General conditions of sales
General conditions of sale for Saint-Gobain Ecophon AB
In these Terms and Conditions of Sale the following terms shall have the meanings hereunder assigned to them:
“Company” means Saint-Gobain Ecophon AB.
“Company Signatory” means a person authorized to sign on behalf of the Company.
“Contract” means the contract for supply of Goods incorporating these Terms.
“Customer” means the person seeking to purchase Goods from the Company.
“Goods” means the products and, where the context permits, the services to be supplied by the Company under the Contract.
“Gross Negligence” means an act or omission implying either a failure to pay attention to serious consequences, which a conscientious contracting party would normally foresee as likely to ensue, or a deliberate disregard of the consequences of such an act or omission.
“In Writing” means communication by document signed by both Parties or by letter, fax or electronic mail.
“Order” means the written document, by which the Customer is ordering Goods from the Company.
“Party” means the Company or the Customer individually, and “Parties” means the Company and the Customer jointly.
“Terms” means the terms set out in this document and any special terms agreed in writing between a Company Signatory and the Customer.
2.1 Any and all Orders are accepted by the Company subject to the application of the Terms and the Terms may not be altered other than In Writing by a Company Signatory.
2.2 All Orders placed by the Customer with the Company will be effective only when accepted by the Company In Writing. The Company’s written acceptance will contain both a description of the Goods ordered, the quantity and the price payable and time for delivery and will be deemed to have been received by the Customer two working days after being posted. In the event of a conflict between Order and confirmation documents, the content of the documents shall prevail in the following order:
- Alterations to the Terms agreed In Writing in accordance with Clause 2.1
- The Terms
- The Company’s written acceptance
- The Customer’s Order.
2.3 Orders may be cancelled only by agreement In Writing with a Company Signatory within three days of the Company’s acceptance of the Order. The Customer shall indemnify the Company for any costs, losses or expenses incurred by the Company as a result of such a cancellation. If the Order concerns non-standard Goods, i.e. Goods which are not normally stored by the Company, the Customer shall also pay the price for these Goods in accordance with the Company’s written acceptance upon cancellation.
2.4 The Customer is solely responsible for the accuracy of any design drawings or specifications relating to the Goods that the Customer provides to the Company. The Customer is also responsible to provide the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its Terms.
3.1 All information and data contained in general product documentations and price lists provided by the Company shall be binding only to the extent that they are by reference In Writing included in the Contract.
3.2 Prices listed or quoted are based on costs prevailing at the time when the prices are given or agreed. Notwithstanding the foregoing, in the period running from the date of Order Confirmation until delivery, the Company reserves the right to pass on additional charges in respect of all increases in the cost of labor, materials, plant, overheads and other taxes or duties outside Company’s control.
4.1 The price of the Goods shall be the price applied by the Company as at the date of delivery of the Goods unless a fixed-price quotation is agreed between the Parties In Writing. Unless explicitly stated otherwise, quoted prices are calculated Ex Works Incoterms 2010 (EXW). Quoted prices are exclusive of VAT and any other taxes, duties and other levies.
4.2 Prices listed or quoted are based on costs prevailing at the time when the prices are given or agreed. Notwithstanding the foregoing, the Company shall be entitled to adjust the price of the Goods after the date of acceptance of the Customer’s Order by such amount as may be necessary to cover any increase or imposition of any duty or tax payable in respect of the Goods. Due notice of any such increases will be given by the Company.
4.3 Prices listed or quoted are applicable to the quantity specified by and in the information provided by the Customer at the time of the Order. In the event of Orders being placed for lesser quantities than originally agreed between the Parties or if there is any change in specifications or delivery dates, or if delay is caused by the Customer’s instructions or lack of instructions, the Company shall be entitled to adjust the price of the Goods as ordered to take account of the variations.
5.1 The Customer shall inspect the Goods at the place and time of unloading or collection.
5.2 If the inspection shows that the Goods or parts thereof is not in accordance with the Contract, the Customer shall notify the Company In Writing at the latest the next working day after unloading. Should the Customer fail to give notice In Writing within the aforementioned time, the Goods shall be deemed to have been accepted by the Customer.
5.3 Upon receipt of the Customer’s notice In Writing pursuant to Clause 5.2, the Company shall remedy any deficiencies in the Goods as set out in Clause 9 below.
6. DELIVERY, PASSING OF RISK
6.1 Any agreed trade term shall be construed in accordance with the Incoterms 2010.
6.2 If no trade term has been specifically agreed In Writing, the delivery shall be Ex Works (EXW), cf. Clause 4.1 above.
6.3 Notwithstanding anything to the contrary herein, the risk for the Goods shall pass from the Company to the Customer at the time of delivery.
