Terms and Conditions
SALGROM TECHNOLOGIES INC. GENERAL TERMS AND CONDITIONS OF CONTRACT (Effective / Valid from 1. November 2015)
1. INTRODUCTION AND GENERAL
These General Terms and Conditions (hereinafter the “Conditions”) shall, unless otherwise agreed in writing, apply to all international sale of Products, Technologies and Services by any authorized member, agent or representative of Salgrom Technologies Inc. (hereinafter the “Supplier”) to a purchaser (hereinafter the “Buyer”). For the purposes of these terms and conditions, the Services include, among other things, consultancy, design and supervisory activities, installation, assembly, manufacturing, renovation, repair, inspection, measuring, analysis, commissioning, testing, maintenance and life-cycle activities. Supplier’s offers are non-binding until accepted and confirmed by a purchase order issued by Buyer in compliance with these Conditions, which is acknowledged by Supplier (any such acknowledged purchase order, a “Contract”). These Conditions shall form an integral part of the Contract.
2. CONFIDENTIALITY, INDUSTRIAL PROPERTY AND NON-DISCLOSURE
Neither party shall copy or disclose to a third party any document or data provided by the other party without the prior written consent of the other party or use them for purposes other than those for which they were provided. Intellectual property rights associated with the Products or any document or data provided by Supplier in connection therewith shall remain Supplier’s property.
Buyer shall defend, indemnify and hold harmless Supplier against all claims, losses and damages, including reasonable attorneys fees, arising out of or resulting from any reuse, modification, reproduction or publication of Supplier’s intellectual property documents or data.
The Buyer acknowledges that any knowledge or information, including prototypes, designs, drawings and data, which Supplier may have disclosed to Buyer in connection with the order of the Products and/or Services shall, at all times, remain the exclusive property of Supplier and Buyer shall acquire no interest in, or rights with respect to such proprietary information. Buyer further acknowledges that such proprietary information constitutes a valuable, special and unique business asset of Supplier and Buyer will not now or at any time in the future use any such information in any manner or disclose any such information to any person or entity. Both parties shall treat confidential information from the other party with the same care observed for their own confidential information and they shall not pass on this information to third parties unless other party’s written permission.
3. TRADE MARKS AND TRADE NAMES
The Buyer acknowledges that all brand names, logos and trademarks incorporated onto or associated with the Products purchased hereunder, remain the exclusive property of Supplier. Buyer does not acquire any rights in any of the purchased Products and Buyer will not: (a) attach any additional trademarks or trade names to the Products or (b) remove, alter or overprint any of the existing marks or trade names provided hereunder. Buyer shall not make any use of the Supplier’s marks except otherwise authorized in writing by Supplier.
4. DRAWINGS, STATEMENTS AND DOCUMENTS
Information included in catalogues, brochures, illustrations, drawings, technical statements and datasheets etc. is only binding for Supplier if and insofar as this is explicitly agreed in writing. Construction, manufacturing and detailed drawings are not provided by Supplier unless the parties have agreed on this in writing. If Supplier provides foundation or set-up drawings, these only serve as orientation. These drawings are not based on static or dynamic calculations. Any study, specifications, documentation, description, plan, scheme or drawing prepared by Supplier or coming from Supplier is and remains the exclusive property of Supplier. The Buyer shall only use this information for the specific purposes of the tendering and/or offer and insofar as this tendering and/or offer was entrusted by Supplier.
The Buyer commits that it, it’s employees and any third parties it engages shall consult and follow the assembly manual and technical manuals, including the manual for the specialist or installer, which are disclosed by the contractor in connection with the Products supplied by it, in printed version as well as via the websites of the partner companies of the Supplier that manufacture these Products.
The prices stated by or agreed with the Supplier are case by case basis, either an binding and fixed prices according to separate offer/quote or listed export, -wholesale or -retail net prices, or therefore, among other things, excluding VAT/TAX, and only apply for delivery “Ex works” or warehouse of unpackaged Products, unless the parties make other agreements in writing. The prices also exclude the cost of wrapping, packaging, loading, transport, unloading, insurance, installation, assembly, permits and/or other services. Prices stated by or agreed with Supplier are based on the cost price at the moment of the offer or acceptance of an assignment by Supplier. If the cost price subsequently increases, Supplier has the right to pass on the corresponding price increase to the Buyer.
