Corning B.V.
These General Conditions ofSale have been filed with the Chamber of Commerce of Amsterdam under No34127518 – 1 January 2019
General Conditions of Sale
1. Acceptance. No binding contract shall exist or be deemed to exist until CorningB.V. (hereinafter, “Corning”) dispatches a written acceptance of Buyer’s order(“Order Confirmation”).
2. Terms of Contract. Unless otherwise confirmed by Corning in writing, these Conditions ofSale and the Order Confirmation constitute the entire contract between theBuyer and Corning with respect to the sale of the products. No changes to thecontract shall be accepted without the written consent of an authorizedrepresentative of Buyer and Corning (notwithstanding anything to the contraryin Buyer’s order or supporting documentation). Any additional typed and/orwritten terms and conditions contained in any documentation exchanged betweenCorning and Buyer shall be for administrative purposes only, i.e. to identifythe types and quantities of products to be supplied, line item prices, deliveryschedule, and other similar ordering data.
3. Delivery. Unless otherwise provided in Corning’s Order Confirmation, this is aFree Aboard (“FCA”), Corning BV - Amsterdam delivery, according to the versionof the Incoterms® in force at the time of conclusion of the contract(hereinafter “Delivery”). All risks associated with the products shall transferto Buyer upon Delivery. Delivery dates shall be as set forth, for informationonly, in the Order Confirmation.
4. Invoicing and Payments Terms. Corning shall be entitled to invoice the Buyer upon Delivery, andpayment shall be due and payable within 30 days after the date of Corning’sinvoice. If Corning has agreed to postpone Delivery upon Buyer’s request,Corning may invoice Buyer for the products when Corning is ready to ship andBuyer will reimburse Corning for any storage costs incurred.
5. Payment Delay or Default. In case of Buyer’s delay or failure to pay any outstanding invoicewhen due, then, without prejudice to any other claim or remedy as may beavailable pursuant to applicable law, and without the need for any formalnotice: (i) interest shall accrue on any outstanding payment at a rateequivalent to EURIBOR+2%, and (ii) any discount or rebate agreed and notsettled yet by Corning shall be automatically cancelled.
6. Retention of Title. Title to any products delivered by Corning shall pass to Buyer upon receiptof payment of the full purchase price of the products. For any products resoldby Buyer before Corning has received full payment for those products, Buyerhereby, to the extent relevant in advance (bij voorbaat), assigns to Corning(and Corning hereby accepts the assignment of) all claims which Buyer may haveor acquire arising from that resale. Should Buyer fail to make payment for anyproducts when payment is due, Corning is then entitled to retake possession ofthe products at Buyer’s expense or to inform the Buyer’s customer of theassignment in order to obtain payment directly from Buyer’s customer. If, insuch event, the amount directly received by Corning from Buyer's customer is inexcess of the amount due and owing by Buyer to Corning, Corning shall refund toBuyer such excess amount. Buyer shall cooperate with, and provide all necessaryinformation to, Corning, to effect this assignment.
7. Manufacturing. Corning reserves the right to manufacture or have-manufactured theproducts in any location.
8. Inspection and Warranty.
8.1 Inspection. Buyer shall have eight (8) calendar days from Delivery to inspect theproducts and notify any non- conformity in writing. Buyer shall not be entitledto make any claim relating to physical damage and/or to, quantity, weight,packaging or loss of the products after such time.
8.2 Warranty. Corning warrants only that the products delivered to Buyer pursuantto this contract shall conform to Corning’s published specifications. Suchwarranty shall remain in force for the Warranty Period, that is to say : (a) inthe case of plastic laboratory consumables and laboratory equipment, for aperiod of 12 months from the date of Delivery ; or (b) in the case of chemicaland biological products, for a period up to the expiration date, as evidencedon the product. Corning shall not be liable for any latent or other defectsthat appear after the Warranty Period.
Remedy. If theproducts do not conform to the foregoing warranty (“Non-Conforming Products”),Corning will, at its option, either repair, replace the Non-ConformingProducts, or refund their purchase price. The remedy selected by Corning shallbe Buyer’s sole and exclusive remedy. Corning’s liability shall be limited tothe delivery of repaired or replacement products only, free to the originalcontractual place of Delivery or to the refund of the purchase price, accordingto the remedy selected by Corning. The remainder of the original WarrantyPeriod shall apply to the repaired or replacement product.
