SCOPE AND APPLICATION
|These General Terms and Conditions (“GTC”) shall apply to all sale and deliveries of anchors, plugs, fixings and other products (the “Products”) by Sormat Oy (“Sormat”) to the buyer (the “Buyer”).Sormat and the Buyer are also hereinafter referred to each as a “Party” and jointly to as the ”Parties”.
|These GTCs form an integral part of a specific supply agreement in which the Parties agree on the supply and purchase of the Products, and to which these GTCs are attached or in which reference to these GTCs is made, as well as of any offer or order confirmation regarding the Products submitted by Sormat in which reference to these GTCs is made.The supply agreement, offer and order confirmation together with these GTCs shall hereinafter jointly be referred to as the “Agreement”.
|Once the GTCs have been applied, they shall constitute the commercial custom between the Parties and thus apply to all future orders of Products by the Buyer without the need to make special reference to them in connection with each delivery.Sormat reserves the right to amend or supplement the GTCs unilaterally by notifying the Buyer thereof in connection with the next offer or order confirmation.
|Buyer’s contradictory or additional terms and conditions, or terms deviating from these GTCs not expressly acknowledged by Sormat in writing, are not valid.
|In addition to these GTCs, any specifications, drawings, descriptions, standards and other documents, and in particular agreements of confidentiality and compliance agreements stipulated between Sormat and the Buyer, as amended, are applicable.
|The Parties shall either jointly document any verbal agreements, e.g.in the form of minutes, or immediately confirm them in detail and in written form.
OFFERS AND ORDER CONFIRMATIONS
|An offer regarding the Products made by Sormat to the Buyer shall be valid for a period of thirty (30) days, unless otherwise specified in the offer.
|Orders shall be submitted by the Buyer in writing and shall specify the Products that the Buyer intends to order by using Sormat’s product numbers.
|An order is considered accepted once Sormat has issued a written order confirmation to the Buyer.
DELIVERY OF THE PRODUCTS
|The term of delivery of the Products shall be specified in the relevant Agreement.
|Delivery is deemed to have taken place when Sormat has made the Products available to the Buyer in accordance with the agreed Incoterms 2010 delivery term.
|The delivery schedule is specified in the Agreement Any date or period of delivery indicated by Sormat shall be deemed to be an estimate only.Partial deliveries shall be allowed.
|Sormat has no liability resulting from delay of a delivery resulting from export control, sanctions, or other restrictive measures.
|In case delivery is delayed due to the Buyer’s inability to take delivery or other reasons attributable to the Buyer, the Buyer shall compensate Sormat for any direct costs incurred by Sormat as a result of the delay, in addition to which the risk shall pass to the Buyer from the day of declaration of readiness for delivery of the Products.
|In case delivery is delayed with more than thirty (30) days after the time at which delivery should have taken place due to reasons attributable to Sormat, the Buyer shall be entitled to withdraw from the Contract.At the same time, the Buyer is not entitled to seek compensation for any direct costs, or indirect costs or losses specified below in Section 10.3, incurred by the Buyer due to the delay.
|Sormat may suspend deliveries or parts of deliveries to the Buyer in the event that the Buyer’s payment is delayed from the due date or the Buyer has failed to fulfil other obligations following from the Agreement.
|The Products are delivered in boxes or wholesale cartons if not otherwise indicated in the relevant Agreement.
RESERVATION OF TITLE
|Sormat reserves the right of ownership in respect of the Products supplied until such time as all claims under the business relationship with the Buyer have been met.In case of violation of the agreement by the Buyer, in particular delay in payment, Sormat is entitled to retrieve the purchased Products.Sormat’s retrieval of the purchased Products constitutes a withdrawal from the Agreement.Following retrieval of the purchased Products, Sormat has the right to sell them; the proceeds of such sale, minus reasonable selling costs, shall be deducted from the Buyer’s liabilities.