6. ORDERS, CANCELLATIONS AND MODIFICATIONS
All orders shall be placed in written form (“purchase order”). Supplier shall have no obligation nor shall be bound, with respect to any purchase order, unless Supplier has accepted the purchase order. At its sole discretion, Supplier may elect to reject any purchase order submitted by Buyer. Buyer may not change or cancel any purchase order after it has been confirmed by Supplier unless Supplier has agreed in writing to such change or cancellation.
Once placed, purchase orders may be cancelled or modified by the Buyer only with the written consent of Supplier. If such consent is given and a purchase order is cancelled or modified, the Buyer shall reimburse Supplier for all expenses (as determined by the Supplier) incurred prior to such cancellation. When agreed in written, the orders may be cancelled by Buyer prior to shipment by at least 45 days prior notice, subject to a cancellation charge as determined by Supplier in its sole discretion. The Supplier shall be entitled to invoice the Buyer when Supplier is ready to ship the Products, if there is a delay in shipment as herein provided.
7. TERMS OF PAYMENT AND OWNERSHIP
Unless otherwise agreed, payment shall be made by bank remittance in the currency and to the bank account set forth in the Supplier’s invoice and/or wire transfer instructions within fourteen (14) days following the date of the invoice (credit account customers). 30% of the total invoice amount shall be made PIA (Payment In Advance). The rest of the payment shall be made in full at maturity date of invoice without any set off, counterclaim or deduction.
Buyer shall pay interest on overdue payments from the maturity date until the actual date of payment at the rate of nine percent (9.0%) per month, compounded annually. Buyer shall pay Supplier all costs related to the collection of overdue amounts, including reasonable attorneys’ fees. In the event any payment is more than thirty (30) days late, Supplier shall be entitled to suspend or terminate the Contract by written notice to Buyer, and such remedies shall not be exclusive of Supplier’s additional rights under contract or law.
Title to the Products shall pass to Buyer only when Supplier has received payment in full. The Supplier may as a precondition for delivery of Products, request 100% advance payment and/or that Buyer pays or provides security covering any unpaid amount already owed to Supplier. To become a credit account customer the Buyer must provide sufficient financial information and fill an application for assessment.
8. DELIVERY, ACCEPTANCE AND RETURNS
The delivery period for the Supply of Products commences after Supplier has in its possession all objects, documents and information to be provided by the Buyer and any agreed advance payment has been received. All references to trade terms shall be interpreted in accordance with Incoterms 2010. Unless otherwise agreed in writing, the Products shall be deemed to be sold “Ex works”. Supplier may make partial shipments in its sole discretion and unless otherwise agreed, select the method of transportation and route of any shipment. Buyer pays all freight costs in addition to the price. Buyer is responsible for addressing lost or damaged shipments with the shipper. Any date or period for delivery stipulated or quoted shall be deemed to be an estimate only. Supplier in no way guarantees that ordered Products will be shipped in accordance with estimated shipping schedules. Packing materials shall not be returned to Supplier.
The Buyer must immediately inspect the Products upon receipt of every delivery. If no inspection or testing was agreed, any non-conformity and/or visible defect must be reported to Supplier immediately and at the latest within 7 working days after receipt of the Products, failing which any claim in respect of Supplier shall lapse. Unless Buyer has notified Supplier of any shortages or damage within seven (7) days following delivery of the Products, no returns of Products will be permitted or allowed by Supplier. In the event of a non-conformity and/or visible defect in the Products supplied, which is properly discovered, Supplier has the right to replace these Products without the Buyer being able to cancel the order and/or claim any damages. The colouring, shading and/or aesthetic aspect of the Products may never be reason to refuse to accept them.
Once the Products have been assembled, altered or treated in any way by the Buyer, no complaints, if any, shall be accepted. With regard to the Services, it applies that the signing of performance sheets and/or a P.O. and/or an amendment and/or a cover sheet by the Buyer serves as indisputable evidence of the Buyer’s acceptance of the materiality of the performance reported therein and no complaints on this can be accepted. Complaints about the work performed and services rendered must in all other cases be reported immediately after their discovery and at the latest within 5 working days after performance thereof, in writing, with a detailed description of any possible shortcoming.
