GENERAL TERMS AND CONDITIONS OF SALES
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES OF UNIGRAF PRODUCTS ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS AND THESE GENERAL TERMS AND CONDITIONS OF SALES (“GTCS”) TAKE PRECEDENCE OVER ANY OTHER TERMS AND CONDITIONS THAT APPEAR IN THE BODY OF PRODUCT PURCHASE ORDERS. THE SELLER RESERVES THE RIGHT TO MODIFY THESE GTCS AT ANY TIME.
“Buyer” shall mean the company, any legal entity or personpurchasing the Products;
“Intellectual Property Rights” shall mean any and all patents,utility models, designs, copyright, domain names, trademarks, trade names and any other intellectual property rights, whether registered or not and applications for any of the aforementioned respectively as well as any trade secrets.;
“Order” shall mean a purchase order in respect of the Productsissued and delivered by the Buyer to the Seller.
“Products” shall mean the products and goods of or from theSeller defined in the Order, including (if applicable) any relevant software;
“Sales Contract” shall mean an Order acknowledged andaccepted by the Seller in accordance with these GTCS.
“Seller” shall mean Unigraf Oy and (any subsidiary of the Seller)by which the Products (as defined) are sold and/or delivered.
2. SELLER’S ACCEPTANCE AND ORDER CANCELLATION
The Orders are not binding on the Seller until the Seller has accepted an Order (order acknowledgement). Upon acceptance of an Order by the Seller, the Seller undertakes to deliver and the Buyer undertakes to take delivery of the Products in accordance with the terms and conditions set forth herein. Any terms proposed in an Order which conflict with the terms of these GTCS shall be void unless such special term or deviation is expressly agreed in writing between the Buyer and the Seller to prevail over these GTCS.
If the Buyer wishes to cancel an Order that has been accepted and acknowledged by the Seller, the Buyer is liable to compensate to the Seller for all costs and expenses relating to the Order and accumulated by the Seller up to the date of cancellation.
3. PRODUCT INFORMATION
Any catalogues, brochures and price lists are intended for general guidance only and do not form part of any Sales Contract. All information and data contained in such material shall only be binding on the Seller to the extent that they are expressly incorporated into the Sales Contract.
4. TERMS OF DELIVERY
Any delivery time mentioned in a Sales Contract shall be an estimate only and the Seller shall not be liable for any costs or damage due to any delay in delivery. Partial deliveries as well as deliveries by distributors, agents and other third parties shall be permitted, unless expressly agreed otherwise by the parties.
The term of Delivery shall be FCA (Incoterms 2020) Helsinki.
If the Seller arranges or undertakes the carriage, freight, insurance and any other transport, the costs shall be for theBuyer’s account and shall not affect the provisions of thepassing of risk.
The Buyer shall be responsible at its own expense for obtaining any license and complying with any import and export regulations in order to take delivery of the Products. Obtaining of any necessary consent or permissions for the installation of any Products shall also be the responsibility of the Buyer.
The prices payable by the Buyer for the Products shall theSeller’s prices valid at the time of the Seller’s orderacknowledgement or any Sales Contract, excluding any cost of packaging which shall be added accordingly.
All amounts payable under any Sales Contract are exclusive of all sales, use, value added, withholding, and other taxes and duties and the Buyer shall be responsible for and pay any and all such taxes and duties, except for taxes payable on theSeller’s net income. The Seller shall be promptly reimbursed by the Buyer for any and all taxes or duties that the Seller may be required to pay in connection with any Sales Contract or its performance and which are payable by the Buyer under the terms herein.
The Buyer agrees that all pricing, discounts, commercial and technical information that Seller provides to the Buyer are the confidential and proprietary information of the Seller.
6. TERMS OF PAYMENT
Unless expressly agree otherwise between the parties, the Seller shall issue an invoice upon delivering the Products and the invoice shall be paid in full within fourteen (14) days of the date of the invoice. The payment shall not be subject to set off, deductions or counterclaims by the Buyer.
The Seller reserves the right to require a payment guarantee (letter of credit, bank guarantee, or similar) as a condition precedent to the acceptance of an Order. The applicable payment guarantee shall be irrevocable, confirmed and payable at sight. All related charges shall be for the Buyer.
In case of the Buyer’s failure to pay any invoice in accordancewith the terms of payment, without prejudice to any other right that the Seller may have against the Buyer, the Seller shall be entitled to suspend further deliveries or work to the Buyer under the applicable Sales Contract or any other agreement by and between the parties. The Seller shall, further, be entitled to the immediate return of all Products delivered to the Buyer the title to which has not passed to the Buyer and the Buyer hereby irrevocably authorizes the Seller and its employees andagents to recover the Products and to enter any of the Buyer’spremises for that purpose. The Seller shall also have the right to charge, and the Buyer shall be under an obligation to pay an interest of 16% p.a. on any overdue account.
