TERMS & CONDITIONS
HIAB – GENERAL SALES TERMS AND CONDITIONS
1. Object of the Contract and Applicability
The object of the Contract shall be in accordance with the proposal of the Seller. These general terms shall be applied to all deliveries from the Seller to the Buyer following the first time they have been referred to in the Seller’s proposal or order confirmation, unless otherwise specifically agreed.
“Buyer” shall mean the addressee of the Seller´s proposal and the Buyer of the Equipment.
“Confidential Information” shall mean any design, drawings, specifications, test results, performance data, business practices, procedures, improvements, know-how, inventions, reports, financial data or other information obtained by a Party from the other Party under this Contract.
“Contract” shall mean the contract between the Seller and the Buyer based on (i) the Seller´s proposal and the Buyer´s acceptance thereof or (ii) an order from the Buyer based on Seller’s proposal and an order confirmation of the Seller. These terms and conditions shall form an integral part of the Contract by reference in the Seller´s proposal or order confirmation.
“Contract Price” shall mean the total price specified in the Contract, with any agreed changes to it.
“Delivery” means completion of the delivery of the Equipment as defined in the proposal.
“Equipment” shall mean the documentation, equipment and/or services to be delivered to the Buyer as specified in the Seller´s proposal.
“Equipment Unit Price” shall mean the price of a single unit of Equipment specified in the proposal to the Buyer, with any agreed changes to it.
“Seller” shall mean the Hiab entity making the proposal and entering into Contract with the Buyer.
“Warranty Terms” shall mean the standard warranty terms and conditions of the Seller for the Equipment.
3. Contract Price and Payment Terms
3.1 The Contract Price shall be invoiced and the Buyer shall pay the Seller the Contract Price in accordance with the payment terms stated in the proposal and any agreed changes thereto. In case no payment term is stipulated in the proposal, payments shall be made within thirty (30) days after the date of invoice. Delay interest shall be 8 percentage points above the rate of the main refinancing facility of the European Central Bank in force on the due date of payment, calculated from the due date until the date of actual payment.
In case of delayed payment by the Buyer, the Seller may suspend the performance of his contractual obligations until he receives payment.
3.2 The Contract Price is exclusive of any taxes or duties or other charges or levies of any nature whatsoever on the Equipment under the laws of the country of destination, which shall be paid directly by the Buyer. In case the Seller is obliged to pay or collect any such taxes, duties or charges, such amounts shall be paid by the Buyer in addition to the Contract Price.
4.1 The Seller´s Delivery shall be implemented according to the time schedule set forth in the proposal. The Delivery term of the Equipment shall be interpreted in accordance with the 2010 edition of INCOTERMS. If the proposal does not state any term, it shall be Ex Works (INCOTERMS 2010).
4.2 All dates of Delivery and periods within which Delivery shall be made whether communicated to the Buyer or not are estimates only. The Seller shall notify the Buyer if the estimated Delivery time will not be met and if so, when Delivery can be made. Unless otherwise specifically agreed in the proposal of the Seller, the Buyer shall not have the right to claim for costs or damages for delayed deliveries or to refuse to take delivery of the products.
4.3 In case of changes in the circumstances during the Delivery, which the Seller was unable to take into account while preparing the proposal, or in case a matter in the Buyer´s control causes delay or hinders the Seller´s performance, the time for Delivery shall be extended accordingly and the Seller is entitled to claim for compensation for additional costs arising thereof, together with reasonable overhead and profit.
4.4 Upon Delivery of Equipment and not later than within one (1) week from Delivery, the Buyer shall carry out an inspection with respect to the conformity with specifications, missing parts and damages of the Equipment. In the event that the Buyer finds any unsatisfactory conditions, the Buyer shall immediately inform the Seller of its claim in writing, however, no later than (10) days after date of Delivery. The Seller shall not be liable for any claim made by the Buyer after said time period.
4.5 Unless otherwise identified in a proposal, quoted prices do not include the cost for export or special packaging of goods and the Buyer shall assume and be responsible for those extra costs associated with such export and packaging.
4.6 Returning of goods depends on the location of the Buyer, Product type, Age of the product and other variants. Not all goods may be returned. If the Buyer wishes to return any goods, the Buyer should contact Hiab customer service for more details.
5. Force Majeure
5.1 Each Party shall be entitled to suspend performance of his obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: labor disputes and any other circumstances beyond the control of the Parties such as but not limited to fire, war or warlike actions, piracy, mobilization, requisition, embargo, acts of God, currency restriction, insurrection, government action, restrictions in use of power and defects or delays in deliveries by subcontractors caused by any such circumstance referred to in this clause. The Party affected by an event of Force Majeure shall promptly notify the other Party of the event and its restoration in writing.
5.2 Each Party shall be entitled to terminate the Contract by a notice in writing if the Delivery is or will be delayed for more than six months due to Force Majeure. If the Contract is so terminated, the Seller is entitled to receive payment for the work already made and portion of Equipment already delivered and materials ordered but not yet delivered to the Buyer which the Seller cannot utilize for other customers.
Either of the Parties may request changes in the Equipment. After receipt of Buyer´s request or after having itself proposed a change, or after the Seller becomes aware of any act, occurrence (including but not limited to variations due to acts of governments, changes in laws, codes, regulations, failure of the Buyer to provide required and accurate information or proceed with his contractual obligations) and /or omissions which give rise to the need for a change, the Parties shall agree upon the adjustments to be made in the Contract Price, Schedule and/or other terms of the Contract accordingly. The Seller shall not be obliged to carry out any changes before the Parties have agreed, in writing, upon the adjustments to be made in the terms affected by the variation.
