contract has come into effect, CROWN COATING INDUSTRIES
is entitled to adjust the price in line with the amount by which the costs
incurred by CROWN COATING INDUSTRIES have increased. An ‘increase in costs’ includes, but is not
limited to, an increase in transport costs, import and export duties, customs
tariffs and excise duties, or other duties and/or taxes imposed in the
Netherlands or abroad, an increase in costs resulting from the implementation
of any such new fees, taxes, or duties, an increase in wages, salaries, and
national insurance payments, an increase resulting from changes in the exchange
rate / currency values, and an increase in the cost of raw materials, ancillary
materials, goods, and/or services whether procured by CROWN COATING INDUSTRIES from third parties
or otherwise.
6 Delivery and
delivery periods
6.1
Specified
and agreed delivery dates are approximate only and are not deadlines. If CROWN COATING INDUSTRIES
fails to deliver by a certain date or within a certain period, it is not
thereby liable to pay compensation, and the Client is not entitled to terminate
the Contract and/or to suspend or set off any of its obligations arising from
the Contract.
6.2
Specified
and agreed delivery dates are based on the work situation at the time the
Contract was entered into and on the prompt supply of goods required by CROWN COATING INDUSTRIES
for the performance of the Contract. If there is any delay as a result of any
change in the work situation or failure to supply the goods required by CROWN COATING INDUSTRIES
in good time , then the delivery period will be
extended accordingly.
6.3
Delivery
dates or delivery periods will be extended by the duration of any delay on the
part of CROWN COATING INDUSTRIES as a result of failure by the Client to comply with any of its
obligations under the Contract or to provide its requested assistance in the
performance of the Contract.
6.4
CROWN COATING INDUSTRIES
will determine the way in which the Contract is performed, and by which
persons, having regard as far as possible to the wishes of the Client. Each
instruction is deemed, to the exclusion of Book 7, Articles 404 and 407 (2) of
the Dutch Civil Code, to have been given solely to, and accepted by, CROWN COATING INDUSTRIES.
6.5
CROWN COATING INDUSTRIES is entitled to perform the
Contract in parts and to claim for payment for such part of the Contract as has
been performed. In such a case, each delivery is deemed to be the subject of a separate
Contract. However, the failure by CROWN COATING INDUSTRIES to comply with any such separate Contract
does not rel ieve the Client of its obligations under other separate
Contracts.
6.6
All
abbreviations of international commercial terms and conditions of delivery in
any contract document are deemed to refer to the Incoterms 2010, or the latest
version thereof. Delivery will be made under the agreed terms in accordance
with the Incoterms 2010, or the latest version thereof .
If no terms are agreed for delivery, then delivery will be ex works. The risk
in respect of the products transfers to the Client at the time when delivery is
made in accordance with the agreed Incoterm.
6.7
In
principle, the transport and insurance costs are the responsibility and risk of
the Client unless expressly agreed otherwise in a delivery term in accordance
with the Incoterms.
6.8
The
Client must insure the goods from the moment of delivery and for the duration
of the retention of title against fire, explosion, water, and other damage, and
against theft, and provide CROWN COATING INDUSTRIES with sight of these insurance policies on
request. All claims by the Client against the insurers of the goods under such
policies must be transferred to CROWN COATING INDUSTRIES if and as soon as CROWN COATING INDUSTRIES so requires.
6.9
The
Client must take receipt of the goods as soon as they arrive at the point of
delivery. The Client must ensure adequate loading and unloading facilities and
a rapid unloading.
6.10
The
loading and unloading of goods and their packaging is at the expense and risk
of the Client, even if CROWN COATING INDUSTRIES assists the Client in this regard. The Client
indemnifies CROWN COATING INDUSTRIES against any third‐ party claim,
including a claim made by its own personnel in regard to the transportation.
6.11
If
the Client does not take receipt of the goods or does not ensure that they are
collected, they will be stored by CROWN COATING INDUSTRIES for as long as CROWN COATING INDUSTRIES deems necessary
or desirable, at the expense and risk of the Client. In such a case, and where
the Client is in any other kind of attributable breach, CROWN COATING INDUSTRIES is entitled at any time either to
require compliance with the Contract, or to terminate the Contract (without the
need for a court order), as it may choose, and without prejudice to its other
rights to claim compensation for loss, including loss of profits and the cost
of storage.
