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Sun Chemical Privacy Noticefor Business ContactsIn this privacy notice we explain how we collect and use your personal data. This privacy notice applies to allyourpersonal data that we process when you order, purchase or use our products and services, visit our websites, use our customer support or otherwise interact with Sun Chemical.
Sun Chemical is committed to safeguarding the privacy of the personal information that we gather concerning the contact persons at our current, former, and prospective customers, suppliers, vendors, and partners of Sun Chemical Group Cooperatief U.A. and its group companies (hereafter “You” or “Your”). In this Privacy Notice,we explain which personal data we collect and how we use this data. Therefore, we encourage You to read this Notice carefully.
1.Who We Are
2.What Personal Data We Collect
3.What We Do with Your Personal Data
4.How We Collect Your Data
5.Information Sharing
6.Security Measures and Data Retention
7.International Transfers of Personal Data
8.Your Rights
9.How we look after this policy
10. Contact details for your privacy inquiries
1. Who We Are
We are the Sun Chemical group. Your local Sun Chemical group company, together with Sun Chemical Group Cooperatief U.A., Leeuwenveldseweg 3-t, 1382 LV Weesp, The Netherlands, and Sun Chemical Corporation, 35 Waterview Boulevard, Parsippany, NJ 07054-1285, United States of America, are responsible for the collection and use of Your personal data as described in this Privacy Notice. References to “Sun Chemical”, “we” and “our” throughout this notice, depending on the context, collectively refer to the aforementioned legal entities.
We have determined our respective responsibilities for compliance with the obligations under applicable privacy legislation for processing your personal data in relation to our global processing activities by means of an arrangement between us. In summary, we have arranged that if you want to exercise your rights, such as your right to access, correct, erase, restrict, object or port personal data or to withdraw your consent, or if you have any questions or complaints about the processing of your personal data, you can contact Coates Screen Inks GmbH, Wiederholdplatz 1, D-90451 Nürnberg in accordance with Section 10. Coates Screen Inks GmbH, Sun Chemical Cooperatief U.A. and Sun Chemical Corporation will assist each other where necessary to ensure that you can exercise your rights and your questions and complaints will be handled.
2. What Personal Data We Collect
When You interact with us, we may collect and process the following categories of personal data:
–Your name, the company You are associated with, and Your function;
–Your gender;
–Your contact information, such as Your company address, phone number, and email address;
–Your participation in our trainings, symposia, congresses, seminars;
–Your professional interests;–Our communication with You.
3. What We Do with Your Personal Data Your data may be processed for the following purposes
–Performing and managing the contract we have with the company You are associated with;
–Managing our relationship with You;
–Communicating with You;
–Sending You our newsletters about our products or services or promotions. You may withdraw Your consent to the processing of Your personal data for direct marketing purposes any time by using the “unsubscribe” link provided in each communication or by contacting us at the e-mail address contained in the newsletter.
–Performing statistics. We use automatic tools to perform statistical research into general trends regarding our services and products and the behavior and interests of our customers, suppliers, vendors, and partners and the persons working for these organizations. To perform our research, we may merge and analyze the different types of data as described above. We will only use aggregated data and do not use names, email addresses, or other directly identifying information.
–Complying with all legal obligations including disclosure obligations. Legal Basis
We process Your personal data on the basis of the following legal grounds: on the basis of Your consent, to comply with legal obligations we are subject to, and on the basis of our legitimate interests or the interests of a third party as described in this Policy. When we process Your personal data for our legitimate interests or the interests of a third party, we will take reasonable measures to prevent unwarranted harm to You. Our legitimate interests are, for example, marketing purposes, our interest of improving our products and services delivery by storing contact details, reducing costs, improving our websites. For more information on these interests, please see the purposes for which we process Your personal data above.
If we process Your personal data on the basis of consent, You may withdraw Your consent at any time by following the specific instructions in relation to the processing for which You provided Your consent or by reaching us through the contact details in Section 10.
Where we process your personal data for a purpose other than that for which we collected it initially (andwe rely on a legal basis other than consent or complying with legal obligations for this new purpose), we will ascertain whether processing for this new purpose is compatible with the purpose for which the personal data were initially collected. More information on this assessment is available upon request (please see Section 8. Your rights below).
4. How We Collect Your Data
Most of the personal information we process is information that You knowingly provide to us. However, in some instances, we process personal information that we are able to infer about You based on other information You provide to us, from our interactions with You, or based on personal information about You that we receive from a third party.
