VARIACHEM KFT.
GENERAL TERMS AND CONDITIONS OF SALE
(General conditions of sale and delivery)
Variachem Kft. · 1097 Budapest, Kén utca 8., Hungary · wholesale of chemical products
1. General Provisions, Scope
1.1 These General Terms and Conditions of Sale (the “Terms”) apply to all supplies, sales and services – including advisory services – provided by Variachem Kft. (registered seat: 1097 Budapest, Kén utca 8., Hungary; the “Seller”) to its customer (the “Buyer”), whether or not these Terms are expressly referred to. These Terms also apply to all future transactions between the Seller and the Buyer.
1.2 The Buyer’s own general terms, purchasing or other business conditions shall not apply and shall not become part of the contract, even if the Seller does not expressly object to them. Any deviation from these Terms requires the Seller’s express written approval.
1.3 The Buyer acknowledges these Terms at the latest upon acceptance of the goods. The version of the Terms in force at the time the relevant transaction is concluded shall govern.
2. Offers and Conclusion of the Contract
2.1 The Seller’s quotations, price lists and catalogue data are non-binding and are to be regarded as an invitation to the Buyer to submit an offer. Unless otherwise stated, the Seller’s offers are valid for 30 days from their date of issue.
2.2 The contract is concluded by the Buyer’s order (offer) and the Seller’s written or electronic confirmation thereof or, failing such confirmation, by the Seller’s performance. If the confirmation deviates from the order, it shall be deemed a new, non-binding offer of the Seller.
2.3 The content of the contract is determined by the order confirmation or, failing that, by the Seller’s performance, together with these Terms. The Buyer shall review the confirmation immediately upon receipt and report any discrepancy in writing.
2.4 If the Buyer cancels the order after the written order confirmation but before performance, the Buyer shall pay the Seller a penalty equal to 10% of the value of the quantity of goods stated in the order.
3. Product Data, Samples, Warranty of Quality
3.1 Unless otherwise agreed, the quality of the goods to be supplied is determined exclusively by the Seller’s product specification in force at the time of delivery. Information regarding the subject of the supply or service (e.g. descriptions, drawings, illustrations) is approximate only and does not constitute a guarantee of quality.
3.2 The properties of samples and specimen items are binding for performance only if the parties have expressly so agreed. For natural raw materials, usual variations – even where a sample has been provided – do not constitute a defect.
3.3 The Seller warrants the properties, shelf life (durability) and other data of the goods only where the parties have expressly agreed so in writing. Any indications regarding the use or processing of the goods constitute non-binding advice.
3.4 The Seller provides advisory and other support services to the best of its knowledge. Such information does not release the Buyer from carrying out its own tests and trials to determine whether the goods supplied are suitable for the Buyer’s intended purposes and processing conditions.
4. Prices
4.1 Invoicing is based on the price stated in the offer or confirmed in the order confirmation. Unless otherwise agreed, prices are exclusive of value added tax and any other taxes, duties or public charges, which shall be borne by the Buyer.
4.2 Prices are based on the Seller’s costs and on the wage, exchange-rate, freight, material and energy cost conditions prevailing at the time the contract is concluded. Should these factors change between conclusion of the contract and delivery, the Seller shall be entitled to adjust the prices to the extent of the actual cost increase.
4.3 In the case of a longer-term price agreement of at least one quarter, the Seller shall notify the Buyer in writing at least 8 days before the new prices take effect. If the Buyer does not accept the prices, it may terminate the supply agreement as of the effective date of the new prices; in that case the Seller shall be entitled to neither penalty nor damages. If the Buyer fails to respond by the effective date, the prices shall be deemed accepted. Orders placed before such notice shall be performed at the former prices.
5. Delivery, Quantity Variation
5.1 Delivery takes place in accordance with the commercial terms (Incoterms) set out in the individual contract, interpreted under the version of the Incoterms in force at the time the contract is concluded. Unless otherwise agreed, performance takes place at the Seller’s premises (FCA).
