GENERAL DELIVERY TERMS AND CONDITIONS
Delivery of Goods
1. APPLICATION OF TERMS AND CONDITIONS. CHANGES
1.1 These general delivery terms and conditions (the “Delivery Terms”) are an essential and inseparable part of the Agreement made by and between the Supplier and the Purchaser with respect to a sale, purchase and/or any other delivery of the Goods from the Supplier to the Purchaser.
The Delivery Terms are referred to as LV-GTC added with an index referring to a year and a version number (e.g. LV-GTC 2016/1).
1.2 Upon having once been referred to in relation to an Agreement these Delivery Terms shall be applicable to all ongoing and future deliveries of Goods from the Supplier to the Purchaser, this including (but not limited to) the related offers, orders, order confirmations, contracts and other commitments whatsoever to be possibly made in relation to such deliveries, unless the application of the Delivery Terms has been expressly excluded in the connection in question.
1.3 These Delivery Terms have been designed for, and they are intended solely for the purpose of, being used in connection with the sale, purchase and delivery transactions between and for other parties but consumers, i.e. the Delivery Terms are to be used solely in connection with the transactions to be carried out by the Supplier, on the other hand, and a company, other legal entity or a businessman, on the other hand. By entering into the Agreement the Purchaser represents and warrants that it shall not be deemed as a consumer.
1.4 The Supplier may at its sole discretion make changes to these Delivery Terms LV-GTC (the “Changes”). The Supplier will notify the Purchaser of the Changes in writing and the Changes thus notified shall be valid and in full force and effect immediately. However, a Change will not become valid with respect to a delivery in the event that the Purchaser has placed its irrevocable order thereof prior to having received the Supplier’s notice of the Change in question.
1.5 Upon making of a Change the changed Delivery Terms shall continue to be provided with the marking LV-GTC added with an index referring to the year of making the Change in question and to the version number in question (e.g. the Delivery Terms possibly to be prepared in the year 2016 closest after the version LV-GTC 2016/1 shall be provided with the marking LV-GTC 2016/2).
2. DEFINITIONS AND INTERPRETATIONS
2.1 The following terms shall have the following meanings: “Agreement” shall mean any sale, purchase and delivery agreement made by and between the Supplier and the Purchaser, irrespective of whether the Agreement has been made in writing or orally or otherwise and, therefore, the term Agreement includes (but shall not be limited to) all the deliveries agreed on by the Parties over the phone, by e-mail correspondence, by issuing a written order and/or order confirmation or by entering into a written contract;
“Changes” shall have the meaning defined for it in Section 1.4;
“Confidential Information” shall have the meaning defined for it in Section 10.1;
“Delivery Terms” shall have the meaning defined for it in Section 1.1;
“Destination” shall mean the actual delivery address, to which the Goods will be delivered (for the sake of clarity it is stated and acknowledged by the Parties that when the actual delivery term is EXW, or any other delivery term that does not obligate the Supplier to deliver the Goods to a location determined by the Purchaser, any specification in the Agreement or otherwise of the Destination shall be irrelevant and invalid);
“Disclosing Party” shall have the meaning defined for it in Section 10.1;
“Goods” shall mean litter bins, benches, storage systems, shelters, ashtrays and other environment products and metal structures as well as any other goods whatsoever that the Supplier designs, manufactures, has manufactured, markets, sells and/or otherwise offers to be manufactured, ordered, purchased and/or otherwise obtained;
“Intellectual Property Rights” shall have the meaning defined for it in Section 8.1;
“License” shall have the meaning defined for it in Section 8.5;
“Parties” shall mean the Supplier and/or the Purchaser, as the case may be;
“Publication” shall have the meaning defined for it in Section 9.1;
“Purchase Price” shall have the meaning defined for it in Section 5.1;
“Purchaser” shall mean any other party but a consumer that orders, purchases and/or otherwise obtains any Goods from the Supplier;
“Receiving Party” shall have the meaning defined for it in Section 10.1; and
“Supplier” shall mean Lehtovuori Oy, a private limited company established and existing under the laws of Finland, having its registered domicile in Ylöjärvi Finland and its registered office at Hopeatie 4, 33470 Ylöjärvi, Finland, and being registered in the Finnish Trade Register with the business identity code 2544559-1.
2.2 Unless otherwise clearly becoming apparent from the context and way of use, the terms defined in these Delivery Terms shall have in the Agreement the same meaning as they have in these Delivery Terms.
2.3 Unless otherwise clearly becoming apparent from the context and way of use, when a term is used in these Delivery Terms or in the Agreement, the singular shall include the plural and vice versa.
2.4 To distinct the defined terms from the standard language such terms are written in the contractual text with an initial capital letter.
2.5 Unless otherwise clearly becoming apparent from the context and way of use, references to Sections shall mean references to the Sections of these Delivery Terms.
2.6 Titles and captions are used in these Delivery Terms and in the Agreement and its appendices only as a matter of convenience and for reference and do not define, limit, extend or describe the scope of the Delivery Terms, the Agreement or its appendices nor shall be deemed to affect the interpretation of the Delivery Terms, the Agreement or its appendices.
3. SCOPE AND TERMS OF DELIVERY. INSPECTION AND
NOTICE OF DEFECT
3.1 The Supplier will deliver to the Purchaser the Goods that have been specified on a delivery basis by the Supplier in writing upon an order issued by the Purchaser. Upon the Supplier’s request the Purchaser shall without delay confirm its oral order in writing. The Supplier will send the Purchaser a written order confirmation within a reasonable time after having received the Purchaser’s order. Upon the Supplier’s request the Purchaser shall without delay confirm in writing its receipt of the order confirmation issued by the Supplier.
