NATURA SMILES, INC.
(In the following also called “NATURA”)
General Terms and Conditions of doing Business (GTB) 11/2023
1 Important Information
1.1 All sales and deliveries of NATURA in commercial transactions with business partners are subject to the following terms and conditions of doing business. In as much as there are gaps in these terms of delivery, the provisions of law shall apply. Customers’ general terms and conditions of business which deviate from the following terms of delivery or the provisions of law will not be accepted, and they will also not be accepted by NATURA in the
execution of a contract, in particular in the delivery of goods. No oral commitments are valid, everything must be in writing.
1.2 NATURA shall only be bound to an offer through a written acceptance, which may take the form of an invoice accompanying the goods. NATURA shall not check the correctness of the information provided by the customer upon which the offer or order confirmation is based and NATURA shall also not check if the execution of the customer’s order based on such information infringes and third party property rights. Unless the customer informs NATURA in writing that only a specific make and design of a product is desired, NATURA will be free to change the make and design of that product.
1.3 Unless otherwise previously agreed in writing, NATURA will deliver products within the tolerances admissible under the relevant German or European technical standards, in particular DIN, VDE, EN ISO, etc. Engineering changes which become necessary as a result of changes in the production, for reasons of product management, or by virtue of the law shall be permissible.
2 Delivery
2.1 Unless otherwise agreed upon in writing, deliveries are effected ‘ex factory’ / ‘ex works’ pursuant to Incoterms 2010. Only the confirmed time of delivery by NATURA is binding upon the parties.
2.2 Normal export deliveries can take up to two years after placing the order, in case of special productions like NATURA products etc. it can take up to three years. Thereafter the client has the right to cancel the purchase. This does entitle neither the client nor NATURA to claim damages.
2.3 In case NATURA is unable to perform its delivery obligations due to belated self-supply or forces beyond its control (force majeure, Act of God), the contract is not terminated but merely suspended until the removal of such impossibilities has made it possible to deliver. This applies also in the case NATURA has been
in default at the time these impossibilities arose. All claims for damages against NATURA in connection with the aforesaid impossibilities are excluded.
3 Default
3.1 The customer’s possible claims for delay or default of contract are excluded in cases of slight negligence by NATURA’s legal representatives, agents or employees.
3.2 The customer’s possible claims for delay or default of contract are also excluded if the delay or default of contract is based on the delivery of a defective product and NATURA performs its contractual duties by subsequent delivery of a fault free product within a reasonable period of time.
4 Passing of the Risk
4.1 If the product leaves the factory gate, all risks shall pass at that point of time and place at which NATURA has delivered the product to the forwarder (ex works). In case the delivery is delayed for reasons within the customer’s responsibility, the risk shall pass to the customer upon receipt of the notification that the product is ready for shipment.
4.2 Unless otherwise agreed upon in writing, NATURA shall insure a shipment for its own benefit at the expense of the customer. No forwarding agent’s transport, logistics and storage insurance shall be be burdened upon on NATURA.
5 Inspection and Rejection of Goods
5.1 Upon receipt, each shipment shall be inspected for defects, damages and completeness. All complaints shall be promptly – at the latest within 10 days – reported to NATURA in writing.
5.2 In case of damage to the goods while in transit, a purchasing merchant / customer must obtain a written damage report form the forwarder / carrier, and, after immediate consultation with NATURA, have an insurance adjuster issue a certificate of damage, if NATURA requires it.
6 Claims for Defects
6.1 For defects in a product delivered NATURA’s obligation to perform the contract shall, at its choice, consist of subsequent performance by remedy of the defect or delivery of a fault free product. The customer has no right to remedy a defect himself and claim reimbursement of the costs thereby incurred by him. If the subsequent performance by NATURA should still fail in the second attempt, the customer may reduce the purchase price or, upon the existence of the statutory prerequisites, rescind the contract. NATURA may reclaim from the customer a product complained of as defective for investigation of the defect. If NATURA delivers a fault free product within the scope of subsequent performance, or if the customer rescinds the contract with NATURA with legal effect,
NATURA may claim restitution and return of the product complained of as defective subject to the provisions of Sections 346 thru 348 of the German Civil Code (BGB). If NATURA is liable to pay damages on account of a defect by virtue of the law, NATURA’s liability for such damages shall be limited to the extent stipulated in clause 7 hereof.
