GENERAL CONDITIONS OF SALE 03/2003
1.1 Any ORDERS accepted by TMT are subject to these General Conditions of Sale.
1.2 Should any provisions of these General Conditions of Sale be in conflict with any of the PURCHASER’s Conditions of Purchase, then the provisions of these General Conditions of Sale shall prevail and shall modify and amend the PURCHASER’s Conditions of Purchase accordingly, unless otherwise agreed in writing.
1.3 Any modifications to these General Conditions are subject to our agreement in writing.
For the purpose of this document, the following terms shall have the meaning as defined here below:
2.1 TMT means
a) TMT – Tapping-Measuring-Technology GmbH, a company having its principal office at Hagener Strasse 103, D-57072 Siegen, Germany.
b) TMT – Tapping-Measuring-Technology Sàrl, a company having its principal office at 32, rue d’Alsace, L-1122 Luxembourg.
2.2 THE PURCHASER Designates any person or company or entity who places an ORDER to TMT. The term also means any successor or assignee of the PURCHASER in the execution of his obligations related to the ORDER. The PURCHASER may however not grant any of his obligations, rights or title to a successor or assignee without the previous agreement in writing from TMT.
2.3 ORDER Means an order placed by the PURCHASER to TMT and accepted by TMT. It also means all annexures, amendments, general or particular conditions and other documents specifically incorporated therein. ORDER shall also designate a contract concluded between the PURCHASER and TMT including all annexures, amendments, general or particular conditions and other documents specifically incorporated therein.
3.1 TMT tenders cover only such supplies and services as are expressly stated therein.
3.2 The terms and conditions set forth in TMT’s tender are not binding on TMT. Any weights, quantities and dimensions indicated on drawings and/or documents provided together with TMT tenders are to be considered as approximate values only and shall not give rise to any contractual obligations.
3.3 TMT tenders, as well as all pertaining drawings and documents shall remain the intellectual property of TMT and shall be strictly confidential. They may not be divulged to any third party without prior written authorization by TMT.
3.4 Unless specifically stated differently in the tender document, TMT tenders are open for acceptance for a period of 30 days from the date of the document.
4. EFFECTIVENESS OF THE ORDER AND SCOPE OF SUPPLY
4.1 Any ORDER has to be confirmed in writing by TMT. The date of effectiveness of the ORDER is the date of the order confirmation by TMT.
4.2 TMT’s scope of supply and services are defined by the ORDER confirmation.
5. DRAWINGS AND DOCUMENTATION
5.1 The PURCHASER shall be fully liable for any drawings, documents and indications transmitted by him to TMT for the execution of the ORDER.
5.2 TMT shall provide drawings, calculation sheets as well as technical documents in quantity in size and on support in accordance with the provisions of the ORDER. However TMT shall not undertake to supply any workshop manufacturing drawings.
5.3 Drawings and documents will be provided in accordance with TMT’s standards unless otherwise agreed in writing.
6. INTELLECTUAL PROPERTY
6.1 All drawings and all other confidential technical documents and information disclosed by TMT or its subcontractors for the purpose of carrying out the provisions of the ORDER either at tender stage or ordering stage shall remain the intellectual property of TMT or its subcontractor. All drawings and documents considered as being confidential shall be marked accordingly.
6.2 The PURCHASER shall use such drawings, data and documents only for the purpose of erecting, operating and maintaining the equipment and plant supplied by TMT under the ORDER. The PURCHASER shall observe strict secrecy and shall not disclose any drawing and /or confidential technical document, data or information to any third party nor shall the PURCHASER use any such drawing, document, data or information disclosed to him under the ORDER to design, construct install and/or run any equipment or plant or part of any equipment or plant of the same or similar nature neither for his own works nor for those of this customer or any third party.
6.3 The PURCHASER shall only give access to third parties to TMT drawings, data and documents, as well as equipment and/or plants for reasons of maintenance or repair, if such third parties have priory signed a secrecy agreement with the PURCHASER in order to protect TMT’s how-how.
6.4 The PURCHASER shall be fully liable for any prejudice caused to TMT resulting out of the non-observance of the above clauses.
The equipment and plant are generally supplied in accordance with TMT standards (DIN). Modifications to these standards may be carried out as far as technically acceptable, such modifications may have influence on price and delivery schedule.
In case the PURCHASER provides for the pattern of the castings, such pattern shall be free issued to TMT’s workshops. Any pattern provided by TMT will remain TMT’s property.
9. WORKSHOP TESTS
Workshop tests shall be carried out at the TMT workshops or those of TMT’s subcontractors, during normal working hours and prior to the shipping of the equipment or are deemed to have taken place. Tests that TMT judges necessary shall conform to the general practice of testing in the specific field of technology. PURCHASER’s delegates may attend the tests. All related charges to such attendance shall be to the PURCHASER’s account.
10.1 TMT accepts liability for the date and the terms of delivery provided a specific commitment has previously been given in writing.