If Buyer anticipates that it will be unable to accept the delivery of Products at the time set forth in the Contract, Buyer shall notify Supplier in writing stating the reason and the time when Buyer anticipates being able to accept the delivery. Buyer shall pay the part of the Contract price that becomes due at the delivery as if the delivery had taken place. Supplier may by notice require Buyer to accept the delivery within a final reasonable time. Any additional costs related to such delay shall be borne by Buyer. The Supplier has the right to suspend the performance of its obligations under the Contract if it is reasonably clear from the circumstances that Buyer will not be able to perform its obligations as stated in the Contract. All Products returned to Supplier must be delivered with shipping charges prepaid.
9. INSPECTION, TESTING AND COMMISSIONING
The delivery period for the inspection, testing and/or commissioning only starts from the day on which the Buyer has satisfied its obligations and/or prior or preparatory conditions in every stage of the performance. Details on the assembly, installation and operational completion shall be arranged in mutual consultation and set down in writing – insofar as it must be performed by Supplier unless there is no competent engineers or technicians available by the Buyer.
The Buyer is required to enable Supplier to execute its Supply of Products and Services without restrictions. The Buyer must provide Supplier in a timely manner with, among other things, technical, maintenance and functional product specifications of items on which, with which or in connection with which work must be performed. If the work is performed on location, the Buyer must also provide an accessible and safe working environment in accordance with the applicable regulations and instructions and ensure the presence of sufficient guidance, lighting, power and power points, lifting equipment and similar equipment, tools of an extensive or special nature, small supplies and spare parts, all at the expense and risk of the Buyer.
If Supplier performs Services on location, the work performed by Supplier does not include the preparatory, related and/or necessary excavation, foundation, breaking, cutting, brickwork, plastering, concrete, metalworking, carpentry, painting, plumbing and such activities, or paving, sewerage and scaffolding work. The Buyer must take care of these operations.
The Buyer is required to cooperate without delay with any possible agreed inspection, testing and/or commissioning. If the Buyer does not cooperate on time or at the agreed time with the inspection or testing, the Supply of Products and/or Services is regarded as having been approved. If the Buyer does not cooperate on time or at the agreed time with the inspection, testing or take-up, the Supply of Products and/or Services is regarded as completed. Supplier has the right to compensation from the Buyer for damage and costs resulting from the refusal of or delays in cooperation with the inspection, testing and/or commissioning.
The Buyer must report any non-conformity and/or visible defects that can be discovered during the inspection and/or testing immediately and at the latest within 5 working days of discovery, failing which any claim in respect of Supplier on these grounds shall lapse. Supplier shall be given the opportunity to remedy any shortcomings that emerge in inspection and/or testing before the Supply of Products and/or Services can be regarded as rejected. If the Buyer does not utilize the possibility of inspection or testing, the Supply of Products and/or Services will be regarded as approved.
Supplier shall repair or replace, at its sole discretion, any defect in the Products, which appears during the warranty period as a result of defective material or manufacturing, provided that any replaced Product shall upon Supplier’s request be returned to Supplier at Supplier’s cost. Warranty is subject to that the Products have been used with due care, properly maintained and inspected, properly stored, have not been subjected to excessive load or use, pressures, freeze damage, extreme high temperature or exposed to highly corrosive atmospheres and were suited to the function being performed and were properly installed. Buyer shall immediately take appropriate steps to prevent any defect from becoming more serious. Replaced Products shall become Supplier’s property. Delivery of replaced or repaired Products will be made in accordance with the original Contract delivery terms.
The warranty period for the Products begins on the date of delivery and ends twenty four (24) months from the date when the Product is placed in service or thirty (30) months from the date of delivery, whichever occurs earlier. The warranty for repaired or replacement Products shall be subject to the same terms, conditions and limitations of liability as those applicable to the originally supplied Product. Under no circumstances shall the warranty period of any Product (whether as originally supplied or as repaired or replaced) extend beyond the date that is twenty four (24) months following the date of commencement of the original warranty period as stipulated above.
