GENERAL SALES CONDITIONS FOR MODIFIED BITUMEN MEMBRANES
Version 1.2 effective 1/1/2013
In these General Sales Conditions, the following words will mean:
|"Modern Waterproofing Company”||Means Modern Waterproofing Company a company carrying on business under the laws of the Arab Republic of Egypt (Egypt) who is the producer/Seller of the Products.|
|“The Buyer”||Means the person (or entity) who is the buyer of the Products to be sold, as described in Modern Waterproofing Company's written quotation (Offer and/or Pro-Forma invoice or any similar document) ; and includes its assignee(s) or successors-in-title.|
|“The Products”||Means the polymer products which Buyer buys and Modern Waterproofing is to supply to the Buyer in accordance with these General Sales Conditions and the Product Offer.|
1. Receipt and acceptance of offers made by Modern Waterproofing Company constitute acceptance of these General Sales Conditions. Issuance of a purchase order by Buyer in response to an offer from Modern Waterproofing Company constitutes acceptance of these General Sales Conditions. Orders sent to “Modern Waterproofing Company” directly or through agents or representatives of the same, shall be considered confirmed only upon receipt of a written confirmation from Modern Waterproofing Company, having value as a contract between the Parties based on the terms of these General Sales Conditions. Unless explicitly agreed to the contrary in writing, these General Sales Conditions are applicable to all sales.
2. The delivery times shown on the order are estimated and oblige Modern Waterproofing Company only if they have been expressly
declared as binding. Consequently, the Buyer cannot invoke any reasonable delay as a reason for cancelling the order, refusing the goods or making a claim for damages. Causes of force majeure prolong the delivery times stated on the contract for a period equivalent to the duration of the impediment, unless Modern Waterproofing Company declares its intention to cancel the contract.
3. For conditions on the delivery of goods and the passing of risks connected to the sale of same, as a rule the conditions specified by INCOTERMS 2010 are applied. Unless a specific delivery condition included in INCOTERMS 2010 is indicated, the goods are considered dispatched at the risk of and on behalf of the Buyer, independently from the place of delivery, and all risks are transferred to the Buyer at the moment of delivery of the goods (in this case, “delivery” refers to the moment at which the goods are collected from the Modern Waterproofing Company factories or warehouses). In the case of a sale with the condition of FCA or Ex Works delivery, the carrier appointed by the Buyer must be in possession of the correct authorizations pursuant to the relevant legislation in force.
4. In case of defects being detected in the Product, and acknowledged by Modern Waterproofing Company, Modern Waterproofing Company will at its discretion compensate for the defects through replacement of the unusable portion of the goods. Should it not be possible or practical to replace the goods, the Buyer has the right to a reimbursement of the Ex Works value of the unusable portion of the goods. Under no circumstance will reimbursement be made for goods that have been used or sold to third parties. In the case of reimbursement, Modern Waterproofing can freely make use of the goods being claimed upon which becomes its property. It is expressly agreed that the Buyer cannot request reimbursement for indirect, consequential, or any type of damages allegedly caused by the Products.
If no standard color (RAL number) has been mutually agreed by both parties in writing, then color deviations cannot be a basis for any claims and complaints, and color deviations cannot be treated as defects unless otherwise specified in the contract signed from Modern Waterproofing Company or shown clearly on the price offer and/or the Pro- Forma Invoice with an explicit RAL number designation.
Any claim concerning defects, visible damage or incomplete delivery will not be accepted unless the Buyer or a representative of the Buyer informs Modern Waterproofing Company in writing with a precise description of the defects, within and no later than 8 calendar days from receipt of the goods.
In case of any such claim, Modern Waterproofing Company is entitled to fully investigate the claim and may require additional evidence, documentation., site visits and/or customer interviews in order to substantiate the claim.
Failure by the Buyer to comply with the requests, or failure to respond within a reasonable time frame, will render the claim invalid.
