General Terms and Conditions of Sale and Delivery of ACTEGA do Brasil Tintas e Vernizes Ltda.
Version: August 2024
1. GENERAL
1.1 These General Terms and Conditions of Sale and Delivery of ACTEGA do Brasil Tintas e Vernizes Ltda (hereinafter referred to as “we” / “our”) shall only apply to persons (i.e. natural or legal persons) who, when purchasing goods from us (hereinafter referred to as the “Goods”), are acting within commercial or self-employed professional activity (hereinafter referred to as "Customers"). Sales to consumers, as defined by the applicable statutory law (including the Brazilian Consumer Code – Act # 8.078/1990), shall be excluded.
1.2 Our General Terms and Conditions of Sale and Delivery shall apply to contracts concluded between us and Customers. This includes contracts made via the usual sales channels (orders by e-mail or signed agreements). For clarity, orders that have been put forward by instant messaging technologies (such as whatsapp) shall not be considered binding orders for us.
1.3 Once our General Terms and Conditions of Sale and Delivery have been introduced to the Customer, they will apply to all further, similar business relationships between us and the Customer, unless otherwise agreed to in writing. The Customer represents that it is aware that these General Terms and Conditions of Sale and Delivery may be updated from time to time. Any new General Terms and Conditions of Sale and Delivery that becomes effective to us, shall immediately apply to all agreements with us and the Customer, provided that we give the Customer proper notice of the enactment of such new General Terms and Conditions of Sale and Delivery and provided further that within a reasonable time (not over 2 business days) the Customer does not give us notice of its disagreement with the new General Terms and Conditions of Sale and Delivery. If the Customer notifies us of tis disagreement with the new General Terms and Conditions of Sale and Delivery, as provided for herein, all agreements between us and the Customer shall be immediately terminated.
1.4 These General Terms and Conditions of Sale and Delivery shall apply exclusively. Any terms and conditions of the Customer that conflict with or deviate from these General Terms and Conditions of Sale and Delivery shall not apply unless we have expressly accepted them in writing. Silence in response to such deviating terms and conditions shall not be deemed to be consent for any present or future contracts.
1.5 The conclusion and execution of any agreement between us and the Customer does not establish any relationship other than a sales relationship, particularly no employment, partnership, or consumer relationship is established between us and the Customer. The Customer is solely responsible for fulfilling its obligations towards its employees, subcontractors, tax authorities and social security institutions and shall abide by any other provisions provided for in these General Terms and Conditions in relation to its employees, subcontractors, tax authorities and social security entities.
2. OFFERS AND ORDERS
2.1 Our offers are subject to change and are non-binding unless we have expressly designated them as binding. They are merely invitations to the Customer to place a binding order thereon. A contract - even in the course of ongoing business - is formed as soon we confirm the Customer's order in writing or via e-mail or deliver the Goods. Our order confirmation determines the content of the delivery contract. If delivery is effected immediately, the invoice may replace the order confirmation.
2.2 The obligation to deliver an item defined only by its category does not mean we assume the risk of procurement. We are only required to deliver from our own stock. We shall not be deemed to have granted a guarantee unless we have specified a property as guaranteed in writing.
2.3 If the Goods ordered by the Customer are not in stock or available for immediate delivery at the time of such order, we will send a notification of the estimated delivery date upon receipt of the Customer's order. This notification does not constitute an acceptance of the order. In this case, the Customer is entitled to revoke its order to us in writing within 2 weeks after having received the notification of the estimated delivery date. If the Customer does not revoke its order within that period of time, the Customer shall be bound to its order. Section 2.1.1 applies accordingly for the process of order confirmation.
3. PRODUCT SAMPLES, DOCUMENTS
3.1 The product properties of product samples are only binding to the extent we expressly agreed to specific product properties of the Goods in writing.