3.2 An order shall specify the Goods in question by using the product names and models and numbers and other descriptions and specifications of the Supplier as well as identify the sizes, quantities, (where appropriate) other qualities and the Destination desired by the Purchaser. The Supplier will in its order confirmation itemize the same as well as confirm the actual or estimated delivery schedule and the Purchase Prices of the Goods in question. The delivery schedules confirmed by the Supplier are given in good faith but shall be considered as only approximates.
3.3 An order placed by the Purchaser cannot be cancelled, terminated or amended without the prior written consent of the Supplier. As the Goods at least to some extent are specially designed products or otherwise such products that they are produced in limited editions and/or taken into production only from time to time upon at each time current demand, changes (if any) may not be possible to be made to an order and any such change is likely to cause additional expenses to be borne by the Purchaser.
3.4 Unless expressly otherwise confirmed in writing by the Supplier prior to the delivery in question, the Supplier will deliver the Goods to the Purchaser on the condition “EXW (Incoterms 2010 in English) Ylöjärvi, the Supplier’s premises”.
3.5 The Supplier will, as soon as the Supplier is aware of any possible delay with respect to a delivery schedule specified in an order confirmation or otherwise in writing by the Supplier, inform the Purchaser in writing thereof by stating the reason for the delay and the effect of the delay on the delivery schedule.
3.6 None of the payment, delivery or other terms and conditions or product specifications deviating from those of the Supplier printed in the orders issued by the Purchaser or otherwise presented by the Purchaser shall be binding or effective on the Supplier unless the Supplier has in each individual case separately and expressly in writing committed to such terms and conditions. A delivery of an order shall not be deemed to constitute such commitment of the Supplier.
3.7 In the event that the Purchaser fails to perform any payment to the Supplier or to fulfil any other of its duty or liability under an Agreement or otherwise related to a delivery, the Supplier shall be entitled to refrain from each and any delivery and other possible performance to and for the Purchaser until such failure and all of its consequences have been fully remedied by the Purchaser.
3.8 The Purchaser shall perform an appropriate inspection of the Goods without delay as soon as it is in receipt of a delivery. Such an inspection shall consist of an inspection of the quantity and quality of the Goods and their packages and the related documentation. For the sake of clarity, the inspection liability of the Purchaser includes the liability to immediately inspect the delivery to detect any possible transportation damages; in the event that the Purchaser detects any such transportation related damage in the delivery, the Purchaser shall take an entry thereof to the consignment note, collect the necessary proof thereof and make all claims for related loss and damage to the carrier and/or the insurer (as applicable).
3.9 In the event that the Purchaser detects a defect in a delivery of the Supplier, the Purchaser shall give the Supplier a written notice thereof without delay and in no event later than within ten (10) days as of the fulfilment by the Supplier of the delivery in question in accordance with the Agreement; however, the notice of defect shall (and can) be given no later than within five (5) days as of the date when the delivery in question becomes actually available for receipt by the Purchaser. In the event that the Purchaser has not notified the Supplier of a defect in writing in accordance with the time limits set forth herein by appropriately specifying and substantiating the defect in question, the delivery in question shall be deemed faultless and accepted by the Purchaser.
4. CERTAIN GENERAL TERMS AND CONDITIONS
4.1 Each Party shall be responsible for that the laws, acts, orders and requirements of the authorities as well as the good practice are being complied with in its activities and products. Furthermore, each Party shall be responsible for that the tasks and duties that the Party in question is accountable for are carried out in accordance with the Agreement and other possible agreements and even otherwise appropriately.
4.2 Each Party shall be liable to inform the other Party without delay and, to the extent only possible, already well in advance of the changes to take, or already taken, place in regard to its activities, circumstances and conditions for its activities as well as of other matters that may have an effect on a Party’s ability to carry out its duties and/or obtain its rights under the Agreement or otherwise in the contractual relationship between the Parties.
4.3 Each Party represents and warrants as for itself that: (i) at the moment of entering into the Agreement the Party is entitled to make the Agreement as it is with its all and any terms and conditions, (ii) entry into the Agreement constitutes no breach or violation of any other agreement binding on the Party, and (iii) it is provided with such resources that it will be capable of carrying out its obligations responsibly, appropriately and by fulfilling all the contractual terms and conditions.
4.4 Each Party undertakes even in more general to act in relation to the other Party, the other Party’s contractual partners and customers and other interest groups in good co-operation as well as to take care of its reporting, carefulness, participation and loyalty responsibilities related to contractual and co-operational relationships by the means (i) allowing the deliveries of the Goods and other pertinent co-operation of the interested parties to succeed in accordance with their agreement(s), and (ii) securing even otherwise the customer satisfaction.
4.5 The Supplier represents and warrants that the Goods are manufactured and produced (i) by observing appropriate quality standards, (ii) in appropriate working conditions that endure even closer scrutiny, (iii) by complying with legal and even otherwise appropriate procedures and methods, (iv) without utilizing any child labor against the contracts of the International Labor Organization and the United Nations, (v) with respect to the environment responsibly and even in general by observing the principles of sustainable development, and (vi) also otherwise by following high ethical manners.
4.6 The Supplier represents and warrants that that it at all times has an up-to-date and sufficient insurance coverage for its business activities and resources and that the public obligations – e.g. the withholdings, collection, accounting and payment of taxes, insurance premiums and other public fees and payments – of the Supplier will be taken care of appropriately.
4.7 The Purchaser shall not make any changes to the Goods by any means whatsoever, unless the Supplier has separately granted its prior written approval for a change. Therefore, inter alia, the changes in the structure, materials, colors, accessories, labels, other properties, documentation and any other issues relate to the Goods shall be subject to the prior written approval of the Supplier.
