Terms and Condition of Sale
Document number: AP10-01ATC-015-15A
Document revision: 15A
In these terms,
”Seller” means Antenna Provider Finland Ltd Myyrmäentie 2B, 01600 Vantaa, Finland, Business ID: 2683727-1;
”Buyer” means the entity purchasing the Goods, including any successors thereof;
”Goods” means the goods, service, products and materials manufactured, imported, supplied and/or delivered for or by Seller to Buyer, as such were approved by Seller in reply to Buyer’s order and accordingly listed in the Approval of Order;
”Approval of Order” in respect of any Buyer’s order, means the instrument issued by Seller, bearing the same reference number of such order and specifying, among any other terms, the items of Goods, including their respective price and quantity, which shall be supplied to Buyer upon such order;
”Contract” means the contract for the supply of Goods which have been ordered by Buyer and specified in Seller’s Approval of Order, which contract is concluded based on these Terms and Conditions of Sale unless otherwise specified in the Approval of Order.
”Writing” means any written communication including letter, fax, e-mail and all similar means of communication.
These terms and conditions shall govern all orders accepted by Seller. No additional or different terms are acceptable. Typographic and stenographic errors, or other error or omission are subject to correction in this document and in any sales literature, e.g. quotation, invoice. Seller reserves the right to make changes to these terms at any time without notice.
Unless otherwise Writing agreed, Payment terms shall be net thirty (30) days from the date of invoice. Buyer shall pay the price set out in the Contract and on the Approval of Order. Incomplete payment, or payment received after the due date specified in the Contract shall bear a service charge which will accrue from the due date whether inscribed on the relevant invoice or otherwise agreed, at the maximum lawful interest rate applicable, and if none – at the annual rate of 5% above the base rate from time to time of the central bank of the place of Seller’s incorporation.
All payments shall be made to Seller’s designated bank account in the same currency and for the same amounts as specified in the Approval of Order. Any surcharge imposed by remitter’s bank, remittance charges and/or any applicable taxes must be paid by the Buyer.
Prices, Duties and Taxes
Prices specified in the Approval of Order are net, excluding packaging, and shall be deemed Ex-works (Incoterms 2010 as amended). Prices are based, inter alia, on production costs for supplies, labor, deliveries, duties and services current on the order date. In the event of material increase in any such costs, Seller reserves the right to either adjust the prices for Goods accordingly, or to cancel any certain part of the sales relating to undelivered Goods. Duties, taxes, fees, levies and other compulsory payments applicable to the sale of Goods any time, as well as freight, express, insurance and delivery charges, shall all be borne and paid in full by Buyer, unless otherwise expressly stipulated.
Validity and Cancellation
Unless otherwise stated, Approval of Order are valid and subject to acceptance by Buyer for a period of twenty-eight (28) days. Price breakdowns are provided for reference only, and Approval of Order are not subject to incremental purchasing. Designs, tooling, programs, process routings and all other intermediate items utilized in the production of the primary end product are non-deliverable and remain the property of Seller, whether itemized in a price breakdown or not, unless specifically stated otherwise.
Except in the case of time and material contracts, Seller reserves the exclusive right to subcontract at its sole discretion without prior or subsequent notification.
Where warranted by business conditions or other circumstances, cancellation of the order may incur cancellation charges on a take-or-pay basis.
The minimum cancellation charge is twenty percent (20%) of the of the total price reported in the Contract.
Delivery dates noted on the Contract are subject to reasonable adjustment. The acceptance of shipment by a common carrier or by any licensed public truckman shall constitute proper delivery. Risk associated with the Goods shall pass to Buyer on delivery or with the passing of title in the Goods, whichever occurs first; provided however, that where delivery is delayed due to circumstances caused by or within the responsibility of Buyer, risk of loss shall pass to Buyer upon Seller’s notification that Goods are ready for dispatch. Unless otherwise Writing specified in the Approval of Order or Contract, all charges, expenses or taxes associated with the delivery shall be paid by the Buyer.
Retention of Title
Title shall pass to Buyer only upon full payment by Buyer for the Goods and following payment of any other outstanding debt by Buyer to Seller. Buyer shall, at Seller’s request, take any measures necessary under applicable law to protect Seller’s title in the Goods, and lawfully notify Buyer’s present or potential creditors of Seller’s title on and interest in the Goods. Buyer acknowledges that so long as title has not been transferred in the Goods, it holds the Goods as bailee and fiduciary agent for the Seller and shall safely and securely store and keep the Goods separate and in good condition, clearly showing the Seller’s ownership of the Goods and shall respectively record the Seller’s ownership of the Goods in its books.
Seller warrants Goods delivered as free from any defects resulting from faulty workmanship for a period of one year from date of delivery.
