General Sales and Delivery Terms of The Terra Firma Company (DE), LLC
1. General
1.1. The present General Sales and Delivery 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 to The Terra Firma Company (DE), LLC, a DKSH Company (“DKSH”) by you (“Customer”) (“Order”) and, together with the terms of such Order, shall constitute the entire agreement between the parties relating to such Order (“Agreement”).
1.2. Any of Customer’s acknowledgment, acceptance of delivery, or initiation of payment, shall constitute Customer’s unqualified acceptance of these Terms.
1.3. Unless expressly accepted in writing by DKSH., additional or differing terms or conditions proposed by Customer or included in Customer’s Order are objected to by DKSH and have no effect. An explicit objection to the Customer’s terms and conditions shall not be necessary. Any terms and conditions of the Customer contrary to or deviating from these Terms shall not be applicable even if DKSH has supplied the Products, rendered the Services or accepted the payment from the Customer without reservation.
1.4. Unless explicitly stated in the offer, all offers of DKSH are non-binding and shall be merely deemed as an invitation to the Customer to submit an offer.
1.5. A contract shall only be formed upon DKSH’s acceptance of an Order placed by the Customer, which can either be made explicitly by way of written Order confirmation or implicitly by the delivery/provision of the ordered Products/Services. Customer may not cancel any Order without the written consent of DKSH.
1.6. The price information and technical specifications in DKSH.’s price lists and brochures are not binding, provided nothing to the contrary has been agreed upon in writing by DKSH.
2. Prices and Import Restrictions
2.1. Products shall be sold in accordance with the Incoterms 2020 specified in the Order. All prices for the Services shall be as provided in the Order.
2.2. All prices quoted are exclusive of V.A.T, all other applicable taxes and duties and additional chargers, e.g. packing, transport, freight or customs duties, which shall be payable by Customer.
2.3. Customer shall obtain at its own risk and expense any import license or other official authorization for the Products.
3. Terms of Payment
3.1. Unless otherwise agreed in writing, payment shall be made within thirty (30) days of the date of the invoice, without any right of set-off or counterclaim by Customer. Payment shall be made in the currency and to the account stated on the invoice.
3.2. If payment in full is not received by the due date, interest at the rate of the lesser of one and a half percent (1.5%) per month or the maximum amount permitted by law shall be automatically added to the unpaid balance of the invoice from the due date thereof without any prior notice or reminder. Customer shall indemnify DKSH. against the reasonable costs and expenses incurred by DKSH. or its agent in recovering outstanding invoices, including any fees and expenses of DKSH’s legal counsel.
4. Customer’s Insolvency and Breach
Without prejudice to any other rights and remedies available to DKSH, DKSH. may (a) treat this Agreement or any Order as repudiated and/or suspend deliveries of Products and/or performance of Services without liability to Customer, (b) claim damages from Customer, and/or (c) accelerate and make immediately due the payment of any outstanding sums, if Customer (i) makes any voluntary arrangement with its creditors or is subject to an administrative order, files or has filed against it a petition in bankruptcy; (ii) becomes insolvent or suffers a material adverse change in financial condition; (iii) ceases, or threatens to cease, to carry on business; (iv) breaches its obligations under any Agreement and does not remedy such breach within the period reasonably required by DKSH.; (v) a receiver or administrative receiver is appointed over any of Customer’s assets, or (vi) fails to provide reasonable assurance of its performance in response to any reasonable request by DKSH.
5. Delivery
5.1. DKSH. will use commercially reasonable efforts to deliver Products and/or perform Services by the dates quoted in the Order, but such dates shall be treated as approximate only and not as a binding term of the Agreement. DKSH shall notify Customer as soon as practicable in case of any delay. In the event of DKSH’s failure to meet an agreed date of delivery / performance, Customer’s sole remedy shall be to terminate the applicable portion of any Order with respect to which the relevant Products or Services have not been delivered or provided within thirty (30) days of the delivery or performance date specified in the Order.
5.2. Unless otherwise agreed in writing, partial shipments or partial deliveries are permitted. Furthermore, discrepancies in the quantity of Products delivered of up to ten percent (10%) of the quantity to be delivered as stated in the Order shall be permissible, with a pro rata adjustment in the price.
5.3. If Customer fails to take delivery of any Products, without prejudice to any other rights and remedies available to DKSH., DKSH may (a) store the Products and charge Customer for the costs of storage, or (b) upon reasonable notice to Customer, sell the Products at the best price readily available and charge Customer for any shortfall below the price quoted in the Order, plus storage and selling costs.
6. Transfer of Risk and Security Interest
6.1. The transfer or risk of loss or damages to the Products shall be in accordance with the Incoterms 2020 specified in the Order.
