1.1 In these general terms and conditions of sale and delivery (below the “General Terms and Conditions”) the seller shall mean Herrmans Bike Components Ltd. or its subsidiary that has concluded an agreement or addressed the order confirmation to the buyer in the relevant sales relationship (below the “Seller”); subsidiary shall mean any entity through which Herrmans Bike Components Ltd. conducts its business by owning or controlling, directly or indirectly, the majority of the shares or voting rights of such subsidiary (below the “Subsidiary”), the buyer shall mean the company, corporation or person with whom any agreement is concluded or to whom any order confirmation is addressed (below the “Buyer”), and the goods shall mean the goods to be sold by the Seller to the Buyer (below the “Goods”).
1.2 These general terms and conditions of sale and delivery shall apply to the sale and delivery of Goods between the Seller and the Buyer, unless otherwise expressly agreed in writing with respect to all or part of the provisions contained herein.
2 PRODUCT INFORMATION
Information given in brochures and other advertising material is only given as guidance and shall not be binding upon the Seller.
3 FORMATION OF AGREEMENT
No offer, obligation or agreement relating to the sale and delivery of the Goods shall be binding upon the Seller, unless accepted and confirmed in writing by the Seller.
4 TITLE AND RIGHT OF USE OF MOULDS, PARTS OF MOULDS AND EQUIPMENT USED IN THE PRODUCTION OF THE GOODS
4.1 Unless otherwise agreed in writing or stipulated in Section 4.2 below, all moulds, parts of moulds and equipment used in the manufacture of the Goods, shall remain the Seller’s property.
4.2 If the cost for a mould is charged by the Seller under a separate invoice, the title of the mould is transferred to the Buyer after the Seller’s invoice has been paid in full.
4.3 A mould owned by the Buyer shall not be used for any other purpose than for producing Goods for the Buyer and shall be returned to it, if requested by the Buyer. The Seller may postpone the return of the mould for one (1) year after the end of the agreement between the parties despite a request for return, if the return of the mould would reveal technological knowledge to others which is significant to the Seller.
4.4 A mould owned by the Seller may be used for producing goods for third parties.
4.5 If the Seller essentially neglects to fulfill the terms and conditions of an agreement for reasons other than force majeure or a reason on the Buyer’s side, a fully paid mould shall, at request, be returned to the Buyer without delay.
4.6 Patterns, drawings, parts lists, tools or software required for the manufacturing of the mould will always remain the property of the Seller and shall not be transferred to the Buyer. The Seller is not obligated to reveal any technological data or knowledge required for the manufacturing of the mould. No industrial property rights related to the mould and owned by the Seller shall be transferred to the Buyer as the mould is delivered.
4.7 The Seller shall, at its own cost, take care of the normal maintenance, storage and insurance of the mould while it is used for a production run. If the mould is defected in the course of a production run, it shall be repaired at the cost of the Buyer. When the agreed production run has been completed or the total quantity of Goods to be produced has not been agreed upon, the Seller shall notify the Buyer of a need to repair or replace the mould and submit it an offer to this effect.
4.8 The Seller shall store the mould at the Buyer’s cost and risk for a period of two (2) years after the completion of the last production run. The mould may be destroyed after this period, unless the Buyer requests continued storage within fourteen (14) days after receipt of a notification from the Seller of the intention of destroying the mould. Upon receipt of such notification, the Buyer shall pay the costs caused by the storage as well as give an estimate of how long the storage will continue. The mould shall be destroyed at the Buyer’s cost. A mould owned by the Buyer shall be marked by the Seller to make it identifiable as the Buyer’s property.
4.9 Should an agreement between the parties or a part thereof be cancelled, the Buyer shall pay the price for the mould, notwithstanding the cause for the cancellation. Should an agreement between the parties be ended prematurely or the quantities of Goods ordered be lower than expected, the Buyer shall buy, at cost, the production’s raw materials and other items remaining in the Seller’s storage.
4.10 The Buyer shall carry the cost and risk of transports of the mould between the Seller and the Buyer.
5 PRICE ADJUSTMENT
5.1 Should, after an agreement has been concluded and entered into, the raw material prices for the Goods increase by more than five (5) percent or should the purchase, production, transport or any other costs relating to the Goods increase by more than five (5) percent due to changes in the rates of exchange or due to other circumstances, the Seller shall be entitled to revise the price accordingly.
5.2 Should, after an agreement has been concluded and entered into, export or import duties, custom charges, taxes on export, import or delivery or similar duties or charges increase or should new duties, taxes and/or charges be introduced and implemented in respect of the Goods, the Seller shall be entitled to revise the price accordingly.
5.3 Any price adjustment made based on Section 5.1 or 5.2 above shall take effect thirty (30) days from the date of the Seller’s notice to the Buyer of such price adjustment, unless otherwise agreed in writing
6.1 Unless otherwise agreed in writing, payment shall be made by the Buyer on or before the thirtieth (30th) day after the date of the Seller’s invoice.