5. Information Sharing
Your local Sun Chemical group company will process some of Your personal data locally. However, as a global organization, many of our business activities can also be carried out (and business efficiencies achieved) by processing or consolidating information about You in specific or centralized databases and systems located at specific facilities worldwide. As a result, Your information may be shared with other entities within the Sun Chemical group. However, each Sun Chemical group company, our systems, and our databases will only collect, receive, use, share, or otherwise process such personal data in accordance with applicable laws, this Privacy Notice, our Sun Chemical internal privacy policy, any applicable specific local policy, and to support business purposes. Moreover, we maintain an internalstrict access policy with regard to the processing of personal data. Only a limited group of authorized Sun Chemical staff with a need-to-know purpose (such as IT administrators, sales and marketing personnel, and account managers) will have access to Your personal data. As a general rule, we do not share Your personal data with anyone outside Sun Chemical. However, we may share Your personal data with trusted third parties that perform business functions or provide services to us. All such third parties will be required to adequately safeguard Your personal data and will be subject to agreements that contain data protection requirements consistent with applicable laws. Your personal data may also be shared for investigations (e.g., disclosure to prevent crime or fraud, or to comply with a court order or legislation).
6. Security Measures and Data
RetentionSun Chemical will secure Your personal data properly in accordance with our IT and security policies so that personal data are protected against unauthorized use, unauthorized access, or wrongful modifications, loss, or destruction. Your personal data will be stored no longer than is necessary for the purpose they were obtained or as required under applicable law, whichever is longer, including compliance with legal and fiscal obligations and for solving any disputes.
7. International Transfers of Personal Data
Your personal information may be transferred to countries outside the European Economic Area whose laws may not afford the same level of protection of Your personal information. Where necessary, Sun Chemical will ensure that adequate safeguards are in place to comply with the requirements for the international transfer of personal data under applicable privacy laws. For transfers of personal data outside the European Economic Area, Sun Chemical will use EU Commission-approved Standard Contractual Clauses as safeguards, such as the “(EU-)controller to (Non-EU/EEA-) controller” Decision 2004/915//EC (see Article 46 GDPR). If you wish to receive a copy of these safeguards, please contactus through the contact details in Section 10. The European Commission has determined that certain countries outside the European Union offer an adequate level of data protection (see Article 45 GDPR). You can find an overview of these countries here.
8. Your Rights
You can contact us to exercise any of the rights you are granted under applicable data protection laws, which includes (1) the right to access your data, (2) to rectify them, (3) to erase them, (4) to restrict the processing of your data, (5) the right to receiving a file of your personal data and (6) or the right to object to the processing, and where we have asked for your consent, to withdraw this consent. These rights willbe limited in some situations. We will, for example, deny your request for access when necessary to protect the rights and freedoms of other individuals or refuse to delete your personal data in case the processing of such data is necessary for compliance with legal obligations. The right to data portability, for example, does not apply in case the personal data was not provided by you or if we process the data not on the basis of your consent or for the performance of a contract. 5/6When you would like to exercise your rights, please send your request to the contact details in Section 10. Please note that we may need you to provide additional information to confirm your identity. You also have the right to lodge a complaint with the local Supervisory Authority. You can find the contact information of your local Supervisory Authority below:Bayerischer Landesbeauftragte für den Datenschutz, Herr Prof. Dr. Thomas Petri, Wagmüllerstraße 18, 80538 München, (This email address is being protected from spambots. You need JavaScript enabled to view it. / www.datenschutz-bayern.de). You can also contact us if you have any questions, remarks or complaints in relation to this privacy notice.
8.1.Right to access
You may ask us whether or not we process any of your personal data and, if so, receive access to that data in the form of a copy. When complying with an access request, we will also provide you with additional information, such as the purposes of the processing, the categories of personal data concerned as well as any other information necessary for you to exercise the essence of this right.
8.2.Right to rectification
You have the right to have your data rectified in case of inaccuracy or incompleteness. Upon request, we will correct inaccurate personal data about you and, taking into account the purposes of the processing, complete incomplete personal data, which may include the provision of a supplementary statement.
8.3.Right to erasure
You also have the right to have your personal data erased, which means the deletion of your data by us and, where possible, any other controller to whom your data has previously been made public by us. Erasure of your personal data only finds place in certain cases, prescribed by law and listed under Article 17 GDPR. This includes situations where your personal data are no longer necessary in relation to the initial purposes for which they were processed as well as situations where they were processed unlawfully. Due to the way we maintain certain services, it may take some time before backup copies are erased.