4.8 The Supplier shall be responsible for that prior to any delivery to the Purchaser the Goods are packed appropriately so that the delivery and further utilization of the Goods can take place appropriately. The Goods delivered by the Supplier will be accompanied with appropriate packing lists and (where required by the applicable agreed term of delivery) the customs clearance documentation, from which all the necessary information become apparent as required case by case, such information to include (but not necessarily to be limited to) quantities, types/models, product numbers, gross weight and the appropriate conduct of the customs activities (e.g. the payment of the customs duties and taxes). The documentation referred to herein shall be given to the Purchaser either in English or, where applicable, in Finnish.
4.9 The Supplier shall be responsible for that the Goods and their packages are in accordance with the laws, acts, orders and instructions of the authorities in force in the European Union and an account of the same will be given for the Purchaser at request (e.g. certificate of conformity, where applicable). Furthermore, the Supplier shall be responsible for that the Goods and their packages are, when being delivered to the Purchaser, provided with such information and markings that are required by the laws, acts, orders and instructions of the authorities in force in the European Union (e.g. CE markings, where applicable).
5. PURCHASE PRICE, INVOICES AND TERMS OF PAYMENT.
RETENTION ON OWNERSHIP
5.1 The purchase price for the Goods shall be either the price set forth in the Agreement or, in the event the price has not been specifically agreed on by the Parties, the price set forth in the Supplier’s price list being current at the moment of confirmation or other acceptance of the order in question by the Supplier (the “Purchase Price”).
5.2 The Purchase Price shall be in Euros, unless expressly otherwise agreed on by the Parties in writing.
5.3 The Purchase Price can be invoiced by the Supplier immediately upon delivery of the Goods in question in accordance with the Agreement. However, as a precondition for taking into manufacture and/or delivering the Goods in question (or otherwise), the Supplier shall have the right to collect an advance payment from the Purchaser and/or payment(s) in various instalments as well as to request a sufficient security acceptable to the Supplier.
5.4 Unless otherwise expressly agreed on by the Parties in writing the Supplier invoices for the delivered Goods from the Purchaser by reserving the Purchaser with a payment term of fourteen (14) days as of the date of the invoice in question. A payment shall be deemed appropriately performed at the day when the amount of the payment is entirely and freely at the disposal of the Supplier in the Supplier’s bank account set forth in the invoice in question.
5.5 On the delayed payment the Purchaser shall be liable to pay an interest for delay on the terms and conditions set forth in the invoice in question, however, at all times at least in accordance with an annual interest rate of eleven (11) percent.
5.6 The Purchase Prices and the supply prices set forth in a price list or otherwise notified or given by the Supplier do not include any value-added tax or any other sales tax alike. In the case that the Supplier is liable to perform value-added tax or any other tax or public fee due to a sales to the Purchaser, the Supplier shall be entitled to invoice the respective amounts from the Purchaser either in connection with the invoicing of the Purchase Prices or, if the Supplier so deems appropriate, separately.
5.7 The Supplier shall be at all times at its sole discretion entitled to make changes to its price list(s). Such change shall become valid with immediate effect. The changed prices shall be applicable to those deliveries that have been ordered after the expiration of a period of two (2) weeks as of the validity date of the change in question.
5.8 The Supplier retains and reserves the full ownership of each of the delivered Good until the Purchaser has completely performed the Purchase Price for the Good in question, this including also possible interest for delay and related fees and expenses. For the sake of clarity it is stated herein that this retention on ownership obligates the Purchaser to keep the delivered Goods separate and not to sell or otherwise alienate the Goods or attach them as part of another item prior to the fulfilment of the payment obligations of the Purchaser set forth herein.
6.1 The Supplier represents and warrants that the products, services, materials and other objects and contents supplied by it as well as the objects utilized by the Supplier and falling into the sphere of intellectual property rights do not (and will not) infringe any patents, utility models, designs, trademarks, copyrights, trade secrets, moral rights or other intellectual property rights or the rights of any other nature of any third parties.
6.2 Subject to the retention on ownership by the Supplier on the Goods, the Supplier represents and warrants that the Purchaser shall receive good title to the Goods and all and any other deliverables from the Supplier to the Purchaser, free and clear of any and all pledges, encumbrances and other restrictions whatsoever.
6.3 The Supplier warrants that at the moment of the Supplier’s delivery as well as for a period of two (2) years the Goods and any related deliverables are free from defects in the Supplier’s designing, materials and workmanship and also otherwise free from any material errors.
6.4 Notwithstanding Section 6.3 above, the warranty period for consumable parts and component like locks, hinges and gas springs embedded or attached by the Supplier to the Goods or otherwise being part of the Supplier’s delivery to the Purchaser shall not exceed one (1) year. The warranty granted by these Delivery Terms or otherwise by the Supplier excludes equipment or fittings not manufactured by the Supplier and in this respect the Purchaser shall only be entitled to the benefit of such warranty as possibly has been granted for the Supplier by the manufacturer of such equipment and fittings.