3.2 We reserve title and all copyrights and intellectual property rights to product samples, illustrations, drawings, data, cost estimates and other documents relating to the Goods disclosed or provided to the Customer. This does not apply to product samples the Customer has used in the ordinary course of business. The Customer undertakes not to give third parties access to the product samples, data and/or documents stated in sentence 1, unless we have given our express written consent.
3.3 The provisions of sections 3.1 and 3.2 shall apply vice versa to documents, drawings, or data provided by the Customer; we, however, may make these available to any third parties who have permission to take care of our contractual delivery obligations or who are our agents or suppliers.
4. PROPERTIES OF THE PRODUCTS AND GUARANTEES
4.1 Unless otherwise agreed, our product specifications exclusively determine the product properties of the Goods. Our technical data sheets (“product specifications”) can be provided to you upon request and are hereby incorporated into these General Terms and Conditions of Sale and Delivery. Any information on application or use of the Goods are non- binding and only indications (and Section 4.3 of these general terms and conditions of sale is applicable in this regard). Any other subjective or objective requirements concerning the Goods are excluded.
4.2 Information on product properties and shelf-life as well as other product information only constitute a guaranty if agreed to or specifically documented as such.
4.3 Our technical advice - whether verbally, in writing and/or through tests – is based on current knowledge. Before using the Goods, it is the Customer’s responsibility to examine the suitability of the Goods and test them for quality and fitness for a particular purpose. This also applies to any potential infringement of intellectual property rights of third parties. Details and information about application and use of the Goods, even if mentioned in the technical data sheets, are non-binding and do not constitute a commitment regarding the Goods’ properties or use. Nothing in our agreements shall be construed as a guarantee of fitness of the Goods for any particular purpose.
5. TERMS OF PAYMENT, PROVISION OF SECURITY
5.1 Unless agreed otherwise, invoice amounts are due for payment without deduction within 30 days after the date of the invoice. Invoice amounts are payable in Brazilian Reais to one of our bank accounts. Irrespective of the place of delivery of the Goods, our registered office shall be the place for fulfilment of Customer’s payment obligations.
5.2 If the payment deadline is exceeded, the Customer will be in default without requiring any prior reminder. Upon default, default interest shall be due immediately at a rate of 1 percent per month, which shall accrue together with monetary adjustment calculated based on IPCA/IBGE, also per month.. If the interest rate and monetary adjustment supersedes the maximum amount of interest rate acceptable in the Customer’s jurisdiction, then such interest rate and monetary adjustment rate shall be the maximum interest rate and monetary adjustment rate acceptable in such jurisdiction. The assertion of any further damage is reserved.
5.3 In case of Goods being exported, any costs relating to the transfer or payment of funds shall be borne by the Customer to the extent they arise in the country of the Customer.
5.4 The acceptance of orders and the execution of deliveries may be made dependent on the provision of a security or an advance payment. We are also entitled to demand payment concurrently with the delivery of the Goods.
5.5 If the Customer’s financial situation deteriorates significantly after the conclusion of the contract, be this because of an application for the begin (or the initiation) of insolvency proceedings (bankruptcy or any sort of judicial or extrajudicial recovery proceedings) on the part of the Customer, orders for seizing assets against the Customer which gives rise to justifiable doubts as to the Customer’s ability to pay its debts, or because there is a suspension of payments not based on rights of retention or other rights, and this jeopardizes the Customer's ability to fulfil its contractual duties or raises justifiable doubts as to the Customer’s ability to pay its debts, we are entitled to deliver the Goods only after the Customer has made advance payment.
5.6 The Customer only has a right of retention or set-off regarding counterclaims that have not been disputed or have been legally determined binding by a court, unless the counterclaim is based on a breach of essential contractual duties (see section 10.1 for the definition) by us. The Customer may only exercise a right of retention if the counterclaim is based on the same contractual relationship.
5.7 Payment with bills of exchange is only permitted if and to the extent expressly agreed. In these cases, bills of exchange are accepted on account of the payment due. All discount and bill of exchange charges have to be borne by the Customer. For payment by letter of credit, the most current version of the Uniform Rules and Customs for Documentary Credits issued by the International Chamber of Commerce in Paris shall apply.
