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Azelis Americas General Terms and Conditions of Sale

Azelis Americas General Terms and Conditions of Sale

1.      General

1.1    These general terms and conditions of sale (“General Conditions”) are applicable to every offer, quote, purchase order, order confirmation, invoice or agreement between any direct or indirect subsidiary of Azelis Americas, LLC (“Azelis”) and the purchaser (“Purchaser”), unless otherwise agreed in writing between the parties. In the event of any conflict between these General Conditions and any more specific conditions agreed in writing between the parties (“Specific Conditions”), the provisions of the latter shall prevail.

1.2    The General Conditions and the Specific Conditions shall hereinafter jointly be referred to as the “Agreement”.

1.3    Acceptance of the General Conditions implies that the Purchaser renounces in full the application of its own general terms and conditions (of purchase), which are rejected by Azelis. The Purchaser's own general terms and conditions (of purchase) shall not apply, even if Azelis does not expressly object to their validity. 

2.      Offers, orders and delivery

2.1    Except as otherwise indicated therein, offers remain valid for a period of 7 calendar days. An Agreement is only entered into between Azelis and the Purchaser once the Purchaser has accepted Azelis’ offer in writing, or, in the event no prior offer is made by Azelis, when Azelis has issued a written (purchase) order confirmation. 

2.2    Every purchase order from the Purchaser to Azelis shall be made in writing and shall be considered final and irrevocable.

2.3    The delivery of the products shall take place in accordance with the Incoterms (latest edition) stated in the Specific Conditions. Upon delivery of the products, the Purchaser shall immediately inspect and examine the delivered products. If the Purchaser discovers that a delivery of the products or part thereof has any defects which are apparent on reasonable visual inspection (e.g. transport damages and quantity), the Purchaser shall promptly notify Azelis in writing and shall provide reasons for such rejection. The Purchaser shall furthermore notify Azelis of any latent defects in writing within 7 calendar days following discovery and shall provide details thereof. Failure to make such claim within the aforesaid timeframe will result in the final acceptance of the products by the Purchaser.

2.4    The Purchaser accepts deviations (in accordance with usual commercial practice) of +/- 10% compared to the ordered volume due to safety considerations or filling methods for deliveries in mounted tanks, tankers and silo vehicles, and Purchaser accepts that the invoice shall be increased or reduced proportionally.

2.5    Confirmed delivery dates are only estimates and not guaranteed. Azelis will use commercially reasonable efforts to fulfil each order on the confirmed delivery date and to avoid or limit any delays. In the event of a (threatened) delay in delivery, Azelis shall in any event promptly inform the Purchaser thereof. Delivery can be suspended by Azelis for so long as the Purchaser has not yet fulfilled any obligation vis-à-vis Azelis.

2.6    The Purchaser is obliged to take possession of the ordered products on the confirmed delivery dates. Should the Purchaser for any reason, except for delivery of defective products, not take possession of the products at the time of delivery (i) the products shall be deemed to have been delivered, (ii) the risk in the products shall pass to the Purchaser and (iii) Azelis is entitled to store the products at the sole expense and risk of the Purchaser. Such protective measure does not suspend the payment obligation of the Purchaser.

2.7    Pallets, containers, tankers, mounted tanks and other tools, parts and units employed during transportation that are not intended for one-off use (the “Transport Unit”) remain in any event the property of Azelis, even if the Purchaser is charged a deposit for the Transport Unit, except in the event the Transport Unit is invoiced to the Purchaser. The Purchaser is obliged to return the Transport Unit to Azelis in undamaged condition upon its first request. Should Azelis receive the Transport Unit in a damaged condition, the Purchaser shall indemnify Azelis for any loss or damages.

3.      Title and risk of loss

3.1    Title to the products shall pass from Azelis to the Purchaser upon delivery to the carrier at the Azelis shipping location. However, the risk of loss or damage to the products shall pass from Azelis to the Purchaser in accordance with the Incoterms (latest edition) stated in the Specific Conditions.

3.2    Azelis shall not be liable for any discharge, spill or other incident, including but not limited to expenses for any clean-up costs, involving any materials transported hereunder.

3.3    To secure payment of the purchase price for the products, Azelis will retain a security interest in products delivered to Purchaser and in any proceeds of said products until the obligation is fully paid.

4.      Intellectual Property

4.1    For purposes of the Agreement, “Intellectual Property Rights” means all patents, trademarks, trade names, product labels, logos, rights to inventions, copyrights, database rights, rights in computer software, rights in designs, domain names, trade secrets, know-how, rights to data and any other proprietary rights, priority rights, prior user rights, all applications and extensions thereof, and all other rights of a like nature, whether registered or unregistered.