5.2 Delivery dates and periods stated in the order confirmation are approximate only, unless expressly agreed as fixed dates. The Seller shall make reasonable efforts to meet the agreed dates.
5.3 The delivery period shall be extended by the period of any delay attributable to the Buyer and in the case of a contract amendment requested by the Buyer that affects performance in terms of time. Partial deliveries are permitted, provided they do not fall below a scope reasonable for the Buyer.
5.4 The Seller shall be entitled to deliver up to 10% more or less than the ordered quantity; the Buyer shall accept such variation and shall pay for the quantity actually delivered and accepted. For bulk deliveries, the weight determined at loading or unloading shall govern. In the event of a greater variation, the Buyer may refuse acceptance; if it accepts, it shall pay for the quantity actually accepted.
5.5 Certain goods – in particular excise goods or goods classified as dangerous substances – may be supplied only to a Buyer holding the appropriate permit required by the applicable legislation.
6. Transport, Passing of Risk, Packaging
6.1 Risk passes to the Buyer – in accordance with the relevant commercial term (Incoterms) – at the latest when the goods leave the Seller’s premises or warehouse, or when the goods are handed over to the carrier. If dispatch is delayed for reasons not attributable to the Seller, risk passes upon notice of readiness for dispatch; thereafter the cost of storage is borne by the Buyer.
6.2 Where the Seller carries out the delivery, risk passes upon handover of the goods at the Buyer’s premises or at the delivery location designated by the Buyer. Where the Buyer transports the goods, risk passes upon loading onto the Buyer’s means of transport if the Seller performs the loading; if the Buyer or its agent performs the loading, risk passes upon handover at the Seller’s premises.
6.3 The Seller shall package the goods in a manner suitable for safe transport. Insurance of the consignment against transport risks is taken out only at the Buyer’s express request and expense. Damage in transit does not entitle the Buyer to refuse acceptance or payment.
6.4 Returnable, hired or loaned packaging shall – unless otherwise agreed in writing – remain the property of the Seller and serve solely for the packaging of the goods sold. The Buyer shall handle the packaging with due care and return it to the Seller’s premises clean, intact and empty within 30 days of delivery.
6.5 Packaging is shown on the invoice separately from the goods sold. In the event of failure to return it within the deadline, or of damage to or loss of the packaging, the Seller shall be entitled to charge the replacement (restoration) cost of the packaging and a usage fee for the period of delay. A cleaning fee may be charged for packaging returned in a contaminated state. No other substance may be stored in the Seller’s packaging, and mixing substances therein or using it improperly is prohibited.
7. Payment Terms
7.1 Payment of the price is made, as agreed by the parties, in cash upon acceptance of the goods or by transfer within the payment deadline stated on the invoice. Unless otherwise agreed, the invoice falls due upon receipt and the Buyer shall be in default at the latest on the 30th day after receipt of the invoice.
7.2 In the event of default in payment, the Buyer shall, from the due date, pay default interest under the Hungarian Civil Code as well as the collection-cost flat fee (an amount in HUF corresponding to forty euros under Section 6:155 of the Civil Code). The Seller is also entitled to pass on to the Buyer any further costs incurred in enforcing its claim.
7.3 In the event of non-compliance with payment terms – in particular default – the Seller shall be entitled to suspend further deliveries, to make them conditional on advance payment or the provision of security, and to perform pending deliveries only against cash payment. This applies immediately and without separate notice.
7.4 The Buyer may set off against the Seller’s claim, or exercise a right of retention, only where its counterclaim is undisputed or established by a final court decision.
7.5 If, after conclusion of the contract, well-founded doubts arise as to the Buyer’s solvency, or if insolvency or liquidation proceedings are commenced against the Buyer, the Seller shall be entitled to withdraw payment facilities granted, to make remaining deliveries conditional on advance payment or security, or – after the unsuccessful expiry of a reasonable additional deadline – to withdraw from the contract and claim damages for non-performance.
