General Terms and Conditions of Sale - Europe
1. APPLICABILITY: All sales of products by Equine Lounge AS ("EL”) to Customers located in Europe are subject to and expressly conditioned upon these Terms and Conditions, and no modification of these Terms and Conditions with respect to any sale, or any contradictory, different or additional terms or conditions contained in any form or other document submitted or used by Customer in connection with any transaction involving EL, will be binding upon EL unless EL specifically agrees to such modification in a writing signed by a duly authorized officer of EL.
2. ORDERS; CHANGES: No order shall be binding on EL until accepted in writing by an authorized officer of EL. Once accepted by EL, an order may not be cancelled by Customer. Any revision or amendment to a purchase order, including any change in any terms, conditions, prices or deliveries, must be made in a writing signed by a duly authorized officer of EL.
If the price of metals, raw materials, equipment or other production costs increases in any material respect, EL shall have the right to adjust the price correspondingly. For purposes of this Section 2, cost shall be deemed to have a material increase if such increase is at least 5% of the existing price.
3. DELIVERY; ACCEPTANCE: Unless otherwise agreed by EL in writing, the products shall be made available to Customer, Ex Works (Incoterms 2020) at the loading dock of the factory located in Ukmergės g. 4, Jonava, LT-55101, Lithuania. EL will prepare and provide all necessary commercial invoices and/or packing lists to support shipment of products required by the commercial carrier. Customer will take title to and bear all risk of loss and/or damage of any or all products immediately upon handoff of the products to Customer or its common carrier at the loading dock of the factory in Ukmergės g. 4, Jonava, LT-55101, Lithuania; however, EL shall maintain title to and ownership of the products until full payment is received by EL insofar as this is not in breach of applicable mandatory legislation. EL will not bear the risk of loss after delivery. Upon Customer's receipt of the products and until such time as EL receives payment in full for such products, Customer shall appropriately identify the products (visibly and on books and records) as being owned by EL (if applicable). Customer shall (a) inspect the products immediately upon receipt, (b) promptly notify EL in writing of any claims for shortages, defects or damage and (c) hold any defective or damaged products pending EL's written instructions concerning inspection or disposition. Unless Customer delivers a written notice of claim to EL within 5 days after receipt of the products at the destination point, the products shall conclusively be deemed to conform to these Terms and Conditions and any design specifications and to have been irrevocably accepted by Customer.
Customer shall pay and be solely responsible for, all shipping costs, handling charges, insurance, brokerage fees, customs duties, taxes, and government charges incurred after handover. EL may charge Customer an additional handling fee for any services requested by Customer beyond the ordinary and customary services provided by EL. Where appropriate, shipping schedules shall be agreed between the parties. EL and Customer shall mutually agree upon the bonded commercial carrier that will ship the products to Customer, and at the request of Customer, EL may assist in obtaining and booking transport on behalf of and in the name and risk of Customer, subject to a separate agreement between the parties. Customer acknowledges that delivery dates set forth in purchase orders accepted by EL are merely approximate and EL has no liability for late deliveries. EL has the ultimate right to control delivery terms and conditions. Customer shall be responsible for delayed arrival at the delivery destination site caused by demurrage or detention in unloading and customs clearance at the port of entry and inland transportation as a result of any act or omission by Customer. Customer must pay all costs and charges associated with such demurrage or detention within 5 days after receipt of an invoice from EL. In addition, Customer acknowledges that Customer shall be the party responsible for the installation of the products at the project as identified on the applicable purchase order between the parties (the "Project"); however, EL may arrange for third party installation of the products at the Project in the name of and the cost and risk of Customer, subject to a separate agreement between the parties. Customer is solely responsible for any product defects as a result of installation. EL and Customer shall mutually agree upon the installer that will install the products at the Project if EL does not arrange third party installation.
4. TAXES: Any use tax, sales tax, excise tax or attesting fee, or any other similar tax, fee or charge of any nature whatsoever imposed by any governmental authority on the transaction between EL and Customer shall be paid by Customer in addition to the prices quoted or invoiced by EL. If EL is required to pay any such tax, fee or charge, Customer shall reimburse EL therefor, or in lieu of such payment, Customer shall provide EL at the time the order is submitted, an exemption certificate or other documentation acceptable to the authority imposing the tax, fee or charge.
