General Terms and Conditions for Trade
Coverage, Validity, and Application
These General Terms and Conditions of Sale (“Terms”) apply to all deliveries of products and services (collectively referred to as “Products”) from XRG Energy and/or its Affiliates (collectively referred to as “XRG”) to any customer (“Customer”). In these Terms, “Affiliate” shall mean an entity directly or indirectly controlled by XRG, whether through shares or voting rights. The sale of any Products is expressly conditioned upon the Customer’s acceptance of these Terms. These Terms apply to the agreement, excluding any other terms, and no other terms shall be binding upon XRG and the Customer unless expressly agreed to in writing by both parties. Customer’s authorization to ship or receive Products, or the Customer’s receipt of such Products, constitutes acceptance of these Terms.
Order Confirmation / Quotation Acceptance
A purchase order constitutes an offer by the Customer to purchase the Products in accordance with these Terms. XRG’s acceptance of a purchase order occurs upon written confirmation, including electronic text form, from XRG to the Customer, forming a binding agreement (“agreement”). Customer’s acceptance of a quotation or offer for Products provided by XRG also constitutes an agreement and acceptance of these Terms.
Unless otherwise agreed, the Products are delivered EXW (Ex Works) from any plants, factories, or places of business chosen by XRG. In the absence of specific instructions, XRG has the right to dispatch the Products to the Customer at the Customer’s risk and expense using a transport method chosen by XRG. The interpretation of EXW or any other agreed delivery term shall follow the INCO-terms valid at the time of the agreement.
If a firm delivery date is agreed upon and XRG fails to deliver at the agreed time, the Customer is entitled to request written delivery confirmation and set a final reasonable time limit for delivery. If delivery is not made within this time limit, the Customer can rescind the sales agreement and, subject to any disclaimers or limitations of liability in these Terms, claim compensation for documented direct losses. The compensation cannot exceed the price of the delayed Products. Any claim for compensation must be made within one month from the agreed delivery date. No further claims can be made by the Customer due to the delay.
Product prices exclude VAT, other taxes, or duties. XRG reserves the right to adjust prices for undelivered Products in the event of exchange rate fluctuations, material cost variations, price increases from sub-suppliers, changes in customs duties, changes in wages, state requisitions, or similar conditions beyond XRG’s control. XRG may separately charge the Customer for surcharges and fees, such as small orders, freight and handling, express delivery, return and cancellation fees. XRG will inform the Customer of such surcharges and fees in the order confirmation, price lists, or other means.
Disposable packaging is included in the Product prices and will not be credited upon return. Returnable packaging is not included in the Product price but will be credited upon return in undamaged condition at the Customer’s expense and in accordance with XRG’s instructions.
Unless otherwise agreed, the payment due date is seven days from the invoice date. Credit terms are subject to XRG’s satisfaction with the Customer’s credit references. XRG may, at its absolute discretion, refrain from delivering the Products until the Customer has complied with the payment requirements, such as payment in advance or payment of outstanding amounts due to XRG. All payments must be made via bank wire transfer or direct debit without deduction of any transfer or debit fees. An interest rate of either 2% per month or the highest rate allowable under applicable law, whichever is lower, will be payable from the due date.
XRG and its Affiliates are entitled to offset any liability of XRG and/or its Affiliates to the Customer against any liability of the Customer to XRG and/or its Affiliates.
Any information, including but not limited to product selection, application or use information, product design, weight, dimensions, capacity, or other technical data provided by XRG in catalogs, descriptions, advertisements, etc., whether in writing, orally, electronically, online, or via download, is considered informative and subject to change without notice. Such information is binding only if explicitly referenced in a quotation or order confirmation. Specific demands from the Customer are only binding if confirmed in writing by XRG. The Customer is solely responsible for its products and applications that incorporate or use XRG Products. Any Products provided as samples, prototypes, or for evaluation purposes (whether charged for or not) may only be used for evaluation and cannot be resold or incorporated into the Customer’s products for resale.
Proprietary Information and Confidentiality
All products remain the sole property of XRG until payment has been received in full. Any non-public information, including prices, drawings, descriptions, and technical documents provided by XRG (“Confidential Information”), shall remain the property of XRG and must be treated as confidential by the Customer and its representatives. Confidential Information shall not be copied, reproduced, transferred to third parties, or used for purposes other than those intended without written consent from XRG. Confidential Information must be returned upon XRG’s request.