6.2 Interest on delayed payments is to be paid according to the provisions of the Finnish Interest Act. In addition, the Seller is entitled to, at its discretion, consider the agreement breached, accelerate all unpaid amounts and/or cancel or suspend any pending deliveries to the Buyer, and to charge the Buyer for any collection costs incurred in connection with collection measures.
7.1 Unless otherwise separately agreed in writing, the term of delivery shall be FCA (Incoterms 2020) the Seller’s factory in Pedersöre, Finland.
7.2 The quoted delivery period and delivery date set forth in the Seller’s order confirmation are only approximate.
7.3 Freight costs and other possible transport related costs are borne by the Buyer. If the Goods are delivered outside the EU, the Seller is also entitled to charge the Buyer the costs of customs clearance, possible customs duties and other similar charges.
7.4 If the delivery is delayed more than fourteen (14) days from the delivery date set forth in the Seller’s order confirmation due to reasons attributable to the Seller, the Seller shall pay liquidated damages in the amount of 0.5 % of the value of such delayed part of a delivery for each completed week of delay, however, maximum 7.5 % of the value of such delayed part of a delivery. The payment of liquidated damages as set forth in this Section 7.4 shall be the sole remedy available to the Buyer due to delay in delivery and shall be invoked by the Seller at the latest one hundred and ten (110) days from the delivery date set forth in the Seller’s order confirmation.
7.5 If the Seller incurs storage costs from having to store deliverable Goods for the Buyer due to reasons attributable to the Buyer or due to a Force Majeure situation as defined below in Section 11, the Seller is entitled to charge the Buyer for reasonable storage costs commencing after the seventh (7th) day of storage from the date the Goods was ready for delivery by the Seller until the actual delivery date.
The Goods shall remain the property of the Seller as legal and equitable owner and no property in or title to the Goods shall pass to the Buyer until full payment for the Goods has been received by the Seller.
9.1 The Buyer must submit a written complaint to the Seller about any visible defect in the Goods within seven (7) days of receipt of the Goods. If the Buyer does not make a complaint to the Seller within the said period, the Buyer is not entitled to claim the visible defect after the said period has expired.
9.2 If the Goods or part of the Goods is missing from the Goods or delivery, the Buyer must notify the Seller in writing of the missing Goods or part within seven (7) days of receipt of the Goods.
9.3 Regarding all other defects detected by the Buyer, apart from defects and missing Goods defined in Section 9.1 and 9.2, the Buyer must submit a written complaint to the Seller within fourteen (14) days of becoming aware of or discovering such defect.
9.4 The completed written complaint forms must be attached to the Goods for which the complaint is made.
9.5 The Goods, for which complaint has been made, will be, at the sole election of the Seller (i) replaced with a new product or goods or (ii) repaired as set forth in Section 10.
10 WARRANTY AND LIABILITY
10.1 The Seller warrants that the Goods are free from defects resulting from faults in material or craftsmanship and that the Goods will comply with the requirements stipulated under Finnish law. Unless otherwise informed to the Buyer, the warranty period for the Goods is twelve (12) months from the day of delivery.
10.2 The warranty does not cover wear and tear, physical or environmental damage, accidents, mismanagement or negligence in the use and maintenance of the Goods, nor does it cover if the serial number affixed to the product are removed, obliterated or defaced.
10.3 The Seller’s aggregate maximum liability under an agreement shall be limited to the net value of the agreement. In respect of deliveries to be made under a frame agreement based on separate orders or orders to be delivered to the Buyer in parts, the Seller’s aggregate maximum liability shall be determined separately for each order and partial delivery and be limited to the value of such order and delivery.
10.4 THE SELLER’S ONLY OBLIGATION UNDER THIS WARRANTY IS, AT ITS SOLE DISCRETION, TO EITHER REPAIR ANY DEFECTS OR REPLACE ANY DEFECTIVE GOODS, PROVIDED A CLAIM WITH RESPECT THERETO IS MADE BY THE BUYER WITHIN FOURTEEN (14) DAYS OF DISCOVERY OF SUCH DEFECT. THE SELLER MAY ELECT TO AFFECT THE REMEDIES SET FORTH ABOVE BY A THIRD PARTY AT THE SELLER’S EXPENSE.
10.5 THE WARRANTY SET FORTH IN THIS SECTION 10 IS EXCLUSIVE THE ONLY WARRANTY GIVEN TO THE GOODS AND EXPRESSLY REPLACES ANY OTHER WARRANTIES, REMEDIES, GUARANTEES OR LIABILITIES, EXPRESSED OR IMPLIED, AGAINST DEFECTS AND ANY OTHER OBLIGATIONS OR LIABILITY WHETHER WRITTEN OR ORAL, IN CONTRACT OR LAW AND THE BUYER HEREBY WAIVES ANY SUCH OTHER WARRANTIES, REMEDIES, GUARANTEES OR LIABILITIES.