6. DELIVERIES, SHIPMENTS AND FORCE MAJEURE
6.1 Binding delivery dates and deadlines must be agreed expressly and in writing. In the case of non-binding or estimated (approximately, about, etc.) delivery dates or deadlines, we will make reasonable efforts to meet delivery dates and deadlines. Any unilateral requests by the Customer shall not be binding on us unless we expressly agree to them in writing. Fixed-date transactions must be expressly designated as such and confirmed in writing by us.
6.2 If, despite proper stockkeeping, we do not receive deliveries or services from our suppliers for reasons beyond our control, or do not receive them correctly, in full or on time, or if events of force majeure occur, we will inform our Customers timely in writing (via e-mail or otherwise). In this case, we are entitled to postpone the delivery for the duration of the impediment, or to withdraw from the contract in whole or relating to the non-fulfilled part, if we have met our above obligation to notify and have not assumed the procurement risk. Events of force majeure are, among others as provided for by the applicable law, strikes, lockouts (lawful or not), actions of authorities, energy and raw material shortages, epidemics or pandemics, legally binding national or international embargo regulations, provisions for the fight against terrorism, transportation bottlenecks through no fault of us, and impairment of operations through no fault of us, for example due to fire, water or machine damage, and all other hindrances which were not culpably caused by us. If a delivery date or a delivery period has been bindingly agreed and if the agreed delivery date or delivery period is exceeded due to events such as those under this section 6.2, the Customer is entitled to withdraw from the contract relating to the non-performed part of such contract after a reasonable grace period has expired, provided it would be objectively unreasonable for the Customer to continue to be bound by the contract, as reasonably assessed by us. In case the Customer chooses to withdraw from the contract because of a force majeure event, the Customer has no further claims. If the impediment lasts longer than six months or if delivery becomes impossible, both parties are entitled to withdraw from the contract, in which case neither party shall have any further claims against the other.
6.3 If there is a force majeure event and/or a case of late/incomplete delivery on the part of one of our suppliers pursuant to section 6.2, we are also entitled to initially make only partial deliveries in our sole discretion – without compromising the rights in section 6.2 – and to reduce the delivery quantities amongst our Customers, including affiliated companies, at our sole discretion and/or to interrupt the delivery. We will inform the Customer about this in due time in writing or via e-mail. The delivery will be continued, or the quantities remaining after the reduction will be delivered once the force majeure event or the case of late/incomplete delivery on the part of a supplier pursuant to section 6.2. has ended. The rights of the Customer pursuant to section 6.2 remain unaffected. Nothing in these General Terms and Conditions of Sale and Delivery shall create an obligation for us to, in a situation such as the one provided for in this section 6.3, provide pari passu or proportional delivery for any of our Customers.
6.4 The Customer’s claims for damages due to delay in delivery are capped at 0.5% of the net delivery price of the delayed Goods for each completed week of delay, not to exceed in total 2% of the stated net delivery price, except if otherwise agreed in writing by us. If the delay is due to intent or gross negligence, the statutory liability remains in effect, which, in the event of a merely negligent breach of a contractual duty, is limited to the respective contract-typical and foreseeable damage, at the time of the conclusion of the contract.
6.5 If the Customer gives us a reasonable grace period after a delay in delivery and such grace period has expired, the Customer is entitled to withdraw from the contract. The Customer is only entitled to claim damages due to non-performance in the amount of the foreseeable damage (as assessed at the time of the conclusion of the contract) if the non-performance is due to intent or gross negligence.
6.6 We shall not be in default for as long as the Customer is in default with the fulfilment of its obligations towards us, including those arising from other contracts.
6.7 Unless agreed otherwise, loading and shipping shall be carried out uninsured at the risk of the Customer ex works, i.e. EXW in accordance with the Incoterms 2020.
