General terms and conditions of sale and delivery
The following general terms and conditions of sale and delivery (hereinafter "Terms of Delivery") apply exclusively to the entire current and future legal relationship between Hempel Intermetaux S.A. (hereinafter "Hempel") and Purchaser with respect to the purchase of movable goods ("Objects of Delivery"). By the placing of an order, at the latest upon receipt of the ordered Objects of Delivery, Purchaser accepts the exclusive binding force of these General Terms of Delivery. If Purchaser uses terms and conditions which are contrary, different or complementary to these Terms of Delivery, their application vis-à-vis Hempel is excluded, even if such terms and conditions are not expressly objected to by Hempel.
2. Offer and Conclusion of Contract
The offers made by Hempel shall be non-binding. By the respective order the Purchaser makes an offer to which it is bound for a period of 5 business days following receipt by Hempel. A contract shall not become effective until it has been confirmed by Hempel in a written order confirmation and shall be governed exclusively by the contents of the order confirmation and/or by these Terms of Delivery. Oral promises or agreements need to be confirmed in writing by Hempel in order to be valid.
3. Delivery Periods and Deadlines
3.1 Delivery periods and delivery deadlines are only binding if they have been confirmed by Hempel in writing and Purchaser has provided Hempel in a timely manner with all information, documents, permits and releases required for the performance of such delivery and has paid any advance payments in the manner and amount as agreed upon by the parties. Delivery periods agreed upon by the parties start on the date the respective order is confirmed or accepted, as the case may be. In the event of additional or supplementary orders, the delivery periods shall be extended accordingly.
3.2 Without prejudice to the terms of clause 10, events which are unforeseeable, unavoidable and lie beyond the control of Hempel and for which Hempel does not bear responsibility, such as Acts of God, war, natural disasters, strikes, lock-outs, governmental decrees or similar events, shall release Hempel from its obligation to make timely delivery or perform timely for the duration of such event. Periods agreed upon between the parties shall be extended by the length of such disturbance; Purchaser shall be informed about the occurrence of such disturbance in a reasonable manner. If the end of such disturbance is not foreseeable or if the disturbance lasts for more than two months, both parties shall be entitled to cancel the Agreement.
3.3 With regard to Objects of Delivery which Hempel does not produce itself but purchases from subcontractors, the correct and timely self-supply shall be reserved.
3.4 Without prejudice to the terms of clause 10, if deliveries by Hempel are delayed, Purchaser shall be entitled to cancel the Agreement only if Hempel is responsible for the delay and after a reasonable grace period set by Purchaser has expired without any success.
3.5 If Purchaser fails to accept the delivery or breaches any other duties of cooperation, Hempel is entitled (without prejudice to any of its other rights) to appropriately store the Object of Delivery at Purchaser's risk and expense or to cancel the Agreement.
3.6 Hempel may make partial deliveries for good reason to the extent they are reasonably acceptable for the Purchaser.
4. Shipment, Risk, Insurances
The following Sections 4.1 through 4.3 shall only apply if the parties have not validly agreed on the application of the INCOTERMS 2000 or such INCOTERMS 2000 do not contain a corresponding valid provision. 4.1 In the absence of any other instruction by Purchaser, shipment shall be made by using a reasonable method of shipment in the usual type of packaging.
4.2 The risk in the Objects of Delivery shall pass to Purchaser upon hand-over of the Objects of Delivery to the carrier or to Purchaser itself. If the hand-over or shipment are delayed due to reasons for which Purchaser is responsible, the risk in the Objects of Delivery shall pass to Purchaser on the date on which notice was sent that the Objects of Delivery are ready for shipment.
4.3 Transport insurances shall only be taken out at Purchaser's request and costs.
5. Prices, Terms of Payment
5.1 The prices agreed upon between Hempel and Purchaser are fixed prices.
5.2 Unless the parties have agreed on fixed prices, the respective applicable price results from the pricing formula contained in the order / order confirmation. In accordance with this pricing formula based on the prices published for the month preceding the delivery a provisional invoice is issued and sent to Purchaser. With respect to this provisional invoice the date of payment set forth in Section 5.5 shall apply. As soon as the final prices for the Objects of Delivery are published at the end of the month in which the delivery was effected, Hempel shall issue a final invoice in accordance with the pricing formula and send it to Purchaser. Excess payments, if any, shall be reimbursed by Hempel within the period set forth in Section 5.5. Supplementary payments, if any, shall be made by Purchaser also in accordance with Section 5.5.