Return. Non-ConformingProducts should not be returned to Corning unless (i) product is unused, (ii)provided in its original uncompromised packaging and (iii) accompanied byCorning’s Return Material Authorization.
In any event, Non-Conforming Productsthat are either cooled, frozen and/or hazardous products, and/or chemical orbiological products in the form of powders, liquids, gels, paste or anythingthat is capable of leaking during transportation, shall not be returned toCorning, but shall be disposed of by Buyer, in accordance with applicable lawsand regulations. Corning shall reimburse Buyer for reasonable disposal costsincurred by Buyer, provided Buyer has obtained Corning’s prior written approvalfor such disposal costs.
Limitations. The foregoing warranty is conditioned on satisfaction of each of thefollowing: (i) all claims regarding Non-Conforming Products must be made inwriting to Corning (with appropriate unused samples, to the extent available,in such amounts as Corning reasonably requests) before the expiration of theWarranty Period; and (ii) the Non-Conforming Products shall have beenmaintained and used by Buyer in accordance with standard industry practice andany instructions provided by Corning; and (iii) the Non- Conforming Productsshall not have been damaged, altered, or otherwise harmed by Buyer or any thirdparty. Corning makes no warranty against and shall not be liable for anydamage(s) attributable to products, used, operated or maintained negligently inany manner or otherwise not due to Corning’s fault.
No warranty or representation or guarantyis made by Corning as a result of the delivery of any sample, prototype,product information sheet, sale or marketing material, or statement by arepresentative of Corning.
Corning shall be allowed a reasonableperiod to investigate any claim relating to Non-Conforming Products and shallbe given access to Buyer’s relevant records and data for this purpose.
Buyer acknowledges and agrees that it isrelying on its own skill and judgement as to suitability of all productssupplied by Corning for any particular purpose or for use under any specificconditions. Corning disclaims any warranty relating to any design made,furnished or specified by Buyer. THIS WARRANTY CONSTITUTES THE SOLE GUARANTEEOR WARRANTY RELATED TO THE PRODUCTS PROVIDED BY CORNING, AND IS IN LIEU OF ALLOTHER WARRANTIES (WHETHER WRITTEN, ORAL OR IMPLIED), INCLUDING BUT NOT LIMITEDTO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. Corning’s Liability. Buyer shall notify Corning in writing as soon as possible, and in anyevent within a maximum of five business days, after Buyer receives knowledge ofany accident, or incident involving Corning’s products which results inpersonal injury or damage to property, and Buyer shall fully cooperate with Corningin the investigation and determination of the cause of such accident and shallmake available to Corning all statements, reports and tests made by Buyer ormade available to Buyer by others. The furnishing of such information toCorning and any investigation by Corning of such information or incident reportshall not in any way constitute any assumption of any liability for suchaccident or incident.
Except when and in so far as somethingelse otherwise ensues from the provisions of imperative law concerning productliability, Corning shall not be liable for and is not obligated to indemnifyBuyer for any damage or injuries, of whatever nature, (i) suffered or incurredby any individual, and/or (ii) to any property (tangible or intangible), causeddirectly or indirectly by or connected with any products supplied by or onbehalf of Corning or being caused directly or indirectly by or being connectedwith any use or any application or operation of such products. Corning’sliability to Buyer is at all times limited to the price of the products as towhich a claim is made.
IN NO CASE WILL CORNING BE LIABLE TOBUYER, OR TO ANY THIRD PARTIES, FOR ANY SPECIAL, PUNITIVE, CONSEQUENTIAL ORINDIRECT DAMAGE OR DAMAGES, INCLUDING WITHOUT LIMITATION THE LOSS OF CAPITAL,USE, PRODUCTION OR PROFITS, ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF CORNINGHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR DAMAGES.
Without prejudice to the provisionsotherwise specified in this Clause, every claim for damages lapses twelvemonths after Delivery.