6.5 The following shall apply to all of the deliveries from the Supplier to the Purchaser and any warranty granted by the Supplier shall be subject to the following rules, principles and limitations: (a) The product information concerning the Goods as presented in data sheets, brochures, other marketing or advertising materials or in any other materials of respective presentative or relatively general nature is given in general by the Supplier to the Purchaser for guidance and for general descriptive purposes and such information shall not be deemed as a warranty commitment or a definite specification or requirement for the Goods in question. (b) The Supplier may give the Purchaser advice or opinion about the likely suitability of the Goods for the purposes and circumstances described by the Purchaser; however, the Purchaser shall be ultimately responsible for deciding whether or not the Goods are suitable for the Purchaser’s location and purposes and circumstances, and whether or not the Purchaser will achieve the goals and results pursued by the Purchaser. (c) The Purchaser shall be responsible for that the Goods ordered by the Purchaser from the Supplier will conform to the standards and requirements applicable to the territory and environment in which the Purchaser intends the Goods to be located and used. (d) In the event that the Purchaser has provided the Supplier with the specifications and/or any other items related to the Goods (this including, but not limited to, the drawings and materials and components and methods and technical solutions to be utilized in the design, manufacture, packing, delivery and use of the Goods), such matters provided or otherwise set by the Purchaser (or any third party acting on behalf of or at the request of the Purchaser) as well as their effects on the Goods and their use and any other factors whatsoever shall be the sole responsibility of the Purchaser. (e) The actual measurements and features of the Goods may deviate from those featured in the product information and the drawings and specifications concerning the Goods. This may arise from normal manufacturing tolerances and/or the continuing improvements and developments to which all of the Goods are subject. Provided that such deviations or any other forms of deviation whatsoever do not have any significant effect on the usability, structural durability, or stability of the Goods in question, such deviations shall not constitute a defect or an unconformity with a warranty or a breach of the Agreement.
6.6 The warranty granted by the Supplier in these Delivery Terms or otherwise shall not be in force and effect under the following circumstances and/or the warranty shall be limited otherwise as follows: (a) In the event that the Purchaser has failed to pay, in part or in whole, the Purchase Price or any other consideration or any related payment (e.g. interest for delay or collection charges) whatsoever due in relation to the Agreement or a delivery of the Goods, no warranty obligation of the Supplier shall be applicable to the Goods in question. However, a warranty period in relation to such Goods shall expire in accordance with the warranty terms in question and, therefore, no payment failure on the Purchaser’s side will delay or extend a warranty period. (b) The Supplier shall not be liable for any defect arisen from, or being otherwise related to: (i) any change, modification, variation or addition to the Goods made by the Purchaser or any other party but the Supplier without the prior written authorization thereto by the Supplier; (ii) use or storage or unpacking or maintenance or repairing of the Goods contrary to the instructions or guidance of the Supplier or otherwise inappropriately or incorrectly or improperly or negligently; (iii) an effect or consequence of some external force, extreme weather condition or environmental or other condition for which the Goods are not specifically designed; (iv) any detail or material or information (this including, but not limited to, information concerning environment and conditions and quality and quantity of use) provided for the Supplier by the Purchaser or any third party acting on behalf of, or at the request of, the Purchaser; (v) the Purchaser’s failure to notify the Supplier in writing without needless delay of a defect or any other issue falling under the scope of a representation or warranty of the Supplier; (vi) an issue attributable to the Purchaser; or (vii) an issue being beyond reasonable sphere of influence or anticipation of the Supplier. (c) The warranty does not cover normal wear and tear or any issue that due to its insignificance does not effectively deteriorate the customary use of the Goods. (d) In the event that a Good includes (or comprises of or is connected to or dependent on) software or other kind of data system and/or related services it shall be understood that such Goods and related services may be (i) conducted and/or delivered in information network environment, (ii) comprising of application services being based on complex information technology devices, programs and databases, (iii) comprising of products and services being dependent on the activities and contribution of third parties like telecoms operators, software suppliers and server service providers, (iv) about services carried out by tools requiring, from time to time, corrections, maintenance and updating, and (v) about services being partially dependent on the activities of the Purchaser and its interest groups. Therefore, the functioning of such goods and services is not and will not and cannot be at all times errorless or uninterrupted but that they are of the quality and character that they may, from time to time, be affected by disturbances, interruptions, viruses and other problems. The goods and services referred to herein may be subject to separate terms and conditions issued by the Supplier, as amended from time to time. (e) Any representation or warranty proposed or promised or referred to by any of the Supplier’s distributors, agents, other representatives or other third parties or employees shall not be valid unless confirmed in writing by the Supplier.
6.7 In the event of any unconformity with the above representations and warranties of the Supplier (or the warranties expressly represented elsewhere in the Agreement or in any other document or connection by the Supplier in writing), the Supplier shall have the liability and right to correct all and any detected errors, defects, failures and problems and/or otherwise remedy all and any such non-compliance with its representations and/or warranty obligations, this including (but not limited to) immediate correction or replacement of a defective Good.
6.8 For the avoidance of any doubt it is stated herein that a correction or replacement of a defective Good shall not cause a commencement of a new warranty period but the warranty period for the corrected or replaced Good shall expire upon expiration of the warranty period of the original piece of Good. No defect notified after expiration of the warranty period shall entitle the Purchaser to refer to a warranty obligation of the Supplier.
6.9 In the event that the Supplier fails to remedy the non-compliance with its representation or warranty set forth herein within a reasonable period of time even within an additional thirty (30) days after having been given written notice thereof, the Purchaser shall have the right to return the Goods (or any other possible delivery) in question for a full refund from the Supplier. Alternatively, the Purchaser may remedy the failure or have it remedied at the Supplier's risk and expense, provided that the Supplier has consented to this alternative in advance in writing.
6.10 The representations, warranties, liabilities and remedies of the Supplier set forth in this Section 6 shall be in lieu of any and all other liabilities, responsibilities, remedies and duties whatsoever, be them based on law or contract or otherwise and, therefore, the representations, warranties, liabilities and remedies of the Supplier set forth in this Section 6 shall be the exclusive and exhaustive ones under the Agreement or otherwise related thereto.
7. CERTAIN LEGAL RELATIONSHIPS AND RELATED
7.1 The Supplier shall be entitled to use in its performance under the Agreement and otherwise subcontractors and other third parties at its sole discretion. Furthermore, the Supplier shall be entitled at its sole discretion to perform any of its deliveries and other obligations to the Purchaser through (or otherwise partially or entirely with the assistance or other kind of participation of) third parties, this including (but not limited to) its subsidiaries, affiliates, distributors and agents. The Supplier shall be responsible to the Purchaser for the performance of such third parties as for the performance of its own.
