General Terms of Business
Marinetek Group Oy
1/2010, Applicable as of 15 January 2010
These general terms and conditions (“General Terms”) of Marinetek Group Oy (“Marinetek”) shall apply when the parties agree in written or otherwise thereto of any purchase, distribution, supply, delivery or other contact concerning the delivery of the Products (as hereinafter defined) from Marinetek to the Buyer.
In these General Terms the following words and phrases shall have the meanings respectively set against them:
|Buyer||means a contracting party of Marinetek and may be a purchaser, dealer, subcontractor, distributor, agent, representative or any other contracting party of Marinetek purchasing the Product.|
|Confidential Information||means any information and material of Marinetek disclosed to the Buyer that is not public and is considered to be confidential and proprietary, e.g. data, drawings, specifications or documentation regarding the Product.|
|Contract||means a contract in written or otherwise between the Parties concerning the purchase of the Products and all appendices, including agreed amendments and additions to said documents.|
|Contract Price||means the payment to be made to Marinetek for the purchase of the Product.|
|Industrial Property Rights||means any and all trade marks, patents, industrial designs and utility models, including trade names and symbols owned by Marinetek.|
|Order Confirmation||means acknowledgement adapted by Marinetek for the purpose of selling the Product to the Buyer pursuant to these General Terms, as amended from time to time.|
|Parties||means Marinetek and the Buyer taken together and “Party” means either of them taken separately.|
|Product||means any products and/or accessories designed and/or manufactured by Marinetek or any of its subcontractors or affiliates for sale.|
|Product Information||means information given in data sheets, brochures and other marketing or advertising material.|
2. FORMATION OF THE CONTRACT
The Contract shall not be binding upon Marinetek until Marinetek despatches the Order Confirmation to the Buyer.
3. DELIVERY OF THE PRODUCT AND TERMS OF DELIVERY
Quoted delivery period and delivery date are to be considered only approximate. If not otherwise agreed, the quoted delivery time means time when products are ready for shipment.
No order which has been accepted by Marinetek may be cancelled by the Buyer, except with the agreement in writing of Marinetek and on terms that the Buyer shall indemnify Marinetek in full against all loss (including loss of profit), costs (including the cost of all labour and any materials used), damages, charges and expenses incurred by Marinetek as a result of cancellation.
The Buyer shall, in respect of each order for the Product, be responsible for ensuring the accuracy of the order by checking the Order Confirmation, and informing immediately Marinetek of any mistakes.
The Buyer shall provide Marinetek with any information which is necessary in order to enable Marinetek to fulfil the order.
The Buyer shall inspect the delivered Products immediately after their arrival and inform Marinetek of any defect or deficiency within four (4) days from the date of delivery. If Marinetek has not received any notice from the Buyer within the aforesaid period, the delivery is deemed to be accepted by the Buyer.
Marinetek reserves the right to refuse shipment an order if the Buyer is in default of any payment obligations to Marinetek or for any other reasonable cause.
If not otherwise agreed, all sales of Products from Marinetek to the Buyer shall be governed by these General Terms.
If not otherwise agreed, the term of delivery shall be Ex Works.
The risk in the Products passes to the Buyer, if not otherwise agreed in writing, when the Products are despatched from Marinetek (or its agent) and Marinetek accepts no responsibility for any damage, shortage or loss in transit. All claims for any such damage, shortage or loss must be made on the carrier.
Marinetek shall have no liability to the Buyer for any delay in delivery so long as Marinetek has used all reasonable endeavours to ensure that the delivery is effectuated on time.
The payment of the Contract Price shall be made as follows:
a) The payment terms shall be agreed separately in respect of each Product;
b) All payments after the date of maturity of the invoice shall entitle Marinetek to an overdue charge from the maturity date until payment has been made. The Payment shall be considered made when Marinetek has received the remittance;
c) If the Buyer fails to pay any amount payable under the Contract on the date of maturity, the Buyer shall pay default interest on overdue amount at the rate sixteen (16) per cent per annum, unless otherwise agreed between the Parties. If confirmed in written by Marinetek, the default interest on overdue amount may be less than sixteen (16) per cent per annum.
If the Buyer fails to make any payment on the due date then, without prejudice to any other right of remedy available under this General Terms, the Contract or applicable law, Marinetek shall be entitled to:
a) Cancel the Contract or suspend any further supplies to the Buyer;
b) Appropriate any payment made by the Buyer to such of the Products as Marinetek may think fit.