6.12
CROWN COATING INDUSTRIES
is not obliged to comply with a request from the Client for re‐delivery
or later delivery. If CROWN COATING INDUSTRIES does agree to this, the costs thereby incurred are
payable by the Client.
7 Force majeure
7.1
CROWN COATING INDUSTRIES
cannot be held liable for the consequences of failure to comply with any
contract term if and insofar as compliance is delayed, complicated, restricted,
or obstructed by a situation outside the scope of its responsibility and risk
(‘force majeure’).
7.2
The
term ‘force majeure’ includes, but is not limited to: war, threat of war, terrorist
act, sabotage, accident, epidemic, mobilisation,
civil unrest, civil war, riot,
violence, fire, natural disaster, strike or work stoppage, breakdown in the
supply of energy or materials, the failure of suppliers to supply on time or at
all, the injury or illness of personnel, disruption in business, breakdown,
import/export restrictions or other governmental restrictions, lack of means of
transport, obstruction in transport, vital repair or maintenance, limited or no
availability of labour / raw materials / half‐finished
goods / ancillary materials / packaging / transport materials, or a breakdown
in, or shortage of, public facilities.
7.3
In
the event of force majeure, CROWN COATING INDUSTRIES is entitled to suspend performance of the
part of the Contract that cannot be performed for a period of up to three
months. If force majeure continues beyond the period of three months, or if and
insofar as it is already clear ly established that
compliance will continue to be impossible due to force majeure, CROWN COATING INDUSTRIES is
entitled to terminate the part of the Contract that cannot be performed by
written notice to that effect, without thereby incurring any liability to the Client.
7.4
If
when force majeure occurs CROWN COATING INDUSTRIES has already fulfilled part of its obligations
or can only fulfil part of its obligations, the Client must pay a proportionate
part of the total price for this performance as though it were a separate Contract.
7.5
The
Client may not rely on Book 6 Article 265 (2) of the Dutch Civil Code.
8 Inspection and
compliance with specifications
8.1
To
mitigate any loss, the Client should inspect the goods for any defects prior to
their use, processing, transport, storage or sale (‘the Application’)to
ascertain that the delivered goods comply with all contractual requirements
(‘the Specifications’). The Application of the products without prior
inspection constitutes unconditional acceptance of the products, such that the
right to bring any claim alleging any defect to such goods will be lost.
Application
of the products must comply with legislation and regulations that apply in the
location of their destination, and is at the expense and risk of the Client.
The Client must ascertain and ensure that the packaging,
user information, and/or labelling complies with government regulations
applying in the country of destination. The Client indemnifies CROWN COATING INDUSTRIES against
all claims arising from failure to comply properly or at all with these provisions.
8.2
Any
complaint about the products must be in writing and must have been received by CROWN COATING INDUSTRIES
within two days following the delivery date in respect of a defect, breach, or
deficiency that could be identified by a reasonable inspection of the products
on delivery, and no later than two days after the date on which all other
defects were discovered or could have been
discovered, and in any event no later than three months after receipt of the
products, failing which the right to any remedy is lost.
8.3
If
when the Client checks the quality of the products it notices discrepancies, it
must immediately notify CROWN COATING INDUSTRIES in writing of this fact, indicating the results
of the analysis and preserving the sample or samples used for the analysis. The
Client must take three new samples and make these available to CROWN COATING INDUSTRIES. CROWN COATING INDUSTRIES
is entitled to have samples taken from the Client by an independent third party
and to have these analysed. The cost of taking and analysing these samples will be borne by the party whose
position is proved to be wrong.
8.4
Establishing whether at the time of
their delivery the delivered products meet the Specifications is achieved
solely by carrying out an analysis in accordance with the relevant law or using
methods applicable to the Contract.
