Unless otherwise explicitly agreed in writing, these General Conditions of Sale (“GCS”) shall apply to all inquiries, offers, orders and agreements (“Contract”) whereby a company within the Eleiko Group (“ELEIKO”) sells and delivers any product or equipment (“Products”) and/or provides installation services of Products (“Installation Services”) to the buyer (“BUYER”). The GCS constitute an integral part of any such Contract, whether or not referenced therein and exclude the application of any conflicting or deviating general or specific terms or conditions of BUYER.
2. VALIDITY OF QUOTATION
ELEIKO’s quotations are open for acceptance within the period stated therein or, when no period is so stated, within 30 days after its date.
3. PLACING OF ORDERS, CANCELLATIONS
Any order shall be given in writing. A binding contract for the sale and purchase of the Products shall be considered made upon BUYER’s receipt of ELEIKO’s order confirmation.
4. PRICE CONDITIONS
Unless otherwise agreed or stated on the quotation, all prices are net prices exclusive of value added tax and any other imposition whatsoever, costs of packing, freight and insurance, which, if applicable, shall be paid by BUYER in addition to the purchase price.
5. DELIVERY, PASSING OF RISK
5.1. Any agreed delivery term shall be construed in accordance with the INCOTERMS in force at the time of the formation of the Contract. If the Contract does not designate specific delivery terms, the delivery shall be made Ex Works (EXW).
5.2. The delivery date is set out in ELEIKO’s order confirmation. Unless expressly agreed in writing, this date is indicative only.
5.3. In the event of a delay in delivery of packed- or custom ordered goods caused by the BUYER and a notice has not been given within a reasonable period of time, ELEIKO has the right to charge the BUYER any costs for storage, insurance, administration etc.
5.4. The risk of loss and damage to the Products shall pass from ELEIKO to BUYER upon delivery in accordance with applicable INCOTERM. If BUYER fails to receive the Products at the agreed delivery time, the risk with respect to the Products shall pass from ELEIKO to BUYER at the moment that BUYER is in default. Any costs for storage, insurance etc. incurred by ELEIKO thereafter shall be borne by BUYER.
5.5. ELEIKO shall have the right to make deliveries in parts.
5.6. BUYER shall inspect the Products upon receipt with respect to defects, shortages in quantity and breakage of packaging during transportation. Any rejection of Products due to defects, shortages in quantity or breakage in packaging shall be notified to ELEIKO in writing within thirty (30) working days from BUYER’s receipt of the Products. Otherwise, BUYER shall have no right to claim compensation from ELEIKO for defects, shortages or breakage.
6. INSTALLATION SERVICES
6.1. ELEIKO shall provide Installation Services on behalf of the BUYER if agreed in the Contract.
6.2. BUYER shall ensure that ELEIKO’s personnel are able to start any Installation Services timely on the agreed place (“Site”).
6.3. Unless otherwise agreed, the Installation Services will be carried out during BUYER’s normal working hours.
6.4. BUYER shall, before ELEIKO’s personnel arrive at the Site, at its cost, undertake preparatory work to ensure that the conditions necessary for the Installation Services as instructed by ELEIKO are fulfilled. If BUYER is responsible for transporting the Products to the Site, BUYER shall ensure that the Products are on the Site before the agreed date for starting the Installation Services.
6.5. BUYER shall ensure that the Installation Services are not performed under dangerous or unhealthy conditions and shall take all necessary measures to protect ELEIKO’s personnel from exposure to any safety or health hazards. Before the start of the Installation Services, BUYER shall ensure that ELEIKO’s personnel are informed of any safety regulations and safety routines in force at the Site and of any special hazards that the performance of the Installation Services may entail. ELEIKO shall not be obliged to carry out any Installation Services in unhealthy or dangerous surroundings.
6.6. BUYER shall make available to ELEIKO at the Site, at its cost, all equipment and resources necessary for the Installation Services as agreed in the Contract (e.g. lifting equipment, water, electricity, lighting, internet access etc.) as well as secure storage facilities for ELEIKO’s personnel’s tools, equipment and personal belongings.
6.7. If BUYER anticipates that it will be unable to fulfil in time its obligations for performance of the Installation Services as set forth in this Clause 6, BUYER shall promptly notify ELEIKO in writing stating the reason therefore and the time when the obligations will be fulfilled. ELEIKO shall be entitled to charge BUYER for any extra costs incurred by ELEIKO due to BUYER’s failure to fulfill its obligations set forth in this Clause 6 at the agreed time.
