Terms & conditions
General Terms & Conditions of Sale and Delivery to International Customers
The following sales and supply terms and conditions (“general terms”) in their latest review (14-01-2014) apply to international business customers of Böer & Siebert Lda, herein referred to as “Seller”.
1. Generally, these general terms shall be applicable exclusively to business operators, incorporated entities and estates. They shall apply to all subsequent transactions and business relationships at present or in the future and shall be binding upon Purchaser at the latest upon receipt of the goods ordered from Seller. Complementary to these general terms, the current version of the International Commercial Terms (INCOTERMS) published by the International Chamber of Commerce shall apply in their respective current version. In the event of a conflict or contradiction between the INCOTERMS and these general terms, contradictory or conflicting general terms of Purchaser, especially general terms and conditions of purchase, shall not be binding upon Seller, unless Seller has expressly declared its approval. In case two letters of confirmation are crossing, which contain conflicting terms, the letter of the seller is binding. Seller shall collect, record and process personal data only to the extent it is necessary for the performance of the contract.
2. Proposals made by Seller shall not be binding. Offers made by fax, phone or verbally are only binding if they fully comply with a written proposal. After Purchaser confirmed the proposal, Seller sends an order confirmation note as the basis for the billing. On mutual agreement, this procedure can be replaced by issuing a billing document immediately. All deliveries are subject to being unsold and timely and correct supply of Seller. Amendments, changes or sub-agreements with respect to the contract require the written confirmation of Seller in order to be legally valid. This shall also be applicable for contracts concluded by members of staff or sales agents.The afore-mentioned terms shall not be applicable to amendments, which are concluded after the commencement of the contract.
3. Prices are quoted ex works respectively ex place of dispatch, inclusive of packaging but exclusive of freight and insurance, unless mutually agreed upon otherwise in writing. The price list valid on the respective date shall be applicable. All prices are exclusive VAT, sales, turnover or other taxes or duties. Purchaser shall be liable for paying all applicable taxes, customs and duties unless mutually agreed upon otherwise in writing and based on INCOTERMS.
4. Shipping charges are charged with the billing of the goods and included within the invoice if mutually agreed upon based on section 3 of these general terms. Applicable shipping terms are negotiated on a case-by-case basis with Purchaser. For orders whose net value exceeds 2,500 Euros, Seller has a free shipping policy for deliveries within continental member countries of the European Union. This policy relies on ground transport to the customer’s premises (DAP – Incoterms 2010), with unloading lying solely within the responsibility of Purchaser at its own expense and delivery with carriage paid being performed at Purchaser’s risk. The transport shall only be insured upon Purchaser’s explicit request, at Purchaser’s expense. If the delivery is made carriage free, Seller may decide that the expenses for the transport shall be paid in advance.
5. Delivery periods or times shall be agreed on separately. In any event where Seller’s performance and, in particular deliveries, are substantially impaired or even become impossible due to reasons for which Seller is neither responsible nor liable, such as Acts of God, mobilization, war, strike, or lockouts, Seller shall – if performance becomes impossible – be entitled to withdraw from the respective contract in whole or in part, or to extend the delivery period or time until a reasonable time after such events have passed. Seller shall not be liable for governmental import/export restrictions.Purchaser shall be entitled to request Seller in writing two weeks after a non-binding delivery date to deliver the goods within an adequate period. Upon elapse of such period, Seller shall be deemed defaulting. The legal consequences of default shall be derived from these General Terms, especially Sec. 7 hereof and statutory law.
6. Place of Performance for all deliveries shall be the registered address of Seller – or in its sole discretion – the place of dispatch. With respect to payments the registered address of Seller shall be the place of performance. If a delivery is made with carriage paid a road suitable for trucks is indispensable.
7. Default of Acceptance shall be assumed if Purchaser does not accept or refuses to accept (part) deliveries of goods. In that event Seller shall be entitled to withdraw from the contract after the elapse of an appropriate notice period, or demand compensation for breach of contract, or sell the goods otherwise.
8. Reclamations: Reclamations against alleged defects on behalf of Purchaser shall be made in writing immediately upon receipt. For this purpose Purchaser shall inspect the goods immediately upon arrival. If substantial defects are of a hidden nature and consequently cannot be detected by Purchaser immediately upon due and diligent inspection of the goods, Purchaser shall file reclamation upon discovery of the hidden defect. Otherwise the concerned defect(s) shall be statute-barred and Seller shall then assume no warranty. Reclamations shall comprise the purchaser’s identification and customer number (if known), the number of the invoice and/or packing reclamation refers to, the reason for reclamation (e.g. damage), the affected items and quantities and a detailed description including photo(s) if applicable.
If defects are detected, which were caused during transport, Purchaser shall request a certificate from the freight forwarder before unloading, as a proof for claims against the freight forwarder. The same applies to ship and rail transport.