8.5
Except
as provided for by section 3, any samples supplied to the Client are supplied
solely for information purposes and imply in no way any explicit or implicit
conditions or guarantees of any kind whatsoever concerning, for example, quality, description, saleability,
or suitability for a certain purpose, and the Client is deemed to have
sufficiently investigated these matters before ordering the products.
8.6
A defect
in an identifiable part of the delivered products does not give the Client
the right to refuse to purchase the entire delivery
of the products. A complaint does not relieve
the Client of its payment
obligations as defined in Article 13. Upon receipt of a notice of a defect, CROWN COATING INDUSTRIES
is entitled to suspend further deliveries until the cause of the complaint has
been establ ished or until
the defect has been fully rectified.
8.7
The
Client must not return delivered goods to CROWN COATING INDUSTRIES without the prior written
consent of CROWN COATING INDUSTRIES.
8.8
Transport
and other costs incurred in returning goods are the liability of the Client
unless and insofar as, having inspected the goods, CROWN COATING INDUSTRIES
acknowledges liability for any defect to them.
8.9
If
it discoveries any deficiency in the goods supplied or work carried out, the
Client must take all possible steps to prevent or restrict loss, or further loss, including ceasing to use,
process, re‐process, or trade in the goods or work.
8.10 Any
breach of the provisions of this article will lead to the Client forfeiting any
right to complain. If the Client acts in breach of generally accepted or
prescribed measures, or fails to comply properly, in time, or at all with any
obligation to CROWN COATING INDUSTRIES under the Contract, the Client also forfeits a right to complain.
8.11
The
Client has no right to suspend its payment obligations in the event that it
exercises its right to complain.
9 Limited guarantee
9.1
Article
4 of these General Conditions is deemed to be incorporated here in full.
9.2
If
and insofar as pursuant to Article 8 of these General Conditions it is
established that certain products do not meet the Specifications, then within a
reasonable period CROWN COATING INDUSTRIES can either replace the defective goods free of charge,
or credit the value of those goods in part or in full as at their original
invoice price, at its discretion. The products are only suitable for use i n accordance with the product information supplied by CROWN COATING INDUSTRIES.
9.3
Where
a Contract pertains to a part of the delivered goods or work carried out that
are defective, such Contract shall remain fully enforceable as regards the
goods or work that are not defective.
10 Retention of title
10.1
All
goods delivered or to be delivered remain the property of CROWN COATING INDUSTRIES until all
claims of CROWN COATING INDUSTRIES against the Client, including future claims, such as, but not
limited to, the claims referred to in Book 3 Article 92 (2) of the Dutch Civil
Code, have been paid in full.
10.2
Until
title to the goods has transferred to the Client, the Client is not permitted
to pledge, dispose of, process/incorporate, or grant any other right to any
third party in respect of, those goods. The Client undertakes to assist CROWN COATING INDUSTRIES
on demand in the creation of a right of pledge on the claims that the Client
acquires at any time as a result of the onward delivery of the goods to the
Client’s purchasers. If the Client grants credit to any third party in this
regard, it must stipulate a retention of title as
against such third parties in a written contract on the basis of the provisions
of this article.
10.3
The
Client must treat goods delivered under a retention of
title with the required duty of care and identify them as being the property of CROWN COATING INDUSTRIES.
10.4
CROWN COATING INDUSTRIES
is entitled to recover from the Client at the Client’s risk and expense goods
still in the possession of the Client that are subject to the retention of
title if the Client is in breach of its payment obligations or is in difficulty
with making payment or such difficulty is a possibility. The Client must provide CROWN COATING INDUSTRIES at all times
with free access to its land and buildings to inspect the goods and/or to
exercise its rights.
10.5 Products
found on the Client’s premises of the type sup plied by CROWN COATING INDUSTRIES to the Client
are presumed to be the property of CROWN COATING INDUSTRIES until such time as the Client has met
its payment obligations to CROWN COATING INDUSTRIES (purchase price, interest, and costs).
10.6
The
property‐law consequences of the retention of
title are also governed by the law applying at the time of delivery of the
goods subject to the retention of title in the place where such goods are kept. The term ‘time
of delivery’ means the time at which
the Client has control over the goods,
having regard also to the provisions of Article 6 of these General Conditions. The retention of title also applies to goods produced from the
goods subject to the retention of title.