7.1. In the event of delay in delivery of the Products or in the completion of the Installation Services and such delay is caused by any of the circumstances mentioned in Clause 16 below or by an act or omission of BUYER, the time for delivery of the Products and/or completion of the Installation Services shall be extended for a period which is reasonable having regard to the circumstances in the case.
7.2. In case of delays for other reasons than stipulated in Clause 7.1, BUYER may in writing demand delivery or completion of the Installation Services within a final reasonable period of time which shall not be less than three (3) weeks from the original delivery/completion date. Should ELEIKO not deliver the Products or complete the Installation Services within such final time period and this is not due to any circumstance for which BUYER is responsible, BUYER shall be entitled to terminate the Contract in respect of the affected Products or the affected Installation Services and, if applicable, be entitled to a refund of payments made for the terminated part of the Contract. The termination shall be made by a notice in writing. Termination of the Contract including possible repayment as aforesaid shall be BUYER’s sole remedy in case of delay and BUYER shall not be entitled to damages, penalty, remuneration or other compensation, unless a separate written agreement has been entered into between ELEIKO and BUYER to that effect.
8.1. Unless otherwise agreed, payment of the purchase price shall be made in advance of delivery or performance of the Installation Services. Payment shall be made in the currency stated in the Contract.
8.2. In the event the payment is delayed, ELEIKO shall be entitled to interest at an annual interest rate of 10 per cent as from the day on which payment was due and be payable by BUYER. Service charges will be added for reminders regarding overdue payments.
8.3. In the event the payment is delayed ELEIKO may, after having notified BUYER in writing, suspend its performance of the Contract until ELEIKO receives full payment. If the delay in payment exceeds two (2) months, ELEIKO shall be entitled to terminate the Contract by notice in writing to BUYER and to claim compensation for the loss ELEIKO has incurred.
9. RESERVATION OF TITLE
The Products shall remain the property of ELEIKO until paid for in full, to the extent that such retention of title is valid under the applicable law.
10.1. Subject to the provisions of this Clause 10, ELEIKO warrants that at the time of delivery, the Products and the Installation Services will correspond with their specification and will be free from defects in material and workmanship. Unless another period is agreed in the Contract, the warranty shall apply as from the date of delivery and during the time periods set out in the Warranty Schedule attached to your order confirmation.
10.2. Any claim by BUYER under the warranty in Clause 10.1 shall be notified to ELEIKO in writing within thirty (30) days after the defect has been discovered. Notice of a defect shall be given immediately if there is reason to believe that the defect may cause damage. If BUYER fails to notify ELEIKO in writing within the time limits set forth in this Clause, BUYER shall forfeit its right to make any claim in respect of the defect.
10.3. Where a valid claim in respect of any Product or Installation Service is notified to ELEIKO in accordance with Clause 10.2, ELEIKO shall be entitled to repair or replace the Products (or the part in question) and correct the relevant Installation Service free of charge. ELEIKO shall be deemed to having fulfilled its obligations in respect of remedying the defect when ELEIKO delivers to BUYER a duly repaired or replaced part or performs correction. If ELEIKO chooses to deliver Products or parts thereof anew, the replaced Products or parts shall become the property of ELEIKO at the moment of replacement.
10.4. The warranty period for any repaired or replaced Product or corrected Installation Service shall end at the same date as the warranty period for the original Product or Installation Service. Unless otherwise agreed, necessary transport of the Products to and from ELEIKO in connection with the remedying of defects for which ELEIKO is liable shall be at the risk and expense of ELEIKO, provided that BUYER follows ELEIKO’s instructions regarding such transport.
10.5. The warranty stipulated in Clause 10.1 is conditional upon the Products being used under normal conditions and that the BUYER complies with the maintenance and service instructions as well as specific manuals and user guides of the Products (e.g. ELEIKO Product Care Guideline) provided by ELEIKO to the BUYER. The warranty under Clause 10.1 does not cover defects which are caused by: (a) abnormal or incorrect use of the Products; (b) incorrect or faulty repairs by BUYER or third parties designated by BUYER; (c) the user manual, or the mounting or assembly instructions having not been adhered to; (d) other parts than the original parts have been used in connection with the Products or the mounting or assembly; (e) insufficient or incorrect maintenance and service; (f) normal wear and tear; or by (g) design, materials or working methods that have been provided or prescribed by BUYER.
10.6. If, within a reasonable time, ELEIKO does not fulfil its obligations under Clause 10.3 BUYER may by notice in writing fix a final time for completion of ELEIKO’s obligations which shall not be less than three (3) weeks. Where the defect has not been successfully remedied within such a reasonable period of time, BUYER shall be entitled to terminate the Contract in respect of the affected Products or Installation Services and, if applicable, be entitled to a refund of payments made for the terminated part of the Contract. The termination shall be made by a notice in writing.
