GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY

  1. Scope of Application

    Sales and deliveries by PolyCine GmbH (“PolyCine”) shall be made exclusively in accordance with the following General Terms and Conditions of Sale and Delivery (“Terms of Delivery”), which the purchaser accepts upon placing an order or receiving delivery. These Terms of Delivery shall also apply to any future transactions with the purchaser. The application of any conflicting or supplementary terms and conditions of the purchaser shall be excluded, even if PolyCine does not expressly object to such terms and conditions.

  2. Conclusion of Contract

    • 2.1 Offers by PolyCine shall be non-binding. A contract shall only be deemed concluded upon PolyCine’s written (including email) order confirmation and shall be governed exclusively by the contents of the order confirmation and these Terms of Delivery. Oral agreements or promises shall only be valid if an authorized employee of PolyCine has confirmed them in writing.
    • 2.2 PolyCine retains all rights in the sales documentation (in particular pictures, drawings, data on weight and size) and samples. They must not be made available to third parties and shall be returned to PolyCine without undue delay upon request.
    • 2.3 The field staff of PolyCine is not authorized to represent PolyCine. In particular, the field staff cannot conclude contracts and make binding promises concerning the goods to be supplied or other conditions.

  3. Delivery Periods and Dates

    • 3.1 Delivery dates and delivery periods shall only be binding if they have been agreed as binding in the contract and the purchaser has provided PolyCine with all information or documentation required for the performance of such delivery in a timely manner and has made any advance payments in the manner and amount as agreed upon by the parties. Delivery periods shall commence on the date of the order confirmation. In the event of additional or supplementary contracts entered into at a later date, the delivery periods and delivery dates shall be extended or rescheduled accordingly, as applicable.
    • 3.2 Events that are unforeseeable, unavoidable and outside the control and sphere of influence of PolyCine and for which PolyCine is not responsible, such as force majeure, war, acts of God or labor disputes, shall release PolyCine for the duration of such event from its obligation to make timely delivery and/or perform services timely. Delivery and performance periods and dates shall be extended or rescheduled, as applicable, for as long as the disturbance persists; the purchaser shall be informed of the occurrence of such disturbance in an appropriate manner. If the end of such disturbance is not foreseeable or if it continues for more than two months, either party may rescind the contract.
    • 3.3 If deliveries by PolyCine are delayed, the purchaser shall only be entitled to rescind the contract if PolyCine is responsible for the delay and a reasonable grace period set by the purchaser has lapsed to no avail.
    • 3.4 Should the purchaser be in default of the acceptance of delivery or should it be in breach of any other obligations to cooperate with PolyCine, PolyCine shall be entitled, without prejudice to its other rights, to reasonably store the goods to be supplied at the purchaser’s risk and expense or to rescind the contract in accordance with the statutory provisions.
    • 3.5 PolyCine may make partial deliveries for good reason if and to the extent this is reasonably acceptable for the purchaser.

  4. Shipment, Passage of Risk, Transport Insurance

    • 4.1 In the absence of any instructions by the purchaser, shipment shall be made using a reasonable method of shipment in the usual manner of packaging.
    • 4.2 The risk of casualty and/or loss of the goods shall pass to the purchaser (i) upon delivery of the goods to be supplied to the carrier commissioned by PolyCine, (ii) upon handover to the purchaser if the purchaser collects the goods to be supplied itself, or (iii) upon handover to a third party if a third party authorized by the purchaser collects the goods to be supplied. Should the purchaser be in default of acceptance, the risk shall pass to the purchaser upon the occurrence of the default. If collection of the goods to be supplied by the purchaser or a third party authorized by purchaser has been agreed, and delivery is delayed on grounds for which the purchaser is responsible, the risk shall pass to the purchaser on the date the purchaser is notified of the readiness of the goods to be supplied for shipment.
    • 4.3 A transport insurance shall be taken out only upon request and at the expense of the purchaser.