7.2 For the sake of clarity the Parties state and acknowledge herein that the Agreement by no means is an exclusive agreement or any other similar kind of agreement, which would generally limit a Party’s possibility to design, purchase, sell, use, manufacture of have manufactured the Goods or any other products by the means a Party desires. Notwithstanding this Section, however, all such terms and conditions of the Agreement and/or any other possible agreement or document made by and between the Parties that specifically and intentionally set a limitation, prohibition, order, commitment or liability on a Party, shall be in full force and effect.
7.3 On the basis of the Agreement or even otherwise, without the express prior written authorization, the Parties shall not be entitled to represent each other or otherwise make any contract or give any commitment or act whatsoever binding on the other Party.
7.4 The Parties shall not be, towards a third party, responsible for the activities of the other Party, without the express prior written agreement or another express prior written commitment thereof.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All right, title and interest in and to all copyrights, patents, inventions, designs, trademarks, trade names and other intellectual property rights of whatever nature arising out of or related to any Goods and/or other deliverables from the Supplier to the Purchaser under the Agreement or otherwise (the “Intellectual Property Rights”) shall remain, vest in, and be the sole and exclusive property of, the Supplier, whether or not specifically recognized or perfected under applicable law.
8.2 Entry into the Agreement or any other arrangement whatsoever concerning a delivery of Goods or other deliverables from the Supplier to the Purchaser shall not be deemed to constitute any transfer, alienation or license whatsoever of the Intellectual Property Rights even partially from the Supplier to the Purchaser.
8.3 Information, markings and labels of whatsoever nature printed or otherwise attached to the Goods or other deliverables from the Supplier to the Purchaser shall not be removed or altered by any means.
8.4 The Intellectual Property Rights are of great value and essence for the Supplier and for its products and services and, therefore, all (if any) use of the Intellectual Property Rights by any other party shall at all times take place by strictly observing the requirements set by the Supplier and by strictly following the manners preserving and adding respect and positive image for the Supplier and its products and services.
8.5 In the event that the Supplier and the Purchaser have mutually understood and agreed on that the intention of a delivery of the Goods or any other deliverables from the Supplier to the Purchaser is that the Purchaser markets and/or sells further the same deliverables, the Supplier upon the delivery in question grants to the Purchaser solely for this purpose a limited non-exclusive license to use the Intellectual Property Rights related to the deliverables in question (the “License”), such a License to be valid at the most for the period of time reasonably required for the appropriate completion of the mutually intended and agreed marketing and/or sales activities.
8.6 In the utilization of the License the Purchaser shall (i) thoroughly take into consideration and aim to the development and maintenance of the good reputation and respect of the Supplier and its products and services and the Intellectual Property Rights, and (ii) comply with the possible closer instructions and provisions provided by the Supplier at its sole discretion.
8.7 In no event entitles the License the Purchaser to use the Intellectual Property Rights at all in any other connection or for any other purpose but those expressly prescribed in these Delivery Terms. Hence, the License for example does not provide any right to use the Intellectual Property Rights in connection with any other party’s products or services or otherwise so that any confusion of the origin of the products or services or the ownership of the intellectual property could be caused.
8.8 In all connections of the use of the Intellectual Property Rights the fact that the lawful owner of the Intellectual Property Rights is the Supplier shall be expressed by clear and well visible means and also otherwise by observing good practice and the instructions and provisions provided by the Supplier at its sole discretion. The Purchaser shall be liable, prior to any commencement of any new use of the Intellectual Property Rights, to notify the Supplier of the intended use, this including (but not limited to) the information of the manners and extent of the use.
8.9 The Purchaser is presumed to recognize, and by the latest by commencing the utilization of the Intellectual Property Rights the Purchases shall be deemed to have recognized, the Supplier’s exclusive rights to, and ownership of, the Intellectual Property Rights. Respectively, the Purchaser shall not register or otherwise utilize any Intellectual Property Rights in contradiction with these Delivery Terms or the Agreement in any place and for any purpose. Furthermore, the Purchaser shall not engage in any act that might jeopardize, or contest or attempt to acquire, any right of the Supplier in or to the Intellectual Property Rights.
8.10 The Supplier may at its discretion provide the Purchaser with models and originals of the Intellectual Property Rights in written, electronic, visual or audio format with the intention that the use of the Intellectual Property Rights takes place by the Purchaser by using materials prepared on the basis of such models and originals. The Purchaser shall be at all times liable to strictly observe such models and originals as well as the possible closer instructions and provisions provided by the Supplier in relation to these.
8.11 No use howsoever of the Intellectual Property Rights taken (or to be taken) place by the Purchaser has created (or will create) any right whatsoever for the Purchaser to the Intellectual Property Rights or to receive any reimbursement or consideration of whatsoever nature from the Supplier.
8.12 Upon expiration of validity of the Agreement in question or the completion of activities required by the Agreement from the Purchaser, or whenever otherwise so requested by the Supplier, the Purchaser shall be liable to cease immediately all and any use of the Intellectual Property Rights. Respectively, upon the Supplier’s request the Purchaser shall be liable immediately to destroy and/or return all the objects containing, or related to, the Intellectual Property Rights, as more closely instructed by the Supplier case by case.
