Eltete TPM General Terms and Conditions of Sale
1. Scope
These General Terms and Conditions of Sale (the “Conditions”) shall apply to the sale and delivery of transport packaging products by Eltete TPM Ltd, Finland (the “Seller”) to its customers (the “Buyer”) unless otherwise expressly agreed in writing with respect to all or part of the provisions contained herein.
These Conditions will override any different or additional terms or conditions contained or referred to in an order form or other document or correspondence from the Buyer, and no addition, alteration or substitution of these Conditions will bind the Seller or form part of any contract between the parties unless they are expressly accepted in writing by a person authorised to sign on the Seller’s behalf. The Seller explicitly rejects the applicability of the Buyer’s (general or specific) purchasing terms and conditions or other relevant conditions.
It is acknowledged by the Buyer that these Conditions are not applied for delivery of any machinery by Eltete TPM Engineering, if not otherwise agreed in writing.
2. Orders
Any order sent by the Buyer to Seller for a certain product will be accepted entirely at the Seller’s discretion. A binding purchase agreement (the ”Contract”) between the Seller and Buyer shall be concluded when the Seller has sent an order confirmation to the Buyer provided that the Buyer has not objected to any changes included in the order confirmation by sending the Seller a written notice within 48 hours of receiving the order confirmation.
Difference of up to 5% less or more than the quantity ordered is permitted. The Buyer must accept delivery of products within these limits with no objection. Invoices will be adjusted to the quantity delivered.
3. Delivery
If the Seller fails to meet the agreed delivery (loading) time, the Seller shall inform the Buyer of the reason for the delay in writing, and will issue a new loading time.
The Seller shall not be liable for any losses or damages incurred by the Buyer due to delayed delivery. Notwithstanding the provisions of Clause 6 concerning the transfer of the title, the Buyer shall bear all risks of loss of or damage to the products from the time they have been delivered in accordance with Clause 4.
If a delivery or partial delivery is delayed due the Seller´s material negligence in starting work or carrying out other functions on time to execute delivery by the due date, the Buyer is entitled to cancel the Contract by giving written notice to the Seller.
Such cancellation may only be implemented if the delay is of considerable significance to the Buyer and the Seller has realised or should have realised this. The Buyer may not cancel the Contract if it has previously failed to object to a delayed delivery time upon receiving notice from the Seller. If the Buyer has raised such an objection, the Seller shall be given reasonable time to deliver. This clause contains the sole liability of the Seller for the delay, and the Seller shall not be liable for any other compensation, liability or other encumbrance arising from the delayed delivery, unless specifically agreed otherwise in writing.
If the Buyer fails to take delivery of the products on the agreed date, it shall be liable for all expenses incurred in connection with the delivery, as if the products in question had been delivered on the agreed date. If the Seller is still in possession of the products, the Seller may at its discretion arrange storage for the products at the Buyer’s risk and expense. The Seller may also terminate the Contract and claim damages from the Buyer.
4. Delay
The term of payment is 14 days net unless otherwise agreed in writing.
If the Buyer is delayed with any payment, the Seller shall be entitled to default interest at the rate of 10% per annum, calculated from the maturity date until the date of actual payment at the rate stated in the Order Acknowledgement. Possible partial payments will be deducted from the unpaid default interest.
If the Buyer fails to pay the purchase price or other payments by the due date, the Seller can discontinue the execution of any of its contractual obligations until all unpaid payments have been settled. If the Buyer has not paid within 60 days of the due date on the invoice(s), the Seller has the right to terminate the Contract in writing to the Buyer. The Seller is entitled to full payment for the products, even if the delivery has not been made in full. The Seller is also entitled to default interest and compensation for any losses incurred due to non-payment.
All prices are without taxes, customs duties or any other levies, unless clearly stated in the terms of delivery. The payment of all such taxes and duties shall be the responsibility of the Buyer. If the Seller is required by the applicable law to collect any such taxes from the Buyer, it may pay the same and add the amount thereof to its invoice.
5. Payment, Taxes and default interest
The term of payment is 14 days net unless otherwise agreed in writing.
If the Buyer is delayed with any payment, the Seller shall be entitled to default interest at the rate of 10% per annum, calculated from the maturity date until the date of actual payment at the rate stated in the Order Acknowledgement. Possible partial payments will be deducted from the unpaid default interest.
If the Buyer fails to pay the purchase price or other payments by the due date, the Seller can discontinue the execution of any of its contractual obligations until all unpaid payments have been settled. If the Buyer has not paid within 60 days of the due date on the invoice(s), the Seller has the right to terminate the Contract in writing to the Buyer. The Seller is entitled to full payment for the products, even if the delivery has not been made in full. The Seller is also entitled to default interest and compensation for any losses incurred due to non-payment.
All prices are without taxes, customs duties or any other levies, unless clearly stated in the terms of delivery. The payment of all such taxes and duties shall be the responsibility of the Buyer. If the Seller is required by the applicable law to collect any such taxes from the Buyer, it may pay the same and add the amount thereof to its invoice.
6. Transfer of title and retention of ownership
The products shall remain the property of the Seller until they are fully paid. The intellectual property rights contained in the products or in the packaging solutions shall never form part of a Contract and shall always remain the sole property of the Seller.