The prices do not include costs and expenses of packing, transportation, insurance, duties or any other costs or expenses to be paid by the Buyer.
Unless otherwise agreed by the Parties, all prices are presented in EUR and exclusive of VAT or any other taxies or duties, if applicable.
5. PRODUCT INFORMATION
The Product Information is given to the Buyer only as guidance and shall be binding upon Marinetek only to the extent that it is by reference expressly included in the Contract.
The actual measures and features of the Products that are handicraft work by Marinetek may deviate from the technical measures and features established in the Product Information, however not more than five per cent (5 %). Such deviations which have no significance in relation to the usability, structural durability or stability of the Product do not constitute a defect of the Product or a failure on Marinetek’s delivery.
6. THE INDICATION OF THE NAME OF THE MARINETEK OR THE PRODUCT AND OTHER INDUSTRIAL
The Buyer may not use the name of Marinetek or the name of the Product in the name of its own products or in any other way give an indication or misleading information that the Buyer’s product is a product of Marinetek. The Buyer is obligated to use and preserve all product marks of Marinetek attached in the Products as per their original design and not remove them or any part thereof.
What has been stated above on Marinetek’s name, product mark or the Product, applies equally to a logo, trademark or other corporate mark of any kind.
For the avoidance of doubt, Marinetek has a right to use the Buyer’s name as a reference, unless otherwise agreed between the Parties in written.
All intellectual property rights related to the Products shall remain the exclusive property of Marinetek. The Buyer recognizes the distinctiveness, validity, originality, value, goodwill and sole ownership by Marinetek of any Intellectual Property Rights related to the Products and the goodwill of the business in connection with which the Products are used.
Marinetek warrants that the Products shall correspond to their technical description at the time of delivery. Unless otherwise agreed, Marinetek shall give two (2) years material warranty for the Product (the “Warranty”). The Warranty shall commence on the initial date of delivery of the Product.
The Buyer is obligated to notify Marinetek in writing and within the Warranty period of any reclamation regarding the Product. Marinetek shall, within reasonable time, repair or replace (at Marinetek’s sole option) such part of the Product which does not comply, provided that such non-compliance has not been caused by any modification, variation or addition to the Product or caused by any incorrect use, abuse, neglect or corruption of the Product or from other than normal and ordinary use of the Product, such as combining the Product with another product or device.
The Warranty is given by Marinetek subject to the following conditions:
• Marinetek shall be under no liability in respect of any defect in the Product arising from any drawing, design or specification supplied by the Buyer or any third party acting on behalf of the Buyer;
• Marinetek shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Marinetek’s instructions (whether oral or in writing) or to use the Products in accordance with the Marinetek’s specification or alteration or repair of the Products without Marinetek’s approval;
• unless Marinetek is liable under the Contract to deliver the Product, it will accept no responsibility for damage or loss of the Product in transit or any consequential loss arising therefrom;
• Marinetek shall be under no liability under the Warranty if the total price for the Product has not been paid in full;
• the Warranty does not cover any cosmetic damages or damages, which have no significance in relation to the usability, structural durability or stability of the product;
• Marinetek accepts no liability for damages or loss which has been caused by exceptional weather conditions exceeding the design criteria of the Product;
• the Warranty does not extend to equipment not manufactured by Marinetek in respect of which the Buyer shall only be entitled to the benefit of any such warranty of guarantee as is given by the manufacturer to Marinetek.
Unless otherwise agreed, the Buyer is responsible to install the component delivered by Marinetek to replace any defective component.
The Buyer shall ensure that any Products, any modified or altered Products and any products or services integrating or incorporating the Products or/and any modified or altered Products used, produced or made available to third parties by the Buyer comply to and are used in accordance with all requirements and standards imposed by any applicable rules, regulations and guidelines including without limitation any requirements and standards regarding instructions for use of such products and manuals.
Notwithstanding the foregoing, if the Buyer intentionally orders Products with specifications that do not fulfil some or all of the requirements and standards in force in the European Community, Marinetek expressly disclaims any liability for conformance of such Products with the requirements and standards in force in any jurisdiction.
Marinetek’s employees or agents are not authorized to make any representations or warranty concerning the Products unless confirmed by Marinetek in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
8. LIMITATIONS OF LIABILITY
The Buyer is solely responsible for choosing the Product, as well as for deciding most appropriate use to which it should be put. Marinetek does not undertake any guaranty or warranty concerning the ability of the Product to achieve all the intended measures, objectives or applications posed by the Buyer, unless expressly agreed by Marinetek in writing.