7. TRANSFER OF RISK AND PROPERTY
Title to the Products hereunder, whether separate and identifiable or incorporated with any other goods, shall remain with the Seller until payment in full for the Products, any other goods or services supplied to the Buyer by the Seller or any other payments due from the Buyer to the Seller has been received by the Seller. The Buyer shall keep the goods separately and identifiable as the property of the Seller until the title to the Products passes to the Buyer in accordance with the above. The Products shall be deemed sold or used by the Buyer in the order that they are delivered to the Buyer.
Risk of loss of or damage to any Products will pass to the Buyer upon delivery made on an FCA basis (Incoterms 2020) Helsinki. The Seller shall not accept any responsibility for any damage or loss in transit.
If the Buyer is unable to take delivery of the Products when the delivery is due and the Products ready for delivery, the Seller may, without prejudice to any other right or remedy herein, arrange storage of the Products. The risk in the Products shall pass, however, to the Buyer when the Products are ready for delivery, and the Buyer shall be liable to the Seller for reasonable costs of such storage.
8. WARRANTY AND LIABILITY
The warranty for the Products is twelve (12) months from the date of the delivery.
The Seller warrants that the Products are, at the time of delivery, free from physical defects in material or workmanship. The warranty shall not extend to any defects which are attributable to misuse, alterations or modifications by a party other than the Seller or which are due to normal wear and tear, accidental incidents or any negligence in use.
The Seller does not warrant accuracy or exact conformity with designs, models or other specifications concerning the Products. Any additional warranties than those stipulated inthe Seller’s warranty terms shall be agreed separately in writing. Otherwise, any warranty, whether express or implied shall be excluded to the fullest extent permitted by law including but not limited to such warranties regarding functionality or fitness for a certain purpose and / or merchantability.
Notwithstanding anything to the contrary herein or in any agreement between the parties and to the fullest extent permitted by law, in no event will the Seller be liable to the Buyer for any loss of production, contracts, profits, revenue, business, or any incidental, indirect, special or consequential damages arising out of Buyer ́s use or inability to use the Products or the breach of these GTCS, even if advised of the possibility of such damages. The Seller’s total liability to theBuyer whether in contract, tort or otherwise will be limited to the price of the Products which are the subject of the claim by the Buyer. In the event of willful intent or gross negligence, no such limitation shall apply.
9. INTELLECTUAL PROPERTY RIGHTS
The Seller shall retain all Intellectual Property Rights in and to the Products, including in any and all software contained in the Products. The Seller shall be the owner of any and all rights to any agreed changes in the Products unless otherwise stated in writing, and the Buyer hereby assigns all such rights to the Seller. The Buyer agrees not to violate the Seller ́s Intellectual Property Rights by copying, reverse engineering the Products or in any other way. If the Buyer makes any changes to the Products without the Seller’s approval, the Seller shall be theowner of all Intellectual Property Rights on and to such changes.
The Buyer shall not make any changes to the Products hereunder or reverse engineer, copy, disassemble, decompile, translate or adapt the Products unless expressly agreed in writing by the Seller. The Buyer shall not delete or in any manner alter the trademarks or any copyright, trademark, or other proprietary rights notices of the Seller and its licensors appeared on or in the Products as delivered to the Buyer.
By the Seller: the Seller agrees to defend the Buyer, its officer, directors, and employees from and against awarded damages, costs and expenses (including without limitation reasonableattorney’s fees) (“Indemnified Items”) (i) claims that a Product infringes any valid patent, copyright or trade secret; provided however, that the Seller shall have no liability under this Section to the extent any such Indemnified items are caused by (i) the negligence or willful misconduct of the Buyer, its employees, agents or representatives or contractors, (ii) any
third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with theBuyer’s designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed, or (vi) modifications of the Product by anyone other than the Seller without Seller’s prior written approval. The Buyer shall provide the Seller prompt written notice of any third party claim covered by the Seller’s indemnificationobligations hereunder. The Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. The Buyer agrees to cooperate reasonably with the Seller in connection with the performance by the Seller of its obligations in this Section.
Notwithstanding the above, if the continued use of the Products for the purpose intended is prohibited by any court of competent jurisdiction, the Seller shall take one or more of the following actions, at the Seller’s option, and the Seller’sinfringement related indemnification obligations shall be extinguished and relieved if the Seller, at its discretion and at its own expense (a) procures for the Buyer the right, at no additional expense to the Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non- infringing, provided that the modification or replacement, remain in all material aspects in compliance with the agreed technical specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to the Buyer the amounts paid by the Buyer with respect thereto.
With respect to any part of any Product furnished hereunder that is not manufactured by the Seller, only the patent indemnity of the manufacturer, if any, shall apply. The foregoing indemnification provision states the Seller’s entireliability to the Buyer for the claims described herein. By the Buyer: the Buyer shall indemnify, defend and hold harmless the Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all Indemnified Items to the extent arising from or in connection with (i) the negligence or willful misconduct of the Buyer, its agents, employees, representatives or contractors regarding its obligations; (ii) use of a Product in combination with equipment or software not supplied by the Seller where the Product itself would not be infringing; (iii) the Seller’s compliance with designs, specifications or instructions supplied to the Seller by the Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than the Seller without the Seller’s prior written approval.