7.1 The Seller warrants that the Equipment shall be free from defects in materials, design and workmanship, as specified in the standard Warranty Terms of the Seller made available to the Buyer. Unless otherwise stipulated in the Warranty Terms the warranty shall be as follows;
7.2 The foregoing warranty is exclusive and in lieu of all other conditions, guarantees or warranties, including any warranty of merchantability or fitness for purpose. Correction of nonconformities on the conditions and in the manner and within the period of time provided in the Warranty Terms shall constitute the entire liability of the Seller under the warranty.
7.3 Any verbal and/or written purchase order, release order or other form issued by the Buyer to confirm any order issued pursuant to a proposal or receipt of any of the products identified in a proposal shall serve as conclusive proof that the Buyer has reviewed and agrees to be bound by the standard Warranty Terms of the Seller
8. Liability of the Seller
8.1 The Seller shall in no event be liable for any special indirect, incidental or consequential damages, such as, but not limited to, loss of production, cost of capital, loss of profit, loss of use or increased expense of use of equipment or plant, loss of contracts, or claims of customers for loss of use or production. The remedies of the Buyer set forth in this Contract are exclusive.
8.2 In no event shall the Seller’s liability under this Contract exceed fifteen (15) per cent of the total Contract Price.
8.3 The Seller shall not be liable for any damage to property caused by the Equipment after it has been delivered and whilst it is in the possession of the Buyer, or for any damage to products manufactured by the Buyer or to products of which the Buyer´s products form a part. If the Seller incurs liability towards any third party for such damage to property, the Buyer shall indemnify, defend and hold the Seller harmless.
8.4 The Buyer is entirely responsible for the choice of the products. The Seller is free from any responsibility should it become apparent that the products do not meet the specific needs of the Buyer, when the Products do meet the specifications described by the buyer.
8.5 All illustrations, measurements, capacities, weights and other details regarding equipment and parts, price lists, offers included in the Seller’s website are an approximation and informative and thus given free of obligation.
8.6 The limitation of the Seller´s liability shall not apply where the Seller has been guilty of gross negligence or willful act.
9. Confidentiality and Intellectual Property Rights
9.1 The Buyer shall be entitled to use the drawings, documents and information furnished by the Seller only for the purpose of operation and maintenance of the Equipment. The Buyer may disclose the information only to those employees of the Buyer who require access to the Confidential Information for the purposes of carrying out the operation of the Equipment. The Buyer may not disclose such Confidential Information to a third party without prior written consent of the Seller. The Buyer shall take all necessary precautions to prevent an unauthorized disclosure or use of Confidential Information by the Buyer's employees, subagents or other intermediaries. The confidentiality obligation shall survive the termination this Contract.
9.2 Nothing contained herein shall be construed as transferring any patent, utility models, trademark rights or copyrights in Equipment covered by this Contract, and all such rights are hereby expressly reserved to the true and lawful owners thereof.
9.3 Hiab shall at all times have the right to install, maintain and dismantle automated remote diagnostics system or similar sensor-based connectivity capabilities (“Connectivity”) in and from the Equipment; and (ii) access, send, receive, collect, store and use any and all information and data gathered through the Connectivity including but not limited to information concerning operation, operating environment, movement, condition, logon, location and similar information relating to the Equipment (the “Information”).
The Customer shall not in any way remove, disable, or interfere with the Connectivity or the Information. Any intellectual property rights or other right and title in and to the Connectivity features and the Information and all their further developments shall at all times be and remain the exclusive property of Hiab.
10. Termination and Suspension
The Seller may terminate this Contract with immediate effects if:
- The Buyer breaches the Contract and has not remedied the situation within 30 days from the receipt of written notice thereof;
- If the Buyer becomes insolvent, bankrupt, enters into reorganization or a threat thereof is evident
In case of termination due to the Seller´s default, the Seller shall be paid for the value of the work completed to such date, pursuant to this Contract. If the Seller terminates the Contract in whole or in part due to the Buyer’s fault, the Buyer shall compensate the Seller for the loss it suffers because of the Buyer’s default. In such case the compensation shall cover direct costs as well as compensation for lost profits and overhead.
The Buyer cannot unilaterally depart from the Contract in any way whatsoever. The Buyer recognizes that the Contract excludes the application of any of the Buyer’s terms and conditions.
11. APPLICABLE LAW, JURISDICTION AND INDEMNIFICATION
11.1 This Contract is to be construed, governed by and interpreted in accordance with the substantive laws of Finland, without regard to choice of law or conflict of laws provisions. The Convention of Contracts for the International Sale of Goods (CISG) shall not apply to this Contract. Furthermore, the parties hereby irrevocably consent to jurisdiction of Finland.
11.2 Disputes arising from or in connection with this Contract are to be finally settled by arbitration by one arbitrator. The arbitrator shall be appointed by the Board of Arbitration of the Central Chamber of Commerce of Finland and the Rules of the said Board are to be followed in the arbitration proceedings. The arbitration shall be conducted in the English language in Helsinki, Finland.
11.3 Buyer hereby agrees to indemnify defend and hold harmless Seller from any claim, suit, action or proceeding arising out of Buyer’s use, sale or ownership of the Equipment.
11.4 The Buyer and Seller agree that these Terms and Conditions as well as all other documents relating to these Terms and Conditions, including notices, be drawn up in English only.