4.2    The Purchaser must not use, copy, reproduce, republish, upload, post, transmit, distribute or modify any Intellectual Property Right of Azelis or any third party in any manner, including, but not limited to, on repacked or processed material, or on its websites and social media, without the prior written agreement of Azelis and any other relevant party. 

 

5.      Price and payment terms                

5.1    Subject to clause 5.2, the purchase orders are invoiced at the prices and on the terms and conditions as stated in the order confirmation or the Specific Conditions.

5.2    Azelis reserves the right to change the prices at any time, if any changes in the cost determining factors occur before delivery of the products. Such cost determining factors include, but are not limited to, costs related to raw materials, packaging, energy, transportation, warehousing subcontracting, financing, insurance, duties, taxes and surcharges. Such price adjustments do not entitle the Customer to rescind nor terminate the Agreement.

5.3    Unless otherwise agreed, Azelis’ invoices are payable within 30 calendar days following the invoice date, via credit card or bank transfer on such bank account as indicated thereon (including any costs, taxes, duties or other levies). Any objection should be communicated by the Purchaser via registered mail within 7 calendar days following receipt of the invoice. Upon expiration of such term, the relevant invoice shall be considered accepted by the Purchaser and no further complaints shall be accepted by Azelis. Payment by credit card for invoiced amounts is deemed accepted when the Purchaser has supplied Azelis with a complete credit card payment application authorizing payment in full. If credit has been extended, the amount of credit may be changed or withdrawn by Azelis  at any time and Azelis may, for any credit related reason (including a good faith belief that a current or future payment is or may be impaired) or in the event of the Purchaser’s breach of any agreement with Azelis, suspend or change credit terms, fix a limit on credit, require cash-in-advance payments, demand payment in full of any outstanding balance, withhold shipments, demand cash-on-delivery, request other assurances of payment or cancel any pending purchase orders.

5.4    In case of (partial) non-payment of an invoice on the due date, Azelis is automatically entitled, without prior notice, to a late payment fee computed daily at a rate equal to one and one-half percent (1.5%) of the unpaid amount per month, or the highest rate permissible under applicable usury law, without prejudice to Azelis’ right to claim higher compensation in case the incurred damages exceed the aforesaid amount. All extrajudicial and legal costs incurred by Azelis in the process of collecting any past-due amounts or otherwise in compelling the Purchaser to fulfil its obligations are payable by the Purchaser.

5.5    In case of (partial) non-payment of an invoice on the due date, Azelis reserves the right to suspend the execution of all pending purchase orders, without giving prior notice or paying any compensation to the Purchaser. 

6.       Warranties

6.1    Azelis' sole obligation in connection with any products not bearing Azelis’ brand (“Distribution Products”) including, without limitation, their quality and performance, any defects and non-conformances, and any other issues, shall be to pass through to the Purchaser any transferable warranties provided by the original manufacturer of such Distribution Products. AZELIS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WITH RESPECT TO ANY DISTRIBUTION PRODUCTS, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Except as expressly set forth in this clause 6.1, Azelis shall have no further obligation or liability to Purchaser in respect of the quality, performance, defects, non-conformances, or any other issues related to any Distribution Products.

6.2    Azelis warrants that all products bearing Azelis’ brand (“Azelis Products”) will conform to Azelis’ published specifications for the products at the time of delivery. AZELIS MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE AZELIS PRODUCTS, AND AZELIS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WITH RESPECT TO THE AZELIS PRODUCTS, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 

6.3    Azelis shall not be liable for breach of warranty in clause 6.2 if (i) the Purchaser makes any further use of such Azelis Products after having filed a complaint in accordance with clause 6.4, (ii) the Purchaser failed to comply with product documentation and/or instructions as to the storage, use or handling of such Azelis Products, (iii) the Purchaser alters such Azelis Products without the written consent of Azelis or (iv) such breach arises from instructions, information or materials provided by the Purchaser.

6.4    The Purchaser shall provide written notice of any alleged breach of the warranty in clause 6.2 prior to the earlier of (i) 90 days after delivery of such Azelis Products and (ii) the expiration of the shelf life of such Azelis Products. Failure to provide such notice within such timeframe will result in the final acceptance of such Azelis Products by the Purchaser.

6.5    Azelis shall, at its sole discretion, replace or refund the purchase price paid for any Azelis Products that Azelis determines fail to conform to the warranty in clause 6.2, provided that the Purchaser complies with the notice requirements in clause 6.4 and, if requested by Azelis, returns such Azelis Products to Azelis. THE FOREGOING OBLIGATION TO REPLACE OR REFUND THE PURCHASE PRICE PAID FOR THE AZELIS PRODUCTS SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE PURCHASER AND ITS CUSTOMERS (OF ANY TIER) FOR BREACH OF THE WARRANTY IN CLAUSE 6.2

6.6    Azelis may oblige the Purchaser to recall products sold by the Purchaser, within a reasonable period to be determined by Azelis, if it appears that the products sold by the Purchaser could be defective or cause loss or damage. Furthermore, the Purchaser shall comply with all reasonable instructions Azelis may give in view of such product recall. The costs for such recall shall be paid by Azelis or its supplier, as the case may be.