5.3 If after the conclusion of a contract Hempel is faced with unforeseeable increases in costs for material and wages as well as in particular increases in energy costs, Hempel shall be entitled, at its reasonable discretion, to increase the agreed price to the extent necessary to cover these costs increases.
5.4 Hempel is entitled to issue partial invoices for partial deliveries pursuant to Section 3.6.
5.5 Each invoice of Hempel is due for payment without any deductions within 30 days of receipt of the invoice. If this period for payment expires without success, Purchaser shall be in default. Payments by Purchaser shall only be deemed effected if Hempel can dispose of the amount.
5.6 In the event that Purchaser is in default of payment, Hempel is entitled to demand default interest in the applicable statutory amount. The right to assert a claim for further damages caused by such default of payment shall remain unaffected.
5.7 Bills of exchange and cheques shall only be taken on account of performance upon special arrangement and without any bank charges or other costs for Hempel.
5.8 Purchaser is only entitled to a set off if its counterclaim is uncontested or has been finally adjudicated.
5.9 Purchaser is entitled to assert a right of retention only to the extent that its counterclaim is based on the same contract and is uncontested or has been finally adjudicated.
5.10 If Hempel becomes aware of the risk that Purchaser may possibly not be able to perform ("mangelnde Leistungsfähigkeit") after conclusion of the contract, Hempel is entitled to make any still outstanding deliveries only against advance payment or provision of security. If such advance payments or securities have not been made or rendered even after expiration of a reasonable grace period, Hempel may rescind, in full or in part, the individual or all agreements concerned. Hempel's assertion of further rights shall remain unaffected.
6. Retention of Title
6.1 Hempel shall retain title to the Objects of Delivery until any and all claims of Hempel arising under its business relationship with Purchaser have been fully paid.
6.2 In the case of current accounts, such retention of title shall be security for any balance of unpaid invoices to which balance Hempel is entitled.
6.3 Purchaser shall only be allowed to sell the Objects of Delivery subject to retention of title (“Retained Products” - "Vorbehaltsprodukte") in the ordinary course of business. Purchaser already now assigns its claim for the purchase price arising from the onward sale of the Retained Products to Hempel, and Hempel hereby accepts such assignment. Purchaser is granted the revocable authorization to collect in trust the claims assigned to Hempel in its own name. Hempel may revoke such authorization and the right to resell the Retained Products if Purchaser is in default of the performance of any material obligation such as payment to Hempel; if the authorization is revoked, Hempel is entitled to collect the respective claim itself. Purchaser is not entitled to pledge the Retained Products, grant chattel mortgages on them or make other dispositions endangering Hempel's title to them. In case Purchaser sells the Retained Products after processing or transforming or after joining, blending or mixing with other goods or otherwise together with other goods, then the assignment of claim shall be deemed agreed only in the amount of that part which corresponds to the price agreed upon between Hempel and Purchaser plus a safety margin of 10 % of this price.
6.4 Any processing or transforming of the Retained Products by Purchaser is always effected on behalf of Hempel without creating any obligation for Hempel thereby. If the Retained Products are processed together with other goods, Hempel shall acquire the co-ownership in the new product in proportion to the value of the Retained Products to the other processed items at the time of processing. For the new product created by processing the same provisions shall apply as are applicable for the products delivered under reservation.
6.5 If the Retained Products are joined, blended or mixed with other goods, Hempel shall acquire the co-owernship in the new product in proportion to the value of the Retained Products to the other items at the time of joining, blending or mixing. If the joining, blending or mixing takes place in such a way that Purchaser’s Goods are to be considered as the main goods, then it is agreed that Purchaser transfers the co-ownership to Hempel on a pro rata basis. Purchaser shall keep the created co-owernship on behalf of Hempel.
6.6 Purchaser shall provide Hempel at any time with all requested information about the Retained Products or claims, if any, which are assigned to Hempel under any contract.
