Terms & Conditions

(as of March 2016)

P1. Scope of Application

  1. Our General Terms and Conditions are exclusively applicable. They are applicable to entrepreneurs legal persons under public law, and special funds under public law. We do not acknowledge general terms and conditions of the customer that are in deviation here from, unless we have consented to their applicability in writing. Our General Terms and Conditions are also applicable where we carry out the delivery without reservation despite our being aware of deviating general terms and conditions of the customer.

P2. Offers, documentation

  1. Our offers are non-binding and subject to change.

  2. We retain rights of ownership and copyrights in and to images and drawings, calculations, and other data files and documentation. Same may not be made accessible to third parties. This applies, in particular, to such data files and documentation that have been designated as confidential. Prior to disclosure of same to third parties, the customer must obtain our express consent.

P3. Prices, payment terms, pre-notification for SEPA transactions, prepayment, right of rescission, default, right of retention, set-off, counterclaim

  1. Unless agreed otherwise, all prices are ex works Limassol (headquarters), do not include freight, insurance, customs duties, agreed installation, foreign taxes, etc., and are net of applicable value-added tax.

  2. If payment by means of the SEPA direct-debit procedure has been agreed to or is permissible, it is agreed that we are entitled to notify our customer as debtor of the collection date and the collection amount up to one day prior to the due date (abbreviation of the period for pre-notification).

  3. Unless agreed otherwise, the price list in effect on the date of the order is applicable to orders.

  4. New customers must pay advance before delivery. If a standing debit order or direct debit has been agreed to, the debit is made within two days of invoicing. The costs for discounting and collection are for the account of the customer.

  5. If the customer is in default in the making of at least two installment payments under partial payment arrangements, we are entitled to accelerate the entire claim, including where cheques or bills of exchange were accepted. In such case, the papers are returned against immediate cash payment.

  6. If, following conclusion of contract, the customer experiences a material deterioration or change in its asset situation that threatens our claim to counter-performance, or if such situation existed with the customer at the time of contract conclusion but did not become known until a later date, we may refuse to perform until counter-performance has been rendered. This particularly applies in cases of fruitless enforcement proceedings, failure to honor cheques or bills of exchange, application by the customer for insolvency proceedings, application by the customer for relief from creditors, liquidation, and the like. In such cases, we may set a deadline for the customer to provide counter-performance or post security. If counter-performance is not provided or security is not posted, we are entitled to rescission.

  7. Only claims that have been acknowledged or reduced to a legally enforceable judgment may be set off against our claims. Counterclaims are precluded. The customer is empowered to assert a right of retention only where its claim is based on the same contractual relationship.

  8. If we have claims against the customer – regardless of legal basis – we have a right of retention against the customer until payment of our claims in full by such customer.

P4. Exemption from performance, delivery period, partial delivery, right of rescission, payment of damages in the event of default, and non-compliance with the payment deadline

  1. Supplies and raw materials being available in a correct, timely manner remains reserved, unless we have given a guarantee of successful performance and, in addition, have assumed the procurement risk.

  2. The start of the delivery period stipulated by us is subject to timely receipt of all documentation and information to be supplied by the customer, as well as clarification of all order details, including all technical issues. Partial deliveries are permissible, provided the customer can be reasonably expected to accept same.

  3. If we are unable to comply with the agreed delivery period, the customer is obligated, at our request and by a reasonable deadline, to declare whether it continues to insist on delivery. If it fails to make such declaration, we are entitled to rescind or terminate the contract following expiry of a reasonable deadline.

  4. If the customer is in default in payment and we fail to receive payment upon expiry of a deadline set for the customer by us, we are entitled to rescind the contract and demand from the customer as damages a lump sum payment of 10% of the net invoice amount due. The customer is expressly permitted to provide proof that damage or value reduction was not incurred at all or was lower than the lump sum payment. If such proof succeeds, the claim is limited to the proven damage or, as the case may be, it fails where it is proven that no damage was incurred. The amount of the lump sum payment of damages takes into account, in particular, the circumstance that the sold products involve products that are subject to rapid enhancement and significant decline in price. For this reason, even brief delays normally lead to high damages. In addition, contract failure results in very high administrative effort and expense since the contract goods normally have to be parceled and resold, such that the associated effort and expense is high in terms of documentation and allocation.

P5. Passage of risk, delivery

  1. Unless provided otherwise in the order confirmation, it is agreed that delivery is to be made “ex works Limassol (headquarters)”.Shipment is made at the customer’s risk, including for delivery from a place other than the place of performance and including in the case of freight-paid shipment and/or shipment using our personnel or vehicles.

  2. If it is agreed that we are to handle delivery, the customer must provide expert personnel in a timely manner and any necessary technical equipment (e.g. forklifts) so as to ensure smooth unloading. It must be ensured that the vehicle can directly reach the place of unloading and can be promptly unloaded. If these conditions are not met, additional incurred costs will be charged separately.

P6. Claims for defects

  1. Delivered goods must be inspected by the customer promptly, in any event within one week of delivery, provided same is feasible in the ordinary course of business. If a defect is apparent, same must be notified to us promptly, in any event within one day of delivery. If the customer fails to provide such notification, the goods are deemed accepted, unless the defect is one that was not discernible upon inspection. If such a defect later becomes apparent, the notification must be provided promptly following discovery, failing which the goods are deemed accepted, including with respect to such defect.

  2. In the case of cure of defects, we are obligated to bear only the necessary expenses of same, including transport, travel, labor, and material costs, to the extent that these do not increase as a result of the item having been brought to a place other than the customer’s headquarters or commercial establishment. The customer’s claims for defects, including claims for damages, are prescribed one year following delivery of the item.