8.4.Right to restriction of processing
You have the right to obtain the restriction of the processing of your personal data, which means that we suspend the processing of your data for a certain period of time. Circumstances which may give rise to this right include situations where the accuracy of your personal data was contested but some time is needed for us to verify their (in)accuracy. This right does not prevent us from continuing to store your personal data. We will inform you before the restriction is lifted.
8.5.Right to receive your file (data portability)
Your right to data portability entails that you may request us to provide you with your personal data in a structured, commonly used and machine-readable format and to have such data transmitted directly to another controller, where technically feasible. Upon request and where this is technically feasible we will transmit your personal data directly to the other controller.
8.6.Right to object
You also have the right to object to the processing of your personal data, which means you may request us to no longer process your personal data. This only applies in case the ‘legitimate interests’ ground (including profiling) constitutes the legal basis for processing (see par. ‘Legal basis’ above).At any time and free of charge you can object to direct marketing purposes in case your personal data are processed for such purposes, which includes profiling purposes to the extent that it is related to such direct marketing. In case you exercise this right, we will no longer process your personal data for such purposes.
9. How we look after this policy
We have most recently updated this notice on 6 November 2018 and it replaces earlier versions. We will update this privacy notice from time to time and notify you of any changes by posting the revised noticeon our website and informing you, prior to these changes taking effect.
10.Contact details for your privacy inquiries
Coates Screen Inks GmbHAttn of data protection officerWiederholdplatz 190451 NürnbergGermanyE-Mail Address: This email address is being protected from spambots. You need JavaScript enabled to view it.
General Terms and Conditions for Business Dealings with Business Enterprises, Legal Persons under Public Law or a Separate Estate under Public Law (as of: June 2023)
1. GENERAL PROVISIONS
1.1 These general terms and conditions for the sale and purchase of Goods (hereinafter the “Terms”) shall apply to any Contract between the Seller and Buyer, except where the Seller has agreed in writing to any changes.
1.2 These Terms and Conditions of Sale shall also apply to any future Contract with the Buyer, even if they are not explicitly agreed on again.
1.3 Any general or special purchase conditions of Buyer are hereby explicitly rejected and shall not apply to any Contract even if referred to or printed on any Order or any other document or communication of Buyer. These Terms shall also apply to deliveries and services without explicit contract being necessary.
1.4 Seller reserves the right to change these Terms at any time without prior notice. Such change, however, will have no effect on existing contracts or orders that were submitted before any such change of Terms.
1.5 The English language version of these Terms shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions.
2. PARTIES AND DEFINITIONS
The following terms shall have the following meanings:
“Affiliate” means, in relation to a Party, any entity which at that time, directly or indirectly, controls or is controlled by or is under common control with such Party. “Control” means having the majority of the voting rights in the shareholders meeting of the entity.
“Buyer” means the legal entity (including, where relevant, its Affiliates) specified in the relevant Contract as purchasing party.
“Contract” means a legally binding contract (a) resulting from Buyer’s Order and Seller’s Order Confirmation; or (b) executed by Seller and Buyer.
"Delivery Date” means the delivery date agreed between the Parties or if no delivery date is agreed, then within a reasonable time from acceptance of the Order by the Seller.
“DIC Group” means any legal entity, directly or indirectly owned by, controlled by or under common control with DIC Corporation, having its registered address at 35-38 Sakashita 3-Chome, Itabashi-ku, Tokyo 174-8520, Japan, including its Affiliates, subsidiaries, successors and assigns.
“Goods” means the product(s) and/or services specified in the Contract;
“Party” shall mean each of Seller and Buyer and “Parties” shall mean Seller and Buyer
“Order” means the Buyer's written or oral purchase order;
“Order Confirmation” means the document or other written communication issued by Seller to Buyer accepting an Order.
“Seller” means any legal entity of the DIC Group, specified in the relevant Contract as the selling Party.
“Seller’s listed prices” means the last price list submitted by Seller to the Buyer prior to shipment.
“Taxes” means any tax, levy, impost or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
3. QUOTATIONS, ORDERS AND CONFIRMATION
3.1 All Seller’s offers and quotations (written or oral) are non-binding and without obligation. Seller’s offers are open for acceptance within the period stated by Seller in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Seller at any time prior to the receipt by Seller of Buyer’s acceptance thereof.