Attachments of or claims by third parties to the Retained Products shall be immediately reported to Hempel by Purchaser and accompanied by the necessary documents. Purchaser shall at the same time advise the third party of Hempel's retention of title. The costs of a defence against attachments and claims shall be borne by Purchaser.
6.7 Purchaser is obliged to treat the Retained Products with due care for the duration of the retention of title.
6.8 Should the realizable value of the securities exceed all of Hempel's claims which are to be secured by more than 10 %, Purchaser shall be entitled to demand a release to such extent.
6.9 In the event Purchaser is in default of any material obligations such as payment to Hempel, Hempel will be entitled to take back the Retained Products and upon rescission of the contract may otherwise realize them for the purposes of satisfying its due claims against Purchaser without prejudice to any other rights Hempel may have. In case of a claim for their return, Purchaser shall grant Hempel or Hempel's agents immediate access to the Retained Products and surrender the same. Should Hempel demand surrender under this clause, this shall not be deemed as rescission of the contract.
6.10 In case of deliveries into other jurisdictions in which the above provisions governing the retention of title do not have the same security effects as in Germany, Purchaser shall take all measures in order to provide Hempel immediately with equivalent security interests. Purchaser shall cooperate in all activities such as registration or publication which are necessary or beneficial for the effectiveness and enforceability of such security interests.
6.11 At the request of Hempel, Purchaser is obliged to insure the Retained Products appropriately to provide Hempel with the relevant evidence of insurance and to assign the claims arising from such insurance contract to Hempel.
7. Characteristics, Warranty, Duty to Inspect to Goods
7.1 The Objects of Delivery have the agreed characteristics upon the passage of risk; these characteristics shall exclusively be determined by the specific agreements made by the parties in writing with regard to the characteristics, features and characteristics of performance of the Objects of Delivery ("Beschaffenheitsvereinbarung" – "quality agreement").
7.2 Deviations from quantities and weight customary in the trade within a scope of up to 5 % of the purchase order quantity are permissible. Also permissible are quality deviations or deviations from the quality agreement which are customary in the trade and which inherently result from the special nature of the Object of Delivery.
7.3 Purchaser's warranty rights for defects in the Object of Delivery shall require that it inspects the Object of Delivery upon delivery and notifies Hempel of any defects in writing by indicating the invoice number without undue delay but no later than 5 business days following delivery; hidden defects must be notified to Hempel in writing without undue delay upon their discovery.
7.4 In the event of any notification of a defect, Hempel shall have the right to inspect and test the Object of Delivery to which objection was made. For this purpose, Purchaser will grant Hempel the required period of time and opportunity to exercise such right. Hempel may also demand from Purchaser that it returns the Object of Delivery to which objection was made to Hempel at Hempel's costs.
7.5 Hempel shall remedy any defects at its option by removing the defect or by delivery of a replacement free from any defects, both free of charge to Purchaser (together hereinafter "Supplementary Performance").
7.6 Hempel shall bear the costs for shipment, travel, labor and material which accrue for the purpose of the Supplementary Performance. If it turns out that the notification of a defect is not justified due to intentional or negligent misrepresentation and if Purchaser was aware of this fact prior to notifying the defect, then Purchaser shall be obliged to reimburse Hempel for all expenses incurred in this context (e.g., travel and shipment costs).
7.7 Should the Supplementary Performance fail, should such remedy be unreasonable for Purchaser or has Hempel refused such remedy pursuant to Section 439 (3) German Civil Code (BGB), then Purchaser may demand, at its option, in accordance with the statutory provisions the rescission of the contract, a reduction of the purchase price and/or claim damages pursuant to Section 8 or the reimbursement of its expenses.
7.8 The limitation period for Purchaser's warranty claims shall be twelve months from the handover of the Object of Delivery to Purchaser. For claims for damages due to other reasons than defects of Object of Delivery or for rights of Purchaser with respect to defects concealed in bad faith or defects caused intentionally the statutory limitation periods shall apply.
