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1 GENERAL
1.1
Whenever SESAM Container AB (“SESAM Container”) has referred to Orgalime S 2012 in a quotation or other type of offer or in an order acknowledgement, Orgalime S 2012 and this Addendum shall apply to the resulting contract between SESAM Container and the
Purchaser. If the Purchaser refers to other terms and conditions in the Purchaser's previous or subsequent communications with SESAM Container, such other terms and conditions shall apply only to the extent SESAM Container expressly agrees to such terms and
conditions in writing.
1.2
The Purchaser represents that it has access to the Orgalime S 2012 terms and conditions.
1.3
In the event of any contradictions or discrepancies between this Addendum and Orgalime S 2012, this Addendum shall prevail.
2 DEFINITIONS
2.1
In Orgalime S 2012 and this Addendum, (a) “Article” shall refer to an article in this Addendum; (b) Clause” shall refer to a clause in Orgalime S 2012; (c) “Orgalime S 2012” shall mean Orgalime's General Conditions for the Supply of Mechanical, Electrical and Electronic Products, March 2012 edition or the latest edition published thereafter; (d) "Product" shall mean all goods, materials, equipment and services to be provided by SESAM Container under this contract as described in the quotation issued by SESAM Container; (e) “Purchaser” shall mean the other party to this contract; and (f) “Supplier” shall mean SESAM Container.
3 AMENDMENTS
3.1 Standard Products
3.1.1
The Product shall be supplied in its standard version together with SESAM Container's relevant standard documentation and instruction manuals as appropriate. Alternative versions, finishes, colours, special packing and additional documentation may be supplied at extra charge, as agreed in writing.
3.1.2
The Product is not warranted to be fit for any particular purpose, unless and to the extent such particular purpose has been expressly specified and warranted by SESAM Container in writing.
3.2 Delivery. Passing of Risk
3.2.1
Any agreed trade term shall be construed in accordance with the INCOTERMS® in force at the formation of the Contract. If no trade term has been specifically agreed, the delivery shall be Ex Works (EXW) at the place named by the Supplier.
3.2.2.
Whenever SESAM Container is responsible for the delivery of the Products, the Purchaser shall inspect the Products upon receipt and
notify SESAM Container in writing of any transit damage within forty-eight (48) hours from delivery. Failing which, remedial costs shall be the responsibility of the Purchaser or its insurer.
3.3 Acceptance Tests
3.3.1
No acceptance test will be performed in accordance with Clauses 6-9 if the parties do not expressly agree that such test shall be performed.
3.4 Time for delivery
3.4.1
SESAM Container will give the purchaser a non-binding estimate for the delivery of Products when the Products are ordered. A binding delivery date or period of delivery will only be given of SESAM Container if the Purchaser demands that in writing.
3.5 Payment
3.5.1
Unless otherwise agreed, the purchase price shall be paid to SESAM Container no later than thirty (30) days from the date of the delivery and the second paragraph of Clause 19 is not applicable. Time of payment is of the essence of the contract and SESAM Container reserves the right to suspend the provision of Products to the Purchaser where any amounts are overdue under the contract or under any other contract until all such amounts have been paid. No queries concerning an invoice will be considered more than 14 days from the date of its issue.
3.5.2
Payment shall be made in the currency in which the purchase price was quoted by SESAM Container.
3.5.3
Where SESAM Container has entered into a "Credit Agreement" with the Purchaser, the Credit Agreement with its credit limit shall form part of the contract. To the extent permitted by applicable law, if in SESAM Container's reasonable opinion there are grounds for doubting the creditworthiness of the Purchaser at any time, such as but not limited to, the Purchaser's failure to pay SESAM Container's invoice on this contract or any other contract when due and/or the Purchaser exceeding its agreed credit limit with SESAM Container, then SESAM Container may, refuse to proceed with orders or suspend delivery of Products to the Purchaser, under this contract and any other contract, agreement or arrangement entered into with the Purchaser whether independent of or connected to this contract without being in breach of contract and without incurring any liability to the Purchaser until SESAM Container is paid for the relevant Products or the parties otherwise resolve the issue.
3.6 VAT
3.6.1
The purchase price is strictly net and exclusive of VAT and similar.
3.7 Retention of Title
3.7.1
Until title in the Product has passed to the Purchaser, the Purchaser shall keep the Product and any part thereof in the Purchaser's
possession clearly marked or otherwise identified as being SESAM Container's and store it separately from the Purchaser's own plant and equipment. SESAM Container shall be entitled at any time during normal business hours to enter the Purchaser's premises in order to inspect the Product and ensure that it is so marked or clearly identified.