6.8 In case the Customer wants us to transport the goods to a specific destination indicated by the Customer, we have the right to choose the transport route and the means of transportation. We, however, will strive to take the Customer's wishes into account with regards to the shipping method and shipping route; any additional costs incurred due to this – even if freight-free delivery was previously agreed – shall be borne by the Customer. For clarity, this does not change the EXW nature of the sale and delivery made by us to the Customer.
6.9 If the parties agreed to Incoterms other than as set forth in section 6.8 and no representative of the Customer is present to receive the ordered Goods when they are delivered to the Customer, and if there is no discernible unloading area/depot at the delivery address that is accessible, secured and lockable for delivery, the confirmation of the driver (the transport company) shall suffice as proof that the Goods were delivered properly.
6.10 If our Goods are shipped in returnable containers, these returnable containers are to be returned to us, at our discretion, emptied of residues in exchange for new containers or sent back to us freight prepaid.
7. PRICES
7.1 We will execute placed orders at the prices as agreed in the contract with the Customer (see section 2.1.1). The prices are quoted in Brazilian Reais, except where otherwise specified, and shall be exclusive of any applicable direct taxes (i.e. ISS, ICMS, IPI or others). Value-added taxes and any other direct applicable taxes will be invoiced separately at the respective applicable rate in accordance with the pertinent tax regulations.
7.2 Unless agreed otherwise, the prices shall be quoted per kg/net, pursuant to Incoterm clause stated in the order confirmation, duty unpaid, for delivery in non-returnable drums and/or intermediate bulk containers. If the Customer desires delivery of the Goods in smaller packaging like non-returnable pails and canisters, the price increases by the pail surcharge that is valid on the day the invoice is issued. If the Customer demands transport by express or airfreight, we will charge any additional costs.
7.3 In the event of
(i) an increase in personnel, production, material, raw material and/or procurement costs, logistics costs, wage and ancillary wage costs, social security contributions, and energy costs (e.g. for electricity and gas) as well as costs due to legal requirements, environmental regulations, currency regulations, changes in customs duties, and/or other public charges, which
(ii) affects the costs of the Goods and increases them by more than 10%, and
(iii) there are more than 1 month between the price agreement and the delivery, we are entitle to
(iv.a) submit to the Customer a proposal for changing the conditions of the agreement (either reducing our obligations or increasing the amount of the Goods, pursuant to art. 479 and 480 of the Brazilian Civil Code), or to
(iv.b) withdraw from the contract (art. 478 of the Brazilian Civil Code). In this case, we will give notice to the Client about any such increase in the price and the Customer may be entitled to withdraw its orders that have not yet been executed completely, i.e. from the part that has not yet been fulfilled. The Customer may, however, only assert this right immediately upon notification of the increase in prices.
8. RETENTION OF TITLE
8.1 We retain the title to all Goods delivered by us (hereinafter referred to as "Conditional Goods", pursuant to art. 521 of the Brazilian Civil Code), until all our claims arising from the business relationship with the Customer, including any future claims from contracts concluded later, have been settled. This also applies to any balance in our favour, if any specific individual claim or all claims on our part have been included in a current invoice (current account) and the balance has been drawn.
8.2 At its own expense the Customer shall sufficiently insure the Conditional Goods, especially against fire, water, damage, and theft. Any claims against an insurance company arising from damage caused to the Conditional Goods is hereby already assigned to us in the amount of the value of the Conditional Goods. We hereby accept the assignment.
8.3 The Customer is entitled to resell the delivered Conditional Goods in the normal course of business. Any other disposition, in particular pledges or the granting of security rights over the Conditional Goods is not permitted. If the Conditional Goods are not paid for immediately upon resale by the third-party purchaser, the Customer is obligated to resell them while retaining title to the Conditional Goods. The right to resell the Conditional Goods expires instantly if the Customer ceases payment or defaults on payment to us or if the Customer applies for any insolvency proceedings (including bankruptcy or judicial recovery proceedings) or an order of seizing assets is issued against any Conditional Goods. The same shall apply if the Customer is affiliated with a group of companies and/or if one of the circumstances described in the previous sentence occurs at the Customer's parent company or holding company.