3.2 Each Order constitutes a separate offer by the Buyer to purchase the Goods subject to these Terms. In case the acceptance of Seller differs from the offer of Buyer, such acceptance constitutes a new non-binding offer of the Seller to the Buyer, which if accepted constitutes a Contract.
3.3 Orders issued by Buyer shall become binding on the Seller only upon the issuance of an Order Confirmation, or upon delivery of the Goods, whichever is earlier.
3.4 Cancellation by Buyer of an Order already confirmed by Seller is subject to Seller’s written acceptance and may be subject to compensation. Statutory and contractual rights to termination and cancellation, including the right to cancellation under Clause 4.4, remain unaffected.
3.5 All Goods are offered subject to availability.
4. PRICES
4.1. The Price and currencies of Seller’s Goods are set out in the order or Seller’s Order Confirmation, or, if not so specified, by Seller’s listed prices in effect at the time of shipment.
4.2. Unless otherwise agreed in writing, the Price includes standard packaging costs, but excludes delivery costs, Taxes, fees for custom clearance or similar charges in any jurisdiction in connection with the sale of the Goods or delivery thereof. The amount of any Taxes shall be for Buyer’s account and shall be added to each invoice or separately invoiced by Seller to Buyer. If Seller grants a discount, this discount only relates to the delivery specifically mentioned in Seller’s Order Confirmation. Seller shall not be responsible for any possible withholding tax obligations that might be applicable to the Buyer according to the laws of the jurisdiction in which the Buyer is resident. In case withholding tax applies to the payments made by the Buyer in exchange of the Goods or services associated with the Goods, the Seller will receive an amount equal to the sum they would have received had no such deductions been made. The Buyer will make such withholding deductions and will pay the full amount deducted to the relevant taxing authority in accordance with applicable law.
4.3. Buyer shall provide Seller with all information and documentation required to determine the VAT regime applicable to the sale and delivery of Products to Buyer (and when failing to do so it shall indemnify Seller against any costs and losses incurred by Seller as a result).
4.4. The Seller may, up to the time of shipment and with at least fourteen (14) days prior written notice, adjust the purchase price of Goods, in the event of :
(a) any factor beyond the Seller's control (including procuring raw materials, foreign exchange fluctuations, increases in Taxes and duties, and increases in energy costs, labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the specification of the Goods; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions
provided however that the Seller is not responsible for any such event and such event was not foreseeable for the Seller.
In such event, the Buyer may within seven (7) days of receipt of such notice in writing cancel the Order so far as the undelivered balance of the Goods is concerned.
4.5. If an order is placed without having expressly agreed on a price, it will be executed at the Seller’s Listed Price applicable at the time of the execution of the Order.
4.6. The Seller may charge Buyer with costs that the Seller incurred in connection with the potential return and/or processing of packaging material to the Buyer.
5. TERMS OF PAYMENT
5.1. Unless otherwise agreed, payment shall be received on Seller’s designated bank account within thirty (30) days of the date of receipt of the Seller's invoice. Time for payment shall be of the essence and non-payment shall be considered a material breach of the Contract.
5.2. If the Buyer defaults on the due date under Clause 5.1, Buyer shall pay interest on any amount not received by Seller on the due date from the due date up to and including the date of actual payment at the statutory default interest rate. No additional notice of default is required therefore. Such interest may be invoiced separately by Seller. Buyer shall reimburse Seller for Seller’s full costs of collection and related legal costs.
5.3. In the event of any late payment of any invoice, the Seller reserves the right to defer delivery of any Goods on any contract between the parties. In the event that the Buyer's financial position deteriorates to such an extent that in the Seller's reasonable opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy, the Seller shall be entitled to demand a reasonable security or advance payment before delivery.
5.4. If Buyer culpably fails to pay any amount and such amount is not received by Seller on the due date, upon Seller’s written demand, the Seller may withhold an according part of contractually owed deliveries until receipt of the aforementioned amount.
5.5. The Buyer will make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount or otherwise unless allowed to do so under Clause 9.7.
6. DELIVERY
6.1. Seller shall deliver and Buyer shall take Goods at the delivery point in accordance with the delivery term specified in the Contract. If no delivery term is specified in the Contract, Seller will deliver the Goods FCA Incoterms 2020 (“Incoterms”) Seller’s manufacturing facility or other facility designated by Seller. If there is a conflict between the Incoterms and the Terms, the Terms shall prevail.