With respect to any software products incorporated in or forming a part of the Products hereunder, the Seller and the
Buyer intend and agree that such software products are being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “the Buyer” or similar or derivative words are understood and agreed to mean “licensee”. Notwithstanding anything to the contrary contained herein, the Seller or its licensor, as the case may be, retains all rights and interest in software products provided hereunder.
The Seller hereby grants to the Buyer a non-exclusive, nonsublicense and nontransferable license to use the software (and the related documentation) provided hereunder solely for the Buyer’s own internal business purposes on the hardware Products provided hereunder. This license terminates when the Buyer’s lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. The Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder.
The Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without the Seller’s prior written consent. The Seller will be entitled to terminate this license if the Buyer fails to comply with any term or condition herein. The Buyer agrees, upon termination of this license, immediately to return to the Seller all software products and related documentation provided hereunder and all copies and portions thereof.
Unless the Seller gives a specific prior permission in writing, the Buyer shall not disclose to any third party nor use for any purpose other than for the proper fulfillment of its obligations any technical or proprietary, financial or commercial information or trade secrets which may be or may have been intrusted to the Buyer in whatever form in connection with any Order or Sales Contract. The above shall not apply to information or material, which is legitimately available to the Buyer from other sources.
The Seller shall be entitled to use the Buyer as a reference customer, unless otherwise agreed in writing between the parties.
13. FORCE MAJEURE
Neither party shall be liable to the other for any delay or non- performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure, except the obligation to pay invoices due.
Events of Force Majeure are events beyond the control of the party which were not reasonably foreseeable at the time of
signing or which occur after the date of signing of the sales contract and whose effects are not capable of being overcome or avoid. Events of Force Majeure shall include (without limitations) war, acts of government, natural disasters, fire or explosions.
If an event of Force Majeure results in delay or non- performance of a party for a period of three (3) months or longer, then either party shall have the right to terminate the applicable sales contract with immediate effect without liability towards the other Party.
The Seller shall have the right to terminate a Sales Contract with immediate effect by giving the Buyer a written notice in the event that: (i) The Buyer commits a material breach and fails to remedy such breach within thirty (30) days after having been given written notice of the breach by the Seller; (ii) The Buyer suffers financial or operational distress, becomes, voluntarily or involuntarily, a subject of a petition for bankruptcy or any proceeding relating to insolvency, liquidation or composition for the benefit of creditors; or (iii) The Buyer ceases to do business for any reason.
Upon termination or expiration of a Sales Contract, following terms shall become applicable: (i) All unshipped Products under the Sales Contract shall be automatically canceled; (ii) All outstanding invoices shall become due and payable on the effective date of termination; and (iii) All rights granted to the Buyer hereunder shall expire. The Seller shall not be liable to the Buyer for damages of any kind because of termination or expiration of a Sales Contract in accordance with these GTCS. The Seller shall not be liable to the Buyer for damages of any kind on account of termination or expiration of such Sales Contract.
Termination of any Sales Contract shall be without prejudice to the rights and obligations of the Seller, which have accrued up to the date of termination, and the exercise by the Seller of its rights under this Clause shall be without prejudice to its other remedies under these GTCS.
Neither party shall be entitled to assign or transfer all or any of its rights, benefits and obligations without the prior written consent of the other party, except that the Seller is entitled to assign to its affiliates or to whom the business operations is assigned to upon prior written notice to the Buyer. However, the Seller shall have the right to sell or otherwise transfer any receivables from the Buyer to a third party.
Any notice given by one party to the other shall be deemed properly given if specifically acknowledged by the receiving Party in writing or when delivered to the recipient by registered mail to the addresses (or such other address as may
be notified in writing from time to time by either party) specified in an Order or Sales Contract. Notice shall be deemed received on the first business day following receipt. Each communication and document made or delivered by one party to another shall be in the English language.
No failure to exercise, nor any delay in exercising, on the part of either party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.
If, at any time, any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, the legality, validity or enforceability of the remaining provisions shall in no way be affected or impaired thereby. The invalid provision shall be replaced by a valid one which achieves to the extent possible the original purpose and commercial goal of the invalid provision.
These GTCS and any sales contract shall be governed by and construed in accordance with the laws of Finland, excluding its choice of law provisions. ) In the event no settlement can be reached by means of negotiations, any dispute, controversy or claim arising out of or relating to these GTCS or any Order or Sales Contract under these GTCS, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce. The arbitration tribunal shall consist of one arbitrator. The arbitration shall take place in Helsinki, Finland. The arbitration shall be conducted and the arbitration award shall be given in the English language.
Any dispute, controversy or claim including but not limited to the possibility or existence of the proceedings, the proceedings themselves, oral statements made during the course of the proceedings, documents and other information submitted by the parties or prepared by the arbitrator, and the final award shall be deemed confidential information of the parties. However, this provision shall not restrict either party’s right to enforce the decision of the arbitrator.