In case the Products are ready for delivery but Supplier is not able to deliver the Products due to reason attributable to Buyer, the warranty period as stated above, shall commence from date the delivery should have taken place according to the Contract. Supplier shall not be liable for any defect due to or arising in connection with: (1) any materials, components, tools, designs or software provided by Buyer; (2) negligence or wilful misconduct of Buyer; (3) parts, accessories or attachments other than those supplied as Products by Supplier; (4) improper service work, installation or alterations carried out by Buyer; (5) normal wear and tear; (6) use of unsuitable material or consumables by Buyer; (7) fluctuation in the grid; or (8) any use, service or operation of the Products which is not in conformity with manuals, instructions or specifications provided by Supplier or which is otherwise not in accordance with normal industry practice.
If after Supplier’s warranty investigation it is found that Buyer does not have a warranty claim within the scope of these Conditions, then Buyer shall be responsible for all applicable costs and expenses for such inspection, repaired or replaced components or other service work. This Section #10 sets forth the only warranty applicable to the Products and is in lieu of any other warranties, guarantees, obligations and liabilities express or implied including warranties, guarantees, obligations or liabilities against non-conformity or defects.
11. LIABILITY AND REMEDIES
AS THE USE AND OPERATIONAL CONDITIONS OF EXTINGUISHING SYSTEMS ARE OUTSIDE OF SUPPLIERS CONTROL AND INFLUENCE, IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INDIRECT, CONTINGENT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED OR ARISING (INCLUDING WITHOUT LIMITATION) FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS OR REVENUE OR ANTICIPATED SAVINGS, THE COST OF SUBSTITUTED EQUIPMENT, COMPONENTS OR PARTS, DAMAGES TO FACILITIES OR OTHER PROPERTY (INCLUDING DAMAGE TO GOODS OWNED BY BUYER), DAMAGE TO ANY EQUIPMENT OR PROPERTY, LOSS OF DATA, BUSINESS INTERRUPTION LOSS, COST OF LABOR FOR THE REMOVAL OR REINSTALLATION OF THE EQUIPMENT, COMPONENTS OR PARTS OR ANY PART THERE OF, COSTS FOR ANY ADDITIONAL TESTS, DEBRIS REMOVAL, OR FOR LOSS OF TIME OR USE OF ANY EQUIPMENT, INSTALLATION SYSTEM, OPERATION OR SERVICE. THIS LIMITATION ON SUPPLIER’S LIABILITY SHALL APPLY TO ANY LIABILITY FOR BREACH OF SUPPLIER’S OBLIGATIONS UNDER OR NOT IN CONNECTION WITH THE CONTRACT, WHETHER BASED ON WARRANTY, FAILURE OF OR DELAY IN DELIVERY OR OTHERWISE.
Buyer’s exclusive remedy against Supplier for any breach of or default under this contract (including any breach of warranty), any act or omission of Supplier (including its negligence), or any defect in any Products ordered or delivered hereunder (including under strict liability in tort and breaches by reason of alleged infringements) shall be, at the Supplier’s option, (a) the repair or replacement of Products with respect to which claims are made or (b) the refund of the purchase price for such Products, less a reasonable charge for any actual use thereof which has been made by the Buyer. Should a Product fail in normal service and under normal conditions through no fault of Buyer/Customer/User during the warranty period,
Buyer/Customer/User shall notify Supplier in writing within 14 days of observing such condition. Supplier will, at its option, either repair or replace the Product proven to be defective. All other claims must be made within 30 days of receipt by Buyer of the Products delivered hereunder. Notwithstanding any other provision of the Contract, Supplier’s aggregate, maximum liability under the Contract/Agreement shall not exceed thirty percent (15%) of the Contract price. Each party shall obtain a waiver of all rights of recourse and subrogation against the other party from its insurers as well as indemnify and hold the other party harmless for all claims of or by either of the parties insurers. Before using, the Buyer/Customer/User shall determine the suitability of the Product for its intended use and assume all risk and liability whatsoever. Supplier shall not be liable either in tort or in contract for any loss, or damage, direct, incidental or consequential, arising out of the use of or the inability to use the Product.