6.2 The customer’s claims for defects become statute-barred after 6 months from the date of delivery of the product. The foregoing time limit does not apply to defects which are based on intent, to defects which are fraudulently concealed, to defects which are based on a deviation or divergence from a guaranty / warranty which NATURA may have given as well as to defects in fixed constructions or any items delivered which, in accordance with their intended purpose, are customarily used for a fixed construction and which have caused its defectiveness. In all these cases the statutory periods shall be governing. The foregoing shall be without prejudice to the legal regulations on suspension of the statute of limitations, suspension, and recommencement of the time limits.
6.3 The products delivered by NATURA will be free from defects of quality if they are of the condition as agreed in writing between NATURA and the customer in a specification or in a shipping instruction. In the absence of such written agreement with the customer, the products delivered by NATURA will be free from defects of quality if they are of the, condition as finally described in the technical data sheets, specifications, or drawings of NATURA, or if they are of a condition which diverges only insignificantly from the agreed / described condition. The customer’s information on the use of a product shall only be authoritative if NATURA has expressly confirmed to the customer in writing at the time of conclusion of the contract that the product delivered is fit for the customer’s intended purpose of use. General information on the use of a product or examples for the application of a product given by NATURA in product brochures or other advertising media do not release the customer from a careful inspection of the product delivered for its fitness for the customer’s concrete purpose of use.
7 Compensatory Damages
NATURA will assume liability within the legal limits for damages which are based on a willful act or omission or gross negligence by its legal representatives or senior executives or on a willful act or omission by its agents or other employees as well as for damages from bodily injury. In the case of gross negligence by agents or other employees of NATURA or in the case of a slightly negligent breach of essential contractual duties which are indispensable for the attainment of the contract purpose and which the customer must therefore be able to rely upon, the liability of NATURA within the legal limits is limited to such damages the nature and extent of which were foreseeable to NATURA at the time of the conclusion of the contract. Above and beyond the foregoing, all claims of the customer for compensation of any direct or indirect damage – irrespective of the cause in law and including possible claims for damages from the breach of pre-contractual duties and damages in tort – are excluded.
Contractual penalties or liquidated damages the customer may have to pay to third parties will only be compensated by NATURA if this has been agreed with the customer in writing beforehand. The legal liability of NATURA for the absence of a guaranteed / warranted quality or condition of the product and the liability of NATURA under the German Product Liability Act of 15 December 1989 remain unaffected.
8 Terms of Payment / Prices
8.1 All export prices and terms of Payment are stipulated in the pricelist or individually agreed. Prices are dependent on volume. If no such agreement was entered into, all payments shall be pre payment, the prices applied are the most favorable domestic prices according to the current domestic (German) pricelist. This applies also in the case if the client reduces at a later stage the volume or cancels partly the contract. Then the higher prices as described above shall apply.
8.2 Subject to evidence of a higher damage, NATURA may charge 10.00 € each for the second and each further reasonable reminder. The production of evidence of an absent or minor damage shall be reserved to the customer. If the order-size is reduced at a later stage, the prices according to the domestic price-list for the lower quantity shall apply.
8.3 NATURA shall be entitled to charge interest for default of payment at the statutory rate, but no less than 1% p. month.
9. Reservation of Title
9.1 NATURA retains title to all products delivered until all previous and present contract obligations, negotiable instrument claims, as well as all past and present debts have been satisfied in full. If, in connection with a payment, a liability for NATURA arises due to any negotiable instrument transaction, then the reservation of title stands until NATURA is absolved or excluded from all obligations.
9.2 The customer may use the products delivered within the scope of his ordinary and proper course of business prior to full payment of the aforementioned obligations, claims and debts (9.1), unless a prohibition of assignment exists with third parties for the future claims already assigned to NATURA as set forth in clause Pledging of security interests or liens, in as much as NATURA’s’ rights are affected, are subject to NATURA’s prior written consent.
