GENERAL TERMS & CONDITIONS OF SALES

Article 1 General

1. These general terms and conditions apply to and are part of all offers and agreements related to the delivery of goods (“the Goods”) and/or the rendering of services (“the Services”) by the applicable company of the SDL Group (“SDL”) to a customer (“the Customer”).

2. In this general terms and conditions, SDL shall mean the applicable company(s) of the SDL Group that engages with the Customer.

3. Deviations from these general terms and conditions apply only if expressly accepted in writing by SDL and only pertain to the agreement for which the deviations have been accepted.

4. The applicability of the Customer’s general terms and conditions and any other general conditions is hereby explicitly rejected.

5. In these general terms and conditions, “Agreement” means any agreement for the delivery of Goods and/or the rendering of Services by SDL to the customer. Insofar as these general terms and conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.

6. The term 'in writing' shall have the following meaning: by letter, by fax or by e-mail.

Article 2 – Offers

1. SDL’s offers are valid for a ten (10) working days period only and are without obligations. SDL is entitled to withdraw any offer (without incurring any liability) within two (2) working days after receipt of the acceptance of the offer by the Customer.

2. Contents of price-lists, brochures and other information provided in connection with an offer will be as accurate as possible, but are only binding if expressly confirmed in writing by SDL.

3. By accepting SDL’s offer, the Customer hereby agrees to be bound by these General Terms and Conditions of Sale. Acceptance by the Customer under this clause can be in writing, or through the Customer’s acceptance of the pro forma invoice, or the Customer’s payment (partial or full) for the Goods or Services.

4. Samples supplied by SDL may contain minor deviations in colour, composition, taste and form in comparison with the Goods ultimately delivered.

5. Any offer made or undertaking given by a representative of SDL shall only be binding insofar as this is confirmed in writing.

Article 3 – Agreement

1. Agreements are only binding on SDL by its written order confirmation, or, if confirmed orally, by submission of the pro forma invoice, which shall be considered as the written order confirmation.

2. If an order confirmation by SDL differs from the order of the Customer, then the Customer is deemed to have consented to the contents of the order confirmation by SDL, unless a written notice to the contrary is received by SDL within two (2) working days after receipt by the Customer of the confirmation.

3. Any agreement will be concluded under the continuing condition that the Customer, according to the credit insurance company or to SDL, is sufficiently creditworthy.

4. If an Agreement is entered into with more than one Customer, then such Customers will be jointly and severally liable for their obligations thereunder.

5. Slight deviations with customary tolerances shall be permitted at the execution of the agreement.

Article 4 - Prices

1. All prices are without Value Added Tax (VAT), Goods and Service Tax (GST) and any other taxes levied by any government. Prices are in EURO, USD or other currency as indicated in the offer, and are based on Ex Works, agreed place of delivery, unless otherwise agreed upon in writing between SDL and the Customer.

2. Any price cited by SDL shall be based on the existing monetary conditions, labour costs, procurement prices, duties, taxes and other levies, subsidies and the like prevailing at the time the Agreement concerned is concluded. In the event that one or more of these cost price components increase after conclusion of the Agreement but before the relevant Goods have been delivered, SDL shall be entitled to pass on any reasonable price increase to the Customer. Price fluctuations as a result of coercive government measures, such as an increase in VAT/GST among others, will always be for the account of the Customer and will in no case entitle Customer to dissolve the Agreement.

Article 5 – Delivery – Delivery date

1. Unless explicitly agreed upon otherwise in writing, the delivery shall be made "Ex Works" agreed place of delivery. The Customer shall cooperate with the delivery and take receipt of the Goods. If the Customer fails to take receipt of the Goods for a period longer than ten (10) working days, then SDL is entitled to dissolve the Agreement without prejudice to its right to claim compensation for damages and costs. Prior to dissolution, if any, the Goods will be kept available at the expense and risk of the Customer.

2. Indicated delivery dates are approximations and shall under no circumstances be deemed to constitute fatal dates, and are determined in the expectation that there are no impediments to the delivery of the Goods. SDL will not be in default without being notified thereof, which notice must be issued in writing and which notice must set forth reasonable time period, in no event less than twenty (20) working days, within which delivery is required to take place.

3. If the delivery date is exceeded, the Customer shall not be entitled to cancel or terminate the Agreement, unless the delivery date is exceeded with more than 6 weeks. The Customer will never be entitled to any compensation in case of late delivery.

4. The delivery time shall commence as soon as the all the following has been achieved—the relevant Agreement is concluded; SDL is in possession of all documents and details to be provided by the Customer; and SDL has accepted any security for payment which may have been agreed or has received any agreed prepayment.

5. SDL shall be entitled at all times to make partial deliveries, unless explicitly agreed upon otherwise. Each partial delivery shall be deemed to represent a separate Agreement. SDL shall be entitled to demand payment for each partial delivery before proceeding with any other.

6. SDL is entitled to suspend the performance of any obligation it may have towards the Customer until the latter has met all of its (payment) obligations towards SDL.