10. Patent Warranty. With regard to intellectual property and other proprietary rights,Corning’s sole liability and obligation shall be to defend Buyer from andagainst any claim asserting that products provided by Corning (in the formprovided by Corning), when used for their normal intended purposes, infringe avalidly issued patent. Corning makes no warranty with respect to patentscovering composite structures or systems into which any products provided byCorning may be incorporated by Buyer. Buyer assumes all liability for and willhold Corning, its employees and agents, harmless from any and all patent ortrade secret liability in connection with any products manufactured to Buyer’sdesigns or specifications or specifically designed by Corning or its supplierto meet Buyer’s requirements. Corning’s liability hereunder shall be limited toan amount equal to the total value of the products that are the subject of theclaim that were purchased by Buyer from Corning in the two-year period prior tothe date the claim is first filed against Buyer.
11. Tools and Made to orders. The charges listed for tools in the Order Confirmation, if any, arebased on the manufacture of products in the quantities specified by Buyer’sorder. Unless changes are made in design, specifications, etc., a charge fortools will be made on the first order only. Corning retains title to all toolsand will keep them in repair and make necessary replacements without additionalcharge. Tools may be scrapped three (3) years from the date of the last orderunless special arrangements are made.
Made to orders are orders for nonstandard products, specifically designed and manufactured for Buyer or Buyer’scustomer(s). In case of made to orders, Buyer shall be obliged to purchase thewhole manufactured quantity, even if this does not correspond to the quantityordered, providing the difference shall not exceed plus or minus 15%.
12. Intellectual Property. All rights in the design of the products and all intellectualproperty rights existing or coming into existence in relation to the productsare wholly owned by Corning.
13. Product Use. Buyer assumes all risks and liabilities arising from the loading,unloading, discharge, storage, handling and use of the products, including theuse of such products alone or in combination with other substances. Buyerassumes full responsibility for compliance with all applicable laws,regulations and rules governing the loading, unloading, discharge, storage,handling and use of the products.
Corning’s products are intended forlimited uses, as is specified for a particular product in Corning’s catalog andon the product’s label. Buyer acknowledges that, except if and to the extentexpressly specified otherwise in writing, Corning has not tested products forsafety and efficiency in food, drug, medical device, cosmetic, commercial orany other use. If Buyer intends to use the products for any use
other than the use(s) specified for aparticular product in Corning’s catalog and on the product’s label, Buyerexpressly represents and warrants that Buyer will properly test, use,manufacture and market any products purchased from Corning and/or materialsproduced with such products in accordance with the practices of a reasonableperson who is an expert in the field and in strict compliance with allapplicable laws.
14. Buyer Indemnity. Buyer shall indemnify and hold harmless Corning, its affiliates,officers, employees, agents, successors, directors, shareholders, andassignees, from and against any suits, losses, claims, demands, liabilities,costs and expenses (including attorney and accounting fees) that Corning mayincur as a result of any claim against Corning brought by Buyer’s affiliates,officers, employees, agents, successors, directors, shareholders, or assignees,by Buyer’s customers, by end users, by auxiliaries (such as freight handlers,etc.), or by other third parties, arising, directly or indirectly, out of theuse of Corning’s products, or by reason of Buyer’s failure to perform Buyer’sobligations contained herein.
15. Packaging. Buyer shall dispose of packaging at its costs and in accordance withapplicable laws and regulations.
16. Waste Electrical and ElectronicEquipment. Buyer shall follow the instructions forreuse and recycling of waste electronic and electrical equipment (WEEE)provided with the products and available at the following link:http://www.corning.com/about_us/corporate_citizenship/weee/recycling/index.aspx. This clause applies to all electrical and electronicequipment (EEE) put on the market by Corning after 13 August 2005. If Buyerresells the EEE to a customer, Buyer will ensure that this clause in itsentirety is included in the contractual arrangements governing the sale to itscustomer. Buyer shall indemnify and hold harmless Corning from and against allcosts and expenses which Corning incurs or suffers, as a result of a direct orindirect breach or negligent performance or failure in performance by the Buyerof its obligations in this clause.
17. Safety Data Sheets. Some of the products are provided with safety data sheets (“SDS”). Ifand when Buyer re-sells such products, Buyer shall be liable for providing thecorresponding SDS to its customer.