8.4 The Customer hereby assigns to us all claims, including securities and ancillary rights, which the Customer has against the end user or against third parties as a result of or in connection with the resale of the Conditional Goods. We accept the assignment. The Customer is not permitted to enter into any agreement with its purchasers that excludes or impairs our rights or nullifies the advance assignment of the claim in any way. If the Conditional Goods are sold together with other items, the claim against the third-party purchaser in the amount of the delivery price agreed between us and the Customer shall be deemed to have been assigned, unless the amounts attributable to the individual Conditional Goods can be determined from the invoice.
8.5 The Customer remains entitled to collect the claims assigned to us until such right is revoked by us, which is permissible at any time. Upon our request, the Customer shall provide us with the information and documents necessary for the collection of the assigned claims and, if we do not do so ourselves, the Customer shall inform its purchasers immediately about the assignment to us.
8.6 If the Customer incorporates any claims from the resale of Conditional Goods into a current account relationship with its purchasers, the Customer hereby assigns to us in advance an acknowledged final balance that the Customer has in its favour in the amount which corresponds to the total amount of the claim from the resale of our Conditional Goods incorporated in the current account relationship. We hereby accept the assignment.
8.7 If the Customer has already assigned claims from the resale of the Conditional Goods delivered or to be delivered by us to third parties, in particular on the basis of recourse or non-recourse factoring or has made any other agreements on the basis of which our present or future security interests stated in this clause may be impaired, the Customer shall immediately notify us. In the event of recourse factoring, we are entitled to terminate the contract and demand restitution of the Conditional Goods already delivered; the same applies in the event of non-recourse factoring, if the Customer is unable to freely determine the purchase price of the claim under the contract he made with the factor.
8.8 If the Customer breaches the contract, especially if he is in default of payment, we are entitled to take back all Conditional Goods – without us having to first terminate the contract; in this case, the Customer must immediately surrender the Conditional Goods upon receiving notice from us. To determine the stock of the Conditional Goods delivered by us, our representatives may enter the Customer's business premises at any time during normal business hours. The return of the Conditional Goods only constitutes termination of the contract if we expressly declare this in writing or if this is required by mandatory statutory provisions. The Customer shall inform us about any access third parties have to the Conditional Goods or to any claims assigned to us.
8.9 If pursuant to above provisions we are entitled to securities whose value exceeds the secured claims by more than 10%, we will, if requested by the Customer, release the securities proportionately in our sole discretion.
8.10 If the Conditional Goods are processed or inseparably combined with other items not belonging to us, the Customer agrees that we shall acquire co-ownership of the new item in the ratio of the invoice value of our Conditional Goods to the invoice values of the other processed or combined items. If our Conditional Goods are combined with other movable objects to form a uniform object which is to be regarded as the main object, the Customer hereby assigns to us co-ownership thereof in the same proportion. The Customer shall hold the ownership or co-ownership in safe custody for us free of charge. The co-ownership rights arising hereunder shall be deemed to be Conditional Goods and therefore, entirely subject to the provisions of art. 521 et. al. of the Brazilian Civil Code. Upon our request, the Customer shall be obligated at any time to provide us with the information required to pursue our ownership or co-ownership rights. If such co-ownership is deemed invalid by any competent authority, we shall be entitled to full restitution of the amounts of the Conditional Goods, as assessed by fair market value.
8.11 Once the Customer has suspended payment or filed an application for insolvency (either bankruptcy, judicial or extrajudicial recovery), the Customer is no longer entitled to resell, process, combine or mix any of the Conditional Goods. In this case, the Customer shall store and label the Conditional Goods separately and hold in trust for us any amounts it receives which arise from assigned claims, result from deliveries of the Consigned Goods and are due to us. In this case, the Customer shall clearly label such Conditional Goods with the words “property of Actega”.