8. Liability and Damage Compensation
8.1 Subject to the provision in Section 8.2, Hempel's statutory liability for damages shall be limited as follows: (i) Hempel shall only be liable up to the amount of the typically foreseeable damage at the time of entering into the contract for damage caused by any slightly negligent breach of material contractual obligations; (ii) Hempel shall not be liable for damage caused by a slightly negligent breach of non-material contractual obligations.
8.2 The above-mentioned limitation of liability does not apply to any mandatory statutory liability (in particular to liability under the German Product Liability Act (Produkthaftungsgesetz)) or to any liability for assuming a specific guarantee nor to any liability for culpably caused personal injuries.
8.3 Purchaser is obliged to take all reasonable measures to avert and mitigate damage.
9. Product Liability
If Purchaser sells the Object of Delivery, it shall indemnify Hempel from any product liability claims raised by third parties insofar as Purchaser is responsible for the defect causing such liability.
10. REACH Obligations
10.1 The ultimate shipment of Objects of Delivery by Hempel to Purchaser is subject to the right and ability of Hempel to make the sale under all laws, statutes, rules and regulations of the European Union presently in effect, or which may be in effect hereafter, which govern the obligations of manufacturers, importers, distributors, retailers, storage providers and end users of chemical substances including, without limitation, Regulation EC1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”).
10.2 If Hempel has a duty to register any Substance (as defined in REACH) constituting or forming part of the Objects of Delivery (or any part thereof) pursuant to REACH, Hempel shall use its best endeavours to procure such registration ("Substance Registration").
10.3 Where Substance Registration is required, Hempel’s acceptance of Purchaser’s order is provisional and conditional upon Substance Registration being achieved. Hempel reserves the right to defer any delivery periods and delivery deadlines agreed pursuant to clause 3.1 and/or to cancel the order if Hempel is delayed in or prevented from achieving Substance Registration including, without limitation, (i) where there has been difficulty in achieving registration for that Substance under REACH, (ii) there is a problem with the lead registrant’s submission, (iii) there has been an IT system failure, or (iv) the registration has been rejected for any reason. In such circumstances, Hempel shall notify Purchaser in writing as soon as reasonably practicable that Substance Registration will, or is reasonably likely to, cause a delay in delivery or cancellation of the order.
10.4 Should Hempel be delayed in delivery of, or prevented from delivering, the Objects of Delivery pursuant to this clause 10, Purchaser shall release Hempel from its obligation to make timely delivery of the Objects of Delivery in accordance with these terms and conditions. If such delay prevails for a continuous period of more than two months, either party shall be entitled to cancel the order by giving 14 days’ written notice to the other party. For the avoidance of doubt, clauses 3.2 and 3.4 shall not apply to any delay in delivery which occurs pursuant to this clause.
10.5 Hempel shall not be liable in any way whatsoever to Purchaser if any order (or part thereof) is delayed and/ or cancelled as a result of Substance Registration being required, including for any direct, indirect or consequential costs, loss or expenses (including for any cost of procuring substitute goods or substances, loss of profit, loss of business or loss or depletion of goodwill, loss of business opportunity, loss of anticipated saving or any special, indirect, consequential, administrative, multiple or punitive damage whatsoever) incurred by Purchaser which are in any way whatsoever attributable to the delay and/ or cancellation of any order (or part thereof) pursuant to this clause 10.
11. General Provisions
11.1 Without the written consent of Hempel Purchaser shall not be entitled to assign its claims against Hempel to any third party.
11.2 Amendments of and supplements to this Agreement and/or the Terms of Delivery and any side agreements must be in writing. The same shall apply to any amendment of this written form requirement.
11.3 If a provision of this Agreement and/or these Terms of Delivery is invalid in full or in part, the validity of the remaining provisions shall remain unaffected thereby. The parties agree in this case to replace the invalid provision by such valid provision which comes as close as possible to the economic purpose of the invalid provision.
11.4 Place of performance for all mutual claims is Düsseldorf.
11.5 Exclusive venue for all disputes arising out of or under this contractual relationship is Düsseldorf. Hempel is, however, entitled to sue Purchaser at any other court having statutory jurisdiction.