  5. Prices, Terms of Payment

    • 5.1 Unless the parties have agreed upon a certain price, the price shall be determined as set forth in PolyCine’s price list as applicable at the date of the conclusion of the contract.
    • 5.2 If the agreed delivery date is a date more than four months after the date on which the contract was concluded, and if, after conclusion of the contract, PolyCine has incurred unforeseeable cost increases beyond PolyCine’s control with regard to the goods to be supplied, PolyCine shall be entitled, at its reasonable discretion, to pass on such cost increase by increasing the agreed price on a pro rata basis.
    • 5.3 With regard to long-term contracts concluded with the purchaser, such as in particular long-term supply contracts, PolyCine shall be entitled to reasonably increase its prices with effect from the first day of January of any calendar year, if and to the extent PolyCine’s costs for the goods to be supplied increased during the previous calendar year. PolyCine shall inform the purchaser in writing of the intended price increase at least eight weeks before it will take effect.
    • 5.4 All prices of PolyCine are to be understood ex works in Schiffweiler, not including statutory VAT at the applicable rate nor any packaging and shipping costs, which will be charged separately. The purchaser shall bear any public charges, such as possible customs duties, that may be due in connection with the import of the goods to be supplied.
    • 5.5 PolyCine shall be entitled to issue partial invoices for partial deliveries as defined in Section 3.5 of these Terms of Delivery.
    • 5.6 Each invoice of PolyCine shall become due for payment without any deductions within 14 days from the invoice date; if this period for payment lapses unsuccessfully, the purchaser shall be in default. Payments by the purchaser shall only be deemed effected upon PolyCine’s receipt of such payment.
    • 5.7 In the event that the purchaser is in default, PolyCine shall be entitled to demand default interest at the applicable statutory rate. Any claims for further damages due to the default shall remain unaffected.
    • 5.8 The purchaser is only entitled to a set-off if its counterclaim is uncontested, ready for decision or has been finally adjudicated.
    • 5.9 The purchaser shall only be entitled to assert a right of retention to the extent that its counterclaim is based on the same contract and is uncontested, ready for decision or has been finally adjudicated.
    • 5.10 If, after the conclusion of this Agreement, PolyCine becomes aware of the risk of the purchaser’s insufficient ability to perform, PolyCine shall be entitled to make any outstanding deliveries contingent upon an advance payment or the provision of security. If such advance payments or security have not been made or provided even after the expiry of a reasonable grace period, PolyCine may partially or totally rescind individual or all of the affected contracts. PolyCine shall remain entitled to assert further rights.

  6. Retention of Title

    • 6.1 The goods to be supplied shall remain the property of PolyCine until payment has been received in full.
    • 6.2 In the case of current accounts, this retention of title shall serve as a security for the claim for the balance to which PolyCine is entitled.
    • 6.3 The purchaser shall only be allowed to sell the products subject to retention of title (“Products subject to Retention of Title”) within the scope of normal and proper business transactions. The purchaser may not pledge the Products subject to Retention of Title, grant chattel mortgages on them or make other dispositions endangering PolyCine’s title to such Products subject to Retention of Title. The purchaser hereby assigns its claims arising from the resale of the Products subject to Retention of Title to PolyCine, and PolyCine hereby accepts such assignment. Should the purchaser sell the Products subject to Retention of Title after processing or transformation or after joining or mixing them with other goods or together with other goods, the assignment of any claims shall only be agreed for an the amount equivalent to the price agreed between PolyCine and the purchaser plus a safety margin of 10% of this price. The purchaser is granted the revocable authorization to collect in trust the claims assigned to PolyCine in its own name. PolyCine may revoke such authorization and the right to resell the Products subject to Retention of Title if the purchaser is in default of the performance of material obligations such as making payment to PolyCine; in the event of such revocation, PolyCine shall be entitled to collect the respective claim itself.
    • 6.4 Any processing or transformation of the Products subject to Retention of Title by the purchaser shall always be performed for PolyCine. If the Products subject to Retention of Title are processed with other items, PolyCine shall acquire joint ownership of the new goods on a pro rata basis reflecting the value of the Products subject to Retention of Title as compared to the other processed items at the time of processing. In all other respects, the provisions applicable to the Products subject to Retention of Title shall also apply to the new items created by way of processing.
    • 6.5 If the Products subject to Retention of Title are joined or mixed with other items, PolyCine shall acquire the joint ownership of the new goods on a pro rata basis reflecting the value of the Products subject to Retention of Title as compared to the other items at the time of joining or mixing. Should the joining or mixing of the items occur in such manner that the purchaser’s product must be considered the main good, it shall be deemed to be agreed that the purchaser assigns proportionate joint ownership to PolyCine. The purchaser shall hold the joint ownership created in this manner in custody for PolyCine.
    • 6.6 The purchaser shall provide PolyCine at all times with all desired information concerning the Products subject to Retention of Title or the claims assigned to PolyCine under these Terms of Delivery. The purchaser shall notify PolyCine of any attachments of or claims to the Products subject to Retention of Title by third parties and shall provide the necessary documents in this regard without undue delay. The purchaser shall at the same time advise the third party of PolyCine’s retention of title. The costs of a defense against any such attachments and claims shall be borne by the purchaser.
    • 6.7 The purchaser shall be obliged to treat the Products subject to Retention of Title with care for the duration of the retention of title.
    • 6.8 Should the realizable value of the securities exceed all of PolyCine’s claims that are to be secured by more than 10%, the purchaser shall be entitled to demand a release to such extent.
    • 6.9 Should the purchaser be in default of material obligations such as payment obligations vis-à-vis PolyCine and should PolyCine rescind the contract, PolyCine may, notwithstanding any other rights, request surrender of the Products subject to Retention of Title and may use them otherwise to satisfy its matured claims against the purchaser. In such case, the purchaser shall grant PolyCine or PolyCine’s agents immediate access to the Products subject to Retention of Title and surrender the same.
    • 6.10 In case of deliveries to jurisdictions in which the foregoing provisions governing the retention of title are not enforceable, the purchaser shall use its best efforts to create equivalent security rights for PolyCine without undue delay. The purchaser shall cooperate in all measures such as registration, publication, etc., which are required for and beneficial to the validity and enforceability of such security rights.
    • 6.11 On PolyCine’s demand, the purchaser is obliged to appropriately insure the Products subject to Retention of Title, to provide PolyCine with the respective proof of such insurance and to assign the claims arising under such insurance to PolyCine.