8.12 If retention of title expressly agreed herein is not recognised by the law of the country into which the Goods are delivered or any competent authority, or only subject to certain conditions, the Customer shall notify us about this at the latest at the time the contract is concluded. If the law of such country does not allow retention of title, or the extended retention of title, but permits us to reserve other rights regarding the Goods which serve purposes of security in a similar manner as a retention of title, we declare herewith that we will avail ourselves of these rights. The Customer undertakes to cooperate in fulfilling all the required measures (in particular, compliance with formal requirements). If such other rights, which serve to safeguard the rights of suppliers, do not exist either, the Customer shall provide equivalent securities, if we so request. If the Customer does not comply with this request, we may demand the immediate payment of all open invoices, regardless of any previously agreed payment deadlines.
9. WARRANTY AND NOTIFICATION OF DEFECTS
9.1 The Customer shall inspect the delivered Goods for defects regarding their quantity and quality immediately upon delivery and shall notify us of any defects immediately, but no later than 8 days after receipt of the Goods; otherwise, the Goods shall be deemed approved. The Customer shall notify us of any defects not noticeable during this inspection immediately, within 8 days at the latest, upon discovery – but no later than within the period of statute of limitations set forth in item 9.6.
9.2 Any notice of defects shall be communicated in writing specifying the order-, batch-, invoice- and shipping numbers and clearly indicating the defect of the Goods. Any complaint not made in due form and time shall exclude any claim of the Customer for breach of duty due to poor performance.
9.3 Upon commencement of processing, editing, combining or mixing with other items, the Customer shall be deemed to have approved the delivered Goods to be in accordance with the contract in the event of noticeable defects. The same shall apply in the event of onward shipment of the Goods away from the original destination.
9.4 In case of any noticeable defect, the Customer must leave the respective Goods in the transport container, so we can verify the complaint, unless we expressly waive the right to such by way of written declaration and the Customer ensures the separate storage of the respective Goods.
9.5 If the Customer timely notified us of provable defects, we will, in our sole discretion, remedy the defect ourselves, have it corrected by third parties or subsequently deliver Goods free of defects (subsequent performance). Before returning the Goods, the Customer shall seek our consent. Any returned Goods will become our property. If we do not meet our obligation to remedy or replace the defective Goods within a set appropriate grace period, if subsequent performance fails (whereby we are entitled to make two attempts), if we refuse to provide subsequent performance, or if this subsequent performance is unreasonable for us, the Customer - pursuant to statutory provisions - can withdraw from the contract, reduce the purchase price, demand reimbursement of expenses or request compensation for damages within the limits mentioned under section 10. The remedies herein provided shall not be cumulative, except in case of gross negligence from us. If the defect is only minor, there are no rights to withdraw from the contract or to reduce the purchase price. The right to claim damages pursuant to section 10, however, remains unaffected, provided that at all times the compensation for damages is limited to the conditions and amounts set forth in section 10.
9.6 The statute of limitations period for claims arising from defects is 12 months from the passing of risk of the Goods to the Customer in accordance with the agreed Incoterms. This does not apply to cases pursuant to section 10.1 (1) – (8) below.
9.7 Our liability pursuant to section 10 remains unaffected.
10. LIABILITY, EXCLUSION AND LIMITATION OF LIABILITY
10.1 We are generally only liable for intentional acts and gross negligence on our part and our executive and non-executive employees, legal representatives, and vicarious agents, as well as our subcontractors. Our liability for slight negligence or fault is excluded. The above exclusion of liability does not apply to
(1) the breach of essential contractual duties whereby essential contractual duties are those whose fulfilment characterise the contract and which the Customer may trust to be fulfilled,
(2) the breach of duties, if the Customer can no longer be reasonably expected to trust our performance.
