FOTONIC’S STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS
In this document the following words shall have the following meanings:
1.1 “Buyer” means the company or organisation who buys Products from the Seller;
1.2 “General Conditions” means the standard terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.3 “Delivery date” means the date specified by the Seller when the Products are to be delivered;
1.4 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property;
1.5 “Order” has the meaning ascribed to it in section 3.1;
1.6 “Parties” means the Seller and the Buyer – each of them a “Party”;
1.7 “Price” means the price set out in the list of prices of the Products maintained by the Seller as amended from time to time or such other price as the Parties may agree in writing plus such carriage, packing, insurance or other charges or interest on such as may be quoted by the Seller or as may apply in accordance with these conditions;
1.8 “Products” means the articles to be supplied to the Buyer by the Seller and each of them a “Product”;
1.9 “Seller” means FOTONIC i Norden AB, a Swedish corporation with corporate identity number 556774-2969, Kungsbron 21, 111 22 Stockholm, Sweden.
2.1 These General Conditions shall apply to all deliveries from Seller to Buyer and will thus exclude application of any general or specific conditions or terms of the Buyer. Deviations from the application of these General Conditions (including any special terms and conditions agreed between the Parties including without limitation as to discounts) are accepted by Seller only if approved in writing by an authorized representative of Seller.
2.2 All orders for Products shall be deemed to be an offer by the Buyer to purchase Products pursuant to these General Conditions.
2.3 Acceptance of delivery of the Products shall be deemed conclusive evidence of the Buyer’s acceptance of these General Conditions.
2.4 Any advice, recommendation or representation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products or otherwise which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and, accordingly, the Seller shall not be liable for any such advice, recommendation or representation which is not so confirmed.
3. ORDERS AND PRICE
3.1 Buyer shall purchase Products by issuing a written purchase order (the “Order”) signed by an authorized representative, indicating specific Products, quantity, unit price, total purchase price, shipping instructions, bill-to and ship-to addresses, tax exempt certificates, if applicable, and any other special instructions. Any contingencies contained on such order are not binding upon Seller. Seller will accept or reject orders according to its current procedures. All Orders are subject to acceptance in writing by Seller.
3.2 Seller is entitled to adjust the agreed Price if, before the Delivery Date, there are any material changes of duties, taxes or governmental charges increasing the costs for the Products.
4.1 Unless otherwise agreed in writing, payment shall be made within thirty (30) days from the date of invoice. Invoice relating to delivery may be issued as per the date of loading of the Products for transport to the Buyer.
4.2 The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due. Such interest shall accrue from day to day until the date of payment at a rate of 8% per annum above the official reference rate of the Swedish Riksbank (Sw Riksbankens referensränta) from time to time.
4.3 The Seller reserves the right to grant, refuse restrict, cancel or alter credit terms at its sole discretion at any time.
4.4 If payment of the Price or any part thereof is not made by the due date, the Seller shall be entitled to:
- require payment in advance of delivery in relation to any Products not previously delivered;
- refuse to make delivery of any undelivered Products whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
- appropriate any payment made by the Buyer to such of the Products (or Products supplied under any other contract) as the Seller may think fit; and/or
- terminate the contract.
5. DESCRIPTION AND SAMPLE
5.1 Any description given or applied to the Products is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
5.2 Where a sample of the Products is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so far as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing between the Parties, the Products shall be delivered “EX WORKS” Seller’s premise in Skellefteå, Sweden (in accordance with the latest prevailing version of “INCOTERMS”). The Buyer shall make all arrangements necessary to take delivery of the Products whenever they are tendered for delivery.
6.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Buyer shall, unless otherwise especially agree between the Parties in writing, have no right to damages for failure for any cause to meet any delivery date stated. Seller shall, however, immediately notify the Buyer in case there is reason to believe that the estimated date of delivery of the Products will not be met. The Buyer shall be entitled to cancel the delivery in question in case of significant delay and when such significant delay causes the Buyer considerable inconvenience conditional upon that the delay is not a consequence of force majeure in accordance with section 13 below.
6.3 Unless otherwise agreed in writing between the Parties, it is presumed that the agreed quantity of the Products should be delivered evenly apportioned during the contract period, if delivery during a certain period is agreed between the Parties. In the event of successive deliveries, each delivery shall be considered as a separate sale and failure by the Seller to deliver any one or more of the instalments in accordance with these General Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat any other related contract as repudiated. In case of delivery on call, any call-off shall be made in reasonable time before the desired delivery date with regard to quantity, place of delivery and other circumstances. A call-off is not binding upon Seller unless accepted in writing by Seller.
