1. VALIDITY OF THESE SALES CONDITIONS FOR GOODS/SPARE PARTS and SERVICES dtd. March 2018.
These Sales Conditions shall govern the relationship between a legal entity or any person or company to which the Commercial Offer is submitted and which shall be the buyer under the Contract (hereinafter referred to as “Customer”) and INOWA Abwassertechnologie GmbH (hereinafter referred to as “INOWA”) unless a deviation from these Sales Conditions is specifically stated in an individual contract (hereinafter referred to as “Contract”); non-deviated conditions of these Sales Conditions shall remain applicable. In case of agreement on these Sales Conditions, any other purchasing conditions of the Customer (e.g. printed on the back of a purchase-order form) shall be null and void. These Sales Conditions shall be considered accepted by the Customer with the commencement of the execution of the contractual obligations by INOWA.
2. EFFECTIVENESS AND DELIVERY
2.1. Unless otherwise provided in the commercial offer/ quotation/budgetary offer (hereinafter referred to as “Commercial Offer”) the Contract shall become legally binding upon contractual agreement between the Customer and INOWA, i.e. acceptance of INOWA’ Commercial Offer by the Customer. However, the period for delivery of the goods (hereinafter referred to as “Goods”) shall commence only after final technical clarification and receipt of the payment security as per Article 3.3 (hereinafter referred to as “Effectiveness”). In case the payment security as per Article 3.3 has not been provided accordingly within 30 days after contractual agreement between the Customer and INOWA, INOWA may withdraw from the Contract without incurring any liability to the Customer.
2.2. Unless otherwise provided in the Commercial Offer INOWA shall deliver the Goods FOB European seaport according to Incoterms 2010. Title to the Goods shall pass to the Customer together with risk upon FOB delivery or upon warehousing; however, in case no payment security is provided by the Customer title to the Goods shall pass to the Customer upon full payment of the price of the Goods only.
2.3. The Goods shall be delivered according to the dates of delivery as per the Commercial Offer. For packing and marking of the Goods, INOWA’ standard procedures shall apply.
2.4. In case of a delayed delivery beyond the agreed delivery date due to reasons not attributable to INOWA, INOWA is entitled to charge the cost for ware housing on the Customer. In case of an INOWA owned ware house after a grace period of one month, in case of an external ware house with immediate effect. This is not limiting INOWAS right for compensation of damages caused by a delay not solely attributable to INOWA.
3. CONTRACT PRICE AND TERMS OF PAYMENT
3.1. The total price of the Goods and services (hereinafter referred to as “Contract Price”) shall be as per the Commercial Offer.
3.2. The Contract Price shall be due and paid as per the Commercial Offer.
3.3. Unless otherwise provided in the Commercial Offer the payments of the Customer to INOWA for the Goods shall be effected against presentation of the documents to be specified by an irrevocable, divisible, confirmed and transferable letter of credit (L/C) in favour of INOWA established by a first class bank, acceptable to INOWA, allowing sight payment and partial shipment or partial drawing, stale documents accepted. The L/C shall be opened within 30 days after contractual agreement between the Customer and INOWA as per Article 2.1 and shall have validity for the period covering the longest lead-item delivery plus two (2) months. In case delivery of the Goods should not be completed within the period covering the longest lead-item delivery the Customer shall extend the validity of the L/C accordingly.
3.4. In case of delay in payment the Customer shall be liable to pay interest of 9 % p.a.
The Customer shall bear and pay all taxes, dues, charges, fees, customs duties etc. levied on the Customer or levied by authorities in the Customer’s country on INOWA as a result of performance of the Contract. In case any such taxes etc. are directly imposed upon INOWA the Customer shall save INOWA harmless.
5.1. In case of delays in delivery of the Goods beyond the agreed period due to reasons within the control and responsibility of INOWA, INOWA shall after a grace period of 21 days be liable to pay liquidated damages of 0,5 % of the price of the delayed Goods per each completed week of delay. The maximum total of damages and liquidated damages for delay in delivery of the Goods shall be 5 % of the Contract Price for the Goods.