6.2. Notwithstanding delivery and the transfer of risk in any Products, Customer grants to DKSH a purchase money security interest in all Products that are not fully paid for and agrees upon request to execute and furnish to DKSH any and all documentation necessary for the perfection and maintenance of DKSH’s security interest in any Product purchased by Customer. Customer authorizes DKSH to file any and all financing statements (including a UCC-1) to perfect DKSH.’s security interest.
6.3. Until payment is received in full by DKSH, Customer shall handle the applicable Products so as to enable them to be identified as the property of DKSH, and following delivery, shall at its own expense insure them against all customary risks.
6.4. Where any Product is sold by Customer before it has been fully paid for, Customer shall receive and hold the proceeds of sale subject to the security interest in favor of DKSH for all payments due to DKSH for such Product.
7. Inspection and Acceptance
7.1. Immediately upon delivery of Products and on completion of performance of Services, Customer shall inspect the Products for defects and deficiencies in Services.
7.2. Customer shall promptly, and in no event later than ten (10) days from the date of delivery of any Products and/or the performance of any Services, give written notice to DKSH. of any defects or deficiencies in such Products and/or Services, or, in case of hidden defects, immediately after their discovery and in no event later than thirty (30) days from the date of delivery of such Products and/or performance of such Services. If notice is not given within such timeframe, Customer shall be deemed to have accepted the Products or Services and all rights and claims related to such Products and/or Services shall be deemed waived.
7.3. Timely notice of defects or deficiencies does not relieve Customer of the obligation to pay for and accept all Products or Services as ordered.
8. Warranties
8.1. SUBJECT TO THE LIMITATIONS ON ITS LIABILITY SET OUT HEREIN, AND UNLESS OTHERWISE AGREED IN WRITING, DKSH WARRANTS THAT THE PRODUCTS SHALL PERFORM ACCORDING TO THE SPECIFICATIONS PROVIDED IN THE ORDER FOR A PERIOD OF SIX (6) MONTHS FOLLOWING THE DATE OF DELIVERY. DKSH WARRANTS THAT THE SERVICES SHALL BE PERFORMED WITH REASONABLE SKILL AND CARE. SUCH WARRANTIES ARE PROVIDED TO THE EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRIGEMENT.
8.2. Where a valid and timely claim in respect of Products or Services based on breach of warranty is submitted to DKSH, DKSH. may, in its discretion, replace, repair, re-perform or modify the Products or Services or the part thereof, free of charge, or refund the entire price or applicable portion thereof for such Products or Services, but shall have no further liability to Customer.
8.3. Any return of Products to DKSH in connection with a warranty claim can only be done upon DKSH.’s prior written permission and instructions with shipping costs to be paid by Customer. Such return Products shall at all times remain for the account and risk of Customer.
9. Limits of Liability
9.1. IN NO EVENT SHALL DKSH BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ORDER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF THE ALLEGED WRONGDOER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ANY EVENT, DKSH’S MAXIMUM CUMULATIVE LIABILITY TO CUSTOMER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO DKSH PURSUANT TO THE ORDER(S) GIVING RAISE TO THE CLAIM(S).
9.2. Customer agrees to extend any and all limitations, indemnifications, and waivers provided by Customer to DKSH to those individuals and organizations DKSH. retains for proper execution of the work, including without limitation DKSH.’s officers, employees, agents and their heirs and assigns.
10. Force Majeure
10.1. DKSH shall not be liable to Customer for any loss or damages which Customer may suffer as a direct or indirect result of the supply of Products and/or performance of Services that is prevented, hindered, delayed or rendered uneconomic by events beyond DKSH.’s reasonable control such as (without limitation) natural disasters, war, strike, lack of human resources, energy or raw material, traffic or business interruptions, orders, laws or regulations of any governmental body or agency, fire or explosion, pandemics or endemics, failure of DKSH.’s suppliers to deliver, interruptions in supply chain, to the extent that such events were not foreseeable, as well as riots or acts of terrorism (“Event of Force Majeure”).
10.2. Any obligations of DKSH under any Order will be suspended for the period of the Event of Force Majeure. If the Event of Force Majeure extends beyond sixty (60) days, either party may terminate the Order on immediate written notice without any liability to the other, except that Customer shall remain liable for payment to DKSH. for any Products delivered and/or Services performed prior to termination.
11. Packaging Materials
DKSH shall not take back packaging and transport materials unless a legal duty to do so exists under applicable law. Customer agrees to dispose of the packaging materials at its own expense.
12. Miscellaneous
12.1. Failure by DKSH. to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
12.2. If any provision or part of a provision of these Terms shall be found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of these Terms, all of which shall remain in full force and effect.