|The Buyer is obliged to treat the purchased Products with care; in particular, it is obliged to insure it at its own expense against fire, water and theft at its original value.The Buyer shall duly carry out any maintenance and inspection work, if required, at its own expense.
|The Buyer is entitled to sell the Products in its regular course of business, provided it meets its obligations arising from the business relationship with Sormat in a timely manner.However, it may neither pledge the Products nor transfer ownership in them as a security.It is obliged to protect Sormat’s rights, if Products which are subject to reservation of title are resold on credit.
|All claims and rights deriving from the sale or any leasing, for which Sormat may have given the Buyer permission, of Products in which Sormat has property rights, are herewith assigned by the Buyer to Sormat as security with immediate effect.
|For good cause, the Buyer is obliged at Sormat’s request to announce the assignment to the third-party buyers, and to give Sormat information and hand over documents required to assert Sormat’s rights.
|Any machining or processing of the Products which are subject to reservation of title shall at all times be carried out by the Buyer on Sormat’s behalf.If the Products which are subject to reservation of title are processed or inseparably mixed with other items not owned by Sormat, Sormat shall acquire joint ownership in the new product in the proportion of the invoice value of the Products which are subject to reservation of title to the other processed or mixed items at the time of processing or mixing.
|If Sormat’s products are combined or inseparably mixed with other movable items to form a single product and the other product is deemed to be the principal product, the Buyer shall transfer joint ownership to Sormat on pro rata basis, as far as the principal product is owned by it.The Buyer shall maintain ownership or joint ownership on Sormat’s behalf.In all other respects, the same shall apply to the product created by processing or combination or mixing as the Products which are subject to reservation of title.
|The Buyer must inform Sormat immediately of enforcement measures being taken by third parties in respect of the reserved Products by handing over to Sormat all the documents required for any intervention.This also applies to infringements of any other kind.
PERMITS AND LICENCES
|The Buyer shall at its own risk and expense obtain and maintain any licences, permits or authorization from authorities required for the Product’s import, export, transportation, use, possession, re-sale and/or any other measures related to the Products.
INSPECTION OF PRODUCTS
|The Buyer shall inspect the quantity and packaging of the Products and any part thereof immediately when the Buyer receives them.
|Any claim regarding the quantity and packaging of the Products shall be made in writing without delay, however at the latest within seven (7) days of receiving the Products or a part thereof.Any claim not made in writing and received by Sormat within the above time limits shall be deemed waived by the Buyer.
|Sormat’s warranties shall not release the Buyer from its obligation to inspect the Products.
WARRANTY AND DEFECTS
|Sormat is certified in accordance with the ISO 9001 quality standard and the ISO 14001 environmental standard.
|Sormat warrants that the Products comply with the technical specifications provided by Sormat.No other warranties, express or implied, including but not limited to fitness for a particular purpose or merchantability, are made or shall be deemed to have been made by Sormat.The Buyer shall bear the sole responsibility for determining the suitability of the Products for the purposes it intends to use them.
|The warranty does not apply if the Buyer alters the delivered Products or has them altered by third parties.
|The Buyer may not invoke that the Products are defective unless it gives notice to Sormat of the defect immediately after the defect was or should have been discovered.Any claim shall be made in writing and must be received by Sormat, in accordance with the time period specified in Article 6.2 above, for such defects that were or should have been discovered following an inspection of the Products, and within six (6) months from the date of delivery for any such defects that could not reasonably have been detected during the inspection of the Products in accordance with Article 6.2.
|The Buyer is obligated to adequately document the defects discovered and provide corresponding evidence to Sormat.Any claim shall include a written description of the alleged defect.Sormat must be given the opportunity of assessing the reported defect.The Products complained of must be returned to Sormat immediately; Sormat will take over the transport costs where the notice of defect is justified.If the Buyer, without Sormat’s approval, modifies the Products which are subject to a complaint already submitted to Sormat, any claims for material defects shall be forfeited.
|Provided that the Buyer has notified Sormat about any defects in the Products, in accordance with the abovementioned, Sormat will at its discretion make improvements to the Products complained of or supply a replacement free of defect.
|Improvements to or replacement of defective Products is the only remedy available to Buyer in case of a defect in the Products.The Buyer hereby waives all other remedies arising by law or otherwise.
