GENERAL TERMS AND CONDITIONS FOR sale 2018:1
BAUX AB (Swedish corp. id no. 556951-4523) designs, produces and markets functional construction materials and acoustic products that meet the contemporary expectations of architects, engineers and builders – without compromising tomorrow’s safety and environmental standards.
These general terms and conditions and the policies may change from time to time so please check these before making any purchase.
If you have any questions about these terms and conditions or the policies please contact us at BAUX.
These general terms and conditions shall apply to the sale of products, hereinafter referred to as the “Product”, by BAUX AB (“BAUX”), to the buyer. No other terms and conditions shall apply and any changes and/or modification to these terms and conditions must be executed in writing between the parties, explicitly stating the changes made and referring to these terms and conditions.
The contract, executed verbally, in writing or otherwise between the parties, by which BAUX has agreed to sell the Product to the buyer is hereinafter referred to as the “Agreement”, to which these general terms and condition form an integral part of.
If provisions in the documents, which together constitute the Agreement, are in conflict, the following priority shall apply, if not otherwise agreed between the parties.
a. The document, signed by the parties to which the provisions in this document form the general terms and conditions (the “Contract”)
b. Any appendices to the Contract
c. These general terms and conditions
The agreed price, which is to be paid for any Product sold by BAUX, is hereinafter referred to as the “Agreed Price”.
DELIVERY AND DELAY IN DELIVERY
2 Delivery and delay in delivery
Delivery shall be made pursuant to the agreed INCOTERM and delivery location (“Delivery Location”). Where no delivery terms have been agreed, delivery shall be made Ex Works pursuant to the INCOTERMS applicable at the time of execution of the Agreement.
Irrespective of the delivery terms agreed, the buyer is responsible for informing BAUX of any specific needs and requirements in connection to the delivery, including however not limited to on- and off loading of the Product at the Delivery Location. Any additional costs incurred by BAUX as a consequence of lack of such information shall be borne by the buyer.
3 Delivery time
Delivery shall be made as agreed.
4 Discharge from liability, including liquidated damages, for delay in delivery (force majeure)
The following circumstances constitute grounds for discharge from liability: war, mobilization or military draft of a similar scope, terrorism, sabotage, general or local industrial action, fire, flood, natural disaster, requisition, seizure, public authority order, trade restriction, payment restriction or currency restriction, uprising or riot, epidemic, shortage of means of transport, general shortage, any limitation in the provision of electricity, fuel, or data communications and telecommunications, as well as other similar incidents and any other circumstance over which BAUX does not have control. Any delay in delivery on the part of any party assisting BAUX in the performance of the Agreement which is caused by any such ground for discharge from liability, as well as any other circumstance over which such party and/or BAUX does not have control, including however not limited to delays caused by custom authorities or any other such authority regulating the importing and exporting of goods, shall also constitute grounds for discharge from liability. The aforementioned circumstances constitute grounds for discharge from liability only where BAUX could not have reasonably foreseen their impact on the performance of the Agreement when the Agreement was executed.
In the event that grounds for discharge from liability exist, the delivery time shall be extended for as long as is reasonable under the circumstances. BAUX shall be entitled to extend the delivery time notwithstanding that the reason for the delay arose after the end of the originally agreed delivery time.
Either Party shall be entitled to terminate the Agreement where performance of the Agreement is delayed due to any ground for discharge from liability, which persists for more than six months.
5 Liquidated damages for delay
Where BAUX fails to deliver the Product as provided in Section 3, the buyer shall be entitled to liquidated damages. The liquidated damages shall be 0.5 percent of the Agreed Price for each full week of the delay. However, no liquidated damages shall be paid for the first week (seven days’) of the delay. The liquidated damages shall not exceed 5 percent of the Agreed Price for the delayed delivery. Where only one part of the delivery is delayed, the liquidated damages shall be calculated on the price of such part of the delivery, which the buyer cannot use due to the delay. The buyer shall be entitled to demand payment of liquidated damages when the scope of the delay is known or when the delay entitles the buyer to the maximum liquidated damages for delay. The buyer forfeits its right to liquidated damages where the buyer fails to make a written claim for liquidated damages not later than one month from the date on which the partial delivery was to have taken place.
6 Cancellation of partial delivery due to delay
When the length of the delay is such that the buyer is entitled to maximum liquidated damages pursuant to the preceding section, the buyer shall be entitled to cancel the partial delivery through notice of cancellation to BAUX. Prior to such notice of cancellation taking effect, BAUX shall be granted a grace period of not less than two weeks to deliver the Product.
7 Return of Product
If not otherwise agreed between the parties in writing, the buyer may not return part of the Product remaining from installation, i.e. excess material not used.
PAYMENT, LATE PAYMENT AND TAXES
8 Time for payment
The buyer shall pay the entire Agreed Price for the order once the order is submitted and confirmed in order for BAUX to dispatch the order. Full payment is not completed and buyer’s payment obligations are not discharged until the funds for the Agreed Price are in the possession of BAUX. All risk of non-payment rests with buyer until such time. Local exceptions apply in selected markets.