Seller warrants that Goods sold hereunder meet their descriptions or specifications, subject to use, storage and application thereof in accordance with and based on Seller’s standard tolerances, instructions of use and recommendations.
Unless otherwise restricted by mandatory applicable law, THE WARRANTY SET FORTH HEREIN IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR USE AND FOR PURPOSE, ANY ADVICE AND RECOMMENDATION AND ANY OBLIGATIONS OR LIABILITIES WHICH MAY BE IMPUTED TO SELLER, ANY AND ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED, DENIED AND EXCLUDED. BUYER EXPRESSLY AGREES THAT NO WARRANTY THAT IS NOT SPECIFICALLY STATED IN THIS AGREEMENT WILL BE CLAIMED OR OTHERWISE ADHERED TO BY BUYER AND/OR BY ANYONE ACTING ON BUYER’S BEHALF AND/OR BY ANYONE DERIVING THE LEGALITY OF ITS CLAIM FROM BUYER, NOR THAT WILL ANY SUCH WARRANTY BE VALID. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, USE OR HANDLING OF ANY AND ALL GOODS SPECIFIED OR CONTEMPLATED BY THIS CONTRACT. NO WARRANTY IS MADE WITH RESPECT TO ANY OF THESE GOODS WHICH HAVE BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, IMPROPER CARE, IMPROPER STORAGE, IMPROPER MAINTENANCE, ABUSE OR MISUSE.
Claims and Liability
Unless Seller shall within five (5) days after delivery of the Goods, receive from Buyer Writing notice of any matter or thing by reason whereof it is alleged that Goods are not in accordance with the Contract, Goods delivered shall be deemed to have been supplied, delivered and accepted in all respects in full conformity with the Contract and Buyer shall be entitled neither to reject the same nor to raise any claim for damages or for other remedy in respect of any alleged negligence and/or breach of warranty and/or any condition.
In any claim, brought subject to the conditions above, Buyer must prove to the satisfaction of Seller that it followed Seller’s instructions for use, care, storage, maintenance, handling and application of the Goods.
Seller shall not be liable for personal injury, death, property damage resulting from any defect in the products, or for indirect, special, incidental or consequential damages of any nature including, but not limited to, loss of profit, loss of data use, promotional or manufacturing expenses, overhead, injury to reputation, loss of business opportunities or loss of customers resulting from any defect in the Goods. In not event Seller liability shall exceed the amount of actually received from Buyer, irrespective of the nature of the claim, tort, warranty, Contract, or otherwise. Should any limitation on Seller’s liability hereunder be held ineffective under applicable law, than Seller’s liability shall in any event be limited to the minimum amount of damages to which Seller may limit its liability, where such is greater than the purchase price as specified in Seller’s pertinent invoice.
Buyer, for himself and for any other party which may claim either under or through Buyer, or independently of Buyer, including Buyer’s employees, directors, officers, representatives, affiliates and personnel, shall indemnify and hold Seller harmless, from and against any claim or liability for damages for negligence including but not limited to, any claim in connection with the design, manufacture, use, care, storage, delivery, application or maintenance of any Goods sold hereunder, whether alleged to have been committed by Seller or by any other person whatsoever. Buyer’s undertaking as specified in this subsection shall extend and inure to the benefit of Seller and of Seller’s successors at any time, as well as to Seller’s affiliates, personnel, representatives, managers, directors and officers.
Any and all warranties, undertakings, guarantees or assurances provided herein by Seller, are specifically limited to Buyer herein, and not imputed by Seller, whether directly or indirectly, expressly or impliedly, to any other person or entity, including any subsequent buyer or user, bailee, licensee, assignee, employee and agent of Buyer.
Any provisions specified or implied by herein or elsewhere notwithstanding, any advice, recommendation, information, assistance or service provided by Seller in relation to the Goods or in respect of their use or application is given in good faith, shall be deemed accepted by Buyer without imputation of any liability to Seller, and it shall be the responsibility of Buyer to confirm the accuracy and reliability of the same in light of the use of which Buyer makes or intends to make of the Goods.
In the event that Buyer makes a warranty claim pursuant to Warranty Paragraph, Products may be returned, only after Buyer receives written approval from Seller (including RMA number) to return the Products and upon receipt by Buyer of shipping instructions from Seller. Unless otherwise stated in Seller’s written approval for a return, all returns of Products shall be subject to the following conditions: (1) all Products being returned must be in their original packaging and in new and saleable condition, (2) only complete package quantities may be returned, or as packaged as a partial shipment at time of delivery, and (3) all returns shall be subject to a restocking charge of twenty percent (20%) of the original purchase price of the returned Product. All products must be returned freight prepaid and insured within 30 days of obtaining an RMA.