Article 6 – Transport and risk

1. If it is agreed that delivery will not take place “ex works”, agreed place of delivery, then SDL will- in the absence of instructions of the Customer – determine the method of transport, shipment, packaging and suchlike, without SDL bearing any responsibility, unless otherwise agreed.

Article 7 – Warranty

1. The goods are only subject to warranties, such as shelf life and quality warranties, given by SDL’s Suppliers.

Article 8 – Claim notification

1. The Customer is obliged to check the Goods upon delivery for any defects. The Customer shall report to SDL any visible discrepancies in the Goods within Forty-eight (48) hours from the moment of delivery, otherwise, the Goods shall be considered to have arrived in proper condition. Defects which can only be observed at a later stage, shall be reported to SDL immediately after discovery but it any case within 10 working days after delivery.

2. SDL shall be afforded reasonable opportunity and facilities to investigate any claim made, and the Customer will, at first request of SDL, return any Goods subject of a claim, securely packed and at the Customer's risk and expense to SDL for examination.

3. In cases of a justified and timely claim, SDL will, acting at its own discretion, either redeliver free of charge or issue a credit note to the Customer.

4. The Customer will forfeit any right it may have under the Agreement if it has not met its obligations under this article, unless the Customer proves that it cannot be blamed therefor.

5. Complaints about the invoice must be notified to SDL within 2 working days after invoice date.

Article 9 – Payment

1. SDL shall at all times have the right to demand full or partial payment in advance. Payment must be made no later than five (5) working days prior to the delivery date, unless otherwise agreed upon in writing. The Customer will not be entitled to a discount, unless otherwise agreed upon in writing.

2. The Customer will not be entitled to suspend the performance of its obligations towards SDL nor is the Customer entitled to any set-off.

3. If the Customer fails to pay the amount due at the due date, then (i) the Customer will be in default without a notice of default being required and (ii) the Customer shall pay interest at an interest rate of 1.5% per month over any such amount as of the due date until the day it is fully paid, without prejudice to any other right SDL may have. All costs involved in collecting the amount due, both judicial and extrajudicial, shall be for the account of the Customer. The extrajudicial costs owed will never be less than 15% of the sum to be collected subject to a minimum of € 200,-. If SDL can prove that it has incurred higher costs, that were necessary in all fairness, then these, too, shall be eligible for compensation.

4. Furthermore, subject to any other rights SDL may have pursuant to the law or the Agreement, in the absence of timely payment it shall be entitled either to suspend further delivery or to terminate all or part of the relevant Agreement without the need for a notice of default or judicial intervention, such at its own discretion and subject to SDL's right to seek compensation for any harm it has suffered.

5. At any rate, the entire purchase price shall fall due with immediate effect in the event that the Customer fails to effect timely payment, or if he goes bankrupt, is granted a suspension of payments, is placed in the care of a guardian, his possessions are attached or in the event that the Customer’s business is liquidated or dissolved.

6. Upon or after entering into the Agreement and before its implementation, SDL will be entitled to demand a guarantee from the Customer that both the payment obligations and any other obligations arising from this Agreement will be fulfilled. Refusal by the Customer to provide the required security gives SDL the right to suspend its obligations and ultimately, without any notice of default or legal intervention, the right to dissolve the Agreement wholly or partially, without prejudice to his right to compensation for any damages suffered by him.

Article 10 – Liability

1. The Customer shall re-sell the Goods only in pre-agreed markets. SDL is not liable for any action taken against the Customer by any third party for the Customer’s sale of the Goods outside the pre-agreed markets.

2. Except in the case of legal liability pursuant to provisions of mandatory law and a deliberate act or omission, or gross negligence on the part of SDL, any liability of SDL for any damage is excluded. Liability for any indirect or consequential damage including lost profits or loss ensuing from late delivery is expressly excluded.

3. Notwithstanding the other provisions of the Agreement, SDL is never liable for:

(a) a non-fulfilment or breach of its obligations under Agreement due to force majeure as defined in article 12 hereof

(b) acts or omissions of employees of SDL or third parties engaged by SDL, including persons recommended by SDL, with the exception of intentional acts or wilful misconduct of executives of SDL;

(d) Goods, which have been processed, adapted or altered in any way whatsoever;

(e) a breach of intellectual or industrial property rights of any third parties, unless the Customer proves that SDL was aware of such breach at the time of the delivery;

(f) minor deviations in taste, colour, composition, quantity, form and size which are inherent in the nature of the Goods and/or the method of loading;

4. In all cases where SDL is obliged to pay compensation for damages, the aggregate liability of SDL to the Customer under any theory or ground shall at all times be confined to the net invoice value of the Goods or Services to which the liability relates. In no event shall the liability of SDL exceed that of its supplier.

5. In connection with (personal) damages sustained as a result of a defect of the Goods, the Customer must direct its claims exclusively to the manufacturer of such defective Goods.

6. Any claim of the Customer against SDL under or relating to the Agreement shall lapse by the mere expiry of one (1) year after the delivery (including partial delivery) of the relevant Goods or rendering of Services.