(3) death or personal injury,
(4) the assumption of a guarantee for the quality of a performance, for the existence of a successful performance or for a procurement risk,
(5) deceit,
(6) initial impossibility,
(7) claims resulting from strict product liability law, or
(8) other cases of mandatory statutory liability.
10.2 Unless we are liable for intentional breach of our contractual obligations, death or personal injury or there are other cases of mandatory statutory liability, we are only liable for the contract-typical and foreseeable damage.
10.3 Liability for indirect or consequential damages is excluded.
10.4 Our liability is capped at R$ 1,000,000.00. This limitation of liability does not apply if we are accused of deceit, intentional acts or gross negligence, if there are claims resulting from death or personal injury, tortious action or not fulfilling an expressly assumed guarantee or in cases where higher liability amounts are mandatory as prescribed by the law.
10.5 Any additional liability for damages beyond what is described above shall be excluded without regard to the legal nature of the claim asserted. This applies, in particular, to claims for damages resulting from culpability in contract negotiations (pre contractual liability or because of tort claims for damages.
10.6 The exclusions or limitations of liability pursuant to sections 10.1 to 10.5 above equally apply to our executive and non-executive employees, our legal representatives and vicarious agents, as well as our subcontractors.
10.7 Any claims the Customer may have for damages resulting from this contractual relationship the Customer may only assert within one year after the Customer has received (or is deemed to have received) the Goods. The same applies to competing claims from tortious acts as well as to any claims of consequential damages. This does not apply to cases listed in sections 10.1 (1) to (8).
10.8 The above provisions shall not lead to a reversal of the burden of proof.
11. DATA PROTECTION
11.1 We store and process personal data provided by the Customer in accordance with applicable laws and regulations, as far as is necessary for establishing, defining, executing or changing the contractual relationship.
11.2 The Customer shall comply with all applicable data protection laws and regulations in relation to the processing of personal data under or in connection with this agreement, including but not limited to the General Data Protection Regulation (GDPR) and the Brazilian Data Protection Statute (Statute # 13.709/2018) and any national implementing legislation.
11.3 The Customer shall ensure that it has a lawful basis for transferring any personal data to us or our affiliates, and that it has obtained all necessary consents and provided all necessary information to the data subjects, as required by the applicable data protection laws and regulations.
11.4 The Customer shall inform us without undue delay of any requests, complaints, inquiries or investigations from data subjects, supervisory authorities or other third parties relating to the processing of personal data under or in connection with this agreement, and cooperate with us in resolving any such issues.
11.5 The Customer shall indemnify us and our affiliates against any claims, damages, liabilities, costs and expenses arising out of or in connection with the Customer's breach of this clause 11 or any applicable data protection laws and regulations.
12. CONFIDENTIALITY
12.1 The Customer shall hold in strict confidence all facts, documents and information (about Goods) which the Customer gains knowledge of in the course of the contractual relationship with us, which includes technical, financial, business and market-related information about the company or our Goods, provided that we have declared the respective information as confidential or there is an obvious interest in the confidentiality (hereinafter referred to as “Confidential Information“). The Customer will use the Confidential Information exclusively for the purpose of implementing and executing the contractual relationship with us.
12.2 The Customer shall require from its directors, officers and employees, who process or get to know the Confidential Information, equal confidentiality and restricted use obligations not less strict than herein. The passing-on of Confidential Information to third parties by the Customer requires our express prior consent in writing or via e-mail.
12.3 The above obligations of confidentiality and restricted use shall not apply if the Customer can prove that the respective Confidential Information:
(a) is in the public domain at the time of disclosure; (b) is published or otherwise becomes part of the public domain through no fault of the Customer; (c) was in the possession of the Customer at the time of disclosure;
(d) was made available to the Customer by a third party who had the right to legally disclose it;
(e) was independently developed by the Customer without using or making any reference to the Confidential Information;
(f) is required to be disclosed pursuant to a law, regulation, rule or ordinance of any governmental body or court provided that the Customer - if legally permitted - has given prompt written notice to us of any such requirement.