6.4 If, in the case of delivery Free Carrier (FCA), the Company undertake to send the Goods to a destination specified by the Customer, the risk of the Goods will pass not later than when the Goods are handed over to the first carrier.
6.5 Where appropriate, all materials supplied shall be installed in accordance with instruction set out in the Company’s installation guides.
7. TIME FOR DELIVERY, DELAY
7.1 The time for delivery is specified by the Company in the written acceptance in accordance with Clause 2.2.
7.2 If the Company anticipates that it will not be able to deliver the Goods at the time for delivery, the Company will notify the Customer thereof without undue delay, stating the reason for the delay and, if possible, the time when delivery can be expected.
7.3 If delay in delivery is wholly or partly caused by any of the circumstances mentioned in Clause 11, by an act or omission on the part of the Customer or by any other circumstances attributable to the Customer, the Company shall be entitled to extend the time for delivery by a period which is reasonable having regard to all the circumstances of the case. This provision shall apply regardless of whether the reason for the delay occurs before or after the agreed time for delivery.
7.4 If the Goods are not delivered at the time for delivery and Clause 7.3 is not applicable, the Customer shall be entitled to liquidated damages from the date on which delivery should have taken place.
7.5 The liquidated damages shall be payable at a rate of 0.5 per cent of the net purchase price for the Goods to which the delay is attributable for each complete week of delay. The liquidated damages shall not exceed 7.5 per cent of the net purchase price of the Goods to which the delay is attributable.
7.6 The liquidated damages shall become due at the Customer’s demand In Writing but not before delivery has been completed or the Contract is terminated under Clause 7.9.
7.7 The Customer shall forfeit its right to liquidated damages if it has not lodged a claim In Writing for such damages within three months after the time when delivery should have taken place.
7.8 If the delay in delivery is such that the Customer is entitled to maximum liquidated damages under Clause 7.5 and if the Goods are still not delivered, the Customer may In Writing demand delivery within a final reasonable period which shall not be less than one calendar week.
7.9 If the Company does not deliver within such final period (cf. Clause 7.8), and this is not due to any circumstances which are attributable to the Customer, then the Customer may by notice In Writing to the Company terminate the Contract in respect of such part of the Goods as cannot in consequence of the Company’s failure to deliver be used as intended by the Parties and shall then as its sole financial compensation be entitled to repayment of any purchase sum paid out to the Company in relation to the Goods subject to termination.
7.10 Liquidated damages under Clause 7.5 and termination of the Contract under Clause 7.9 shall be the only remedies available to the Customer in case of delay on the part of the Company. All other claims under law, contract, tort or any other legal notion against the Company based on such delay shall be expressly excluded, except where the Company has been guilty of Gross Negligence.
7.11 If the Customer anticipates that he will be unable to accept delivery of the Goods at the time for delivery, he shall forthwith notify the Company In Writing thereof, stating the reason and, if possible, the time when he will be able to accept delivery.
7.12 The Company may by notice In Writing require the Customer to accept delivery within a final reasonable period.
7.13 If, for any reason which is not attributable to the Company, the Customer fails to accept delivery within such period (cf. Clause 7.12) the Company may by notice In Writing terminate the Contract in whole or in part. The Company shall then be entitled to compensation for the loss it suffers by reason of the Customer’s default, including any consequential and indirect loss.
8. PAYMENT, SET OFF, RETENTION OF TITLE
8.1 Unless otherwise agreed In Writing, payment shall be made within 30 calendar days after the date of invoice. Payment shall be effected in the currency set out in the order confirmation.
8.2 Whatever the means of payment used, payment shall not be deemed to have been effected before the Company’s account has been irrevocably credited for the amount due.
8.3 If the Customer fails to pay by the stipulated date, the Company shall be entitled to interest from the day on which payment was due. The rate of interest shall be the rate of interest on late payments determined by the Swedish Interest Act (1975:635).
8.4 In case of late payment and in case the Customer fails to give an agreed security by the stipulated date the Company may, after having notified the Customer In Writing, suspend its performance of the Contract until it receives payment or, where appropriate, until the Customer gives the agreed security.
8.5 If the Customer has not paid the amount due within one calendar week, the Company shall be entitled to terminate the Contract by notice In Writing to the Costumer and, in addition to the interest and compensation for recovery costs according to this Clause, to claim compensation for the loss it incurs.
8.6 The Customer may not withhold payment of any invoice or other amount due to the Company by reason of any right of set off or counterclaim that the Customer may have or allege to have for any reason whatever.
8.7 The Company shall be allowed at all times to set off any debt or claim of whatever nature that the Company may have against the Customer against any sums due from the Company to the Customer.
8.8 The Company and the Customer agree that the Goods shall remain the property of the Company until paid for in full, to the fullest extent that such retention of title is valid under applicable law.