7. Liability for Defects
At any time within three (3) months after delivery, the Seller will, at its discretion, repair or replace free of charge any defective products or grant a reasonable allowance on account of the non-conformity (where the price has been paid and received by the Seller) provided that:
(a) the defects were not (in whole or in part) caused by improper use, storage, mishandling or overloading, and
(b) the defects are found, in the Seller’s reasonable opinion, to have arisen solely from the Seller’s faulty design, workmanship or materials.
The Seller does not assume any responsibility for the Products being fit for any particular purpose, unless otherwise expressly stated in writing by the Seller.
The Buyer is entitled to make claims with respect to a defect, only if it can prove that the products were defective when the risk for the products passed from the Seller to the Buyer.
The Seller’s obligations set forth in this Clause 7 are conditional upon the Buyer promptly notifying the Seller of any defects and, if required, promptly making the products available for correction. The Seller shall be given reasonable opportunity to investigate all claims regarding the products and no products shall be returned to the Seller until after inspection and approval by the Seller and receipt by the Buyer of written shipping instructions from the Seller.
The Seller’s responsibilities in case of defect shall be limited to repairing or replacing the Products (at the Seller’s option), or, at the Seller’s option, granting a reasonable allowance on account of the non-conformity. In no other way shall Seller be liable for any damages due to or with respect to a defect.
The maximum shelf life of a product is defined in the product specification.
8. Liability for damage caused by the products
The Seller shall not be liable for any loss of profit for damage caused by the products:
(a) to any (movable or immovable) property, or consequential loss due to such damage, occurring while the products are in the Buyer’s possession, or
(b) to products manufactured by the Buyer or to products of which the Buyer’s products form a part.
If a third party makes a claim for compensation against the Seller or the Buyer for loss or damage as referred to in this clause, the other contractual party shall immediately be notified thereof in writing.
In no event, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability or otherwise, shall the Seller be liable for loss of profit, revenue, business, contracts, opportunity, goodwill, use, production, anticipated savings, expenses, costs or similar loss; and/or any special, consequential, incidental, indirect, speculative, punitive or exemplary loss or damage, or compensation claims by the Buyer’s customers for any of the aforementioned cases of damage, and the Buyer agrees to defend and indemnify the company for any such claims by the Buyer’s customers.
9. Limitation of liability
The amount of damages payable by the Seller to the Buyer with respect to a certain Contract shall at all times be limited to the value of the products delivered and paid under such Contract.
Notwithstanding any other provision of these Conditions, the Seller shall under no circumstances be liable for loss of production, loss of profit, loss of use or any other consequential damages and/or indirect loss, whatever the cause may be.
10. Returns
The products that are to be repaired or replaced in accordance with these Conditions shall be sent by the Buyer to a place instructed by the Seller at the Buyer’s cost and responsibility. The Seller shall deliver the repaired or replaced Products to the original place of delivery or, provided the freight and other costs do not exceed the original place of delivery, to a place instructed by the Buyer.
11. Intellectual property rights
The Buyer represents and warrants that the products that are based on Buyer’s or Buyer’s customer’s or other associate’s drawings, models or other requirements do not infringe any intellectual property right of any third party and that there does not exist other restrictions that would prohibit the production and/or sale of such products. Should the Buyer become aware of any such potential infringement or restriction, the Buyer shall notify the Seller forthwith. Notwithstanding the above, the Buyer shall always indemnify and hold the Seller exempt from any cost, loss or damage arising out of any claim, demand, suit or proceedings against the Seller to the extent that such demand, suit or proceeding alleges that goods based on Buyer’s or Buyer’s customer’s or other associate’s drawings, models or other requirements infringe upon any intellectual property right of any third party or other restriction mentioned above.
12. Force Majeure
The Seller shall be relieved of liability for complete or partial non-performance of its obligations under Contract if this non-performance is due to circumstances of force majeure, which have arisen after the Contract was concluded as a result of events beyond the Seller’s control including, but not limited to, wars, whether declared or not, civil wars, riots, revolutions, acts of piracy, acts of sabotage, natural disasters, explosions, fires, destructions of machines, boycotts, strikes, lock-outs, occupations of factories and premises, work stoppages, requisitions, confiscations, embargoes, expropriations, defaults of suppliers or sub-contractors, currency restrictions, export or import bans, discontinuance of adequate means of transport, general shortages of raw material, defects in the machinery, raw material restrictions, energy supply restrictions.
If force majeure prevents the Buyer from meeting its obligations, it shall reimburse the expenses incurred by the Seller in securing and protecting the products.
A party facing a force majeure situation shall immediately notify the other party in writing of the cessation of such a circumstance. Notwithstanding other provisions of these Conditions, either party may terminate the Contract in writing, if performance of the Contract is delayed by more than six months due to force majeure.
13. Governing law and dispute resolution
The relations between the parties as well as all disputes arising out of or in connection with this Contract shall be governed in accordance with the laws of Finland.
Any dispute, controversy or claim arising out of or relating to this Contract, or the breach, termination or validity thereof shall be settled at the District Court of Helsinki, Finland.
