1. Definitions
1.1 The following terms shall have the following meanings: ”The Contract” means any contract of which these terms and conditions form part. ”The Seller” means Paroc Panel System, Kingspan Oy, a company organised under the laws of Finland whose principal office is at FI-21600 Parainen Finland (with VAT registration number FI23839167). ”The Buyer” means a person or company who accepts a quotation of the Seller for the sale of the Products or whore order for the Products is accepted by the Seller. ”Products” means the mineral wool panels manufactured by the Seller together with the accessories manufactured or supplied by the Seller or any other possible services provided by the Seller (i.e. design) as specified in an Acknowledgement of Order form to be issued by the Seller to the Buyer together with any amendments, variations or additions thereto agreed between the Buyer and the Seller.
2. General
2.1 The Buyer shall provide the Seller with all relevant information for the purpose of enabling the Seller to prepare and submit quotations.
2.2 Any order for the Products made by the Buyer shall specify, to the fullest extent practicable, the quality, quantity, type, design, intended use and specifications of the Products required, the date or estimated date of delivery and place of delivery.
2.3 All quotations are given and all orders are accepted on these terms, which supersede any other terms appearing in the Seller’s catalogue or publicity brochures or elsewhere, and override and exclude any other terms stipulated or incorporated or referred to by the Buyer, whether in the order or in any negotiations, and any course of dealing established between the Seller and the Buyer. All orders hereafter made by the Buyer shall be deemed to be made subject to these terms.
2.4 A binding contract for the sale of the Products shall only be concluded when the Seller has issued to the Buyer an Acknowledgement of Order form.
2.5 The Buyer acknowledges that there are no representations outside these terms which have induced him to enter into the Contract.
2.6 No variations in these Conditions shall be binding unless agreed in writing by an authorized representative of the Seller. The signing by the Seller of any of the Buyer’s documentation shall not imply any modification of these terms. The documents complement each other, but if in conflict the following competence is valid:
1) Sales Agreement with appendixes of if lacking, the Acknowledgement of Order or if lacking, the written order
2) these General Terms and Conditions of Sale
3) Quotation with appendixes
4) Inquiry before quotation if submitted with related additional information.
3. Sales Materials and Samples
3.1 All descriptions and illustrations in the Seller’s catalogues, publicity and sales material and advertisements or otherwise communicated to the Buyer are intended merely to present a general idea of the Products described therein, and nothing contained in any of them shall form any part of the Contract.
3.2 Notwithstanding that a sample of the Products may have been exhibited to and inspected by the Buyer, it is hereby agreed that such sample was exhibited and inspected solely to enable the Buyer to judge for himself the quality of the bulk and not so as to constitute a sale by sample. The Buyer shall take the Products at his own risk as to their corresponding with the said sample or as to their quality or sufficiency for any purpose.
4. Price
4.1 The price of the Products stated in the Acknowledgement of Order form shall be based on the gross volume of the Products ordered. The Seller reserves the right to increase the price of the Products before delivery and to claim compensation for any additional costs and expenses incurred to the extent in each case of
a) any agreed increase in the quantity of the Products ordered or any agreed variation as to the design, size, specification or use thereof as stipulated by the Buyer (or as otherwise required pursuant to the provision of information by the Buyer to the Seller pursuant to clause 9.1)
or b) any change in the agreed delivery time, when the Seller incurs additional costs (e.g. the price of raw materials rise during the period between the originally agreed delivery date and the new delivery date) related to said change.
4.2 Any taxes (other than those assessed on profits or gains) arising on the sale of the Products or the provision of associated services shall be borne by the Buyer.
5. Terms of Payment
5.1 The Seller shall invoice the Buyer for the Products or any instalment thereof at the time that the Products are ready for dispatch from the Seller’s premises. Payment shall be made and credited by the Buyer to such account of the Seller as the Seller shall nominate in accordance with the payment sched- ule agreed on. The Seller reserves the right to refuse to give up possession of any other part of the Products except against payment; and the whole of the price of all the Products bought or agreed to be bought by the Buyer shall fall due and payable without demand immediately on the happening of any of the following events:
(i) failure by the Buyer to pay any sum due to the Seller within thirty (30) days of the due date of payment;
(ii) if the Buyer goes into liquidation or convenes a meeting of its shareholders for the purposes of passing a winding up resolution or compounds with its creditors generally or has an administrator appointed or if a receiver or administrative receiver is appointed over all or any of its assets or if the Buyer is unable to meet its debts as they fall due or if a petition for the winding up of the Buyer is presented and is not withdrawn before being advertised or if a petition for the appointment of an administrator of the Buyer is presented or if any encumbrance takes possession of any of the assets of the Buyer or if any event analogous to any of the foregoing shall incur in any jurisdiction.