10.7
If
a third‐party attachment order is secured
against the Client’s property and on goods subject to a
retention of title, or in the event of a moratorium and/or the
insolvency of the Client, the Client must immediately notify the receiver or
bailiff securing the attachment order of the fact of the retention of title.
The Client must then take all necessary steps to ensure that such an attachment
order is lifted.
10.8
If the rights under
the retention of title cannot
be exercised for any reason
whatsoever, or in the event
of any other attributable breach
by the Client, CROWN COATING INDUSTRIES is entitled at any time to choose either to require compliance with
the terms of the Contract or to terminate the Contract without the need for a
court order , in either case without prejudice to its
rights to claim compensation for loss, including loss of profits, storage
costs, transport, customs duties, etc.
10.9
The
Client has no lien on the goods supplied by CROWN COATING INDUSTRIES.
10.10
Article
18.1 of these General Conditions is deemed to be incorporated here in full.
10.11
Some countries have their own / specific
retention of title as, for example, set out in the addendum to these General
Conditions, that applies to the exclusion of, or additional to , the retention
of title set out above.
10.12
The
said provisions are without prejudice to the other rights of CROWN COATING INDUSTRIES.
11 Pledge
11.1
In
respect of delivered goods the ownership of which has passed to the Client
following payment and which are still in the possession of the Client, CROWN COATING INDUSTRIES
retains now for such future occasion a non‐possessory pledge
as security for any claims that CROWN COATING INDUSTRIES may have against the Client for whatever
reason . The Contract between CROWN COATING INDUSTRIES and the Client
constitutes a deed of pledge as defined by Book 3 Article 237 of the Dutch
Civil Code.
11.2
The
Client has no lien in respect of products supplied by CROWN COATING INDUSTRIES enforceable
against CROWN COATING INDUSTRIES.
11.3
CROWN COATING INDUSTRIES
has a right of pledge and a lien on all goods, documents, and moneys in the
possession of CROWN COATING INDUSTRIES at any time and under whatever title, in respect of all
claims that it may have at any time against the Client. CROWN COATING INDUSTRIES has a right of
pledge and a lien against any party that requires the handing over of goods,
documents, or moneys.
11.4
CROWN COATING INDUSTRIES
may also exercise the rights set out in this article in respect of the
continuing liability of the Client to CROWN COATING INDUSTRIES in connection with the above,
and/or orders already supplied.
12 Consultancy
12.1
If
and insofar as the Contract also includes the supply of support and advice to
the Client by CROWN COATING INDUSTRIES, the provisions of Article 12 of these General Conditions
apply. In the event of any conflict with the other provisions, the provisions
of Articles 12.1 to 12.4 take precedence.
12.2
The
instructions to provide support and advice impose upon CROWN COATING INDUSTRIES no more than a
best‐endeavours obligation.
There is no guarantee that any desired result will be achieved.
12.3
Advice
given by CROWN COATING INDUSTRIES is intended solely for the Client. No third party may derive
any rights from advice given by CROWN COATING INDUSTRIES.
12.4 The Client is not
permitted to disclose or make available to any third party the content of
advice and other written or oral information supplied by CROWN COATING INDUSTRIES without the
prior written consent of CROWN COATING INDUSTRIES.
13 Payment
13.1
All
payments must be made within thirty days of the invoice date unless agreed
otherwise, in the currency specified on the invoice, and by transfer to the b ank account number stipulated by CROWN COATING INDUSTRIES, unless CROWN COATING INDUSTRIES
stipulates a different method of payment. CROWN COATING INDUSTRIES is entitled to require payment
in advance of all or part of the sum due, or some form of guarantee for payment.
13.2
CROWN COATING INDUSTRIES
is entitled to invoice separately for part deliveries.
13.3
If
payment is not made in time, the Client is automatically in breach by virtue of
such late payment alone. In such a case, interest is payable on the sum
invoiced at the rate of 1% per month, calculated as from the final date for
payment up to and including the date on which payment is made, whereby a part
month is deemed to be a whole month for the purposes of such calculation.
