Article 1: Definitions
1.1 These general terms of sale (“GTS”) govern the legal relationship between FABORY S.R.L., a Romanian company registered in the Trade Register under no. J2006001854088, VAT no. 18915677, with its registered office in Romania, Brașov, str. Aurel Vlaicu nr. 40, cam. 17, Brașov county, together with its affiliated entities or any entities involved in the performance of its obligations (“Fabory”, “we”, “us”), on the one hand, and any legal persons purchasing products from Fabory (“Customer”), on the other hand.
1.2 Where in these GTS mention is made of “Products” or “Goods”, this refers to the Products which are the subject of the agreement between Fabory and the Customer.
1.3 All offers of Products and services by Fabory will be interpreted as invitations to negotiate (as per article 1.189 of the Civil Code), are not binding and will be valid for 30 days, unless explicitly stated otherwise.
1.4 Customer consents to the use of contractual and accounting documents in electronic form.
Article 2: General
2.1 We reserve the right to unilaterally change these GTS. We will inform the Customer about the amended provisions. The changes will become effective and will be part of the contractual relationship with the Customer, unless the Customer has objected to this by giving notice in writing, by fax or email, within a period of two weeks following the notification about the changes.
2.2 If the wording of these GTS is conflicting with the wording in a written agreement between Fabory and the Customer, the wording in the agreement prevails.
2.3 Product depictions in the catalogs and websites are for illustrative purposes only. Fabory reserves the right to revise publishing errors in its catalogues or any of its websites. Despite our efforts, occasional pricing errors may occur in the catalogues and websites. Fabory reserves the right to cancel any and all orders resulting from such pricing errors without cost, even if Customer has received an order confirmation from Fabory.
2.4 Products can show minor deviations from the depictions shown in the catalog or website. Such minor deviations are deemed to be accepted unless they affect essential characteristics, functionality, or quality of the Products. Fabory may, at its discretion, replace Products with equivalent items of the same essential characteristics, functionality, and quality.
2.5 We take our Customers' and users' privacy seriously. Please see our privacy policy for more information about how we use the personal data we collect from our Customers.
Article 3: User Account
3.1 The Customer has the opportunity to register and create a personal user account on Fabory's website, www.fabory.com ("User Account"). Each Customer shall keep only one User Account at the same time. The User Account will be activated by Fabory only after a review of the registration and, at our discretion, a check of creditworthiness. We are, however, not obligated to accept a registration.
3.2 All information provided by the Customer must be true, accurate, and complete, and any future changes must be communicated to Fabory without undue delay.
3.3 The Customer may not transfer the User Account and the rights and obligations resulting therefrom to a third party without our prior written consent. The Customer acknowledges and agrees that the User Account may not be shared with third parties.
3.4 When the User Account is used by third parties, subject to article 3.3 of these GTS, we will deem the respective user to be authorized by the Customer. The Customer hereby authorizes the respective user of the User Account to make transactions on behalf of and for the account of the Customer, and remains liable to Fabory for all obligations resulting from such transactions, and Fabory will not be held liable for any damages suffered by the Customer as a result of such transaction.
3.5 The Customer must keep its credentials confidential and appropriately restrict the access to the User Account. In particular, the Customer must protect the credentials against loss, theft and any unauthorized use. The Customer must notify us via e-mail without undue delay of any loss, theft or unauthorized use of its credentials and take all available measures for their recovery. Until such notification, any use of the User Account is deemed to be authorized by the Customer and any and all purchases made through the User Account are deemed to have been made with binding effect on the Customer, i.e. for and on behalf of the Customer.
Article 4: Conclusion of Contract
4.1 These GTS constitute a framework agreement concluded between the Customer and Fabory and their provisions are applicable to each individual agreement concluded based on these GTS, unless the parties explicitly agree to differing terms in an individual written agreement. Such variation shall only apply to that specific individual agreement.
4.2 Fabory and the Customer will conclude individual agreements for each order issued by the Customer, under the terms of these GTS. Such agreements will be concluded, as applicable, upon Fabory’s issuance of a confirmation of the order placed by the Client (including by a notification of the dispatch of the ordered Products), or upon the handover or delivery of the ordered Products.