12.3 The obligations of the confidentiality herein provided for shall continue in force for 12 months after the termination of any relationship between us and the client.
13. COMPLIANCE
The Customer is obligated to comply with all applicable laws regarding the Goods, especially anti-corruption regulations, regulations combating money laundering or financing of terrorism and anti-trust laws. Applicable anti-corruption regulations within the meaning of the previous sentence include but are not limited to the UK Bribery Act 2010, the US Foreign Corrupt Practices Act and the Brazilian Corruption Act (Statutory Act 12.846/13).
14. EXPORT CONTROL
14.1 The Goods are – unless otherwise agreed in writing - always designated to remain, to be used, as well as to be sold in the first country of delivery agreed upon with the Customer. Unless required by law or otherwise agreed in writing, we are under no obligation to make available documents to the Customer for the import or export of the Goods from the first country of delivery. If we do make such information available to the Customer on an individual basis, this shall be done without any warranty or guarantee of the accuracy of the information. This does not give the Customer any right to obtain or use this information from us for any future business.
14.2 The export of certain Goods may be subject to authorisation – e.g. because of their nature, their intended use or their final destination. The Customer shall strictly comply with all applicable (re-) export control and sanctions regulations, especially those of the Federal Republic of Germany, the European Union and its member states as well as the United States of America and the United Nations.
14.3 Prior to any provision of the Goods, which the Customer had purchased from us to a third party, the Customer shall check and guarantee in particular by appropriate measures that(a) no embargo imposed by the European Union and its member states, by the United States of America and/ or by the United Nations shall be violated;(b) the Goods are not intended for use in connection with armaments, nuclear technology or weapons, if and to the extent such use is subject to prohibition or authorization, unless it has obtained the required authorization;(c) the regulations of all applicable Sanctioned Party Lists of the European Union and its member states and the United States of America concerning the trading with entities, persons and organizations listed therein are obeyed.
14.4 Upon request, the Customer shall provide us with all requested end-use-certificates regarding the intended final destination of the Goods purchased from us without undue delay, but no later than within 10 days.
14.5 The Customer shall indemnify and hold us harmless from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any culpable violation of the above obligations pursuant to sections 14.1 to 14.4. The Customer shall compensate us for all losses and expenses resulting thereof, in particular the costs and expenses of any possible legal defence as well as any contingent fines or penalties imposed by authorities. This provision does shall not lead to a reversal of the burden of proof.
14.6 If obligations pursuant to this section 14 would constitute a breach of any applicable mandatory anti-boycott rule legislated by the European Union or any of its member states, such conflicting obligations shall not be fulfilled.
14.7 The Customer shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Goods to any person, entity or country, or use any Goods for any purpose, prohibited by the United States Export Administration Act and/or the regulations of the U.S. Department of Commerce or the European Union or any other applicable law or regulation. The Customer shall comply with all applicable export control laws and regulations and obtain all necessary licenses and authorizations for the export or re-export of the Goods. The Customer shall not deal with any person or entity that is subject to any sanction, embargo, restriction, or prohibition imposed by the United States, the European Union, or any other relevant authority. The Customer shall provide us with any information and documentation that we may request to verify the Customer’s compliance with this section 14.7.
15. JURISDICTION AND APPLICABLE LAW
15.1 The exclusive place of jurisdiction and venue shall be São Paulo/SP, Brazil for any and all disputes arising out of the contractual relationships governed by these General Terms and Conditions of Sale and Delivery. We have, however, the right to file a lawsuit at the Customer’s general place of jurisdiction.
15.2 These General Terms and Conditions of Sale and Delivery shall be governed by the laws of the laws of Brazil without regard to its conflict-of-law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
15.3 If our order confirmations contain an Incoterm clause, the latest version thereof shall apply unless otherwise stated in our respective order confirmation.