SAMPLES AND PRODUCTION EQUIPMENT
|Manufacturing costs for samples and production equipment (tools, molds, templates, etc.) will, unless otherwise agreed, be invoiced separately from the Products to be supplied.This also applies to production equipment which has to be replaced as a result of wear and tear.
|If, during the period of manufacture of samples or production equipment, the Buyer abandons or terminates the co-operation without Sormat giving the contractual partner a justified reason to do so, all manufacturing costs incurred up to that time will be borne by the Buyer.
|Even where the Buyer has paid for it, the production equipment remains Sormat’s property at least until completion of the supply contract.The Buyer is then entitled to reclaim the production equipment, where a mutual agreement has been reached in respect of the time of delivery and the contractual partner has fully complied with its contractual obligations.
PRICES AND PAYMENT TERMS
|The price of the Products shall be as specified in each specific Agreement.Unless otherwise specified in writing, all prices are net quoted FCA Rusko, Finland (Incoterms 2010), and exclusive of shipping and insurance.
|All prices shall be in EURO and exclusive of VAT, any other taxes, duties or levies, packing, freight, carriage and insurance.The Buyer shall be liable for the payment of VAT, other taxes, duties or levies, packing, freight, carriage and insurance, unless agreed otherwise.
|Bills of exchange and cheques will only be accepted where this has been agreed, and only on account of performance and on condition that they may be discounted.Discount charges will be calculated from the due date for payment of the invoice amount.A guarantee for presentation of bills of exchange and cheques at the due and proper time and for the lodging of a protest is excluded.
|If the intended date of delivery is delayed by more than thirty (30) days for reasons beyond Sormat’s control, or reasons attributable to the Buyer, Sormat reserves the right to change the price in line with the cost development of raw material between the confirmation of order and actual delivery date, if the cost of raw material has increased by more than 10 % during the said period.
|Payments shall be made against an invoice.If not otherwise agreed, Sormat shall be entitled to invoice the price of the Products once Sormat has informed the Buyer of that the Products are ready for delivery.All invoices are due for payment within 30 days of the invoice date.In case of payment within 14 days after the date of invoice, cash discount in the amount of 2 per cent is granted, provided the Buyer has settled all claims when due.
|An amount shall be considered paid when the amount has been finally credited and is available to Sormat on the bank account mentioned in the invoice or the Agreement.
|Any overdue payment shall be subject to an overdue interest in the amount of equal to the rate charged to Sormat by its bank for current account overdrafts, but at a minimum of 9 percent above the base interest rate of the European Central Bank at the time.
|The Buyer may only set-off its own claims against due payments, if its claims against Sormat are legally established by a court of law or expressly accepted in writing by Sormat.
|Sormat’s liability for any direct damage caused by a delay or defects in the Products shall never exceed the price of the Products ordered by the Buyer under the relevant Agreement.
|Sormat shall not be liable for any damage to property or personal injury caused by the Products when they are in the possession of the Buyer or a third party, nor shall it be liable for any damage to products manufactured by the Buyer, or to products of which the Buyer’s products form a part.
|Sormat shall in no event be held liable to the Buyer for any indirect, incidental, special, punitive or consequential loss or damage, including but not limited to loss of profits or revenue, loss of use, loss of customership, loss of goodwill, cost of capital or investment, damage caused due to decrease or interruption in production or turnover, claims from the Buyer’s customers or any other third party, whether arising under the Agreement, or any other theory of liability, or otherwise.
|The Buyer shall indemnify and hold Sormat and its shareholders, employees, directors, subcontractors and representatives harmless from and against all loss, liability, cost or damages caused by any claim, action or proceeding against the Buyer arising out of the transportation, installation, maintenance, use, sale or operation of the Products.