5. PAYMENT; COLLECTIONS: Unless otherwise agreed to in a writing signed by a duly authorized officer of EL, EL's terms of sale are payment in full in advance of shipping, whereas 50% of the payment shall be invoiced at order date. Unpaid balances past the payment due date shall bear a service charge of 1-1/2 % per month (18% per annum) or, if less, the maximum rate allowed by law. Customer agrees to notify EL in writing of any claim of error in any statement of Customer's account within 10 days after the date of such statement. If Customer does not so notify EL, then the statement shall conclusively be deemed to be correct and accepted as rendered. Customer agrees to pay any and all costs of collection incurred by EL, including reasonable attorneys' fees. In the event Customer fails to timely pay any amount due to EL, then EL shall be excused, discharged and released from performance under all purchase orders between the parties and these Terms and Conditions, without liability of any kind.
6. RETURN POLICY: No products may be returned to EL without the express written approval of EL. Products returned without authorization will be rejected and, in the sole discretion of EL, may be returned to the Customer at the Customer's expense.
7. WARRANTY: EL does not manufacture any of the products purchased by Customer. To the extent any product manufacturer provides a warranty to the end users of its products, the manufacturer may provide that warranty directly to Customer on such warranty terms, and subject to such warranty restrictions and limitations, as the manufacturer generally provides to its own end users. EL makes no warranties of any kind to Customer regarding any of the products purchased from EL, and, except for passing through any manufacturer warranty from the product manufacturer, EL MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS DELIVERED BY EL, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY: EL's liability is limited exclusively to, at EL's option, replacement of the products or refunding of the purchase price for the products. EL SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROCESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, OR ANY LIABILITY OF CUSTOMER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS.
9. INDEMNIFICATION: Customer hereby agrees to indemnify, defend and hold harmless EL, and all officers, affiliates, directors, employees and agents thereof and against from all liabilities, claims, damages, losses, costs, expenses, demands, suits and actions (including without limitation attorneys' fees, expenses and settlement costs, whether or not EL is joined as a party to any action brought against Customer) (collectively, "Claims") arising out of, resulting from or relating to: (a) the negligent, or intentionally wrongful, act or omission of Customer or any individual or entity whom Customer may be vicariously liable for under applicable law, (b) the purchase or use of the products by Customer, any individual or entity whom Customer may be vicariously liable for under applicable law, or any other person or entity, (c) Customer's failure to perform its duties related to Customer's contract or agreement with the owner, prime contractor, construction manager, or subcontractor (of any tier) connected with the Project (as the case may be), (d) any delay in the manufacturing, shipping or installation of the products due to any act or omission by Customer, (e) any dispute with a subcontractor, employee, independent contractor, manufacturer, owner, prime contractor, construction manager, agent, supplier or other person related in any way to the products, the purchase order or any commercial transaction with EL, (f) Customer's failure to comply with any applicable law, order, decree, rule or regulation, or (g) Customer's failure or breach of any of its obligations under these General Terms and Conditions of Sale or any other contract documents governing any transaction between Customer and EL.
10. LEGAL COMPLIANCE: Customer shall comply with all applicable laws and regulations and shall obtain any necessary governmental approvals for Customer's purchase, delivery, installation and use of the products.
11. FORCE MAJEURE: If and to the extent that EL's ability to perform its obligations to Customer is limited, delayed or prevented in whole or in part by any event or condition not reasonably within the control of EL, then EL shall be excused, discharged and released from such performance, without liability of any kind.
12. INTELLECTUAL PROPERTY RIGHTS: Customer acknowledges that, as between Customer and EL, EL has the sole, complete and exclusive ownership of all trademarks, trade dress, design and utility patent rights and all other intellectual property rights now existing or which may hereafter exist in connection with the products.