8. Retention of Title
8.1 The Seller retains title to the goods supplied (the “Reserved Goods”) until the Buyer has fully discharged all – present and future – payment obligations arising from its business relationship with the Seller. The Seller is entitled to have the retention of title registered in the credit security register. The Buyer shall keep the Reserved Goods with care and adequately insure them against fire, water and burglary damage.
8.2 The Buyer may process and resell the Reserved Goods in the proper course of business, in the absence of payment default. The Reserved Goods may not be disposed of in any other way, in particular by transfer of ownership by way of security or by pledging.
8.3 Processing of the Reserved Goods is carried out on behalf of the Seller as manufacturer. In the case of processing, combination or inseparable mixing with other goods not originating from the Seller, the Seller acquires co-ownership (fractional ownership) of the new item in the ratio of the invoice value of the Reserved Goods to that of the other goods used.
8.4 The Buyer hereby assigns to the Seller its claims arising from the resale of the Reserved Goods – including after processing – in the amount of the invoice value of the Reserved Goods transferred; the Seller accepts this assignment. The Buyer remains entitled to collect these claims as long as it meets its payment obligations and is not in default; this authorisation expires upon cessation thereof. The Buyer shall provide information on the assignment upon request.
8.5 If a third party asserts rights to the Reserved Goods (in particular by way of seizure or execution), the Buyer must immediately point out the Seller’s ownership and inform the Seller. At the Buyer’s request, the Seller shall release securities to the extent that their realisable value exceeds the secured claims by more than 20%.
8.6 In the event of payment default exceeding 60 days, the Seller shall be entitled – even without withdrawing from the contract – to demand the return of the Reserved Goods at the Buyer’s expense.
9. Inspection, Defective Performance, Warranty for Defects
9.1 The Buyer shall inspect the delivered goods, as to quantity and quality, immediately upon acceptance. Defects recognisable on proper inspection (apparent defects) must be reported in writing within 8 days of acceptance, and other defects within 8 days of their discovery, precisely specifying the nature and extent of the defect. Transport damage must also be reported to the carrier. Failure to meet these deadlines shall mean the goods are deemed to conform to the contract.
9.2 Resale, processing, use or repackaging of the goods shall constitute unconditional acceptance and approval of the goods; thereafter no claim as to quality or quantity may be asserted. The Buyer shall keep the goods complained of in their original condition, separate from other goods, and shall allow the Seller to inspect them and take samples.
9.3 In the case of a proper and timely complaint, the Seller shall, at its option, remedy the defect, deliver conforming goods (replacement), or reduce or refund the price (subsequent performance). If subsequent performance fails, the Buyer may – save in the case of a minor (immaterial) defect – demand a price reduction or withdraw from the contract.
9.4 The limitation period for warranty claims is 1 year from acceptance of the goods, except in those cases where the mandatory rules of Hungarian law prescribe a different (longer) limitation period (in particular intentional or grossly negligent damage, fraudulent concealment of the defect, injury to life, limb or health, and consumer-protection claims).
9.5 Claims for damages are governed by Clause 10. Claims under product-liability legislation and claims for personal injury remain unaffected by this Clause.
10. Liability, Limitation of Liability
10.1 The Seller’s liability for damages is governed by Hungarian law, subject to the limitations set out in this Clause. Regardless of the legal basis, the liability of the Seller and its vicarious agents is excluded, except where the damage is caused intentionally or by gross negligence, or where there is a breach of a material contractual obligation. A material contractual obligation is one whose performance enables the proper performance of the contract in the first place and on which the Buyer may normally rely.
10.2 Where the Seller is liable as above, its liability does not extend to indirect or consequential damages, loss of profit, damages atypical for and unforeseeable under the contract, or damages avoidable by the Buyer. The Seller’s liability – save in cases of injury to life, limb or health and of mandatory statutory liability – is limited to the purchase price of the goods in question.
10.3 The above exclusions and limitations of liability apply to the same extent to the Seller’s legal representatives, employees, affiliated companies and other vicarious agents and subcontractors involved in performance.