10.2 If not differently provided for in the ORDER the delivery shall commence at the latest of the following dates: – date of the ORDER confirmation by TMT – date of receipt of the down payment in our bank account – date of receipt of the importation licence if required – date of receipt of the confirmed letter of credit in case the ORDER provides for.
10.3 The delivery of TMT shall be made in accordance with the INCOTERMS 2010. Partial deliveries are allowed. In case of free on site deliveries the unloading is excluded from TMT’s scope of supply.
10.4 In the event of the delivery being delayed by reasons attributable to the PURCHASER, the goods shall be put at the disposal of the PURCHASER in TMT’s workshops or in those of TMT’s subcontractors, independently of any different terms of delivery provided for in the ORDER. Upon notification of the PURCHASER by TMT the payments related to the delivery shall be due. Any cost and liabilities associated with the intermediate storage of the goods shall be borne by the PURCHASER.
10.5 In the event that after having given notice and after a reasonable period of time determined by TMT, the delivery continues to be delayed by the PURCHASER, TMT reserves the right to either terminate the ORDER or to freely dispose of the goods. In the latter case, the contractual delivery date will be postponed accordingly.
10.6 TMT’s obligations to deliver in time is considered to be fulfilled if prior to the contractual delivery date the goods have left TMT workshops or those of its subcontractor’s or if the PURCHASER has been notified of the readiness of dispatch of the goods.
10.7 In no case a delay in delivery confers the right to the PURCHASER to cancel the ORDER neither completely nor partially. However if so provided for in the ORDER, TMT is prepared to indemnify the PURCHASER for cost of any direct prejudice caused, provided that such prejudice is proven to be caused by the sole default of the TMT being late and that the ORDER provides for liquidated damages for delay. Any further indemnification of the PURCHASER by TMT for consequential losses and/or damages shall be excluded.
10.8 TMT’s obligation to effect delivery in time shall be waived in case – the PURCHASER does not respect the contractually agreed payment terms – if drawings, documents and/or any other information to be provided by the PURCHASER for the execution of the ORDER are not supplied in time – in a case of a Force Majeure event.
￼11. TRANSFER OF RISK
11.1 The risk in the goods shall pass to the PURCHASER immediately upon delivery in accordance with the INCOTERMS 2010.
11.2 If due to reasons attributable to the PURCHASER, the delivery of the goods cannot be effected upon the date due, the risk in the said goods shall pass to the PURCHASER upon the notification of the readiness of dispatch in TMT workshop or those of its subcontractors.
11.3 In case the ORDER provides for the supply and erection of the equipment and the plant, the risk shall pass to the PURCHASER at the date of the cold commissioning of the plant.
11.4 In case starting up of the equipment and/or the plant is delayed for reasons not attributable to TMT, the transfer of risk takes place at the date of the end of the site erection work.
12.1 TMT’s contractual warranty is limited to the liability in respect of default in conception, in quality and in workmanship of its supplies and services.
12.2 The defects liability period is limited to 12 months starting with the date of commissioning of the TMT equipment but it may not be extended to more than 18 months after the date of delivery, or after the date of readiness for dispatch of the goods in case of delay attributable to the PURCHASER.
12.3 Until the end of the defects liability period TMT shall repair or replace at its sole discretion, free of charge, ex work, all pieces proven defective. The replaced goods shall become the property of TMT
12.4 The defects liability period for the plant or the equipment shall not be extended for the same period by virtue of the repair or replacement of the whole or part of an item thereof. However TMT shall warrant the repaired or replaced part within the same contractual terms and conditions as the original equipment.
12.5 In order to invoke clause 12 of these General Conditions of Sale, the PURCHASER shall have to notify TMT in writing immediately of any defect or alleged defect within the period of warranty. The PURCHASER shall assist TMT in verification of the default and allow best possible remedy.
12.6 TMT shall not be liable for any defects which shall arise by normal wear and tear, incorrect installation, misuse, lack of maintenance and/or any other operation not in accordance with TMT specifications and instructions. No liability shall be assumed by TMT in respect of replaced parts or components manufactured by the PURCHASER or a third party.
12.7 The remedies provided for under this clause 12 are the sole and exclusive indemnification of TMT to the PURCHASER in terms of his liability for the material warranty. TMT’s liability under this clause 12 shall not extend to any consequential damages and/or losses of any nature whatsoever.
12.8 The PURCHASER is not allowed to suspend any payment for reasons invoking this clause.
13. LIMITATION OF LIABILITY
13.1 The indemnification for any prejudice caused to the PURCHASER under clauses 10 and 12 here before shall be limited to the specific remedies as set forth in these clauses.
13.2 TMT shall not in any case indemnify the PURCHASER or any third party for any consequential and/or indirect damages and/or losses of any nature whatsoever.
14.1 Unless otherwise stated TMT’s prices are based on the labour and material cost and the exchange rates prevailing at the day of the tender. Prices will be adjusted in accordance with the variation thereto occurring during the period of performance of the ORDER.