13. CONFIDENTIALITY: Customer agrees that it shall keep strictly confidential all information regarding EL that Customer receives as a result of its dealings with EL (the "Confidential Information"), and Customer will disclose such information only to those of its officers or employees who need to know such information and shall advise such officers and employees of the confidential nature of such information and the restrictions on its use. Customer shall not make or permit the disclosure, release or publication of any Confidential Information to any other person or use such information for the benefit of any other person (especially, but not limited to, competitors of EL). Confidential Information shall include, but shall not be limited to, the products, materials, tooling, molds, designs, technical information, formulas, techniques, business plans, financial projections, strategic plans, merchandising strategies, marketing or promotional strategies, and the scope or terms of any engagement, prices and/or quantities purchased. Customer agrees that Confidential Information is proprietary to EL. The foregoing restrictions shall not apply to any such information to the extent that such information (a) is or becomes generally known and available to the public (other than as a result of a disclosure by or negligence of Customer), (b) was made known to Customer, prior to the date hereof, by sources not subject to confidentiality obligations to EL, or (c) is required to be disclosed pursuant to subpoena or other legal process, provided that Customer shall have given EL reasonable prior notice of such proposed disclosure so that EL may seek a protective order with respect to the use and disclosure of such information in such proceeding. The requirements of this Section 13 shall continue as long as the Confidential Information is confidential or proprietary in nature.
Customer shall treat all Confidential Information with at least the same care as it treats its own confidential information, but in no event shall Customer exercise less than reasonable care. Upon completion, cancellation or termination of the purchase order, Customer shall return to EL all Confidential Information, including any copies thereof made by Customer. Customer acknowledges and agrees that any breach of this Section 13 by it may be detrimental to the business interests of EL and EL shall be entitled to injunctive relief, as well as to recovery of actual and punitive damages, costs and expenses arising as a result of any breach by Customer of any of the provisions hereof including, but not limited to, reasonable attorneys' fees and expenses.
14. ASSIGNMENT: Customer shall not assign any of its rights hereunder absent the prior written consent of EL, which may be delayed or denied by EL in its sole discretion. Customer shall not be entitled to delegate any of its obligations hereunder.
15. NO WAIVER: EL's failure to strictly enforce any term or condition hereof, or to exercise any rights arising hereunder, shall not constitute a waiver of EL's right thereafter to strictly enforce such terms or conditions or to exercise such right. All rights and remedies hereunder are cumulative and are in addition to any other rights and remedies EL may have at law or in equity. No waiver by EL of any right, power or remedy or of any provision hereof shall be effective unless it is expressly made and set forth in a writing signed by a duly authorized officer of EL.
16. RELATIONSHIP OF THE PARTIES: The relationship between EL and Customer is that of seller and buyer and not that of employer/employee, partnership or joint venture. Customer shall not make any express or implied agreements, guaranties or representations, or incur any debt in the name of or on behalf of EL nor shall EL be obligated by or have any liability for any agreements or representations made by Customer that are not expressly authorized and set forth in a writing signed by a duly authorized officer of EL.
17. SEVERABILITY: The invalidity, illegality or unenforceability of any one or more of the terms hereof shall in no way affect or impair the validity, interpretation or enforceability of any other term hereof.
18. ENTIRE AGREEMENT: These Terms and Conditions and the purchase order executed by Customer and a duly authorized officer of EL contemporaneously with these Terms and Conditions pertaining to the products, represent the entire agreement of the parties and there are no other oral or written understandings or agreements between EL and Customer relating to the subject matter hereof except for documents or agreements expressly referred to as incorporated herein.
19. AMENDMENTS: EL reserves the right to update or modify these Terms and Conditions at any time without prior notice. Customer's order for products following any such modification constitutes Customer's agreement to follow and be bound by these Terms and Conditions as so modified.
20. GOVERNING LAW; SUBMISSION TO JURISDICTION: All purchase orders and these Terms and Conditions, each of which shall be deemed a binding and enforceable contract between the parties, shall be governed, construed and interpreted in accordance with the laws of Norway. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to EL's sale of products to Customer. In the event of litigation between the parties, the courts of Oslo, Norway, shall have exclusive jurisdiction for any disputes arising out of or related to these Terms and Conditions or the subject matter hereof and relationships contemplated herein.