3.7.2
Should the contract be terminated by SESAM Container for any reason before title in the Product has passed to the Purchaser, or SESAM Container has grounds for doubting the creditworthiness of the purchaser (cf. Article 0), SESAM Container shall be entitled at any time during normal business hours to enter the Purchaser's premises in order to recover the Product. SESAM Container reserves the right to dispose of any Product so recovered.
3.7.3
To the extent permitted by applicable law, legal and beneficial title to the Product shall remain with SESAM Container until such time as SESAM Container has received payment of the purchase price for the Products due under the contract and any other sums due (together with any interest which may have accrued) in respect of any other goods or services previously or subsequently supplied by SESAM Container to the Purchaser under any other agreement. Where such payments have been received by SESAM Container title shall pass to the Purchaser.
3.7.3
Notwithstanding any appropriation by the Purchaser to the contrary, all payments made by the Purchaser to SESAM Container shall be appropriated first to the Products which have been resold by the Purchaser and then to the Products which remain in the Purchaser's possession or control.
3.7.4
If the Purchaser resells any Products in which title has not passed to the Purchaser, with respect to the proceeds of such resale only, the resale shall (as between SESAM Container and the Purchaser only) be made by the Purchaser as agent for SESAM Container.
3.7.5
For the avoidance of doubt, risk in the Product shall pass to the Purchaser at the time specified in the applicable INCOTERMS. From the time when risk in the Products passes until the time when title passes to the Purchaser in accordance with Article 3.5.3, the Purchaser shall insure the Products for their full value with a reputable insurer. Until title in the Products passes to the Purchaser, the Purchaser shall hold the proceeds of any sale or claim on such insurance policy on trust for SESAM Container and shall immediately account to SESAM Container with the proceeds.
3.8 Confidentiality
3.8.1
The Purchaser shall keep all information communicated to the Purchaser in connection with this contract, or otherwise concerning
SESAM Container's business, secret and confidential, and will not use the same except for the purposes of performing this contract.
3.9 Liability for Defects
3.9.1
The defects liability period, as stipulated in Clause 23, shall be six (6) months from delivery of the Product, spare or repaired parts.
3.9.2
Except as expressly set out in Orgalime S 2012 and this Addendum, all conditions, warranties and representations, implied by statute,
common law or otherwise, in relation to the supply, non supply or delay in supplying the Products are excluded to the fullest extent permitted by law and the warranties, as stipulated in Clauses 22-36 and Article 3.8.3, are exclusive and in lieu of all other warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law.
3.9.3
Save as stipulated in Clauses 22-36, the necessary repair, replacement or re-performance shall constitute SESAM Container's total liability to the Purchaser for defects in design, material or workmanship.
3.10
Limitation of Liability 0.1 To the maximum extent permitted by applicable law, and notwithstanding anything to the contrary in this contract, other than the express provisions for liquidated damages, in no event shall SESAM Container be liable to the Purchaser, whether as a result of breach of contract, warranty, guarantee, indemnity, tort (including negligence), strict liability, statutory duty or otherwise, for any of the following damages or losses, in each case whether direct or indirect, such as, but not limited to:
(a) loss of revenue, (b) loss of profit, (c) loss of contract, (d) loss of business, (e) loss of use, (f) loss of production, (g) interruption of business, ( h) loss of operation time, (i) costs of capital, (j) cost in connection with interruption of operation, (k) economic loss, or
(l) any special, incidental or consequential loss or damage, however caused even if SESAM Container was advised of the
possibility of them in advance.
3.10.2
To the maximum extent permitted by applicable law, and notwithstanding anything to the contrary in this contract, SESAM Container's total liability in respect of any and all claims for damages or losses, caused by breach of contract, warranty, guarantee, indemnity, tort (including negligence), strict liability, statutory duty or otherwise, which may arise in connection with its performance or non-performance under this contract shall not exceed in the aggregate the total purchase price.
3.10.3
The Purchaser acknowledges that the contents of this Article 3.10 have been especially brought to the Purchaser's attention and agrees the exclusions and limitations on liability are reasonable in the circumstances.