13.4 If
payment is not made on time, the Client is liable for extrajudicial enforcement
and other costs. Extrajudicial enforcement costs are fixed at 15% of the debt
to be enforced, or $250, excluding VAT, whichever is more.
13.5
The
Client waives any right to set off and/or suspension in respect of sums owed by
either party to the other.
13.6 CROWN COATING INDUSTRIES
is entitled to set off all its liability to the Client against the liability at
any time of the Client and/or any associated enterprises of the Client to CROWN COATING INDUSTRIES,
whether or not due and payable, conditional, or time limited.
13.7
The
full amount invoiced becomes immediately due and payable if payment is not made
by the final date of an agreed payment period, or if the Client becomes
insolvent, applies for a full or provisional moratorium, is made subject
to a debt rescheduling arrangement if an application is made to place the Client
in receivership, if any attachment order is secured upon the goods or claims of
the Client, if the Client dies, or goes into liquidation, or the Client’s
business is wound up. If any such situation arises, the Client must immediately
notify CROWN COATING INDUSTRIES of this fact.
13.8 Payments
made by the Client will first be applied to clear any liability for costs, then
any accrued interest, and finally to clear the principal sums invoiced,
beginning with the oldest debt, even if the Client stipulates that the payment
is to be used to clear a more recent invoice or other liability.
13.9 On
demand by CROWN COATING INDUSTRIES, the Client must provide payment guarantees or security for
payment of the purchase prices owed by the Client to CROWN COATING INDUSTRIES (including interest
and costs), in respect of goods delivered by,
or to be delivered by, CROWN COATING INDUSTRIES
to the Client pursuant to confirmation of an
order.
14 Termination
14.1 Unless
agreed otherwise in writing, CROWN COATING INDUSTRIES is entitled to terminate all or any part of
the Contract at any time, without the nee d to give a reason, and with
immediate effect. In such a case, CROWN COATING INDUSTRIES is not liable for any loss suffered by
the Client as a result of the termination.
14.2
The
Client has no right to terminate. If and insofar as the Client is in breach of
this provision by terminating all or any part of the Contract, it becomes
liable for all loss thereby incurred by
CROWN COATING INDUSTRIES, including, but not limited to, costs, work carried out by CROWN COATING INDUSTRIES, and
loss of profits, plus turnover tax thereon.
14.3
If
the Client terminates the Contract in breach of this article, it is immediately
liable to pay a penalty of 50% of sums invoiced and to be invoiced, being not
less than $10,000, without prejudice to the right of CROWN COATING INDUSTRIES to claim
compensation for the full extent of its loss.
15 Limitation of liability
15.1
Apart
from its obligation to replace or give credit for goods as set out in Article
9.2 of these General Conditions , under no circumstances
is CROWN COATING INDUSTRIES liable to the Client or any other natural person or legal entity for
any other or additional liability including direct , special or commercial
loss, or indirect or consequential loss (such as loss of turnover, financial
loss, loss due to delays, loss of goodwill, or damage to reputation).
15.2 CROWN COATING INDUSTRIES
is not liable for any sum greater than the amounts invoiced that are paid by
the Client to CROWN COATING INDUSTRIES in respect of defective products, plus transport costs if
these were incurred by the Client, and such liability will not exceed the
amount that is paid out under any liability insurance policy taken out by CROWN COATING INDUSTRIES.
15.3
CROWN COATING INDUSTRIES
is not liable for loss caused by its employee or any third party it engages,
except in the case of deliberate act or gross negligence on the part of CROWN COATING INDUSTRIES.
15.4 CROWN COATING INDUSTRIES
is not liable for loss caused by advice, recommendations or consultancy work as
described in Article 12 that is supplied to the Client. The Client indemnifies CROWN COATING INDUSTRIES
for any third ‐party
claims in the widest interpretation of these
words.
15.5
Loss
resulting from damaged or destroyed packaging is at the expense and risk of the Client.
