Terms & Conditions

Applicability
1. The general terms and conditions of sale (“GTS”) below apply exclusively. Any customer terms that conflict with or differ from these GTS will not be accepted.
2. These GTS apply to the entire future business relationship with all customers and supersede any conflicting or previous terms.
3. Individual agreements entered into with customers on a case-by-case basis take precedence over these GTS. However, such agreements must be set out in a written contract or confirmed in writing by E.M.
Formation of the contract
1. Offers of goods made by E.M. are subject to confirmation and are non-binding. Orders for goods placed by customers constitute binding offers to enter into a contract.
2. Acceptance of an offer to purchase goods may be communicated through an order acknowledgement, either orally or in writing, or by delivering the goods to the customer.
3. Contracts for the purchase and sale of goods are binding only upon signature or another unequivocal expression of the contracting parties’ intention, in the form recorded therein.

III. Payment terms

Prices for goods are calculated on an “Ex Works, FOB, CFR or CIF” basis.
In the event of a total or partial payment default due to the customer’s financial collapse, E.M. is entitled to terminate the contract without prior notice.
If payment is not made in accordance with the contractual terms, the customer is liable for all resulting losses, including accrued interest.
Security
1. E.M. is entitled to require the buyer to provide appropriate legally valid credit security covering the value of current and future supplies, and to request security of the customary type and scope for receivables, even where such receivables are conditional or limited.
Retention of title
1. E.M. retains ownership of the goods delivered until the agreed price has been paid unconditionally and in full.
2. In the event of a breach of contract by the customer, particularly non-payment of the price, E.M. is entitled to repossess the goods subject to retention of title in the same condition in which they were supplied.
3. Repossession of the goods by E.M. does not constitute termination of the contract unless expressly declared in writing.
4. Any processing or transformation by the customer of goods subject to retention of title is always carried out on behalf of E.M., without imposing any obligations on E.M.
5. If the goods are processed together with other goods not owned by E.M., E.M. acquires joint ownership of the resulting products or items in proportion to the value of the goods subject to retention of title.
6. As security, the customer also assigns to E.M. any claims against third parties arising in the customer’s favour from combining or incorporating the goods subject to retention of title with or into a new product or item.
Delivery periods and delivery dates
1. Dates or periods for the delivery of goods and services are binding only after written confirmation by E.M.
2. If the customer fails to fulfil its contractual obligations on time, such as opening a letter of credit, submitting domestic or foreign certificates, or providing advance payment or goods, E.M. is entitled to postpone delivery periods and dates.
3. E.M. is not liable for delays in deliveries or services caused by force majeure or events that significantly hinder delivery or make it impossible. These include labour disputes, official orders, transport delays, machinery breakdowns and other circumstances for which neither party is responsible.
4. Such circumstances entitle E.M., at its sole discretion, to postpone delivery or performance of the service for the duration of the impediment, plus a reasonable period for resuming operations, or to terminate the contract in whole or in part with respect to the portion not yet performed.
5. If delivery deadlines are not met, the customer is entitled to refuse acceptance of the delivery or service only after the deadline has expired. The right to require performance is excluded once the deadline has expired without performance.
6. The customer must send a written reminder when a delivery default occurs.
7. E.M. is entitled at all times to make partial deliveries of products, work and services to a reasonable extent.
Dimensions, weights and quality
1. Deviations in dimensions, weights and quality are permitted in accordance with DIN standards or customary practice, unless E.M. provides duly documented evidence that the goods have been weighed, with the buyer having the opportunity to verify this upon delivery.
2. Weights are determined using the calibrated scales of E.M. or authorised third parties and are binding for invoicing purposes. Where individual weighing is not customary, the total weight of the relevant shipment will apply.