18. EXPORT LICENSING. THIS CONTRACT ISSUBJECT TO THE PROVISOS: THAT REQUIRED EXPORT LICENSES HAVE BEEN GRANTED AND/ORTHAT THERE ARE NO OTHER IMPEDIMENTS ARISING FROM ANY APPLICABLE EXPORTREGULATIONS; AND THAT ANY PRODUCTS SOLD TO BUYER WILL NOT BE EXPORTED ORRE-EXPORTED BY BUYER UNLESS SUCH EXPORT OR RE-EXPORT COMPLIES FULLY WITH ALLAPPLICABLE EXPORT REGULATIONS.
19. Contract Suspension. If Buyer is in default of any material provision of this contract(including the failure to make any payment when due or a failing to purchasethe agreed upon commitments of products), then Corning may at its optionsuspend its performance under this contract until Buyer cures the default. Therights granted under this Clause are in addition to any other rights, claims ordamages that Corning may have at law.
20. Force Majeure. If the performance of this contract or of any obligation hereunder,other than the payment of any money, is prevented, restricted or interferedwith by reason of any act of God, civil disorder, industrial dispute,governmental act (including by statute, rule, regulation, order or requisition),war, or any other cause not within the control of a party hereto, Corning shallbe entitled to defer Delivery for the duration of such Force Majeure event. Ifthe delays causes by the Force Majeure event exceed a period of ninety (90)days, then either party shall be entitled to terminate this contract uponwritten notice to the other.
21. Confidentiality. Buyer and Corning each agree that all confidential commercial(including all pricing) and technical information provided hereunder to oneparty by the other (which the transmitting party designates in writing as beingconfidential) will be kept confidential by the receiving party using the samestandard of care as the receiving party uses to protect its own similarconfidential information, though not less than a reasonable standard of care;and shall not be sold to or disclosed in any other manner to any third party bythe receiving party. The preceding sentence shall not apply to: (a) informationwhich at the time of disclosure hereunder is in the public domain; (b)information which after disclosure hereunder is published or otherwise becomespart of the public domain through no fault of the receiving party; or (c)information which the receiving party can document through written records ashaving been in its possession at the time of its disclosure. The obligationsunder this Clause shall survive for a period of twenty-four months fromcompletion of Delivery.
22. Governing Law. This contract shall in all respects be construed and operate as a Dutchcontract in conformity with Dutch law. The United Nations Convention onContracts for the International Sale of Goods of April 11, 1980 shall not applyto this contract.
23. Arbitration. Any disputebetween the parties arising from the execution of or in connection with thiscontract (including any termination thereof) shall first be discussed throughfriendly negotiations for a period of at least 30 days. If the parties areunable to resolve the dispute amicably, either party may submit the dispute forarbitration to the International Chamber of Commerce whose proceedings shall beconducted in English in accordance with the Rules of Conciliation andArbitration. The venue of any such proceedings shall be Amsterdam, theNetherlands. Notwithstanding the preceding sentences of this paragraph, in theevent of a dispute resulting from Buyer’s refusal to pay Corning’s invoice forproducts delivered to Buyer, Corning may submit that dispute to a competentcourt in the Netherlands. The preceding sentences do not preclude Corning fromseeking injunctive relief before a competent court in the Netherlands.
24. Miscellaneous. Neither party is allowed to assign its rights or transfer its rightsand obligations (contractsoverneming) under this contract to a third partywithout the prior written consent of the other party, provided that Corning is authorizedto assign its rights and transfer its rights and obligations (contractsoverneming)under this contract, in whole or in part, to any of its affiliates and Buyerhereby in advance cooperates with (medewerking verlenen) any suchtransfer. This contract shall bind and inure to the benefit of the successorsand permitted assigns and transferees of the parties. Either party may cancelwith written notice the whole or any part of this contract in the event ofinsolvency, bankruptcy, reorganization, or liquidation proceedings involvingthe other. In the event that either party fails to perform any term herein andthe other party does not enforce that term, the other party has not therebywaived its rights to do so in the future. Buyer agrees to pay or reimburseCorning for any VAT, sales, use or similar taxes (including interest andpenalties, but excluding tax on Corning’s net income) arising from the sale ofproducts hereunder. If any provision of this contract is held invalid orunenforceable, the remaining provisions shall not be affected thereby, and theparties shall in product faith attempt to amend this contract to eliminate suchinvalidity or unenforceability. The effective date of the present GeneralConditions of Sale is 1 January 2019. They cancel and supersede any othergeneral conditions that may appear on Corning's documents.