ONBONE – GENERAL CONDITIONS OF SALE
Except to the extent otherwise agreed in writing, these general conditions of sale ("General Conditions") shall, to the exclusion of any other general terms and conditions, apply to all contracts regarding the sale of Products by Onbone Oy or its Affiliate(s) (as defined below).
For the purposes of these General Conditions, the following definitions shall apply:
(i) "Affiliate" shall mean an entity belonging to the Onbone Group of companies/ any entity, whether incorporated or not, which presently or in the future, directly or indirectly owns, is owned by or is under common ownership with, by virtue of a controlling interest of 50 % or more of the voting rights or the capital, a party to the Agreement.
(ii) “Agreement” shall mean the written agreement, confirmed purchase order or any other similar document of purchase of the Products, which include these General Conditions as well as any and all appendices attached to the document.
(iii) “Onbone” shall mean the entity that sells the Products to the Purchaser, whether Onbone Oy or its Affiliate, as the case may be.
(iv) “Parties” shall mean collectively Onbone and the Purchaser and “Party” shall mean Onbone or the Purchaser, as the context indicates.
(v) “Price” shall mean the price for delivery of the Products as finally agreed upon by the Parties in the Agreement.
(vi) “Products” shall mean the products, materials and related documentation to be provided by Onbone to the Purchaser under the Agreement.
(vii) “Purchaser” shall mean the entity or person to which Onbone is delivering the Products under the Agreement.
2.1 An offer from Onbone is valid for seven (7) days from the date of issue, unless expressly stated otherwise in the offer. Notwithstanding the foregoing, Onbone shall have the right to revoke an offer at any time prior to receiving the Purchaser’s written acceptance.
2.2 The Purchaser may also order Products without prior offer by sending a purchase order to Onbone. In such a case, Onbone shall confirm the purchase order placed by the Purchaser within three (3) working days from the receipt of the purchase order. If the Purchaser does not receive written confirmation from Onbone within the above mentioned period, the purchase order shall be deemed rejected by Onbone.
2.3 Onbone's offer/confirmation of the Purchaser’s order is always conditional on the Purchaser’s acceptance of these General Conditions. Acceptance of delivery of the Products without prior objection to these General Terms shall constitute such acceptance.
3.1 The Products will be delivered, and are priced, Ex Works (interpreted according to the latest effective version of Incoterms) at Onbone's production site or other facility designated by Onbone in the offer.
3.2 The Products shall be packed in the agreed manner or, if nothing has been agreed in this respect, in a manner which is appropriate with regard to the means of transport to be used and the nature of the Products.
3.3 Unless explicitly agreed otherwise in writing, delivery times are approximate and are dependent, amongst other, on receipt of information required by Onbone.
3.4 Title to the Products shall pass to the Purchaser simultaneously with the transfer of risk as defined in the agreed term of delivery (Incoterms).
3.5 The Purchaser shall within five (5) days of the delivery inform Onbone in writing of any shortages, damage or other visible errors or deviations of or to the Products. If the Purchaser fails to notify Onbone thereof within the aforementioned period, the Purchaser shall be deemed to have accepted quantity and quality of the Products as being in accordance with the Agreement.
4.1 If the Parties have agreed in writing upon a guaranteed delivery date and if the actual delivery date is delayed days beyond the guaranteed delivery date due to reasons attributable to Onbone, Onbone shall pay the Purchaser a sum equal to 0.5 % (0.5 percent) of the Price for each full week of delay, up to an aggregate maximum of 7.5 % (7.5 percent) of the Price. If only part of the Product is delayed, the liquidated damages shall be calculated on that part of the Price which is attributable to such part of the Product as cannot in consequence of the delay be used as intended by the Parties.
The aforementioned payment shall be Onbone’s sole and exclusive liability for delay.
4.2 If any Products cannot be delivered to or received by the Purchaser on the agreed delivery date due to any cause not attributable to Onbone, Onbone will notify the Purchaser and after such notice Onbone may, at the Purchaser’s cost, ship Products to a storage facility or to a freight forwarder. In such a case the delivery of the Products shall be deemed to be completed in accordance with the Agreement.
5.1 Onbone warrants that during the warranty period set forth below, the Products will be free of defects in material and workmanship and in conformity with the specifications agreed by the Parties.
5.2 The warranty period is three (3) years from the date when the risk for loss and damage to the Products transfers to the Purchaser in accordance with the agreed Incoterm or such longer warranty period as required by the mandatory provisions of the applicable law.
5.3 If the Products do not meet the warranty set forth above, the Purchaser shall without delay, but in any case within 7 (seven) calendar days after the Purchaser became or should have become aware of the defect, and in any event on or before the expiry of the warranty period, notify Onbone in writing. If such notice is not given within the stipulated period, the Products in question shall be deemed to be free of any such defects.