8.13 All copying, imitation, design imitation and passing off the Goods, other deliverables or their designs of the Supplier or its subsidiaries as well as other actions constituting unfair business practice under applicable laws are strictly forbidden during the Agreement or any other arrangement between the Supplier and the Purchaser as well as thereafter. Similarly, manufacturing, selling and marketing of the Supplier’s or its subsidiaries’ Goods, other deliverables or their designs by the Purchaser itself or its group companies are strictly forbidden, unless the Supplier has given its prior written consent to a particular action. The Purchaser and companies belonging to same group companies as the Purchaser as well as other third parties are prohibited from performing aforesaid actions regardless whether such Goods, other deliverables or their designs of the Supplier or its subsidiaries have valid registration(s) of Intellectual Property Rights or not. The Purchaser shall be liable for actions made by the companies belonging to the same group companies as the Purchaser to whom the Purchaser has sold, transferred or otherwise given the Goods or other deliverables of the Supplier or its subsidiaries.
8.14 The Supplier and its subsidiaries reserve all rights to take all necessary legal actions and to demand compensation and damages against the Purchaser if the Purchaser or a company belonging the same group of companies as the Purchaser infringes the Supplier’s or its subsidiaries’ Intellectual Property Rights or is in breach of these Delivery Terms.
8.15 The Purchaser undertakes to be bound to these Delivery Terms upon making an order for or purchasing the Goods or other deliverables from the Supplier or its subsidiaries.
9. PUBLICATION, MARKETING AND ADVERTISING
9.1 In this Section 9 the publication, marketing and advertising shall mean all the advertising, marketing and other sales promotion carried out by the Parties by themselves or through or with assistance of third parties as well as all the other public informing, presentations and appearances carried out by the Parties (the “Publication”). The Parties shall in their Publication take into consideration the reputation and appreciation of each other as well as even otherwise the objectives set forth in the Agreement.
9.2 The Parties shall have the right in their Publication on a general level to inform that they are in the contractual relationship established by the Agreement. This right shall not, however, include without a separate written agreement thereof any right to a larger extent or by going into any details to divulge the terms and conditions of the contractual relationship or to use the other Party’s name or other object falling into the sphere of intellectual property or so called good will, except as defined in these Delivery Terms. The Publication to be carried out by the Parties shall take place restrainedly and appropriately and by taking into consideration the possible closer recommendations, instructions and orders provided by the other Party.
9.3 On the basis of the Agreement or its appendices the Parties shall have no liability whatsoever to participate in the other Party’s Publication or any other activities of the other Party, unless expressly otherwise agreed in writing.
10.1 For the purposes of this Section 10 confidential information (hereinafter referred to as the “Confidential Information”) is defined as any information, knowledge, property and material provided or disclosed by a Party or such Party’s employee, director, other representative, partner, contractor, sub-contractor, licensee, agent, distributor or client (the “Disclosing Party”) in the course of the activities carried out under the Agreement to the other Party or any other party acting for or on behalf of such other Party (the “Receiving Party”), in a written form or orally presented or otherwise transmitted whether of a tangible nature reducible to writing or not, pertaining to the activities, products or any other facts and objects of confidential nature of the Disclosing Party, be it technical, financial or commercial in nature or otherwise of confidential nature or whose disclosure causes or could cause an actual or eventual damage for the Disclosing Party.
10.2 The confidentiality obligation under this Section 10 shall not cover material and knowledge, which, as shown by the Receiving Party: (a) Was at the time of receipt, or became thereafter, published or otherwise generally available to the public otherwise than through any act or omission of the Receiving Party; (b) Was rightfully and without any restriction on expression or alienation in the possession of the Receiving Party already at the moment of receipt; (c) Was (or will be) rightfully obtained by the Receiving Party from a third party who had not acquired it either directly or indirectly from the Disclosing Party subject to a valid restriction on expression or alienation, and which material and knowledge even otherwise was at the moment of alienation free from any valid restriction on expression or alienation; (d) Was developed independently by the Receiving Party (by personnel having no access, and without reference, to the Confidential Information); or (e) Is required to be disclosed pursuant to law.
10.3 The Receiving Party shall (i) not disclose or otherwise pass on any Confidential Information to any third party, (ii) not take copies of any Confidential Information, and (iii) not use any Confidential Information, for any purpose other than for the fulfilment of its obligations under the Agreement without first obtaining a prior written consent from the Disclosing Party.
10.4 The Receiving Party shall take due care of the Confidential Information being in its possession. As part of the due care the Receiving Party shall take care of that each employee and any other of its representatives and partners having access to the Disclosing Party’s Confidential Information are bound by a written undertaking of confidentiality (included in their employment contracts or otherwise) or a written non-disclosure agreement prior to having any access to such Confidential Information. If, in case of breach of a confidentiality obligation by any Receiving Party, the Disclosing Party was not entitled or reasonably able to take action directly against such breaching party, the Receiving Party being directly a party to the Agreement shall use reasonable efforts to defend and assist the Disclosing Party.
10.5 The obligations set forth in this Section 10 shall apply as long as a Party’s reasoned interest and need for confidentiality exists, however, at least for a period of five (5) years as of the date of disclosure of the Confidential Information in question, regardless of an earlier termination or other expiry of the Agreement.
10.6 The Parties acknowledge that all and any originals and copies of any Confidential Information are and shall remain the exclusive property of the Disclosing Party in question. The Parties shall reproduce all copyright and other proprietary notices, if any, in the same form that they appear on all the materials provided by the Disclosing Party, on all copies of the Confidential Information made thereof. Each Party agrees to return all originals and copies of all the Confidential Information to the Disclosing Party, or certify to the Disclosing Party in writing the destruction of such Confidential Information, at the Disclosing Party's request.
10.7 In no event shall a Party be deemed by virtue hereof to have acquired any right, interest, or license or otherwise, in or to the Confidential Information, unless expressly otherwise stipulated in the Agreement or these general terms and conditions. The Confidential Information is provided on an “AS IS” basis without representation or warranty of any kind, express, implied or statutory unless expressly otherwise stipulated in the Agreement or these general terms and conditions or otherwise becoming apparent from the context and purpose of such provision.