10.7. Save as stipulated in this Clause 10, ELEIKO shall not be liable for defects, including without limitation, any implied warranties or conditions of merchantability, fit for a particular purpose and non-infringement.
To the maximum extent permitted by applicable law, the total liability, if any, of ELEIKO, for all claims, damages and losses, whether arising from breach of contract, breach of warranty, negligence, indemnity or otherwise arising from a Product or Installation Service, is limited to one and a half (1,5) times the price paid for the Product or the Installation Service under the Contract. This limitation of liability shall not apply to third party claims for bodily injury or death caused by a proven Product defect or to damages and losses caused by ELEIKO’s gross negligence or wilful misconduct.
BUYER shall ensure that the Products are sufficiently assembled and installed before use and that the user manual is always accessible and adhered to. BUYER shall indemnify, hold harmless and defend ELEIKO from any liability, loss, damage, costs, claim or lawsuit (including reasonable legal costs) arising out of BUYER’s or its customer’s/user’s negligent acts or omissions regarding the installation, use, handling and maintenance of the Products, either singly or in combination with other products.
13. CONSEQUENTIAL LOSSES
Except in the case of gross negligence or wilful misconduct, neither party shall be liable towards the other party in contract, tort, warranty, strict liability or otherwise for any loss of production, loss of profit, loss of use, loss of contracts or for any other consequential or indirect damage or loss whatsoever.
14. PREMATURE TERMINATION
Either party is entitled to terminate the Contract with immediate effect and without incurring any liability towards the other party due to such termination, if
(a) the other party enters into composition negotiations, is declared bankrupt, goes into liquidation or for any other reason can be assumed to have become insolvent; or
(b) the other party commits a material breach of its obligations under the Contract (including but not limited to these GCS); and does not undertake complete rectification within thirty (30) days of receipt of written notice to that effect.
15. INTELLECTUAL PROPERTY RIGHTS
15.1. All intellectual property rights, including but not limited to, registered and unregistered trademarks, patents, inventions, designs, know-how, copy rights and domain names (“Intellectual Property”) existing with the ELEIKO Group prior to the entering into the Contract shall remain the exclusive property of the ELEIKO Group. No right or license is granted to BUYER under any Intellectual Property owned or otherwise held by the ELEIKO Group except a limited non-exclusive license to use the ELEIKO Group’s Intellectual Property to the extent necessary for BUYER to exercise its right to use or resell the Product(s). Upon the termination or expiration of the Contract, this license shall automatically and immediately terminate.
15.2. BUYER may not place its own trademark or trade name on the Products, unless ELEIKO has given its prior written approval.
16. FORCE MAJEURE
16.1. Either party shall be entitled to suspend performance of its obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by any circumstance beyond the control of the parties and that could not be foreseen at the formation of the Contract, such as fire, war, extensive military mobilization, terrorist act, embargo, export restrictions, natural disaster and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Clause 16.1 (“Force Majeure”).
16.2. A party may invoke a Force Majeure event under Clause 16.1 only if it has notified the other party in writing without delay of the occurrence and potential effects of the event. A party shall also without delay inform the other party of the cessation of such event.
16.3. Either party shall be entitled to terminate the Contract by notice in writing to the other party if performance of the Contract is suspended under Clause 16.1 for more than ninety (90) days.
17.1. If any provision of the GCS is found to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the provision in question shall not be affected by that invalidity or unenforceability.
17.2. Neither party may transfer or assign its rights or obligations under the Contract without the written consent of the other party. Notwithstanding the previous sentence, ELEIKO may transfer or assign such rights and obligations to any other company within the ELEIKO Group, or to any successor by acquisition or merger, without the prior consent of BUYER.
17.3. BUYER acknowledges that it is entering into the Contract only with the contracting ELEIKO entity and that each ELEIKO entity is operating on a stand-alone basis, and BUYER further acknowledges and agrees that any claims against ELEIKO shall only be made against the contracting ELEIKO entity (or such ELEIKO entity to which the Contract has been transferred or assigned in accordance with Clause 17.2). ELEIKO expressly disclaims and renounces any form of cross-guaranties or similar intra-group responsibility between the ELEIKO entities and other entities within the Eleiko Group worldwide, which BUYER acknowledges by entering into the Contract with the contracting ELEIKO entity.
18. GOVERNING LAW
The Contract shall be governed by the substantive law of the country where ELEIKO has its principal place of business.