XRG reserves the right to make alterations to the Products that do not materially affect the agreed specifications, form, fit, or function of the Products without prior notice.
Cost-Free Repairs or Replacements
XRG agrees to repair, replace, or credit, at its discretion, any Products found to be defective at the time of delivery due to faulty manufacture, design, or defective materials. The Customer must make a claim within 12 months from the date of delivery, not exceeding 18 months from the Product’s stamped date or, if no date is stamped, from the date of production (“Claim Period”). If defects occur within the Claim Period, the Customer must inform XRG in writing following XRG’s instructions. Upon request by XRG, the Customer must forward the defective Product at its cost and risk, along with a written notice explaining the reason for the return. Products returned for repair must be free of extraneous equipment unless instructed otherwise. If XRG’s examination shows that the Product is not defective, XRG may return the Product to the Customer at the Customer’s cost and risk and may charge a fee for investigating the defect. If XRG confirms the defect, it may send a repaired or replacement Product to the Customer, repair or replace the Product on location, or credit the original purchase price. In case of repair or replacement on location, the Customer must grant XRG access. XRG may choose the method of dispatch and will cover freight and insurance costs. Replaced Products or parts become the property of XRG. Services or advice provided by XRG must be performed with reasonable skill and care, and XRG makes no warranties regarding their suitability. XRG’s liability for faulty services, consulting, advice, application guidance, and other services is limited to correcting the fault or re-performing the service. Claims for faulty services must be made within the Claim Period. Free services are not subject to liability. XRG may offer a limited manufacturer’s warranty on a per-product or per-division basis in addition to its obligations under this clause 11. The end-user may rely on such a manufacturer’s warranty unless otherwise agreed. After the applicable Claim Period, no claims can be made by the Customer regarding Products, whether based on contract, breach of warranty, tort, statute, or otherwise. All implied warranties, conditions, and other terms (including any implied warranty of merchantability or fitness for a particular purpose) are excluded from the agreement, except those that cannot be excluded by applicable law. In addition, the Products are supplied “as is,” “where is,” and “with all faults” unless otherwise expressly stated in these Terms.
XRG shall not be liable for any damage to any property (real or movable) caused by the Product after it has been delivered and is in the Customer’s possession. XRG shall also not be liable for any damage to products manufactured by the Customer or to products in which the Customer’s products are included. If XRG incurs liability to any third party for such damage, the Customer shall indemnify, defend, and hold XRG harmless from and against such liability. The Customer shall also indemnify, defend, and hold XRG harmless from all claims arising from damage resulting from the Customer’s improper installation, repair, maintenance, or operation of the Products, inadequate personnel training, failure to comply with applicable laws or regulations, or other causes. If a third party lodges a damage claim against either XRG or the Customer, the responding party must promptly inform the other party in writing. The Customer must cooperate with XRG in case of damage claims against XRG resulting from the alleged damage caused by the Product.
Limitation of Liability
XRG shall not be liable to the Customer for the following types of loss or damage arising from or related to an agreement governed by these Terms: 1) loss of profits, business, contracts, anticipated savings, goodwill, or revenue; 2) loss or corruption of data; or 3) any indirect, special, punitive, exemplary, or consequential loss or damage, even if XRG was informed in advance of the possibility of such loss or damage. This limitation applies regardless of whether the claim is based on breach of warranty, tort, statute, delay, faulty Products, product liability, recall, or any other legal theory. XRG’s total liability under these Terms shall not exceed the amount invoiced by XRG to the Customer. The Customer acknowledges and agrees that XRG has set its prices and entered into the transaction in reliance upon the disclaimers of warranty and the limitations of liability set forth in these Terms, which constitute an essential basis for the agreement.
Nothing in these Terms, including but not limited to the exclusions and limitations in clauses 11 to 13, shall exclude or limit the liability of either party to the other for death or personal injury arising out of negligence, fraudulent misrepresentation, or any other liability that cannot be excluded or limited by law.
Notice of Claims
Claims or complaints regarding defects, delivery delays, or any other claims must be submitted in writing by the Customer to XRG without undue delay.