  7. Quality, Purchaser’s Rights in case of Defects, Duty to Inspect the Goods

    • 7.1 Upon passing of the risk, the goods to be supplied shall be of the agreed quality; the quality shall exclusively be determined by the specific written agreements between the parties concerning their characteristics, features and specifications. Only deviations from the agreed quality shall be deemed defects of the goods to be supplied.
    • 7.2 Information provided in sales catalogues, price lists and any other information material provided to the purchaser by PolyCine as well as any other product descriptions shall not constitute a guarantee for any specific quality of the goods to be supplied under any circumstances; such specific guarantees as to quality or service life must expressly be made in writing.
    • 7.3 The purchaser’s rights in case of defects of the goods to be supplied shall require that it inspects the goods upon delivery and notifies PolyCine of any defects in writing without undue delay, but no later than one week following delivery; any hidden defects must be reported to PolyCine in writing without undue delay upon their discovery.
    • 7.4 In the event of any notification of a defect, PolyCine shall have the right to inspect and test the goods to be supplied to which objection was made. The purchaser will grant PolyCine the required time and opportunity to exercise this right. PolyCine may also require the purchaser to return the goods to which objection was made to PolyCine at PolyCine’s expense. Should the purchaser’s notification of a defect prove to be unjustified, and provided that the purchaser has realized or negligently failed to realize this prior to the notification regarding the defect, the purchaser shall be obliged to reimburse PolyCine for any and all costs incurred in this respect, such as travel expenses or shipping costs.
    • 7.5 PolyCine shall be entitled to remove defects at its option by supplying a defect-free replacement (“Subsequent Performance”), free of charge to the purchaser. The purchaser shall not be entitled to any further rights based on defects. PolyCine reserves the rights pursuant to Section 7.9.
    • 7.6 The purchaser shall give PolyCine reasonable time and opportunity required to effect the Subsequent Performance.
    • 7.7 Goods which have been replaced by PolyCine shall be returned to PolyCine upon its demand.
    • 7.8 The purchaser’s claims for defects shall be excluded in the event of any damage caused by natural wear and tear or due to reasons under the purchaser’s control.
    • 7.9 Should the Subsequent Performance fail, be not acceptable for the purchaser or if PolyCine refused the Subsequent Performance, the purchaser may, at its option and in accordance with the statutory provisions, rescind the contract or reduce the purchase price and/or claim damages pursuant to Section 8.
    • 7.10 The limitation period for the purchaser’s claims for defects shall be twelve months beginning with the handover of the goods to be supplied to the purchaser.

  8. Limitation of Liability, Damage Compensation

    • 8.1 PolyCine shall not be liable vis-à-vis the purchaser for any damage whatsoever, in particular not for any direct or indirect damage and/or consequential damage, lost profit and the failure to realize savings incurred by the purchaser or any third party in connection with sales and deliveries of PolyCine, unless this damage was caused willfully or by gross negligence. This limitation of liability shall apply for contractual and non-contractual or quasi-contractual claims, irrespective of the legal basis. This exclusion of liability shall also apply with respect to incorrect developments, incorrect manufacturing and installation, incorrect or negligent treatment, unsuited equipment and unsuited materials.
    • 8.2 The purchaser shall take all reasonable measures to avert and reduce damage.

  9. Product Liability

    If the purchaser sells the goods to be supplied, whether unchanged or changed, whether after processing, transformation, joining, blending or mixing with other goods, the purchaser shall indemnify PolyCine in their internal relationship against any product liability claims if and to the extent the purchaser was liable itself towards third parties.

  10. Final Provisions

    • 10.1 The purchaser may assign the rights arising from the parties’ contractual relationship to third parties only with PolyCine’s written consent.
    • 10.2 Amendments and supplements to the contract and/or these Terms of Delivery as well as any side agreements must be made in writing. The same shall apply to the amendment of this written form requirement.
    • 10.3 If a provision of the contract and/or these Terms of Delivery is invalid in whole or in part, this shall not affect the validity of the remaining provisions.
    • 10.4 Exclusive venue for all legal disputes arising from or in connection with the contractual relationship of the parties shall be the commercial court of the Swiss canton Zurich. PolyCine shall be entitled, however, to sue the Purchaser at any other court of statutory jurisdiction.
    • 10.5 These Terms of Delivery and the contractual relationship of the parties shall be governed by Swiss law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).