As further security for NATURA’s claims described in clause 9.1, the customer will assign immediately to NATURA those claims – including claims from open bills or current account – which may arise against his contracting partners or third parties from the resale of the original or modified products. NATURA accepts this assignment of claims, which consists of its interest in the products sold by its customer to third parties. NATURA’s interest is the invoice amount (including VAT) of its products sold to the customer.
9.1 The customer may collect the assigned future claims outlined in clause 9.3 within the scope of his ordinary and proper course of business. This authorization of collecting assigned future claims includes the direct debiting of claims, always provided, however, that the customer ensures by prior agreement with his bank that the amounts received are exempt from the bank’s lien and that the customer is thus able to meet his obligation to transfer his proceeds to NATURA at any time. This authorization of collecting assigned future claims expires as soon as the customer defaults in the payment of his liabilities to NATURA. Upon the expiration of such authorization, NATURA is entitled to disclose the assigned claims and demand any and all information and documentation from the customer required for the assertion of these claims.
9.2 As long as the title to the property delivered has not passed from NATURA (9.1), any improvement of or additions to these products will be considered to be in part those of NATURA, without, however, obligating it in any way or manner. NATURA thus acquires by accession a co-ownership in the property. The amount of this co ownership is determined by the ratio between the value of the products subject to the reservation of title used for the additions to the property and the value of the property at the time of accession. The value added due to the accession remains untouched and shall be due to the customer. The customer’s purchase lien to the products subject to the reservation of title extends to the co ownership of NATURA. The customer shall be free to dispose of NATURA’s co-ownership subject to the foregoing stipulations.
9.3 Should the actual value of the securities existing for NATURA exceed the secured claims of NATURA by more than 20% – be it solely on the basis of this reservation-of-title stipulation or together with other securities – NATURA shall be obliged to release additional securities of its own choice upon the customer’s request.
10 Setoff – Retention
10.1 The customer’s right of setoff is limited to uncontested or non-appealable claims only.
10.2 The rights of retention pursuant to Section 273 of the German Civil Code (BGB) and Sections 369 et seq. of the German Commercial Code (HGB) shall be due to the customer only in as much as the claim substantiating these rights is based on the same legal relationship as the claim of NATURA. This limitation does not apply if the customer’s counterclaims are uncontested or non-appealable. The customer shall not be entitled to satisfy his claim pursuant to Section 371 of the German Commercial Code (HGB).
11 No returns – No exchange
11.1 NATURA follows the policy of no returns, no exchange.
11.2 In exceptional cases returns / exchanges of goods may be acceptable at the sole discretion of NATURA. This must be confirmed in writing by NATURA prior to any return shipment. In such a case the customer is required to buy three times the value of the returned goods before any credit note can be issued.
11.3 The return of broken sets is not accepted. .
12 Competent Courts
12.1 The parties hereto will first attempt to settle all their legal and technical disputes through negotiation. If no compromise can be reached, then the Frankfurt higher courts, in the State of Hessen, Germany, shall be the competent courts for all legal actions that may arise between the parties.
12.2 However, only NATURA shall be entitled to recourse in any court having jurisdiction as to the respective legal action under the law of the Federal Republic of Germany or the law of the country in which the customer has his registered place of business.
13 Miscellaneous
13.1 Place of performance for the customer’s payments and place of jurisdiction shall be NATURA’s registered place of
business.
13.2 Should any clause, paragraph, sub-paragraph, sentence or phrase of these General Terms of Doing Business be or become invalid or unenforceable, then such clause, paragraph, sub paragraph, sentence or phrase shall be deemed separated from the rest of these General Terms of Doing Business, which shall remain in full force and effect. Only the German version of the GTB (AGB) are binding and valid. The English version (or versions in other languages) are for the convenience of the client only. They are no legal transcript of the German AGB.
13.3 These General Terms of Doing Business and any agreement between the parties shall be governed by and construed in accordance with the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) and the Law of Conflict of Laws. Calamba City, Laguna 11/2023