Should a delivery be recognized as not conforming by Modern Waterproofing Company, the obligation of the company is limited to replacing or reimbursing the value of the unusable portion of the goods, and excludes any compensation of damages of any type, Modern Waterproofing shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, for any loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss or consequential damage), costs, expenses or other claims whatsoever (whether caused by the negligence of Modern Waterproofing, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Buyer. Technical Data Sheets from Modern Waterproofing Company regarding the goods being delivered, their characteristics and performances or their use are merely indicative, and are not guaranteed properties. The characteristics are guaranteed only if explicitly defined as such in writing. Pellet deviations can in no way be considered as a basis for any claims or complaints. Minor differences compared to the samples or to previous deliveries or other indications do not justify any claim for indemnity by the Buyer.
Subject to the above, Modern Waterproofing’ maximum liability pursuant to any sale shall at all times and under any and all circumstances be limited to the Ex Works purchase price of the defective portion of the Products concerned, and the Buyer hereby waives and releases Modern Waterproofing from and against any direct or indirect or consequential losses whatsoever; whether due to delays in the delivery, the non-conformity of the Product, performance of the products, suitability for a particular use, or otherwise.
5. Modern Waterproofing Company, at its discretion can keep sold goods as its property until the price and any additional costs have been paid in full.
In the case of payment in installments, Modern Waterproofing is entitled to transfer ownership in proportion to the payment of each installment. Partial payments shall be allocated first to less recent sales.
The presence of a claim or difference of opinion shall not entitle Buyer to withhold any or all of the payments due.
The Buyer bears the full responsibility for making its own determination e.g. by performing tests and analysis as to the suitability and safety of the Product for its own particular use or application. The Buyer shall also solely bear the responsibility for the safe and proper storage, application and/or use of the Product, at its sole risk, and in no event shall Modern Waterproofing Company be liable for any occurrence flowing from the storage, application or use of the Product; nor for any direct, indirect, incidental, special or consequential damages in any way resulting there from, whether Buyer’s claim is in contract, tort, or otherwise.
The Buyer shall be responsible to ensure that, notwithstanding any product instructions given by Modern Waterproofing (if any), the Product shall be stored, applied and or sold strictly in compliance with any applicable safety, environmental or other statutory regulations at his location. Acceptable industry norms for proper handling and storage shall be strictly followed (e.g. no double stacking of pallets, in the warehouse, no storage in direct sunlight, or heat, etc.). Failure to comply with industry norms releases Modern Waterproofing from any liability.
The Buyer assumes all the risks that the goods may run, and has to prove, upon request of Modern Waterproofing Company, that it has taken out an insurance policy at its own expense to cover said risks.
Should the goods be returned due to failure to pay in accordance with payment terms, the Buyer has to pay Modern Waterproofing Company a depreciation indemnity at a rate equivalent to 2% of the price of the goods for each month of possession of the same, from the time of delivery to that of return. Any part of a month will be counted as being a full month. All return transportation costs and associated costs and charges are the responsibility of the Buyer.
6. In the case of failure to respect the terms of payment, interest for late payment shall be applied starting from the first day following the payment due date, calculated automatically (without notice of placing in default) at the Egyptian Central Bank Lending Interest Rate +3%.
7. In its relationship with the Buyers, Modern Waterproofing Company may disclose information and publicize documents concerning, even indirectly, its own activities, goods and human resources, as well as know-how. Modern Waterproofing Company is the owner of such information and documents, which, if not yet known to the general public, have to be considered strictly reserved and confidential.
8. Egyptian law is the applicable law for all dealings and disputes and the courts of the Arab Republic of Egypt are the sole competent courts. Egyptian law includes,
among others, the Commercial Law, the Civil Law and their amendments, and all
other domestic laws of Egypt. The United Nations Convention on the International Sale of Goods (CISG; Vienna Convention) and any other international agreements governing international sales of goods are not applicable and it is agreed that the entire set of provisions of CISG and all other similar agreements do not apply to any quotations or offers made by, contracts entered into and any issues related to sales made by Modern Waterproofing Company.
9. Any dispute regarding the execution or interpretation of these General Conditions of Sale shall be the exclusive competence of the courts of Egypt and shall be adjudicated under laws of the Arab Republic of Egypt and expressly excluding the provisions of CISG.
Should a third party sue a Buyer of Modern Waterproofing Company in any other court of law, the latter henceforth waives its right to summon Modern Waterproofing Company as a guarantor before any court other than Egyptian Courts.
In case of different interpretation of these general sales conditions between the English and any other versions, reference will be made to the original version in the English language published on the website of the company.