15.6 If
on the basis of facts or circumstances known by CROWN COATING INDUSTRIES at that particular time CROWN COATING INDUSTRIES
exercises a right to suspend or terminate the Contract, even tho ugh it is later irrevocably proved that such right was
not validly exercised, CROWN COATING INDUSTRIES is not liable for this and not obliged to pay any
compensation for loss, except in the case of a deliberate act or gross
negligence on its part.
15.7
The
Client waives, and will indemnify CROWN COATING INDUSTRIES in respect of, any claim in the widest
interpretation of this term, insofar as such claim exceeds the amount invoiced
or the amount insured. The Client will compensate, defend, and indemnify CROWN COATING INDUSTRIES
and its associated enterprises , directors, managers, and employees in respect
of claims howsoever arising, and against any costs or expenses, including
reasonable legal costs, attorneys’ fees, and other costs incurred in resolving
disputes, in respect of the physical injury, sickness, or death of any person,
or damage to property or the environment, resulting from or connected with the
unloading, storage, handling, purchase, use, sale, or disposal of a product by
the Client.
15.8
The
Client accepts liability for loss resulting from the application of the
products. The Client will indemnify and compensate CROWN COATING INDUSTRIES in respect of all
loss and costs arising from or connected with the Client’s Application and/or
the use by the Client of information shared or supplied by or on behalf of CROWN COATING INDUSTRIES.
The Client indemnifies CROWN COATING INDUSTRIES against any third‐party claim in
the widest interpretation of such terms.
15.9
Without
prejudice to the provisions of Article 9 of these General Conditions, any claim
in court by the Client will be inadmissible unless (i)
the Client has first notified CROWN COATING INDUSTRIES in writing of an alleged claim against CROWN COATING INDUSTRIES
within 30 days of the situation to which the complaint relates first becoming
known to the Client, and (ii) any court proceedings are actually issued by the
Client against CROWN COATING INDUSTRIES within twelve months following this said written notice.
15.10
The Client indemnifies CROWN COATING INDUSTRIES, its
employees, and any third party it engages against any third ‐party claim, including
a product liability claim, related to the performance of the Contract and/or
any negligent act by CROWN COATING INDUSTRIES, irrespective of the cause, and against any costs
for which CROWN COATING INDUSTRIES is thereby held liable.
15.11
CROWN COATING INDUSTRIES
is not liable for:
-
products
delivered in connection with applications for silicone implants;
-
loss
suffered by a third party caused by, or a consequence of, or connected with,
products delivered in connection with applications for silicone implants;
-
products
supplied directly to the animal feed industry;
-
loss
suffered by a third party caused by, or
a consequence of, or connected with,
supplies to the animal feed industry;
-
claims
arising from errors, defects and/or negligence relating to designs,
calculations or advice;
-
claims
arising from loss caused by or in connection with asbestos, foam and resins, or
formaldehyde;
-
pure
financial loss;
-
product
recall costs;
-
product
guarantee, with the exception of the provisions in Article 4.2 and 9;
-
environmental
contamination and any long‐term effects thereof including
contamination and/or harm to the soil, air , or water, including in the case of
a sudden and uncertain situation;
-
punitive
and/or exemplary damages, or treble damages;
-
industrial
diseases, employers liability en employees’ compensation;
-
motor
vehicle liability;
-
toxic
mould, latex, silica and welding rods;
-
risk of terrorism.
16 Intellectual
property rights
16.1
All
intellectual and industrial property rights pertaining to the goods and their
configuration, and to goods that CROWN COATING INDUSTRIES develops or uses in the performance of
the Contract, whether or not as instructed by,
or at the expense of, the Client, accrue to CROWN COATING INDUSTRIES, except insofar as
they belong to any third party or there is written agreement otherwise. Such rights apply to goods including, but not
limited to, drawings, calculations, descriptions, models, tools, systems, software,
equipment, methods, inventions, ancillary materials, formulae, and product
processes produced or supplied by CROWN COATING INDUSTRIES.