7.      Liability 

7.1    Azelis assumes no obligation or liability for any technical or other advice given about the products or the results to be obtained from them, whether alone or in combination with other materials. The Purchaser is not entitled to rely on Azelis and must independently make its own evaluation of any advice given and the suitability, use, qualities, and proper application of the products. The Purchaser shall familiarize itself with and keep informed of any hazards to persons and/or property involved in the handling and use of and the applications for the products, their proper labelling, storage and packaging and the containers in which the products are shipped. The Purchaser shall advise and warn its employees, customers, independent contractors and others who handle and use or can be expected to handle and use the products of their hazards and their proper use and storage.

7.2    In no event shall the liability of Azelis under the Agreement exceed the purchase price received by Azelis for the products giving rise to the claim.

7.3    Azelis shall not be liable for any type of special, incidental, indirect, consequential, punitive or liquidated damages, nor shall Azelis be liable for loss of profit, loss of revenue, loss of savings or damage to third parties.

7.4    Nothing in these General Conditions excludes or limits Azelis’ liability for gross negligence, wilful misconduct, fraud or death or personal injury caused by Azelis.

7.5    Purchaser shall hold Azelis harmless against all claims, liabilities, losses, damages, costs, penalties and expenses, including those arising out of the Intellectual Property Rights of third parties in connection with the use of the products by the Purchaser or the failure of the Purchaser to comply with clause 8.3.

8.      Compliance 

8.1    When conducting business with Azelis, the Purchaser shall, and shall cause its directors, officers, employees, agents and representatives (the “Representatives”) to comply with Azelis’ Code of Conduct (as available on www.azelis.com), all applicable laws and regulations, including but not limited to anti-bribery and anti-corruption, anti-money laundering, human rights, environmental, (product) safety and health, data protection, export control regulations as well as any other applicable international and/or local laws and regulations. In particular, the Purchaser and its Representatives shall refrain from (i) making any payments or give other inducements which are considered as a bribe or facilitation payment under applicable anti-bribery and anti-corruption laws and (ii) infringing any diplomatic, economic or military sanction or restrictive measure imposed on certain countries, individuals or entities by the United Nations or any governmental department or agency of the European Union or the United States of America applicable to any (contemplated) transaction under the Agreement, including import and export restrictions related to military and dual-use products, software and technologies, chemical precursors (drugs and explosives), dangerous chemicals, as well as pesticides and other substances that deplete the ozone layer.

8.2    The Purchaser warrants that (a) it is not directly or indirectly (i) owned or controlled by or (ii) acting on behalf of or for the benefit of any person or entity subject to economic sanctions applicable to any (contemplated) transaction under the Agreement; and (b) no sanctioned person is or shall be involved in the performance of any (contemplated) transaction under the Agreement.

8.3    When the products include goods or technology as listed in Annexes XI, XX and XXXV or common high priority items as listed in Annex XL to Regulation (EU) 833/2014, as amended from time to time, or firearms and ammunition as listed in Annex I to Regulation (EU) No 258/2012, as amended from time to time (i) the Purchaser shall not sell, export or re-export, directly or indirectly, to the Russian Federation and/or Belarus or for use in the Russian Federation and/or Belarus any such goods supplied under or in connection with the Agreement, (ii) the Purchaser shall undertake its best efforts to ensure that the purpose of this clause 8.3 is not frustrated by any third parties further down the commercial chain, including by possible resellers and (iii) the Purchaser shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of clause 8.3.

8.4    Any violation of clause 8.3 shall constitute a material breach of an essential element of the Agreement, and Azelis shall be entitled to seek appropriate remedies, including, but not limited to (x) termination of the Agreement; and (y) a penalty of 25% of the total value of the Agreement or price of the goods exported, whichever is higher. The Purchaser shall immediately inform Azelis about any issues in applying clause 8.3, including any relevant activities by third parties that could frustrate the purpose of clause 8.3.