|The Buyer shall notify Sormat if third parties bring claims related to the Products based on product liability against the Buyer.
|The limitations of liability shall not apply to damages caused by wilful conduct or gross negligence.
|Insofar as Sormat’s liability is excluded or limited, this is also applicable to the personal liability of Sormat’s employees, workers, personnel, legal representatives and vicarious agents.
|Sormat undertakes to maintain a product liability insurance covering bodily injury and property damage up to EUR 2,500,000 (two million five hundred thousand).The said insurance does not cover bodily injury or property damage that occurs in the USA or Canada.
INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
|All intellectual property rights related to the Products, including but not limited to pictures, drawings, calculations, other documents, patents, know-how, trademarks, copyrights and any intellectual property right whether registered or not, are and shall remain the exclusive property of Sormat, if not otherwise agreed separately.No intellectual property right is either assigned or granted to the Buyer as a result of the supply of the Products and the Buyer shall not use Sormat’s trademarks in any sales or marketing activities without Sormat’s prior written approval.
|The Parties agree to inform each other immediately of any patent rights and purported violation of patent rights and patent right applications, and to endeavour to proceed against such claims jointly.
|All information disclosed by Sormat to the Buyer regarding or relating to the Products (samples, models, drawings, templates, similar objects, and data) or the business of Sormat is proprietary and confidential.The Buyer may use such confidential information solely for the purpose of the Agreement and shall not, at any time during or any time after the completion of the delivery of the Products disclose the same to any third party without Sormat prior written consent.
|The restrictions to intellectual property rights and the duty of confidentiality set forth herein shall also apply following termination of the Agreement for an indefinite period of time.The Buyer shall be liable for any damage caused to Sormat as a result of the breach of the intellectual property rights and/ or confidentiality obligation.
|Subsuppliers must be bound to respective commitments.
|The Buyer shall not use the fact of the business relation for PR purposes unless previously agreed by Sormat in writing.
BREACH BY THE CONTRACTUAL PARTNER
|In the event of breach of the Buyer’s duties, in particular in the case of delayed payment, Sormat is entitled, after a reasonable period of grace allowed to the Buyer for performance has elapsed without result, to withdraw from the contract and to retrieve the Products; this shall not affect the statutory provisions concerning cases where it is not necessary to allow a period of grace.The Buyer shall be obliged to surrender the Products.Sormat is entitled to withdraw from the contract if an application is filed for insolvency proceedings to be instituted against the Buyer’s assets, or out-of-court settlement is applied for.
|Neither Party shall be liable for any delay or failure in performing any of its obligations, or part thereof, if that delay or failure is caused by circumstances beyond its reasonable control (“Force Majeure”).Events of Force Majeure shall include, without being limited to, unusual weather conditions, natural disasters, pandemic diseases, breakdown or general unavailability of transport services or facilities, general shortages of energy, shortages of raw materials, failure or delay in networks, telecommunications or data traffic, security attacks, strikes, lock-out and other labour disputes and acts, restrictions, prohibitions or similar measures of government or authorities.
|An event of Force Majeure suffered by a sub-contractor of a party shall also discharge such party from a liability.
|If either Party is unable to perform its contractual obligations due to an event of Force Majeure, or if either Party considers it likely that it may become unable, then said Party shall as soon as reasonably possible, notify the other Party of the estimated extent and duration of such inability.The Parties shall jointly make all reasonable efforts to prevent and reduce the effect of any non-performance of any contractual obligation caused by an event of Force Majeure.
|Notwithstanding the aforementioned, Sormat shall be entitled to receive compensation for any costs incurred in storing, securing and protecting the Products, which are the subject of a confirmed order, if an event of Force Majeure prevents the Buyer from fulfilling its obligations under the Agreement.