7. DEFECTS AND SHORTAGE
7.1 The Buyer is exclusively responsible for detailing the specification of the Products, for ascertaining the use to which they will be put and for determining their ability to function for that purpose.
7.2 Should the Products, as delivered, not conform with the specifications agreed in writing or mandatory applicable laws or regulations in the country where the Products is manufactured, or should the quantity of delivered Products deviate from the agreed quantity, Seller shall, at its own discretion and at its own cost, either deliver new Products or refund such proportion of the purchase price received corresponding to the relevant defect or shortage. Seller shall in no event be liable for defects or shortage of Products when caused by the Buyer’s inappropriate or improper use or storage.
7.3 The Buyer shall carefully examine the Products immediately upon delivery and without delay report to Seller in writing any defects or shortage as set forth in section 7.2 above. Any claim from the Buyer must, in order to be valid, be made to Seller prior to the Products or any part thereof is used or put into production. Any claim towards Seller on account of any defect or shortage shall, in any case, be deemed waived by the Buyer unless submitted to Seller in writing not later than twenty (20) days from the Delivery Date. Seller shall be given reasonable opportunity to investigate all claims from the Buyer.
7.4 Any notice of any claim shall be specified and state the alleged defect or shortage as well as the Delivery Date of the Products. Seller shall be entitled to examine any delivery with an alleged defect or shortage. Seller shall, in the event Seller accepts to deliver Products, at its own cost, collect the defective Products.
8. RISK AND RETENTION OF TITLE
8.1 Risk of damage or loss of the Products shall pass to the Buyer at the time when the Seller notifies the Buyer that the Products are available for collection.
8.2 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these conditions, the property in the Products shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price of the Products and of all other Products agreed to be sold by the Seller to the Buyer for which payment is then due.
8.3 Until such time as the property in the Products passes to the Buyer, the Buyer shall hold the Products as the Seller’s fiduciary agent, and shall keep the Products separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until payment of the Price the Buyer shall not be entitled to resell or use the Products.
8.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Seller. The Seller shall be entitled to recover the Price notwithstanding that property in any of the Products has not passed from the Seller.
9. INSOLVENCY OF BUYER
9.1 If the Buyer fails to make payment for the Products in accordance with the contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer’s property or the Products or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented of if a receiver, administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law or if any such matter as provided for in this section is reasonably apprehended by the Seller all sums outstanding in respect of the Products shall become payable immediately.
9.2 The Seller may in the circumstances set out in section 9.1 above also in its absolute discretion, and without prejudice to any other rights which it may have, exercise any of its rights pursuant to section 8 above.
10.1 Seller guarantees that the Products comply with the technical specifications and products documentation that are found on www.fotonic.com at the time of purchase. Should the specifications and products documentation no longer be available on the website, the documents can be ordered by sending an email to email@example.com. Buyer is also recommended to print the technical specifications and the other product documentations in connection with the purchase.
10.2 Seller standard hardware Products are warranted against defects in materials and workmanship for a period of one (1) year from the date when the Products are delivered to Buyer in accordance with these General Conditions. The warranty is conditional upon i) the Products being used and maintained in accordance with the instructions in the product documentation, ii) the Products being used and maintained by professional and trained personnel and iii) original spare parts are used during the guarantee period. Seller is not liable for problems or damages caused after the Products have been repaired or modified by Buyer or by other persons than persons appointed by Seller. Seller shall moreover not be liable for any damages caused due to incorrect use of the Products.
10.3 All standard software Products are licensed to Buyer under the terms of the appropriate Seller software license. For a period of ninety (90) days from the Delivery Date, Seller software Products (when properly installed on Seller hardware Products) (a) will substantially conform with the descriptions in the accompanying written materials if properly used in accordance with the procedures in such documentation, and (b) the medium on which the software product is recorded will be free from defects in materials and workmanship under normal use and service. Any replacement of a licensed software product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
11. PRODUCT LIABILITY
11.1 Seller shall not be liable in relation to any bodily injury or damage to property caused by the Products (product liability damage) if such occurs after the Products has been delivered, unless the relevant injury or damage has been caused solely by defects in the Products as qualified in section 10.1 above and provided that such defects have been caused by negligence on the part of Seller.