5.2 The failure by the Buyer to pay any part of the price, in the absence of any notified disputes, of the Products in due time shall be a breach of condition entitling the Seller treat that failure as arepudiation of the whole contract by the Buyer and to recover damages for such breach. Instead of repudiation of the whole contract the Seller shall have without prejudice in its sole discretion the right to e.g. choose to stop delivery until any outstanding payments are made.
5.3 Interest on all sums due shall run at the rate of 15 % per annum until pay- ment is received after as well as before any judgement therefor.
5.4 Any additional costs incurred by the Seller in the collection of overdue amounts will be borne by the Buyer.
5.5 If the Buyer is responsible for the transportation and export of the Products, the Buyer shall at his own cost and risk provide the Seller with all relevant information in this regard for the purposes of arranging carriage, VAT and customs and export clearance.
5.6 To the extent that the Buyer and the Seller agree and the Acknowledgement of Order form issued by the Seller shall stipulate that the Buyer shall provide security in relation to the performance of its obligations under the Contract, the Buyer shall provide such security on the terms and in the manner specified therein.
5.7 In the event of any of the circumstances specified in clause 5.2 hereof arising, the Seller shall be at liberty at its sole discretion and without prejudicing or affecting any right of action which shall have accrued or shall thereafter accrue to the Seller:
(i) to set off any amounts then due and payable to the Buyer by the Seller against any monies whatsoever outstanding from the Buyer to the Seller;
(ii) forthwith at any time thereafter to terminate the Contract by giving notice in writing to that effect to the Buyer;
(iii) to give any such liquidator, receiver, manager or other person the option of continuing the Contract on such terms as may be mutually agreed; or
(iv) to suspend deliveries pending fulfilment by the Buyer of all outstanding obligations and the provision of such security as the Seller may request and in a form acceptable to the Buyer’s creditors for the purpose of completion of the delivery of the Products.
6. Cancellation
6.1 The Buyer may not cancel the Contract without the consent of the Seller, which if given shall be deemed to be on the express condition that the Buyer shall indemnify the Seller against all loss, damage, claims, or actions arising out of such cancellation unless other- wise agreed in writing.
7. Liability for Wrong Information
7.1 The Seller shall not be liable to the Buyer in respect of any damage or loss suffered by the Buyer or any delays in the performance of the Contract as a result of the provision of inaccurate or incorrect data, specifications, designs and any other information provided by the Buyer for the purpose of the performance of the Contract and the Seller shall be entitled to be reimbursed by the Buyer for all loss, costs and expenses suffered or incurred by the Seller as a consequence thereof.
7.2 The Seller shall, at its sole discretion, be entitled to enhance, vary, improve or make such modification to the Products as it may deem desirable or necessary for the purpose of ensuring that the Products are suitable for the intended use specified by the Buyer to the Seller and in so doing the Buyer shall not be released from any liability as a result of submitting inaccurate or incorrect data or information to the Seller.
7.3 The Seller shall not be responsible or liable for any damage or loss suffered by the Buyer as a result of the supply of the Products to the Buyer based on and in compliance with incorrect data, specifications or other information provided to the Seller by the Buyer.
8. Passing of Risk and Property
8.1 Risk of loss or of damage to the Products shall pass to the Buyer at the time specified in the Acknowledgement of Order form in accordance with the Incoterms 2000 specified therein.
8.2 The property in the Products shall not pass to the Buyer until all sums due or owing to the Seller by the Buyer on any account shall have been paid. Pending such payment, the following provisions of this clause 8 shall apply.
8.3 The whole of the price shall not be treated as paid until any cheque, bill of exchange or other instrument of payment given by the Buyer has been met on presentation or otherwise honored in accordance with its terms. The Seller may sue for the whole of the price at any time after it has become payable.
8.4 If the Buyer defaults in the punctual payment of any sum owing to the Seller then the Seller shall be entitled to the immediate return of all the Products sold by the Seller to the Buyer (or the documents of title thereto) in which the property has not passed to the Buyer, and the Buyer hereby irrevocably authorizes the Seller to recover the Products or documents and to enter any premises of the Buyer for that purpose. Demand for or recovery of the Products or documents by the Seller shall not of itself discharge either the Buyer’s liability to pay the whole of the price and take delivery of the Products or the Seller’s rights to sue for the whole of the price.
9. Delivery
9.1 All delivery dates stated in an Acknowledgement of Order form issued by the Seller are estimates only unless otherwise specifically stated. The Buyer shall notify the Seller in writing of the actual required date of delivery of each consignment of the Products together with details of the final form of, and any required variation in the specifications, quality, design and quantities of the Products in respect of each consignment not less than three weeks prior to the estimated date of delivery stated in the Acknowledgement of Order form and such delivery date or dates shall be subject to agreement by the Seller.