16.2
No
part of the drawings, calculations, software, equipment, working methods,
inventions, and other items listed in section 1 of this article may be copied,
published, or shown or supplied to any third party, without the written consent
of CROWN COATING INDUSTRIES. The term ‘third party’ here
includes all persons employed within the organisation
of the Client who do not necessarily
require access to the relevant items.
16.3
The
Client is not permitted to remove or alter any reference to copyright,
trademark rights, trading names or other intellectual or industrial property
rights on drawings, calculations, descriptions, models, tools, systems,
software, equipment, working methods, inventions, formulae, production
processes, or other goods, including references to the confidential nature of
such items and the secrecy thereof.
16.4 CROWN COATING INDUSTRIES
has not investigated any possible third‐party
intellectual property rights which could be infringed by the sale and supply of
the products, and CROWN COATING INDUSTRIES cannot be held liable for any loss ( or compensation) in the event of any such infringement.
16.5 No
licence in respect of intellectual property rights
protecting the composition or application of the products can be inferred from
the sale or supply of such products , and the Client
expressly accepts all risks associated with a possible infringement of
intellectual property rights arising from the import and/or application of the
products.
17 Representation
If the Client acts on behalf of one or more third
parties, it remains nevertheless fully liable to CROWN COATING INDUSTRIES as if it were itself
the ultimate client.
18 General provisions
18.1 If
and insofar as any provision of these General Conditions is partly or entirely
void, voidable, invalid, or unenforceable under current legislation, the other
provisions will remain fully binding and enforceable as between the parties to
the Contract. Any void, voidable, invalid, or unenforceable provision will be
replaced by a comparable provision on the basis of Dutch law, having regard to
the content, purpose, and scope of the void or voidable provision. Any void,
voidable, invalid, impermissible, or unenforceable provision relating to collateral
security (including, but not limited to, a pledge, lien, or retention of title)
will be replaced by comparable provision on the basis of the law of the country
in whose territory the goods are located, having regard to the content,
purpose, and scope of the void, voidable, impermissible, or unenforceable provision.
18.2
The
headings to articles, sections, parts, and paragraphs of the Contract and these
General Conditions are for ease of reference only and have no force of law.
They do not define, limit, or describe in any way the nature, scope, and extent
of the relevant article, section, part, or paragraph.
18.3 Offers,
contracts, and successive contracts, and the performance thereof by CROWN COATING INDUSTRIES, are
governed by the most recent version of the Universal Commercial Code.
18.4
Any
dispute between CROWN COATING INDUSTRIES and the Client will be determined exclusively by the Common
Pleas Court of Clermont County, Ohio, U.S.A., or when applicable, U.S. Federal
Court, Southern District of Ohio, at Cincinnati, Ohio,, without prejudice to
the right of CROWN COATING INDUSTRIES either
(i) to bring the dispute
before the court with jurisdiction for the relevant business address of CROWN COATING INDUSTRIES
in a foreign country, or (ii) to submit the dispute to arbitration proceedings
in accordance with the Arbitration
Rules of the International Chamber of Commerce (ICC) before one or more arbitrators
appointed in accordance with such Rules, (to be conducted in English, with the
hearing to take place in Cincinnati, Ohio), and the parties hereby agree to the
jurisdiction of such court or, if CROWN COATING INDUSTRIES
so elects, of such arbitrators, and hereby waive any objection they may have at
any time in the future to such forums for the resolution of any such dispute.
18.5
All
Contracts entered into by CROWN COATING INDUSTRIES are governed by Ohio law. The application of
the United Nations Convention on Contracts for the International Sale of Goods
( The Vienna Sales Convention) to all Contracts to which CROWN COATING INDUSTRIES is a party is
hereby expressly excluded.
18.6
In
the event of any dispute concerning the interpretation of these General
Conditions, the interpretation of the English version hereof is binding.
Addendum:
Special conditions governing retention
of title abroad
This addendum
applies only to the countries listed below and is therefore not a complete
list. The other provisions of these General Conditions remain fully
enforceable.
Retention of title in Germany
Das Eigentum an den gelieferten Waren bl eibt
zur Sicherung aller Ansprüche vorbehalten, die uns aus der gegenwärtigen und künftigen Geschäftsverbindung bis zum Ausgl
eich aller Salden gegen den Abnehmer
und seine Konzerngesellschaften zustehen.