III. Dispatch, packaging and transfer of risk

Deviations in dimensions, weights and quality are permitted in accordance with DIN standards or customary practice, unless E.M. provides duly documented evidence that the goods have been weighed, with the buyer having the opportunity to verify this upon delivery.
Weights are determined using the calibrated scales of E.M. or authorised third parties and are binding for invoicing purposes. Where individual weighing is not customary, the total weight of the relevant shipment will apply.
Claims for defects
1. Goods are deemed to conform to the contract if, at the time the risk passes, they do not deviate from the agreed specifications.
2. Contractual conformity and any inaccuracies in the goods are determined exclusively by the express agreements concerning the quality and quantity of the goods ordered. E.M. is not liable for deterioration, loss or improper handling of the products after the risk has passed.
3. If a delivery or service is defective, E.M. is entitled, at its sole discretion, to remedy the defects or provide a replacement delivery. The customer is entitled to make claims for defects only if written notification of a defect is given within 5 working days of delivery to the warehouse.
4. Defects that cannot be detected immediately upon delivery, despite careful inspection, must be reported to E.M. without delay and within 24 hours of their discovery.
5. In the event of a claim, the customer must give E.M. the opportunity to inspect the goods concerned without delay.
6. In the event of unjustified claims, E.M. may charge the customer for freight, handling and inspection costs.
7. The limitation period for claims arising from a defective delivery expires 10 working days after delivery to the customer’s warehouse.
8. If a claim requires an E.M. employee to travel to inspect and assess the material concerned, E.M. will bear the costs only if the material is found not to conform to the offer. Otherwise, all costs will be borne by the buyer.
9. Unless otherwise provided in these terms, E.M. is liable without limitation:
  a) For any intentional or negligent causation of damage;
  b) For intentional or negligent injury to life, body or health; and
  c) For claims under product liability law, or where E.M. has fraudulently concealed defects in the products or provided an express guarantee of quality.
10. In other cases, E.M. is liable for ordinary negligence only in the event of a breach of contractual duties, and such liability is limited to typically foreseeable loss.
11. Contractual duties within the meaning of this clause are those whose fulfilment forms the basis for proper performance of the contract and on whose fulfilment the other party relies and is entitled to rely.
12. The contracting parties agree that typically foreseeable loss is limited to a maximum of €5,000.00 for pecuniary losses. If a claim exceeds this amount, E.M. will review the case with a view to reaching an agreement between the supplier, E.M. and the customer.
13. The above liability provisions also apply to the personal liability of E.M.’s employees, representatives and agents.
Confidentiality
1. The customer must treat all commercial and technical information and knowledge obtained through the business relationship between E.M. and the customer as trade secrets and confidential information, including form 1918 or Annex VII, which may not be used for other private purposes.
2. The customer may publicise the mutual business relationship only after obtaining E.M.’s prior written consent.
3. The confidentiality obligation may be departed from for the disclosure of information required by the States Parties to which the parties are bound.
Applicable law / Contract language
1. Portuguese law applies exclusively.
2. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
3. The contracting parties agree that the contract will be drawn up in Portuguese and may be translated into Mandarin or English. The Portuguese language and Portuguese law will govern the resolution of any matters arising from the contract, including its interpretation or performance.
4. The parties may submit disputes to an arbitral tribunal seated in Lisbon, to be established in that city in accordance with the rules of the Arbitration Institute of the Portuguese Bar Association, applying Portuguese procedural and substantive law.
5. This contract is drawn up in Portuguese, English and Mandarin so that the contracting parties are on an equal footing regarding their understanding of its provisions and the obligations arising from it.
6. In the event of a dispute referred to an arbitral tribunal, the parties undertake to translate all legal submissions, including this contract, into the official language of the country in which the tribunal is located.
All matters relating to the interpretation or performance of this contract will be resolved by arbitration through the Arbitration Centre of the Portuguese Bar Association in Lisbon or the Arbitration Centre of the International Chamber of Commerce in Paris, in accordance with their respective rules and national laws.

VII. Place of jurisdiction

The exclusive place of jurisdiction is E.M.’s registered office.

VIII. Severability clause

If one or more provisions of these GTS are or become invalid or unenforceable, this will not affect the validity of the remaining provisions.
The parties undertake to replace any invalid or unenforceable provisions of these GTS without delay with valid provisions that reflect, as closely as possible, the commercial purpose of the provisions being replaced.