LONG-TERM AND CALL-OFF PURCHASE
|Unlimited contracts and contracts with a term of more than 6 months (“Long-Term Contracts”) can be terminated by both Parties at any time giving 3-month notice.
|If a major change in the cost of labour, material or energy occurs in the course of a Long-Term Contract, each of the Parties to the contract shall have the right to demand adequate adjustment of the price having regard to these factors.
|Where a binding order quantity is not agreed, Sormat’s calculation will be based on the non-binding order quantity expected by the Buyer for a specific period of time (“Target Quantity”).
|Where the Buyer purchases less than the Target Quantity, Sormat has the right to increase the unit price by an appropriate amount.
|In the case of call supply contracts, unless otherwise agreed, binding quantities are to be notified to Sormat by call not less than 1 month before the delivery date.
|Any additional costs caused by the Buyer due to late call or subsequent amendments to the call in respect of time and quantity are to be borne by the Buyer; in this respect a calculation will prevail.
|The Agreement constitutes the entire agreement between the Parties with respect to the subject matter of the Agreement and supersedes all previous agreements, proposals and other communications, whether written or oral, between the Parties with respect to the subject matter of the Agreement.
|If any provision of the Agreement is found to be contrary to law, the other provisions of the Agreement will remain in full force and effect.Such invalid provision shall be amended by the Parties or the court or arbitration body and interpret the Agreement so as to best accomplish the objectives of the original provision to the fullest extent allowed by law.
|No consent or waiver, express or implied, by Sormat of any breach of the Agreement by the Buyer shall be considered to be a consent or waiver of any subsequent breach of the same or any other provision by the Buyer.No waiver of any rights under the Agreement shall be effective unless in writing and signed by Sormat.
|Any modifications or amendments to the Agreement shall be valid only if made in writing and signed by duly authorized representatives of both Sormat and the Buyer.Notwithstanding this, Sormat shall, in accordance with Article 1.3 above, be entitled to amend or supplement the GTCs.
|The Buyer may not assign the Agreement and the rights and obligations thereunder to a third party, without the prior written consent of Sormat.Sormat may assign the Agreement without the consent of Buyer to a third party, when assigning the ownership of its business or part thereof, or to its affiliate involved in the manufacture of the Products.Sormat shall further be entitled to transfer the rights to receive and collect payments to a third party.
|All notices, requests, demands, offers, order confirmations and other communications required or permitted to be given be either Party to the other Party under the Agreement shall be in writing in the English language and shall be sent to the address, facsimile number or e-mail address indicated in the Agreement and shall be deemed to have been received as follows: (i) on the date of delivery, if by hand delivery; (ii) two (2) business days after being sent by an internationally recognized courier; (iii) five (5) business days after being sent by first class mail (registered or certified); (iv) one (1) business day after being sent by confirmed facsimile; or (v) one (1) business day after being sent by email, if no system error or other notice of non-delivery is generated.Each party may by written notice to the other, in accordance with the provisions of this Article, change the address, telephone numbers or facsimile number, or electronic messaging system details to which notices or other communications are to be sent.
|In the event that a signed counterpart of the Agreement or any amendments or additions thereof are provided by e-mail delivery of a “.pdf” format data file, such counterpart shall create a valid and binding Agreement for the party providing such counterpart with the same force and effect as if such “.pdf” counterpart were an original of the Agreement.
GOVERNING LAW AND DISPUTES
|The contractual relationship between the Parties shall be construed in accordance with the laws of Finland excluding its choice of law provisions and the UN Convention on Agreements for the International Sale of Goods (CISG).
|Any dispute, controversy or claim arising out of or in connection with the contractual relationship between the Parties shall be settled by arbitration in accordance with the Rules of the Arbitration Institute of the Finland Chamber of Commerce.The arbitration shall take place in Helsinki, Finland, and shall be conducted in English.The number of arbitrators shall be one (1).
|Notwithstanding the above, Sormat shall be entitled to seek equitable and/or injunctive relief to prevent or stop a violation of the terms and conditions in the Agreement and to take legal actions to collect overdue payments in any court of law.