14.2 The quoted prices are exclusive of V A T (V alue Added Tax).
14.3 All taxes payable outside the territory of the Grand-Duchy of Luxembourg are excluded of the prices and shall be borne by the PURCHASER.
15.1 Unless otherwise stated TMT invoices are payable net 100%, 30 days end of month of date of the invoice. They shall be paid in one of TMT Luxembourg bank accounts.
15.2 Any amount due and not paid shall bear interest without prior notice. The interest shall be calculated based on the interest rat for the relevant currency as applied by the Banque et Caisse de l’Epargne de l’Etat du Grand-Duché de Luxembourg + 2 %, starting from the date when the payment is due up to the actual date of the receipt of the payment.
15.3 In case losses on foreign exchange rates result from delay in payment by the PURCHASER, such losses shall be borne by the PURCHASER.
15.4 Any compensation with other claims the PURCHASER may have or pretended lien of payments are formally excluded.
15.5 No claim for whatsoever nature may entitle the PURCHASER to postpone or suspend any payment due.
15.6 In the event the financial situation of the PURCHASER changes during performance of the ORDER, TMT has the right to either claim immediate payment of the balance of the contract price due or to claim supplementary guarantees in respect of the performance of the contract. TMT has the right to cancel all ORDERS with the PURCHASER, if such payments and/or guarantees are not received within eight (8) calendar days after the date of having given formal notice.
16. TRANSFER OF TITLE
16.1 Whatever the contractual payment conditions are, it is explicitly agreed that the ownership shall only pass to the PURCHASER upon the date the full ORDER price is paid to TMT.
16.2 TMT equipment, goods and/of plants may not be given in pledge and title may not be passed by the PURCHASER until the transfer of ownership has taken place in accordance with the provisions of clause 16.1 here before. In case the equipment, goods and/or plants are used in a manufacturing process or are being part of a whole sold by the PURCHASER, the PURCHASER shall reserve title of TMT with his customer and/or any third party.
16.3 After transfer of risk and before passing of ownership, the PURCHASER shall be responsible for the safe custody, protection and preservation of the equipment, goods and/or plant and shall take all proper steps in respect of the adequate insurance thereof.
17. TERMINATION – FORCE MAJEURE
17.1 TMT shall consider the ORDER as being terminated without giving rise to any obligation to TMT towards the PURCHASER if the ORDER is not effective latest 4 weeks after the contractually agreed date, due to one of the following events not occurring by the PURCHASER’s default. – signature of the ORDER by the PURCHASER – receipt of the down payment in TMT’s bank account in Luxembourg – receipt of the letter of credit in accordance with the terms and conditions agreed – granting of the import licence, if so required.
17.2 If the PURCHASER fails to fulfil any of his contractual obligations or if the ORDER is suspended by the PURCHASER for a period exceeding 4 weeks, TMT has the right to either adjust the conditions of the ORDER or to terminate the ORDER.
17.3 IF the activities of the PURCHASER are transferred for any reason whatsoever to a successor or an assignee, TMT shall be informed within one week. In such an event TMT reserves the right to either determinate or to continue the ORDER and to sell the equipment already produced to any third party independently whether it has been delivered yet or not.
17.4 For the purpose of performance of the ORDER, the FORCE MAJEURE events are those impediments which are beyond both parties control and which could not be reasonably avoided or overcome or at least its effects. Shall be considered as Force Majeure events, those events as defined in clause 10.1 of the “General Conditions for the Supply of Plant and Machinery for Export” ME 188 edited 1953 by the United Nations Economic Commission for Europe.
17.5 If in case of a Force Majeure event both parties may not find a common agreement on the execution of the ORDER within a reasonable delay, each of the parties may determinate the ORDER or the non executed part of the ORDER. In such a case the PURCHASER shall reimburse TMT for the cost of all equipments produced or services performed prior to the day of occurrence of the Force Majeure event.
17.6 In any event of termination of the ORDER the provisions contained in clauses 5(2), 6, 13, 15(2), 15(4), 15(5), 16 shall survive and be observed and compiled with by the parties hereto.
18. SEVERANCE OF TERMS
If any provisions of the ORDER shall be declared invalid, unenforceable or illegal by the courts of any jurisdiction to which it is subject or by order of the Commission of the European Communities, such invalidity, unenforceability or illegality shall not prejudice or affect the remaining provisions of the ORDER which shall continue in full force and effect notwithstanding such invalidity, unenforceability or illegality. Both parties agree to replace the inappropriate clauses by new clauses set forth in the same spirit and being in accordance with the applicable law.
Any dispute arising from and in execution of this CONTRACT shall be settled through friendly consultation between the parties. In case no agreement can be reached through consultation with 90 (ninety) days, the dispute shall be submitted to arbitration for settlement. The arbitration shall be concluded in English in the Arbitration Institute of the Stockholm Chamber of Commerce, Sweden, in accordance with the Arbitration procedures and Rules of Conciliation and Arbitration of said International Chamber of Commerce and Sweden Law.