9.2 If the Seller delays in delivering the Products beyond 7 days following an agreed date of delivery as referred to in clause 9.1, the Seller shall pay to the Buyer in respect of each week or part thereof during which such delivery is delayed a sum equivalent to 0.5 % of the ex works price of that part of the consignment of the Products subject to such delay subject always to a maximum liability in aggregate of 5 % of such ex works price and subject thereto the Seller shall not be liable to compensate the Buyer in damages or otherwise for non-delivery or late delivery of the Products or any of them for whatever reason or for any consequential loss or otherwise arising therefrom.
9.3 The Seller shall be entitled to deliver the Products in one or more consignments unless otherwise expressly agreed.
9.4 Should the Seller be prevented from or hindered in delivering the Products or any part thereof by reason of war, riot, explosion, fire, flood, strike, lockout, shortage of materials or labour or any cause beyond the Seller’s control, the time for delivery shall be extended by a period equal to that during which the cause preventing or hindering delivery exists.
9.5 Should the Seller be prevented from delivering part of the Products by reason of any of the causes specified in the preceding subclauses, the Seller shall deliver and the Buyer shall take and pay for such part of the Products as the Seller shall be able to deliver in accordance with the Contract.
9.6 The Seller shall not be liable for any loss of any kind to the Buyer arising from any damage to the Products occurring after the risk has passed to the Buyer however caused, nor shall any liability of the Buyer to the Seller be diminished or extinguished by reason of such loss.
9.7 The Buyer shall be solely responsible for the unloading of the Products at its own cost and to the extent that delivery is to the Buyer’s premises, the Buyer shall ensure unhindered passage and access for the purposes of delivery and unloading of the Products.
9.8 The Seller shall have the right to charge the Buyer for storage of the Products at such reasonable rates as shall be determined by the Seller to the extent that the Buyer may request storage or if storage is necessitated by the delay of the Buyer.
9.9 Unless otherwise agreed in writing, the Products shall be delivered in the Seller’s standard packaging.
10. Inspection and Notice of Defects
10.1 The Buyer is responsible for inspecting the Products immediately on receipt thereof and shall immediately give notice by facsimile transmission to the Seller in detail of any ground on which the Buyer alleges that the Products are not in accordance with the contract.
10.2 If the Products are lost or damaged in transit, the Buyer shall immediately notify the carrier in writing and also notify the Seller in accordance with clause 10.1.
10.3 The Buyer is responsible for inspecting the Products when opening the packages and prior to installation or use of the Products and shall notify the Seller in accordance with clause 10.1.
10.4 The Buyer shall notify the Seller immediately after installation in accordance with clause 10.1 about such defects that are not detectable prior to installation.
10.5 If the Buyer fails to give such notice as mentioned in clauses 10.1 to 10.4 the Products shall be conclusively Paroc Panel System, Kingspan Oy, Halmeenkatu 7, 38700 Kankaanpää, + 358 (0) 46 876 8716, [email protected] presumed to be in all respects in accordance with the contract and the Buyer shall be deemed to have accepted the Products accordingly. In the event that the Buyer establishes to the Seller’s reasonable satisfaction that the Products are not in accordance with the Con- tract, the Buyer’s sole remedy in respect of such non-accordance shall be limited as the Seller may elect to the repair or replacement of the Products. Such replacement is to be made using the same method of delivery as the Products in question were first delivered.
10.6 Small colour variations may for coating-technical reasons appear between different delivery batches of the panel coating material. If a specific installation order has not been informed, panels should be installed in delivery order. The guideline value for an acceptable colour variation compared to the original colour sample is ∆E≤1 (Method ECCA T-3). The final colour acceptance is however to be visually made in light boxes with various lighting conditions, where the product is not allowed to essentially deviate from the colour sample. The colour sample used for comparison will be an original sample agreed on jointly between the Buyer, Company and the steel sheet supplier.
10.7 Normal values and tolerances for organic coated steels (e.g. gloss) are in accordance with the European Standard EN-10169-1 unless otherwise stated.
11. Use of the Products
11.1 Where the Products have been manufactured or constructed according to designs or configurations or by processes specified or supplied by the Buyer, the Buyer represents and warrants to the Seller that the Buyer has or will have satisfied itself that all necessary tests and examinations have been made or will be made prior to the Products being brought into use to ensure that the Products are designed, constructed and operational so as to be safe and without risk to the health or safety of workmen or others using them, and that it will take such steps as are necessary to secure that there will be available in connection with the use of the Products at work adequate information about the use for which they are designed and have been tested and about any conditions necessary to ensure that when put to that use they will be safe and without risk to health.