6.2. The Seller reserves the right to deliver the Goods in instalments and to invoice in instalments if (i) the partial delivery is reasonably usable for the Buyer and (ii) the Buyer does not incur any significant additional expenses or costs as a result.
6.3. The delivered quantities may deviate by 10 % at the maximum from the quantity quoted in the Order Confirmation, unless the Buyer proves that the exact quantity was significant to him when submitting the Offer or Acceptance and this significance was made evident to the Seller. A variation in quantity of delivered Goods from the quantity specified in the Contract shall be deemed accepted by Buyer unless the Buyer notifies the Seller of such excess without undue delay in writing. In any event, Buyer shall be invoiced and shall pay the quantity actually delivered.
6.4. The Delivery Dates specified by Seller are estimates only and non-binding unless fixed delivery dates or deadlines have been expressly confirmed by the Seller or agreed in writing. In case of a non-binding delivery date, the Seller will not be liable for any loss or injury arising directly or indirectly from a delay in delivery. However, Seller shall use commercially reasonable effort to observe the estimated Delivery Date. If Buyer, contrary to its obligation, refuses to accept delivery of the Goods, or when such delivery is not possible due to circumstances that are attributable to or for the risk of the Buyer, Seller may, without prejudice to its other rights and remedies, arrange for the storage of the Goods at the expense and risk of Buyer.
7. TRANSFER OF RISK AND OWNERSHIP
7.1 Risk of damage to or loss of Goods will pass to Buyer upon delivery by Seller to Buyer in accordance with the applicable INCOTERM agreed between the Parties in writing. If no INCOTERM is agreed, the transfer of risk and costs from Seller to Buyer takes place at the moment that the Seller has loaded their goods at their premises or place of business onto the transportation vehicle of the Buyer or third party carrier engaged by the Buyer. If the Goods are ready for dispatch and if dispatch is delayed for reasons for which Seller is not responsible, the risk shall pass to Buyer with the notification that the Goods are ready for dispatch.
7.2 Notwithstanding delivery and the passing of risk, ownership of the Goods shall not pass to the Buyer until the Seller has received the payment in full of the price of the Goods.
7.3 Until ownership of the Goods has passed to Buyer, Buyer shall (i) not assimilate, transfer or pledge any of the Goods, or grant any right or title in the Goods to any third party, except in the normal course of business and against payment or subject to retention of title; and (ii) unless the Goods are processed in the ordinary course of business, ensure that the Goods remain identifiable as Goods owned by Seller. In the event of breach by Buyer of this clause, Seller may require that Buyer return to Seller, at Buyer’s cost (including costs for de-installation), all Goods in which the title has not yet passed and Buyer shall fully cooperate to enable Seller to collect such Goods and grant Seller (or its representative) free access to the location of the Goods.
7.4 In the event that the Buyer processes the Goods delivered by the Seller in the ordinary course of business, Seller shall be considered manufacturer and shall directly acquire sole title to the newly produced products. If the processing involves other materials, the Seller shall directly acquire joint title to the newly produced products in the proportion of the invoice value of the Goods delivered by the Seller to the invoice value of the other materials.
7.5 Buyer shall have free disposal of the Goods owned by the Seller in the ordinary course of business, provided that Buyer meets its obligations under the relevant Contract in due time. Buyer already assigns to the Seller all claims in connection with the sale of Goods to which the Seller reserves the right of retention of title. Should the Seller have acquired joint title in case of processing, combination or blending, such assignment to the Seller takes place in the proportion of the value of the goods invoiced by the Seller.
8. ADVERTISING
Any suggestion or representation concerning the Goods (catalogues, brochures, price lists, samples, advertising materials etc), including any possible use of the Goods made by the Seller in any sales or marketing literature or in any response to a specific enquiry is given in good faith, but it is entirely for the Buyer (and its customers) to satisfy themselves fully as to the suitability of the Goods for any particular purpose. No suggestion or representation relating to such possible use shall form part of the Contract.
9. INSPECTION, DEFECTS AND REMEDIES
9.1 The Product shall at the time of delivery comply with Seller’s specifications for the Goods, and/or the specifications as expressly agreed in writing by Buyer and Seller in the Contract or otherwise. Unless expressly agreed between Seller and Buyer in writing, the Seller does not assume any other warranty, including as to quality, description, or fitness for any purpose.