P7. Liability for payment of damages and reimbursement of expenses

  1. In the event we are liable for payment of damages, the following applies:

    1. If the claims are based on a willful or grossly negligent breach of duty by us, our representatives, or persons we use to perform an obligation, we are liable for payment of damages in accordance with statutory provisions.

    2. Unless provided otherwise under a., and insofar as there has been no breach of material contractual obligations, our liability for payment of damages is precluded.

    3. If there has been a breach of material contractual obligations, our liability is limited to damages that are foreseeable under these types of contracts.

  2. The exclusions and limitations of liability under paragraph 1 apply not only to contractual claims but also to other claims, particularly tort claims. They also apply to claims for reimbursement of fruitless expenses in lieu of performance.

  3. We are liable for assumption of a procurement risk only where we have expressly assumed the procurement risk in writing.

  4. Insofar as our liability is precluded or limited, this also applies to the personal liability of our employees, workers, representatives, and persons used to perform an obligation.

  5. A reversal of the burden of proof is not associated with the aforementioned arrangements.

P8. Supplemental and deviating arrangements in the case of international contracts

  1. If the customer has its place of business outside of the Cyprus, the following arrangements apply in addition to arts. 1-7 and 9:

    1. We are not liable for the permissibility of the use of the delivered item as envisioned under the contract under the laws of the country of receipt. We are likewise not liable for any taxes assessed there.

    2. We are not liable for impediments to delivery occasioned by governmental measures, including import or export restrictions.

  2. If the customer has its place of business outside of the Cyprus, and if the United Nations Convention on Contracts for the International Sale of Goods (CISG, the Vienna Convention), as amended, is applicable, the following arrangements apply:

    1. Amendments or terminations of contract must be made in writing.

    2. Instead of arts. 6 and 7, the following applies:

      1. We are liable to the customer for payment of damages in accordance with statutory provisions only where a breach of contract is based on a willful or grossly negligent breach of contract for which we, our representatives, or persons used to perform an obligation are responsible. We are also liable in accordance with statutory provisions where we breach a material contractual obligation. The aforementioned limitation of liability does not apply to claims that may exist under sections 1 and 4 of the Product Liability Act or to claims due to injury to life, body, or health caused by the goods.

      2. If the delivered purchase item is not in conformity with the contract, the customer has the right to terminate the contract or demand replacement delivery only where claims against us for payment of damages are precluded or it is unreasonable to expect the customer to dispose of goods not in conformity with the contract and to assert the remaining damages. In such cases, we are first entitled to eliminate defects. If elimination of defects is unsuccessful and/or leads to an unreasonable delay, the customer is entitled at its discretion to terminate the contract or demand replacement delivery. The customer is also entitled to do so where elimination of defects causes an unreasonable inconvenience or where there is uncertainty as to reimbursement of any expenses that the customer may have.

      3. The customer’s claims for defects are prescribed one year following delivery of the item.

P9. Retention of title

  1. We retain title to the delivered goods until receipt of all payments under the contract. In the case of claim collection by us through an agreed direct-debit procedure, we retain title to the goods until such time as the customer can no longer contest the collection of the claim.

  2. In the event of liens and other attachments by third parties, the customer must give us prompt written notice in order to safeguard our rights. Where the third party is incapable of reimbursing us for the court or out-of-court costs of a lawsuit, the customer is liable for the shortfall we incur.

  3. In the case of claim collection by us through an agreed direct-debit procedure, the customer is not entitled to resell or use the delivered goods as long as it is still able to contest collection of the claim. Otherwise, including in the case of a waiver by the customer of its right to contest collection of the claim by us in a direct-debit procedure, the customer is entitled to resell and to use the delivered goods in the ordinary course of business. However, it hereby assigns to us all claims it has against its customers or third parties from the resale in the amount of the value of the goods subject to retention of title, regardless of whether the delivered goods have been resold without or after processing. The value of the goods subject to retention of title is deemed to be the final invoice amount (including VAT if local or excluding VAT if intercommunity supply) agreed to with us. If we have co-ownership of the resold goods subject to retention of title, the assignment of the claims extends to the amount corresponding to our share of co-ownership. The customer is not entitled to dispose of the goods in any other way, including by pledging them or assigning a security interest in them.

  4. The customer remains authorized to collect the claim from the resale, including after assignment, until we revoke such authorization. Our power to collect the claim ourselves remains unaffected by this. However, we undertake to refrain from collecting the claim and revoking the customer authorization to do so as long as the customer meets its payment obligations from the proceeds collected, is not in payment default, does not make an application for the opening of insolvency proceedings, or does not cease making payments. However, if this is the case, we may demand that the customer disclose to us the assigned claims and the parties owing them, provide all information necessary to collect them, hand over the associated documentation, and notify the parties owing the claims about the assignment.

  5. We undertake to release the collateral to which we are entitled at the customer’s request, provided the realizable value of our collateral exceed the claims to be secured by more than 10% or the nominal value by more than 50%. We have discretion in selecting the collateral to be released.

P10. Applicable law, place of performance, place of jurisdiction

  1. The law of Cyprus applies to this contract.

  2. The place of performance for all undertakings under this contract is Limassol.

  3. For contracts with merchants, legal persons under public law, special funds under public law, and foreigners who do not have a domestic place of jurisdiction, the place of jurisdiction is Limassol. However, we reserve the right to bring suit at the customer’s registered office.

© 2018 KISAMATA INVESTMENTS LTD

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