11.6 This Agreement shall be governed by the laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
General terms and conditions of purchase-download
The following general terms and conditions of purchase apply exclusively to the entire current and future legal relationship between Hempel Intermetaux S.A. (hereinafter "Hempel") and Supplier with respect to the purchase of movable objects ("Objects of Delivery"). On Supplier`s acceptance of any order submitted by Hempel, at the latest upon delivery of the ordered Objects of Delivery, Supplier accepts these general terms and conditions of purchase (“Purchase Terms”) as exclusively binding. If Supplier uses terms and conditions which are contrary, different or complementary to the Purchase Terms, the application of such terms vis-à-vis Hempel is excluded even if such terms are not expressly objected to by Hempel.
2. Conclusion of Contract
2.1 Orders placed by Hempel are only binding if they are made in writing and signed in a legally effective way. Orders made orally or by telephone, additions, modifications and side agreements to the orders are not binding unless confirmed in writing. 2.2 Orders placed by Hempel constitute purchase orders and must be accepted in writing by Supplier by an order confirmation within 5 business days after receipt of the order. After expiry of this deadline Hempel is no longer bound by its purchase order. 2.3 A late acceptance of the order or an order confirmation which differs in content from the order constitutes a new offer and must be accepted in writing by Hempel in order to be valid. Under no circumstances shall silence on the part of Hempel be deemed as acceptance of an order confirmation which differs in contents from the order.
3. Shipment, Packaging, Risk
The following Sections 3.1 through 3.4 shall only apply if the parties did not validly agree on the application of the INCOTERMS 2000 or the INCOTERMS 2000 do not contain a valid corresponding provision.
3.1 The Objects of Delivery shall be delivered to the address indicated in the order by Hempel ("Delivery Address").
3.2 Supplier bears the risk of accidental loss of or damage to the Objects of Delivery until their arrival at the Delivery Address. The Delivery Address is the place of performance. Supplier, at its costs, shall insure the Objects of Delivery against accidental loss, accidental damage and culpably caused damage by Supplier. Hempel may determine the type of packaging and shipment. If Hempel fails to determine the type, Supplier shall choose the type of packaging and shipment which shall be for each product the specifically most favourable and most appropriate. In case of culpable non-compliance with this obligation all costs incurred for replacement of damaged goods, multiple freights, waste disposal etc. shall be borne by Supplier. 3.3 At the request of Hempel, Supplier must take back at no additional charge all packaging material.
3.4 On the day the shipment is dispatched, a dispatch note containing the order number, the quantity and the exact description of the order shall be sent to Hempel. A consignment note in duplicate containing exactly the same information shall accompany the shipment. Alternatively, Hempel is entitled to refuse acceptance of the shipment at Supplier's cost.
4. Delivery Deadlines and Date
The provisions of this section 4 shall apply without prejudice to any rights that may be exercised by Hempel under section 11 below. 4.1 The delivery deadlines and dates mentioned in each order are binding and must be complied with by Supplier.
4.2 Delivery dates agreed between the parties shall be deemed met as soon as the Objects of Delivery are received at the Delivery Address at the agreed date (see Section 3.1). The Objects of Delivery must in each case be delivered together with the related written documents (e.g. analysis results, weight lists, insurance policies, bill of lading, etc).
4.3 In the event that the agreed delivery date is exceeded Hempel reserves the right upon expiry of a fixed reasonable grace period to rescind the Contract by written notice. Furthermore, Supplier is obliged to compensate damages caused by default in accordance with the statutory provisions.
4.4 In the event that Supplier is in default with delivery and, without prejudice to all its other rights, Hempel is entitled to demand for each started week of the default a contractual penalty in the amount of 1 % of the delivery value of the goods in default, however, at most 5 % of the total value of the respective delivery. Hempel shall apply any accrued contractual penalty against the otherwise asserted claim for damages for default of delivery.
4.5 Supplier undertakes to immediately inform Hempel in writing about any and all circumstances which may affect a timely delivery as soon as it becomes aware of them; it must indicate the reasons for this delay and the possible duration thereof.