9.2 Buyer is responsible for inspecting and testing the Goods upon their arrival and prior to proceeding to the storage or use thereof. In the case of Goods for further processing, an inspection and testing must in any case be carried out immediately before processing.
9.3 The Buyer shall, within a reasonable period of time, but no later than ten (10) business days of the delivery of the Goods, notify the Seller in writing of any defect by reason of which the Buyer alleges that the Goods delivered are not in accordance with the specification and which should be apparent on reasonable inspection, or following the discovery of a defect that was not apparent on reasonable inspection, within a reasonable period of time but no later than ten (10) business days following the discovery.
9.4 If the Buyer fails to duly inspect the goods and/or to give notice of defects, Seller's liability for the defect not notified or not notified in due time or not notified in due form is excluded according to the statutory provisions. In the case of goods intended for further processing, this shall also apply if the defect only became apparent after such processing as a result of the breach of one of these obligations; in this case, there shall in particular be no claims by the Buyer for reimbursement of corresponding costs (‘removal costs’).
9.5 If no guarantee is in place and the Goods are proved to the reasonable satisfaction of the Seller not to comply with the specification, the Seller at its discretion will:
(a) replace the Goods and/or re-perform services free of charge;
(b) refund the price of the Goods; or
(c) agree a reduced fee for such Goods
and this shall be the sole and exclusive remedy of the Buyer in respect of non-conformance with the specification. In cases of Clause 10.2 Buyer’s statutory rights and remedies remain unaffected. If the remedy chosen by the Seller is unreasonable for the Buyer, the Buyer may refuse it. The Seller's right to refuse a remaining remedy under the statutory conditions remains unaffected. If the remedy under Clause 9.4 (a) fails twice, the Buyer has the right, under the statutory provisions, to reduce the fee or, at its discretion and also under the statutory provisions, to withdraw from the contract.
9.6 In case of Clause 9.5 (a)-(b), Buyer is obliged upon request to hand over the defective goods to the Seller for inspection but has no right to return the Goods to the Seller. The Seller reimburses the transport costs after inspection if the Goods are defective. If it turns out that the Goods are not defective, the transport costs are not to be reimbursed by the Seller and Buyer has to carry the necessary transport costs and in addition to reimburse reasonable and necessary inspection costs.
9.7 Defects not stemming from defective material or faulty construction, but from faulty application, storage, adding of material additives, deviation from instructions or any other behavior for which Buyer is responsible, are not covered by the warranty obligation.
9.8 Buyer may only set off claims from the Seller against or exercise rights of retention based on undisputed or finally adjudicated claims.
10. LIABILITY
10.1 Subject to this Clause 10, the Seller shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
10.2 Seller, nowhere in these Terms, does seek to exclude or restrict its liability in relation to: (a) death, health or personal injury; (b) fraud; (c) gross negligence or (d) illegal intention and (e) any matter in respect of which, by law, it is not permitted to restrict its liability, especially product liability.
10.3 The Seller shall not be liable in the event of simple negligent violation of non-material contractual obligations.
10.4 Seller will not under any circumstances be liable for any lost profits, lost savings, loss of data, loss of reputation, loss of goodwill, indirect, incidental, punitive, special or consequential damages, whether or not such damages are based on tort, warranty, contract or otherwise, even if Seller has been advised, or is aware, of the possibility of such damages.
10.5 Seller shall not be liable for any (end)products that the Buyer manufactures or processes otherwise using the Goods delivered by Seller, unless the defect in the (end)product is caused by a defect in the Goods, subject to the relevant provisions herein.
10.6 Buyer agrees to indemnify, defend and hold Seller harmless from all losses, damages and costs (including reasonable legal costs) culpably incurred in connection with any third-party claims, including intellectual property infringement claims, resulting from the sale of Goods or other goods manufactured using the Goods and for which Seller is not liable under these Terms.
10.7 Claims for defects shall become statute-barred 12 months after delivery of the goods. This does, for clarification, not apply to claims for damages in the cases of Clause 10.2. Then, the statutory limitation period shall apply.