5.2. Payment of liquidated damages shall serve as sole remedy and constitute full and final settlement of any and all claims which may arise from a delay. In case a delay has not caused costs or damages to the Customer INOWA shall not be liable to the Customer.
6. Left blank by intention.
7. WARRANTY FOR THE GOODS
7.1. INOWA warrants that the Goods shall be delivered according to these Sales Conditions and shall be in conformance with the technical specification and manufactured according to generally accepted industry standards, unless otherwise specified. The Goods shall be new and free from any rights of third parties such as patents or liens. Aside from this warranty for conformance with the technical specification no warranty for fitness for a particular use or merchantability is given.
7.2. INOWA’ obligation under this warranty is to repair or replace, at INOWA’ option, any Goods which are shown to be defective. Delivery of replaced Goods shall be made to the same point of delivery as the initial delivery.
7.3. This obligation is limited to a period of 12 months from each delivery or 6 months from putting into operation or use of the Goods, whichever occurs first. For Goods replaced under warranty the Customer shall be entitled to a new warranty period of 6 months from the date of replacement. All such new or extended warranties expire 24 months after Effectiveness at the latest.
7.4. INOWA’ obligations under this warranty are given under the condition that (i) the Customer has not failed to notify INOWA in writing immediately after examining the Goods upon delivery and giving written notice to INOWA specifying any defect, and (ii) the respective items under warranty were not damaged in transit, nor improperly stored or handled, and (iii) were not affected by improper supplies or services of the Customer or Customer’s use of non-genuine spare parts of INOWA (not delivered or authorised by INOWA), and (iv) were not used or abused in any manner which was not expected by INOWA at the time of signing the Contract, and (v) the Customer proves that the defect is attributable to INOWA.
7.5. Exempted from this warranty are any defects which may arise from wear and tear, improper use or damage. Further this warranty is exempted for
any parts or materials that are consumed during normal operation or that have a life time inherently shorter than the warranty period.
7.6. If the Customer claims for defects which are not covered by this warranty the Customer shall pay all costs and expenses incurred by INOWA.
INOWA shall advise the activities of the Customer as per the Commercial Offer. INOWA warrants that it will delegate advisors with appropriate qualifications and that its advisors will exercise their duties with due diligence and give correct instructions. In case of any erroneous instructions INOWA shall correct such instructions immediately upon discovery of such error. Neither INOWA nor INOWAS’ personnel shall be responsible for compliance by others with safety and security requirements at site, labour relations, local regulations and laws. The Customer shall support INOWA’ advisory and grant to the advisors the right, power and possibility to give instructions to the advised personnel and companies and, if such instructions are not followed, to enforce such instructions. Work requiring the presence of INOWAS’ personnel as specified in the Contract must not be carried out in their absence. The Customer shall inform INOWA and its personnel in respect of all laws, regulations, requirements, ordinances or decrees applicable for their presence and activities in the Customer′s country.
9.1. INOWA SHALL IN NO EVENT BE LIABLE FOR LOSS OF PROFIT, LOSS OF PRODUCTION, LOSS OF USE, INTERRUPTION OF OPERATIONS, LOSS OF CONTRACTS, LOSS OF REVENUE, LOSS OF INFORMATION AND DATA, CONTRACTUAL CLAIMS OF THIRD PARTIES AGAINST THE BUYER AND ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES UNDER WHATEVER TITLE, LEGAL OR CONTRACTUAL BASIS OR THEORY OF LAW.
9.2. UNLESS OTHERWISE PROVIDED IN THE COMMERCIAL OFFER, INOWAS’ OVERALL LIABILITY UNDER OR IN CONNECTION WITH THE CONTRACT, UNDER WHATEVER TITLE, SHALL IN THE AGGREGATE BE LIMITED TO 20 % OF THE CONTRACT PRICE.
9.3. In case the Customer raises any claims against INOWA, which INOWA is not liable for, the Customer shall indemnify INOWA for all costs and expenses incurred by INOWA as a result of defending such unjustified claims.
