1. SCOPE AND APPLICATION
1.1. These General Terms and Conditions (“GTC”) shall apply to all sale and deliveries of products (“Products”) by ERIKKILA Oy (“ERIKKILA”) to the buyer (“Buyer”). ERIKKILA and the Buyer are also hereinafter referred to each as a “Party” and jointly to as the ”Parties”.
1.2. 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 ERIKKILA, whether made in writing or otherwise, 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”.
1.3. 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. ERIKKILA reserves the right to amend or supplement the GTC’s unilaterally by notifying the Buyer thereof in connection with the next offer or order confirmation.
2. OFFERS AND ORDER CONFIRMATIONS
2.1. An offer regarding the Products made by ERIKKILA to the Buyer shall be valid for a period of thirty (30) days, unless otherwise specified in the offer.
2.2. Orders shall be submitted by the Buyer in writing and shall specify the Products that the Buyer intends to order by using ERIKKILA’s product numbers.
2.3. An order is considered accepted once ERIKKILA has issued a written order confirmation to the Buyer.
3. DELIVERY OF THE PRODUCTS
3.1. The term of delivery of the Products shall EXW Masala, Finland (Incoterms 2010), unless otherwise specified in the relevant Agreement.
3.2. Delivery is deemed to have taken place when ERIKKILA has made the Products available to the Buyer in accordance with the agreed Incoterms 2010 delivery term.
3.3. The delivery schedule is specified in the Agreement. Any date or period of delivery indicated by ERIKKILA shall be deemed to be an estimate only. Partial deliveries shall be allowed.
3.4. ERIKKILA has no liability resulting from delay of a delivery resulting from export control, sanctions, or other restrictive measures.
3.5. 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 ERIKKILA for any direct costs incurred by ERIKKILA 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.
3.6. 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 ERIKKILA, the Buyer shall be entitled to seek compensation for any direct costs incurred by the Buyer as a result of ERIKKILA’s delay; the total compensation shall, however, not exceed three (3) percent of the total price of the Products that are subject to the delay.
3.7. ERIKKILA may suspend deliveries or parts of deliveries to the Buyer in the event that the Buyer’s payment is delayed from the due date.
4. PERMITS AND LICENCES
4.1. 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.
5. INSPECTION OF PRODUCTS
5.1. The Buyer shall inspect the quantity and packaging of the Products and any part thereof immediately when the Buyer receives them.
5.2. Notice of transportation damage must be made upon receipt of the products on the bill of lading to the carrier and within three days of receipt separately in writing to ERIKKILA. Written notice of any other defects must be given to ERIKKILA within eight days after receipt of the products. Such notice shall always include a precise description of the products in question and the claimed defect or damage.
5.3. ERIKKILA’s warranties shall not release the Buyer from its obligation to inspect the Products.
6.1. ERIKKILA warrants its products against defects in material or workmanship for 24 months from delivery. If the distributor has agreed on a shorter warranty period with the end-user, the same shorter warranty period shall apply to ERIKKILA’s warranty for the products in question.
6.2. The warranty only covers parts and equipment included in ERIKKILA’s delivery. The warranty does not cover parts and equipment that has been damaged due to improper installation or any other act or omission made by any other than ERIKKILA.
6.3. In the event the defect falls within the scope of ERIKKILA’s warranty, the defective products are to be repaired or replaced at ERIKKILA’s option by ERIKKILA at ERIKKILA’s expense. ERIKKILA’s warranty does not compensate Distributor for any travel and accommodation expenses, time spent on the warranty issue or any other indirect cost. If required by ERIKKILA, the distributor shall return the defective parts to ERIKKILA at ERIKKILAs expense.
6.4. ERIKKILA’s liability for any defect shall expire upon the expiration of the warranty period and any claims by the Distributor shall be barred, unless the Distributor has given notice of the defect before the expiration of the warranty period, in which case ERIKKILA’s liability in accordance with the warranty shall continue for the specific defect in question until the issue has been finally settled.
6.5. The warranty terms above stipulate the sole and entire remedy available to Buyer in case of a defect in the Products. The Buyer hereby waives all other remedies arising by law or otherwise.
7. PRICES AND PAYMENT TERMS
7.1. The price of the Products shall be as specified in each specific Agreement. Unless otherwise specified in writing, all prices are net quoted EXW Masala, Finland (Incoterms 2010), and exclusive of shipping and insurance.
7.2. All prices shall be in EURO and exclusive of VAT and any other taxes, duties or levies. The Buyer shall be liable for the payment of VAT, other taxes, duties or levies, unless agreed otherwise.
7.3. Payments shall be made against an invoice. If not otherwise agreed, ERIKKILA shall be entitled to invoice the price of the Products once ERIKKILA has informed the Buyer that the Products are ready for delivery.
7.4. An amount shall be considered paid when the amount has been finally credited and is available to ERIKKILA on the bank account mentioned in the invoice or the Agreement.
7.5. Any overdue payment shall be subject to an overdue interest in the amount of 11.5 % p.a.
7.6. The Buyer may only set-off its own claims against due payments if its claims against ERIKKILA are legally established by a court of law or expressly accepted in writing by ERIKKILA.
8.1. ERIKKILA’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.
8.2. ERIKKILA 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.
8.3. The limitations of liability shall not apply to damages caused by wilful conduct or gross negligence.
9. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
9.1. All intellectual property rights related to the Products, including but not limited to patents, know-how, trademarks, copyrights and any intellectual property right whether registered or not, are and shall remain the exclusive property of ERIKKILA, 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 ERIKKILA’s trademarks in any sales or marketing activities without ERIKKILA’s prior written approval.
9.2. All information disclosed by ERIKKILA to the Buyer regarding or relating to the Products or the business of ERIKKILA 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 ERIKKILA prior written consent.
9.3. 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 ERIKKILA as a result of the breach of the intellectual property rights and/ or confidentiality obligation.
10. FORCE MAJEURE
10.1. 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.
10.2. An event of Force Majeure suffered by a sub-contractor of a party shall also discharge such party from a liability.
10.3. 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.
10.4. Notwithstanding the aforementioned, ERIKKILA 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.
11.1. 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.
11.2. No consent or waiver, express or implied, by ERIKKILA 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 ERIKKILA.
11.3. Any modifications or amendments to the Agreement shall be valid only if made in writing and signed by duly authorized representatives of both ERIKKILA and the Buyer. Notwithstanding this, ERIKKILA shall, in accordance with Article 1.3 above, be entitled to amend or supplement the GTCs.
11.4. The Buyer may not assign the Agreement and the rights and obligations thereunder to a third party, without the prior written consent of ERIKKILA. ERIKKILA 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. ERIKKILA shall further be entitled to transfer the rights to receive and collect payments to a third party.
11.5. 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.
11.6. 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.
12. GOVERNING LAW AND DISPUTES
12.1. 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).
12.2. 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 place of arbitration shall be Helsinki, Finland, and shall be conducted in English. The number of arbitrators shall be one (1).
12.3. Notwithstanding the above, ERIKKILA 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 undisputed overdue payments in any court of law.