9 Discharge from liability for late payment (force majeure)
The buyer shall be entitled to an extension of time for payment where the buyer is prevented from making payment due to war, terrorism, sabotage, industrial action, extreme acts of nature, requisition, seizure, public authority order, trade restriction, payment restriction or currency restriction, uprising or riot, epidemic, shortage of means of transport, any limitation in the provision of electricity, fuel, or data communications and telecommunications, as well as other similar incidents.
BAUX shall be entitled to terminate the entire Agreement where the late payment is due to a force majeure circumstance, which has persisted for more than three months.
10 Interest on payment due
Where the buyer’s payment is overdue, BAUX shall be entitled to interest on the amount due as from the due date corresponding to 1,5 percent per month.
In addition to interest, BAUX shall be entitled to damages for all loss.
11 Withholding performance
BAUX shall be entitled to withhold its performance until full payment is received irrespective of the reason for the buyer’s failure to pay in due time.
12 Cancellation of partial delivery due to late payment and damages upon cancellation
BAUX may terminate the entire Agreement where the buyer fails to make payment within three months of the due date or where it is clear that the buyer will not be able to pay. In the event of termination due to the buyer’s lack of payment, BAUX shall be entitled to damages for all loss in addition to the interest.
BAUX is the owner of the Product until it has been paid in full. BAUX shall be entitled to repossess the Product in connection with a termination for failure to timely make payment.
The buyer shall, where possible, keep the Product separate from other items located in the same premises or storage facilities and clearly mark the Product as being the property of BAUX until payment has been made in full.
14 Obligation to take receipt of the Product
The buyer is obligated to take receipt of the Product on the agreed date specified in Section 3. Where the buyer fails to take receipt of the Product on the agreed date, the buyer shall nevertheless make payment as though delivery had taken place. BAUX shall take reasonable efforts to store the Product, however at buyer’s risk and expense. BAUX shall be entitled to terminate the Agreement where the buyer’s delay in taking receipt of the Product is unreasonable in BAUX’s sole discretion.
All prices for the Product are exclusive of value added, sales, or use tax or any other such tax or charge. The buyer is responsible for paying any tax, charge, fee, surcharge, duties, customs duties and fees etc. payable due to the sale of the Product, however excluding corporate tax pertaining to BAUX. The buyer shall compensate BAUX for any such cost incurred by BAUX in connection to the sale of the Product.
BUYER’S SPECIFIC OBLIGATION
16 Obligation to comply; specific indemnification
Buyer agrees to use the Products in compliance with all applicable laws, rules and regulations, including, without limitation, United States and foreign export, re-export, and import control laws and regulations such as the Export Administration Regulations administered by the U.S. Bureau of Industry and Security and the economic sanctions regulations administered by the U.S. Office of Foreign Assets Control.
BAUX is providing the Products to Buyer solely for use in the United States, unless otherwise expressly consented to by BAUX in writing. Buyer shall take all reasonable steps to ensure that all users of the Products are properly trained and qualified to use the Products according to the relevant documentation and that each user complies with any safety warnings, notices or agreements provided by BAUX.
The Buyer shall comply with the information material and any other information provided by BAUX regarding e.g. the characteristics, handling, installation and maintenance of the Product. The buyer is responsible for correct storage of the Product and that, if the buyer acts as a reseller or other agent for BAUX, information provided to a third party is correct and up-to-date with the latest instructions from BAUX regarding the Product.
Notwithstanding anything to the contrary in the Agreement and for the sake of clarity these general terms and conditions, BAUX is not responsible for the installation of the Product and/or issues resulting from the installation of the Product, including however not limited to the aesthetic nature of the installation or the Product itself.
The buyer shall indemnify and hold BAUX harmless for any damages caused due to non-compliance by the buyer.
THE QUALITY OF THE PRODUCT AND BAUX’S LIABILITY
17 Liability for defects
The characteristics and quality of the Product shall be materially consistent with the specifications set forth in the Agreement and its appendices and other relevant and current material provided by BAUX upon delivery. BAUX shall not otherwise be liable for the characteristics of the Product. BAUX shall also not be liable for defects or damage caused by the buyer, the buyer’s contractors and consultants or any other third party, due to e.g. insufficient maintenance or incorrect handling.
18 Significance of warranties etc.; default warranty
BAUX provides the Products on an “as is” basis. To the extent permitted by law, BAUX and its suppliers and licensors disclaim all warranties, whether express, implied, statutory or otherwise, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement, and those arising out of course of dealing or usage of trade.
If not specifically stated in the Agreement including appendices or otherwise agreed between the parties in writing, BAUX only warrants that the Product meets, at the time of sale, in all material respects the characteristics as stipulated in the information provided by BAUX. Notwithstanding the foregoing, any information provided by BAUX regarding the performance of the Product, e.g. with regard to the level of sound absorption, shall be regarded as approximations and BAUX does not warrant and/or guarantee that stated levels etc. will be reached. The buyer acknowledges that the performance of the Product may depend on the premises and venue specific circumstances, such as climate and building materials.