3.11 Indemnification
3.11.1
If Products are to be manufactured or any process is to be applied to Products by SESAM Container in accordance with a specification submitted by the Purchaser, the Purchaser shall indemnify and hold harmless SESAM Container on demand against all losses, damages, costs (including legal costs ), expenses, liabilities and claims suffered or incurred by SESAM Container in connection with infringement of any intellectual property rights of any third party resulting from SESAM Container's use of the Purchaser's specification.
3.12 Limitation Period
3.12.1
Subject to law as regards personal injury and death, the Purchaser shall have no claim against SESAM Container, in contract or in tort, in relation to anything performed or delivered under this contract (including claims for defective Products, services or goods), unless SESAM Container has been notified in writing of such claim within twenty-four (24) months of delivery of the Product.
3.13 Termination
3.13.1
Should:
(m) the Purchaser's payments be overdue by more than 14 calendar days;
(n) a breach of the contract occurs in the circumstances set out in Article 3.6.5;
(o) a breach of the contract occurs in the circumstances set out in Article 3.17.1;
(p) proceedings be commenced to wind up the Purchaser (except for the purpose of solvent amalgamation or reconstruction);
(q) any composition or arrangement with the Purchaser's creditors be made;
(r) the Purchaser be put into administration, or if a receiver is appointed;
(s) the Purchaser stops or suspends payment of its debts or is unable to, or has no real prospect of being able to, or admits an
inability to, pay its debts as they fall due or fails to satisfy any judgment debt in whole or in part within 14 days; or
(t) the Purchaser ceases or threatens to cease to carry on the whole or a substantial part of its business or is dissolved; SESAME
Container shall be entitled (without incurring any liability to the Purchaser) to terminate the contract immediately by notice
writing to the Purchaser, and thereupon to recover any loss or damage SESAM Container has suffered or incurred as a result
of such termination, except that the compensation paid towards such loss or damage shall not exceed the purchase price.
3.14 Force Majeure
3.14.1
For the elimination of any doubt, "circumstances beyond the control of the parties", (cf. Clause 39), shall be deemed to include, without limitation, any acts of God, act of terrorism, pandemics, sanctions, blockage, import restriction or any other act or failure to act of any state or national government authority.
3.14.2
Should a Force Majeure event occur, the delivery date(s) shall be extended by a period equal to the duration of the Force Majeure event plus a reasonable time to overcome the consequences of the Force Majeure event and all additional costs and expenses incurred by SESAM Container shall be paid by the Purchaser to SESAM Container in addition to the purchase price.
3.15 Exclusion of Third Party Rights
3.15.1
The parties do not intend that a person who is not a party to this contract shall have any rights to enforce any term of this contract.
3.16 Governing Law
3.16.1
This contract shall in all respects be governed by and construed in accordance with the laws of Sweden. The parties agree that the United Nations Convention On Contracts For The International Sale Of Goods 1980 shall not apply to this contract.
3.17 Disputes
3.17.1
Any dispute, controversy or claim arising out of or in connection with this contract, 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”).
3.17.2
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.
3.17.3
The seat of arbitration shall be Stockholm, Sweden.
3.17.4
The language to be used in the arbitral proceedings shall be English or Swedish if both parties are Swedish.
3.17.5
However, notwithstanding the above, SESAM Container has the right to recourse to the court or a responsible authority in respect of
payment for due and payable claims.
3.18 Miscellaneous
3.18.1
This contract constitutes the complete and full understanding between the parties thereto with respect to the subject matter of this contract and save in respect of fraud supersedes all previous negotiations, representations, agreements, commitments and writing in respect thereof. Neither party shall be bound by any terms conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided in this contract or as duly set forth on or subsequent to the effective date thereof in writing.
3.18.2
No changes, alterations or modifications to the contract shall be effective unless the same shall be in writing and signed by both parties.
3.18.3
The contract language shall be in English. All contract communications and documentation to be in English or Swedish of both parties are Swedish.
3.18.4
The Purchaser may not subcontract, transfer or assign any of its rights or obligations in connection with this contract.
3.18.5
If during the term of this contract there are changed or new laws, orders, regulations, standards or by-laws, which become effective and which affect the cost or time of performance of this contract, then an equitable adjustment shall be made to the date (s) specified in the contract and an equitable adjustment to the price(s) payable for the Products shall be made to compensate SESAM Container for any increase in costs resulting therefrom.
3.18.6
The invalidity or unenforceability of any provision of this contract shall not affect the validity of the remaining provisions. If any provision proves to be invalid or unenforceable, the parties shall replace the invalid or unenforceable provision by a valid new one having an effect as close as possible to the invalid or unenforceable provision.