1.1 In the case of inconsistency between the Seller’s written confirmation and terms in any form of Contract sent by the Buyer to the Seller the terms and conditions of the Seller’s written confirmation shall prevail.
1.2 This confirmation contains the entire bargain between the Seller and the Buyer. The buyer’s conditions of purchase (if any) or other terms and conditions shall not be recognised or deemed to form part of this Contract unless expressly accepted in writing signed by a Director of the Seller. No variation of the terms of these Conditions of Sale shall be binding upon the Seller unless made in writing by a Director of the Seller.
1.3 German law will be the basis of these terms and conditions and of any sale made. Court of jurisdiction is Hamburg, Germany.
2. Delivery Dates
2.1 In case of a contract without a fixed date for delivery it is understood that delivery specifications will be supplied within such time as to enable the whole to be delivered within twelve months of the date of the contract. If these conditions are not observed, the balance of the contract may be cancelled and damages claimed at the choice of the seller after due notification by the Seller to the Buyer, unless the balance is renewed by mutual consent.
2.2 Delivery dates are binding upon the Buyer and Seller but no claims by the Buyer for loss caused by late delivery will be accepted by the Seller provided that the goods are delivered within 14 days following the agreed delivery dates.
3. Force Majeure
Deliveries may be suspended or deferred in the case of stoppage caused by circumstances beyond the control of either party including fire, strikes, lock-outs, civil commotions, labour disputes, whether at sea or by force majeure.
4.1 Normal terms of payment are prompt at the date of invoice. Where different terms apply these will be notified in writing.
4.2 If the buyer does not pay on the day when payment is due the Seller shall be entitled to interest from the due date for payment until payment is actually made at the rate of 3% above the rate charged from time to time by our bankers.
4.3 In addition to the seller’s remedies under Clause 4.2 if any payments due to the Seller by the Buyer are not made on the due dates the Seller reserves the right to cancel or suspend the whole of this contract (or such goods not already delivered) and to cancel or suspend any other contract existing between the parties at the date of such default without being liable for consequential loss. The Seller shall also be entitled to require immediate payment for all goods delivered under any other contracts.
4.4 The Buyer shall not be entitled to withhold payment of any amount payable under this contract to the Seller because of a disputed claim of any nature nor shall the Buyer be entitled to offset against any amount payable under this contract to the Seller.
5. Passing of Property and Risk
5.1 Without prejudice to any of the Seller’s other rights under the agreement between the parties and not withstanding delivery of any goods the property and title in the goods supplied by the Seller to the Buyer shall remain in the Seller until the Buyer has paid in full therefore. If the price is payable in instalments or part only the price has been paid to the Seller may appropriate the payment to any part of those goods which have been so delivered and title to that part shall there upon pass.
5.2 If any payment is overdue in whole or in part the Seller may (without prejudice to any of his/her other rights) recover or resell the goods or any of them and may enter upon the Buyer’s premises for that purpose.
5.3 If any of the goods are incorporated in other goods before such payment the property of the goods delivered by the Seller shall nevertheless be and remain with the Seller until such payment has been made.
5.4 Until title of the goods passes to the Buyer, the Buyer shall store the goods as bailee in a fiduciary capacity for the Seller, shall ensure that the goods remain at all times separately identifiable as the property of the Seller, and shall return the goods to the Seller on request.
5.5 In the event that any goods delivered under this Contract are sold by the Buyer then the Buyer shall so sell as agent for the Seller and shall be trustee for the Seller of such part of the proceeds of sale thereof as represents the Buyers indebtedness to the Seller for such goods until such time as the Seller shall have paid in full for such goods.
5.6 If the Buyer makes a voluntary arrangement with its creditors or becomes subject to an examination order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction) or an encumbrancer takes possession, or a receiver is appointed over any of the property or assets of the Buyer ceases, or threatens to cease, to carry on business, or the Seller reasonably apprehends that any of the aforementioned events is about to occur in relation to the Buyer and notifies the Buyer accordingly then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Seller and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
5.7 Notwithstanding the provision in sub-clauses 5.1 to 5.6 the goods shall be at the risk of the Buyer from the time when they cease to be in possession of the Seller and in particular when they are delivered into the possession or custody of a carrier, forwarding agent, warehouseman, or other bailee or agent for the purpose of transmission whether such person is in contract with or instructed by the Seller of the Buyer. The Buyer shall, while in possession and control of any goods which are the property of the Seller, keep the goods fully insured and any monies received by the Buyer on foot of any insurance policy in respect of damage, deterioration, loss or destruction of the goods shall be held in trust for the Seller.
5.8 If any provision of these conditions is adjudged by any Court of competent jurisdiction to be void or unenforceable in whole or in part, the validity of the other provisions of these conditions and the remainder of the provisions shall not be affected thereby.