12. EXPORT CONTROLS
The Buyer acknowledges that the Products to be supplied could be subject to national and/or foreign statutory provisions and regulations for export controls, and may not be sold, leased out or otherwise transferred or used for purposes other than those agreed without export or re-export permits from the competent authorities. The Buyer declares it shall adhere to such provisions and regulations. The Buyer is aware that certain provisions and regulations may change and thereafter still apply to the Agreement, as formulated at the time the Agreement was concluded. Supplier’s acceptance of any assignment depends on the obtaining of the export and/or re-export permits from the competent authorities in the countries of origin of the Products offered, including parts, components and/or technology, to the extent legally required. The refusal, revocation or invalidity of the aforementioned export and/or re-export permits as the result of events outside Suppliers control relieves Supplier of its contractual obligations relating to the supply of the particular Products, Technology, and/or services and of any liability on its part for damage that could arise from this. Offer and order acceptance depend on receipt of a declaration of proposed use, if and insofar as required by law or by Supplier.
13. IDEMNIFICATION AND FORCE MAJEURE
The Buyer will forever defend, indemnify and hold harmless Supplier from and against any and all claims, losses and expenses (including without limitation, reasonable attorneys fees), on account of any injuries or deaths of any person (including Buyer’s employees) or damage to any property arising from Buyer’s use, unloading, handling or storage of the Products sold hereunder, except to the extent that such damages are attributable to the Supplier’s gross negligence or willful misconduct. Neither Supplier nor Buyer shall be liable for any failure or delay in performing its obligations hereunder, or for any loss or damage resulting therefrom, caused by or arising from an event of force majeure (“Force Majeure”), which includes without limitation, acts of God, wars whether declared or not, any events involving ammunitions of war, civil wars and riots, hostilities, public disorder, acts of terrorism and severe threat of terrorism, any measures taken by public authorities in connection with threat of terrorism, embargos, acts of civil or military authorities, fire, flood, accidents, strikes, failure of a subcontractor or sub-supplier to provide manpower, materials or parts caused by an event that qualifies under this Section #13, epidemics, unusually severe weather affecting either party, or causes beyond their control.
14. DUTIES, TAXES, FEES AND COMPLIANCE WITH LAWS
Buyer shall pay, where applicable, all duties, withholding and other taxes, customs fees and charges and all charges and fees by a classification or inspection society. All such documentation or approvals, which are required by applicable laws, and any applicable modifications of such laws, shall be the responsibility of and paid by Buyer.
15. ASSIGNMENT, SUBCONTRACTING AND NOTICES
The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e- mail. A notice or other communication shall be deemed to have been received if delivered personally, when left at the address referred, if sent by pre-paid first class post or recorded delivery, if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed or, if sent by fax, one Business Day after transmission.
16. GOVERNING LAW AND ARBITRATION
The Contract shall be governed by and interpreted in accordance with the laws in force at the registered office of Supplier, excluding the conflict of law rules applicable in such jurisdiction. Any controversy, claim or dispute between the parties hereto arising out of or related to this Contract shall be submitted to the International Court of Arbitration of the International Chamber of Commerce for final and binding arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with the said Rules. The arbitration proceedings shall be in the English language. Nothing contained in this Section shall preclude Supplier from bringing legal action or proceeding against Buyer for purposes of enforcement, injunctive relief or interim or remedial measures in the courts of any jurisdiction where Buyer or any of its property or assets may be found or located, and Buyer hereby irrevocably submits to the jurisdiction of any such court.
17. ENTIRE AGREEMENT
These Conditions and this Agreement expresses the entire understanding and Agreement of the parties with reference to the subject matter hereof and is a complete and exclusive statement of the terms of this Agreement and no representations or Agreements modifying or supplementing the terms of this Agreement, including Buyers documents, shall be valid unless in writing, signed by persons authorized to sign agreements on behalf of both parties. Any additional or different Terms or Conditions contained in Buyer’s purchase order or in any other correspondence shall be deemed objected to by Supplier and shall be of no force or effect.
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