12.3. Customer may not assign, novate, transfer or sub-contract all or any of its rights or obligations under this Agreement or any Order without the prior written consent of DKSH.
12.4. No amendments or additions to these Terms, including this section 12, or any Order hereunder, shall be valid unless made in writing. Any notices given pursuant to these Terms must be made in writing.
12.5. The Customer shall treat all Confidential Information (as defined below) strictly confidential and shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than reasonably necessary in order to fulfill its obligations under these Terms or an Order between DKSH and the Customer. The Customer shall disclose Confidential Information only to those of its officers and employees who need to know Confidential Information in connection with the fulfillment of these Terms or any Order and who are bound by confidentiality obligations at least as restrictive as those contained in this clause. In any event, the Customer remains liable for any breach by its officers or employees of any confidentiality obligations hereunder.
12.6. “Confidential Information” means any information contained in an Order between DKSH and the Customer and any non-public information provided by or on behalf of DKSH to the Customer (in particular but not limited to information regarding pricing, financial information, market information, methods of distribution, customer data, data of employees, manufacturing and technical information and know-how). Notwithstanding the foregoing, Confidential Information does not include information that (i) is rightfully known to the Customer at the time of disclosure as demonstrated by the Customer’s written or electronic records, (ii) is or becomes part of the public domain through no wrongful act of the Customer, (iii) has been rightfully received by the Customer from a third party authorized to make the disclosure without restriction, (iv) has been approved in writing by DKSH for release, or (v) is independently developed without benefit of the Confidential Information.
12.7. The Customer agrees that any breach of the provisions of section 12.5 above would cause substantial and irreparable harm, not readily ascertainable or compensable in terms of money, to DKSH for which remedies at law would be inadequate and that, in addition to any other remedy to which DKSH may be entitled at law or in equity, DKSH shall be entitled to temporary, preliminary and other injunctive relief in the event Customer violates or threatens to violate the provisions of section 12.5 above, as well as damages and an equitable accounting of all earnings, profits and benefits arising from such violation, in each case without the need to post any security or bond. Nothing herein contained shall be construed as limiting any other remedies available to DKSH at law or in equity for any breach or threatened breach of this Agreement or any Order.
12.8. Unless otherwise agreed in writing, the Customer shall be responsible for the compliance with statutory and regulatory requirements relating to import, transport, storage and use of the Products. In all instances, the Customer shall comply with (re-)export control regulations of the European Union and the United States including such reasonable instructions as may be provided by DKSH.
12.9. The Customer shall indemnify DKSH from and against any and all claims, investigations or fines by regulatory authorities or other third parties asserted against DKSH due to the Customer’s failure to comply with the aforementioned obligations and agrees to reimburse DKSH for any and all resulting damages and associated expenses.
12.10. The Customer and its officers, directors, employees and agents shall comply with all provisions of DKSH’s Code of Conduct (available at https://www.dksh.com/global-en/home/about-us/sustainability#policies). Therefore, by placing any Order to DKSH and/or by accepting any delivery/supply from DKSH, the Customer (including its officers, directors, employees and agents) acknowledges to have taken note of DKSH’s Code of Conduct and commits to abide by it and to comply with it. DKSH’s Code of Conduct is subject to updates and/or amendments from time to time and Customer hereby accepts such updates and/or amendments (as made available at https://www.dksh.com/global-en/home/about-us/sustainability#policies, and/or as otherwise notified by DKSH). Furthermore, the Customer shall comply with all the applicable Export Compliance Laws and Regulations in connection with the purchase of DKSH’s Products and/or Services and in connection with the resale of such Products and/or Services to the Customer’s clients/customers. For the sake of clarity, “Export Compliance Laws and Regulations” shall mean any applicable laws and regulations regarding economic sanctions, prohibitions, import, transfer, or export restrictions imposed by the United Nations (U.N.), the United States (U.S.), the European Union (E.U.) and by any other applicable country. This includes, but is not limited to:
i. applicable laws and regulations regarding import, export and re-export, transfer restrictions related to military and dual-use commodities/products, software and technologies, chemical precursors (drugs and explosives), dangerous chemicals and pesticides, substances that deplete the ozone layer, etc.; and
ii. applicable laws, regulations, United Nations Security Council resolutions, and other international sanctions, sanctions of Switzerland, the United Kingdom, the European Union, the U.S. Specially Designated and Blocked Persons List (SDN), the U.S. Export Administration Regulations (EAR) that impose trade restrictions and embargoes and prohibit certain dealings with the governments, legal entities, companies, and nationals of the countries named therein; and
iii. applicable laws and regulations prohibiting transfers of products, services, software or technology that will directly or indirectly support nuclear explosive activities, unsafeguarded nuclear activities, nuclear fuel cycle activities, nuclear propulsion activities, or the design, development, production, stockpiling, or use of chemical weapons, biological weapons, missiles, rocket systems or unmanned aerial vehicles.
