Supply Contract Between Febra-Kunststoff GmbH, 74336 Brackenheim-Dürrenzimmem, Germany
Supply
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▇▇▇▇, ▇▇▇▇▇ Brackenheim-Dürrenzimmem, Germany
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hereinafter
referred to as “Febra”
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and
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hereinafter
referred to as “XLG”
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and
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hereinafter
referred to as “BASF” -
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Febra
and
XLG hereinafter also referred to as “Party”
or
“Parties”.
WHEREAS
XLG is willing to purchase and take Molded EPP-Sheets (“Padding
Sheets”)
from
Febra for sport-field surfaces and other types or surfaces.
WHEREAS
Febra needs Neopolen® P (“Product”)
for
the production of Padding sheets.
WHEREAS
under the terms of an other agreement (“Agreement”)
BASF
shall sell to Febra and Febra shall purchase and take from BASF such
Product.
WHEREAS
Febra needs certain tools (“Tools”)
for
the production of the Padding Sheets that have to be acquired just for the
purpose of the Supply Contract.
WHEREAS
under a third agreement BASF and Febra shall agree to finance such Tools
jointly.
THEREFORE,
the Parties - and concerning §2 the Parties and BASF - agree as
follows:
§
1 Subject
of the Supply Contract
Febra
shall sell and deliver Padding Sheets to XLG and XLG shall purchase and take
Padding Sheets from Febra in accordance with the terms and conditions set forth
in this supply contract (“Supply
Contract”).
§
2 Quantity
XLG
shall
purchase and take from Febra at least 100 metric tons (“mt”)
Padding Sheets per year.
§
3 Quality
The
Padding Sheets shall have the quality as set forth in Annex
1.
§
4 Price
The
purchase price for Padding Sheets shall be as set forth in Annex
2.
§
5 Payment
term
Payments
shall be made within 30 days after date of invoice.
§
6 Delivery
Terms
EXW
according to incoterms 2000 of ICC.
§
7 Title
Ownership
of the Padding Sheets is transferred to XLG upon full payment for the particular
delivery.
§
8 Liability
Febra’s
total liability for any cause of action associated with the Supply Contract,
whether based in tort, contract, strict liability or any other legal theory
is
expressly limited to replacement of nonconforming Padding Sheets or payment
in
amount not to exceed the purchase price of the specific Padding Sheets for
which
damages are claimed, at Febra’s option. In no event shall Febra be liable for
any other damages including, without limitation, incidental, special, punitive
or consequential damages.
§
9 Inspection
of the Padding Sheets
XLG
shall
inspect the Padding Sheets supplied hereunder immediately after delivery and
prior to processing it. XLG must raise any claims concerning quality or quantity
deficiencies which can be discovered by reasonable examination within 10 (ten)
days from the arrival of each delivery at the designated delivery site in
writing, all other deficiencies must be claimed in writing within 6 (six) months
after arrival of each delivery at the designated delivery site.
After
expiration of these periods the Padding Sheets concerned are deemed to be
approved.
If
complaints are justified, in the case of shortages, these will be rectified
by
further delivery and in the case of defective products these will be exchanged
by replacement delivery.
§
10 Ineffectiveness,
Amendments
Should
provisions of this Supply Contract or a provision to be included herein at
a
later date be or become legally ineffective or unworkable, wholly or in part,
this shall not affect the validity of the remaining provisions of this Supply
Contract. In place of the ineffective or unworkable provision, or to fill the
loophole, an appropriate provision shall apply which, so far as legally
possible, most closely approximates the business intention of the Parties or
what the Parties would have intended within the meaning and purpose of this
Supply Contract, had they considered this issue on concluding the contract
or on
later including a provision.
Amendments
and additions to this Supply Contract including the annexes hereto, and
including this written form clause, require the written form.
§
11 Force
majeure
Any
events and circumstances whose occurrence is beyond the control of the Parties,
such as acts of nature, war, labour disputes, shortages or raw materials or
power, unavoidable transport and plant stoppages, fire or explosion, order
of
authority - including where such events make performance of the affected
business uneconomical for the foreseeable future - and all other cases of force
majeure, including those affecting upstream suppliers, shall discharge the
affected Party for the period of interruption and to the extent of their effects
from its obligations under this contract. In a case of force majeure, BASF
is
not obliged to buy in Product for delivery from third parties.
The
affected Party shall immediately notify the other Party of the anticipated
duration and extent of the interruption and shall take all reasonable measures
to forthwith remedy the interruption. The affected Party shall make reasonable
efforts to make good nonperformed services within its capacity.
§
12 Law
and Arbitration
| 12.1 |
This
Supply Contrtact shall be governed by and construed in accordance
with
German Law excluding however the UN Convention on the International
Sale
of Goods (CISG).
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| 12.2 |
Prior
to submission of any matter to arbitration, the parties shall attempt
in
good faith to resolve the matter by discussion, negotiation and mediation.
Any dispute, controversy or claim arising out of or relating to this
Supply Contract or to breach of it, including but limited to, its
interpretation, performance or termination that the parties are unable
to
resolve within ninety (90) days after written notice by a party to
the
other shall be submitted to final and binding arbitration. Arbitration
shall take place in accordance with the Arbitration Code of the Deutsche
Institution für Schiedsgerichtsbarkeit e.V. (German Institution and
Arbitration) excluding jurisdiction of the ordinary courts. Arbitration
shall take place in Ludwigshafen/Rhein, Germany. The language of
arbitration proceedings is English.
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§
13 Term
This
Suply Contract shall enter into force on 01.04.2005 and shall remain in force
and effect until 31.12.2006. At least, 60 days before the expiration date of
this agreement, the parties will negotiate in good faith, based on the
experience after one year, about the conclusion of a new agreement.
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Brackenheim-Dürrenzimmem,
/s/
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Febra-Kunststoffe
GmbH
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Dated 23.05.05 |
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Zug,
/s/
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XL
Generation AG
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Dated 01.06.05 |
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Ludwigshafen,
/s/
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BASF
Aktiengesellschaft
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Dated 20.05.05 |
Annex
1
To
the Supply Contract between XLG and Febra and BASF
Quality
of the Padding sheets
The
Padding Sheets have a high resistance of breaking
Breaking
could be defined by
Elongation
of break
Tensile
strength
Flexing
test (visually
Annex
2
To
the Supply Contract between XLG and Febra and BASF
Price
of
the Padding sheets varies accordingly to the thickness and density of the
Padding Sheet.
| 1. |
Combination
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Density:
30kg/m3;
Dimension of the sheet: 1220 x 1220 x 15 mm3
Prince
of
the Padding sheet: 6,00 Euro
| 2. |
Combination
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Density:
40kg/m3;
Dimension of the sheet: 1220 x 1220 x 20 mm3
Prince
of
the Padding sheet: 9,35 Euro
Other
combinations of density and thicknesses are possible as well depending on the
specific requirements of the application.