11. REACH
11.1 The Seller does not make or give any representation or warranty that the Goods are or will be compliant with the requirements of REACH (the Registration Evaluation Authorisation and Restriction of Chemicals Compliance Regulation 1907/2006 (as amended)) and all implied warranties as to compliance with REACH (“REACH Compliance”) are hereby excluded to the fullest extent permitted by law. Save to the extent caused by any breach by the Seller of the warranty, the Seller shall not be liable to the Buyer for any REACH Compliance failure by the Seller or any third party in respect of the Goods; Clause 10.2 remains unaffected.
11.2 Without prejudice to the foregoing Clause 11.1, the Seller warrants that it shall use its reasonable endeavours to obtain and maintain REACH Compliance in respect of the Goods or procure the same. The foregoing warranty shall not apply in respect of any substance where, pursuant to REACH, it is the Buyer’s responsibility to obtain and/or procure REACH Compliance to the extent that any non-compliance is caused by any act or omission of the Buyer.
11.3 In the event that the Seller receives written notice from any competent authority, or in its reasonable opinion decides, that any of the Goods are not or will not become REACH compliant it shall inform the Buyer in writing within a reasonable time.
11.4 The Seller may at any time on or after informing the Buyer pursuant to Clause 11.3 suspend any further deliveries of the relevant goods and/or terminate the Contract in respect of the relevant Goods.
11.5 The Buyer represents, warrants and undertakes to the Seller that it shall promptly provide such information as may reasonably be required from time to time in order to obtain and maintain REACH Compliance in respect of the Goods and shall comply with its obligations under REACH.
12. CONFIDENTIALITY
Each Party hereby undertakes not at any time to divulge any of the terms of the Contract or use any information in relation to the other Party’s business or any other information received from the other Party in relation to the Contract of a confidential or proprietary nature other than for the purposes expressly envisaged by these Terms provided that the Seller can divulge such information to any party to whom it assigns or transfers all or part of this Contract.
13. INTELLECTUAL PROPERTY
13.1 By purchasing Goods, Buyer shall not obtain any rights to any existing or future intellectual property in or relating to the Goods, including (without limitation) any trademarks, copyright, patents or rights in designs and, where such intellectual property is capable of registration, whether or not the same is registered.
13.2 The Buyer shall not use the Seller's name, logo or any other identification marks for the purpose of advertising or publicity without the prior written consent of the Seller.
13.3 If the Goods have been manufactured to the specification or design of the Buyer, the Buyer shall indemnify the Seller and keep the Seller indemnified from and against any and all losses, liabilities, costs, claims, demands, expenses and fees (including, but without limitation, legal and other professional fees), actions, proceedings, judgments awarded and damages suffered or incurred by the Seller arising out of or in connection with any infringement of any Intellectual Property Rights of any third party where such liability arises as a consequence of the specification or a modification of the specification supplied by the Buyer. The Buyer may (partly) avoid liability by proving that the Seller is (partly) responsible for the aforementioned costs.
14. TERMINATION
14.1 Without limiting its other rights or remedies, the Seller may extraordinarily terminate this Contract with immediate effect by giving written notice to the Buyer if:
(a) the Buyer commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of the Buyer being notified in writing to do so;
(b) the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business which is relevant for the Contract so that the adequate fulfilment of Seller's claims under the Contract are endangered; or
(d) the Buyer's financial position deteriorates to such an extent that in the Seller's reasonable opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy and the Buyer refuses to follow the measures in Clause 5.3.
14.2 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract if the Buyer culpably becomes subject to any of the events listed in Clause 14.1. The Seller has the same right if it reasonably believes due to reasons which arose after the closing of the Contract that the Buyer is about to become subject to any of them. The right to suspend provision of the Goods shall cease to apply if the consideration is performed or security is provided for it.
14.3 On termination of the Contract for any reason, the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
14.4 Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
15. DATA PROTECTION
Any information related to an identified or identifiable natural person (“Personal Data”) which is shared between the Parties shall be collected by the Disclosing Party and shall be processed by the Recipient in compliance with applicable data protection laws and this Agreement. If Recipient has its registered office outside the EU/EEA in a country not providing an adequate data protection level recognized by the European Commission, the Parties shall take the necessary steps to ensure that Personal Data is transferred according to applicable data protection laws; to this end, any Party can request that the Parties execute EU-Standard Contractual Clauses between the Parties, unless any other valid legal basis for processing Personal Data exists.