12.11. The Products and/or Services purchased by the Customer from DKSH shall be purely used by the Customer’s customer/clients for civilian end-uses by civilian end-users. Therefore, the Products and/or Services shall not be used by the Customer itself and the Customer’s customer/clients in the design, development, production, manufacturing of military applications, nuclear, space launch vehicles, satellites, armored vehicles, unmanned aerial vehicles (UAV), target drones, reconnaissance drones, or the launch or operation of any ballistic missile systems, rocket systems, sounding rockets, cruise missile systems, or any missile delivery system for weapons of mass destruction, unless where the aforementioned applications are agreed in advance by DKSH and by the competent authorities in writing. Moreover, the Products and/or Services purchased by the Customer from DKSH will not be used for and/or in connection with, internal repression, human rights violations, production of chemical or biological weapons of mass destruction, any military or paramilitary organization, armaments, nuclear technology, or weapons.
12.12. The Customer shall in no event and by no means, commercialize, export or re-export the Products and/or Services purchased from DKSH, through direct or indirect means, to:
• any legal entities/companies and persons on the Sanctions List of Switzerland, the United Kingdom, the European Union, the United Nations or on the U.S. Specially Designated and Blocked Persons List (SDN); and
• any legal entities/companies and persons on the U.S. Consolidated Screening List (CSL) in case the Products and/or Services are subject to the U.S. Export Administration Regulations (EAR), without having obtained the relevant license under the U.S. EAR.
12.13. Furthermore, the Customer shall always be responsible for compliance with all applicable laws and regulations related to anti-bribery, anti-corruption, conflict of interest laws, rules or regulations of similar purpose and effect, including, without limitation the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997, sec. 322ter et seq. Swiss Criminal Code and sec. 4a Swiss Act against Unfair Competition, the US Foreign Corrupt Practices Act 1977 as amended from time to time, the UK Bribery Act 2010, and sec. 299 et sqq., sec. 331 et sqq. German Criminal Code, the German Act on Combating European Bribery, and the German Act on Combating International Bribery (hereafter collectively “Anti-Corruption Laws”).
12.14. The Customer shall indemnify, defend, and hold harmless DKSH from any and all claims damages, losses, liabilities, costs and expenses (including but not limited to court costs and attorneys’ fees) arising out of any claim, inspection, audit, and etc. by regulatory authorities or other third parties and asserted against DKSH due to the Customer’s failure to comply with the aforementioned obligations and agrees to reimburse DKSH for any and all resulting damages and associated expenses, provided that they are the result of the Customer’s breach of duty.
12.15. The Customer understands and agrees that DKSH may collect information on the Customer (via due diligence, pre-agreed audits or otherwise) to verify its compliance with DKSH’s Code of Conduct, and Customer agrees to furnish DKSH with or grant DKSH access to such information as reasonably requested by DKSH from time to time to conduct such verification. Where DKSH has reason to believe or suspect that the Customer is in breach and/or falls short of expectations to comply with DKSH’s Code of Conduct, Customer acknowledges DKSH’s right to suspend its performance under this Agreement including any Order, unless DKSH and Customer agree on collaborating towards establishing adequate improvement plans and actions to address DKSH’s findings resulting from due diligence, pre-agreed audits or otherwise.
13. Applicable Law, Jurisdiction
13.1. All Agreements and these Terms will be governed by and construed in accordance with the law of the State of Maryland, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
13.2. Customer irrevocably submits to the exclusive (except to the limited extent provided below) jurisdiction of the United States District Court for the District of Maryland (the “DMD”) for the purposes of any suit, action or other proceeding arising out of this Agreement or any Order entered into hereunder. DKSH agrees to commence any such action, suit or proceeding, including unresolved disputes with regard to indemnity claims, in the DMD. Customer irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or any Order in the DMD, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. If, and only if, the DMD declines jurisdiction over an action, suit or proceeding arising out of this Agreement or the Orders entered into hereunder, such action, suit or proceeding shall be, in the alternative, commenced in courts of the State of Maryland, Baltimore County (the “MDS Court”), and Customer irrevocably submits to the jurisdiction of the MDS Courts solely for the limited, alternative purpose set forth herein. CUSTOMER HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT CUSTOMER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER ENTERED INTO HEREUNDER. The foregoing shall be without prejudice to DKSH’s rights to bring suit in any court having jurisdiction.