10.8 Notwithstanding this Section 10, in the event and to the extent a separate non-disclosure agreement made by and between the Parties and/or a separate confidentiality undertaking given by the Receiving Party impose on the Receiving Party additional or higher or stricter requirements than those contained in this Section 10 and/or provide the Disclosing Party with better rights or protection, also the terms and conditions of such nondisclosure agreements and/or confidentiality undertakings shall be observed. This clause shall be applicable irrespective of whether the separate non-disclosure agreement and/or confidentiality undertaking has been made before or after the entry into the Agreement.
11. TERMINATION AND CANCELLATION OF AGREEMENT
IN CERTAIN CASES
11.1 In the event that a Party is in breach of the Agreement, which breach (i) shall be deemed to be material, or (ii) at least shall not be deemed to be insignificant and has been caused by the breaching Party’s deliberate action or gross negligence, the other Party shall have the right to terminate the Agreement and/or to terminate or cancel an order or an order confirmation (as the case may be) with immediate effect.
11.2 In addition to other possible grounds for a termination and/or cancellation, a cause for a termination and/or cancellation shall be the possible fact that the Purchaser is in delay for more than 30 days in its payment or delivery of a security.
11.3 In the event that a Party is in breach of the Agreement and the breach in question shall not be deemed to be insignificant, or if the breach takes place repeatedly, the other Party shall have the right to terminate the Agreement by giving a one (1) month notice thereof. In the case that in such event the breach is curable, the other Party shall prior to terminating the Agreement reserve the breaching Party with a chance to cure the breach and all of its consequences within 30 days as of the giving of the notice thereof with the threat that the Agreement may otherwise be terminated with immediate effect.
11.4 Each Party shall have the right to terminate the Agreement with immediate effect if the circumstances have after entering into the Agreement changed so essentially and permanently that (i) it would be unreasonable to presume that the Party in question would commit to the Agreement anymore and (ii) the Party in question, if having been aware of such circumstances, would not have entered into the Agreement at the first place. The precondition for the termination shall be, furthermore, that (i) the change in the circumstances has been beyond the control of the terminating Party, (ii) the change in the circumstances was not reasonably foreseeable at the time of signing of the Agreement, and (iii) it would be unreasonable to expect that the terminating Party would have got prepared for such change in circumstances already in advance. A Party shall, however, be entitled to terminate the Agreement due to change in the circumstances only presuming that the terms and conditions of the Agreement cannot be adjusted to be reasonable for both Parties considering in their entirety the changes in the circumstances and the intentions of the Parties pursued by the Agreement.
11.5 Either Party may terminate this Agreement with immediate effect in the event that the other Party: (a) terminates or suspends its business or a significant part of it; (b) becomes a debtor in a bankruptcy or insolvency proceedings or other alike proceedings reflecting the probable insolvency or over-indebtedness of that Party; (c) is acquired through a company acquisition or merger or other kind of arrangement (the object of the arrangement is the majority of the shares and/or the voting rights or other factual authority) by a third party reasonably deemed to be a competitor of the Party giving notice; (d) acquires a controlling interest in a third party reasonably deemed to be a competitor of the Party giving notice; or (e) acts in a way, or any other event occurs, that gives the terminating Party a reasonable cause to believe or anticipate that the other Party is not, or shall not be, able to remain stable and to fulfill its obligations under the Agreement.
11.6 This Section 11 shall not limit a Party’s right to terminate or cancel the Agreement on the grounds stipulated by a provision in the Agreement, the laws of Finland or the general principles of contract law of Finland.
12.1 In the event that a Party is in breach of the Agreement and such breach causes damages to the other Party, this other Party shall be entitled to receive indemnification from the Party in breach. There shall not, however, be any liability for indemnification presuming that the Party otherwise being liable for the performance of an indemnification substantiates that the damage was due to reason(s) (i) beyond its control, (ii) not reasonably foreseeable for the Party in breach, and (iii) of which consequences were not reasonably avoidable for the Party in breach. (So called control liability)
12.2 Neither Party will be liable for any indirect, incidental or consequential damages (including but not being limited to the loss of profit, business, goodwill and data) even if they have been advised of the possibility of such damages. Notwithstanding the foregoing limitations in this Section 12.2, the limitation of liability shall not be applied to breaches of Sections 8 (Intellectual Property Rights) and 10 (Confidential Information) of these Delivery Terms and breaches of the Agreement caused by wilful misconduct or gross negligence.
12.3 As the delivery schedules confirmed by the Supplier are in accordance with Section 3.2 above given in good faith but shall be considered as only approximates, the Supplier shall have no liability for any damages arising from a delay in a delivery, provided that the Supplier has used its reasonable efforts to ensure that the delivery would be on time. For the avoidance of any doubt, the limitation of liability set forth in this Section
12.3 shall not be applied to delays caused caused by wilful misconduct or gross negligence.
12.4 In the event that the Supplier would on the basis of the Agreement or its appendix or these Delivery Terms be liable for an indemnification, the liability of the Supplier for such indemnification shall be at the most (a) 15 percent of the purchase price (excluding the value-added tax) of the Goods being the object of the breach, or (b) 50,000 Euros, which ever leads to a lower indemnification. The limitation of liability set forth herein shall not, however, be applicable to the direct damages in the event that the damages are due to intent of the Supplier.