10.4 The Buyer is responsible for complying with all legal and regulatory requirements and standards relating to the transport, storage, use and resale of the goods, and shall hold the Seller harmless from claims arising out of any breach of these obligations.
11. REACH and Regulatory Compliance
11.1 If the Buyer notifies the Seller of a use under Regulation (EC) No 1907/2006 concerning the registration, evaluation, authorisation and restriction of chemicals (REACH), and this requires updating of the registration or the chemical safety report, the related costs shall be borne by the Buyer.
11.2 The Seller is not liable for any delay in or impossibility of delivery resulting from a notification of use given by the Buyer or from compliance with legal and regulatory obligations connected with the REACH Regulation.
11.3 Uses under REACH do not in themselves constitute an agreement on the contractual properties of the goods or a determination of the intended use. If, for health or environmental reasons, the use cannot be identified, or if the Buyer intends to use the product in a manner disapproved of by the Seller, the Seller shall be entitled to withdraw from the contract.
11.4 The Buyer warrants that, in connection with the goods, it complies with applicable laws on trade, economic and financial sanctions, export control, and the prevention of corruption, money laundering and terrorist financing. The Seller is released from its obligation to perform where performance would infringe such provisions.
12. Force Majeure
12.1 The Seller is released from the performance of its contractual obligations, or the delivery period is extended by the duration of the disruption, where performance is prevented or delayed by an event beyond the Seller’s control that was unforeseeable at the time of conclusion of the contract (force majeure). This includes in particular: war, terrorism, riots, strikes, lawful lock-outs, natural disasters, epidemics or pandemics, fire, explosion, operational disruptions, shortages of energy, raw materials or labour, transport disruptions, official measures, the imposition of sanctions, IT or cyber attacks, and the improper or delayed performance of the Seller’s suppliers.
12.2 The Seller shall notify the Buyer of the force majeure event without undue delay and shall resume performance within a reasonable time after the obstacle is removed. In the event of a shortage of goods caused by force majeure, the Seller shall be entitled to allocate the available goods among its customers in a fair and proportionate manner, and shall not be obliged to procure goods from third parties.
12.3 If the force majeure event continues for more than 3 months, either party shall be entitled to withdraw from or terminate the contract without any obligation to compensate the other party.
13. Confidentiality
Any technical, commercial or other information disclosed or made accessible by the Seller to the Buyer in connection with the contract (in particular offers, pricing, financial and market data, customer and manufacturing information and know-how) shall be treated as confidential, which the Buyer shall keep confidential for the term of the contract and for 5 years thereafter. The confidentiality obligation does not apply to information that is already public, or that must be disclosed pursuant to law or by order of an authority.
14. Assignment, Severability, Notices
14.1 The Buyer may not assign or transfer its rights and obligations under the contract without the Seller’s prior written consent. The Seller is entitled to transfer the contract and the claims arising from it to another company within its group or to a third party.
14.2 If any provision of these Terms or of the contract is invalid or unenforceable, this shall not affect the validity of the remaining provisions; the invalid provision shall be replaced by a valid provision that most closely reflects the original business purpose.
14.3 Any notice or declaration is effective when it reaches the addressee. The place of performance for the payment obligation is the Seller’s registered seat.
15. Governing Law, Jurisdiction, Language
15.1 The legal relationship between the Seller and the Buyer is governed by Hungarian law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 1980 shall not apply.
15.2 For the settlement of disputes arising out of or in connection with the contract – where they cannot be resolved by negotiation – the parties submit to the exclusive jurisdiction of the court competent at the Seller’s registered seat from time to time. The Seller is, however, entitled to bring proceedings to enforce its overdue claims before the court competent at the Buyer’s registered seat as well.
15.3 These Terms have been drawn up in Hungarian. Any translation into a foreign language serves comprehension only; in the event of any discrepancy of interpretation, the Hungarian text shall prevail. Matters not regulated in these Terms shall be governed by the Hungarian Civil Code and the Hungarian legislation in force from time to time.
Variachem Kft.
1097 Budapest, Kén utca 8., Hungary