5.4 Upon timely notification, Onbone shall without undue delay, at its sole discretion, repair or replace the defective Products. Any replaced Products shall upon Eltel’s request be returned to Onbone at Onbone’s cost.
5.5 Onbone shall not be responsible for any defects that are connected with or caused by:
(i) normal wear or tear;
(ii) use of (spare) parts or materials not supplied or approved by Onbone;
(iii) any use, maintenance, service or operation of the Products which is not in conformity with the Agreement or Onbone's manuals or instructions, or which is otherwise not in accordance with normal industry practice;
(iv) negligence or other improper acts or omissions or breach of Agreement by the Purchaser or third parties; or
(v) unsuitable or improper installation or modification of the Products carried out without Onbone’s prior written consent.
5.6 The warranty period for repaired or replaced Products or their part shall be equivalent to the remaining warranty period of the originally delivered Product or three (3) months from the repair or replacement of such Product or its part, whichever is longer.
5.7 The warranty set out in these General Conditions shall be the only warranty applicable to the Products delivered pursuant to the Agreement.
Unless otherwise agreed by the Parties in writing, the following payment terms shall apply:
Payment shall be made in full, without set-off, counterclaim, deduction and/or discount free of bank charges to the bank account indicated by Eltel in advance payment or within fourteen (14) days from the date of invoice.
The prices for the Products are as agreed in the Agreement and exclusive of VAT and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products or any other expenses.
If the Purchaser fails to make any payment in due time, Onbone shall be entitled to :
(i) charge delay interest in accordance with Finnish Interest Act; and; and
(ii) suspend performance and delivery.
If Onbone suspends the performance and/or delivery, the Purchaser shall pay any cost incurred by Onbone in relation to such suspension (including but not limited to storage costs). The delivery date shall be extended for a period equal to the time lost by reason of suspension plus such additional time as may be reasonably necessary to overcome the effect of the delay.
A Party shall not be liable to the other Party for failing to fulfill its obligations as a result of circumstances beyond its reasonable control, including without limitation fire, explosion, accident, strike, lockout, flood, drought, embargo, war (whether declared or not), riot, natural disasters or acts of the public enemy, action of any governmental authority, general shortage of material or transportation, or the delay or non-performance of a sub-contractor due to the above reasons.
8.1 The Purchaser acknowledges that all technical, commercial and financial data disclosed to the Purchaser by Onbone and/or its Affiliates is confidential information of Onbone and/or its Affiliates. The Purchaser shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the Parties and in conformance with the purchase transaction contemplated herein.
8.2 Onbone may issue statements, and may use the Purchaser’s name and logos, in its website, commercial advertisements and promotional materials for the sole purpose of indicating that Purchaser is a user of the System.
9.1 All intellectual property rights and proprietary rights owned by Onbone (“IPR”) shall continue to be the sole and exclusive property of Onbone Therefore, the Purchaser acknowledges and agrees that the IPR in the Products, Onbone's documentation, drawings, designs, specifications, technical manual and documentations provided shall remain the property of the Onbone or its licensors.
9.2 Onbone grants to the Purchaser a non-exclusive, non-transferable, limited license to use the IPR for the purpose of the Agreement. The use of IPR by the Purchaser shall be restricted solely for the purposes of the Agreement.
9.3 The Purchaser undertakes not to procure, cause registration of or attempt to register the IPR in the Purchaser’s or any other third party’s name, and also not to claim any rights or interests whatsoever in the IPR.
10.1 Except as excluded herein, Onbone will defend any suit or proceeding brought against the Purchaser arising out of a claim that the design or construction of the Products sold hereunder by Onbone infringes any patent, copyright or trademark granted or registered in the country of Onbone's registered office, provided (a) the Purchaser promptly notifies Onbone in writing of any such claim and any suit or proceeding, (b) the Purchaser gives Onbone at Onbone's expense, the sole right to defend, settle and control the defence of the suit or proceeding, (c) the Purchaser provides all necessary information and assistance for such defence or settlement, and (d) the Purchaser takes no position adverse to Onbone in connection with such claim.
10.2 In the event Onbone is obligated to defend such suit or proceeding, Onbone will pay all costs and damages finally awarded or agreed upon by Onbone that are directly related thereto.
10.3 Onbone's obligations under this Section 10 will be fulfilled if Onbone, at its option and expense: (i) procures for the Purchaser the right to continue using such Products, (ii) replaces the same with non-infringing products having functionality similar to that of the Products, (iii) modifies the Products by mailing them non-infringing while retaining similar functionality, or (iv) if (i)-(iii) are not commercially practicable, refunds to the Purchaser the purchase price of the affected Products in exchange for their return.