13. FORCE MAJEURE
13.1 Neither Party shall be liable to the other Party for any delay or nonperformance of its obligations under the Agreement in the event and to the extent that such delay or non-performance is due to an event of Force Majeure. Events of Force Majeure are events (i) which are beyond the control of the Party, (ii) which occur after the moment of entering into the Agreement, (iii) which were not reasonably foreseeable at the time of entering into the Agreement, and (iv) whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the Party concerned. Events of Force Majeure shall include (without being limited to) war (whether declared or not), civil unrest, strikes, lock-outs and other general labour disputes, acts of government or the European Union, export or import prohibitions, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, general shortage of energy, fire, explosions, accidents and general interruption or disturbance in payment transactions and communications. In the event that a Force Majeure continues for more than two (2) months, each Party shall have the right to terminate the Agreement with immediate effect.
13.2 Any delay caused by a subcontractor or any other third party contracted by a Party shall be deemed to constitute a Force Majeure only presuming that (i) such delay is caused by a reason referred to above in Section 13.1, and (ii) the Party having contracted such third party is not capable of contracting another third party for the same purpose without suffering unreasonable expense and/or loss of time.
13.3 The Party that desires to refer to a Force Majeure described under this Section 13 shall without needless delay notify in writing the other Party thereof as well as of the expiration of such Force Majeure.
14. ASSIGNMENT OF RIGHTS AND OBLIGATIONS
A Party shall not be entitled to assign any of its rights or obligations related to, or derived from, the Agreement, partially or entirely, to a third party without the prior written consent of the other Party, unless expressly otherwise stipulated by these Delivery Terms. However, the Supplier shall have the right to assign and transfer any matured and indisputable receivable from the Purchaser to a third party.
15. ENTIRE AGREEMENT. AMENDMENTS
15.1 The appendices to the Agreement form an integral and inseparable part of the Agreement and the Agreement together with its appendices sets forth the entire agreement and understanding between the Parties relating to the object thereof.
15.2 The Agreement may be amended only by a separate written agreement confirmed by duly authorized representatives of the Parties. For the sake of clarity, this Section shall not prevent the Supplier from amending its price lists or amending these Delivery Terms or making any other changes that the Supplier has elsewhere reserved the right for or that otherwise due to their nature shall be done by the Supplier from time to time.
16. REMEDIES AND WAIVERS
No delay or failure of a Party to exercise any right or remedy under the Agreement shall operate as a waiver thereof, nor shall it in any way prejudice any right of that Party under the Agreement. No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
Should a part of the Agreement be declared or found invalid and/or unenforceable for any reason whatsoever, the remaining portion thereof shall not be prejudiced and shall continue in full force and effect. However, if the invalidity of any provision materially alters the original balance of interests of the Parties, the Parties shall negotiate in good faith new provisions to restore the original intention of the Parties.
18. PRESENTATION OF CLAIMS
A Party that desires to present a claim to the other Party in relation to the Agreement shall present the claim without delay. If a Party has not presented its claim to the other Party within two (2) years of having got aware of the grounds for such claim, and if necessary even commenced legal proceedings thereof within the same period of time, the right to present the claim shall be forfeited.
19. APPLICABLE LAW
The Agreement as well as the legal relationships between the Parties being based on the Agreement shall be governed by and construed in accordance with the laws of Finland (excluding, however, the conflict of law principles and the rules of choice of law) and other sources of law of Finland to the extent they are not in conflict with the terms and conditions and principles and intentions set forth, or otherwise reflected, by the Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable.
20. SETTLEMENT OF DISPUTES
20.1 Any controversy or claim arising out of or relating to the Agreement, or concerning the Agreement’s or its provision’s validity, shall be primarily settled amicably. If this is not possible, the controversy or claim shall be finally settled by arbitration for which each Party elects one (1) arbitrator and these two elect the third one as the Chairman of the Arbitral Tribunal. Unless otherwise agreed on by the Parties and the Arbitral Tribunal, (i) the arbitration shall be conducted in Helsinki, Finland and the proceedings shall be carried out behind closed doors, (ii) all proceedings shall be conducted in the English language but the possible witnesses shall, however, be heard by their own language or some other language accepted by the witness in question to be used for the purpose, and (iii) the written decision of the Arbitral Tribunal shall be issued in English.
20.2 In the event that the other Party has not elected its arbitrator within two (2) weeks as of the date that Party received the information of the other Party’s election for an arbitrator, the missing arbitrator shall be elected by the Arbitration Institute of the Finland Chamber of Commerce. Accordingly, if the arbitrators elected by the Parties are not able to come to a mutual understanding of the Chairman, the Chairman shall be elected by the Arbitration Institute of the Finland Chamber of Commerce. Furthermore, the Arbitration Institute of the Finland Chamber of Commerce shall take care of the duties that otherwise would, in accordance with Sections 14 and 15 of the Arbitration Proceedings Act of Finland (23.10.1992/967), belong to a general Court of Law.
20.3 The Arbitral Tribunal shall render its award within ten (10) months as of the election date of the Chairman if this is only possible and appropriate for examining and deciding the case thoroughly. The matters referred to in Section 50 of the Arbitration Proceedings Act of Finland (23.10.1992/967) shall be dealt with by the Helsinki District Court. With all other respects the Arbitration Rules of the Finland Chamber of Commerce and, as a supplementary source of law, the Arbitration Proceedings Act of Finland (23.10.1992/967) shall be complied with.
20.4 Judgment upon the award rendered may be entered in any court having jurisdiction over the Party or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be.
20.5 Notwithstanding the foregoing in this Section 20, if an arbitration award was not enforceable against the defendant in question, the plaintiff is entitled to carry on an action against such defendant in any general Court of Law having jurisdiction over such defendant.
20.6 For the avoidance of any doubt it is stated and acknowledged herein that this arbitration clause does not prevent a Party from seeking an injunction, seizure or any other precautionary measure with a Court of Law or any other authority having jurisdiction over the other Party.