General Purchasing Terms of The Terra Firma Company (DE), LLC
- General
1.1 The present General Purchasing Terms (“Terms”) integrate, merge, and supersede any prior offers, negotiations and agreements concerning the subject matter hereof and shall govern any order for products (“Products”) or services (“Services”) placed by The Terra Firma Company (DE), LLC, a DKSH Group Company (“DKSH”) to the seller (the “Seller”) identified in the applicable order (“Order”) and, together with the terms of such Order, shall constitute the entire agreement between the parties relating to each such Order (“Agreement”).
1.2 DKSH may update and/or amend these Terms from time to time upon notice to the Seller.
1.3. Any of Seller’s acknowledgment, acceptance of payment, or commencement of performance shall constitute Seller’s unqualified acceptance of these Terms. Unless expressly accepted in writing by DKSH, additional or differing terms or conditions proposed by Seller or included in Seller’s confirmation or any other document are rejected by DKSH and shall have no force or effect. The acceptance of the delivery of Products or the provision of Services, without express rejection of any conflicting terms and conditions shall in no way constitute DKSH’s recognition of or consent to such conflicting conditions.
1.4 Products shall be sold in accordance with the Incoterms 2020 specified in the Order.
1.5 Unless otherwise agreed to in writing by DKSH, Seller shall deliver Products or render Services, or both, strictly in accordance with all specifications, designs, drawings, plans, sketches, calculations and performance criteria (“Documentation”), if any, furnished by DKSH, without variation.
- Order and offer
2.1 Every Order issued by DKSH shall constitute an offer to conclude a contract and shall be accepted and confirmed by Seller in writing or via email within eight (8) days. Any Order that is not rejected within such time period shall be deemed accepted. Any confirmation received by DKSH at a later date shall be treated as a new offer requiring DKSH’s express acceptance.
2.2 The delivery of any Products or provision of Services ordered by DKSH or any other conduct of Seller which is reasonably deemed acceptance of a contract pertaining to the subject matter hereof shall, if made within the aforementioned period, constitute deemed acceptance by the Seller of DKSH’s Order and these Terms.
- Prices
3.1 Prices shall be firm (indicated in US Dollars) and not subject to adjustment or variation unless expressly agreed to in writing by DKSH.
3.2 Seller warrants that it shall comply with all laws, rules and regulations applicable to its sale of Products and provision of Services, including those relating to pricing and price control.
3.3 Seller further warrants that the prices specified in each Order shall be as low as or lower than any net prices given by Seller to any other customer for Products or Services of like grade and quality in like quantities and Seller agrees that if at any time throughout the duration of the Agreement, lower net prices are quoted under similar conditions, said lower net prices shall be automatically substituted for the prices specified in the applicable Order and that DKSH shall be entitled to a refund of any amounts paid in excess of such prices under the applicable Order.
3.4 Except as otherwise agreed in writing by the parties, the prices specified in the Order shall include all costs and charges to be charged to DKSH, including, without limitation, installation and other service charges, all applicable taxes and duties, all wages and fees for Services, Products and materials, all charges for transportation, packing and packaging, and returnable containers, all costs of design, engineering and development and all costs for property that may be obtained or required by Seller for use in the manufacture, fabrication, or assembly of the Products or performance of the Services called for under such Order.
- Packing and Packaging
4.1 Packing and packaging shall be in accordance with (i) applicable laws and regulations, and (ii) the specific instructions from DKSH set forth in the Agreement or in a separate notification. In the absence of specific instructions, all packing and packaging shall comply with applicable laws and regulations as well as with good commercial practice and shall consist of suitable containers for optimum protection of Products (regardless of the mode of transport) and for in-plant handling and storage. Should DKSH’s instructions not be in compliance with applicable laws and regulations, the latter shall prevail over such instructions and the Seller shall immediately notify DKSH about the non-compliance of instructions with applicable laws and regulations.
4.2 Hazardous Products must be packaged, labeled and declared in accordance with applicable laws on dangerous substances and the rules of the transport carrier used.
4.3 DKSH reserves the right to return the packing material or to dispose of it at Seller’s cost.
- Shipping
5.1 Products shall be examined by Seller before shipment for qualitative and quantitative conformity with the applicable Order. Upon request of DKSH, the examination shall be confirmed by a product certificate.
5.2 In case of shipments to various delivery locations, DKSH may require separate shipping notices, shipping documents, delivery receipts, certificates of origin, product certificates and invoices.
5.3 Within a reasonable time prior to delivery, the Seller shall provide DKSH by e-mail with (copies of) all applicable licenses, if any, documents, information, invoices, specifications and instructions necessary for safe and proper transport (including, without limitation, shipping notices, shipping documents, delivery receipts), use, treatment, process and storage of the Products and with all certificates of analysis/conformity as customarily supplied. In particular, Seller shall provide DKSH with documentation on the composition and stability of the Products, safety data sheets, processing instructions, work safety precautions etc., including any modifications or updates to any of the foregoing documents. In the event that the required documents are not available prior to shipment, the Products shall be stored by DKSH or its agent at Seller’s own risk and expense until said documents are received by DKSH.
5.4 The Seller must state the following data in the transport documents: delivery address, Order number and date, place of delivery and, if applicable, name of recipient, material designation and number communicated by DKSH.
5.5 All individual packages (weighing 1 t or more) shall bear a clearly visible, indelible statement of unit weight.
5.6. Quantities of delivered Products shall exactly correspond to the quantities stated in the Order. Should the delivered quantity of Products be below or above the quantity stated in the Order (the “Agreed Quantity”), DKSH shall be entitled to reject the corresponding delivery. Any such rejected Products shall be returned to Seller at Seller’s risk and expense. If DKSH does not reject the Products and instead accepts the delivery of Products at a quantity deviating from the Agreed Quantity, the price for the Products shall be adjusted on a pro-rata basis.
- Delivery
6.1 The Seller shall deliver the Products to the address stated in the Order by exercising the highest standards of diligence and skill. Deliveries shall be made according to the Incoterms (and/or other delivery terms, if any) specified in the Order. Unless no Incoterm is specified in the Agreement, delivery shall be made by carrier and route specified by DKSH or, in the absence of DKSH’s instructions in this respect, by the way of transportation most favorable to DKSH in terms of cost, duration and efficiency.
6.2 Delivery times will be measured to the time that Products are actually received at the delivery location and/or Services are actually performed. Time, quantity and delivery to the delivery location are of the essence under this Agreement. If Seller does not comply with any of its delivery obligations under this Agreement and/or the Order, without limiting DKSH’s other rights under this Agreement or applicable law, DKSH may, in DKSH’s sole discretion and at Seller’s s sole cost and expense: (a) approve a revised delivery date; or (b) require expedited or premium shipment. Seller shall immediately notify DKSH in writing in case of any delay or anticipated delay in delivery of Products and/or Services. In the event of failure by the Seller to meet the delivery dates, Seller shall indemnify DKSH for all damages and losses incurred due to the delay in delivery. Acceptance by DKSH of a late delivery shall not be deemed a waiver of its right to claim damages for late delivery. DKSH shall also be entitled to terminate the applicable Order or this Agreement with immediate effect without prejudice to any other rights, including those contained in section 13 hereof.
6.3 Partial deliveries and deliveries in advance shall not be permitted without DKS