4.3 In the event that our supplier fails to deliver a Product in a timely manner or another unforeseen event occurs which prevents delivery of Products or the fulfillment of an individual agreement in any other way, Fabory is entitled to refuse the Customer's order or to revoke its acceptance respectively and cancel the contract with regard to the undelivered Products, without being liable for any compensation to the Customer.
4.4 The Customer acknowledges that the parties may agree on the supply of Goods specifically purchased for the Customer’s needs and according to their specifications (products with an SKU starting with "CM", "ZSPEC", or otherwise agreed as customer-specific). If such Goods are stored by Fabory for regular use, the Customer is obligated to accept the full delivery of all stock no later than 12 months from the time the Goods are received by Fabory. If this 12-month period expires, or in case of termination of the contract or gradual withdrawal of customer-specific Goods by the Customer, the Customer must accept the delivery of all remaining stock of the specific Goods no later than 30 days after the respective event.
Article 5: Termination
5.1 When the Customer unilaterally terminates an individual agreement for any other reasons except force majeure (whether in whole or in part), the Customer is obligated to compensate Fabory for all costs reasonably incurred by Fabory in the fulfillment of that individual agreement, without prejudice to any right that Fabory may have to claim compensation for any and all direct and indirect costs, damages, losses (including lost profits) and interest ensuing from the termination of the respective contract.
5.2 Without prejudice to its other rights, Fabory has the right to terminate the contract for cause in case the Customer is in breach of its obligations or if the Customer is in any stage of insolvency, suspension of payment, or liquidation. In the aforementioned cases, all claims of Fabory against the Customer shall be due immediately.
Article 6: Prices
6.1 Unless explicitly stated otherwise, prices listed in Fabory’s online shop, catalogues or any other literature are wholesale, do not include shipping, handling fees, VAT, taxes, duties, import fees and/or customs brokerage charges, and are subject to correction or change without notice. Market sensitive commodity products will be priced according to current market conditions.
6.2 Customer is responsible for applicable sales taxes, duties, import fees and any custom brokerage charges.
6.3 After the conclusion of an agreement, Fabory at all times has the right to alter the agreed price proportionally, where price-determining factors undergo changes – whether foreseeable or not at the time of the tender and/or confirmation of order – such as wages, prices, import taxes, currency rates, excise duties, levies and taxes, and in general all government measures, while taking into consideration the relevant current statutory regulations.
Article 7: Delivery
7.1 Unless explicitly agreed upon otherwise, delivery shall be made DAP Customer’s address in accordance with Incoterms 2020.
7.2 Partial deliveries of Products included in the same order shall be permitted unless the parties agreed in writing that the Products shall be delivered simultaneously. Where Products and/or services are delivered in parts, Fabory has the right to invoice separately for each part.
7.3 The risk of loss or damage to the Products shall pass to the Customer upon delivery. Any such loss or damage occurring after delivery shall not relieve the Customer from the obligation to pay the purchase price.
7.4 In the event that a delivery to the indicated address is not possible or the Customer refuses to accept or collect the shipment, we reserve the right to charge the Customer for any and all costs caused thereby (such as, but not limited to, handling, storage, packaging and shipping the Products).
Article 8: Delivery time
8.1 Any delivery times stated in the online shop, catalogues, or any other literature are estimates only and shall not constitute or be construed as a binding or fixed delivery deadline, unless explicitly stated otherwise by us in writing.
8.2 Fabory shall not automatically be in default after the expiration of a delivery period. The Customer must send Fabory a written notice of default and provide it with an additional reasonable time period for performance.
8.3 Fabory shall not be liable for any breach of obligations resulting in whole or in part from any force majeure event, including but not limited to natural disasters, labour disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of Fabory in the conduct of its business.
8.4 If the performance of the contract by us is affected by force majeure or by an unforeseeable impediment to perform which cannot be overcome by commercially reasonable efforts and which is not attributable to us, the initial delivery period shall be extended by the period of time during which the impediment to perform continues, unless this cannot reasonably be expected of Fabory, in which case Fabory is entitled to terminate the agreement free of charge.
Article 9: Payment
9.1 Payment of invoices by the Customer will be made in advance, immediately after the order confirmation, or cash on delivery into the courier’s collection account, at the time of delivery. Depending on the Customer’s order history and volume, Fabory may, at its sole discretion, grant the Customer a payment term that shall generally not exceed 30 calendar days from receipt of the invoice.
9.2 If the Customer is in default or if the Customer breaches its obligations, in consideration of the principle of full compensation of damages, all costs reasonably incurred by Fabory in attempting to secure the Customer’s fulfilment of its obligations out of court, will be borne by Customer as compensatory damages. Should the Customer fail to comply with one of its payment obligations, the out-of-court costs shall be at least 10% of the amount to be recovered, with a minimum of € 125,00.
9.3 In case of default of payment, the Customer shall be liable to pay interest to Fabory at a rate of 1% of the amount of the late payment per month until the day that payment is made in full. Fabory's additional compensation claims under these GTS or applicable law remains unaffected.
9.4 Any payment made by or on behalf of the Customer shall be applied in the following order of priority: first, towards out-of-court or, as applicable, court costs; second, towards accrued interest; and third, towards the principal outstanding claim(s), in the order they became due.
Article 10: Complaints. Quality
10.1 The Customer shall inspect the Products with due care promptly upon delivery. Delivered Products shall be deemed to be approved by the Customer unless any defect is notified to us: 1) in case of a visible obvious defect, within a period of four working days after delivery; or 2) otherwise, within three working days from the day when the defect has been discovered or reasonably should have been discovered. If the Customer does not notify Fabory of the defect in time, the Customer forfeits the right to submit a claim in respect of any defect. Minor, commercially acceptable, or technically unavoidable variations in quality, quantity, size, color, finish, measurements, treatment and such shall be deemed accepted by the Customer and shall not constitute a defect.
10.2 The timely notification of a defect by a Customer to Fabory according to article 10.1 does not suspend the obligation of payment for the Products.
Article 11: Warranty
11.1 Fabory warrants that the delivered Products 1) comply with the agreement and 2) are in conformity with all the applicable laws and regulations of Romania at the time of delivery.
11.2 The Customer can only claim under this warranty within 12 months after delivery of the Products. If a manufacturer warranty of a third party is applicable, the manufacturer warranty prevails.
11.3 If any Products do not comply with the warranty in article 11.1, the Customer shall inform Fabory of the defect, in writing, within the period specified by article 10.1. The warranty claim, must specify: 1) the specific Products subject to the claim; 2) the respective order and delivery dates; and 3) a description of the defect.
11.4 If the Customer does not notify Fabory in time of the defect or if the Customer does not submit the warranty claim in time, the Customer forfeits the right to submit a claim under this warranty.
11.5 If a warranty claim is submitted in time, Fabory will assess it at its own discretion. At Fabory's first request, the Customer shall make the Products available for inspection. Following Fabory’s written confirmation, the Customer shall ship the Products in their original packaging to the address indicated by Fabory, bearing all associated costs and risks.
11.6 If the warranty claim is justified according to Fabory’s analysis, Fabory will, at its own discretion, either repair or replace the Products within a reasonable period.
11.7 A warranty claim will in any case be rejected if the defect: 1) is caused by misuse, abuse, or negligent use of the Product; 2) is the result of the Product being altered, modified, or treated after delivery; or 3) arises from, or is contributed to by, specific raw materials, packaging materials, or similar items used by Fabory upon the Customer’s explicit instructions.
11.8 For the purposes of this article, all claims and defenses of the Customer, following from, or related to the defect Products, shall lapse twelve months after the Products have been delivered.
Article 12: Retention of Title
12.1 We shall retain legal title to any Products supplied by us until the invoiced amount (including applicable taxes and shipping costs) for such Products has been fully settled. Until the title passes to the Customer, the Customer undertakes: 1) to handle the Products with care; 2) to store them separately and clearly recognizable as Fabory's property; and 3) not to enter into legal agreements concerning the Products.
12.2 The Customer must inform Fabory immediately of any claims or attempts by third parties to gain possession of Products for which Fabory has retained ownership.
12.3 The Customer hereby already grants Fabory an unconditional right of access to the locations where Fabory's property is located in order to exercise its rights of ownership.
12.4 The Customer shall take reasonable care not to mix Fabory's Products with other products, in order to, inter alia, safeguard quality control criteria and traceability of Products in the production chain. Should incorporation, mixing, or conversion of the Products delivered by Fabory take place while a Fabory claim remains unsettled, Fabory shall be deemed to acquire partial ownership of the resulting goods, up to the value of the Products used.
Article 13: Return of Goods
13.1 Products may be returned in case of a quality problem, an error made by Fabory, or an error made by the Customer.
13.2 In the event of a quality issue, Fabory shall carry out a quality analysis of the Products claimed to have a quality issue. If a quality issue is confirmed, Fabory shall issue the return document and the price of the returned Products shall be refunded to the account from which payment was originally made. In exceptional cases, at the explicit request of the Customer and at Fabory's discretion, the returned Products may be replaced with a similar item from a different batch than the one claimed.
13.3 In the event of an error by Fabory, Fabory shall send the Customer the correct item. Physical return of the incorrect items will only be required if the value of the return is greater than 250 RON , in which case the Products will be collected by Fabory.
13.4 In case of an error by the Customer, the return may only be made under the following conditions:
a) Fabory has issued a return confirmation and communicated it to the Customer;
b) the value of the return is at least 250 RON;
c) the return does not concern articles or special orders or articles belonging to the chemical category;
d) the returned products are received by Fabory undamaged, in their original packaging and within a maximum of 10 working days from receipt of the return confirmation from Fabory, respectively a maximum of 20 working days from receipt by the Customer;
e) with a logistics fee of 10% of the return value, but not less than 75 RON.
13.5 In order to perform a return in case of an error made by the Customer, the Customer shall send the return request to the e-mail address sales.romania@fabory.com. In case the return is accepted, Fabory will issue a return confirmation which the Customer must send together with the returned Products to Fabory's warehouse (in Brno, Czech Republic), at its own expense, within 10 days of receipt of the return confirmation. After physical inspection of the returned Products and confirmation that the return conditions have been met, Fabory will refund the price of the returned Products to the account from which payment was originally made.
Article 14: Liability
14.1 If Fabory is liable for damages arising from an agreement with the Customer, our liability for late delivery shall be limited to an amount equal to 5% of the invoice amount (including applicable taxes). In all other cases the liability of Fabory shall be limited to the invoice amount.
14.2 Liability for damages is strictly limited to direct damages, consisting of: 1) reasonable costs incurred to determine the cause and extent of the damage, provided that Fabory is held liable for such damage under these GTS; 2) reasonable costs incurred to remedy Fabory’s defective performance, except where the defect is not attributable to Fabory; and 3) reasonable costs incurred to prevent or mitigate damage, provided the Customer demonstrates that such costs successfully prevented or limited the suffered damages.
14.3 We shall not be liable (under any legal grounds) for damages which cannot reasonably be foreseen assuming a normal use of the Products, except in cases of willful misconduct or gross negligence by us.
14.4 Fabory shall not be liable for any indirect damages – such as, but not limited to – consequential damages following from any cause, lost profit, damages of third parties and damage caused by business interruption.
14.5 If the event giving rise to Fabory’s liability is covered by an insurance policy, the maximum compensation shall in all cases be limited to the maximum insured amount.
Article 15: Suspension of fulfillment and termination of the agreement
15.1 Fabory is entitled to suspend its own contractual obligations or to terminate the agreement in the following circumstances: 1) the Customer does not comply or does not fully comply with its obligations following from the agreement; or 2) after the parties entered into the agreement, Fabory received information about the Customer that raises the possibility that the Customer will not (properly) comply with the agreement, and the Customer, having been notified of this, fails to provide sufficient assurances of proper performance of their obligations.
15.2 Should the agreement be terminated, the claims from Fabory on the Customer are immediately due.
Article 16: Intellectual Property
16.1 The Customer shall have no right in the trade names, trademarks, trade image, copyrights, patents, domain names, product names, catalogues or any other intellectual property rights of Fabory, or any trademarks or service marks owned by suppliers to Fabory.