8.9 The Customer shall, at the request of the Company, assist the Company in taking any measures necessary to protect the Company’s title to the Goods.
8.10 The retention of title under this Clause shall not affect the passing of risk under Clause 6.
9. LIABILIY FOR DEFECTS
9.1 Unless the Company has explicitly agreed in writing that a separate warranty shall apply for the Goods, the Company shall – pursuant to the provisions of this Clause 9 – remedy any defect or nonconformity (hereinafter referred to as defect(s)) in the Goods attributable to faulty design, materials or workmanship. In the event that the provisions of such separate warranty should be in conflict with this clause 9, the provisions of such warranty shall prevail.
9.2 The Company shall not be liable for defects that:
9.2.1 arise out of materials provided or a design stipulated or specified by the Customer unless approved otherwise by the Company In Writing,
9.2.2 appear under conditions of operation other than provided for in the Contract,
9.2.3 result from the Customers violation of Clause 6.5,
9.2.4 are caused by circumstances which arise after the risk of the Goods has passed to the Customer, e.g. defects due to willful, negligent or accidental damage, faulty maintenance, incorrect installation or storage, movement of buildings or their components or installation of application with or without the Company’s prior knowledge, faulty repair by the Customer or alterations carried out by the Customer without the Company’s consent In Writing; or
9.2.5 are caused by normal wear and tear.
9.3 The Company’s liability shall be limited to defects which appear within a period of one year from delivery. If the use of the Goods exceeds that which is agreed or normal, this period shall be reduced proportionately.
9.4 When a defect in a part of the Goods has been remedied, the Company shall be liable for defects in the repaired or replaced part under the same terms and conditions and liability period as those applicable to the original Goods. Thus, the liability period mentioned in Clause 9.3 shall not be extended with respect to any repaired or replaced parts of the Goods. For the avoidance of any doubt, the Company shall not be liable for defects in any part of the Goods for more than one year from the date of initial delivery of the Goods.
9.5 The Customer shall within three (3) working days notify the Company In Writing of any defect which appears. Such notice shall under no circumstances be given later than two weeks after the expiry of the period given in Clause 9.3 or in Clause 9.4, where applicable. The notice shall contain a detailed description of the defect. If the Customer fails to notify the Company In Writing of a defect within the time limits set forth in this Clause, he shall lose his right to have the defect remedied.
9.6 Where the defect is such that it may cause any kind of damage, the Customer shall immediately inform the Company In Writing. The Customer shall bear the risk of damage to the Goods resulting from his failure so to notify. The Customer shall take reasonable measures to minimize damage and shall in that respect comply with instructions from the Company.
9.7 On receipt of the notice under Clause 9.5 the Company shall at its own cost remedy the defect without undue delay by, in the Company´s discretion, repair or replacement.
9.8 Repair shall be carried out at the place where the Goods are located, unless the Company deems it more appropriate that the Goods are sent to it or a destination specified by it, in which case the Goods shall be sent to the destination specified by the Company at the Company’s risk and expense.
9.9 If the defect can be remedied by replacement or repair of a defective part and if dismantling and re-installation of the part do not require special knowledge, the Company may demand that the defective part is sent to it or a destination specified by it. In such case the Company shall have fulfilled its obligations in respect of the defect when it delivers a duly repaired part or a part in replacement to the Customer.
9.10 The Customer shall at his own expense provide access to the Goods and arrange for any intervention in equipment other than the Goods, to the extent that this is necessary to remedy the defect.
9.11 Unless otherwise agreed, necessary transport of the Goods or parts thereof to and from the Company in connection with the remedying of defects for which the Company is liable shall be at the risk and expense of the Company. The Customer shall follow the Company’s instructions regarding such transport.
9.12 Unless otherwise agreed, the Customer shall bear any additional costs which the Company incurs for remedying the defect caused by the Goods being located in a place other than the destination stated at the formation of the Contract for the Company’s delivery to the Customer or – if no destination has been stated – the place of delivery.
9.13 Defective parts which have been replaced shall – upon the Company’s request – be made available to the Company and shall in such cases be the Company’s property. In all other cases defective parts which have been replaced shall remain the Customer’s property and the Company shall have no obligations with respect to scrapping etc. of such defective parts.
9.14 If the Company determines in its reasonable opinion that it will not be able to fulfil its obligations under Clause 9.7, it shall give the Customer notice In Writing thereof without unreasonable delay.
9.15 Where the Company has given such notice, as stipulated under Clause 9.14,
a) the Customer shall be entitled to a reduction of the purchase price in proportion to the reduced value of the Product, provided that under no circumstances shall such reduction exceed twenty (20) per cent of the purchase price, or
b) where the defect is so substantial as to significantly deprive the Customer of the benefit of the Contract as regards the Goods or a substantial part of it, the Customer may terminate the Contract by notice In Writing to the Company in respect of such part of the Goods as cannot in consequence of the defect be used as intended by the Parties.