11.2 The Buyer shall comply with all instructions of the Seller with regard to the use and handling of the Products and shall ensure that the products are installed according to the Seller’s instructions and by a skilled installer and in accordance with good design, handling and instalment practice and all applicable regulations and requirements.
11.3 The Buyer shall indemnify the Seller against all actions, suits, claims, demands, losses, charges, costs and expenses which the Seller may suffer or incur in connection with any claim by any third party alleging the facts which if established would evidence a breach of the undertakings representations and warranties on the part of the Buyer contained in this clause 11.
12. Defects after Delivery
12.1 The Seller will make good only by repair or at the Seller’s option by the supply of a replacement using the same method of delivery as the Products in question were first delivered, defects which under proper use appear in such part or parts of the Products as are of the Seller’s manufacture and are notified to the Seller within a period of 12 months after the Products have been delivered and arise solely from faulty materials or workmanship provided always that defective parts are on delivery promptly notified by the Buyer and returned at the request of the Seller by the Buyer carriage paid to the Seller’s works and become the property of the Seller if replaced.
12.2 The Seller will use all reasonable endeavors to procure for the Buyer the benefit of such warranties and other rights as are conferred on the Seller in relation to defects in such part or parts of the Products as are not of the Seller’s manufacture by the terms of the Seller’s agreement with the suppliers of the Products.
12.3 These terms set out the Seller’s entire liability in respect of the Products, and the Seller’s liability under these terms shall be in lieu and to the exclusion of all other warranties, conditions, terms and liabilities express or implied statutory or otherwise in respect of the quality or the fitness for any particular purpose of the Products or otherwise howsoever, except any implied by law which by law cannot be excluded. Save as provided in these terms and except as aforesaid the Seller shall not be under any liability, whether in contract, tort or otherwise, in respect of defects in the Products or failure to correspond to specification or sample or for any injury, damage or loss resulting from such defects or failure or from any work done in connection therewith.
13. Limitation of Liability
13.1 The Seller’s liability (if any) whether in contract, tort or otherwise in respect of any defect in the Products, or for any breach of this agreement or of any duty owed to the Buyer in connection herewith, shall be further limited in the aggregate to the price of the Products in question.
13.2 In no event shall the Seller due to any breach of this agreement or of any duty owed to the Buyer in connection herewith be liable for any special, indirect, incidental, secondary or consequential damage or lost profits.
14. Insurance
14.1 For as long as the risk of loss or damage to the Products resides in either party hereunder, such party shall insure the Products for the full replacement value thereof.
15. Patents, Trademark, Copyright etc.
15.1 All manuals, drawings, tracings, specifications and other technical or related documentation that the par- ties supply to each other pursuant to the contract or any other agreement between the parties shall at all times vest in and remain the property of the party providing such information for the purposes of the performance of the contract and in accordance with the intended use specified in the contract. Such information shall not be used, copied or otherwise duplicated, nor transferred or disclosed to a third party without the consent of the supplier of the information.
15.2 Where the Products have been manufactured or constructed according to designs or configurations or by processes specified or supplied by the Buyer, the Buyer represents and war- rants to the Seller that the Products as so designed or configured and any processes so used do not infringe the rights of any person, whether in respect of any patent, trade mark, registered design, copyright, confidential disclosure or otherwise however to prevent or restrict the sale or use of the Products or the use of such processes. The Buyer shall indemnify the Seller against all actions, suits, claims, demands, losses, charges, costs and expenses which the Seller may suffer or incur in connection with any claim by any third party alleging facts which if established would evidence a breach of the representations and warranties contained in this clause 15.2
16. Proper Law
16.1 The Contract shall be governed and interpreted in accordance with Finnish Law, and the Buyer submits to the jurisdiction of the Lower Court of Justice in Finland, but the Seller may enforce the Contract in any court of competent jurisdiction.
17. Assignment
17.1 The Buyer shall not assign any benefit under the contract without the consent in writing of the Seller, which may if given be on such terms as to guarantee or indemnify or otherwise as the Seller thinks fit.
18. Notices
18.1 Any notice given under or pursuant to the Contract may be sent by hand or by post or by registered post or by recorded delivery service or trans- mitted by tele message or other means of telecommunication resulting in the receipt of a written communication in permanent form and if so sent or transmitted to the address of the party shown on the face hereof, or to such other address as the party may by notice to the other have substituted therefor, shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours of such addressee.
Paroc Panel System, Kingspan Oy, Halmeenkatu 7, 38700 Kankaanpää, + 358 (0) 46 876 8716