4.6 If Acts of God, outbreak of war, natural disasters, strikes, lock-outs, governmental decrees and other unforeseeable, unavoidable and material events which are out of the control of Hempel and for which Hempel is not responsible cause that the delivery cannot be accepted / delivered, Hempel is released from its obligation of acceptance for the duration of such disturbance and to the extent delivery is affected. Hempel shall adjust its obligation in good faith to the differing circumstances; this means that Hempel may, following the resolution of the interruption, waive the outstanding delivery in full or in part or may require a continuation of the deliveries. In such a case Supplier, at its costs and risk, shall take the Object of Delivery into storage.
5. Partial, Excess, Short and Early Deliveries
5.1 Hempel is not obliged to accept non-agreed partial deliveries. Hempel is, however, entitled to use partial deliveries without recognizing thereby that delivery was effected as contractually agreed. If partial deliveries are agreed upon, Hempel may determine the order of the deliveries. Supplier must submit a delivery notification for each individual delivery containing the date on which the order was placed, the order number and the quantity. Partial and outstanding deliveries must be marked as such separately.
5.2 The values determined by Hempel at the incoming goods inspection shall be decisive for condition, kind, quantity and weight of a delivery unless Supplier is able to prove an improper incoming inspection.
5.3 Hempel is entitled to reject excess and short deliveries which exceed tolerances customary in the trade. Deliveries, in which the deviations account for more than 5 % of the ordered quantity, require in any case the prior written approval of Hempel.
5.4 Hempel is not obliged to accept an early delivery. However, in any case Supplier bears the costs for storage and risk until the due date.
6. Terms of Payment
6.1 Supplier`s invoices shall in principle be submitted in Euro or in such currency, respectively, which is determined in the order. Such determination is binding for Supplier.
6.2 The price for the delivery shown in the order (order confirmation) is a fixed price. It includes packaging, freight, insurances and similar.
6.3 Unless the parties have agreed upon a fixed price, the respective price results from the pricing formula contained in the order (as confirmed in the order confirmation). If the final prices for the Objects of Delivery are determined at the end of a month in which the delivery was effected, Supplier shall issue and send to Hempel a final invoice prepared in accordance with the pricing formula. Section 6.4 shall apply to this final invoice. Excess payments, if any, by Hempel shall be reimbursed to Hempel without any deductions within 30 days. If Hempel is obliged to make any supplementary payments, these shall be made in accordance with the provisions set forth in Section 6.5.
6.4 Supplier shall provide Hempel, separately from delivery, with two copies of the invoice which should contain the order number and the respective date. If this information is missing or incorrect, the requirements of a default in payment are excluded until the relevant information is provided.
6.5 Payment of any invoice amount may, at Hempel's discretion, be made within 8 days with a 3 % discount or within 30 days net, unless otherwise provided for. These deadlines start running from the day of receipt of the invoice by Hempel, but in any event not before Supplier has delivered the Objects of Delivery and the quality was tested within a reasonable period. In case early deliveries are accepted the due date depends on the agreed date of delivery.
6.6 In case of defective delivery Hempel is entitled to withhold payment until due performance or any other amicable agreement has been reached between the parties.
6.7 Hempel is entitled to set off against the claims of Supplier all those claims which Hempel has against Supplier.
6.8 Supplier shall only be allowed to set off claims against Hempel in case these claims are uncontested or finally adjudicated. Supplier may exercise its right of retention against Hempel only if the counterclaim of Supplier on which its right of retention is based results from the same contract and is uncontested and finally adjudicated.
7. Retention of Title
The title to the delivered Objects of Delivery shall pass to Hempel on full payment of the purchase price to Supplier. Any extended or prolonged retention of title ("verlängerter oder erweiterter Eigentumsvorbehalt") by Supplier is excluded.
8. Notification of Defects upon Delivery
Hempel shall inspect the purchased Objects of Delivery immediately upon delivery pursuant of the requirements of the normal course of business for possible defects or deviations in quality; Hempel shall notify Supplier about any obvious defects immediately upon receipt of the delivery, but no later than 14 business days following delivery; hidden defects must be notified without undue delay upon their discovery.
9. Hempel`s Warranty Rights
9.1 The quality of the Objects of Delivery and Supplier's warranty obligations (Einstandspflicht) with respect to their quality depend on the respective agreements between the parties. The Objects of Delivery must always be free from any radioactivity. Accordingly, Supplier shall deliver the Objects of Delivery free from defects of quality and defects in title. The Objects of Delivery shall furthermore correspond with all applicable statutory provisions including all applicable EU directives, in particular safety regulations.