9.      Force majeure

         Azelis shall be legally released of, and not obliged to comply with, any obligation vis-à-vis the Purchaser in case of an event of force majeure including but not limited to explosion, fire or flood, protests, riot, civil commotion, acts of terrorism, governmental actions, lock-outs, traffic circulation problems, strikes or other industrial action, import or export restraints, supply chain disruption, embargo, epidemics, equipment damages, material shortage, failure of Azelis’ supplier to deliver the products in time to Azelis and any event which prevents the normal supply of its products, as well as similar circumstances that affect Azelis’ subcontractors or suppliers. Azelis’ obligations vis-à-vis the Purchaser shall be suspended for such time as is reasonably necessary for Azelis to overcome the event of force majeure. If the event of force majeure continues for a period of more than 3 months, either party may terminate the suspended part of the Agreement with immediate effect by notifying the other party in writing thereof, without any compensation being due.

10.    Termination

        Azelis has the right to rescind the Agreement or, as the case may be, to terminate the Agreement with the Purchaser at any time, with immediate effect, without prior notice and without compensation (i) in case the products are seized by a third party, (ii) in case of breach by the Purchaser of one or more of the obligations arising from the Agreement in case the breach has not been remedied within 7 calendar days following a written notice by Azelis, (iii) in case of a breach by the Purchaser or its Representative(s) of any of the obligations set out in clause 7.5 and clause 8, (iv) if the Purchaser enters into any composition or similar general arrangement (formal or informal) with its creditors or is or threatens to be unable to pay its debts, is subject to a procedure of judicial reorganisation or bankruptcy, has a receiver or administrator appointed in respect of its undertaking, assets or income or any part thereof, has passed a resolution for its liquidation, or a request is filed or an order is made by any court for its liquidation or for its administration, (v) if the Purchaser ceases to trade or (vi) if Azelis ceases to have (timely) access to raw materials or the products for resale to the Purchaser. In case of termination by the Purchaser, Azelis reserves the right to claim compensation for all costs, interests and damages incurred by Azelis.

11.    Confidentiality

      The Purchaser shall not, without Azelis’ prior written consent, reveal to any person or otherwise announce the existence or content of the Agreement, except where necessary for the execution of the Agreement. The Purchaser further acknowledges that in the course of the performance of the Agreement it may have access to confidential or proprietary information of Azelis, including but not limited to information concerning the inventions, products, assets, business, customers, or suppliers of Azelis (“Confidential Information”). Such Confidential Information will remain the sole and exclusive property of Azelis and will not be used by the Purchaser for any purpose other than on a need-to-know basis in the discharge of the Purchaser’s obligations vis-à-vis Azelis under the Agreement, and, except as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. No further use will be made by the Purchaser after termination of the Agreement.

12.    Miscellaneous

12.1  The Agreement constitutes the entire agreement between the parties. The Purchaser acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Azelis which is not set out in the Agreement.

12.2  In the event that any one or more of the provisions of the Agreement, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, but the Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. In such case, the parties shall make every effort to make a valid and enforceable agreement in lieu of the ineffective provision, which reflects as closely as possible the provision which has become ineffective.

12.3  Failure or delay by Azelis in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Agreement.

12.4  Any waiver by Azelis of any breach of, or any default under, any provision of the Agreement by the Purchaser will not be deemed to be a waiver of any subsequent breach or default.

12.5  The Purchaser may not assign any of its rights or obligations without the prior written consent of Azelis. Azelis may assign any of its obligations under the Agreement to any of its affiliates.

13.     Applicable law and jurisdiction

13.1  The Agreement, as well as all other agreements that result therefrom, are exclusively governed by the laws of the place where Azelis has its principal place of business or registered office, without regard to choice of law rules. The application of the UN Vienna Sales Convention of 11 April 1980 as amended from time to time, is expressly excluded. 

13.2  All disputes arising out of or in connection with the Agreement, as well as all other agreements that result therefrom, shall be exclusively submitted to the courts of the place where Azelis has its principal place of business or registered office.

14.    Return Policy 

14.1  Unless returns are not permitted as set forth in clause 14.2, returns will only be accepted within 30 days of delivery and must be accompanied by a Return Goods Authorization (“RGA”) issued by Azelis in its sole discretion. Contact Azelis Customer Service to inquire as to whether Azelis will accept a return of the products (and to obtain an RGA). Returns will only be accepted for undamaged, unopened products in their original packaging, with original labels and markings, and may be subject to a restocking fee. The Purchaser is responsible for all return shipping charges. Refunds will only be processed if Azelis accepts the products after a thorough examination after receipt. In the event of a quality concern that relates to product performance and specifications, contact your local Azelis Account Manager. 

14.2  Items that are ineligible for return under any circumstances include the following:

  • Opened or partially consumed products.
  • Products that are no longer in their original packaging or that do not have their original labels and markings.
  • Products that are leaking or in compromised/damaged packaging.
  • Products that are exclusive to the Purchaser.
  • Products that Azelis did not sell to Purchaser.
  • Products that are past their shelf life.