THE SELLER SHALL UNDER NO CIRCUMSTANCES, WHETHER AS A RESULT OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE BE LIABLE FOR LOSS OF PRODUCTION, LOSS OF PROFIT, LOSS OF USE, BUSINESS, REVENUE, GOODWILL, BUSINESS REPUTATION, DATA, ELECTRONIACLLY TRANSMITTED ORDERS, OTHER ECONOMIC ADVANTAGE, CONSEQUENTIAL, INCIDENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, COST OF CAPITAL, LABOR CHARGES AND THE LIKE OR ANY OTHER CONSEQUENTIAL DAMAGES AND/OR INDIRECT LOSS, WHATEVER THE CAUSE MAY BE, EVEN IF THE BUYER HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11 FORCE MAJEURE
11.1 The Seller shall not be liable for any default or delay in performing its obligations under an agreement, or for any loss or damage resulting therefrom, if the default or delay is caused by circumstances beyond the reasonable control of the Seller (below “Force Majeure”), including but not limited to, wars, civil riots, strikes, epidemics, fires, acts of God, governmental restrictions and actions, winding up or failure or delivery challenges of a subcontractor to provide materials or goods, shortage of transport or loss of workmen, component and/or product availability challenges or any circumstances beyond the reasonable control of the Seller’s subcontractors.
The Force Majeure situation shall extend the schedules as agreed between the Seller and the Buyer in relation to delivery and ordering. If the force majeure situation lasts for more than three (3) months, the Parties shall agree on the delivery and ordering and the schedules as well as measures related thereof separately.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 Intellectual Property Rights means any and all intellectual property rights, including without limitation copyright, trademarks, utility models, patents and other intellectual property rights (whether registered or unregistered) and assets, technology, drawings, specifications, know-how, design, manufacturing information, data and alike.
12.2 All Intellectual Property Rights owned or held by the Seller and/or being part of the Goods, whether owned or held by limited right, registered or not, is and shall remain the sole property of the Seller. Nothing in these General Terms and Conditions shall be interpreted as granting to the Buyer any rights to the Seller’s Intellectual Property Rights, nor will the Buyer acquire any ownership right or ownership title in such Intellectual Property Rights, unless otherwise agreed in writing between the Parties. Thus, it is expressly agreed that these General Terms and Conditions does not include any transfer of rights whatsoever of the Seller’s Intellectual Property Rights to the Buyer.
12.3 If the Buyer becomes aware or should have become aware of any claim of infringement or allegation of infringement of a third-party Intellectual Property Right, the Buyer shall immediately notify the Buyer thereof.
Nothing contained in these General Terms and Conditions shall restrict the Seller’s right to sell its goods and/or the Goods to third parties, unless otherwise agreed in writing between the Parties.
13 CODE OF CONDUCT
The Seller is committed to conduct its business in line with applicable laws and regulations and in accordance with high standards of business ethics. This requires the highest standards of integrity in all business interactions undertaken on behalf of the Seller. Consequently, any form of corruption, extortion, bribery or other improper offer for payments from or to any of the Seller’s directors, officers or employees or other representatives is strictly prohibited.
14 PROCESSING OF PERSONAL DATA
14.2 To the extent that the Buyer discloses, transfers or otherwise provides personal data to the Seller, the Buyer is responsible for its right to disclose personal data to the Seller for the purposes set out in these General Terms and Conditions and represents that it has the right to disclose such personal data to the Seller.
14.3 The Buyer is responsible for informing its employees and other data subjects about the disclosure, transfer or transmission of personal data to the Seller in accordance with applicable law and its own internal practices.
14.4The Buyer is responsible for the personal data it has provided. The Buyer is obliged to update the Seller of any changes to the personal data and to contact the Seller if the personal data provided by the Buyer should to be deleted or if other requests are made regarding the rights of the data subject.
15 CHANGES TO GENERAL TERMS AND CONDITIONS
The Seller reserves the right to modify these General Terms and Conditions by unilateral decision without any prior notice. Orders are subject to the contractual conditions in force at the time of ordering. Unless otherwise provided by law, any changes in the law shall enter into force immediately and unchanged.
16 GOVERNING LAW AND SETTLEMENT OF DISPUTES
16.1 These terms and conditions of sale and delivery and/or an agreement between the Seller and the Buyer shall be governed and interpreted in accordance with the Finnish law, without, however, giving effect to the rules on conflict of laws within said jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
16.2 Any dispute, controversy or claim arising out of or in connection with an agreement between the Seller and the Buyer and/or these General Terms and Conditions of sale and delivery, or the breach or invalidity thereof, shall be settled primarily by negotiation and finally by arbitration in accordance with the Arbitration Rules of the Finland Central Chamber of Commerce. Such arbitration shall be expedited if possible and applicable. The language used in the arbitration proceedings shall be English.