Unser Eigentum erstreckt sich auf die durch Verarbei tung
der Vorbehaltsware entstehende
neue Sache. Der Abnehmer stellt die neue Sache unter
Ausschluss des eigenen Eigentumserwerbs für uns her und verwahrt sie für uns. Hieraus
erwachsen ihm keine Ansprüc he gegen uns. Bei einer Verarbeitung unserer Vorbehaltsware
mit Waren anderer Lieferanten, deren Eigentumsrechte sich ebenfalls an der neuen Sache fortsetzen,
erwerben wir zusamme n mit diesen
Lieferanten – unter Ausschluss eines Miteigentumserwerbs des Abnehmers
‐ Miteigentum
an der neuen Sache, wobei unser M iteigentumsanteil
dem Verhältnis des Rechnungswertes unserer Vorbehaltsware zu dem Gesamtrechnungswert aller mitverarbeiteten Vorbehaltswaren.
Der Abnehmer tritt bereits jetzt seine Forderungen aus der Veräußerung von Vorbehaltsware a
us unseren gegenwärtigen
und künftigen
Warenlieferungen mit sämtlichen Nebenrechten im Umfang unseres Eigentumsanteils zur Sicherung an uns ab. Bei Verarbeitung im Rahmen eines
Werksvertrages wird die Werklohnforderung in Höhe des anteiligen Betrages unserer Rechnung für die mi tverarbeitete Vorbehaltsware schon jetzt an uns abgetreten.
Solange der Abnehmer
seinen Verpflichtungen aus der Geschäftsverbindung an uns ordnungsgemäß nachkommt, darf er über
die in unserem Eigentum stehende Ware im ordentlichen Geschä ftsgang verfügen un d die an uns abgetretenen Forderungen selbst einziehen. Bei Zahlungsverzug oder begründeten Zweifeln an der Zahlungsfähigkeit oder Kreditwürdigkeit des Abnehmers sind wir berechtigt, die abgetretenen Forderungen einzuziehen und die Vorbehaltsware zurückzunehmen.
Scheck‐/Wechselzahlungen gelten erst nach Einlösung
der Wechsel durch den Abnehmer als
Erfüllung. Hinsichtlich der
Vereinbarung von Eigentumsvorbehaltsrechten
gilt ausschließlich deutsches
Recht.
Retention of title in France:
La propriété des biens délivrés ne sera transférée qu’au moment du paiement intégral du prix.
Retention of
title in Belgium:
Ownership of the goods delivered does
not transfer until payment for the goods has been made in full
, or, in French: La propriété des biens délivr és
ne sera transférée qu’au
moment du paiement intégral
du prix.
Retention of title in the United Kingdom:
CROWN COATING INDUSTRIES
remains the owner of all goods supplied to the Client until such time as
payment has been received in full from the Client. The goods shall remain the
property of CROWN COATING INDUSTRIES and the Client shall store them so that they are readily
identifiable as CROWN COATING INDUSTRIES’s goods, until such time as payment for them and for all
other goods agreed to be sold to the Client has been received in full. If the
goods have been resold, CROWN COATING INDUSTRIES’s beneficial entitlement shall be attached to
the proceeds of the re ‐sale and will be able to claim the full
purchase price of the proceeds received. Where ownership of any goods remains
vested in CROWN COATING INDUSTRIES, then CROWN COATING INDUSTRIES shall be entitled to repossess any goods supplied
at any time. CROWN COATING INDUSTRIES may for the purpose of recovering its goods enter upon any
premises where they are stored or where they are reasonably thought to be
stored and may repossess the same. It is the sole responsibility of the Client
to ensure that all goods received from CROWN COATING INDUSTRIES are fully insured against any
eventually including, but not limited to, fire, theft, flooding, etc, until such time as ownership of the said goods has
passed to the Client. Should goods become damaged in any way after they have
been received by the Client, the Client will be liable to pay to CROWN COATING INDUSTRIES the
full purchase price of the goods.