9. Payments shall be due within the period of time stated on the invoice, to be counted from the issuing date of the invoice and without any discounts, deductions or the like unless expressly stated otherwise on the invoice.To new customers, Seller may apply a pre-payment policy for the first orders placed. Pre-payment is due on issue of a pro forma invoice. Seller reserves the right to decide on when the afore-mentioned terms will be changed. As for other payment terms, Seller may grant a credit line, whose duration and maximum limit are individually negotiated with the Purchaser. Seller reserves the right to unilaterally change credit lines and payment terms without prior notice to Purchaser; however, Purchaser will be informed if his terms were subject to changes. Should Purchaser have exceeded the maximum credit limit or duration, subsequent orders are fulfilled on a prepaid basis until Purchaser has settled the amount in question. Payments from international customers are due in Euro and shall be made by wire transfer to one of Seller’s bank accounts, given in writing upon latest with the invoice. Payments by credit card or PayPal imply additional fees and require Marisol’s approval prior to payment. If payment is made by letter of credit, promissory or exchange note or the like, title to the goods shall not pass to Purchaser until all open accounts of Purchaser are settled and the respective amounts have been credited to Seller’s accounts.
In the event that Purchaser fails to balance the account by that date, the amount owed shall bear interest at the current interest rate defined by the Portuguese National Bank, unless Purchaser proves that less damage was incurred. Seller shall, however, be entitled to claim additional damages caused by any late payment or default in payment by Purchaser. Retention of set-off of claims shall not admissible, unless counter-claims of Purchaser are undisputed or awarded by a competent court and thus legally binding.
If Seller, after the contract is concluded, becomes aware of circumstances, which arose within the responsibility of Purchaser and which affect its financial standing or creditworthiness (especially but not limited to delay of payment), Seller shall be entitled to unilaterally revoke all previously granted payment terms, to declare all payment obligations of Purchaser immediately due and payable and withhold all advance payments of Purchaser, provided they bear interest to the same conditions as Seller is refinanced. After an appropriate notice period has elapsed and Purchaser is still in default regarding its payment although the goods are ready for delivery, Seller shall be entitled to store the goods at Purchaser’s expense and risk. Storage costs, insurance fees and warehouse rent may be charged to Purchaser. However, Seller shall not be obliged to insure the goods against any risk.
Purchaser is entitled to prove that Seller has incurred lesser expenses than claimed. Additionally, Seller shall be entitled to withdraw from all existing agreements with Purchaser, unless Purchaser remits all payments due. If goods to which Seller still holds right and/or title remains with Purchaser, Seller shall be entitled to reclaim the goods and to collect them at Purchasers expense.
10. Retention of Title: Seller shall retain title to all goods delivered to Purchaser until the respective purchase price as well as all and any claims resulting from the overall business relationship with Purchaser including all ancillary claims and charges have been fully paid. To the extent that the validity of the retention of title is subject to any requirements or regulations governing form – in particular as to registration with the competent authority – according to the mandatory applicable laws of Purchaser’s country, Purchaser shall fulfil such requirements and/or regulations at its own expense in order to ensure validity of the retention of title. If securing or upholding Seller’s retention of title is objectively not possible, Purchaser shall grant Seller an equivalent security.
Purchaser shall uphold Seller’s retention of title as far as possible and hereby assigns Seller all claims it may have against third parties resulting from the sale of goods and/or products incorporating goods as components in the amount of the respective purchase price plus ancillary cost, accrued interest and/or expenditures, if any. Seller hereby accepts such assignation. In the course of current account transactions, such retention of title and assignation of claims shall serve as security for any debit balance in Seller’s favour. In the event that Purchaser resells the goods together with other goods, not delivered by Seller, regardless if before or after a transformation, the claims are assigned only up to the value of the goods which are delivered according to this contract. An assignment of stock to secure claims of a third party shall not extend to the goods delivered by Seller or the products, which result from a transformation of these goods.
In general, Purchaser shall be obliged to treat goods which are subject to Seller’s title with diligent care and to insure such goods against risks like fire, water damage and theft and all other risks which are customarily subject to comprehensive general liability policies. Purchaser hereby assigns Seller all claims it may have against the insurance company in an insurance event to the amount of the still unpaid purchase price plus ancillary cost, accrued interest and/or expenditures, if any. Seller hereby accepts such assignation.
A withdrawal of the goods subject to Seller’s ownership by Seller from Purchaser shall not require prior withdrawal from the respective contract with Purchaser. In the event conciliatory or bankruptcy proceedings are initiated against Purchaser, Seller shall be entitled to repossession of the goods whose ownership remains vested with Seller and, excluding any and all rights of retention, Purchaser shall be obliged to surrender the goods. Further, Seller shall be entitled to seek a court injunction to prevent Purchaser or third parties from selling, transferring or otherwise disposing of the goods. All costs relating to the repossession of the goods or to any action hereunder shall be borne by Purchaser. If Purchaser defaults on payments which are due, Seller may in its own discretion order Purchaser not to resell or transform or process the goods without prior written approval of Seller.
11. Competent Courts: The courts of Olhão, Portugal, shall be the exclusive place of venue for all disputes, which may arise from or relate to this contract with regard to business operators, incorporated entities and estates. At Seller’s sole discretion Seller shall equally have the right to bring action against Purchaser at any other court that may be competent to rule upon the concrete case matter pursuant to applicable national or foreign laws.
12. Salvatory Clause: The business relationship between Purchaser and Seller is exclusively governed by these general terms. The proof of the existence of other agreements to the contrary is admissible. The substantive laws of the Portuguese State, without regard to any conflict-of-law principles, shall exclusively govern this contractual relationship, including any and all existing agreements, disputes and dealings. The invalidity or unenforceability of one or several of the terms and provisions set forth above shall not affect the validity of the remaining terms.