5.9 For German and Austrian customers we highlight special sales conditions called “Verkaufsbedingungen in Bezug auf den Eigentumsvorbehalt”. These special sales conditions are attached in the adjoining document and are an integral part of the Our Terms and Conditions of Sale.
6. Disputes and Provision for Testing
In the case of disputes as to weight, composition or condition, the fiber shall be tested by an agreed independent Textile Testing Institute or Laboratory.
7.1 Faults apparent in the state of the fiber must be notified by the Buyer to the Seller before putting the fiber into work. After the fiber has been processed, claims cannot be accepted.
7.2 The Seller, on giving due notice to the Buyer, has the right to replace rejected fiber if he is able to do so within the original time of delivery and free of all expenses to the Buyer.
7.3 A total divergence of 10% in delivered weight is admissible against the total weight of contract.
7.4 Rejection of fiber forming part of any contract shall apply only to that particular delivery and shall not validate the remainder of the contract of which it forms a part.
8. Disclaimer of Warranties
8.1. To the fullest extent permissible by law, the Seller hereby disclaims all warranties except those under section 7, whether express or implied, with respect to the goods, including those of merchantability, non-infringement, or fitness for a particular purpose and Buyer hereby waives any and all claims arising therefrom. All statements (whether written or oral), drawings, photographs, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods described in them. They will not form part of the contract and may not be relied upon by the buyer.
8.2. To the fullest extent permissible by law, the Seller shall not be liable, in contract, tort or otherwise, and irrespective of the negligence of the seller, its agents or employees, for any representations, advice or assistance given (under the contract or otherwise, and whether before or after the date of the contract) by or on behalf of the Seller in connection with the goods or the contract, unless and then only to the extent that the Seller has made such representations, and/or agreed to provide such advice or assistance, for a fee under a separate written contract with the buyer.
9. Limitation of Liability
9.1. To the fullest extent permissible by law and without prejudice to any other limitation of the Seller's liability (whether effective or not):
a) in no circumstances whatever shall the seller be liable (in contract, tort or otherwise, and irrespective of any negligence or other act, default or omission of the Seller or its employees, agents or sub-contractors) for any: (i) loss of goodwill, business or revenue or anticipated savings; (ii) loss of reputation; (iii) loss of profits or anticipated profits or use or costs; (iv) expenses incurred by the buyer (including any legal costs and expenses) in attempting to enforce any of its rights under this contract; (v) indirect, special or consequential losses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or are in connection with the goods of the contract; (vi) any third party claims, in connection with the goods, substandard and testing goods or the contract, especially but not limited to claims for injury to person or property; or (vii) any liability for Buyer's inability to obtain substitute goods in the market.
b) the Seller's total aggregate liability in connection with the goods or the contract (in contract, tort or otherwise and whether or not related to any breach of statutory duty, misrepresentation, negligence or other act, default or omission of the seller or its employees, agents or sub-contractors including but without limitation negligence arising under or in connection with the contract), is limited to the contract price for the goods concerned excluding vat and all other duties fees or taxes and all costs or charges in relation to transport and insurance.
9.2. To the fullest extent permissible by law and without prejudice to the Seller's warranty, the Buyer's sole remedy shall be in damages.
9.3. The Seller's warranty is in substitution for any other warranties, obligations, representations, liabilities, rights, terms or conditions (whether they are express or implied, or arise in contract, tort, common law, statute or otherwise, and irrespective of the negligence of the seller, its employees, agents or sub-contractors) in connection with the goods (including, without limitation, any relating to condition, performance, satisfactory quality, fitness for purpose, conformity with description or sample, care and skill or compliance with representations, but excluding implied statutory warranties relating to title), and all such warranties, obligations, representations, liabilities, rights, terms or conditions are to the fullest extent permitted by law hereby expressly excluded and the Buyer hereby acknowledges that it shall have no claims arising therefrom.
9.4. No action may be brought against the Seller in connection with the goods or the contract unless proceedings are issued against the Seller within sixty days after the Buyer became or ought to have become aware of the circumstances giving rise thereto.
9.5. Nothing in this contract shall operate to limit or exclude either party's liability for any of the following: a) death or personal injury caused by that party's gross negligence or that of its employees, agents or subcontractors; b) fraud or fraudulent misrepresentation; or c) any other matter for which liability may not be limited or excluded by law.
9.6. This clause 9 applies notwithstanding any fundamental breach or breach of a fundamental term of the contract by the Seller.
10. Registered Trademark, Patents and Licenses
PyroTex® is a registered trademark and a licensed product. PyroTex Industries GmbH will initiate legal proceedings for trademark, patent and/or license infringement to prevent unauthorized use of that trademark, patent and/or license and/or any mention and/or implication to that trademark, patent and/or license in any publications, licenses, patents etc. worldwide