19 Liability period
BAUX shall only be liable for Product defects, however conditioned upon that such defect is subject to a guarantee, which existed at the time of the delivery of the Product and that the Buyer claim compensation for within one year following the time of delivery and subject to the limitation in Section 20.
Notwithstanding anything to the contrary in these general terms and conditions, the buyer is obligated to inspect the Product prior to installation in order to claim compensation for defects that are apparent to the buyer when inspecting the Product, including however not limited to color, dimensions and pattern.
20 Notice of defect
The buyer shall notify BAUX of any defect without unreasonable delay, however not later than within two weeks from the date on which the defect manifested itself, or the buyer should have discovered the defect. The notice of defect shall contain a description of the defect. The buyer’s untimely notice of the defect shall result in forfeiture of the right to complain of the defect.
21 Unfounded notice of defect
The buyer shall compensate BAUX for any and all labor and costs where the buyer gives notice of a defect in a Product and BAUX determines in its sole discretion that there was no defect for which BAUX was liable.
22 Rectification of defects
Only BAUX shall have the right to rectify any defects. BAUX shall be entitled to determine whether rectification will be made through repair or through replacement of the Product (redelivery) in its sole discretion. BAUX shall rectify the defect promptly where the Product is located. BAUX shall bear the costs of rectification, including the costs of troubleshooting and transport that are incurred by BAUX as a result of the rectification. The buyer shall bear any extra costs incurred as a result of the Product being at a location other than the Delivery Location. The buyer shall be responsible for labor and costs incurred as a result of the rectification resulting in modification to objects other than the Product.
BAUX shall not be obligated to rectify a defect where doing so would be unreasonably burdensome, particularly in light of the costs of rectification when compared with the significance of the defect and/or the value of the Product. In such case, the buyer’s sole remedy shall be to terminate and/or seek damages in accordance with Section 23.
23 Remedies in the event of insufficient rectification
Where BAUX breaches its obligation to rectify a defect and fails to comply with the buyer’s request to rectify by a specific reasonable deadline, the buyer shall only be entitled to claim damages for all loss, at a maximum of 20 percent of the Agreed Price of the defective partial delivery.
24 Incomplete rectification
Where complete rectification of the defect is not reasonable or possible and the buyer does not terminate the Agreement, the buyer shall be entitled to damages for all loss corresponding to a maximum of 20 percent of the Agreed Price for the defective partial delivery.
25 Cancellation of delivery due to incomplete rectification and damages upon cancellation
Where the defect is not rectified and there is a material defect, the Buyer shall be entitled to cancel the defective delivery, or part of such delivery. In the event of such cancellation, the buyer shall be entitled: (i) to a refund of any purchase price paid for the cancelled delivery, or part of such delivery; and (ii) to damages for all loss, not to exceed 20 percent of the Agreed Price for the delivery.
LIMITATION OF LIABILITY, PRODUCT LIABILITY AND DISPUTES
26 Limitation of liability
BAUX shall have no liability beyond that which follows from the preceding sections and the buyer shall not be entitled to remedies due to BAUX’s breach of contract other than those, which follow from the preceding sections. This limitation of liability shall not apply where BAUX has committed gross negligence.
Notwithstanding anything to the contrary, BAUX is under no circumstances liable for any indirect, incidental, consequential, special, or punitive damages incurred by the buyer and/or a third party however caused, and under whatever cause of action or theory of liability brought (including under any contract, negligence, or other tort theory of liability) even if advised of the possibility of such damages.
27 Product liability
Notwithstanding any previous provisions regarding liability in damages, BAUX shall not be liable for any property damage or personal injury, including death, and including damages and injury on a third party, resulting from any defect in the Product or the handling, installation and/or maintenance of the Product, where BAUX is not at fault. In the event BAUX incurs liability in damages to any third party due to property damage or personal injury, including death, the buyer shall indemnify and hold BAUX harmless. This limitation shall not apply where BAUX has committed gross negligence.
For the purposes of this Agreement, “Confidential Information” means any business or technical information that either party discloses to the other Party, in writing, orally, or by any other means, that should reasonably have been understood by the receiving party due to “confidential” and similar markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the other Party, including, without limitation, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. Neither Party will use the other Party’s Confidential Information, except as permitted under this Agreement. Each Party agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as such party uses for its own information of a similar nature, but in all events at least a reasonable degree of care. Each Party agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other’s Confidential Information, including, without limitation, disclosing Confidential Information only to such party’s employees, independent contractors, consultants and legal and financial advisors (collectively, “Representatives”) (a) with a need to know such information, (b) who are parties to appropriate agreements sufficient to comply with this Section 28, and (c) who are informed of the nondisclosure obligations imposed by this Section 28. Each party will be responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable them to contest such order or requirement. The restrictions set forth in this Section 3 shall remain in effect during the term of the Agreement, and for five (5) years thereafter. The restrictions set forth in Section 3 will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party’s Confidential Information.
29 Governing law and Jurisdiction
These general terms and conditions shall be governed by and construed in accordance with the laws of Sweden without regard to its principles of conflict of laws.
Any dispute, controversy or claim arising out of or in connection with these general terms and conditions, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.
The parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the prior consent by the other party.
Last updated: 29 June 2018
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