Intellectual Property Rights and Software Use
All intellectual property rights associated with XRG’s products remain the property of XRG unless otherwise agreed in writing. If the Product is delivered with embedded software, the Customer obtains a non-exclusive software license limited to the intended purposes specified in the Product’s applicable specification. The Customer does not acquire any rights to the source code or any other proprietary rights connected to the Products. Software provided separately by XRG, regardless of the means of delivery, is provided on an “as is,” “where is,” and “with all faults” basis, limited to the intended purpose and subject to any applicable license conditions. XRG is not liable for any errors or loss or damage arising from the use of such separate software or any third-party software associated with it. XRG may defend any suit or proceeding against the Customer based on a claim that any Product or part delivered by XRG infringes any third-party intellectual property rights, provided that the alleged infringement is not a result of the Customer’s specified design, requirements, application, or use. XRG will cover damages and costs awarded against the Customer under such a suit or proceeding if XRG elects to defend it. If the Product or part is found to infringe third-party intellectual property rights and its use is prohibited, XRG may, at its discretion, provide the Customer with the right to continue using the Product, replace it with non-infringing Product(s) or parts, modify it to be non-infringing, or remove the Product and refund the purchase price. This constitutes XRG’s entire liability to the Customer for infringement of intellectual property rights.
Resale and Use Restriction
XRG products are intended for civilian use. The Customer shall not use or resell the Products for purposes related to chemical, biological, or nuclear weapons or for missiles capable of delivering such weapons. The Customer is prohibited from selling the Products to individuals, companies, or any organization suspected of being involved in terrorist or narcotics activities. The Products may be subject to export control regulations, and restrictions may apply to sales to countries/customers covered by export and import bans. The Customer must comply with these restrictions when reselling the Products. The Customer shall not resell the Products if there are doubts or suspicions that they may be used for purposes violating the aforementioned restrictions. If the Customer becomes aware of or suspects any violations of the conditions stated in this clause, it must immediately inform XRG.
XRG is entitled to cancel orders or suspend delivery of Products without liability in the event of non-delivery, faulty or delayed delivery caused by circumstances beyond XRG’s reasonable control, including riots, civil unrest, war, terrorism, fire, insurrection, requisition, seizure, embargo, defects or delays in deliveries by sub-suppliers, strikes, lockouts, transportation shortages, scarcity of materials, or insufficient energy supplies. In such circumstances, the Customer’s contractual rights are suspended or become void. The Customer is not entitled to damages or claims in case of cancellation or delayed delivery due to such circumstances.
Global Compact and Anti-Corruption
XRG supports the United Nations’ Global Compact initiative and has undertaken to comply with its 10 principles regarding human rights, employees’ rights, the environment, and corruption. XRG encourages the Customer to adhere to these principles. XRG may cancel any delivery, purchase order, or terminate an agreement without incurring liability if it has reason to believe that the Customer acts contrary to applicable laws and regulations regarding pollution, bribery, and corruption.
Personal data of individual Customer contacts, such as name and business contact details, may be processed and stored globally outside the Customer’s country by XRG, its affiliates, or authorized third-party providers. XRG will use personal data to fulfill its contractual obligations, analyze and improve its products and services, and provide information on products, services, and events to Customer contacts. The Customer agrees to the use and transfer of personal data as described above, acknowledging that personal data will be subject to the laws of the country where it is held or the server is located. XRG will implement adequate contractual and technical measures to protect personal data. XRG will retain personal data for the duration of the contractual relationship. If required by law and under specific conditions, natural persons may exercise rights regarding access, rectification, inquiries, or objections to the processing of their personal data. For further details, the Customer should contact its local XRG representative.
If any term or part of a term in these Terms is deemed invalid, unenforceable, illegal, or inoperable, the validity, enforceability, legality, or operability of the remaining terms shall not be affected.
XRG and the Customer may assign or transfer their rights under these Terms at any time. However, neither party may assign or transfer its obligations under these Terms without the prior written consent of the other party.
Governing Law and Disputes
Any disputes arising from or in connection with an agreement governed by these Terms shall be governed by the substantive law of the country where XRG’s selling entity is located. If the parties are unable to resolve a dispute, it shall be referred to and finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed according to those Rules. Either party may seek injunctive or interim relief or other temporary measures. The parties may enforce any arbitral award in a competent court. The seat of arbitration shall be the capital city of XRG’s selling entity’s country. The arbitration proceedings and the arbitral award shall be confidential, and persons involved on both sides must maintain confidentiality. English shall be the language used in the arbitration proceedings unless otherwise agreed.