10.4 Onbone will have no obligation to defend or for any other liability with respect to: (a) any suit or proceeding to the extent based on or arising out of a configuration or modification made, specified or requested by the Purchaser and which is incorporated into or constitutes the Products, (b) unlawful use of the Products or use in breach of the Agreement in a process or application specified, requested or controlled by the Purchaser or any third parties, or
(c) the use of the Products in combination with other equipment or materials not supplied or approved by Onbone.
10.5 This Section 10 stipulates Onbone’s entire liability for indemnification for IPR infringements by the Products.
11.1 Each Party’s maximum liability to the other for damages arising from the sale and purchase of Products shall never exceed the net invoiced value of the relevant delivery.
11.2 In no event, whether as a result of contract, warranty, tort (including negligence), strict liability or otherwise, shall either Party be liable to the other for loss of profits, business, revenue, goodwill, use, data, electronically transmitted orders, other economic advantage, consequential, incidental, indirect, special or punitive damages, including but not limited to loss of production, loss of business reputation or opportunity, loss or excessive utilization of raw material or energy, plant shut down, cost of capital, labor charges and the like, even if such Party has been previously advised of the possibility of such damages.
11.3 Any the Purchaser’s claim for damages must be brought by the Purchaser within ninety (90) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed not in accordance with the preceding sentence are null and void.
11.4 The limitations and exclusions set forth above in this Section 11 shall apply only to the extent permitted by applicable mandatory law.
12.1 Either Party may immediately terminate the Agreement by a written notice to the other Party:
a) upon breach of any material term of the Agreement by the other Party which is not remedied within thirty (30) days after notice of such breach;
b) if a Party becomes insolvent or makes an assignment for the benefit of creditors, or such party institutes any voluntary proceeding under bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of the party’s property, then termination shall be automatic and immediate; however, in the event any such proceeding is initiated by a third party against such party, termination shall be automatic if the such proceeding is not dismissed or cured by the party within thirty (30) days after the filing thereof;
c) if a Party is prevented by an event of force majeure from performing its obligations under the Agreement for a period of three (3) months. Neither Party shall in that case be liable for any damages or compensations to the other Party relating to the force majeure.
12.2 The Party terminating the Agreement pursuant to this Section 12 shall, subject to limitations set forth under the Agreement, be entitled to compensation in respect of losses, costs, expenses and liabilities arising as a result of the termination.
12.3 Any rights and obligations of the Parties under this Agreement, which have accrued prior to termination of the Agreement, shall not be affected by the termination. Any terms and conditions that by their nature or otherwise reasonably should survive a termination of the Agreement shall also be deemed to survive.
13.1 Any alterations and amendments to the Agreement shall be valid only if made in writing and duly signed and authorized by both Parties.
13.2 Neither Party is entitled to transfer its rights and obligations under this Agreement to a third party without a written consent by the other Party. Notwithstanding the foregoing, Onbone shall have the right to use subcontractors for the performance of Agreement. Onbone is liable for the work of its subcontractors as for the work of its own.
13.3 If any provision of the Agreement is held unenforceable by any court or tribunal of competent jurisdiction, all other provisions of the Agreement will remain effective. If any provision of the Agreement is held to be unenforceable only in part or degree, it will remain effective to the extent not held unenforceable.
13.4 The Agreement concluded between the Parties shall, together with any annexes, constitutes the entire agreement and understanding of the Parties in respect of the subject matter of the Agreement and supersedes all prior agreements and understandings (written and oral) between the Parties relating thereto.
13.5 Any notices given by any Party shall be made in writing, by telefax, e-mail or by similar means.
14.1 The Purchaser warrants that it will not directly or indirectly, and it has no knowledge that other persons will, directly or indirectly, make any payment, gift or other commitment to its customers, to government officials or to agents or any other party in a manner contrary to applicable laws.
14.2 The Purchaser warrants, that the Purchaser or its beneficial owners are not on the international sanctions list imposed by the U.S. Government, the United Nations Security Council, EU or equivalent (the “Sanctions Lists”). Should the Purchaser or any of its beneficial owners end up on the Sanctions Lists, the Purchaser shall notify Onbone in writing immediately. In such event, Onbone has the right to cease from delivering the Products.
14.3 The Purchaser’s breach of any obligation in this Section 14 shall entitle Onbone to terminate the Agreement with immediate effect. The Purchaser shall indemnify Onbone for all liabilities, damages (including loss of goodwill), costs or expenses incurred as a result of any such breach of the above mentioned obligations and termination of this Agreement.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1 The Agreement shall be governed by and construed in accordance with the laws of Finland. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
15.2 Any dispute, controversy or claim arising out of or relating to the Agreement, 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 by one (1) arbitrator. The proceedings shall be confidential, take place in Helsinki, and be conducted in the English language.