9.2 If Supplier is in breach of its obligations pursuant to Section 9.1 the rights of Hempel, in particular the rights to supplementary performance, rescission, price reduction, damages or reimbursement of expenses as well as the applicable period of limitation are determined by the statutory provisions.
9.3 In addition to the statutory provisions (see Section 9.2) Hempel at Supplier`s costs and expenses is entitled to repair itself the defective Objects of Delivery or to replace the defective goods where the remedy of the defect does not allow any delay (e.g., in case of imminent danger), where the supplementary performance failed or is otherwise unreasonable for Hempel or where Supplier is unable to comply with Hempel's request for supplementary performance within a reasonable period of time.
9.4 The acceptance of delivery and payment are not to be viewed as acceptance of proper delivery.
10. Product Liability
10.1 Where Supplier is responsible for a product defect, the cause of which lies within its sphere of control and for which it is liable to third parties, it is obliged to compensate Hempel for all damages and to indemnify Hempel against any third party claims upon first demand.
10.2 Supplier is obligated to take out appropriate product liability insurance to cover the risks associated with the Objects of Delivery delivered by it and to provide upon demand Hempel with evidence of the relevant insurance policy.
11. REACH Obligations
11.1 Supplier shall be responsible for obtaining any necessary registration for the manufacture, import or sale of any Substance (as defined in Regulation EC1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”)) constituting or forming part of the Objects of Delivery (or any part thereof) in accordance with REACH and within the deadlines specified by REACH (“Substance Registration”).
11.2 In the event that failure to obtain Substance Registration will, or is reasonably likely to, cause a delay in delivery or cancellation of an order, Supplier shall immediately notify Hempel in writing in accordance with Section 4.5 hereof.
11.3 If Supplier is unable to deliver the Objects of Delivery (or any part thereof) in accordance with the delivery deadlines and dates agreed pursuant to Section 4.1 as a result of the Substance Registration having not been achieved for any Substance constituting, or forming part of, the Objects of Delivery (or any part thereof) for any reason or an application for Substance Registration having been rejected by the European Chemicals Agency which affects the Objects of Delivery, then, without prejudice to any other rights which it may have, Hempel reserves the right to:
(a) cancel the order in whole or in part, together with any other unfulfilled orders, with immediate effect;
(b) refuse to accept any subsequent delivery of Objects of Delivery which Supplier attempts to make;
(c) claim damages for any additional costs, loss or expenses incurred by Hempel (including, without limitation, for any cost of procuring substitute goods or substances, loss of profit, loss of business or loss or depletion of goodwill) which are in any way attributable to Supplier’s failure to deliver Objects of Delivery in accordance with the agreed delivery deadlines and dates; and
(d) obtain substitute goods or substances from another supplier and recover from the Supplier any costs and expenses reasonably incurred by Hempel in obtaining such substitute goods or substances.
12. Final Provisions
12.1 The transfer of the order to third parties including the assignment of rights and obligations resulting therefrom requires the prior written consent of Hempel, with the exception of the assignment of purchaser's accounts receivable. In case this provision is not complied with, Hempel reserves the right to rescind this Agreement by written notice and/or to claim damages.
12.2 Amendments of and supplements to any contract and/or these Purchase Terms as well as any side agreements shall be valid only if made in writing. This shall also apply for any amendment concerning this written form requirement.
12.3 If a provision of a contract and/or these Purchase Terms is invalid in full or in part, the validity of the remaining provisions shall remain unaffected thereby. The parties agree in this case to replace the invalid provision by such valid provision which comes as closely as possible to the economic purpose of the invalid provision.
12.4 Any waiver of any right under any contract and/or these Purchase Terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. No failure to exercise or delay in exercising any right or remedy provided under these Purchase Terms or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy under these Purchase Terms shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Exclusive venue for all disputes arising out of or under this contractual relationship is Düsseldorf. Hempel is, however, entitled to sue Supplier at any other court having statutory jurisdiction.
12.6 This Agreement shall be governed by the laws of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG)