1. SCOPE OF APPLICATION All current and future supplies of products and services (including any literature or other information) offered by BASF to the Customer (collectively referred to as the Goods ) shall be governed under these terms and conditions of sale. These terms and conditions shall supersede any terms and conditions stipulated by the Customer, including any stipulations included in an order for Goods. 2. PRODUCT QUALITY, SPECIMENS & SAMPLES 2.1 Subject to the mandatory provisions of any applicable law and unless expressly agreed otherwise in writing between the Parties: 2.1.1 The quality of the Goods shall be determined strictly and exclusively in accordance with BASF s product specifications (as updated by BASF from time to time and available on request). 2.1.2 The properties of specimens and samples (including any descriptions and compositions) shall not be binding on BASF nor shall any verbal or written opinions or advice. 2.1. 3 BASF does not warrant the suitability of the Goods for any specific purpose and gives no express or implied warranties in respect of the Goods. This shall, however, not relieve the Customer from having to conduct its own investigations and tests as to the suitability and application of the Goods for any particular purpose. 3. PRICE 3.1 The purchase price of the Goods shall be the price reflected in BASF s written quotation, or in limited instances BASF s standard price list as provided by BASF to the Customer, and shall only be valid for the period indicated thereon. 3.2 BASF reserves the right to change its prices from time to time, as it in its discretion, deems fit. In the event of a price increase, the Customer shall be entitled to approach BASF, within 14 days after notification of the price increase, and propose alternative prices. This shall however exclude any orders that are already in transit. 4. OFFERS AND ACCEPTANCE OF ORDERS 4.1 BASF's quotations are not binding offers but merely invitations. 4.2 All orders for Goods ( Order ) need to be placed in writing, in accordance with BASF s standard processes and, unless expressly stated otherwise by BASF, sent to the address stipulated in clause 17.4. 4.3 A binding agreement shall only come into existence upon BASF s acceptance of an Order. 5. PAYMENT OF AN ORDER 5.1 Payment shall be made in full to BASF within 30 (thirty) days of the date of BASF s initial statement relating to an Order, unless specifically otherwise stated on an official BASF tax invoice. 5.2 Should any amount not be paid by the Customer on the due date, then the whole amount of all purchases owing by the Customer shall immediately become due, owing and payable irrespective of the dates when the Goods were purchased. 5.3 Further the Customer shall, as far as legally permissible, be liable as at the due date to pay interest, in respect of the unpaid amounts, at the compound rate of 2% (two per cent) above the current prime rate published by an accredited Tanzania bank from time to time, compounded monthly. 5.4 The Customer shall not be entitled to claim set off or deduction in respect of any payment due by the Customer to BASF for Goods supplied. 5.5 Subject to applicable law, BASF may allocate all payments made by the Customer at the discretion of BASF. Further if the Customer, in the reasonable opinion of BASF, has a cash flow problem or other financial or commercial difficulty BASF reserves the right to agree with the Customer to amend or alter the Customer s payment arrangement. This shall however not be construed as an intention not to be bound by this agreement, as a repudiation by BASF or as a waiver of any of BASF s rights. Should an agreement not be reached then this agreement shall remain of full force and effect. 6. GOODS FACILITIES 6.1 The Customer understands that BASF'S decision to grant Goods Facilities to the Customer is at the sole discretion of BASF. 6.2 BASF reserves the right to withdraw any Goods or payment facilities at any time without prior notice, and the nature and extent of such facilities shall at all times be in BASF'S sole discretion. In addition, BASF may request that the Customer provides adequate security in respect of any such facility. 7. OWNERSHIP & RISK 7.1 Notwithstanding that all risk in and to the Goods shall pass on delivery (as set forth in Article 8) and irrespective of whether BASF may not be the distributor of the Goods, ownership of all Goods sold and delivered to the Customer shall remain vested in BASF until the purchase price of such Goods has been paid in full. 7.2 The Customer shall fully insure the Goods purchased from BASF against loss or damage, until the purchase price has been paid in full by Pending payment to BASF for Goods
purchased, all benefits in terms of such insurance policy are hereby ceded to BASF. 7.3 In the event of Customer processing or concerting the Goods before payment is made in full, BASF shall be considered the manufacturer thereof and shall directly acquire sole title to the newly produced product. If the processing involves other materials, BASF shall acquire joint title to the newly produced product in the proportion to the value of the purchase price paid for the Goods. 8. DELIVERY 8.1 Delivery shall be affected as specifically agreed to between the parties in writing. General Commercial Terms shall be interpreted in accordance with the INCOTERMS in force on the date the agreement is concluded. 8.2 BASF has the right to defer delivery of Goods under this agreement or any other agreement entered into with the Customer if and for as long as the Customer fails to pay any invoice under one or more of these when due. 8.3 In the event that the Customer rejects delivery of the Goods and the Goods have been delivered on the date, time and location agreed upon, the Goods are not damaged and there is no reasonable explanation for the rejection of delivery of the Goods, BASF may charge the Customer a reasonable cancellation fee, which may in the circumstances be the full price of the Goods. 8.4 If the Customer fails to take delivery of the Goods ordered due to a direct or indirect act or omission by the Customer, its employees or agents, then the risk in the goods shall immediately pass to the Customer and, the Customer shall be liable to pay BASF the reasonable costs of storing, insuring and the handling of such Goods, until delivery takes place. 9. DAMAGE IN TRANSIT Notice of claims arising out of damage in transit must be lodged and carried out in accordance with the agreed INCOTERMS. To the extent that any claim arising out of damage in transit is held to be against BASF, the Customer shall co-operate in good faith and assist and provide BASF with all reasonable requests for documentation and/or information as may be required by BASF in defending such a claim. 10. CUSTOMER'S COMPLIANCE WITH LEGAL REQUIREMENTS 10.1 The Customer shall comply with all laws and regulations regarding import, transport, storage and use of the Goods. 10.2 In performing its obligations under this Agreement the Customer undertakes to comply with all applicable laws and regulations (in particular, but not limited to, relating to antitrust and anti-corruption 11. LIMITATION OF LIABILITY AND INDEMNITY 11.1 11.1.1 BASF shall be generally liable for damages in accordance with the law. In the event of a simple negligent violation of fundamental contractual obligations, however, BASF's liability shall be limited to compensation for typical, foreseeable losses. In the event of a simple negligent violation of non-fundamental contractual obligations, BASF shall not be liable. The foregoing limitations on liability do not apply to damage to life, body or health. 11.1.2 BASF is not liable to the Customer in case of impossibility or delay in the performance of its supply obligations if the impossibility or the delay is due to orderly compliance of regulatory and legal obligations. 12. SECURITY If there are reasonable doubts as to the Customer's ability to pay, or if the Customer is in default of its payment obligations, BASF may, subject to further claims, revoke agreed payment periods and make further deliveries dependant on the provision of sufficient security by 13. NEGOTIABLE INSTRUMENTS Acceptance of any negotiable instrument by BASF shall not be deemed to be a waiver of BASF's rights under this agreement. In relation to a cheque furnished by the Customer, it waives its right to insist on notice of dishonour or protests being given to it in the event that the cheque is dishonoured. 14. CUSTOMER'S RIGHTS REGARDING ALLEGEDLY DEFECTIVE GOODS 14.1 14.1.1 The Customer shall inspect the Goods immediately following delivery of the Goods for quantity variances and defects. 14.1.2 Any complaints shall then be made in writing to BASF at the address stipulated in clause 17.4 below: a) immediately where defects are apparent upon reasonable inspection; or b) no later than 7 (seven) days after discovery of the defect, in the case of latent defects but in any event no later than 6 (six) months after receipt of the Goods. The Goods supplied shall otherwise be considered free of defects. 14.1.3 In such case, where the Goods are found to be defective by BASF after the Customer has complied with clause 14.1 above, then BASF has the
right to choose whether to remedy the defect or to supply the Customer with non-defective replacement Goods. 15. RETURNS POLICY 15.1 15.1.1 The Goods are only returnable, at BASF s sole discretion and must be returned complete, clean, sealed, undamaged and in their original packaging. The Customer will also need to notify BASF of the relevant packaging slip and batch numbers before any return will be considered. 15.1.2 The value of credit or refund for any returned Goods shall be calculated against the payments actually received by BASF with respect to the Goods. 15.1.3 All Goods are to be returned at the Customer's sole risk and expense. Further the Customer shall be liable for a fee of up to 20% (twenty per cent) of the original invoice. 16. BREACH 16.1 Should the Customer fail to make any payment of any amount due on the applicable due date, or breach any of the other terms and conditions contained herein (all of which are deemed to be material) or commit an act of insolvency, or allow a judgment to be entered against it, or be provisionally or finally liquidated or sequestrated (a "Breach"), and fail and/or refuses to remedy such Breach within 5 (five) business days of written notice by BASF calling for such Breach to be remedied, then, without prejudice to and in addition to its other legal remedies and any rights under this agreement, BASF shall be entitled to: a) immediately cancel this agreement or any unfulfilled part thereof on written notice to the Customer; and/or b) to claim payment of the full price or the balance thereof (as the case may be) in writing, and failing such payment BASF is specifically authorised to repossess all unpaid-for Goods in the possession of the Customer, without further notice to 17. LEGAL PROCEEDINGS AND NOTICES 17.1 These terms and conditions (including their existence, validity, interpretation, implementation, termination and enforcement) and all modifications and amendments hereof, shall be governed by and decided upon and constructed and interpreted under and in accordance with the laws of the United Republic of Tanzania. 17.2 For purposes of applying for urgent relief, the Customer and BASF hereby consent and submit to the exclusive jurisdiction of the courts of Tanzania in any dispute arising from or in connection with this agreement. 17.3 A certificate issued and signed by any member or manager of BASF, whose authority need not be proved, in respect of any indebtedness of the Customer to BASF or in respect of any other fact, including the fact that such Goods were sold and delivered, shall be prima facie (until the contrary is proved) evidence of the Customer's indebtedness to BASF and prima facie (until the contrary is proved) evidence of such other fact and prima facie (until the contrary is proved) evidence of the delivery of the Goods. 17.4 The Customer's physical address as given on the Goods Application Form shall be recognized as the Customer's address for receipt of notices and execution of legal documents for all purposes in terms of this agreement whether in respect of the serving of any court process, notices, the payment of any amount or communications of whatever nature. BASF chooses its domicilium as per the address as reflected on the applicable statement. 17.5 The customer shall be liable for all costs incurred by the supplier in the recovery of any amounts or the enforcement of any rights which it has hereunder, including collection charges and costs on an attorney and own client scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction or enforcement of such judgment. 18. ALTERNATIVE DISPUTE RESOLUTION 18.1 In the event of a dispute arising out of or in connection with this contract or the breach, termination or invalidity thereof, either Party may refer the matter to arbitration, which shall be final and binding on the Parties and shall not be subject to appeal. Nothing in this clause shall preclude either party from seeking urgent interim relief from any court of competent jurisdiction 18.2 The arbitration shall be conducted in accordance with the UNCITRAL Arbitration Rules in force at the time of the dispute and the governing procedural law of the arbitration shall be the laws of Tanzania. 18.3 The notice referred to in clause 18.1 shall stand as a statement of claim and shall include all information required by the UNCITRAL Rules to stand as a notice of arbitration and shall constitute such a notice for the purpose of the proceedings. 18.4 The notice shall include 3 suitable alternative proposals for the appointment of the arbitrator and unless agreed otherwise in writing by the parties, the number of arbitrators shall be one and shall be an advocate or attorney of at least 5 years experience in commercial practice. 18.5
The appointing authority in terms of the UNCITRAL Arbitration Rules shall be the Chairperson of the Tanzania Institute of Arbitrators. Unless agreed otherwise in writing the arbitration shall be a) administered by the parties; b) held in Dar es Salaam, Tanzania; and c) conducted in English. 18.6 The provisions of this clause are severable from the rest of this agreement and shall remain in effect even if this agreement is terminated for any reason. 19. GENERAL 19.1 This agreement represents the entire agreement between BASF and 19.2 The Customer acknowledges that it is aware that BASF'S dealers and sales persons have no authority to vary these terms and conditions of sale and BASF assume no liability and shall not be bound by any statements, warranties or representations made by such persons. 19.3 No amendment and/or cancellation of these terms and conditions, shall be of any force or effect unless reduced to writing and signed by, the Customer, and a director of BASF. 19.4 The Customer acknowledges that no warranties, representations or guarantees have been made by BASF or on behalf of BASF which may have induced the Customer to enter into this agreement. 19.5 No relaxation or indulgence which BASF may give at any time in regard to the carrying out of the Customer's obligations in terms of any contract shall prejudice or be deemed to be a waiver of any of BASF'S right in terms of this agreement. 19.6 The Customer shall not cede its rights nor assign its obligation in terms hereof without BASF'S prior written consent thereto. 19.7 BASF shall at any time in its sole discretion be entitled to cede all or any of its rights in terms of this application for Goods facilities including all terms and conditions to any third party with prior notice to the Customer. 19.8 The Customer undertakes to notify BASF in writing within a period of 7 (seven) days of any change of address, change in ownership, name change or any changes in information as set out in this agreement and shall likewise inform the Customer of any such changes affecting BASF. 19.9 Each of the terms herein shall be a separate and divisible term and if any such term becomes unenforceable for any reason whatsoever, then the term shall be severable and shall not affect the validity of the other terms. 20. FORCE MAJEURE (Acts Beyond the Parties Control) To the extent any incident or circumstance beyond BASF'S control (including natural occurrences, war, strikes, lock-outs, shortages of raw materials and energy, obstruction of transportation, breakdown of manufacturing equipment, fire, explosion, acts of Government or interrupted electricity supply), reduces or delays the availability or delivery of Goods or delays the availability or delivery of Goods from the plant from which BASF receives such Goods, such that BASF cannot fulfil its obligations under this agreement, and BASF has informed the Customer accordingly and without delay, BASF shall: a) be relieved from its obligations under this agreement to the extent that BASF is prevented from performing such obligations and b) have no obligation to procure Goods from other sources. If the aforementioned occurrences last for a period of more than 3 (three) months, BASF is entitled to withdraw from the agreement without the Customer having any right to compensation. 21. DISCLOSURE OF PERSONAL INFORMATION 21.1 The Customer agrees that personal information given to BASF is to be used by BASF for the purpose of assessing the Customer's financial position. The Customer confirms that the information given is accurate and complete. BASF will not be liable for any loss, damage or injury as a result of any inaccuracies or lack of completeness of information provided by the Customer and the Customer hereby indemnifies BASF against any such loss, damage or injury. 21.2 BASF has the Customer's consent at all times to: (i) contact and request information from any persons, credit bureau or business to obtain any information relevant to the Customer's credit or financial assessment and (ii) furnish credit or financial information concerning the Customer's dealings with BASF to a credit bureau and to any third party seeking a trade reference. 21.5 The Customer consents that BASF may store and process personal information relating to the Customer for the purposes of BASF performing its contractual obligations to. 21.6 This Agreement is subject to the provisions of any applicable BASF s Privacy Statement. 22. NOTICES 22.1 Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing and if
received or deemed to be received by the addressee as stipulated in clauses 22.2 and 22.3 below. 22.2 Any notice to a party sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 7th business day after posting (unless the contrary is proved). 22.3 Any notice to a party delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery. 23. TERMINATION This agreement shall commence on the Customer signing the Good Application and shall continue for indefinite period unless terminated by either party on two months written notice to the other.