16.2 All materials contained on our websites are subject to the ownership rights of Fabory and its suppliers and licensors. The Customer shall have no right to copy or use any of the intellectual property of Fabory, its suppliers or licensors without Fabory's permission.
16.3 Any new intellectual property rights arising from the agreement will belong to Fabory.
Article 17: Confidentiality
17.1 The parties shall maintain the confidentiality of all confidential information following from the agreement or from other sources. Information is confidential when the other party mentioned this or when it follows from the nature of the information.
17.2 The obligation to maintain confidentiality shall not apply to information and data: 1) that is generally available to the public without one party breaching this clause; 2) that is released as a result of statutory obligation or a judicial verdict which has taken effect; or 3) that the disclosing party agrees in writing is free of confidentiality restrictions.
17.3 Unless agreed otherwise in writing, it is forbidden for the Customer to refer to Fabory, the Products and the agreement in publications or advertisements on websites or in brochures.
Article 18: Anti-Corruption
18.1 Customer acknowledges that Fabory’s business practices prohibit bribery and corrupt behavior in any form. Customer agrees that it is an independent contractor and it is and shall remain in compliance with all applicable laws that relate to commercial or public sector bribes, money laundering, terrorism (including but not limited to local anti-corruption laws, Canada’s Corruption of Foreign Public Officials Act, the U.S. Foreign Corrupt Practices Act, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the U.K. Bribery Act).
18.2 Customer shall not offer or provide anything of value (gifts, loans, travel, entertainment, or any other similar benefit) either directly or indirectly to any individual for the purpose of influencing any act or decision. This means that Customer cannot pay a gratuity, bribe or inducement to any government official, even if it appears customary or consistent with prevailing business practices. Prohibited payments include, for example, any payment to a purchasing agent to influence its decision to purchase Products from us; any payment to an individual to expedite the handling of Products being imported or to minimize the amount of duty to be paid; any payment to an individual to reduce taxes or expedite the resolution of tax matters; any payment of travel expenses; contribute to an election campaign of a candidate for government office, or otherwise give a gift (other than of nominal value) to an individual that may regulate our business or who is a current or potential customer or supplier.
Article 19: Export Controls and Related Regulations
19.1 The Customer shall comply with all applicable laws, regulations, treaties and agreements concerning the export, re-export and import of any Product.
19.2 Products may not be exported or re-exported, transferred or retransferred to: 1) any restricted country or region (including countries or regions under embargo or sanctions imposed by the United States of America, the United Nations, or the European Union ("Designated Area"); or 2) any person on a "Denial/Exclusion List".
19.3 The Customer represents and warrants that it is not located, under the control of, or of the nationality or residence of, any such Designated Area or on any such Denial/Exclusion List.
19.4 The Customer shall cooperate fully with Fabory in any official or unofficial audit or inspection in connection with applicable export and import control laws and regulations and shall assume full responsibility for any violation of this Article by the Customer, its employees, consultants, representatives, or customers.
Article 20: Applicable law and choice of jurisdiction
20.1 Any agreements entered into between us and the Customer, and all legal relationships between Fabory and the Customer shall be governed by the laws of Romania, with the exclusion of the UN Convention on the International Sale of Goods (“CISG”).
20.2 The courts of Brașov, Romania shall have exclusive jurisdiction with respect to any disputes arising out of or in connection with the relevant contract or any legal relationship between Fabory and the Customer.
Article 21: General
21.1 Customer shall not assign this agreement, or any order, or any interest therein, without the prior written consent of Fabory. Any actual or attempted assignment without Fabory's prior written consent shall entitle Fabory to cancel such order. Fabory shall be discharged from its obligations by performing them to the Customer, except when it has consented to such a transfer or assignment. Fabory has the right to transfer its rights and obligations under the agreement to a third party by means of contract transfer and the Customer agrees in advance and declares to cooperate in such a transfer.
21.2 The text of these GTS may be made available in various languages. In case of any interpretation differences between languages, the Romanian version shall prevail.