Upon failure of Buyer to pay any amounts due to Seller, or in the event of any breach or anticipated breach by Buyer of any Contract with Seller, or if Buyer shall either become insolvent, or if a bankruptcy, insolvency, reorganization, receivership or reorganization proceeding shall be commenced by or against Buyer, then, in each such occasion, Seller may, at its sole discretion, opt to cancel any Contract with Buyer (without waiving any of Seller’s rights to pursue any remedy against Buyer); claim return of any Goods in the possession of Buyer, the title of which has not passed to Buyer, and enter Buyer’s premises (or the premises of any associated company or agent where such Goods are located), without liability for trespass or any alleged damage, to retake possession of such Goods; defer any shipment hereunder; declare forthwith due and payable all outstanding bills of Buyer under this or any Contract; and/or sell all or part of the undelivered Goods, without notice at public and/or on private sale, while Buyer shall be responsible for all costs and expenses of such sale and be liable to Seller for any shortfall in the discharge of the amounts due to Seller.
Should Seller be prevented from effecting deliveries of the Goods or any of them by reason of either an act of god, insurrection, riot, war hostilities, terror attacks, warlike operations, piracy, arrests, restraints or detainments by any competent authority, strikes or combinations or lock-out of workmen, fire, floods, droughts, earthquakes, permanent or temporary delay or inability to obtain labor, material or services through Seller’s usual and regular sources, or any other circumstances (whether of a nature similar to those specified, or not) beyond the absolute control of the Seller, then, in each such cases, the obligation of the Seller to effect deliveries hereunder shall be suspended until after such prevention shall cease to continue. Should any deliveries under this Contract be suspended under this clause for more than 90 days – either party may withdraw from this Contract and be relieved from any liability; provided however, that Buyer shall nevertheless accept delivery and pay for such Goods once the Seller is able to deliver in accordance with the period(s) of shipment named in this Contract. Seller shall not be liable for, and be relieved from, any loss or damages of any kind resulting from the causes mentioned hereinabove.
Confidentiality and Data Rights
In the absence of an existing written agreement of confidentiality between Seller and Buyer, each party hereto agrees to maintain in absolute confidence the proprietary information and trade secrets (“Confidential Information”) of the other party and shall not disclose the Confidential Information to any person or company without the prior written consent of the disclosing party, provided, however, that the recipient may disclose portions of the Confidential Information to those of its employees or suppliers who need to know such information for the purposes of performing this Agreement and who agree to be bound by this Agreement to the same extent as if they were parties hereto. The confidentiality obligations of each party under this Agreement shall survive the termination of any business discussions or relationship between the parties and shall remain in effect after such termination.
If the Contract includes design services as a deliverable, then Seller grants to Buyer a nonexclusive, nontransferable, royalty free license to use all information, designs, reports and drawings furnished to Buyer and first made by Seller under this Agreement.
If Seller has designed and/or manufactured according to the specifications of Buyer, then Buyer shall indemnify Seller and hold it harmless from and against any and all claims, damages, judgments, losses and expenses (including legal fees) based upon or arising from allegations of infringement upon trademarks, copyrights, patents and/or trade secrets.
Except as otherwise expressly provided, no license or other right is hereby transferred to Buyer, including any license by implication, estoppel or otherwise, under any patent, patent application, trade secret, trademark or copyright.
This merges the entire terms and conditions for sale of the Goods. In the event of any conflict between the terms herein and any provisions included in the Approval of Order, the latter shall govern and prevail. Subject to the foregoing, nothing specified in, or referred to by, any other document, record or instrument whatsoever, which relates to and/or which otherwise subsists in connection with the sale of Goods herein, whether expressly or impliedly, including any written order, request or other standard or specific terms of any entity, shall or may be interpreted to attribute to Seller and/or to Seller’s affiliates or representatives (i) any liability, obligation, commitment and/or undertaking, and/or (ii) any waiver in connection with or of any right, whether contractual, proprietary, in-personam and/or equitable, including but not limited to, any and all intellectual property rights in connection with the Goods, which are and shall always remain in the Seller’s exclusive and complete ownership under all circumstances whatsoever, notwithstanding any sale of Goods hereunder and whether the Goods shall be standard Goods or manufactured to a specific order. The Buyer shall refrain at all times and for whatever purpose from infringing, contesting, disputing or questioning such rights, patents, trademarks, titles or interests, nor shall it aid or allow others to do so, regardless of whether directly or indirectly. No modification or waiver of any provision hereof shall become valid and effective except upon a written instrument duly signed beforehand by Seller. No waiver by either party of any default of the other party shall be deemed a waiver of any subsequent or other default.
Law and Arbitration
These terms and conditions shall be governed by Finnish Law and shall be subject to the non-exclusive jurisdiction of the Helsinki District Court.