9.4. The Customer shall indemnify INOWA for any claims or remedies for damages if such damages were caused by or in connection with the fact that (for whatever reasons) (i) persons other than INOWAS’ personnel did not duly comply with security instructions or duly respect security warnings, and/or (ii) persons other than INOWAS’ personnel bridged, removed, unduly used or did not use security devices or other measures, and/or (iii) no or no proper security instructions, warnings, devices or other measures were in place but should have been implemented by the Customer or the Customer’s contractors under the Contract or otherwise.
9.5. The limitations of INOWAS’ liability under or in connection with the Contract shall also apply for the benefit of INOWAS’ personnel, agents, subcontractors, and licensors of any and all tier, including the personnel of such agents, subcontractors and licensors, to the extent that any of the above are directly or indirectly involved with respect to the execution of the Contract. All limitations of INOWAS’ liability shall also apply for any and all cases in which INOWA has to indemnify and/or hold harmless the Customer.
9.6. The only warranties made by INOWA are those expressly stated in the Contract. Any liability of INOWA with respect to death or injury to any person is subject to and governed by the provisions of the law applicable. Any liability of INOWA shall cease at the end of the respective warranty period applicable for the part of Goods due to which the damage was caused. The Customer shall not have any other rights and shall not raise any claims against INOWA except for those expressly stated in these Sales Conditions and in the Contract.
9.7. The limitation and exclusions stated under these Sales Conditions shall apply for any liability of INOWA under the Contract, in tort, under any theory of strict liability or otherwise. The limitations and exclusions stated under these Sales Conditions do, however, not apply to damages or loss caused by intentional act on the part of INOWA.
10.1. The Customer herewith agrees to keep confidential and not to disclose to any third party any information disclosed to the Customer pursuant to the provisions of the Commercial Offer and/or the Contract and not to use it for any other purpose than installation, operation and maintenance of the Goods, except in the case that such information (i) is in the public domain or becomes part of the public domain through no fault of the Customer, or (ii) is at the time of disclosure in the possession of the Customer as shown by his written records, or (iii) is received by the Customer from a third party imposing no obligation of confidentiality to the Customer and which did not receive such information, directly or indirectly from INOWA.
10.2. The intellectual property rights on all engineering, documentation, software and know-how of INOWA shall remain with INOWA. No part of submitted documentation by INOWA to the Customer is allowed to be adapted, copied, reproduced, duplicated, translated into another language, distributed or processed (print, photocopy, microfilm or any other process), neither by the use of electronic systems nor otherwise without the prior written permission of INOWA.
10.3. Information for proprietary items of INOWA and/or INOWA’ sub-contractors/sub-suppliers protected under this Article 10 (confidential information) or by the applicable law(s) for protection of rights (e.g. patent laws) shall not be used for the purpose of manufacturing of spare parts or replacement parts by the Customer himself or by third parties engaged by the Customer for such purposes, except if purchased by the Customer (i) with INOWAS’ prior consent or (ii) from a supplier, manufacturer, dealer or licensee authorised in writing by INOWA to manufacture and/or sell such spare part/replacement part or (iii) from the genuine owner of the intellectual property relevant for the respective spare part/replacement part.
10.4. INOWA shall not be obliged to disclose proprietary information and/or confidential information of third parties (e.g. sub-suppliers or licensors).
10.5. This Article shall survive any expiration or termination of the Contract. In case of breach of this Article INOWA shall be entitled to claim damages and other remedies provided by the applicable laws.
11.1. INOWA may terminate this Contract in case of (i) substantial violations of the Contract by the Customer which have not been remedied within a reasonable time in spite of written requests to do so; or (ii) bankruptcy or insolvency of the Customer; or (iii) occurrence of non-operability of the L/C as per Article 3.3.
11.2. In case of any termination INOWA shall be entitled to receive all monies due to INOWA until the date of termination. In case of termination
without default by INOWA, INOWA shall (i) receive the Contract Price less any costs and expenses not incurred, and (ii) be reimbursed for all damages incurred without default by INOWA as a result of the termination.