16. TRADE COMPLIANCE
Buyer warrants and represents that neither this supply of the Goods nor any subsequent supply of the Goods (or items into which Goods have been incorporated) by Buyer to a third party, shall place Seller or its Affiliates in breach of any applicable export control or sanctions rules (including, but not limited to, those of the UN, EU, UK and US). Buyer's failure to comply with this clause shall constitute a non-remediable material breach of this Agreement which allows for immediate termination of the Contract. Buyer shall indemnify Seller against any losses, liabilities, damages, costs (including legal fees) and expenses incurred by, or awarded against, Seller as a result of any breach by Buyer of this clause.
Buyer is responsible for compliance with all laws and regulations regarding import, transport, storage and use of the Goods.
17. FORCE MAJEURE
17.1 The Seller shall not be in breach of the Contract nor liable for delay in performance, or failure to perform, any of its obligations under the Contract resulting from a Force Majeure event. “Force Majeure” means any circumstances or occurrences beyond the reasonable control of Seller, whether or not foreseeable at time of the Contract, as a result of which Seller cannot reasonably perform or execute its obligations, including but not limited to: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, war, riots or civil commotion, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) strikes, lockouts or other trade disputes (whether or not involving employees of the Seller); (e) fire, breakdown of machinery, transport delays or interruptions, explosion or accident; (f) government restrictions or regulations, including, without limitation, imposing an export restriction, quota or prohibition; (g) delay in delivery by the Seller’s suppliers or obtaining suitable materials, or non-performance by the Seller's suppliers or subcontractors, or non-delivery or delay in delivery of raw materials or semi-finished products to the extent that the Seller is not responsible, and (h) interruption or failure of utility service.
17.2 If a Force Majeure event occurs, Seller shall as soon as reasonably practicable notify the Buyer, and Seller’s performance will be suspended for the period of such Force Majeure event. In the event that the Force Majeure event extends (or is reasonably expected by Seller to extend) for a period of three (3) consecutive months, Seller will be entitled to cancel all or the affected part (if reasonable to the Buyer) of the Contract without any liability towards Buyer. In no event shall the Seller be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, a Force Majeure event.
18. APPLICABLE LAW, JURISDICTION, DISPUTE RESOLUTION
18.1 All offers, quotations, Order Confirmations and Contracts are governed by and construed in accordance with the laws of Germany. Place of performance, unless stated otherwise in a Contract, shall be Ludwigshafen, Germany.
18.2 All disputes arising out of or in connection with any Contract shall first be attempted by Buyer and Seller to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation. All disputes which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the courts of Ludwigshafen, Germany. The Seller shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction.
18.3 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any offer, confirmation or Contract. Nothing in this Section shall be construed or interpreted as a limitation on either Seller’ or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
19. MISCELLANEOUS PROVISIONS
19.1 Notice
Any notice required or permitted to be given by either party to the other under these Terms shall be in writing and addressed to that other party at its address shown on the Order or in accordance with such other contract details as either party may provide to the other from time to time and delivered personally or sent by registered mail, courier, or e-mail. A notice shall be deemed to have been delivered: if delivered personally, when left at the address referred to above; if sent by registered mail, three business days from the time of posting, if the recipient does not prove otherwise; if delivered by courier, on the date and at the time that the courtier’s delivery receipt is signed; or, if sent by e-mail, when the Party sending such communication receives confirmation of such delivery by the server within usual business hours, otherwise the next business day.
19.2 Relationship of the Parties
Nothing in these Conditions or any document referred to in either document or any arrangement contemplated by the Parties shall be construed as creating a partnership between the Parties for any purpose and neither Party shall have the power or authority to bind the other Party or impose any obligations on it for the benefit of any third party.
19.3 Assignment of Rights
Neither party shall assign the Contract, any rights or claims under the Contract or any part thereof without the written consent of the other party, except that Seller may without the consent of Buyer assign the Contract, any rights or claims under the Contract or any part thereof to (i) an affiliated company of the DIC Group or (ii) a third party if such assignment or transfer is in connection with the transfer of all or a substantial part of the Seller’s business to which the Contract relates. A consent provided hereunder shall not release the assigning party from its obligations and liabilities under the Contract.
19.4 Gaps and Partial Nullity
If any single provisions in these Terms are null or void or show a gap, the effectiveness and validity, respectively, of the other provisions is not affected thereby. Null or void provisions shall be replaced by means of interpretation which comes closest to the economic sense and intended commercial purpose of the null or invalid provisions. The same shall apply in the case of a gap.
19.5 Deviations
No modification or deviation from these Terms and/or the Contract
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