Unless agreed to the contrary by Marinetek in writing, the Buyer shall be deemed to be satisfied itself that the Product is suitable for the intended purpose and for use in location proposed. Marinetek accepts no responsibility for any loss or damage resulting from such unsuitability.
Marinetek DISCLAIMS ALL ADDITIONAL OR FURTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT WITHOUT LIMITATION TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES AND NON-INGRINGEMENT.
9. FORCE MAJEURE
Neither Party shall be liable for failure to fulfill or for delay in fulfilling its obligations when such event is unforeseeable and due to causes beyond its reasonable control, including but not limited to acts of war, riots, civil commotion, strikes or other concerted action of workmen, lockouts, acts of nature, fire, accidents, prohibition of imports or other acts of government, discontinuance of adequate means of transport or discontinuance of distribution of energy or some other unusual event, which is independent of any action of either Party, and which prevents the fulfillment of the Contract these Genereal Terms, and which could not be avoided or overcome without unreasonable expense.
The Party whose performance is prevented or delayed by an event of Force Majeure, shall inform the other Party of the event of Force Majeure as well as of the termination of the event of Force Majeure, in writing as soon as reasonably possible, and shall do all things reasonably possible to mitigate any loss being caused to the other Party due to the event of Force Majeure. In the event that the delay or non-performance of Marinetek continues for a period of sixty (60) days due to reasons of Force Majeure, Marinetek shall have the right to cancel the order of Products affected by such Force Majeure with immediate effect without liability.
10. CONFIDENTIAL INFORMATION
The Buyer will use its best efforts to prevent itself or any of its employees or other personnel from disclosing or making available any of Marinetek´s Confidential Information to any other person or entity or make use of any of Marinetek´s Confidential Information for any purpose.
If the Buyer violates this Section 10 of these General Terms, the Buyer is liable to pay to Marinetek as a contractual penalty an amount of EUR 50,000 for each breach of confidentiality obligation.
In case the direct or indirect damages caused by the Buyer´s breach of contract to Marinetek are not covered by the penalty payment defined above, the Buyer shall be liable to compensate the full amount of damages.
11. APPLICABLE LAW
Any agreement, including these General Terms, between the Buyer and Marinetek shall be governed by and construed in accordance with Finnish law with the exception of its conflict of laws provisions to the extent that any such provision would dictate that the substantive laws of any other jurisdiction apply.
Any disputes possibly arising in connection with any agreement, General Terms or the Product, which cannot be settled by negotiations, are to be settled finally by arbitration.
The arbitration shall be conducted by one arbitrator if the parties can agree on the nomination of one arbitrator. In other case, there shall be three arbitrators, one nominated by both parties and these two arbitrators nominate the chairman. In the event the two arbitrators can not agree on the third arbitrator acting as chairman, this shall be appointed by the Arbitration Committee of the Finnish Central Chamber of Commerce. The arbitration proceedings shall be conducted in Finnish and/or English and shall take place in Helsinki, Finland.
The party losing the arbitration shall pay both the fees and costs of the arbitrators and the costs and expenses of the winning party.
Any notices between the Buyer and Marinetek shall be carried out in written and send by registered mail, telefax, e-mail or otherwise verifiably.
Any changes to any agreement between the Buyer and Marinetek will have to be in written, and signed by the parties.
The Buyer cannot assign or transfer its rights or obligations under the Contract or these General Terms in whole or in part to any third party without prior written consent of Marinetek.
It is expressly understood that Marinetek shall be entitled to perform any of the obligations undertaken by it and to exercise any of the rights granted to it under the Contract or these General Terms through any other company which at the relevant time is its holding company or subsidiary or the subsidiary of any such holding company and any act or omission of any such company shall for the purposes of the Contract and these General Terms be deemed to be the act or omission of Marinetek.
In case the provisions of the General Terms and the relevant Contract or any other agreement are in conflict, the provisions of the relevant Contract or agreement shall prevail. If any provision of the Contract or the General Terms becomes invalid under the applicable laws or by a decision of court, the validity of the remaining provisions hereof shall not in any way be affected or impaired thereby.
Marinetek shall have a right to change these General Terms.
Download the General Terms here (pdf).