9.16 Repair or replacement under Clause 9.7 and termination of the Contract under Clause 9.15 shall be the only remedies available to the Customer in case of liability for defects by the Company. All other claims under law, contract, tort or any other legal notion against the Company based on such liability for defects shall be expressly excluded, except where the Company has been guilty of Gross Negligence.
10. DAMAGE CAUSED BY GOODS
10.1 The Company shall not be liable for any damage to property caused by the Goods after it has been delivered to the Customer. Nor shall the Company be liable for any damage to products manufactured by the Customer or to products of which the Customer’s products form a part.
10.2 If the Company incurs liability towards any third party for such damage to property as described in Clause 10.1, the Customer shall indemnify, defend and hold the Company harmless.
10.3 If a claim for damage as described in this Clause is lodged by a third party against the Customer, the Customer shall immediately inform the Company thereof In Writing.
10.4 The Customer shall be obliged to let itself be summoned to the court or arbitral tribunal examining claims for damages lodged against the Company on the basis of damage allegedly caused by the Goods. The liability between the Company and the Customer shall however be settled in accordance with Clause 16.
10.5 The limitation of the Company’s liability in the first paragraph of this Clause shall not apply where the Company has been guilty of Gross Negligence.
11. FORCE MAJEURE
11.1 The Company shall be entitled to suspend performance of any of its obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by Force Majeure, meaning any of the following circumstances: industrial disputes and any other circumstance beyond the control of the Company such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Clause.
12.1 In the event that the Customer declares its inability to pay its debts as they mature, is declared bankrupt, enters into liquidation or reconstruction or makes compositions with its creditors or has a receiver appointed or in the reasonable opinion of the Company otherwise may be regarded as insolvent, the Company may:
12.1.1 require payment in advance of further deliveries,
12.1.2 cancel or suspend any further deliveries to the Customer under any Contract without liability on its part; or
12.1.3 without prejudice to the generality of Clause 8 of these Terms exercise any of its rights pursuant to that Clause.
13. ANTICIPATED NON-PERFORMANCE
13.1 Notwithstanding other provisions in these Terms regarding suspension, the Company shall be entitled to suspend the performance of its obligations under the Contract, where it is clear from the circumstances that the Customer is not going to perform its obligations. If the Company suspends the performance of the Contract, it shall forthwith notify the Customer thereof In Writing.
14. LIMITATION OF LIABILITY
14.1 Notwithstanding anything to the contrary in the Terms or any other documents included in the Contract, there shall be no liability for the Company towards the Customer for loss of production, loss of profit, loss of use, loss of contracts or for any other consequential or indirect loss whatsoever.
15. ECONOMIC SANCTIONS COMPLIANCE
15.1 The Customer undertakes to comply with all applicable laws including export controls and economic sanctions legislation. Applicable export control regulations and/or economic sanctions vary depending on the transaction and may include instruments adopted by the United Nations, the United States, the European Union and/or individual countries or group of countries.
15.2 In particular, the Customer shall not resell or otherwise provide the Goods (whether as a stand-alone product or service or as part of another product or service) to any individual or entity if it could result in a violation of applicable export control regulations and/or economic sanctions, or in a violation of export licenses issued by any authorities.
15.3 In the event that the Company has reasonable grounds to believe that the Customer has or intends not to comply with aforesaid export control laws and regulations, the Company may upon notice to the Customer and without prejudice to any other rights, suspend delivery under the Contract until such time when the Customer is able to provide documentary evidence that no violation is about to occur. If the Customer fails to do so within thirty (30) days from the Company’s notice, the Company shall be entitled to terminate the Contract, without any liability to the Customer.
15.4 The Company shall be entitled to suspend its performance under the Contract without any liability to the Customer if, at any time, new economic sanctions and/or export regulations enter into force and render the execution of the Contract either impossible or illegal for the Company.
16. DISPUTES AND APPLICABLE LAW
16.1 These Terms shall be governed, construed and interpreted in all respects according to the substantive laws of Sweden, without any reference to its conflict of law principles and disregarding the United Nations Convention for the International Sale of Goods (CISG).
16.2 Any dispute, controversy or claim arising out of or in connection with these Terms, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce.
16.3 The Rules for Expedited Arbitrations shall apply where the amount in dispute does not exceed SEK 100 000. Where the amount in dispute exceeds SEK 100 000 the Arbitration Rules shall apply.
16.4 The seat of arbitration shall be Helsingborg, Sweden. The language to be used in the arbitral proceedings shall be English, unless the Parties agree otherwise In Writing.