Article 11 – Retention of title

1. The title of Goods will remain with SDL and will only be transferred to the Customer after the Customer has paid (i) the purchase price, including costs, damages and interest for Goods delivered under any Agreement, if any; and/or (ii) the consideration for Services rendered under such Agreement; and (iii) any amount payable due to the Customer’s failure to comply with his obligations pursuant to this Agreement or any other, if any.

2. The Customer has a duty of care with regard to the Goods covered by the retention of title, and the Customer must insure them adequately and on its own account against loss, theft and other damages for which insurance is normal in the country in which the Customer has its offices.

3. The Customer is obliged to keep and/or render the Goods, subject to retention of title in SDL’s favour, identifiable and to keep them separate from each other and from other products held by the Customer.

4. Until title to the Goods passes to the Customer, the Customer shall not be entitled to transfer title to them to a third party, to tender them by way of security, to encumber or to pledge them, or to place them at the disposal of a third party in any other way. Nevertheless, the Customer shall be entitled to sell these Goods in the normal conduct of his business.

5. The Customer shall at all times help SDL exercise its right of ownership. As long as retention of title applies, the Customer shall have a duty to grant SDL access to his buildings and premises where the Goods are held.

6. When first so requested by SDL, the Customer shall be obliged to pledge to SDL any accounts receivable he acquires, in respect of Goods supplied by SDL, which are subject to retention of title and have been sold to his buyers.

Article 12 – Force Majeure, events of default

1. In the event of force majeure, SDL shall be entitled to withdraw its quotations and, suspend deliveries without judicial intervention, and it shall not be required to provide any compensation. In addition to what the law considers to be force majeure, force majeure of SDL should be understood to mean acts of God, strikes, labour unrest, lockouts, riots, default or delay on the part of SDL suppliers of the Goods, acts of war, epidemics, boycotts, embargos, sanctions, fire and explosions, communications line failures, power failures, earthquakes, floodings and similar disasters, illness of employees of SDL or third parties called in by SDL in connection with the implementation of the Agreement, measures taken and/or prohibitions issued by the applicable government and/or a foreign government by which SDL is bound, unforeseen and unpredictable traffic impediments, accident(s) with a means of transport employed in connection with the implementation of the Agreement as well as unforeseen technical defects in these means of transport, failure to perform by the suppliers of SDL, as well as all other unforeseen circumstances that prevent SDL from implementing the Agreement properly and on time and that are not for the account and risk of SDL. Failure to make (monetary) payments can never be attributed to force majeure.

2. Both parties are entitled to dissolve the Agreement by issuing a written notice to that end if SDL’s performance is restrained or barred by force majeure for a period in excess of three months, without the Customer being entitled to any compensation. Where SDL has already executed part of an Agreement, the Customer shall pay the purchase price for any Goods that have been delivered.

Article 13 – Intellectual property rights

1. The customer shall not remove, cover or alter any indications on the Goods as to trade or brand names, patents or other intellectual or industrial property rights.

Article 14 - Suspension and termination

1. In the event that the Customer fails to comply with his obligations pursuant to an Agreement into which he has entered, or fails to do so properly or on time, if there are grounds to fear that this will occur, or in the event that the Customer applies for a suspension of payments, files for bankruptcy or liquidates his business, SDL shall be entitled to suspend or terminate the Agreement concerned without the need to give notice of default or for judicial intervention, and it shall not have a duty to provide any form of compensation.

2. Any claim on the part of SDL pertaining to a part of the Agreement which has already been executed, or harm suffered as a result of its suspension or termination, which shall be deemed to include loss of profit, shall fall due with immediate effect.

Article 15 - Cancellation

1. If the Customer wishes to cancel the Agreement without SDL having failed in the performance thereof and if SDL so agrees, SDL is entitled to charge the expenses, damages and lost profit.

Article 16 – Governing law; disputes

1. These general terms and conditions and any agreements entered into by SDL shall be solely governed by and construed in accordance with the law of Hong Kong. The applicability of the Vienna Convention on the International Sales of Moveable Goods (1980) or any other future international regulation on the purchase of movable goods is explicitly excluded.

2. If any part of any provision of this Terms and Conditions shall be invalid or unenforceable, then the remainder of such provision and all other provisions shall remain valid and enforceable.

3. No delay in exercising or non-exercise by SDL of any of its rights under or in connection with the Agreement(s) or these general terms and conditions shall operate as a waiver or release of that right. Rather, any such waiver or release must be specifically granted in writing signed by SDL. The single or partial exercise of any right, power or remedy provided by law or under the Agreement(s) or these general terms and conditions shall not preclude any other or further exercise of it or the exercise of any other right, power or remedy.

4. All disputes arisen under the Agreement between the Customer and SDL shall be submitted to the competent court of Hong Kong, unless SDL would elect to submit the dispute to the competent court in the place where the Customer has its registered offices, without prejudice to each party’s right to file for provisional measures with another competent court.

5. The provisions of article 16.4 leave intact the right of the parties to obtain a settlement by means of arbitration of the Hong Kong International Arbitration Centre by one or more arbitrator(s) using the HKIAC Rules and Procedures. The place of arbitration will be Hong Kong. The arbitral procedure shall be conducted in the English language. (last updated on 21 December 2016)