11.2 If Seller incurs liability towards any third party due to the Products delivered to the Buyer and given that Seller is not liable in relation hereto under these General Conditions, then the Buyer shall indemnify, defend and hold Seller harmless in relation to any such liability.
11.3 Seller’s total liability for damages caused by a Product and as set forth in section 11.1 above shall be limited to the Price for the Product that has caused the damages, unless otherwise is stipulated under mandatory laws or regulations. Any claim towards Seller on account of bodily injury or damage to property as described in section 11.2 shall be deemed waived by the Buyer, unless submitted to Seller in writing not later than thirty (30) days from the date the Products or any part thereof was used or put into production.
12. NO MANUFACTURE OF WEAPONS OF WAR OR DESTRUCTION, OBSERVANCE OF EXPORT LAWS
12.1 Buyer shall not use the Products delivered by Seller for the purpose of development, design, manufacture, use or storage of any weapons of war and destruction, including but not limited to nuclear weapons, biological weapons, chemical weapons and missiles (“Weapons”). Buyer shall not sell, lease or otherwise dispose of the Products delivered by Seller, directly or indirectly, to any customer using the Products in the development, design, manufacture, storage or operation of Weapons.
12.2 Buyer shall not export or re-export, directly or indirectly, the Products delivered by Seller without the authorization required under export control laws and/or regulations of any countries claiming jurisdiction over the contracting parties.
12.3 Buyer shall not re-export, directly or indirectly, the Products delivered by Seller to any country against which any sanction is imposed under certain resolutions of the Security Council of the United Nations for as long as such resolutions remain valid and effective and as far as the Products delivered by Seller remain prohibited to be exported to such country.
12.4 Products are not designed for use in any life support and/or safety equipment where failure to perform can reasonably be expected to result in personal injury or death. Buyer uses or sells Seller products as a component of life support and/or safety applications at Buyer’s own risk and agrees to defend, indemnify and hold harmless Seller from any and all damages, claims, suits or expense resulting from such use or sale.
12.5 In the event Buyer breaches any provision regarding Weapons, life support, safety equipment and observance of export laws, Buyer shall be liable to Seller for all direct and indirect damage sustained by Seller due to such breach. Seller shall in such an event have the right to terminate the contract with Buyer forthwith without any liability towards Buyer. Furthermore Seller shall not be obliged to accept or fulfill any orders which might contravene any export control laws, rules and/or regulations of any relevant countries or the provisions regarding Weapons and observance of export laws.
13. LIMITATION OF LIABILITY
Seller shall have no liability in relation to the Products except as specified in these General Conditions. For the avoidance of doubt, Seller shall, notwithstanding anything to the contrary herein, under no circumstance whatsoever be liable for any loss of production, loss of profit or any other pure economic loss or damages or any indirect or consequential loss, costs or damages, irrespective of if such has been caused by a defective, or shortage of, Products or not. The Seller´s aggregate liability will, however, not exceed 20 % of the aggregate amounts paid by the Buyer to the Seller for purchased products. This limitation of Seller’s liability shall, however, not apply in case Seller is proven guilty of gross negligence.
14. FORCE MAJEURE
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part of it.
The failure by either party to enforce at any time or for any period any one or more of the conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all conditions of these General Conditions.
If any term or provision of these General Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these General Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
17. NO SET OFF
The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.
18. DISPUTES, GOVERNING LAW AND JURISDICTION
18.1 Any dispute arising out of or in connection with the delivery of Products shall be finally settled by arbitration in accordance with the Rules of Arbitration Institute of the Stockholm Chamber of Commerce. The arbitration proceedings shall take place in Stockholm, Sweden. The Rules for Expedited Arbitrations shall apply if the amount of the dispute does not exceed SEK one million (1,000,000). The amount of the dispute shall be considered the amount the plaintiff claims at the beginning of the procedure, excluding claim of interest. Seller shall also be entitled to apply directly to any competent court of law, in cases of default in payment.
18.2 These General Conditions and any other agreement between Seller and the buyer shall be governed by Swedish law, without regard to its principles of conflict of laws, except that the regulations regarding defects and remedies set out in the Swedish Sales of Products Act and the Swedish law on International Sale of Products shall not apply.