11.3. INOWA is entitled to suspend the performance of the Contract, if the Customer is in delay with any payment for a period exceeding 30 days and INOWA is entitled to terminate the Contract, if the Customer is in delay with any payment for a period exceeding 60 days. Before any justified termination due to substantial excess of the delivery terms, the Customer and INOWA shall negotiate a possible further compensation in excess of the specified liquidated damages for delay considering the actual overall performance of INOWA.
12. ARBITRATION AND APPLICABLE LAW
12.1. All disputes arising out of or in connection with these Sales Conditions and/or the Contract shall be exclusively and finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The exclusive jurisdiction of arbitration in this Article specifically extends to disputes regarding claims based in tort, disputes regarding the validity of the Contract, costs of arbitration proceedings, etc. The seat of arbitration shall be in Zurich, Switzerland, and proceedings shall be held in the English language.
12.2. Swiss substantive law as between Swiss entities in Switzerland (under exclusion of its conflict-in-laws provisions and the UN-Convention on Contracts for the International Sale of Goods - Vienna 1980) shall apply.
12.3. The arbitration award shall be final and binding upon the parties to the arbitration and may be enforced in any court having jurisdiction over the party against which enforcement is sought.
10.4 Pre-trail discovery shall be excluded in any case.
13.1. INOWA shall not be obligated to fulfil this Contract if such fulfilment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions. INOWA shall use its best efforts to obtain all necessary export licences, if any. The Customer shall assist and support INOWA in this respect and shall provide all requested declarations and documents. In case an export licence cannot be obtained or cannot be obtained in due time or is revoked the Customer and INOWA will select a replacement solution by mutual agreement. Any additional cost, if any, arising in connection with the replacement solution shall be borne by the Customer. Claims against INOWA due to not or delayed obtaining or revoking an export licence are excluded.
13.2. The items (Goods, spare parts, software, technology) delivered by INOWA within the scope of the Contract shall be exclusively utilized by the Customer in the plant for which they were requested for by the Customer or for which they were quoted for by INOWA, respectively. The Customer shall not have the right to re-export the delivered items (Goods, spare parts, software, technology), except to INOWA, e.g. for return / reconditioning / repair works.
13.3. Changes of these Sales Conditions and/or the Contract must be in writing and signed by both the Customer and INOWA in order to be effective. Any changes in the Contract or any of INOWA’ obligations under the Contract necessitated by changes in law or, required by authorities after Effectiveness shall be on the account of the Customer. In any case, both the Customer and INOWA shall inform each other immediately of any such changes that may be required.
13.4. INOWA shall be free to subcontract parts of the Contract; however, INOWA shall remain liable to the Customer for the performance of the Contract in accordance with its provisions. Both parties may assign all or parts of their rights and obligations under the Contract only with the written consent of the other party. Such consent shall not be withheld provided that the affected party′s position is not in any way diminished by the assignment. However, INOWA may assign its rights for refinancing and/or insurance purposes. Upon notification to the Customer INOWA may further assign receivables and portions of its scope of delivery (including related rights and obligations) to affiliated companies of INOWA.
13.5. Neither party shall be held in default in cases of Force Majeure. For the purposes of this Contract, Force Majeure is defined as any event which could not reasonably be prevented by the party affected by Force Majeure and which hinders the proper performance of a party′s obligations. Examples of Force Majeure are war, whether declared or not, civil disturbances, revolution, terrorism, insurrection, boycott, acts of government, non-issue or revocation of export/re-export licenses, strike, fire and natural calamities including for example floods, earthquakes, typhoons etc. In case of Force Majeure preventing execution of the Contract for a period longer than 3 months for any single period or for longer than 5 months in total, INOWA has the option to terminate the Contract in case the Customer does not reimburse INOWA’ additional costs and expenses arising from continuation of the Contract. However, additional costs for the first 3 or 5 months respectively shall not be subject to reimbursement.